author: Witherspoon, Sp. J.

text:
    Robinson vs. Eagle and wife.
    1. Husband and Wipe : Take land by entireties.

    At common law, husband and wife are seized of the entirety in land conveyed to them jointly; and upon the death of- one of them, the estate remains to the survivor.
    2. — Same : Construction of statutes and constitution of 1868.
    The rule of the common law is not changed by our statute or the constitution of 1868. The latter, art. XII, sec. 6, only relates to the separate property of the wife, and was intended merely to preserve it from liability for the debts of the husband.
    APPEAL from Prairie Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Clark & Williams, for appellant.

      M H. English, for appellee.
   Witherspoon, Sp. J.

This cause was decided at the April term of the Prairie circuit court, 1873, by the Hon. John Whytock, judge, upon the following agreed statement of facts:

“On the 16th day of July, 1868, William Eobinson, being the owner of the lands in controversy, by deed of that date, conveyed them to Eobert J. Eagle and wife (Laura Y. Eagle), which deed is in substance as follows:

“ Be it known that I, William Eobinson, in consideration of the natural love and affection which I have and bear to Eobert J. Eagle and Laura Y. Eagle, his wife, and the further consideration of the sum of five dollars to me in hand paid by the said Eobert J. Eagle and Laura Y. Eagle, his wife, have given, granted, bargained and sold, and do, by these presents, grant, bargain and sell to the said Eobert J. and Laura Y. the following described lands [describing them], to have and to hold the above given and granted lands unto them and their heirs forever. And, for the consideration aforesaid, I hereby bind myself to warrant and defend the title to the same to the said Eobert J. and Laura Y., their heirs and assigns, forever, against the lawful claims of all persons whatsoever.”

Laura Y. Eagle was the daughter of the grantor, William Eobinson, and at the date of the conveyance, was the wife of Eobert J. Eagle.

Eobert J. and wife took possession of the lands under the deed, and held them until the death of Laura Y. Laura Y. died intestate on thé 16th of October, 1869, without issue born alive, leaving her husband surviving. Eobert J. continued in possession of the lands, after the death of his wife, until the 14th of March, 1871, when, by deed of gift of that date, he conveyed them to Malinda Eagle, wife of William H. Eagle, and also a daughter of William Eobinson. William H. Eagle and wife took possession under their deed, and remained in possession of the lands until the commencement of this suit.

Upon this agreed statement of facts, the plaintiff (Eobinson) by attorney, asked the court to declare the law as follows:

Eirst. 'That a proper construction of the deed from Eobinson to Robert J. Eagle and wife is to make them joint tenants. That right of survivorship is not an incident of joint tenancy, in Arkansas; but when a deed would, at common law, create an estate in joint tenancy, by the laws of Arkansas, such estate will, in case of the death of one of the defendants, descend or be inherited as an estate in common.

Second. On the death of Mrs. Eagle, her estate ascended to the plaintiff, her father,.and he is entitled to recover the same, and receive one-half of the rents and profits of said land since her death.

The defendants then asked the court to declare the law :

First. That upon the death of Laura V. Eagle, her husband, Robert J. Eagle, took her interest in the lands by survivor-ship.

Second. That Robert J. Eagle, having taken his wife’s interest in the lands by such survivorship, had the’legal right to convey them to the defendant, MalindaEagle; and the deed is a valid conveyance of the whole land.

The court below gave the law as asked by the defendants, and refused to declare the law as requested by the plaintiff’s attorney. To which ruling of the court, the plaintiff, by counsel, excepted at the time. Whereupon the cause was submitted to the court sitting as a jury, upon the agreed statement of facts.; and the court rendered judgment in favor of the defendants. Plaintiff then filed a motion for new trial, which was overruled; and to which, also, he excepted, and appealed to this court.

There are only two questions involved in the decision of this cause :

First. What estate did Robert J. Eagle and wife take by their deed from Robinson at common law ? and,

Second. Has our statute or the constitution of 1868 changed the common law rule in regard to the interest of husband and wife in such an estate ?

Eirst, then, what says the common law ?

Blackstone, in his Commentaries, book II, naarg. p. 182, says: “ If an estate in fee be given to a man and his wife, they are neither properly joint tenants or tenants in common, for husband and wife being considered one person in law, they cannot take the estate by moieties, but both are seized of the entirety. The consequence of which is, then, neither husband nor wife can dispose of any part without the consent of the other, but the whole must remain to the survivor.”

Lord Kenyon, C. J., in case of Doe, etc., v. Parrott and wife, 5 Term, 654, says: “It seems to me from the manner in which the case is drawn, that it was intended to be argued that the devise in the first will to Ereisbee and wife created a joint tenancy, but that question has been properly abandoned. Eor though a devise to A. & B., who are strangers, creates a joint tenancy, the conveyance of one of them severs the joint tenancy, and passes a moiety. Yet it has been settled for ages that when a devise is to husband and wife, they take by entireties, and not by moities, and the husband cannot, without the consent of the wife, divest her estate.”

The American authorities are all to the same effect, except one case in Connecticut, and one in Georgia. 2 Kent’s Com., 11th ed., top page 113; R. R. Co. v. Harris, 9 Ind., 184; 1 Wash. on Real Estate, 314, 315; Tyler on Infancy and Coverture, 498; McCord’s Rights of Married Women, secs. 109, 110; White v. Wager, 25 N. Y., 328; Den v. Hurdenburgh, 5 Halst. (N. J.), 42 ; Winans v. People, 32 N. Y., 423 ; Jackson v. Stephens, 16 Johns., 110; Stuffy v. Reefe's Ex’r, 26 Penn., 397; 46 id., 248; 56 id., 286; 13 Mass., 213; 26 Ind., 424, and Thornton v. Thornton, 3 Rand. (Va.), 179.

There are many other authorities we could cite to the same effect, but we deem it unnecessary. The authorities, English and American, settle, beyond all controversy, the law as stated by Blackstone and Kent.

We therefore decide that by the common law, Robert J. Eagle and wife were each seized of an entirety in the lands granted them by William Robinson, and upon the death of Laura V., Robert J. Eagle would take the whole estate, and he could sell and convey the same.

The counsel for appellant admits the common law rule as we state it, but contends that it has been changed by statute, and the constitution of 1868. This brings us to the consideration of the question : lias this well settled common law rule of property been changed or modified by our statute and constitution of 1868-?

We think not. Sec. 9, ch. 37, Gould’s Digest, 265, provides : Every interest in real estate granted or devised to two or more persons,(other than executors or trustees as such) shall be in tenancy in common, unless expressly declared in such grant or devise to be a joint tenancy.”

Sec. 6, article Nil of the constitution of 1868, relied upon by counsel for appellant, reads as follows: “ The real and personal property of any female in this state, acquired either before or after marriage, whether by gift, grant, inheritance, devise or otherwise, shall, so long as she may choose, be and remain the separate estate and property of such female, and may be devised or bequeathed by her the same as if she were femme sole. Laws shall be passed providing for the registration of the wife’s separate property,” etc.

The act referred to in Gould’s Digest was intended to remedy what was regarded as an evil growing out of an estate of joint tenancy, whereby a survivor, though a stranger, on the death of his cotenant, would take the whole estate by survivor-ship, and other reasons. But it certainly was not intended to. apply to the case of husband and wife, who are regarded by the law, Divine and human, as one person, and hold the estate as an entirety and not-as joint tenants.

In support of this position, we refer to the following authorities, based upon statutes similar to ours. Wright v. Saddler, 20 N. Y., 323 ; Torry v. Torry, 4 Kern., 430; 15 Wend., 615 ; 8 Cowen, 278; 1 Wins. (N. C.), 237 ; 9 B. Mon., 587 ; 10 Mass., 385 ; 19 Wis., 362; 1 Duvall (Ky.), 23 ; 42 Miss., 1.

It is insisted by the counsel for the appellant that the clause in the constitution of 1868, above cited, has so enlarged the rights and powers of a married woman that she is now, in contemplation of law, a distinct person, and entitled to all the privileges of a single woman.

We cannot assent to such a proposition. This article only applies to the separate estate of the wife, and is intended merely to preserve it from liability for the debts' of her husband, and authorizes her to devise and bequeath it. In New York, Massachusetts, and other states with similar provisions of law, they have so decided. See authorities above cited, and Bingham on Real Estate, p. 169, sec. 5; 4 N. Y., 513; 30 How. Pr., 193; Blood v. Humphrey, 17 Barb., 662; Yale v. Dedner, 18 N. Y., 231.

In conclusion, we would remark that we are not only sustained by authority and precedent; but also by sound reason and good policy. The marriage relation is a peculiar one. • It is of Divine origin, and He “who spake as never man spake” declares that “they twain shall be one flesh.” This bond of union between husband and wife contemplates not only a union of hearts, but a union of property and all other interests, and all laws which tend to sever -property rights between them certainly have the effect to weaken the ties which bind them “ for better or for worse,” and thus become a fruitful source of bickering and discontent, which often end in- separation and divorce.

We are aware that there has been a strong tendency of late to “enlarge the rights of married women,” and in most of the states, laws have been passed to protect the separate property of the wife. We doubt the policy, and would, certainly, not be disposed to enlarge the rule so as to include property conveyed to husband and wife jointly. We prefer to stand by the rule sanctioned by Divine wisdom, as well as the decisions of the ablest jurists of England and America; a rule which has been acquiesced in for centuries in Great Britain, and approved and followed in nearly all the states.

Let the judgment of the court below be affirmed with costs.

The Hon. E. H. English, G. J., did not sit in this case.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    White vs. Prigmore.
    1. Jurisdiction on Supreme Court: To render judgment on supersedeas bond.

    The sureties in a supersedeas bond become, in legal effect, parties to the suit, under our statute, and agree, in case of affirmance, that judgment may be rendered against them by the supreme court for • costs and damages and the amount of the judgment below, and a judgment so rendered is not void for want of jurisdiction.

      2. Tender : Of state scrip for a, money judgment.

    A tender of state scrip in satisfaction of a money judgment, after the party has neglected to plead such facts as would have entitled him to pay in scrip, is too late.
    3. — In pa/i't good and pw't bad, effect of.

    The tender of an entire sum in state scrip, when a part was payable in money and a part in scrip, is bad as to the whole.
    PETITION to quash execution.

      Compton, Martin & Parsons, for petitioner.

      Cockrell, contra.

   English, C. J.

On the 19th of March, 1873, Prigmore obtained a judgment in the circuit court of (Grant county against White, for $1,100; and White appealed to this court.

The transcript was filed on the 17th of May, 1873, and White entered into a supersedeas bond, with M. L. Bell and Met. L. Jones as sureties, before the clerk of this court, in the form prescribed by the statute. Gantt’s Dig., 1085.

The judgment was affirmed, and this court rendered judgment against White and his sureties in the supersedeas bond for the amount of the judgment of the court below, ten per •cent, damages and costs. Execution was issued upon the judgment, 4th of April, 1874, to the sheriff of Jefferson county, levied upon lands of White, and returned wdthout sale. On -the 8th July, 1874, a vend. ex. was issued, and on the 1st of August following the lands were sold, and purchased by Bell .and Jones on a credit of three months, who gave bond for the purchase money, with Bocage as surety. On a return of pur•chase money not paid, an execution was issued against Bell, •Jones and Bocage, and White applied to this court to recall and quash the execution, and set aside the sale, etc., on the the following grounds:

1. That this court had no constitutional power to render the judgment against White and. his sureties in the supersedeas bond, and that the judgment and the executions issued thereon were null and void

2. That White tendered to the sheriff, before the sale of the lands, the amount of the judgment and costs, in state scrip, which he refused to receive, and proceeded to sell, etc.

I. That this court had j urisdiction to render the j udgment against White, on the affirmance of the judgment appealed from, there can be no doubt (Gantt’s Dig., secs. 1101, 1104); and inasmuch as his lands only were sold to satisfy the judgxnent, lie has no very just cause to complain that his sureties-in the supersedeas bond were included in the judgment, etc.

But we will, nevertheless, proceed to consider whether the court had jurisdiction to render judgment against the sureties.

It is contended that the rendering of the judgment against them was the exercise of original and not of appellate jurisdiction.

It may be conceded for the purposes of this case, without going into a question heretofore much mooted, that the supreme court, under the constitution of 1868, had appellate- and supervisory jurisdiction only, to be exercised in the manner prescribed by law. Art. YIL, secs. 4, 5, 15.

That the time and mode of taking and prosecuting appeals- and writs of error, and the indemnification of parties against cost, damages and losses from delays, or stays of execution, were proper subjects of legislation, under the constitution of 1868, as well as under the constitution of 1836, and under the-present constitution, there can be no doubt.

Judgments of the circuit courts are brought into this court-for review, by writ of error or appeal, and neither the issuance of a writ of error nor the granting of an appeal stays execution of the judgment of the court below without supersedeas. Gantt’s Dig., secs. 1056, 1057, 1058, 1083-4.

A supersedeas is not issued until the appellant causes to be executed, before the clerk of the court which rendered the-judgment, or the clerk of the supreme court, by one or more sufficient sureties, to be approved by such clerk, a bond to the-effect that appellant will pay to the appellee all costs and damages that may be adjudged against the appellant, on the appeal, and also that he will satisfy and perform the judgment appealed from, in case it should be affirmed, and any judgment which the supreme court may render, etc. Gantt’s Dig., sec. 1083.

Upon the affirmance of a judgment, etc., for the payment of money, the collection of which, in whole or in part, has been superseded, this court is required to award against the appellant ten per cent, damages on the amount superseded. Gantt’s Dig., sec. 1101.

Upon the affirmance of any judgment, etc., which has been wholly or in part superseded, judgment may be rendered against the securities on the supersedeas bond, and execution awarded thereon. Id., sec. 1102.

Thus, taking the provisions of the statutes together, the appellant, who desires a stay of execution pending an appeal, causes a supersedeas bond to be executed, and the sureties on the bond become, in legal effect, parties to the suit, and agree that if the judgment be affirmed, judgment may be rendered against them by the supreme court, 'for costs, damages, and the amount of the judgment below, etc., the statute authorizing this judgment being part of their contract as fully as if incorporated into the supersedeas bond executed by them.

The awarding of costs, damages, and the rendering of judgment against the sureties in the supersedeas bond, as well as the appellant on affirmance, is but the exercise of jurisdiction in matters growing out of or incidental to the appeal, and not in any proper sense the exercise of original jurisdiction. No new cause of action or subject matter of jurisdiction is brought before this court on the appeal. by the execution of the supersedeas bond, but the sureties in the bond merely agree that judgment may be entered against them, as well as the appellant on affirmance for the amount of the judgment appealed from, with costs and damages, which are incidents of the appeal and stay of execution.

The sureties in the bond are, in legal effect, new parties to the suit, but the subject matter of the suit continues to be the same in which the court below rendered the judgment appealed from, and the rendering of judgment against new parties is not the exercise of original jurisdiction as to the subject matter of the suit in this case, any more than it is where the appellant or appellee dies after the appeal is taken, and his administrator, executor or heirs, are made parties, and judgment rendered for or against them on affirmance or reversal, which frequently occurs. See Carpenter v. Thomas, 5 Mich., 52 ; Davidson v. Farrell, 8 Minn., 258 ; Duncan v. McGee, 7 Yerger, 103. In this case judgment was rendered by the supreme court of Tennessee against the sureties in the supersedeas bond. See also Wright v. Simmons, et al., 1 Sm. & Mar., 389.

Prior to the passage of- the act of 1871 (Gantt’s Dig., 1102), authorizing this court to render judgment against the sureties in the supersedeas bond, on affirmance, the appellee had to resort to an original suit upon the bond or recognizance, and was subjected to the delay and expense of prosecuting the suit; and the statute authorizing a summary j udgment against the sureties, in accordance with their undertaking, and avoiding such delay and expense, has much to commend it.

To the argument of counsel, that the sureties have no day in court, it may be answered, that they have the same day in court that the appellant has, having, in legal effect, made themselves parties to the appeal, and agreed to abide and satisfy the judgment.

But it is said by counsel, that the sureties may wish to plead non est factum to the bond, and this being a court of appellate jurisdiction only, the law has provided for no jury to try an issue to such plea.

To this it may be replied, that the statute requires the bond to be executed before the clerk, whose duty it is to see that the sureties in fact execute the bond, conditioned as required by the statute, that they are not infants, married women, insane, or otherwise incapable of contracting, and that they are responsible for what they answer. Though not taken by the clerk in the form of a recognizance of record, the execution and approval of the bond are attended with very much the same solemnity.

"When an apparent surety in a supersedeas bond shall come before this court and object to the rendering of a judgment against him on affirmance of the judgment appealed from, on the ground that he did not in fact execute the bond, or on any other ground, it will be then time enough for the court to determine how the truth and validity of the matter is to be inquired into and decided.

In the case of Carpenter v. Thomas, cited above, the supreme court of Michigan said :

“ This bond (appeal bond) is, we think, to be read in all respects as if the whole of the statute in reference to the appeal, the bond, and mode of entering up judgment upon it, were recited at large in the bond. And in this view, it becomes a direct judgment in this manner, and stands upon a principle analogous to that of a warrant of attorney. It is true, the authority is here given to the court instead of one of its officers, as the attorney of the party, but this is a difference of form rather than substance.

“ The constitutional prohibition against 1 depriving any person of his property without due process of law’ was obviously intended only to protect persons from being deprived of their property without their assent, unless by due process of law. The constitution would become a very officious instrument,, if it sought to force its protection upon any man against his will.

“ A similar answer may be made in reference to the provision securing trial by jury in civil cases. This right may always be waived ; and the assent of the surety to the entry of judgment, on motion, is clearly given in the bond.”

And in Davidson v. Farrell, cited above, the supreme court of Minnesota said:

“ This judgment against the surety (in the appeal bond) is authorized by law, and the only question that can properly arise in relation to the point is, whether the law itself is in conflict with the provisions of the constitution.”

The court then quotes the provisions of the statute authorizing judgment against the surety, and proceeds thus :

“We see nothing in these provisions inconsistent with the fundamental law. The law does nothing more than to provide the form and manner in which the agreement entered into by the surety shall be enforced. And the surety, in. becoming a party to the bond, under the law as it then existed, assents to and adopts those provisions for the enforcement of the contract he has entered into with the obligee of the bond. Haywood v. Judd, 4 Minn., 495. The law has declared what liability the surety assumes in signing such a bond, to-wit: that a judgment against his principal shall also warrant a judgment against him. In effect, it is making the judgment against his principal conclusive evidence of the liability of both upon the bond; and the surety, becoming voluntarily a party to the bond under the law, must be held to have assented to assume all the obligations imposed by the law then in force upon a party holding'that relation, etc.

“ This view of the case renders it unnecessary to inquire into the meaning attached by the framers of the constitution to the phrase, ‘due process of law,’ since, if the party has himself authorized the process, whatever it be, he cannot be permitted to object to the same, and the authorities cited by plaintiff In error we think not applicable to the case at bar.”

Our conclusion is that the judgment rendered by this court against White and his sureties in the supersedeas bond on which the executions issued, was not null and void for want f jurisdiction.

II. "Was the sheriff bound to accept state scrip in payment of the judgment?

The original suit was commenced in the Jefferson circuit court, and removed, by change of venue, to Grant circuit court.

Prigmore sued White for the office of recorder of Jefferson county, and the fees and emoluments thereof which accrued between the 7th of April, 1871, and the 22d of March, 1872, amounting, as alleged in the complaint and stated in the bill of particulars, to $1,816.60.

White, in his answer, denied having received fees amounting to so much as alleged in the complaint. He admitted that he had received for recording deeds, etc., after deducting county tax, $1,110.00, and alleged^that he had paid out more than that sum in expenses of the office. The cause was tried by a jury, and there was a verdict and judgment in favor of Prigmore for one thousand, one hundred and ten dollars damages.

It is insisted that inasmuch as the fees of the recorder were payable in state scrip, under sec. 9, art. XV of the constitution of 1868, as construed by this court in Ramsey v. Cox, 28 Ark., 366, White had the right to pay the judgment in such state scrip, and that the sheriff could not legally sell the lands ■of White, under the execution issued on the judgment, after a tender of the scrip.

In the answer of White to the complaint, he did not state that any of the fees of the office were received by him in state scrip. If in fact he received the fees in scrip, and not in money, he should have so alleged, and on proof of the allegation, and the value of the scrip, the verdict might have been for the value of the paper. But having failed to interpose such defense, it was too late after judgment to avail of a neglected defense, by a tender of scrip to the sheriff in satisfaction of a judgment for money.

The petition avers a tender to the sheriff, before the sale of the lands, in state scrip or treasury certificates, of the full amount of the judgment and costs, and refusal of the sheriff' to accept.

„ Had there been a separate and distinct tender of the amount of the costs in state scrip, the sheriff would have b'een bound,, under the decision of this court above referred to, to have accepted it. But the tender made seems to have been an offer to pay the judgment (a money demand) and costs in state-scrip— one entire proposition — which the sheriff was not at liberty to accept, and properly declined.

In the petition, no irregularities are alleged in the sale of the lands on a credit, the taking of the bond, with surety, for the purchase money, the return of nonpayment, and the issuance of execution on the statutory judgment. The motion to-recall and quash the execution, set aside the sale, etc., is based upon the main proposition that the judgment rendered by this court against the sureties in the supersedeas bond was void for want of jurisdiction, and .that the subsequent proceedings-were consequently invalid.

The motion is overruled, and the temporary supersedeasgranted on the petition is revoked.


text:
    Callahan et al. vs. Saleski.
    Jurisdiction or Circuit Court: To render judgment on supersedeas.bond.

    On appeal from a justice of the peace to the circuit court, with super sedeas, the circuit court has jurisdiction to render judgment against the sureties on the appeal bond.
    APPEAL from Pulashi Circuit Court.

      Hon. John Whytock, Circuit Judge.

      TI. M. Rose, for appellant.

      Benjamin & Barnes, contra.

   English, C. J.

On the 4th of January, 1872, Louis Salesld recovered a judgment against Frank Arbuckle, before a justice of the peace of Pulaski county for $270, debt, etc.

Arbuckle appealed to the circuit court, and executed a supersedeas bond, with A. M. Callahan and Wm. McQueen as sureties, in which they bound themselves to satisfy and per-' form the judgment that might be rendered on the appeal.

When the case was called for trial in the circuit court, Ar-buckle made default, and judgment was rendered against him and his sureties in the appeal bond for the same amount recovered before the magistrate and costs.

Callahan and McQueen prayed and obtained an appeal to this court, and entered into a supersedeas bond, before the clerk, with Jones and Rymal as sureties.

No defense was made by Arbuckle or his sureties in the circuit court, no motion in arrest, or to set aside the judgment, and no question of law reserved by bill of exceptions, or otherwise.

The point, and the only point made for the appellants here, is that the judgment was rendered against them in the court below without notice.

By executing the supersedeas bond, the appellants, in legal effect, made themselves parties to the appeal of Arbuckle, their principal, from the judgment of the justice of the peace to the circuit court, and agreed to satisfy and perform the judgment of the court appealed to.

The law required no further notice to them. They had the right to appear in the court to which the appeal was taken, and prevent, if they could, the rendering of a judgment against their principal or themselves. They had the right, also, to move to set aside the judgment after it was rendered, if there was any good cause for doing so. But they failed to do or offer to do anything in the court below.

They also, in legal effect, agreed when they became the sureties of Arbuckle, in the appeal bond, that if the judgment appealed from should be affirmed, or, on a trial de novo, judgment should be rendered against their principal, it should be rendered against them also; for such was the law when the bond was executed, and the law was part of the contract, as we have shown in White v. Prigmore, ante, p. 208.

The law authorizing such judgments, on appeals from justices of the peace, has been upon our statute books for many years. Very many judgments have been entered under it, and executed, and we can see no clear and solid grounds on which its unconstitutionality could be placed. Gould’s Dig., ch. 99, sec. 197; reenacted substantially, in the act of April 29,1873. Gantt’s Dig., ch. 82, sec. 3839.

The judgment of the court below must be affirmed, with ten per cent, damages, and judgment entered against appellants and their sureties in the supersedeas bond executed' before the clerk of this court.


author: Walker, J.

text:
    Bernays vs. Feild et al.
    1. Vendor's Lien: Is assignable.

    Tlie lien of a vendor who executes a bond for title, inures to the benefit of an assignee of tlie purchase money note.
    2. —In case of reassignment to vendor without recourse..

    The effect of the reassignment, to the vendor, of the purchase money note, without recourse, is to unite in him the debt and the right to enforce satisfaction under the lien for which he had contracted. This case distinguished from Williams v. Christian, 23 Ark., 25S. •

      S. — When the vendor has pcvrted with his security.

    But when the vendor, who also held under a title bond, has transferred it before the reassignment of the note, the foregoing rule does not apply.
    4. Estoppel Equitable.
    The vendors of land whose bond for title had been assigned required their vendee t,o pay a note for the purchase money, which they had transferred to a nonresident, to a confederate receiver, before they would comply with the conditions of their bond in favor of the assignee ; and by that and other acts induced the assignee to pay other incumbrances and accept a deed to the land. Afterward the note which they had required paid to the receiver was reassigned to them. Held, that they were estopped to enforce it against the assignee of their bond for title.
    APPEAL from tbe Pulaski Chancery Court
    Hon. T. D. W. Yonley, Chancellor.

      Pose & Garland, for appellants.

      M. W. Benjamin, contra.

   Walker, J.

The material facts out of which the questions of law arise in this case, are: that James Douglass, the owner of certain lots of land in the city of Little Rock, sold them to Eeild and Dolly, for the price of $550, and for the payment of which they executed to Douglass several promissory notes, thereafter to become due, and Douglass, in consideration thereof, executed to Eeild and Dolly his bond, conditioned, that if Eeild and Dolly should pay him the notes so executed, he, Douglass, would convey the lots to them by deed. Thereafter, Eeild and Dolly sold the lots to Rector, for the sum of $8,500, who in part payment of that sum assumed to take up the notes executed by Eeild and Dolly to Douglass, and execute to him his (Rector’s) own notes, which was done, and to secure the further payment of said sum, Rector executed to Eeild and Dolly his note for $1,422, in consideration of which Eeild and Dolly executed to Rector their bond, reciting the consideration and the amount due by note as part of the purchase money, and covenanted that upon the payment of said note they would assign to Rector, Douglass’ bond to them for title.

Rector, for the consideration of five thousand dollars in confederate money, sold said lots to Bernays, and assigned Eeild and Dolly’s bond to him, and also by a written indorsement on the bond requested Field and Dolly to assign to Bernays, Douglass’ bond, as the note for $1,422 had been fully discharged by payment to Rutherford. In compliance with this request, Feild and. Dolly assigned Douglass’ bond to Bernays, who, as the legal holder of the same, and upon the payment of Rector’s notes to Douglass, procured from him a deed for the lots. The deed appears to have been executed on the 12th of June, 1863, and nearly three years after Feild and Dolly had assigned the note to Benedict, Hall & Co., residents of the city of New York, who, all the while until January, 1866, were the legal owners of the note, at which time Feild and Dolly settled their liabilities as assignors and took an assignment of the note from Benedict, Hall & Co., without recourse to them.

Upon the hearing of the cause in the court below, a decree was rendered in favor of Feild and Dolly, for the sum paid by them to Benedict, Hall & Co., against Bernays, decreed a specific lien on the lots for the payment of the same, with order of sale; that the cross bill of Rector and Bernays be dismissed, and that Bernays be enjoined from collecting a judgment in his favor against Rector for the money paid by him to Douglass.

From this decree both Bernays and Rector appealed.

It is contended, on the part of Feild & Dolly, that the specific lien reserved by them upon the lots for the payment of the purchase money, and which passed by assignment of the notes to Benedict, Hall & Co., by force of the re-assignment of Benedict, Hall & Co. to them, reverted to them, and remained as perfect as if no assignment had ever been made. Whilst it is contended on the part of Bernays: 1. That the re-assignment to Eeild & Dolly was without recourse, and that no lien passed with the debt by virtue of such assignment. 2. That if such would, ordinarily, be the effect of the assignment, and that the lien did follow the debt, still, by the acts and conduct of Eeild & Dolly in this case, the lien was discharged, and that they are estopped by such acts from asserting their rights under it.

Douglass, who executed his bond for title upon the payment of the purchase money, held the naked legal title to the lots with a specific lien upon the lots for the payment of the purchase money; and the effect of the subsequent sales and assignment communicated subsequent liens upon the property for the payment of the purchase money upon the after sales, to be satisfied in their order, in the nature of subsequent mortgages. Moore v. Anders, 14 Ark., 626; Smith v. Robinson, 13 id., 534; Sullivan v. Hardy, 16 id., 145; Veasy v. Watkins, 18 id., 553.

And this lien enures to the benefit of the assignee of the note given for the payment of the purchase money, as fully as it did to the vendor. Moore v. Anders, 14 Ark., 626; Sullivan v. Hardy, 16 id., 145.

Benedict, Hall & Co. most clearly held a lien upon these lots for the payment of the note assigned to them; but it is contended that the re-assignment without recourse did not carry with it the lien, and in support of this position we have been referred to the case of Williams v. Christian, 23 Ark., 225.

Without intending to question the correctness of that decision under the state of case there presented, we feel satisfied that it has no application in a case like the present.

In the case of Williams v. Christian, the vendor assigned the note without recourse, which was construed to mean that the assignee relied solely upon the solvency of the payer of the •bill. But in this case the assignment was made to the vendor who had assigned the note, the effect of which was to unite in the vendor the debt and-the right to enforce satisfaction under the lien for which he had contracted. In the case of Kelly v. Payne, 18 Ala., 371, it was held that, “If the vendor indorse the note and afterwards take it up, on the failure of the vendee to pay on maturity, or if the note comes back to his possession as his own, then, both the debt and the security for its payment are-united again in the vendor, and he may enforce payment by subjecting the lands to its satisfaction.”

Upon the authority of this decision, as well as upon principle, we must hold that by force of such assignment, the rights of Feild & Dolly became as full and perfect as if no assignment had ever been made; and may be as fully enforced unless they shall be found to have waived their rights, ór are estopped from asserting them, of which we will proceed to consider.

In 1860, Feild & Dolly assigned the note of Rector for $1,422, to Benedict, Hall & Co., who sent it out to Wait for collection. The note was seized upon by Rutherford, the confederate revenue collector, and paid off by Rector in confederate money. Bernays, in his answer, which is responsive to the allegations of the bill, and being uncontradicted becomes evidence, says, that the note of Rector for $1,422, then under the control of the confederate receiver, was expressly required by Feild & Dolly to be paid off as an indispensable requisite to the contract then about to be made, and without which they would not part with their title bond on Douglass; and it was agreed that this should be done: and Feild & Dolly aver in their bill, that they caused Douglass to make to Bernays a deed for the lots. .

Eector assigned Eeild & Dolly’s bond to Bernays, and requested, by written indorsement on the bond, that they should assign Douglass’ bond to Bernays, as the note had been fully discharged and paid by Eutherford, the confederate receiver; in accordance with which request, Eeild & Dolly assigned Douglass’ bond for title to said Bernays, (in the language of the assignment) “ with all and singular the rights and privileges we hold therein.” These terms, in any fair interpretation, embrace all interests, all rights, and could scarcely have been more explicit, if in express language they had said “rights of lien.” Eeild & Dolly, at this time, had no interest in the note; they had transferred it to nonresidents, who could scarcely, in view of then existing circumstances, have had any knowledge of what was transpiring within the confederate lines. Eector was interested in making this payment in depreciated confederate currency. Eeild & Dolly were interested in being relieved from their responsibility as indorsers. All of these acts tended to give assurance to Bernays, to consummate his purchase of the lots, and to pay the Eector notes to Douglass in order to get, as he supposed, a clear title, at least so far as related to Eeild & Dolly; who, not only assigned to Bernays their bond for title, which in effect entitled him to all the rights held by Eeild & Dolly under it, but also in express terms they assigned all the rights and privileges which they had acquired under the bond.

These several acts, we think, were amply sufficient to induce Bernays to pay off the incumbrance created by Eector’s notes to Douglass for the purchase money, and accept the title from Douglass, which otherwise he would not have done; and when such is the ease, the party inducing such contract is estopped from setting up any claim then existing against it, under the rule in equitable estoppels, which is, that “ where one by word or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous conduct, the former is concluded from averring against the latter a different state of things as existing at the same time." 1 Spear’s Equity, 550; Prather v. Frazier, 11 Ark., 249.

The sale, as held in Kelly v. Payne, 18 Ark., above referred to with approval, rests upon the assumption that a re-assignment of the debt to the vendor unites in him the debt and the security for its payment and is inapplicable in this case, because before the time of the re-assignment of the note, Eeild & Dolly had parted with their security for payment by assignment to Bernays, and a deed had been made to him by Douglass to whom the bond was delivered and in effect canceled. It may have been, and probably is, true that all of the parties acted under the belief that the note of $1,422 was paid. Such, however, was not the effect of the payment to Butherford, the confederate states receiver, and ignorance of the law, under the state of case here existing, will not prevent an equitable estoppel. Tolen v. Nelson, 27 Barbour, 505.

Thus considering the question of lien, we must hold that there exists none which can be asserted as against the lots so purchased by Bernays, and that the court below erred in rendering a decree in favor of Eeild & Dolly for the sum paid by them to Benedict, Hall & Co., and charging the lots conveyed to Bernays with the payment thereof.

Bector, who was a defendant in the original bill, filed his cross bill against Eeild & Dolly and Bernays. And Bernays also filed a cross bill against Bector; both of which were dismissed with costs upon final decree.

Bector, in his cross bill, sets forth no facts upon which he could claim the interposition of a court of chancery. He seeks to enjoin several notes executed by him to Douglass, and which were paid for and assigned by Douglas to Bernays, who had a clear right to an action at law against Rector, who ■should have made his defense at law, or have averred such facts as showed he had a defense which he could only assert in a court of equity, which he failed to do.

Bernays had obtained a judgment at law against Rector, on the notes assigned to him by Douglass, and clearly had no right to further redress. It appears that his cross bill was ■dismissed, and we think properly. But upon what ground, after having dismissed both cross bills, the court proceeded to render a decree perpetually injoining Bernays’ judgment at law, we are at a loss to conceive. The decree perpetuating the injunction must be reversed.

Eeild & Dolly’s right to equitable relief was based upon their right of lien upon the land which they had sold to Rector, and we have held that they had parted with their lien by the transfer of Douglass’ bond to Bernays, and were estopped from asserting the lien. Thei-r right to a decree in equity must fail. Whatever rights they may have acquired by force of the reassignment of Rector’s note to them by Benedict, Hall & Co., are clearly at law.

Let the decree dismissing the cross bills of Bernays and Rector be affirmed, and a decree rendered reversing that part of the decree which injoins Bernays’ judgment against Rector, and a decree dismissing Eeild & Dolly’s bill be rendered in this court, with costs.


author: Harrison, J.

text:
    McPherson vs. The State.
    1. New Trial: On the ground of surprise.

    An application for a new trial, on tlie ground of surprise, must show by whom the facts tbe party expected to prove can be established; that they are material, and must be accompanied by the affidavits of the witnesses, when they and the facts were known to the party and he neglected to have them summoned or called.

      2. Instructions.
    If an instruction, on a trial for murder, contained a fair exposition of the law, it will not be held objectionable because the court used the term “ murder ” in referring to the killing.
    3. Evidence : When threats inadmissible.

    Threats not shown to have been communicated to the accused are in» admissible in evidence.
    4. Verdict: When responsive to the indictment.

    An indictment for murder charges all the lower grades of felonious homicide, and a verdict of manslaughter is responsive to it.
    8. Criminad Law: Self Defense.
    In order to justify the taking of life in self defense, the party must employ all means within his power, and consistent with his safety, to avoid the danger and avert the necessity.
    6. — Change of venue.

    Ch. 53, Gould's Dig., providing for a change of venue in criminali causes, was not repealed by the code, and is still in force.
    APPEAL from Washington Circuit Court.
    Hob. E. D. Ham, Circuit Judge.

      J. D. Walker, for appellant.

      S. P. Hughes, Attorney Ueneral, contra.

   Harrison, J.

The appellant was indicted at the March term, 1872, of the circuit court of Benton county for the murder of Ephraim M. Thomason. The venue was changed, upon his application, to Washington county, in the circuit court of which county, at the September term, 1872, he was tried and found guilty of manslaughter, and his term of imprisonment in the penitentiary fixed by the jury at threp years. He applied for a new trial, and also moved in arrest, of judgment; and both motions being overruled, he prayed and obtained an appeal to this court.

The grounds alleged in the motion for a new trial were:

1. That he was surprised by the testimony of John Brown, Lee Thomason and Manning Richardson, witnesses, introduced by him. That the said Brown, previously to the trial, informed him and his counsel that he would testify, that the first he saw of the difficulty between the defendant and the deceased was, they were fighting before the store of the deceased ; that the defendant got loose from the deceased, when the deceased threw and knocked him down with a weight and jumped on and beat him on both sides of the head and face, and that some person then pulled deceased off, when he (Brown) went into Herd’s store and saw no more of it; but when called as a witness, he testified that after the defendant got loose from the deceased, he run and fell; that he did not see the deceased knock him down with a weight, and that when deceased was pulled off, the defendant ran ten or fifteen steps and stopped, stooped down and pulled a pistol from his boot leg, rose up and fired at deceased; and also that he saw the defendant, during the fight, twice strike the deceased.

That the said Thomason also, before the trial, informed the defendant and his counsel that he saw the deceased, at the commencement of the difficulty, collar the defendant first, and would so testify; but when' called, he testified that the deceased did not collar the defendant first, but that each, at the same timé, collared the other; and also, that the defendant, as he was leaving the door, tried to get his pistol out of his boot leg — a fact not mentioned by him when telling defendant and his counsel what he saw and knew of the difficulty.

And the said Richardson informed them, that he would testify, that a few minutes before the difficulty, he was in the saloon of the defendant, engaged with the defendant and Clem Thomason, the brother of the deceased, taking an invoice of groceries, when the deceased came in angry, and said in an angry manner, that “ if he had anything to give away, he would give it; that no man could run over him that way but when called, testified that he had no distinct recollection of such a remark, and only remembered that the deceased said, “if he had anything to give away, he would give it,” or words to that effect, and, wholly denied the other fact he said he would swear.

The defendant, in his affidavit in support of his motion, says: That relying on these witnesses to prove the facts they said they would, he had not summónéd other witnesses by whom he could have proved them. Who those other witnesses were, he does not, however, say, and the omission to name them is alone sufficient to justify the court in refusing a new trial on the ground of surprise. For, if named, it might have been shown that they were present during the trial, and could have been introduced; or their affidavits denying that they could give such testimony might have been obtained by the state and read upon the hearing of the motion.

It is a rule that a new trial will not be granted on the ground of newly discovered evidence, unless the application therefor is accompanied by the affidavit of the persons by whom it is alleged the new facts can be proven, and the rule or the requirement will extend to and apply with equal if not more force to a case like the present, where both the facts and the witnesses, who could prove them, are known to the party, but he has neglected to have the witnesses summoned or called.

But the testimony of these witnesses called and accredited by him was corroborated by a number of other witnesses; yet, if their testimony had been such as he says he expected and as he alleges the fact to be, we cannot conceive how it could have changed the result of the trial.

2. That relying on the said Brown, Thomason and Richardson to testify as they had said, and as he supposed they would, he went to trial without the testimony of Jesse 0. Seburn, who was under recognizance to attend to testify in his behalf, but who was absent from the court, by whom he would have proved that the deceased, on the same day of the killing, and only a few hours before it occurred, threatened the defendant’s life.

It was not alleged that the threat had been communicated to the defendant before he killed the deceased; nor is there any evidence by which it might appear that the defendant, in taking the life of the deceased, acted under a reasonable apprehension of danger to his own life, or fear of receiving great bodily injury; and such threat, if the same had been communicated to him, could have afforded no justification or excuse for the killing of the deceased.

8. That the verdict was contrary to the evidence.

The deceased was killed at Springtown, in Benton county, on the 22d day of February, 1872, by the defendant, under the following circumstances: The defendant went into the store of the deceased to settle a small account the deceased had against him, which having paid, he remarked to the deceased: “Is this all right? ” To which .the deceased replied.: “ No, you owe me fifty cents for a half day’s threshing, which I did for you two years ago.” The defendant said, “how comes that? I hired hands at that time at seventy-five cents a day.” The deceased said, “you can’t hire me at that.” The defendant then said he was to pay that in work, to which the deceased replied : “Well, you can pay it in work.” The defendant then asked, “ what do you want done ? ” The deceased said that he had no work but his wood pile to chop up, which defendant might do; to which defendant replied, he was not round cutting wood. The defendant started to go out, when deceased said to him: “You have got it to pay before you leave town; ” and, putting a weight in his pocket, came from behind his counter and followed the defendant to the door. The defendant, when he came out, took up a stick about as large and as long as a chair post, and stood at the door until the deceased came to it, when he seized the deceased by the collar, as most of the witnesses say, or, perhaps, as one of them says, they simultaneously seized each other, and a struggle ensued, in which the deceased kicked the defendant several times, and the defendant struck him twice with his fist and attempted to strike him - with the stick. The defendant, after it was over, having dropped the stick in the struggle, started off, but stooping and seemingly endeavoring to get something out of his boot, when the deceased threw the weight and struck him on the back, and the defendant trying to get the weight, the deceased followed up and, another scuffle taking place over the weight, the deceased pushed or threw the defendant down ánd jumped on and beat him on the face and head, causing the blood to flow. The defendant called to persons standing by to take him away, which was done, when the deceased said he was done and would not hurt him any more. The defendant again started to leave; but when he had gone eight or ten steps he stooped, and,- drawing a pistol, a six shooter, from his bootleg, cried out, “get out of the way, I’ll be d — d if I don’t kill.” The deceased, who had from the time he was pulled off the defendant, ceased all hostile demonstrations, and was then fifteen or twenty steps from the defendant, said : “ Don’t, shoot» judge ; I don't want any more fuss.” The defendant immediately fired at the deceased; when the deceased, drawing a derringer pistol, the barrel of which was only two or three inches in length, from his pocket, in turn, fired at the defendant, who, about the same time, perhaps one or two seconds after, fired again at the defendant. After-the deceased shot, he immediately started to go into Herd’s store, when the defendant fired a third and fourth time at him. He was hit, •■and shot in the left thigh, by the defendant’s second or third ■shot, and died from the wound in fifteen or twenty minutes.

Not the least necessity from urgent or pressing danger to the defendant, for taking the life of the deceased, appears. ■On the contrary, the evidence shows that the deceased, at the time the defendant drew his pistol and made the assault upon him with it, had withdrawn from the combat, and ceased all efforts to continue the fight; and the defendant, if he had wished, might have gone his way without hindrance or further harm ; but with full knowledge that the deceased had ceased fighting, he voluntarily renewed the fight, and by his language and the use of a dangerous and deadly weapon, evi■denced his purpose and intention to kill the deceased.

The verdict was, therefore, fully warranted by the evidence.

4. That the verdict was contrary to law and the instructions •of the court.

From the above statement of the evidence, and what we have said concerning it, there is no occasion for any remarks upon this ground of the motion.

5. That the court erred in its instructions to the jury.

The court gave the jury quite a lengthy charge, applicable to the evidence before them, defining the several grades of homicide, and distinguishing with much particularity between murder, manslaughter, and justifiable or excusable homicide. No part of said charge was specially excepted to, but the whole as an entirety. The counsel for the appellant, however, •only insists here that the following remark was objectionable, as calculated to prejudice the minds of the jury against the accused: “I charge you that the state must prove all the material allegations in the indictment beyond a reasonable •doubt: 1st. That said murder was committed in Benton •county, state of Arkansas. 2d. That said offense was committed some time prior to the finding of said indictment. 3d. That said defendant did willfulty, feloniously, and with malice aforethought, kill and murder the said Ephraim M. Thomason, by shooting him with a pistol.”

He contends that the court, by saying said murder,” virtually assumed the defendant to be guilty, -and thereby prejudiced the jury against him. But such an objection is manifestly without foundation, for in the same sentence they were instructed that the state should prove that the defendant did willfully, feloniously and of his malice aforethought,, kill and murder the deceased; and in another part of the charge they were instructed not to find him guilty of any offense, unless upon conclusive proof thereof, .and beyond a reasonable doubt; and that the remark had no such prejudicial influence upon the jury is evident by their finding him not guilty of murder, but of manslaughter only.

We find no objection to the charge of the court; it fairly and correctly stated the law applicable to the evidence in the case.

6. That the court improperly excluded from the jury the evidence of William L. Gibson, a witness produced by the defendant.

The evidence proposed to be given by this witness was : that he heard the deceased say, at Springtown, in Benton county, within a week of the time he was killed, that he intended to kill the defendant, and at the time showed witness a derringer pistol, with which he said he intended to do the “ work.” It was not attempted or offered to be proven, that this threat had been communicated to the defendant before the killing took place, and even if it had, we are at a loss to see how such evidence, under the circumstances attending the killing, could have affected or changed the result of the trial.

There was, therefore, no error in its exclusion.

7. That the verdict was not responsive to the -issue.

An indictment ’for murder charges, also, all the lower grades of felonious homicide; and a conviction for manslaughter may be had upon it. Gantt’s Dig., secs. 1961, 1962; 1 Bish. Crim. Law, sec. 807; 1 Bish. Crim. Process, sec. 835; 1 Russ on Crimes, 655; 1 Hale P. C., 449. Finding a verdict of manslaughter upon an indictment for murder, is equivalent to an acquittal of the charge of murder. Johnson v. The State, ante, p. 31.

8. That the court refused to give the following instruction to the jury.

1. “ If the jury believe from the evidence that the acts and conduct of the deceased, upon the occasion of the killing, and immediately preceding it, were of such a character as to furnish the defendant reasonable ground to believe that the deceased was then and there about to take the life of the defendant, or to inflict on him great bodily harm, and that the defendant acted on them and such belief founded thereon, and for the purpose of protecting himself, shot and killed the deceased, they should find the defendant not guilty.

2. “ If the actions of the deceased immediately before the killing were of such a character as to warrant the defendant in coming to the conclusion that his life was in danger, or that, he was in danger of great bodily harm at the hands of the deceased, and that such danger was imminent, the defendant had a right to act on such apprehended danger, and that it is not material whether the deceased then and there intended to kill the defendant or not, or whether he intended to do him such great bodily harm, if the act of the deceased, and his conduct, then and there, furnished to the defendant reasonable grounds to believe that the deceased so intended, and that the danger was imminent."

These instructions are predicated upon the principle of natural law, .that a person assaulted may take the life of his assailant, when necessary for the preservation of his own life, or to prevent his receiving great bodily injury; but they do not truly present the conditions and circumstances under which the right exists, or may be exercised. A necessity for taking the life of the other is the controlling circumstance which justifies or excuses the act, and before resorting to such extremity, the party must employ all means within his power, consistent with his safety, to avoid the danger and avert such necessity. We would not, however, be understood as saying that he must have used all possible means, for in some cases, the assault may be of so fierce and violent a character, that there would be as much or more danger in attempting to escape as there would be to stand and repel it; but he must seek such as his safety would reasonably dictate.

The statute, sec. 1285, Gantt’s Dig., which is but an enunciation of the doctrine of the common law, says : “In ordinary cases of one person killing another in self defense, it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given.”

In the proposed instructions, the duty of tbe defendant to endeavor to avoid the supposed danger before taking the life of the deceased is not stated, but the existence of the danger alone is declared a sufficient justification of the killing. The further objection to them may be mentioned, that the evidence was not such as to conduce to, or afford the defendant a reasonable ground for the belief that the deceased, at the time the defendant made the assault on him with his pistol, was intending any further assault on him, or that he was in any danger. The fight was over; the deceased had no weapon drawn, nor had he exhibited any, except the weight he threw, and all hostile demonstrations on his part had ceased, and the defendant himself had started to leave, and had walked away some eight or ten steps.

The court very properly declined to give the instructions,, and it did not err in overruling the motion for a new trial.

The grounds of the motion in arrest of judgment were:

First. That no public offense is charged in the indictment.

Second. That the indictment does not charge the defendant with the offense of which he was found guilty.

Third. That he had never been legally arraigned.

Fourth. That the court had no jurisdiction of the case; and

Fifth. That the verdict was special and did not state sufficient facts upon which judgment might be rendered.

The indictment, which is in the form prescribed in sec. 1797 of Gantt’s Digest (section 121 of the criminal code), charges the defendant with the crime of murder in the first degree, and alleges it to have been committed as follows: That “ the said James BE. McPherson, on the 20th day of February, A. D. 1872, in the county of Benton aforesaid, did feloniously, and with malice aforethought, and with premidi-tation, and, by lying in wait, kill and murder Ephraim M. Thomason, by then and there shooting him with a pistol, then and there loaded and charged with gunpowder and six leaden bullets, against the peace and dignity of the state of Arkansas.”

This indictment is similar in averments and allegations to that in the case of Dixon v. The State, ante, p. 165, and we think, as we held in that case, thatrit contains every necessary and material averment to charge the crime of murder, and with sufficient certainty and particularity, states the manner and means of its perpetration, to enable the defendant to know with what he is charged, and to make his defense. Gantt’s Digest, secs. 1781, 1782, 1796.

We have, when considering the seventh ground of the motion for a new trial, fully answered the objection next raised, that the defendant is not charged in the indictment with the offense of which he was convicted, and shown that a person indicted for murder may be convicted of manslaughter.

The third ground assigned seems to have been inadvertently inserted, as the record contains a formal entry of the arraignment, and the defendant’s plea of not guilty thereupon, previous to the trial.

No reason is shown, or indicated in the motion in arrest, for the fourth ground assigned therein, which is, that the circuit court of Washington county had no jurisdiction of the case, and none has been offered or suggested by the defendant’s counsel here, and we are, therefore, left to conjecture upon what the objection is based. We can conceive of no other foundation for it than a question as to the authority of the circuit court of Benton county, in which the indictment was found, to change the venue and transfer the cause to the circuit court of Washington, and we will proceed to consider that question.

The code of criminal practice, previous to the amendment thereof by the act of 1873, contained no provision for a change of venue; but, by section 196 (section 1898 Gantt’s Digest), provided that “where the judge.is satisfied, after having made a fair effort in good faith for that purpose, that from any cause it will be impracticable to obtain a jury free of bias in the county wherein the prosecution is pending, he shall be authorized to order the sheriff to summon a sufficient number of qualified jurors from some adjoining county in which he shall believe there is the greatest probability of obtaining impartial jurors, and from these so summoned the jury may be formed.”

If the provision in chapter 52 of Gould’s Digest, by which, a change of venue was allowed the defendant, when the minds of the inhabitants of the county in which the cause is pending are so prejudiced against him that a fair and impartial trial cannot be had therein, were repealed by the code, then the circuit court of Washington count}'- did not have jurisdiction of the case. There was no express repeal; and, if repealed at all, it must have been by a necessary implication.

“A statute,” says Dwarris, “can be repealed only by an express provision of a subsequent law, or by necessary implication. To repeal a statute by implication, there must be such a positive repugnancy between the provisions of the new law and the old, that they cannot stand together or be consistently recognized.” Dwar. Stat., 155. And Sedgwick says: “A general statute, without negative words, will not repeal the particular provisions of the former, unless the two acts are irreconcilably inconsistent.” Sedg. Stat. Law.

There is, however, another rule of construction sometimes employed, which we should perhaps notice, which is, that where the legislature takes up a whole subject anew, covering the whole ground, revising the whole subject matter of a former statute, and evidently intending to enact a substitute, the old statute is repealed, although the new statute contains no express words to that effect. The code, however, does not attempt to provide for and regulate everything which relates to, or every proceeding which may be had in, the administration of tbe criminal law, and it expressly repeals the former laws on the subject of criminal procedure, only so far as the same were inconsistent with its provisions. Section 412.

The rule last referred to does not, therefore, have any application to the question we are considering, and it is clear that the statute in Gould’s Digest authorizing a change of venue, ior the cause stated therein, was not repealed by the code, either by a direct implication from said section 196, or the failure or omission to provide by it. for such change, and that the circuit court of Washington county had jurisdiction of the cause.

The remaining objection, that the verdict is special and does not state sufficient facts upon which judgment might be rendered, is not true in point of fact. The verdict was not-special, but general and directly responsive to the indictment. And section 1961, Gaunt’s Digest, expressly provides that, upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment. The verdict, as recorded, is as follows: “W.e, the jury, find the defendant James H. McPherson guilty of manslaughter, and assess his punishment at three years in the penitentiary.” This is a verdict of voluntary manslaughter, as the imprisonment for involuntary manslaughter is for a period not exceeding twelve months,.according to the provisions of section 1962, id., which says that, “where the punishment is the same in kind, the amount that may be inflicted fixes the de* gree.”

Finding no error, the judgment of the court below is affirmed.


author: Williams, Sp. J.

text:
    Randolph, Adm’r, vs. Ward and others.
    1. Practice in Circuit Courts : On, appeals from, the probate court.

    ' Under the provisions of the code, as amended in 1871, causes taken to the circuit court on appeal from the prohate court should he tried üe novo.

    3. Claims against Estates: Exhibition of.

    The failure to furnish an administrator with a copy of a claim exhibited is matter in abatement. And where no copy is demanded, or the refusal to act on the claim is not expressly based on such omission in time for it to have been remedied, this court has never encouraged such objections.
    8.— Waiver of notice by administrator.

    When a claim is presented to an administrator within the time required by law, and a waiver of notice indorsed thereon, it is tantamount to a rejection and reference of it to the probate court.
    4. Statute oe Nonclaims: What will arrest.

    The exhibition of a claim properly authenticated to an administrator, arrests the statute of nonclaims; and the law does not limit the-time of presentment to the probate court for classification.
    5. Limitation on Judgment Liens : Suspended by the wour.

    The limitation of three years on judgment liens was suspended during the war.
    APPEAL from Desha Circuit, Court.
    Hon. M. L. Stephenson, Circuit Judge.

      English and J. M. Clayton, for appellant.
   Williams, Sp. J.

In this case the counsel of Randolph concludes his argument with this statement:

“ The fact is, that the record in this case presents a series of errors and blunders from beginning to end; and it is respectfully submitted, that for the errors noticed and others apparent in the record, the judgment of the circuit court should bpreversed.”

We fully agree with the facts stated by the learned counsel,, but dissent from his conclusions. This transcript is not creditable to the counsel engaged on either side; and the clerk who prepared it has violated all rules of this court and of chronological order in making it out. In one entry he w-ill have Randolph v. Ward, Saunders & Hunt, in the next the title is reversed. In 1871, Hunt is reported dead; in 1872, we find him on the record, making motions. And those entries which should precede the record entries of the final trial, and the order granting the appeal to this court, are put last in this ill arranged transcript. We discover, however, from this confused mass, that some one on the part of Saunders, at the conclusion of the case, by nunc pro tunc orders, has corrected serious mistakes, which seems to be regular; and indulging the usual presumptions which we do in favor of the court below, we find the blunders in the record, both of the probate court and of the circuit court, corrected.

We have been invited to go beyond the action of the circuit court and review the action of the probate court. As the code of practice, Civil Code, sec. 21, and amendment of 1871 to sec. 791, tit. XYI, ch. IY, requires a trial de novo in the circuit court, we shall not look beyond its action, except to find whether there was jurisdiction over the case and a proper appeal. That we find.

The bill of exceptions, so called, as presented to us in this confused transcript, states that a certain paper, or deposition, or other documentary evidence was read; and instead of inserting the paper as a part of the bill of exceptions at the point where it belongs, once for all, in the transcript, the clerk writes: “See page — ,” leaving us to guess both the paper and the matter he refers to, and also to go back or forward of this so called bill of exceptions, for the blank page of reference. As parties appealing to this court are expected to present their cases properly, we might feel disposed, were we inclined to visit the short comings of a clerk on either party, to impose the penalty upon him who asks relief at our hands, and require that he should present a case here in proper shape for hearing; and the slovenly, unlawyer-like manner of getting up the bill of exceptions and leaving loose papers unmarked and unidentified to be copied and referred to in this way, deserves a severe reprimand, and frequently repeated would necessitate an order, disobedience to which would be a total disregard of all such unidentified papers, and conse-. quently of the bill of exceptions.

From this record, assisted by a very clear, concise and lucid statement of the finding of facts by the court below, which casts light upon and brings order out of this chaos, we, are able to state the following as the substantial facts of the case;

That on the 27th of November, 1860, Ward, Saunders & Hunt recovered judgment in the Desha circuit court against George I. Graddy, for the sum of twelve thousand, three hundred and eighty-two 80-100 dollars debt, and eight hundred and fifty-three dollars damages. On the 3d day of January, 1861, a writ of execution was issued on this judgment and was levied by the sheriff of Desha county on certain personal property, and Graddy and certain sureties gave a delivery bond, in the usual form prevalent at that date, conditioned to deliver the property at the court house door of said county on the 27th day of May, 1861, and conditioned, upon breach, that said bond should have the force and effect of a judgment. The sheriff, on the 28th day of May, 1861, returned the bond, with the execution, forfeited, and the execution unsatisfied. Graddy died on the 14th day of May, 1864. Mary B. Graddy was appointed his administratrix by the probate court of Desha county, but the date of her letters is not proven. A certified transcript of the original judgment, execution, delivery bond and return of the sheriff, authenticated as a claim against the estate, by the affidavit of Hunt, as one of the surviving partners of Ward, Saunders & Hunt, on the 11th of May, 1866. This claim is marked, filed April 1, 1870, and was indorsed on 25th of April, 1871, as examined, allowed and classed in class 3, by the probate judge. On the 30th day of September, 1871, there was an order made, reciting that the order made on 26th of April, 1871, classing the claim, had not been entered, and classed the claim in the name of Hunt, as surviving partner in said order, nunc pro tunc. It was the same judgment which had been so indorsed by the county .judge on the 25th of April, 1871, which was evidently referred to in this nunc pro tunc order. The order classed it in the 8d class, as the indorsement of the judge had done, which indorsement was a direction to the clerk to enter the proper order on'the record, and was a data by which the record entry could be afterwards corrected in favor of whoever might be the legal owner of the claim. We are not disposed to encourage any great degree of technicality in the mode of procedure in the probate court. The law intends it to be simple enough to be within the comprehension of any one of ordinary capacity. This indorsement of the claim by the probate judge was a data from which a correct entry could be taken at any time. Appellant, as administrator de bonis non of Graddy, appeared and excepted to the judgment of the court placing the claim in the 3d class, and appealed to the circuit court.

There was ho bill of exceptions setting out the evidence in the probate court, as under the former law; and the circuit court proceeded to try the case de novo, without finding error. We think this was right, and such has been the practice in the circuit court, we are informed, ever since the passage of the amended section 791 of Civil Code in 1871, although there was some diversity before, owing to the obscurity of sec. 21, Civil Code, as to the practice on appeals.

The provisions of section 21, Civil Code, as amended in 1871, above referred to, changes' the former practice on appeals from the probate court from that which prevailed under the provisions of Gould’s Dig., ch. 4, secs. 197 to 203.

On appeal in the circuit court, Randolph, for the first time gives specific objections to the allowance of the claim. Among other grounds are these: ■

That no copy of the claim was rendered Mrs. Graddy when it was exhibited. This was matter in abatement, and was interposed too late, and not in proper manner before the circuit court; and where the administratrix waived notice, it was tantamount to a rejection of the claim, and a reference of the whole matter to the probate court, and where no copy is demanded, or the non-action or refusal to act is not placed expressly on that ground, at a time when it can be remedied, this court has never encouraged this objection. Borden v. Fowler, 14 Ark., 473 ; Bellows v. Cheek, 20 id., 424.

That no notice was given to Mrs. Graddy, or to Randolph, the administrator de bonis non, of the application to the probate court to class. The proof shows very clearly that the claim was presented to Mrs. Graddy, while she was administratrix, and within one year after the date of her letters, and was indorsed, notice waived, which referred to this notice, which may be waived, and was tantamount to a rejection of the claim, and a reference of it to the probate court. And the claim having been properly authenticated and exhibited, it was, under sec. 112 of ch. 4 of Gould’s Dig., as much her duty to keep a list, allow, class and return a list of the claims exhibited to her, to the probate court, as it was the duty of the claimant, under sec. 113. Clark v. Shelton, 16 Ark., 474.

That more than two years had elapsed from the alleged presentation of said claim to Mrs. Graddy, before the claim was presented to the probate court. The exhibition of the claim properly authenticated, arrests the statute of nonclaim. The law does not limit the time of presentation to the probate court for classification. As both parties have the right to invoke the judgment of the court; one, under section 112; the other, under sec. 113 of ch. 4, Gould’s Dig., there can be no, hardship. At any rate, this court has decided the question in McCoy v. Jackson Co., 21 Ark., 474, to the extent of holding that when a claim is properly exhibited to the administrator, the claimant does not lose his right by failing to present it to the probate court.

All the objections interposed by Randolph are either proven to be untrue, or are frivolous, and not sustained by the law; unless it be the objection No. 4; that the claim was based upon a forfeited delivery bond, returned forfeited on the 28th of May, 1861; as to which we will speak presently.

After the claim was in the circuit court, the death of Hunt was suggested, in 1871, and a diminution of the record was suggested, and a certiorari ordered to the probate court; and there was, in that court, another order nunc pro tunc, correcting the one made on the 80th of September, 1871, which new order made the allowance in favor of Saunders, as surviving partner, in favor of Hunt. To this appellant excepted, and here objects, that the amended record of the probate court was not brought up to the circuit court, on return to the writ of certiorati. It is true, that no formal writ of certiorari is copied in the transcript. Rut the record states that the clerk of the probate court made the following return to the writ of certiorari. Then follows the amended probate court record. If we •had visited rigid technical rules on appellant, we could have •cut this investigation very short, but finding so many clerical shortcomings on either side, we have patiently examined, and ■given each of the parties the benefit of reasonable intendments, and we find nothing in this objection.

The only remaining point in the case strikes at the very foundation of the classification. The appellant insists- that as the delivery bond could not have been forfeited until the 27th of May, 1861, at which period there was no sheriff and no court authorized to receive or sell the property or administer the law, and that the declarations of law by the court that tried the case de novo as a jury, given and refused, holding that this delivery bond became a statutory judgment on its forfeiture, which was or could have been a lien on real estate, and should therefore be classed in class three, was erroneous, and cites Penn v. Tollison, 26 Ark., 545; and Thompson v. Mankin, id., 586. If it becomes nec.essary to choose between these rulings of this court and those of the supreme court of the United States, which are directly in their teeth, we should feel inclined to follow those of the government whose sovereignty was defied by secession, and which might be regarded as the best exponents of the law. See Horn v. Lockhart, 17 Wall., 577.

But if we find the judgment right on the whole record, this error, if it be one, will not vitiate it. The original judgment was rendered in 1860, November 27, a complete transcript of which forms a part of the probated claim. The war commenced in less than six months afterward, and was continuing when Graddy died. This suspended the statute of limitation. Metropolitan Bank v. Gordon, 28 Ark., 115; Denckla v. Lyon's Heirs, id., 507; The Protector, 12 Wall., 700; Brown v. Hyatt, 15 id., 177 ; Adgar v. Alston, id., 555.

This suspension .applied as well to the three years limitation on judgment liens as any other, so expressly held in the following case. Bateville Institute v. Kaufman, 18 Wall., 151.

In this last case our own judgment lien statute was held to be prolonged by the war. Were the question before us a new one, we should hesitate to decide that the war extended a right which was given only for a fixed period, and would be inclined to distinguish this from the case involving the statute of limitations. For the statute which makes judgments a lien, gives the right only for three years, while in case of statute of limitations a remedy is taken away upon a contingency, lapse of time. But as such decisions affect title, and as the right to the property involved in that case has been decided by this rule, we think it better to have uniformity between the state and national tribunals on the same question; and while we claim the right, which is conceded, of construing our own laws, yet our convictions would have to be more positive, before we could change the ruling. Besides, this court, in Graddy v. Eddins, 28 Ark., 500, decided that the lien of the judgment was continued for three years exclusive of the period of the war.

The appellant objects to the judgment of the probate court, because, even if Mrs. Graddy did waive notice of the application and refer the whole matter to the probate court, which was the legal effect of the indorsement, yet as the matter was presented during his administration, he should have had notice. Suppose we should admit this. Yet in September, 1871, when the order classifying the claim was really entered, he was present, excepted and appealed.

In the circuit court, the judgment of the probate court was practically set aside, and appellant had a fair trial de novo on the merits ; and the court correctly came- to the same conclusion the probate court did, and rendered the same judgment.

We cannot see where he is prejudiced on the merits of his case. He has certainly had a full hearing upon the merits of his defense, and there is nothing in it.

Finding no error in the record, the judgment of the circuit court of Desha county in this case is affirmed.

Hon. E. H. English did not sit in this case.


text:
    Phillips County vs. Clayton.
    Prosecuting Attorney : When, the county liable for fee of.

    Under the provisions of sec. 1994, Gantt’s Dig., upon the failure of a defendant, against whom judgment is rendered in a criminal proceeding to pay the costs, the county is liable for the prosecuting attorney’s fee.

      APPEAL from Phillips Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.

      Wm. H. H. Clayton, for appellant.

      U. M. Rose, contra.

   Harrison, J.

Appellee, who was prosecuting attorney of the first judicial circuit, filed in the county court of Phillips county, his claim against the county for fees upon convictions for the state in the criminal court of said county, in certaiu cases, in which the same could not be made out of the estate of the defendant, which fees had accrued since the passage of the act of March 27,1871, amending sec. 286 of the code of criminal practice.

The county court refused to allow the claim, and he appealed to the circuit court. In the circuit court he recovered judgment for one hundred and ninety dollars, part of the demand ; from which judgment the county has appealed to this court.

The said section as amended (1994 of Gantt’s Dig.) is as follows:

“In judgments against the defendant, a judgment for costs, in addition to the other punishment, shall be rendered, which shall be taxed by the clerk for the benefit of the officers rendering the services, and in case of failure by the defendant to pay said costs, they shall be paid by the county where the conviction is had.”

It is contended by the appellant that the provisions of this section are not intended to extend and apply to the fees of prosecuting attorneys; because the act of July 23, 1868, by which the fees of officers are fixed, expressly declares that the fees of prosecuting attorneys therein mentioned, except in convictions for murder, shall not be allowed, unless the same shall be made out of the estate of the defendant.

The section, we think, does not admit of such a construction.

There can be no question, for its language was plain and unmistakable, that the section, as it stood before amended, required the judgment to be for all costs, including prosecuting attorney’s fees as well as the fees of the other officers of the court; and the object of the amendment is equally as clear to compel the county now to pay all the costs so adjudged in case of failure by the defendant to pay them.

There is then a manifest and irreconcilable inconsistency and repugnancy in this respect, between the two acts; and such being the case, the act of March 27, 1871, by a necessary implication, repealed so much of the prior act of July 23, 1868, as inhibited the county from paying the fees of prosecuting attorneys.

The judgment of the court below is therefore right, and is affirmed.