text:
    Watkins vs. Turner et al.
    1. Witnesses: Husband and wife. Magnessv. Walker, 26 Ark., overruled.

    Husband and wife can not testify for' or against each other in civil cases. And the incidental benefit which the husband, though a formal party, may derive from the wife’s success in a suit for property, can not be noticed as a legal or equitable interest to authorize his admission as a witness.
    The decision in Magness v. Walker, 26 Ark., 470, that a husband or wife acting as agent for the other, may' testify as to the matters of the agency, ovei'ruled.
    2. Specific Performance : Discretion of chancellor.

    Courts of equity have always reserved the right of exercising a sound discretion in suits for specific performance, and generally refuse relief where the case is not clear, or where the complainant is in the wrong, or there are considerable countervailing equities. In such cases equity refuses to interfere, and leaves the parties to their rights and remedies at law.

      3. Contract : Consideration.

    If the purchaser of land at execution sale agree with the owner, to convoy the land to his wife and children, upon certain conditions to be performed by the wife, and he thereupon refrain from redeeming the land from the execution sale, this is sufficient consideration to support the , contract.
    4. Parties : Trustees. Povjers, ete.

    A contract to convey land to a wife and such of her and her husband’s children as she and he shall designate, constitutes them trustees of a power to designate the children to receive, with the wife, the conveyance; and a suit for the conveyance can not be maintained until the designation is made. If either parent die before it is made, all the children will take equally with the mother. Chancery will exercise the power on the principle of equality.
    APPEAL from White Circuit Court in'Chancery,
    lion. Sidney M. Barnes, Special Judge.

      Goody, for appellant.

      Turner, pro se.

   Eakin, J.

This is a bill for specific performance, growing out of the matters involved in the case of Turner v. Watkins et al., 31 Ark., 429. The transcript of that case, already on file here, is, by agreement of counsel and leave of the court, brought to our notice in this case, together, and in connection, with the transcript of the case appealed.

After the decision in that case, the wife of Thomas Watkins, Mrs. M. E. Watkins, who was not a party thereto, filed this original bill in the White county circuit court in chancery, on the fifteenth of December, 1877, against B. D. Turner, as principal defendant, together with. J. N. Cypert, trustee, and John G-. Holland, a receiver of the court. In the bill and amendments thereto, she sets forth the deed of trust executed by herself and her husband to Cypert, on the ninth of June, 1869, to secure the notes to Sallie E. Dougan for about $8,500; the judgment of Moses Greenwood & Son against her husband for about $1,930; on the fourth of November, 1869; the levy, ven. ex., and sale of the lands in controversy under said judgment for a balance of $916.43 then due thereon ; the purchase of all of said lands by plaintiffs in execution, at said sale, on the fifth day of August, 1871; the redemption of the same by defendant, Turner, as a judgment creditor, on the first day of August, 1872, by paying off the bid and crediting his execution with the whole amount of his judgment, and his receipt of the sheriff’s deed, on the eighth of the same month — all substantially as set forth in the former opinion.

She says, further, that she and her husband had great confidence in, and reliance upon, the friendship of Turner, who had been, and was then, their attorney and confidential adviser, and whose advice they followed without question. They relied upon him to advise and assist them in taking some steps to prevent the land from passing beyond their control, and expected his advice in redeeming the lands from the Greenwoods, which they had intended to do. When he redeemed, on the first of August, 1872, they felt confident, she says, that the redemption was made for their benefit, except in so far as it might be necessary for Turner’s own security. Her husband and Cypert went to Turner, however, before the time of redemption expired, to ascertain more definitely his intentions, when he assured them, verbally, that ho did not wish to deprive her and her husband of the property ; -that he desired ouly security for what her husband owed him, and certain other specified claims which he held for collection ; and that if complainant, through herself or her friends, would pay these off in a reasonable time, he would convey the property to her and her children. This he agreed, at a future time, to reduce to writing; and she charges that, relying upon this, neither she nor her husband made any further effort to redeem the lands from him, but allowed the sheriff’s deed to be executed. But for this she would have caused the land to be redeemed.

She charges that the contract for renting the lands to her husband, made by Turner on the fourteenth of January, 1873, and which is partly set forth in the opinion in the former case, was executed in pursuance of the previous verbal agreement — except that the terms concerning the renting were superadded. She says Turner did that to estop Watkins from denying his title as landlord, in case he should attempt to question the regularity of the sale under the Greenwood execution. For the re3t, she says that it was her part, and sets it forth, and exhibits it, with the bill.

This contract is signed by Watkins and Turner, and is the instrument upon -which she relies for specific performance.

By it, Watkins agrees to rent the lands from Turner for the year 1873, and to pay therefor the sum of $1,650 'by the twenty-fifth day of December next following, and to return the premises in good order on the first day of January, 1874. Turner, on his part, agreed thereby, upon the payment of said rent, and also upon the payment to him, “by Mrs. Margaret E. Watkins, or any friend for her,” of the sum of $4,635.67-100, being-the amount of Watkins’ indebtedness to Turner, at that date, exclusive of legal services in a case pending in Jefferson county, between Watkins and Brodie and King; and a sum of $285, and interest, due Turner & Moore (late law- partners), “and whatsoever sum may, by agreement, arbitration, judgment, or other-wise, be ascertained to be justly due from said Thomas Watkins to Emily S. Quarles, or to Quarles and wife, for balance of purchase money for part of said lands, unless the same shall be sooner paid, in which event, it shall be the same as if paid by her.and, also, all 'taxes accrued on said land for the year 1872, or any previous year; and, “ shall also save me from the payment of any mortgage or other incumbrance on said lands, existing before the judgment lien, under which I obtained title; and shall also pay me any other sum that said Watkins may then owe me;” then, on the first day of January, 1874, to convey said lands, by special warranty deed, “ to her, and such of the children of her and said Thomas Watkins, or of either of them, or to a trustee for them, as he and she, by writing, may designate, to their separate and exclusive use and benefit, free from all rights and liabilities of said Thomas Watkins.” But, it was provided, “if any of the above-mentioned items, or debts, shall not be paid, or.if I shall have to pay, or discharge in any way, any mortgage or other incumbrance, or any part of such mortgage or other incumbrance on said lands, or any part of them, in order to protect my title to them, this obligation on my (the said B. D. Turner’s) part, to convey said lands, shall be absolutely void.”

In another clause it was stipulated, on the part of Turner, that if any part of his debt of $4,635.67-100 should be paid before the twenty-fifth of December, it should be credited upon the rent, with interest on the said payment at the rate of 3J per cent, per month until said twenty-fifth of December.

This instrument is set up as a declaration of trust, on the part of Turner, based upon the parol agreement made with Watkins in the preceding month of August, in which, time for the performance of the conditions was not of the essence of the contract; at least, it is contended, that none of them needed to be performed before the first of January, 1874.

She says that, in compliance with said agreement, she has paid all taxes due upon the lands at the date of the contract, as well as those that have since accrued.

By way of further performance, and excuse for nonperformance, of conditions on her part, she says : That she and her husband allowed the trustee, Cypert, to take control of the lands, and rent them out to Greer & Baucum, and G. B. Greer, for the years 1874, 1875 and 1876, for the aggregate amount of $4,800, which, after deducting substantial improvements and repairs, was to be paid on the trust-debt, then held by Greer & Baucum, which, together with the rents for 1877, now in the hands of the receiver, Holland, will be sufficient to remove the incumbrance of the trust-debt. Moreover, the receiver had again, at the time of the filing of the bill, rented the lands for the year 1878, the proceeds of which she was anxious should go to defendant as a credit upon the indebtedness of plaintiff' to Turner; and she further desired, if needed, to leave the lands in the hands of the receiver until the rents should discharge all she owed him.

As to the claim of Quarles and wife, alleged to be a lien upon the land, being for the purchase-money of a portion, she says it was afterwards sued upon, and a judgment recovered against Watkins for $2,523 ; which judgment she bought for a valuable consideration on the fifteenth day of December, 1877, and look an assignment, and so settled it. The assignment is to her individually, together with all liens, and rights to enforce them.

Amongst the debts estimated to make up the amount to be paid Turner, was one. secured by a deed of trust, with power of sale, upon a house and lot in Searcy, which was the homestead of Watkins and his wife. This debt was for $800, with 10 per cent, interest from the thirtieth of August, 1867, due October 1, 1868. Complainant did not join in the deed of trust. Turner caused this property to be sold by the trustee, on the twenty-first day of April, 1878, and purchased the same for $1,610, which, she alleges, was less than one-third of its value. They had rented out the dwelling that year for $400, expecting to use it as a part of the money to be paid Turner. This rent they failed to collect, on account of the sale, and she was thereby, to that extent, deprived, by the wrongful act of defendant in selling before the time he had given, of the means of fulfilling the conditions of the agreement. She submits that he should be held chargeable with all the rents of the homestead since that time, which would be sufficient to discharge his lien upon it. She says that she and her husband tendered Turner the full amount of the debt due on the house, on the thirty-first of December, 1873, which he refused.

Further, she says that, in 1873, Turner instituted suit against Watkins, in the circuit court, upon divers other-debts included in said estimate, for $700 or $800; and that, in the fall of 1873, he attached the crop grown on the place, for the rent reserved against Watkins, whereby it became tied up in litigation, and, until recently, could not be used, and was, of necessity, otherwise applied.

In further explanation, she says that, by litigation with other parties, Turner’s title became very doubtiul, and she was uncertain of obtaining title under the declaration of trust, if she carried it out. Now that the title has been declared good, she desires to pay the balance of the debts specified in the trust, and offers to pay into court, under its orders, whatever may be found due. She has applied to-Turner to receive the consideration and. execute a deed to herself and children, and he has refused, claiming the land as his own property.

She, therefore, insists upon the execution of the declaration of trust, which, she claims, gives her an equity which lasts until properly foreclosed. She prays relief, accordingly, with appropriate accounts to be taken of rents; that the sale of the homestead be set aside, and an account of the rents for that be taken also, and charged against Turner; or, if the sale stands, that the value of the property he credited; and for general relief.

Defendant,Turner, denies all confidential relations between himself and Watkins and wife regarding this subject-matter ; or that either of them sought, or intended to act upon, his adyice, or had any reliance or confidence that his redemption of the land was for her benefit. He denies that her husband and Cypert sought an interview with him regarding his purpose in redeeming. He says the only purpose they disclosed to him was to induce him to take back his bid, and to let Watkins redeem in his place, which he refused. Mrs. Watkins had no interest whatever in the land save prospective dower. He denies, also, that he, by any means, directly or indirectly, prevented them from redeeming ; or that she had the ability, or right to do so had she been able.

He denies that she or her husband ever occupied said lands as their own under any claim of a trust for her use, or made improvements under the supposition that the lands were hers, subject only to his claim for debts. She never claimed under defendant until after the decision of the supreme court in the other case.

Within less than two months after the renting, on the fourteenth of January, 1878, complainant’s husband denied his title, and conspired with others to defeat it and avoid the sale made under Greenwood’s execution.

This produced the former suit. In those efforts Watkins had the sympathy and co-operation of his wife. lie says the necessary legal services of himself and others on his behalf in that litigation, were worth about $2,000, besides considerable expenditure made by him in cash. He says that of the $4,635.67, set forth in the instrument, only about $1,550 has ever been paid, and no part of that by the plaintiff", but was made by forced collections against Thomas Watkins. He says that the whole of the matters and issues made in the complaint are mere after-thoughts arising after the decision of the title adversely to Watkins in the former case, and directed to retrieving in the wife’s name what was there lost to the husband. lie relies upon the former case as res judicata, and also upon the statute of frauds. The purport of his answer is to deny all the circumstances alleged to raise a trust or confidence regarding the land, although he admits that he had no disposition to deprive Watkins and his family of the property, and promised to convey to her the lands on the terms alleged, which he would have performed without the profit of a dollar. But lie says no time was given beyond the first of the succeeding January, and Mrs. Watkins herself, never acceded to the proposition. She was not present; neither Oypert nor her husband pretended to represent her, and never claimed for her any rights under the supposed trust until the filing of the bill; nor did she ever promise or undertake to perform, the conditions on which he proffered to convey. He denies that he received the sheriff’s deed by permission of complainant, but says she was not able to prevent it.

He denies that the contract of renting made with Watkins in 1873 was in execution of the previous promise. The conditions of that promise had not been complied with, and it was on both sides considered as abandoned. Upon that occasion, Watkins requested defendant to renew his offer to allow him to reclaim the lands, which defendant did, giving him twelve months more to do so. He says that this promise was independent of the contract for renting, and there was no consideration for it whatever, but that it was on his part a gratuitous act of kindness. He denies that he attached any property of complainant or drove her from her homestead; she had no separate property, nor any interest in the land claimed as a homestead ; she and her husband had moved from the same and were living on the lands in the country.

He denies that the Quarles debt was a lien upon the land; also that complainant-paid any taxes upon the land, as alleged, but says the same were paid by G-. B. Greer, who is now seeking to recover them of defendant. He says that in place of endeavoring to comply with the conditions of his offer in the contract for renting, the said Watkins, by consent and encouragement of complainant, within less than three months after its execution, repudiated it and set to work to prevent its performance, by acts and conduct set forth and explained in the pleadings and record of the former suit, by which they hoped and expected to recover the lands without the payment of a dollar.

He says that in place of paying the Quarles debt of about $2,000, her husbánd repudiated it, and he was compelled to bring suit and recover the judgment after long litigation. At the time of complainant’s pretended purchase of the same, defendant was entitled to a fee of about §300, of which he notified her attorney, and of which he has only received $80.

Tie denies that complainant, or her friends for her, ever paid any of the debts specified in said promise, or that IVatkins himself has ever done so, except under legal compulsion, and under that, only a part.

lie insists that his promise was made for the benefit of complainant and her children, and in contemplation of payments to be made by herself or her friends for her, in such a way that the lands would not be fairly subject to her husband’s debts, as would be the ease if the money should be furnished out of his means.

There were other denials of matters of less significance, and a demurrer to the bill for want of equity, which was overruled.

The cause was heard upon the pleadings and evidence, from which the'deposition of'Watkins was excluded on motion of defendant, Turner, upon the ground that he was the husband of the complainant. To this appellant excepted.

The court, upon the whole case, denied relief, and dismissed the bill at the cost of complainant. She appealed.

The first point to be noticed is the exclusion of the deposition of Thomas Watkins, the husband of complainant, lie was not a party to the suit, or only pro forma, nor, technically, did he have any interest in the result. The incidental benefit which lie might derive from his wife’s success can not be noticed as a legal or equitable interest. The deposition wms not offered as that of one testifying in his own behalf, hut as that of the husband in behalf of the wife.

This testimony of husband or wife for or against each other, at common law was not admissible; whether on grounds of interest, or those of public policy, has been a matter of much discussion. Lord Coke said (Co. on Lit., 6 b), “ It might be a cause of implacable discord and dissension between the husband and wife, and a means of great inconvenience,” a very strong statement of the theory of public policy, and which excludes all question of interest. The weight of modern authority, although sometimes recognizing community of interest as an element of disqualification, has placed it on the ground of inconvenience and public policy. The authorities on this point have been sufficiently presented by the present Chief Justice in the case of Collins v. Mack, 31 Ark., 684.

It was there held that the disqualification resting upon public policy was not removed by the constitution of 1874, (Schedule, sec. 2), which provides that, “ In all civil actions no witness shall be excluded because he is a party to the suit, or interested in the issue to be tried.” It is now settled as the general rule in this state that, in civil cases, husband and wife can not testify for or against each other, This, also, is expressly provided by statute (Gantt’s Digest, sec. 2482). So much of the remarks of the justice who delivered the opinion in Magness v. Walker, 26 Ark., 470, as announces that husband and wife may in any and all civil cases, testify in behalf of each other, was not required by the case then in judgment, and can not be accepted as law.

That case, like this, presented the question whether a husband or wife, acting' as agent for, and in the absence of the other, might testify regarding the matter of the agency. If this exception to the common law rule of exclusion • existed before the' constitutional change of the rules of evidence, it exists yet. There was certainly nothing in the constitution of a disabling nature. The wife’s testimony as her husband’s agent was held admissible in Magness v. Walker (supra), but as the ground of the opinion had no regard to the agency, and was erroneous, it can uot beheld as binding this court yet, to any conclusion on the point. It presents itself again for direct decision.

There are numerous cases which hold that where a husband may be a witness for himself, the marital disqualification ceases. That applied to cases where, ex necessitate, an exception had been made to the common law7 rule that one could not testify in his own case. The instances cited in the text-books are cases of proving the contents of lost trunks, account-books, etc. Its application is not allowred under our constitutional provision which makes parties competent witnesses generally. That would be in the teetth of Collins v. Mack.

The cases in Vermont, cited to sustain the right of the wife to testify as agent, depend on statute. A careful examination of the cases cited by counsel in this, and the former case of Magness v. Walker, fails to satisfy us that either husband or wife -became competent to testify for each other upon the sole ground of agency. It would afford too ready means of evading the general policy of the disqualification. The testimony of Thomas Watkins was not admissible.

The result of the eases here, and elsewhere, upon this subject is, that the common law7 disability to testify for or against each other, as between husband and wife, remains. That in all cases where ihey act as agents for each other, their acts, declarations and admissions, in the course of the business of the agency, may be proven by others, and will bind the principal, but they can not themselves testify in the case.

We recognize the fact that this, in some degree, militates against the principle of mutuality, allowing one party to testify, and disqualifying the agent, who may be husband or wife of the other. The harmony of the rules of evidence has been broken by the restricting nature of the enabling clause of the constitution, removing only the disqualification of interest, and allowing that springing from policy to remain. The constitution itself restores the mutuality in cases of suits for or against the estate of persons deceased, but does not proceed further. We can not do so without judicial legislation. “ JExpressio unius est exclusio alterius.” If it be desirable, the change is within the power of the legislature. Meanwhile, husbands and wives who avail themselves of each others’ agency, must rest upon the common law modes of proof.' In this case, the matter is of little consequence. The evidence of the husband does not materially vary the case from that made by the-pleadings and other evidence.

Decrees for specific performance were not originally granted in any case as matter of course. They rested in the sound discretion of the chancellor upon all the equities of the particular case, the manifest right of complainant,, the hardship of the case, and the inadequacy of the legal remedy. Afterwards, when the principles upon which this kind of relief was usually granted became established, it came to be considered the duty of the courts to grant it» upon clear cases coming within the principles, but they have always reserved the right of "sound discretion, and generally refuse the specific relief, where the case is not clear, or where the complainant is in the wrong, or there are considerable countervailing equities. In such eases, it remains competent for courts of equity to refuse to interfere, but to leave the parties to those rights and remedies at law established tor the general administration of justice. The relief is of an extraordinary nature. By this view this case is to be determined.

A careful review of the evidence satisfies the court that the promises made by Turner, in behalf of the wife, in August, 1873, were such as might have prevented Watkins from the exercise of his right to redeem.

Whether he could have done so, and would, but for the promises, is not clearly apparent.

He might, by an effort, have done it; and the effect would have been, upon payment of the Greenwood and Turner judgments according to the provisions of the law, to deprive Turner of the legal right to demand the deed of the sheriff. Turner, after the promises, received the benefit of securing his title without further intervention on the part of Watkins to prevent it; and it will not be presumed, nor is it clearly proven, that Watkins might not have prevented it had he persisted in his efforts. Turner is estopped now from saying that he could not have redeemed; and would have been held to specific performance if Mrs. Watkins had accepted the terms and made reasonable efforts, within a reasonable time, to perform them on her part.

This she did not do ; at least the proof does not show it. The inference is, that the terms were not accepted on her part, and that the contract had been abandoned. It is not clear, however, that the time for performance had so far lapsed, on the fourteenth of January following, as to have then precluded her from the exercise of her right. The doubt upon that subject, with the benefit to Turner which accrued from the avoidance of litigation to settle it, might well support the written contract of the fourteenth of January, 1873. -That closed past transactions, and must afford the basis of any equities she may now assert. To its terms alone can we look.

By it Watkins recognizes the title of Turner, agrees to pay rent, and accepts, on behalf of his wife and children, the terms upon which they may become the owners. It was not an agreement on the part of Turner to allow Watkins a right of redemption, nor, strictly, to hold the lands as a mere security for the specified debts due from Watkins to himself and others whose interests were in his charge. Turner expressly excludes the obligation to convey on payment of the sums by Watkins, which he would have been obliged to do, on the supposition that the lands were to be held as a security. The provisions are, that on the first day of January, 1874, he will, by special warranty deed, convey the lands to complainant, Mrs. Watkins, “ and such of the children ” of her and said Thomas Watkins, or of either of them, or to a trustee for them, as he and she. by writing, may designate, to their separate and exclusive use and benefit, free from all rights and liabilities of said Thomas Watkins, upon condition :

1. That the rents for that year be paid.

2. That Mrs. Watkins, or some friend for her, pay to Turner the estimated amount of $4,635.67, then due him. exclusive of services in a certain case of Watkins v. Brodie King, in the Jefferson circuit court.

Also, the sum of $285, with interest, due Turner & Moore.

Also, what sum may be found due from Thomas Watkins to Emily 8. Quarles, orto Quarles and wife, balance of purchase money for part of said lands, unless the same shall be sooner paid, in which case it shall be the same as if paid by her.

Also, all taxes for 1872 or any previous year.

Also, shall save Turner harmless from any mortgage or incumbrance existing on said land before the Greenwood judgment lien.

And, finally, all sums which Watkins shall then owe Turner.

It was further provided that if any part of the said debt of $4,635.67 shall be paid before the twenty-fifth of December following, the interest on such payment, at the rate of 3-| per cent, per month, shall be credited on the rent.

The construction of this contract in connection with the circumstances presents no difficulties. It is an agreement for a conditional sale, and the terms are remarkably clear and explicit. It is a renewal of a former offer, with the time extended for a year. It provides that the whole consideration must emanate from Mrs. Watkins or her friends, save the accruing rents for the year, and payments which might be made on the Quarles incumbrance, the latter to be considered as made by her, if any should bo made at all. The deed was not to be made to her alone, nor to her and her children. She and her husband were made trustees of a power to designate in writing, such children as were to be, with her, the recipients of the benefits; and provided for an abatement of the rent to be paid by Watkins of three and a half per cent, per month upon any amount paid before the twenty-fifth of December, by Mrs. Watkins upon the debts of her husband. There was no consideration whatever moving from Mrs. Watkins or' her children — no obligation on their part to perform the conditions. They were mere volunteers, recipients of a benefit resting upon conditions proposed by the obligor and based upon a consideration moving originally from Thomas Watkins alone, who acted as their agent, and which consisted of his refraining from all efforts to redeem the land whilst he might legally have done so. The consideration was good, and would support the contract; but as it moved solely from him and, they claim, through his agency, it is but just that they should be bound by all his action with regard to the subject-matter at a subsequent time, which may appear to have been with their assent.

It is further apparent that the design of Turner was to give Mrs. "Watkins and her children alone, the benefit of the promise, and that he did not intend Watkins to have it. Payment made by him, or out of his means, would have rendered a conveyance to Mrs. Watkins and her children nugatory. They would have taken on trust for Watkins’ creditors. Turner never meant that the benefit of his purchase should thus pass to other creditors. Pie had no bounty in his intentions towards them, and could not, under his agreement, have been called upon to make a conveyance of lands which Mrs. Watkins and children could not have held.

The proof fails to establish any confidential relations between Watkins and Turner regarding the subject-matter. They dealt at arms-length. All the promises of Turner seem to have been prompted by a feeling of sympathy for Watkins’ wife and children.

The whole evidence regarding subsequent events reveals that Mrs. Watkins never made any effort, nor did her friends for her, to perform in good faith the conditions upon which she and her children were to receive title. Her husband, soon after the contract, set to work to defeat the legal right of Turner in the land altogether. Long and expensive litigation ensued, resulting in the decision of this court in the former case, establishing the title of Turner. Pending this, no efforts were made on Mrs. Watkins’ part to perform the conditions. She repudiated Turner’s title, and awaited the result of her husband’s litigation. Nearly four years elapsed from the time of the contract until the filing of her bill. She evidently acted under the advice of her husband; and her friends who perchance, had it in view to aid her, speculated upon the chances of her husband’s success, and declined to come forward. Meanwhile, from the first of January, 1874, till the fifteenth of December, 1877, the defendant, Turner, had no claim against the complainant whatever, nor power to coerce her to the fulfillment of the conditions. He had not released his debts against Watkins, and was not in fault in exercising diligence to collect them, after he had reason to believe, as we must think he did, that Mrs. Watkins and her friends had abandoned all efforts to purchase, and her husband had set to work to defeat his title.

It is not necessary to determine whether time was of the essence of the contract or not. It passed and the legal force of the contract was lost. The complainant comes in to be relieved of the consequences of delay, and to have a performance now. She must show equitable circumstances to account for and excuse the delay, or she can not invoke the aid of chancery. She fails to do so— she does not show any genuine effort on the part of herself or .friends to perform the conditions. The legal proceedings against Watkins on his debts afford her no excuse. The funds she was to furnish were not to be derived from her husband. She has suffered years to elapse, and has never proffered i:o do her part until it was decided by the highest tribunal of the state that her husband could not deprive Turner of his title altogether.

Whatever sympathy may be due her and her children, the courts can not dispense with general principles to afford her relief, and her right to specific performance does not fall within the principles which govern that remedy.

We have reviewed this case upon the merits. It is plain, however, that she can in no case maintain this bill alone and without further proceedings. She and her husband are living. If there were merits in the case, they should first designate in writing the children to share with the mother in the conveyance. They would take in common and as purchasers. Upon refusal, the suit should have been in their names. If the parents, or either of them, had been dead, all the children would take equally with the mother. Chancery would exercise the power on the principle of equality.

Eor this reason, as much as upon the merits, we think the chancellor did not err in dismissing the bill.

Affirmed.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    Martin et al. vs. Godwin & Co.
    1. "Writs: Irregular, amendable.

    A summons against several partners in the partnership name may be amended by the proper insertion of the names of the individual partners.
    2. Same: Defective return of service, when waived.

    A defendant can not avail himself, in the supreme court, of a defective return of service of a summons against him, when he has appeared in the circuit court and made no objection to the return there.
    APPEAL from Chicot Circuit Court.
    Hon. E.’ E. Sorrels, Circuit Judge.
    Valentine, for appellant.
    Reynolds, contra.

   English, C. J.

This suit was upon a note executed by A. G. Martin and John "W. Neal .to J. R. Godwin & Go. The plaintiffs were named in the complaint as John R. Godwin, Lorenzo D. Mullens and Samuel M. Mc-Collum, partners, under the firm name of J. R. Godwin & Co.

The writ commanded the sheriff to summon the defendants to answer the complaint of Messrs. J. R. Godwin & Co., failing to follow the complaint in setting out the names of the partners. In other respects the writ was regular and in good form. The clerk seems to have had an aversion to writing names, and especially Christian names, which is a common fault, and a very loose one under the Code practice.

At the return term the defendants filed a motion to quash the writ for variance from the complaint in the matter of the individual names of the plaintiffs.

On motion of the plaintiffs, the court permitted the writ to be amended by insei'ting their names so as to make it correspond with the complaint, and thereby the variance complained of was cured.

Defendants making no further defense, judgment was rendered against them for the amount of the note sued on, and they appealed.

The writ was not void, but amendable. (Mitchell v. Conley, 13 Ark., 315.) A more defective writ than the one now before us was held to be amendable after motion to quash, filed in Galbreath et al. v. Mitchell, 32 Ark., 278. See, also, Richardson v. Hickman, ib., 407.

In the brief of counsel for appellants, our attention is ■called to the fact that the sheriff’s return of service upon appellant Martin, as indorsed upon the writ, is defective, and a reversal of the judgment is asked on that ground.

No motion was made in the court below to quash the return of service, hut both appellants went back of the return in tlieir motion to quash the body of the writ for variance from the complaint. Had a motion been made to quash the return, plaintiffs might have caused the sheriff to amend it, and thereby cured its defect.

It Í3 bad practice to allow the objection here, in such ease, for the first time. It should have been made in the court below. Filer v. Robinson & Co., 30 Ark., 487; Cairo F. R. R. Co. v. Frout, 32 ib., 28.

Affirmed.


text:
    Union County vs. Smith.
    1. Claims- Against Counties : Excessive allowances forbidden.

    The allowance of charges against a county above the cash value, in consequence of the depreciation of county scrip, is forbidden by statute, and contrary to public policy.
    2. Motion for New Trial and Bill of Exceptions: None necessary where error apparent in judgment.

    Where error appears upon the face of a judgment, it can be reviewed in the supreme court without motion for new trial, or bill of exceptions, in the court below.
    ERROR to Union Circuit Court.
    Hou. J. K. Young, Circuit Judge.

      Henderson, for plaintiff in error.

      Dan. Jones, contra.

   English, C. J.

It appears from tlie transaction in this case, that at the July term, 1877, of the county court of Union county, James S. Smith, sheriff of the county, presented for allowance the following account:

Union County,

1877. To James M. Smith, Sheriff, Dr.

April 28. To hiring 16 guards, by order of the cir- • cuit court, at the April term, for 11 days, at

$8 per day..............................................$1,408 00

April 28. To amount of board for 16 men for 11

days............. 273 00

April 28. To amount of provisions for guards before order of the court ordering new

guards................................................... 35 35

April 28. To amount of hire for wagon and team in transporting the prisoners from El Dorado to Camden.............................................. 100 00

Total...............................................$1,816 35

The account was certified as approved by his honor, the circuit judge.

The county court pronounced all of the items of the account, except the third, to be exorbitant, and not warranted by law, and cut—

The first item down to......................................$66 00

The second to................................................... 25 00

Allowed the whole of the third........................... '35 35

And cut the fourth item down to........................ 20 00

And rendered judgment of allowance in favor of the

claimant for.../..........................................$146 35

Smith appealed to the circuit court, where the cause seems to have been submitted to the court sitting as a jury, upon an agreed statement of facts, and the court rendered judgment in favor of Smith against the county for the whole amount of the account, $1,816.35, and ordered it certified to the county court, etc.

No motion for a new trial was made, and no bill of exceptions taken.

Udíoii county brought error.

It appears from the recitals of the judgment, that the county'scrip of Union county was, at the time the expenses charged for in the account were incurred, not worth more than fifteen cents on the dollar in lawful money, and it is manifest from the face of the judgment, that the charges in some of the items of the account were greatly enhanced by the claimant, and allowed by the court, on account of the depreciation of the county scrip, which was forbidden by statute, and contrary to public policy. Gantt’s Dig., sec. 602, Goyne v. Ashley County, 31 Ark., 552.

It may have been difficult for the sheriff to procure guards, etc-., and feed them at ordinary money charges, when the county, owing to its financial condition, could not meet its current expenses otherwise than by the issuance of depreciated scrip, but the enlargement of allowances on account of such depreciation enhances the evil, is a ruinous public policy and forbidden by law. All who serve the public must receive such compensation for their service as the law provides.

Error appearing upon the face of the judgment, it can be reviewed here without a.motion to set it aside, or for a new trial in the court below, as held in Badgett v. Jordan, 32 Ark., 154.

The judgment must be reversed, and the cause remanded for further-proceedings.


author: Harrison, J.

text:
    Sentell vs. Moore.
    1. Landlord and Qropeer : Title to crop.

    A. contracted to raise a crop on B.’s land, in consideration that B. would furnish tools, team and feed for the team, and give him one-half the crop raised; and out of A.’s half B. was to retain sufficient to pay what A. should owe him for supplies. The contract was never filed in the recorder’s office. Afterwards A. mortgaged the growing crop to 0. to secure a debt he owed him. A. raisedfive bales of cotton. B. sold three of them, and 0., with A.’s consent, took the remaining two bales under his mortgage. A.’s indebtedness to B. for supplies, exceeded the value of his half of the cotton. In replevin by B. against 0. for the two bales, held:

    1. That the crop was B.’s, and A. had no interest in it to mortgage.
    2. It is only when the laborer is tenant in common with his employer in the crop raised, that the employer is required by the statute to file a copy of the contract in the recorder’s office to secure his lien for advances and supplies.
    APPEAL from Lafayette Circuit Court.
    lion. J. X. Young, Circuit Judge.

      John Cook, for appellant.

      W. Moore, contra.

   Harrison, J.

This was an action of replevin by George W. Sentell, against Henry Moore, for two bales of cotton. The defendant pleaded that the cotton was his own, and not the property of the plaintiff.

The cause was submitted to the court, sitting as a jury, upon the following agreed statement of facts:

One Poster, with six other laborers, on the sixteenth day of January, 1877, entered into the following contract, in writing, with the plaintiff:

“ We, the undersigned, * * * do hereby contract and agree to worR a part of the Crowell plantation for Gr. W. Sentell, of the city of New Orleans, Louisiana, for the year 1877, upon the following terms: We agree to work well and faithfully 5| days each week; plant, cultivate and gather the crops of corn and cotton ; gin and deliver the same on said plantation; we agree to repair fences and levees; perform all labor necessary to the making of good crops, and take good care of, and be responsible for, all stock, or other property, placed in our charge; also, to furnish our own rations and clothing. In consideration of a full and complete performance of our duty and agreement, as herein stated, the said Gr. W. Sen-tell agrees to give us one-half of the corn and cotton made by us during the year; also, to furnish the farming implements, plow-teams, and feed for same, at his own expense. It. is furthermore agreed, by us, that the said Gr. W. Sentell shall retain enough of the corn and cotton due for our services to pay him whatever money we now, or may hereafter, owe him for supplies, or other purposes — -it being understood that only the balance remaining, after the said Gr, W. Sentell has been paid whatever we may owe him, is to be delivered to us; cotton to be ginned on the said G-. W. Sentell’s gin.

“Griven under our hands and seals this, the sixteenth day of January, 1877.”

No copy of the contract was filed in the recorder’s office.

On the fourth day of April, 1877, said Poster was indebted to the plaintiff $117.19 for supplies and otherthings, and there were, after that date, and before the first of January, 1878, other dealings between them. Poster raised on the plantation five bales of cotton — three of which the plaintiff shipped to market and sold. On the first of January, 1878, Poster, after being credited with $68.50 — one-half the proceeds of the three bales — -was indebted to the plaintiff' for supplies furnished him during 1877, a balance of $85.88. Foster, on the fourth day of April, 1877, was indebted to the defendant $43.50, for which he gave him' his note, payable on the twelfth day of December following ; and, to secure its payment, gave him a mortgage on the cotton he was cultivating, with a power of sale, which was duly acknowledged and recorded the same day; and the note not having been paid, the defendant, on the eleventh day of February, 1878, with the consent of Foster, but without the plaintiff’s, took, and carried away from the plantation, the remaining two bales, which he still retained. The cotton had not been set apart to either Foster or the defendant, and the value of the two bales was $65.88.

The court declared, as a conclusion of law, from the agreed facts, that the plaintiff' was not the sole owner of the cotton raised by Foster; and that, by failing to file a copy of the contract in the recorder’s office, he had no lien on the share Foster was to have for his services; and that the defendant was entitled, under his mortgage, to the possession of the two bales in controversy, and found for the defendant. The plaintiff' moved to set aside the finding, as not sustained by the agreed statement of facts; and for a new trial. His motion was overruled, and he appealed.

This ease is not materially different in principle from that of Ponder v. Rhea, 32 Ark., 436. "We decided, in that case, that when one let another have land to cultivate and raise a crop, and furnished part of the team, and provender, and supplies, for making the crop, which was to be his property, but, after a certain portion had been reserved for the use of the land, and a certain indebtedness paid, the raiser of the crop was to have what remained of it, the raiser of the crop had no interest in it that he could sell or mortgage.

Although not expressly so stipulated, the clear meaning of Foster’s and the other laborers’ contract with the plaintiff; was, that the crops to be produced with their labor were to be the property of the plaintiff. The language of it is : “ In consideration of a full and complete performance of our duty and agreement, as herein stated, the said G-. W. Sentell agrees to give us one-half of the corn and cotton made by us during the year.”

Foster was to be paid, as wages for his services, one-half the corn and cotton he raised, but was to receive no part of it until his indebtedness for supplies, whatever it might be, was satisfied, and the remainder, after the indebtedness was paid, only was to be turned over, or delivered to him. Christian v. Crocker et al., 25 Ark., 327; Appling v. Odom and Mercier, 46 Ga., 583; Leland v. Sprage, 28 Vt., 746; Chase v. McDowell, 24 Ill., 236.

It is only when the laborer is a tenant in common with his employer in the crop raised by him, that the employer, to secure his lien for advances and supplies, is, by the act of March 6, 1875, to regulate the labor system, required to file a copy of the contract in the recorder’s office.

The plaintiff, being the sole owner of the cotton, it could have answered him no purpose to file a copy; and a failure to do so, could, not affect his title. The defendant, before taking the mortgage, should have ascertained, by proper inquiry, the extent of Foster’s interest. No presumption could arise from the fact, that he was working on the plaintiff’s plantation, that he was an owner in commou with him of the crop.

The court below erred in its declaration of law, and in finding for the defendant. The judgment is, therefore, reversed, and the cause remanded to it for further proceedings.


text:
    Volmer vs. Wharton.
    1. Landlord’s Lien : Not lost by sale of crop to purchaser with notice.

    A landlord’s lien on cotton for rent is not affected by the sale of the cotton by the tenant to a purchaser with notice, nor by his furnishing to the tenant bagging and ties for, and paying freight on it to market; nor is the lien waived by the landlord’s accepting, in part payment of the rent, part of the money paid by the purchaser for the cotton, although he knew, at the time of accepting it, that it was a part of that money; unless he was party to the transaction between the tenant and purchaser, or consented to the sale.
    APPEAL from Pulaski Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Cohn, for appellants.

      Oliphint, contra.

   Harrison, J.

Charlotte Wharton brought suit against Jmcius Martin, before a justice of the peace, by attachment, to enforce a landlord’s lien for rent, in which eight bales of cotton were attached. Reichardt & Eicholz claimed, and interpleaded for, two of the bales, and L. Volmer for the other six.

Upon the trial of Volmer’s interplea, the cotton was found by the justice not subject to the plaintiff’s lien, and she appealed to the circuit court.

The circuit court, which tried the case without a jury, found the cotton subject to the lien, and rendered judgment for the plaintiff.

Volmer moved for a new trial; his motion was overruled ; and he appealed to this court.

The proof was: The cotton was raised by the defendant, Martin, in 1878, on land which he rented that year from the plaintiff, and the rent became due on the first of ■November, 1878. Volmer bought the cotton from Martin, with knowledge of plaintiff’s lien. Martin paid $100 of the money received from Volmer for the cotton to the plaintiff, who, when she received it, knew that it had been paid him by Volmer in the purchase of the cotton. Martin, when he sold the cotton to Volmer, was owing him $108 for bagging and ties, and for freight paid upon the cotton to Little Rock.

The suit was commenced on the twenty-eighth day of December, 1878.

The grounds of the motion for a new trial were: That the court erred in declaring the law, and that its finding was contrary to law and evidence.

The declaration by the court complained of by the appellant was: That the plaintiff’s lien upon the cotton was not affected by-íVolmer’s purchase of it with notice; nor by his claim against Martin for bagging and ties for, and freight upon, it to Little Rock.

The declaration was correct. Gantt’s Digest, secs. 4098, 4103.

Volmer, manifestly, had no lien upon the cotton.

Appellant, insists that appellee, by receiving a part of the price of the cotton, waived her lien upon it, and was estopped from asserting it. This would be true had she been a party to the - transaction between Martin and Volmer. But there was no evidence that she consented to the sale of the cotton to Volmer; and her agent, to whom the money was paid, swore that he was not present when the cotton was sold.

It was the plaintiff’s right and duty to accept the $100 when tendered her by Martin. It was so much towards the satisfaction of her demand against him; and to that-extent, extinguishing the lien, a benefit to Volmer.

There ivas no error in the finding and judgment of the court.

Affirmed.


author: Eakin, J.

text:
    Powell vs. The State.
    1. Larceny : Conversion Toy servant of master's goods.

    The servant has a mere custody of the master’s goods. His possession is that of the master. If he appropriates them to his own use, with intent to steal, it is larceny at common law. The trespass occurs when he changes his custody of his master’s goods into an adverse possession in himself with a felonious intent.
    APPEAL from Pulaski Circuit Court.
    Hon. J. “W\ Martin, Circuit Judge.
    Oliphint, for appellant.

      Henderson, Attorney General, contra.

   Eakin, J.

Appellant was indicted, tried and convicted of grand larceny, and sentenced to the penitentiary for one year.

It was shown that appellant was the general servant of S. N. Marshall, the owner of the property taken, which consisted of a lot of tools. They were kept in a room, partly used as a stable, in which a horse was kept, which it was appellant’s duty to take care of. He had access to the tools at his pleasure, and the right-, by virtue of his employment, to use them at any time; although no directions were given him to use them, nor was any occasion shown for his using them. lie took them without the owner’s consent, and feloniously converted them to his own use. This is brought up by agreed statement, made part of the record in the bill of exceptions, and there was no other evidence.

The court refused, on prisoner’s motion, to instruct the jury that if they believed he was a general servant of the owner, and, by virtue of his employment, had a general possession of and right to use the tools, and that if he took them away he would be guilty of embezzlement, and not of larceny. But, on the other hand, of its own motion, did charge the jury that a servant could not commit the crime of embezzlement of property coming to him from the possession of the master, but that to constitute the crime the effects must “ come to the servant first, in the course of his employment from the hands of another person, other than his master.”

A new trial, for supposed error in refusing and giving instructions, was asked for'and refused.

The possession of the servant is that of the master. The former has a mere custody. If he appropriates the property of the master to his Own use, with intent to steal, it is larceny at common law. The trespass occurs when he changes his custody of his master’s property into an adverse possession in himself, with a felonious intent. This remains the law under our statute, defining larceny as “ the felonious stealing, taking, carrying, riding or driving away the personal property of another.” The evidence in this case made out the offense of “ larceny,” and the court properly refused the instructions asked.

Counsel for appellant urges that the statute has made that embezzlement in regard to the servant which before was larceny; and relies upon the case of Fulton v. State, in 13 Ark., show that the crimes must be distinctly charged, and that a conviction for larceny can not be had upon a state of facts which constitute the statutory crime of embezzlement.

Section 1867 Gantt’s Digest provides, among other things, that if any servant of any private person or corporation “ shall embezzle or convert to his own use, or shall take, make way with, or secrete with intent to embezzle or convert to his own use, without the consent of his master or employer, any money, goods, etc., * * * belonging to any other person, which shall have come to his possession, or under his care or custody, by virtue of such employment or office, he shall be deemed guilty of larceny, and, on conviction, shall be punished as in case of larceny.”

This section was made also to apply to clerks, certain sorts of apprentices, officers and agents of incorporated companies, etc., and was manifestly intended to afford the protection of the penalties against larceny in cases which before were not so punishable, by declaring them eases of embezzlement and punishing them as if they were larceny.

It was not intended to change a crime, which had been larceny at common law, into another name, and require it to be indicted as “ embezzlement.”

"We do not now adopt the instruction given by the court of its own motion as technically correct. The intention of the statute was to make many acts punishable as larceny which had been formerly only embezzlement. It is not confined to servants, and may embrace some cases where the property came to" the possession of the agent, clerk or servant from the employer. This is the New York view of a similar statute. (Bishop on Crim. Law, sec. 366, 6th ed., n. 1.) The exact scope of the statute will be considered when the occasion, arises.

The instruction given in the case before us was speculative. There was no evidence of any other possession of the defendant than the mere custody of his master’s tools. To steal them was plain larceny, and it was admitted he did. He was properly convicted, and no proper instruction would have justified any other verdict.

Affirm.


text:
    Randolph et al. vs. McCain, Ad., etc.
    1. Practice in Supreme Court: Pleadings found in bill of exceptions not noticed.

    A copy, in a bill of exceptions, of a paper, said to be an answer in the case, is out of place there, and will not be noticed in the supreme court.
    2. Record Entries : Imperfect, when sufficient.

    When an imperfect entry upon the record plainly shows without doubt, what the court intended to do, the effect intended should be given to it.
    3. Instructions : Intimation of court’s opinion of the evidence, improper.

    An instruction should not be given that intimates to the jury the opinion of the court as to the weight of the evidonco.

      4. Landlord’s Attachment: What removal of crop sufficient for.

    The actual removal by the tenant of any part of the crop, even for honest purposes, without consent of the landlord, will justify the attaching of the crop, although enough remains upon the premises to satisfy the rent, and the tenant does not intend to remove the crop in bulk.
    5. Instructions: Attachment.

    An instruction which denounces the landlord’s attachment, a remedy given by the legislature, as harsh, should not be given.
    6. Witness : Party as, put under rule.

    A party who becomes a witness in a suit may bo put under rule, as other witnesses.

      APPEAL from Jefferson Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.
    Jf, L, Jones, for appellant.

      Tindall, McCain, contra.

   Eakin, J.

Susan R. Kimbrough, executrix of Berkly Kimbrough, sued Geo. C. Randolph, in Lincoln county, on the sixth of December, 1876, for the rent of a plantation for that year. By the contract he was to pay $3,000 ; one-half on the first of November, 1876, the balance on the first of January, 1877. She admitted the payment of $500, and it was proven, on the trial, that he had paid about half, at the time suit was brought. She asserted a lien upon the crop of cotton and corn; and filed, with her complaint, an affidavit, stating that he had removed a portion of the crop without her consent, and was about to remove the remainder without paying rent; that her claim was for rent, and unpaid ; and that she had a lien. She filed a bond in the sum of $5,000, conditioned to be void if she should pay to defendant all damages that should be assessed against her, if the order for attachment were found to be wrongfully obtained; and if she should prove her demand and her lien in a trial at law, or should pay such damages as might be adjudged against her.

A writ of attachment issued, and was levied on some cotton and corn. The defendant, after three days, gave a bond, with sureties, conditioned to perform the judgment of the court; and was allowed to take the property.

It seems, although it is nowhere found in the transcript, that defendant filed an affidavit, contesting the truth of the grounds laid for an attachment, by the plaintiff in her affidavit. The parties treated the case as if this matter were in issue, and a jury was impanneled to try it, at the April term, 1877. They found, by their verdict, that the attachment had been wrongfully sued out, and that defendant had sustained damages to the extent of $700; whereupon, it was ordered by the court that he recover of the plaintiff, as executrix, that sum, with costs. She moved for a new trial, for causes assigned, and to set the verdict aside. Upon this, the record shows the following order, of the date of thirtieth of April, 1877: “ Come now' the parties, and the point of law, arising on the motion for a new trial, being heard, and being supported by affidavits, is by the court granted, and thereupon, on motion, it is ordered that this cause be continued.”

Afterwards, on the application of the defendant, and two of his sureties in the retaining bond, a change of venue was granted by the judge, in vacation, to Jefferson county. There, at the fall term, the death of the plaintiff' was suggested, and McCain, as administrator de bonis non, was substituted; and divers motions were overruled, which had been made by the defendant, to quash the writ, return, and proceedings. Concerning these, it may be sufficient to say, in passing, that they were of a technical character, and that the proceedings under the writ seem to have been substantially correct, and in accordance with law. No error, with regard to these points, is urged in argument.

The court also overruled a motion of defendant to dismiss the suit, because there had been a trial and judgment, and no order granting a new trial.

The record show’s no answer to the complaint. We find in the bill of exceptions, how’ever, a copy of a paper said to have been put in as an answer, amounting to a denial of the debt. It is out of place there, and can not be noticed.

A jury was impanneled, however, and the parties went to trial, as if issues had been made up in due form, upon the merits of the complaint, and the truth of the grounds for an attachment. They returned a verdict in favor of the plaintiff, finding that the attachment had been rightfully issued, and that he was entitled to recover on the contract a balance of $1,404. Judgment was rendered, accordingly for that amount,-against defendant and the sureties on his bond.

He moved for a new trial, upon divers grounds. Those important to be noticed may be grouped as follows:

1. Because the verdict wras contrary to the law and the evidence.

2. Error in giving and refusing instructions.

3. Because the court refused to dismiss the cause on change of venue, for the reason that the original judgment in the Lincoln circuit court had never been set aside.

4. Because of newly discovered evidence.

5. Because the court, on plaintiff's motion, put defendant under the rule, as a witness.

The motion was overruled, and defendant appealed.

This suit was brought under secs. 4101-8-3 and J, of Gantts Digest, prescribing the mode of enforcing the landlord’s lien for rent. The specific remedy is given in two cases: First, when the tenant is about to remove the crop from the premises without paying the rent; and, second, when he has removed it without the consent of the landlord. The rent need not be due at the commencement of the suit, but the trial must be stayed until it becomes so. The plaintiff' is required to make affidavit of one of the facts above stated, the amount that is or will be due for rent, and that he has a lien on the crop for such rent. He must also file a bond in double the amount of his claim, with sufficient surety, conditioned to “prove his debt or demand, and his lien, in a trial at law ; or that he will pay such, damages as shall be adjudged against him.” The general attachment law (sec. 891) provides for “a bond to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment, if the order is wrongfully obtained.”

The plaintiff’s affidavit and bond contained all that was essential, and more than was necessary to sustain the landlord’s specific attachment. The defendant’s bond was filed under sec. 4-16, by which the attachment was discharged, and he obtained restitution of the property. He was allowed, nevertheless, to put in issue the truth of the grounds of attachment, and had the benefit of it on trial. It is not easy to see the grounds of his complaint on this point. The court is, therefore, not required now to decide whether or not a defendant, after giving a discharging bond under sec. 416, may afterwards question the grounds upon which the attachment issued, and have damages for wrongful attachment assessed in the action. There was sufficient evidence to sustain the finding of the jury on both, or either, of the grounds alleged for the attachment. It is true that the judgment upon the first verdict was not formally set aside, and a new trial ordered. That should have been done in plain, direct terms. But parties should not lose their rights, nor business be delayed, by the inexpertness, or inattention, of the clerks in making entries, when it can be seen, without any doubt, what- the court meant to do. The motion was to set aside the first verdict, and to have a new trial. This was ordered to be granted, and the cause continued. The formal entry should have followed, as a matter of course; and having the motion before it to correct by, the Jefferson court did right to give the effect intended to the order of the Lincoln court, and proceed with a new trial. It was consistent with the order granting the motion. To have refused to proceed, would have been in contravention of it.

The court, for the plaintiff, instructed the jury, in effect, that if they believed defendant was -indebted for rent, and that he had removed from the place any portion of the crop without Mrs. Kimbrough’s consent, although other portions may have been removed with her consent; or although enough may have been left on the place to pay the rent, she had the right to attach; and they might find for the plaintiff, although the rent was not due when the attachment issued. Eor the defendant, it instructed, that the plaintiff' must prove every niaterial allegation in her affidavit, by a preponderance of evidence; and that if defendant had her permission generally to ship cotton to pay for supplies, he might ship in pursuance of that permission without being liable to attachment, unless at the time the attachment issued he was about to remove the crop from the place without paying the rent. Also, that they should find for defendant if they believed that, after the payment of the first installment of rent, no cotton was removed from the place, unless they should find further, that defendant was about to remove the crop without paying rent. Also, that the permission to move any part of the crop might be proved by parol, outside of the written instrument. They were also advised that they should not take it as a circumstance against defendant, if he Shipped cotton away by night, or on Sunday, in order to meet a boat, if such was the custom of planters in his section. Also, on the question of damages, they were instructed that if they found the writ of attachment had been wrongfully sued out, they should assess against the plaintiff such actual damages as may be proven to their -satisfaction; that the matter of damages and the propriety of the attachment, were the only matters for them to consider, except that if they found the attachment to have been just and on proper grounds, they might find for the plaintiff whatever might be due on the rent.

Passing over instructions refused for the plaintiff', the court refused to instruct for defendant as follows:

“4. If the jury believe from the evidence that the rent was payable in two installments of fifteen hundred dollars each, payable, respectively, the first of November, 1876, and the first of January, 1877 ; and that the first payment was promptly made without attachment, and there was sufficient corn and cotton left upon the premises to pay the second payment, and that defendant was not making any attempt to move the said crops, and that said second payment was not due at the time of the attachment; these are circumstances that may well be considered by the j ury, as to whether the attachment in this case was without just grounds.”

This was properly refused, not only because the matters stated would not have been sufficient to bar the right of attachment, but the instruction, if given, would have intimated to the jury the opinion of the court as to the weight of evidence. The actual removal of any part of the crop, even for honest purposes, and after the payment of the first installment, without the consent of plaintiff, would justify the attachment, although enough might have been left to satisfy her, and defendant did not intend to remove the crop in bulk. The statute does not require landlords to rely upon the good faith of tenants until the removals of the crop touch the quick, and render the security questionable. They must not remove any, without consent. A higher public policy is involved in encouraging landlords to let their lands to tenants who swell the annual products, and thus add to the wealth of the state. This is best subserved, in the long run, by securing to owners the rents for which they contract, and prohibiting tenants from trifling with their security. This reacts, also, for the benefit of tenants generally, tending, by competition of landowners, to reduce the rates of rental.

The court, also, refused to instruct for defendant :

9. Attachment is a remedy that is harsh in its nature, and when resorted to, upon any grounds stated in the affidavit upon which it is founded; and such affidavit is controverted by defendant’s affidavit, the proof, to sustain the attachment, should convince the jury, over and against the testimony of the defendant, that the attachment was rightful and necessary, or the jury will find for defendant.”

The court properly declined to denounce, to the jury, as harsh, a remedy given by the legislature, and prompted by sound views of public policy. The province of the jury is to find facts, and apply to them the law, as given by the court. The courts, themselves, in determining points of law, and considering the scope and intention of statutes, and what may be within their equities, and general policy, may look to their bearing and consequences, for the purpose, only, of aiding their judgment of legislative intent; but it is improper in them to express to juries their opinions of legislative action, whether harsh or beneficent. Such expressions, with average juries, are very apt to create an unfavorable bearing against the party claiming under a statute, and should be avoided, whether the subject-matter be landlords’ liens, usury, or limitation. Juries have nothing to do with the harshness of laws. Besides, the instruction was erroneous. The defendant’s affidavit, denying the truth of the matters alleged as grounds of attachment, did not have the effect of an old answer in chancery. It simply made an issue, like a plea. The onus was on the plaintiff, as the jury were elsewhere advised; but no more weight was due to the testimony of the defendant, than to that of plaintiff, or any other witness. The jury were free to judge, from all the testimony, whether the case was made out.

. At common law, the judge presiding might, in his discretion, upon the application of either party, direct the witnesses to be examined separately, and kept from hearing the testimony of each other. It is a very important power, which has been rarely abused, if ever. The discretion was vested in the judge, before parties were made competent to testify in their own cases. They may now do so; but if a party should assume the character of a witness, it is not unreasonable to require him to submit to the general rules, established for the more certain elimination of truths from witnesses generally. It would be dangerous to give him, as a matter of right, exceptional advantages, when he, of all others, if assailable at all by the temptation to concoct evidence, would have the greatest interest in doing so. I can not find that the courts have established any positive rule upon this subject since parties have been made competent to testify. Mr. Wharton, in his “ Law of Evidence,” cites R. v. Newman, 3 C. & K., 260, as his authority for saying that, “ whoever is yet to be examined, though party or prosecutor, is subject to this rule.” In Clark v. Reese, 35 Cal., it was held, though not with regard to this matter of separation, that when the party became a witness in his own behalf he subjected himself to alt the rules, regulating the examination and cross-examination of witnesses.

It has been held that the order of exclusion does not extend to an attorney in the cause, if his presence in court be necessary. See cases cited: Starkie on Ev., p. 199, 9th ed. This rests on peculiar grounds. Attorneys are not only officers of the court, essential to the progress of the cause, but officers sworn to fidelity, and entitled to such confidence, whilst in good standing, as.would preclude the idea of their lending themselves to such unworthy practices as would be implied by their exclusion. The rule of exception does not seem positive as to attorneys even. In England, where counsel manage causes on trial, attorneys are only excepted upon special application, and showing that their attendance was necessary in court to instruct counsel. (Phil. on Ev., Vol. 2, p. 885, chap. x, sec. 1.) On the other hand, Mr. Greenleaf, in a note to sec. 432 of Vol. 1 of his work on Evidence, cites Selfe v. Isaacson, 1 F. & F., 194, as authority for saying that a party has a right to remain in court for the purpose of instructing counsel. He adds, without any citations: “And in those states in which parties are made competent witnesses, it would seem that the order of exclusion should not include them; and it is the better practice, as a general rule in those states, so far as it is known to be established, when the witnesses in a case are ordered to withdraw, to except parties from the order.”

This may be perhaps accepted as an excellent genera rule for the guidance of circuit judges, in the exercise of their discretion, without going to the length of saying that the right of a party to remain and hear the testimony of others, and then give his own, is a positive legal right. It may be fairly left to the discretion of the judge. There does not appear to have been any detriment to appellant in this case, from his exclusion during the examination of two of plaintiff’s witnesses. He was then released from the rule; had ample opportunity to advise himself of their testimony, and did not ask to have them recalled for cross-examination, nor state in his motion for a new trial any points upon which a cross-examination would be desirable. In truth, there is no pretense that his case suffered in any way, and we find no error in the action of the court in this matter.

The plaintiff, Mrs. Kimbrough, testified on the first trial in her own behalf. After her death, upon the second trial, in Jefferson county, a witness, P. D. Taylor, testified as to what she swore on the former trial. Defendant in his motion for a new trial, and as one of the grounds upon which it was asked, says: that, since the last trial, he has discovered that the witness, Taylor, was, at the time of the former trial, a witness in the same case; and was, with other witnesses, put under the rule and could not have heard Mrs. Kimbrough’s testimony; that defendant did not know this fact on the last trial until the evidence was closed; nor did he know that Taylor was going to testify; that the witnesses, by whom he could show the facts upon which he relied, to-wit: that Taylor was placed under the rule, were out of the county. The affidavits of others, which he filed with the motion, show that Taylor was a witness at the former trial, and was, with others, placed under the rule, but fail to show affirmatively that Taylor did not actually hear the testimony of Mrs. Kimbrough. He does not allege that the testimony of Taylor, as to Mrs. Kimbrough’s evidence, was false.

This was not a showing of any newly-discovered evidence as to the merits of the case, but, taken in its fullest force, it only showed that he might have impeached Taylor’s credit if he had known in time of his absence from the courtroom at the time Mrs. Kimbrough gave in her testimony. But it does not clearly appear from all the affidavits that Taylor could not have heard the testimony, notwithstanding the rule. There was a counter-showing that Taylor was an officer of the court, and that it was the unvarying habit of the presiding judge not to'require officers of the court to come under the rule for separation, when witnesses in pending trials. It was also shown that many persons were present at the second trial who were also at the first, and whom the defendant might have called. The court did not err in refusing a new trial on this account. ■

Upon the whole case, we find no material error.

Affirm the judgment.


text:
    Holliday Bros. vs. Cohen.
    1. Attachment : Removing effects out of the state.

    If a debtor is removing his property out of the state, not leaving sufficient to pay all his debts, a creditor may attach, although sufficient be left to pay his debt; and testimony of other debts is admissible to prove the insufficiency of the property to pay all.

      2. Same : Damages for.

    Damages for injury to credit and loss of prospective profits in business, are not recoverable in an action on the attachment bond, nor in the attachment suit. If recoverable at all, it must be in a separate action on the ease.
    3. Witness: Evidence of bad character of, whether too remote.

    It is within the discretion of the circuit judge to admit or refuse evidence of the character of a witness for truth in a neighborhood in which he had previously lived, according as he may think it too remote, or fairly proper to assist the jury in judging of the witness’ present veracity.
    4. Attachment : Act of November 10, 1875, construed, etc.

    Dor construction of the act of November 10, 1875, amending the attachment law’s, and the proper practice under it, see opinion. (Rep.)

      APPEAL from Chicot Circuit Court,
    Hon. T. E. Sorrells, Circuit Judge.
    Reynolds, for appellants.

      Dodge Johnson, Rose, contra.

   Eakin, J.

Appellants sued Colien upon a bill of exchange, drawn by him, in their favor, upon Richardson & May, of New Orleans, for $1,000, dated at Laconia, Arkansas, January 1, 1876, payable twenty days thereafter. Acceptance was refused, and the same was presented again for payment at maturity; which was refused, also — the said drawees answering, as the complaint says, “that they had no funds of defendant with which to pay the-same.” There is no more direct allegation that there were no funds; nor any allegation of notice to defendants. "With the complaint, they filed an affidavit for an attachment, verifying the debt, and stating that defendant “ is about to remove his property, or a material part thereof, out of this-state, not leaving enough therein to satisfy the plaintiffs, or the claim of said defendant’s creditors; and that, unless an attachment is issued, there is reason to believe that plaintiffs’ claim will be lost, or greatly delayed.” This affidavit was made by George Burns, as their agent. The ordinary bond was given by two sureties.

An attachment issued, and, on the thirteenth of April, 1876, was levied on a store house and goods of defendant, which were left in possession of defendant’s clerk, untouched; with directions not to sell the same, but to proceed as usual with the other duties of his business. On the fifteenth it was levied on ten bales of cotton; and on the-seventeenth, the store-house and goods were released. On the nineteenth, the ten bales of cotton were duly appraised,, and the defendant gave a bond for the performance of the judgment of tbe court, or to produce the cotton or its value.

On the thirteenth of July, 1876, after a motion to discharge the attachment had been overruled, the defendant filed an affidavit, denying the truth of the statement in plaintiffs’ affidavit, to the effect that the defendant was .about to remove his property, or a material part thereof, out •of this state, not leaving enough therein to satisfy the plaintiffs, or the claims of said defendant’s creditors;” and that, “unless an attachment was issued, there was reason to believe that plaintiffs’ debt would be lost, or greatly delayed.’’ ■At the July term, 1877, a jury was impanneled to try this issue, which returned this verdict: “"We, the jury, find for the defendant, and assess his damages at $4,000.” "Whereupon, judgment for that amount was rendered in favor of defendant, against the plaintiffs and their sureties, for the damages sustained by the defendant, by reason of the wrongfully suing out said? attachment, and for costs, “and that he have execution for the same.” Amotion for anew trial was overruled, bill of exceptions taken, and appeal.

It appears, from the bill of exceptions, that the circuit judge acted, in receiving and excluding testimony, upon the view that it was not competent for the plaintiffs to show what debts the defendant owed others; and that he was removing his property so as not to leave 'sufficient to pay his creditors; but the judge held, and so instructed the jury, that, “ in order to sustain the affidavit, the plaintiff's should prove that the defendant was about to remove his property, or a material part thereof, from the state, not leaving sufficient to satisfy plaintiffs’ demand; otherwise, to find for the defendant, and assess his damages at whatever amount the proof shows he sustained.” This was excepted to by plaintiffs, and was all the instruction given.

The affidavit was, substantially, in the terms of the sixth ground of attachment, set forth in the first clause of see. §88, Gantt’s Digest. We can see no meaning in the concluding expression of the sixth ground, to-wit: “ or the claim of said defendant’s creditors,” unless the legislature meant to allow an attachment in favor of one creditor, whenever a debtor might be about to remove his property to such an extent as not to leave enough to satisfy all his creditors. Justice requires this. It would be but a tantalizing i’emedy if each creditor of many, should be obliged to stand by and see the common debtor spirit away his effects until he had reduced the remainder within the value of the largest debt. And it would be, then, very hard upon the minor creditors, if the largest could sue out his attachment, and claim a preference over, the whole of the remaining effects, as soon as their value might be reduced within his debt, but not within that of the minor creditors. The circuit judge err^d in excluding evidence of other debts, and in the instructions given the jury on this point.

The circuit judge, upon trial, admitted on defendant’s part, evidence of his damage from loss of credit, and interference with his prospective business profits. This was error. In the assessment of damages upon an attachment bond, made in the action, there is no issue of malice or want of probable cause. It is simply the truth of the naked fact which is put in issue — not whether the plaintiff acted maliciously or wantonly, without probable cause to believe the fact. In such cases damages must be compensatory merely, and confined to the actual loss from deprivation of the property attached, or injui’y to it; or, in ease of closing business, to the probable profits of the business during the time of its stoppage. Injury to credit and loss of prospective profits thereby, is too remote and speculative. Damage from that cause can not be assessed in an action on the bond, or in the attachment suit. If recoverable at all, it ’ must be in a separate action on the case. The damages were assessed on an erroneous principle, and are, moreover, clearly excessive.

The defendant, on the trial, was his own principal witness. The plaintiff offered, but was not allowed, to impeach his testimony, by proof of his character for truth and veracity in the neighborhood where he had been living until within a few months before the trial. The judge held, as a point of law, that the proof of his reputation should be confined to the neighborhood in which he lived when his testimony was given. It was in the discretion of the judge to admit or refuse such testimony according'as he might think it too remote or fairly proper to assist the jury in judging of the present veracity of the witness. He should have exercised that discretion. It was held in Snow v. Grace, 29 Ark., 131, that such testimony was admissible. In a recent Alabama case (Kelly v. State, 61 Ala., p. 19), it was held that the character of a witness might be impeached by the testimony of one who had, three years before, lived in the same neighborhood with him, and knew his past and present character in that neighborhood, although he knew nothing of it in the neighborhood to which the witness sought to be impeached had removed, and where he then resided. In this case, the interval was comparatively very short, and a sound discretion if exercised would have permitted the impeaching testimony to go to the jury for their consideration.

Eor the errors indicated, the verdict of the jury should, in any view of this case, have.been set aside, and the judgment rendered thereon, arrested. It must now be reversed.

Before remanding the case, it is deemed expedient to indicate the proper practice in this and like cases. This involves a construction of our system of attachment laws, which do not seem sufficiently clear to avoid misapprehension by the courts and the profession.

Before the Civil Code, the action by attachment was a suit of a peculiar character and of statute creation. The writ was not merely an ancillary remedy, aiding a common-law suit, which might proceed proprio vigore, regardless of the attachment itself. The complaint was, indeed, like that of a common-law suit, but it was so combined with the affidavit and writ as to make altogether an action sui generis. There was no summons independently of the writ, which was so essential to the continued vitality of the action that it could not be separately abated for any defect. A plea in abatement of the writ of attachment went to the whole action. It was regarded as a whole thing — a new form of action. Edmonson v. Carroll, 17 Ark., citing Childress v. Fowler, 9 Ark., 159.

Except that, in either of the two contingencies, it might by force of the statute, be converted into a common-law suit. If the defendant chose to give bond to appear and answer, and to pay any judgment that might be rendered against him; or if, having first appeared and, pleaded, he should successfully except to the affidavit upon which the writ was issued, then the attachment would be released and the suit would proceed as other suits at law'. The connection could be no otherwise dissolved, and without that the suit remained an entirety. The profession became used to designate it a “suit in attachment,” or “an attachment” simply, as they would say “replevin” or “ detinue.”

So the law stood until the act of March 7,1867, amending the attachment laws, which furnished a new ground upon -which the attachment might be dissolved. This was by a sworn plea on the part of the defendant, denying the truth of the grounds assigned for the writ in the plaintiff’s affidavit. The effect of such a plea was to dissolve the attachment, and throw upon the plaintiff' all the costs of the suit to that time, unless his affidavit should be supported by other sufficient evidence. Tie had the burden of proof. No mode nor time for the trial of this issue was specially directed by the statute, but the inference is strong that it was intended to be interlocutory. The judgment on it was simply to maintain the attachment, or dissolve it with costs up to that time.

Other amendments were made by the act. Before its passage, the bond of the plaintiff' entitled him to the writ; and the counter-bond of defendant entitled him to its dissolution, and the restoration of the property. Neither, in the action, was entitled to any remedy against the other on the bond. The act provided that upon the failure of the plaintiff' in his suit, in any “ suit by attachment,” either upon trial of issues made, or otherwise, the defendant might have a writ of inquiry to assess his damages on the bond, and judgment against the plaintiff and his sureties for the amount; and if, on the trial of such suit, judgment should be rendered against the defendant, it should go against the sureties in his bond also, to the extent of the appraised value of the property released. These provisions preceded that allowing the contest concerning the truth of the affidavit, and evidently refer to the final trial in the attachment suit. Although, on account of false or defective affidavits, the attachment may have been dissolved, and the property restored, his bond remained good against the plaintiff", and damages might be assessed upon it in case of, but not before, his final failure in the suit.

The practice under this system, thus plainly indicated, would have been easy, just and equitable; but time was not allowed to establish it.

The provisions of the Civil Code of 1868 covered the whole ground of attachments; and, as has been held, superseded all former laws within its scope. This made the confusion incident to all such sweeping experiments. Useful timbers are apt to be omitted in the reconstruction, and to complete the system, subsequent legislatures must gather up, and work in again, these disjecta membra. The principal features of the new system were the same as those of the old, though not taken from them. The whole “ Code of Civil Practice ” was not devised with reference to our body of existing laws, or even the existing constitution; but taken from the judicature of a neighboring state, to which it had been adjusted, and thrown into ours, to beadjusted as the courts might find themselves able. This duty we recognize, and must endeavor to perform. The attachment was made to be merely ancillary to an action at law, and might be had either at or after its commencement. This was consistent with the abolition, in name, of all forms of action. The “suit in attachment” no longer retained its peculiar and exceptional form, and characteristics, no more than any other class of actions. To obtain the writ of attachment, in any action, affidavits and bonds were required, as formerly, with slight modifications. The defendant was allowed to contest the truth of the affidavit, not by plea, as formerly, but by counter affidavit, and hearing by the court on motion, and upon affidavits of the parties, depositions, and such, oral proofs as the court might permit to be adduced. This is the usual mode of raising and determining all interlocutory questions. No difference was made in the mode of disposing of motions to dissolve on account of the falsity of the grounds sworn to, and those to dissolve for other reasons. The Code provided that if “ the court should be of opinion that the grounds of the attachment are not sustained, the attachment should be discharged, subject, however, to reinstatement before final judgment.

A mode of reinstatement was attempted to be provided, pendente lite, through a judge of this court. This was one of the provisions of the adopted Code, which could not be made to fit into our constitutional system of courts; and it has been, necessarily, disregarded in practice. The provision remains historically useful in construing other portions of the system — indicating its intention to be, that the attachment should not be considered as finally disposed of, until the determination of the action. Evidently, the practice of summoning a jury to determine the truth of the facts alleged as grounds for attachment, was not contemplated. It was an interlocutory issue, not going to the merits of the action, but questioning the right to the ancillary remedy. The mode of trial prescribed was not the usual one for trying issues of fact raised by pleadings. The order of the court, upon the result, was simply to be in discharge of the attachment, or to maintain it; that is, to determine whether, pending the action, the property should be restored to the defendant, as wrongfully -taken, and prematurely, or retained in court, under custody of law. to await judgment and execution. The decision, and order of the court, unless excepted to at the time, and reversed on appeal, became, between the parties res judicata, and might be used in a suit on the bond for damages. However that might be, the point now under consideration is, that the Code did not contemplate a trial by jury, on a motion to dissolve an attachment. (Gantt’s Digest, secs. 457, 458, 459.) Doubtless, a judge may, if he chooses, of his own motion, refer to a jury any matter of fact whatever. It would not be error in him to so refer such an issue as the one in question. (Ib., sec. 4542) Rut in view of the construction of subsequent acts, it is important to know what practice the legislature intended, in ordinary cases. The sections, above quoted, are parts of the Kentucky system, and were brought over, verbatim and in situ, with the body of her civil practice. (Compare Myer’s Code of Kentucky Practice, sections 289, 290, 291.) Under them, it was held by the supreme court of that state that the motion to discharge an attachment should be tried by the court, and that a party was not entitled to atrial by a jury. (Talbot v. Pierce, 14 B. Monroe.) Whilst this court would not feel constrained, in all cases, to adopt a construction given by the supreme court of another state to the language of a state statute, which our legislature had adopted; yet it confirms us in our views to find them in accordance with the supreme court of the state from which the law in question was taken. The Code, in furnishing us a new system of attachment laws, omitted a provision to which our sense of justice had become accustomed. No judgment in the action could be rendered, on the bonds, against sureties of either plaintiff' or defendant. The system needed readjustment, and hence the act of November 10, 1875. It is in one section, providing:

“ That in all actions of attachment now pending, or hereafter instituted, in which the defendant shall recover judgment for tire discharge of the attachment, the court or jury trying said attachment, shall assess the damages sustained by the defendant, by reason of such attachment, and the court shall render judgment against the plaintiff and his sureties in the attachment bond for the amount of such damages, and cost of attachment. But if the plaintiff'shall recover against defendant, and the attachment shall have been discharged upon the execution of a bond, as prescribed by section 4l6, of Gantt’s Digest, then the court shall render judgment against said defendant and his sureties in said bond for the amount recovered, and the cost of said suit. But if the defendant shall have given bond for the retention of the property attached, as provided by sec. Jfi6, of Gantt’s Digest, and the attachment shall be sustained, the court, 'or jury, in addition to finding the amount of debt or damages due to the plaintiff, shall, on demand of the plaintiff, also assess the value of the property attached,” etc. — proceeding to provide for judgment against the sureties in defendant’s bond for the value of the property, or the whole debt, if less than the value.

The first clause of this section, standing alone, would be doubtful in meaning. It speaks of the “ action of attachment,” in the old sense, as if it remained a separate and distinct form of action. It speaks of “ the court or jury trying said attachment,” without designating what trial is meant — whether of the merits upon the pleadings, or of the truth of the grounds upon affidavits and motion. Inasmuch as it had become the habit to designate an action begun with an attachment, as an “ action of attachment,” or an “attachment,” and inasmuch as there was no mode directed, by existing laws, for the trial of any other issue in the suit, than the issue in the action, made by the pleadings, the inference from this clause alone, might well be, that the act meant to empower the court or jury trying the final issue to fix the damages.

The cloubt vanishes on continuing to read the section with the conjunction “but.” The continuing part is thus made to refer to the same trial, on the contingency of the plaintiff's recovery. This could only happen on the final trial of the merits in the principal action. If a distinction had been intended between the trials at which defendant might have assessments of damages, and plaintiff assessments of values of retained property, the draughtsman of the act would have been certainly prompted to the use of more appropriate language to make it clear. It is plain that the legislature did not intend judgment for damages, and execution against the plaintiff and his sureties before the final disposition of the case.

The best practice founded upon all the acts, is, to try the truth of the facts put in issue by the counter affidavit of defendant, and the motion to dissolve, by the court, as an interlocutory motion. If found for defendant, the attachment should be dissolved, and the property released. Exceptions may be reserved, and the ruling on this point will be subject to revision on appeal from the final judgment. But until corrected it becomes res judicata between the parties, as establishing the fact that the attachment was wrongfully sued out. In case there should be a trial by jury, or the court, of the issues in the principal action, the damages on the respective bonds of plaintiff and defendant may then be assessed against them and their sureties.

If there should be no final trial and the main suit be otherwise disposed of, there is no direct and mandatory provision of any statute for the assessment of damages on the bond in the action. The act of 1867 made such a provision, by giving defendant the right to have a writ of inquiry, in case the plaintiff' should fail in his' action from any cause. That act has, as we said, been superseded by the Code provisions.

There is, however, such an analogy between the acts of 1875 and 1867, that the impression is strong in the profession, and upon our minds, that the legislature meant to return to the policy of the latter act, which policy had been disturbed by the Code provisions, and to leave it with the court, through proper instrumentalities, to settle in one suit, the whole of the litigation arising not only out of the original cause of action, but also out of the bonds executed in its progress. We think it, therefore, within the equity and spirit of the act, as a matter of practice, that the defendant should have the right, when the plaintiff shall fail to bring his suit to final trial, or may.fail otherwise, to have a jury summoned on his own behalf, to assess the damages which may have accrued to him from a wrongful attachment in the action, and which had been dissolved.

It is certainly unreasonable, and a bad practice, which may lead to great injustice, to have an assessment of damages, judgment and execution in favor of defendant, upon an interlocutory trial, when, in the end, the plaintiff may recover a larger sum on his debt, and find the defendant insolvent. One trial should settle all, and damages maybe set off' when fixed; and a final judgment rendered on one or the other side for a balance.

Let the judgment be reversed for the errors above indicated, and the case be remanded for further proceedings consistent with law apd this opinion.