author: Walker, J.

text:
    Waggener et al. vs. Lyles et al.
    1. Jurisdiction of probate courts over lost wills.

    Tlie probate court lias no jurisdiction to establish a lost will; and its orde'r establishing and probating the same, and all proceedings had thereunder, are void and may be impeached collaterally.
    2. Estoppel : As to purchaser at a void executor’s sale.

    One who purchases land at a void sale by a person assuming, without authority, to act as executor, and enters and holds possession under the purchase, but not adversely to the heir, is not thereby precluded from resisting the payment of the purchase money.
    3. Vendor and Vendee : Equity of vendee for payments and improvements.

    Where the purchaser in such a case has paid a part of the purchase money, and made valuable improvements, he is entitled to have the same taken into the account and set off against rents and profits; and if any part of the sum paid has been applied to the payment of debts of the estate, he will, to that extent, be subrogated to the rights-of the creditors who were paid out of that fund, and whose claims-have been or may be probated, and allowed and classed against the estate.
    APPEAL from the Crittenden Circuit Court.
    Hon. John E. Bennett, Circuit Judge.

      Randolph and Garland & Nash and Brown, for appellant.

      O. P. Lyles, contra.

   Walker, J.

In the fall of tbe year 1863, Elijah Cheek died, leaving a widow and children, and was possessed of a tract of land in Crittenden county, Arkansas, to which valuable ferry privileges were attached. William E. Cheek, one of his sons, who claimed to be the sole executor of his father’s estate under a will which had been lost, together with the appellant, John H. Waggener and his wife, who was a daughter of the deceased, and several other of the heirs, at the October term 1865, of the Crittenden circuit court, filed their ex parte petition in chancery, in which they averred that Elijah Cheek, in the first of the year 1862, duly executed his last will and testament, in which petitioner, Vm. F. Cheek, was appointed sole executor; that in July, 1862, he'made and published a codicil to said will, and that in the fall of the same year, he also made another codicil; that the original will was placed by the testator in the hands of the executor therein named for safe keeping, and it so remained until after the death of the testator; that the will had been lost from his possession, and that after diligent search he had been unable to find it; that he had found a copy of the will, which was ‘made an exhibit, and which he had proof to establish, concluding with a prayer that proofs might be heard, and the lost will might be established and the codicils probated. At the May term, 1866, the cause was heard upon evidence, without, however, several of the children and grand children of the deceased having-been made parties to the petition, and without notice or appearance on their part. The court, in chancery sitting, ordered and decreed that the lost will be established, and, with the two codicils, be held fully probated, and that a copy of the decree and the original codicils be certified to the probate court, which, however, it appears was not done.

After the petition upon which this decree was rendered was filed, and before the same was heard, or any decree rendered thereon, at the January term, 1866, of the probate court of Crittenden county, "William F. Cheek, with the written consent of part of the heirs of deceased, filed his ex parte petition in said court, in which the same facts were set forth as in his petition in the chancery court, and without having made part of the heirs parties to the petition, and without notice to them or appearance on their part; and thereupon, at the same term of the court, said probate court took jurisdiction of the case, heard the evidence offered to establish the loss of the will and that it and the codicils had been duly executed; and ordered “that a copy of said last will be declared probated in the place and stead of, and •as though it was the original, and that the codicils be also declared probated.” And whereupon letters testamentary were granted by said court to William E. Cheek as sole •executor of said estate.

It appears that, at a subsequent term of the px-obate court, an order was made authorizing and empowering the executor to sell the real estate upon specified terms, and at a particular place, which was not-observed by the executor, who, without reference to the order of court, and under the authority supposed to be confex-red by the will, advertised and sold the lands and ferry privileges at public sale to the appellant, Waggener, for the price of $75,000; of which Waggener paid $10,000 cash in hand, and executed his notes on time to William E. Cheek, as such executor, for the balance of the purchase money; whereupon William E. Cheek, as executor, executed and delivered to Waggener a deed for said land and ferry privileges. The deed puiported to convey the entire interest and estate of Elijah Cheek, deceased, in the lands, but without covenants of warranty of title. To secure the payment of the notes so given, Waggener conveyed the land and privileges so purchased, together with a tavern house and lot, a steamboat and one-half of the ferry privileges held by him independently of such purchase, in trust, to defendant Lyles, conditioned that if Waggener failed to pay the notes as they became due, the trustee should sell the property to pay the same. Waggener failed to pay, and the trustee' advertised the property for sale. To enjoin which sale and for other relief, Waggener and wife (who was a daughter and heir of Elijah Cheek) filed his bill in the Crittenden circuit court against Lyles, the trustee, and all of the children and heirs-at law of Elijah Cheek. The object and scope of the bill was to set aside the sale of the lands and the ferry privileges, sold by William F. Cheek, as executor, to complainant, and to enjoin the collection of the notes executed for the residue of the purchase money. And for specific grounds for relief, it is alleged that the probate court had no jurisdiction over the subject matter of establishing lost wills; that the orders of court establishing and probating the same were void, and not alone for want of jurisdiction of the subject matter; but, also, because the proceeding was ex parte, and without notice to or the appearance of part of the heirs of deceased; and not alone for the reason that the will had never been established or pro<bated, or that there was no legal executor, but that if in fact the will had been probated by a court of competent jurisdiction, still the will itself conferred upon the executor no power to sell the real estate.

As the questiomof the jurisdiction and power of the probate court to set up and establish a will (if well taken) must necessarily dispose of several others dependent upon it, we will without further reference to the pleading, or after-action of the court below, enter upon its consideration.

The constitution confers upon the legislature the power to declare what shall be the proper subjects of jurisdiction of the probate courts; and the legislature, sec. 10, c-h. 180, Grould’s Dig., has provided “ that courts of probate, or the clerks thereof in vacation, subject to the rejection of the court,, shall have the power to take the probate of wills.” The nature of the act to be performed under this section is ministerial rather than judicial, and necessarily presupposes the existence of a will presented for proof of its execution. No reference is made therein to lost wills, or the manner of proceeding to set up or establish them; but in an after section such power is expressly conferred upon courts of chancery in the following language: “Whenever any will shall be lost or destroyed by accident or design, the court of chancery shall have the same power to take proof of the establishment of such will, and to establish the same, as in cases of lost deeds.” The power of a court of chancery to establish lost deeds is one long recognized, and the practice under it requires that all those interested in the deed should be made parties, and have notice of such proceeding. Story’s Eq. PL, p. 86. Section 49, ch. 180, Gould’s Dig., provides that: “Where a decree in chancery is rendered establishing the will, a copy of the decree shall be recorded in the probate court before which the will might have been probated, if it had not been lost or destroyed, and that letters testamentary or of administration with the will annexed shall be issued by such clerk in the same manner as upon a will duly proven before him.” Thus, the filing of the decree of the chancery court, when recorded in the court of probate, confers upon the clerk the power to grant letters executory or of administration with the will annexed, upon such will so established and probated in the chancery court; and after which (but not before), the probate court acquires the same jurisdiction over the administration and settlement of the estate, as it would have had if the original will had not been lost, but had been probated by the clerk or court, and letters testamentary granted therein. Without any consideration of the question as to whether there was or not a valid decree rendered in the chancery court; because, if valid, it was rendered after the probate court had assumed to take jurisdiction of and decide upon the proof necessary to establish the lost will, and of course before any copy was filed, we must hdld that the probate court had no jurisdiction of the subject matter, and that the orders establishing and probating the will are void, and the letters testamentary granted to William E. Cheek conferred upon him no power to act as executor, or to sell the real estate of Elijah Cheek; that complainant Waggener acquired no title by his supposed purchase.

It is contended for the defense that this is a collateral proceeding in which the validity of the proceedings in the probate court cannot be considered or assailed. We do not so consider it. The objection to'the validity of the proceedings of the probate court are not that the court has acted in excess of its powers, or that some act necessary to perfect its jurisdiction has not been complied with ; but that the subject matter submitted to it was one of which it could take no j urisdiction whatever; and when such is the case, whether in collateral or direct proceedings, the fact being apparent upon the record, such orders and proceedings are treated as nullities. This question may be considered as definitely settled by our own and most of the American courts, and in some instances in cases much resembling this.

In the case of Sigourney v. Sibley, 21 Pick., 106, the supreme court of Massachusetts, by Shaw, C. J., who delivered the opinion of the court, said : “ It is a general rule that want of jurisdiction cannot be aided by waiver of exceptions, or even by express consent. If it is true in ordinary cases, it is so a fortiori in cases of probate decrees granting administration, which bind not only those who happen to be before the court as litigant parties, but all those who, as creditors, heir or otherwise, may be interested.” In the case of Gaines v. New Orleans, 6 Wall., 642, title was set up under Relf and Chew, executors, in regard to which the supreme court said: '“Butthese letters cannot avail the defendant, because Relf and Chew, as executors under the will, had no authority to make the sale, and could therefore pass no title to the purchaser. If a court act without jurisdiction, the proceeding is void, and this want of jurisdiction may always be set up against a judgment when sought to be enforced, or when any benefit is claimed under it.”

It is objected in defense, that as Waggener is still in possession of the land upon which he entered under his purchase, he cannot, thus holding, resist the payment of the purchase money upon the ground of defect of title. This objection, though sound in many cases, does not apply in a case like the present. In this case Waggener has acquired no title whatever — has no covenants to which he may resort for redress.

It is not necessary to consider the validity of the decree in chancery, which set up and established the validity of the will. Because, whether valid or invalid, it in no wise formed the basis of any action of the probate court; and because by an agreement of record, signed by the counsel of both parties, it is admitted and agreed that a suit in chancery has been brought by Stokes and wife (the wife being one of the children of deceased) against the other heirs, to set aside the decree in chancery in the Crittenden circuit court, and as that case may come before us upon a direct issue as to the validity of the will, in which all of the parties in interest will be before the court, we prefer to express no opinion upon that question. Nor is it necessary to express any opinion as to the proper construction of the several clauses of the will, or what power is conferred under it, as no will, as we have held, has been probated and made the basis of action of an executor under it

Having disposed of the questions of law necessary to a proper disposition of the case, it becomes necessary to look to the situation of the parties in interest, that we may direct the further action of the court below in the settlement of the equities which have arisen since the sale to Waggener.

The widow and all of the heirs and devisees under the supposed will were made parties by Waggener and wife, as well as the defendant Lyles. Some five of the defendants, including the widow, William F. Cheek and Lyles appeared and answered. The rest of the heirs, some of whom were minors, do not appear to have had service of process; nor did they appear or answer, nor were guardians ad litem appointed to represent the minor defendants. No decree pro confesso appears to have been taken against any of the defendants who failed to answer.

The complainant very fully brought all of the material facts before the court. He admits that he was let into possession of the lands and ferry privileges after his purchase; avers that he acquired no title whatever by his purchase; that the lands and the rents and profits thereof which accrued after his possession; belong to the estate of Elijah Cheek, deceased; that he does not hold adversely to the other heirs; that after his supposed purchase, he made valuable and lasting improvements on the land, of the value of seven thousand dollars; that he is the sole owner of the steamboat, half owner of the ferry privileges, and owner of the house and lot in his own right; that he is willing and offers to surrender the property purchased, and have an account taken of rents and profits, improvements and advancements; offers to place all of the property in the hands of a receiver to be managed and controlled for the benefit of all parties until the final decision of the cause upon such equitable terms as the court may direct; offers to account for the full value of the one-half of the ferry privileges for the time the same was in his possession, and for all rents and profits to be set off against the ten thousand dollars paid in advance on his purchase, which he alleges was paid over to the creditors of Elijah Cheek; that as to the improvements made by him on the property, he is willing to leave the matter to be settled in a proceeding for partition at a proper time, with a prayer for appropriate relief under the case thus made.

The court restrained the sale of the property by the trustee, and appointed James Gf. Berry, receiver, who entered into bond and took the required oath to faithfully discharge his duties as such. Subsequently, Berry reported that, under the power given him by the court, he had sold the steamboat, received part of the money, and taken notes on time for the payment of the balance, together with some other'receipts and expenditures; which report was filed. Upon the filing of the answers of several of the defendants, the court, upon motion of defendants, dissolved the injunction, appointed a receiver to take charge of and sell the property, and that the complainants’ bill be dismissed, from which an appeal was taken to this court.

Under this state of case, and in view of its further disposition, we order and direct that the case be remanded to the court below with instructions to have the defendants who were not served with process, and who did not appear, brought before the court with day to answer and defend. That a receiver be appointed, who shall enter into a sufficient bond for the faithful discharge of his duties as such, shall receive and take into his possession the property and ferry privileges which belonged to the estate of Elijah Cheek, which have been the subject of litigation in this case, and of the rents and profits that have arisen therefrom, since the time complainant was let into possession under his purchase. That a full account of the rents and profits of the lands and of the value of the permanent improvements and ferry privileges be taken, and of the amount for which the steamboat was sold by Berry, the receiver, which was the individual property of complainant, and also of the ten thousand dollars, and that ■complainant Waggener have credit for the same; and if it shall be made to appear, as alleged, that said ten thousand dollars, or any part of it, have been applied to the payment of the creditors of said Elijah, that to the extent of such payment complainant be subrogated to all the rights of such ■creditors, but such subrogation shall only be made to the rights of such creditors, whose claims have been or shall be probated, allowed and classed by and before the proper court, and that in making up an account against the complainants of the rents and profits of the ferry privileges,'he be credited by one-half thereof, the proceeds of the half interest owned by him in the same, and in all other respects according to equity and the practice of the courts not inconsistent with the decision and orders of this court.


source: Caselaw Access Project

license: Public Domain

text:
    Ringo’s Executor vs. Rotan’s Heirs.
    Swamp and Overflowed Lands. When title to, vested in the state.

    Tlie title of the state to the swamp and overflowed l$inds granted to-her by act of congress of September 38, 1850, accrued from the date of the act. And a title derived from the state will take precedence over a grant by the United States subsequent to that time.
    APPEAL from Chicot Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Clarh & Williams, for appellants.

      A. H. Garland, contra.

   Walker, J.

Thomas Morrow, on the 11th day of July,. 1851, filed his application to locate a Lovely Donation claim upon the southwest quarter of section 12, in township 16-south, range two west, in the county of Chicot, Arkansas, as the land of the United States subject to entry; which he was-permitted by the land officers at. the Helena land office to do,, and upon which a patent for said quarter section issued to him from the United States. Thereafter, on the 9th day of Au-. gust, 1852, John A. Craig applied at the office of the board of swamp land commissioners for permission to purchase the-same quarter section of land as swamp and overflowed land, and was permitted to do so; and a certificate of purchase given to him; and by several assignments thereon, John A. Rotan, plaintiff’s intestate, acquired title to said land.

Conceding the validity of each of the entries, the sole question to be determined is, whether Rotan or Ringo who succeeded to the rights of Morrow had the best title.

It is conceded, on the part of Rotan that if the land in dispute was the property of the United States at the time the donation claim was located, then that Ringo’s title is best; but he insists that before that time, to wit, on the 28th day of September, 1850, the United States, by an act of congress of that date, granted to the state of Arkansas the swamp and overflowed lands within the limits of the state, whereby the state became the legal owner of said lands and possessed the sole power to sell and dispose of the same. That the land in dispute was swamp and overflowed land is fully proven.

The question thus presented has been repeatedly before this court, and has been so long and definitely settled, and under which titles have been acquired, that unless a very clear case was presented, we should adhere to our former decisions — the correctness of which, however, we do not question. In the cases of Fletcher v. Pool, 20 Ark., 100 ; Hempstead v. Underhill, id., 337, and Branch v. Mitchell, id., 431, we have held that, by force of the act of congress of September 28, 1850, there were granted to the state the swamp and overflowed lands within her limits; under which the state acquired title to all of the lands of that description from the date of the act. The evidence in the case clearly shows that the land in controversy was swamp and overflowed land, and consequently was embraced within the grant. Such being the case, the land, at the time Morrow was permitted to locate his donation claim upon it, was the property of the state of Arkansas and not of. the United States, and Morrow and Ringo, who held under him, acquired no title to the land. The purchase made by Craig of the state, through her swamp land agents, of this land as swamp land, which was regularly assigned to plaintiff’s intestate, is amply sufficient to vest title in his intestate.

The decree of the court below was in .favor of the complainant. Let it be affirmed.


author: Hrrison, J.

text:
    The State vs. Holman.
    1. Criminal Law : Obstructing highway.

    Ch. 149, Gould’s Dig., declaring it an indictable offense to obstruct a public road, has been repealed; but if the obstruction is of such a character as to be a common or public nuisance, it is indictable at common law.
    2. Indictment: What it should chan-ge.

    The indictment must show such an obstruction as affects and annoys the entire community, otherwise it will be demurrable.
    APPEAL from Newton Circuit Court.

      Hon. H. R. Withers, Circuit Judge.

      S. P. Hughes, Attorney General, for the State.
   Hrrison, J.

At the October term, 1873, of the circuit court of Newton county, the grand jury returned into court the indictment which follows :

“Indictment — -Newton Circuit Court — The State of Arkansas vs. William Holman. The grand jury of Newton county, in the name and by the authority of the state of Arkansas, accuse William Holman of a misdemeanor as follows, viz: The said William Holman, on the 1st day of September A. D. 1873, in the said county of Newton, did willfully and unlawfully, make and commit a public nuisance, by felling timber, and placing fence rails and other obstructions on and in the public road in road district No. 23, against the peace and dignity of the state of Arkansas.

“ Yancy B. Sheppard, Pros. Ati'y.”

The defendant demurred to the indictment on the ground that the facts alleged in it did not constitute a public offense ; which objection was sustained and he was discharged. The state appealed.

The act of March 23, 1873, having repealed chapter 149 of Grould’s Digest, by section 17 of which it was declared an indictable offense to obstruct a public road by felling trees across the same or placing other obstructions therein, and the offender subjected to a fine not exceeding fifty dollars and a forfeiture of two dollars for every day he should suffer such obstruction to remain after being ordered by the overseer to remove it, we have now no statute making such obstruction an offense. But such obstruction may be of such a character as to be a common or public nuisance, and indictable at common law.

Blackstone says : “ Common nuisances are such inconvenient and troublesome offenses as annoy the whole community in general and not merely some particular person.” And in Bacon’s Abridgment, it is said: Every nuisance punishable by a public prosecution must be charged to be ad commune nocumentum, or to the general annoyance of all the king’s subjects; for if they are only injurious to particular persons they are left to be redressed by the private action of the parties aggrieved by them. Bac. Ab., Nuisance, B.

It is not every obstruction in a public road or highway that is an indictable nuisance. It must be such as affects and annoys the whole community; as, for instance, it is not a nuisanee where materials are temporarily placed in the street to be used in erecting a building, if sufficient room is left for the passage of the public on the other side; and the erection of a scaffolding to repair a house, the unloading of a cart or wagon, and the delivery of any large articles, as casks of liquor, if done with as little delay as possible, are lawful. Davis v. Mayor, 14 N. Y., 506 ; Harrower v. Ritson, 37 Barb., 301; Griffith v. McCullum, 46 Barb., 561; Rex v. Cross, 3 Camp., 225.

The owner of land through which a public road passes, has the undoubted right to use it in taking his timber from the land, and the felling it upon it with a view to its immediate removal is not a nuisance, unless the public generally are incommoded and injured by it.

The indictment does not allege any inconvenience or injury to the public from the acts complained of; the objection therefore that it did not charge the commission of any offense was well taken, and the demurrer -properly sustained. The judgment-is affirmed.


author: Harrison, J.

text:
    Trapnall ex parte.
    1. Practice in Supreme Court.
    This court will not, before an appeal is taken, revive a cause against a legal representative, in order to enable him to appeal from a judgment or decree rendered against his testator or intestate prior to his death.
    2. —Appeal by executor from judgment against Ms testator.

    The correct practice in such cases is for the legal representative to file a petition with the clerk of this court showing the facts, and his representative capacity, and take an appeal in his own name; whereupon, if the adverse party desires to controvert the fact of the death, or representative character of the party praying the appeal, he can be heard in this court.

      MOTION for Appeal by tbe executor from a decree against his testator.

      Glarh & Williams, for the motion.
   Harrison, J.

In the matter of the application of Greorge Trapnall, executor of Benjamin C. Trapnall, to suggest in this court the death of his testator, since the rendition in the chancery court of Pulaski county of the decree in the case of Hill and wife and others v. Benjamin C. Trapnall and another, and have the case revived here ag'ainst him as such executor, and be permitted to file the transcript, and take an appeal in the case, we will state that after consideration, we think this court can take no action before the appeal is taken and the case reaches here. We are, however, of the opinion that, inasmuch as the executor is entitled to the interests and rights which belonged to his testator, he can as effectually and to the same extent prosecute the appeal as his testator might have done. The remedy by appeal, we conceive to be analogous to that by writ of error, and we can see no good reason, if the executor may sue out a writ of error after the death of his testator, why he may not bring up his case for review, also by appeal.

We will suggest, as probably the most convenient, if not the best course to pursue in a case like the present, that the executor or administrator present a petition to the clerk, stating the facts, the rendition of the judgment or decree, the subsequent death of the testator or intestate, the probate of the will or appointment of the administrator, etc., and pray to be allowed to file the transcript and take the appeal in his own name; upon which the clerk should grant the appeal; file the transcript, and docket the case. Then if the other side wishes to controvert the fact of the death, or the representative character of the party bringing the appeal, he can be heard in this court.


author: English, C. J.

text:
    Jackson vs. The State.
    1. New Trial: For newly discovered evidence.

    The party’s affidavit of newly discovered evidence, uncorroborated by the affidavit of a disinterested witness, is insufficient to warrant the granting of a new trial.
    2. Bastardy: Nature and jwrisdietion of proceedings under the statute.

    The proceedings in cases of bastardy, provided for in ch. 15, Gantt’s Dig., are in the nature of a criminal prosecution, and, under the Const, of 1868, were within the jurisdiction of a justice of the peace.
    APPEAL from Washington Circuit Court.
    Hon. E. D; Ham, Circuit Judge.

      A. M. Wilson, for appellant.

      S. P. Hughes, Attorney General, for the state.
   English, C. J.

In January, 1874, Cynthia Lane made complaint before a justice of the peace of Washington county, that she had been delivered of a bastard male child, of which Everett Jackson was the father; whereupon a warrant was issued for the arrest of the accused, to answer the complaint. On the trial, the birth of the child, and that Jackson was its father, being proven to the satisfaction of the magistrate, he ordered the accused to enter into bond, as prescribed by the statute, and adjudged him to pay five dollars for the lying-in expenses of the mother, and two dollars a month for the maintenance of the child, from its birth, Nov. 17, 1873, until it should become seven years of age, if it should so long live, etc.

Jackson appealed to the circuit court, where the cause was tried by a jury, on the plea of not guilty, and he was found guilty of being the father of the bastard child, etc., as charged, and the judgment of the justice of the peace affirmed. He filed motions in arrest of judgment, and for a new trial, which were overruled, and he excepted, and appealed to this court.

No question of law was reserved at the trial. The new trial was asked on the ground that the finding of the jury was contrary to the evidence.

. The prosecutrix swore very positively that the appellant was the father of the child, stating the times and place when and where he had intercourse with her, and the date, etc., of the birth of the child.

The appellant attempted to prove that other men had intercourse with the prosecutrix, and that she was unworthy of credit for want of chastity. But the witnesses were all before the jury, and it was their province and not ours to pass upon the weight of evidence; and, the presiding judge having refused a new trial, and there being no total want of evidence to sustain any material allegation of the complaint, we shall not disturb the verdict.

The appellant filed, with his motion for a new trial, an affidavit that he had discovered, since the trial, evidence which would establish the fact that the prosecutrix had admitted to one Phillip H. Bobb that appellant was not the father of the child, etc.

Passing over defects in the affidavit of the appellant, it being uncorroborated by the affidavit of some disinterested witness, was insufficient to warrant the granting of a new trial. Pleasant v. The State, 13 Ark., 326; Bixby v. The State, 15 id., 395; White v. The State, 17 id., 404.

The appellant moved in arrest of judgment, “Because the court had no jurisdiction of the prosecution.”

In bastardy cases, the statute gives the accused the right of appeal from the judgment of the justice of the peace before whom the complaint is made and the cause tried, to the circuit court. The appellant took an appeal, and the cause was tried anew in the circuit court in accordance with the statute. If the magistrate had original jurisdiction of the cause, the circuit court had appellate jurisdiction. We have thought proper, in this case, to consider whether justices of the peace had jurisdiction of bastardy cases under the constitution of 1868, which was in force when this prosecution was commenced.

The statute giving'justices of the peace jurisdiction in cases of bastardy, and regulating the manner of prosecuting them, ■was passed February 24, 1838, and became chapter 19 of the revised statutes, title Bastardy. It was passed under the constitution of 1836.

By the constitution of 1836, as originally framed and adopted, justices of the peace were given exclusive original jurisdiction in all matters of contract, except in actions of covenant, where the sum in controversy was of one hundred dollars and under. They had, in no case, jurisdiction to try and determine any criminal case or penal offense against the state, but might sit as examining courts, and might commit, discharge or recognize to the court having jurisdiction for further trial, offenders against the peace, and to bind persons to keep the peace, and for good behavior. Art. Ylj sec. 15.

Bastardy is not a matter of contract, and the statute, providing for proceedings in bastardy cases partaking of the nature of criminal prosecutions, attempted to confer upon justices of the peace a larger jurisdiction than was warranted by the constitution of 1836, as originally adopted.

By an amendment to the constitution of 1836, ratified November 17,1846, the general assembly was authorized to confer such jurisdiction as it might from time to time deem proper, on justices of the peace in all matters of contract, covenants and in actions for the recovery of fines and forfeitures when the amount claimed did not exceed one hundred dollars, and in actions and prosecutions for assaults and battery and other penal offenses less than felony, which might be punishable by fine only. Eng. Dig., 71.

By act of December, 21, 1846, passed after the ratification ■of the above amendment, all laws and parts of laws in the revised statutes relating to the duties of justices of the peace, which were inoperative previous to the adoption of the amendment to the constitution, and which had not been repealed, •etc., were reenacted, revived and declared to be in full force and effect. Eng. Dig., 961.

The bastardy statute was carried into and made chapter 24 of the digest of 1848, with a note by the digester referring to .art. VI, sec. 15 of the constitution of 1836, the above amendment, and reenacting act. Eng. Dig., 211.

The bastardy statute was also carried into and made chapter 24 of the digest of 1858, with a similar note by Mr. Gould, the digester.

In 1855, a bastardy case, which was prosecuted before a justice of the peace of Union county, and taken by appeal to the circuit court, came before this court on appeal. Questions relating to the testimony of the prosecutrix were determined, and the judgment reversed, and the cause remanded for a new trial. Barnett v. The State, 16 Ark., 530.

The constitution of 1864 expressly gave justices of the peace original jurisdiction in cases of bastardy, as well as in actions for the recovery of fines and forfeitures for limited amounts, and in prosecutions for assault and battery, and ■other penal offenses less than felony, punishable by fine only. Art. VII, sec. 18. And, by a provision of the schedule, all laws in force on the 4th of March, 1861, which had not expired by limitation therein contained, and were not inconsistent with the constitution, were declared to be still in force.

By the constitution of 1868, justices of the peace were given exclusive original jurisdiction in all actions of contract and replevin where the amount in controversy did not exceed two hundred dollars, etc. And, in criminal causes, their jurisdiction was extended to all matters less than felony for final determination and judgment. Art. VII, sec. 20.

And by section five of the same article it was provided that- “ the inferior courts of the state, as now constituted by law, except as hereinafter provided, shall remain with the same jurisdiction as the}'- now possess,” etc.

By act of March 21, 1871, providing for a revision of the-laws, the digester was required to embrace in the digest all the acts of the general assembly, not local or private, etc., nor-repealed, and remaining in force at the completion of the-work, etc.

The bastardy act was carried into and made chapter XV of the digest prepared by Mr. Gantt, and examined and revised with much care and labor, and approved by the Hon. Henry C. Caldwell.

Thus the bastardy act has regained upon the statute book, and been carried into the revisions as a law valid and in force, for a period of nearly forty years.

If the act provided a civil remedy to be conducted in the-name and for the benefit of the mother, merely, as in some of states (Robie v. McNiece, 7 Vermont, 419; Scantland v. Commonwealth, 6 J. J. Marsh., 585), it would be difficult to-maintain its constitutionality under any of our constitutions, except that of. 1864. But the proceedings provided for in the act are, as above remarked, in the nature of criminal prosecutions. They were so regarded in England under similar statutes. Bacon’s Abr., title Bastardy.

Mr. Blackstone, treating'of bastardy, says: “But, before we quit this subject, we must take notice of the temporal punishment for having bastard children, considered in a criminal light; for, with regard to the maintenance of such illegitimate offspring, which is a civil concern, we have formerly spoken at large. By the statute, 18 Eliz. C. 3, two justices may take order for the punishment of the mother and reputed father, but what that punishment shall be is not therein ascertained, though the contemporary exposition was that corporal punishment was intended. By statute, 7 Jac. 1 0. 4, a specific punishment (viz. commitment to the house of correction) is inflicted on the woman only. But in both cases, it seems that the penalty can only be inflicted if the bastard becomes chargeable to the parish, for, otherwise, the very maintenance of the child is considered a degree of punishment.” 4 Book Com., 65.

Under the bastardy acts of Massachusetts it seems the proceedings are conducted in the name of the mother, but in other respects similar to prosecutions under our statute, and there it has been held that the complaint partakes of the nature both of a criminal and a civil suit. But it was'also beld that an act giving the municipal court of Boston cognizance of all crimes and offenses committed within the town of Boston, which were before cognizable in the court of general sessions of the peace, transferred to the municipal court cases arising under the bastardy act. Hill v. Wells, 6 Pick., 104.

All bastardy cases under our act are prosecuted in the name of the state (sec. 546), and on appeals to the circuit court, it is made the duty of the prosecuting attorney for the circuit to answer the appeal and conduct the cause on the part of the state (sec. 540), and the mother is made a competent witness, unless legally incompetent to be a witness in any case. Id.

On the sworn complaint of the mother the person accused of being the father of the bastard is to be forthwith arrested, on a warrant as in criminal cases, and taken before the justice of the peace issuing the warrant.

If the child is not born when the arrest is made, the accused is required to give bail for his appearance after the birth of the child.

"When it is determined that the accused is the father of the child, the justice is to require him to give bond, with sureties, to the state, to indemnify each county in the state from all costs and expenses for the maintenance, etc., of the child while under the age of seven years. If he refuse or neglect to give bond, he may be committed to jail until the bond is given, etc.

The justice must further order the accused to pay for the lying-in expenses of the mother not less than five nor more than fifteen dollars, and for the support of the child a monthly sum of not less than one nor more than three dollars, and the order is to be of the same nature of a judgment, upon which execution may issue, etc. These provisions are for the benefit of the fallen mother and unfortunate child, as well as for the protection of the public, but they are also a punishment of the guilty father.

These proceedings are unlike the -proceedings in an ordinary civil action brought by an individual, and have the principal features of a criminal prosecution before an inferior tribunal for an offense less than felony, where no indictment is required, and justices of the peace had jurisdiction of such, offenses under the constitution of 1868.

The judgment must be affirmed.


text:
    Barton vs. The State.
    1. Criminal Pleading: Gertainty requisite in an indictment.

    An indictment for larceny, describing tlie subject of the larceny as one hundred and thirty dollars, etc., without any specification as to the kind of money, is insufficient on demurrer, or motion in arrest of judgment.
    3. —The provisions of the code, sec. 1975, Gantt’s Dig., require that every material fact necessary to constitute an offense, be alleged in the indictment.

      APPEAL from Pulaski Criminal Court.
    Hon. Charles P. Redmond, Judge of the Criminal Court.

      Pick Gantt, for appellant.
    Hughes, Attorney General, contra.

   English, C. J.

The appellant was indicted in the criminal court of Pulaski county, as follows:

“The grand jury of Pulaski county, in the name and by the authority of the state of Arkansas,.accuse John Barton of the crime of larceny, committed as follows, viz. : The said John Barton, on the ninth day of July, A. D. 1872, in the county and state aforesaid, one hundred and thirty dollars, the property of Joseph Schaer, from the person of the said Joseph Schaer, then and there feloniously did take, steal and carry away, against the peace and dignity of the state of Arkansas.”

The appellant entered a demurrer to the indictment, in short upon the record, which he subsequently withdrew, and pleaded not guilty. He was tried by a jury, found guilty, and moved in arrest of judgment, on the ground that the facts stated in the indictment did not constitute a public offense. The motion was overruled, and he was sentenced to the penitentiary.

The objection to the indictment is, that it does not specifically describe the money alleged to have been stolen. The appellant is charged with stealing “ one hundred and thirty dollars,” etc. Whether the subject of the larceny was coin, Hnited States treasury notes, or bank notes, is not alleged. If the term “ dollars ” may be said to have a legal meaning, and to import the national coin (Roane v. Green et al., 24 Ark., 210), we are left to conjecture what kind of coin the appellant •was charged with stealing.

It is a loose attempt at a code indictment.

The code provides that, “ The only ground upon which a judgment shall be arrested is, that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court; and the court may arrest the judgment without motion on observing such defect.” Gantt’s Dig., sec. 1975.

What is the meaning of this section of the code? To charge a man with shooting at the moon would not be charging, him with a public offense. To charge him with stealing in Texas would not be charging an offense within the jurisdiction of an Arkansas court. To charge a man with larceny merely would be charging him with a public offense by a technical name only. Is it in such instances or similar instances only, that the judgment may be arrested? We think not. Such could not have been the intention of the framers of the code. It requires certain material facts to make any public offense of whatever name, and these facts, well ascertained in law, and easily apprehended by ordinary intelligence, should be alleged in the indictment, whether framed under the code of under the common law.

Our code provisions in relation to indictments, arrest of judgment, etc., were taken from the Kentucky code. Rhodus et al. v. Commonwealth, 2 Duvall (Ky.), 159, was an indictment for the larceny of treasury notes, etc., and there was as in this case, a motion in arrest of judgment on a verdict- of guilty. The court said:

“ On the suject of indictments, our criminal code recognized and established the modem common law, rightly understood arid rationally applied. It dispenses with form and requires substance only. And what is now substance at common law, is substance undér the code — and that is every fact necessary to constitute the specific crime charged — alleged with only such precision as, 1st. To enable the court to see that, admitting the facts, it has jurisdiction, and that the imputed -crime.has been committed by the accused. 2d. To enable the accused to understand the precise charge, and without surprise to prepare for defense against the proof which may be admissible to sustain that specific charge; and, 3d. To make the verdict and judgment certainly available as a bar to .any subsequent prosecution for the the same criminal act.”

In the case quoted from, the appellants were charged with stealing “ one lot of treasury notes, called greenbacks, the issue of the treasury of the United States of America, and one lot of Kentucky bank notes, and fifteen dollars in gold -coin.”

This charge was more specific than the charge in the indictment now before us.

The court, after making the general remarks on the subject ,of indictments above quoted, said: “According to this test(l the indictment in this case seems to us insufficient to authorize conviction.

“ One lot of treasury notes, without any specification of denomination, number or value, is too indefinite for the identification of the thing taken,-or of any part of it; and ■one lot of Kentucky bank notes, without even a specification ■of the bank, is still more indefinite.

Neither of these charges sufficiently notified the accused -of the facts to be proved; and a conviction on either of them might not be availably pleaded in bar of another indictment for the same offense. A minute description of all the treasury and bank notes might be impossible, and, therefore is not required. But a nearer approach to it than this indictment makes may be presumed to have been easy, and ought to be required. A specification of even one of the notes in each lot, so as to identify it, might be sufficient to answer the ends -of the test just defined.

“ Nor can fifteen dollars in gold coin, without any specification of the number of pieces, or of the character or identity of the coin, or of any portion of it, be deemed sufficient for all the purposes of the law.”

In The State v. Longbottom, 11 Humph., 39, the accused was-charged with stealing “ ten dollars, good and lawful money of the state of Tennessee,” and on conviction the judgment was-arrested and the state appealed.

The supreme court of Tennessee said: “ Where personal chattels are the subject of an offense, as in larceny, they must-be described specifically by the names usually appropriated to-them, and the number and value of each species or particular' kind of goods stated (2 Hale, 182-3; Arch. Cr. Pl., 49). Money should be specified as so many pieces of the current-gold or silver coin of the realm. And the species of coin must be stated by its appropriate name. Arch., 50.” The-court held that the subject of the larceny was insufficiently described, and that the judgment was properly arrested.

In The People v. Ball, 14 Cal., 101, the subject of the larcen3r was described as “ three thousand dollars, lawful money of the United States.” The court said: “ This description is not. Sufficient. In an indictment for larceny, money should be-described as so many pieces of the current gold or silver coin of the country; of a particular denomination according to the-facts. The species of coin must be specified (Arch. Cr. Pl., 61; Whart. Cr. Law, 132).”

In The State v. Murphy, 6 Ala., 846, the subject of the larceny was thus described: “ Sundry pieces of silver coin, made-current by law, usage and custom within the state of Alabama, amounting together to the sum of five hundred and thirty dollars and fifteen cents, of the value,” etc., and this was held to-be insufficient.

In McKane v. The State, 11 Ind., 195, the accused was-charged with stealing “ sixty dollars of the current gold coin of the United States,” etc. The court recognized the general rule as to the description of coin when the subject of larceny, but said: “We have a piece of money of the gold coin called a dollar; and is it not just as intelligible to say ‘ sixty dollars of the gold coin,’ as to say ‘ sixty pieces of gold coin called sixty dollars ? ’ In our opinion the indictment is unobjectionable.”

Mi’. Bishop, commenting on this case, says: “If the-expression‘sixty dollars of the current gold coin of the United States’ really meant, as the court seem to have understood it-to mean, that the theft was of sixty distinct pieces of gold coin, each piece being of the value of a dollar, then the indictment was good according to the general doctrine.”

But this Indiana indictment, it may be observed, is more-specific in the description of the subject of the larceny than the one before us. “ Sixty dollars of the current gold coin of the United States of the value of sixty dollars,” is a much-more definite description of money than “ one hundred and thirty dollars, of the value of one hundred and thirty dollars.”

We can find in no text book of precedents for indictments, as loose and vague a description of money when the subject-of larceny, as in the indictment before us.

The judgment must be reversed, and the cause remanded to-the Pulaski circuit court (to which the jurisdiction of the Pulaski criminal court is transferred by the new constitution), with instructions to the court to arrest the judgment, and hold the appellant subject to a new indictment.


text:
    Allen et al., Adm’rs, vs. Smith, Ex’r.
    1. Practice in Chancery : Proceedings on lost instrument.

    In a proceeding in chancery on a lost instrument, affidavit of the loss is not necessary. Sec. 66, ch. 133, G-ould’s Digest, relates exclusively to proceedings at law.

      2. — Objection for want ot the affidavit in such case, if good, should be made by motion, and is no ground of demurrer.

      3. Vendor’s Lien: Nature of proceedings to enforce.

    A proceeding against the administrator and heirs of a deceased party, to foreclose a vendor’s lien that was reserved in the deed, is not an action against the personal representative to have satisfaction out of the personal assets; and, although the personal representative is made a party, the object of the proceeding is to subject real estate, under a contracted lien, to the payment of a debt, and the heirs are the real parties in interest.
    4. — In such a proceeding it is unnecessary to probate the claim before suit. .
    Note. — See Linthieum, Bx’r, et al. v. Topscott, Adm'r, et al., 28 Ark., ■267. —Rep.
    APPEAL from Arkansas Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.
    Garland, for appellant.

      Bell & Carlton, contra.

   Walker, J.

On the 9th of October, 1866, Brazel B. Smith, as administrator of the estate of Petyma Smith, filed his bill of complaint in the Arkansas circuit court against Thomas H. Allen and Ira M. Hill as administrators of the estate of Lewis Shanks, deceased, and the unknown heirs of Shanks, in which it was alleged that on the 21st day of December, 1858, his intestate, Petyma Smith, with several other parties, for the consideration of $24,000, to be paid at different dates and amounts,'to the parties grantors, one of which notes was executed, by Shanks for the sum of $5,000, due one year from the 10th of March next thereafter, with eight per cent, interest from date, and made payable to intestate, Petyma Smith, one of the grantors, granted, bargained and sold to the said Lewis Shanks, certain lands therein described. It is further alleged that the note is due and unpaid; but has been lost or destroyed. That Shanks died intestate, and left children and heirs, who are unknown to plaintiff; that by the terms and condition of the deed a specific lien was created and reserved upon the land so conveyed, for the payment of the purchase money, of which the $5,000 note was a part, makes the administrator and heirs, who are described as unknown defendants, parties defendants, and prays that the debt and interest may be adjudged to him as such administrator, and if not paid, day being given for the same, that the equity of redemption be foreclosed and the lands sold.

When parties are made defendants and described as unknown defendants, without naming them, it is made necessary that the complainant should file with his bill an affidavit that such defendants are in fact unknown to him, because if he knows the names of the parties, he should sue them by name. Gould’s Dig., sec. 7, ch. 28.

No such affidavit-was in this case filed, and a failure to do so became a ground of exception upon which, on appeal to this court, the case was reverséd and remanded for further proceedings (see 25 Ark., 496). The cause was remanded, and upon alleged errors in proceeding to decree without having the infant defendants before the court, upon a second appeal the case was again reversed. Upon the return of the case to the court below, the complainant, upon leave granted, amended his bill and brought the heirs of Shanks before the •court by their proper names, by which the objection to the bill in this respect was obviated. The amended bill was sworn to, and there was also an affidavit filed, that the defendants were nonresidents of the state, and an order of publication was taken. The order was executed by publication, a copy of which was verified and filed ; a guardian ad litem appointed, who filed his written consent to act as such, and answers were filed by him for them. Two of the heirs, Lou-den and wdfe, also filed their answer, and with the infant defendants, by their guardian, filed their demurrer to complainant’s bill. Neither of the grounds assigned for demurrer questioned the sufficiency of the bill, unless the failure of complainant to file an affidavit of a want of knowledge of the residence of such unknown defendants with his bill, as required in sec. 7, ch. 28, Gould’s Dig., should be held to relate back to the sufficiency of that part of the bill which described them as unknown defendants, and should be considered such ; but as the amended bill fully supplied this defect by making Shank’s heirs defendants by their proper names, the necessity for an affidavit, as required by sec. 7, ceased to exist.

The first ground assigned for demurrer is: That the instrument sued upon a.s the certificate or affidavit of Petyma Smith was made before an officer unknown to the laws of Arkansas.

We find on the record a statement purporting to be an affidavit of the loss and nonpayment of the note described in the complainant’s bill, and certified as having been sworn to before one George W. Hannah, who styles himself captain and provost marshal. This paper, as an affidavit, is certainly worthless, and if an affidavit of the facts set forth in it were necessary, we might hold the objection well taken. But we are aware of no statute which requires that such affidavit should be made, in an action in equity, to subject the lands of an intestate to the payment of a debt secured by a mortgage lien. Sec. 66, ch. 133, Gould's Digest, relates exclusively to proceedings at law, and was intended to mitigate the rigors of the common law, which denied a right of action on lost bonds; because under the common law practice, profert was necessary, which could not be given if the laond be lost. But if such was not the case, and such affidavit was proper, it would form no ground of demurrer to the bill, although it might be taken advantage of by motion.

The second ground, as cause of demurrer, is that there is no affidavit of the loss of the instrument sued upon. This is but a repetition of the first ground, which we have held insufficient.

The third ground assigned is, that complainant failed to make proof of the nonpayment of the claim exhibited against the estate of Shanks, before the commencement of the suit. This ground is not sustained by the record. There was filed with the bill the following affidavit:

“State of Arkansas— County of Jefferson.- — I, Brazel B. Smith, administrator of Petyma Smith, deceased, do solemnly swear that nothing has been paid or delivered towards the satisfaction of the above demand, and that the sum of $5,000 above demanded, with eight per cent, interest from the 22d of March, 1859, is justly due. (Signed) B. B. Smith.

“ Sworn to before me, an acting justice of the peace within the state aforesaid, this 28th day of July, 1866.

“(Signed) W. D. Johnson, J. P.”

This affidavit is a literal copy of that prescribed in Gould’s Digest, sec. 102, ch. 4, and is in all respects such as would have been necessary if this claim had been presented for allowance in the probate court.

But the action in this case, while it is for the payment of a debt due by the intestate Shanks, is not an action against his personal representatives, to have satisfaction out of his personal assets; and although his personal representatives are made parties, the action is to subject real estate, under a'contracted lien, to the payment of a debt, in which the heirs are the real parties in interest.

Story, in His Equity Pleading, 246, says: “ If the mortgagor, who is the owner of the fee, should die, his heir is an indispensable party to a bill to foreclose: so that, if he be without the jurisdiction of the court, the cause cannot be proceeded in. But, ordinarily, it is not necessary to bring the personal representative of the mortgagor in such case before the court; for the heir alone has the right to the equity of redemption, which it is sought to foreclose, and the mortgagee is under no obligation to intermeddle with the personal assets, or seek an account thereof.”

In the case of Haskell et al. v. Sevier, Adm’r of the estate Jordan, the main question, as in this case, was whether the holder of a debt, who has, in the lifetime of the debtor, contracted for a specific lien on real estate for its payment, shall, after the death of the debtor, at his election, pursue his remedy against the land for payment, or shall be required to abandon it and take his recourse against the personal representatives of the deceased debtor. In that case, Jordan executed to Smith his notes for the payment of a sum of money thereafter to become due, and also executed to Smith his deed of mortgage to secure the payment of the same. Afterwards, and before all of the notes were paid, Jordan and Smith died. Haskell, the administrator of Smith, filed his bill against Sevier, the administrator of the estate of Jordan and his heirs, to foreclose the equity óf redemption and sell the lands. Sevier insisted that Haskell should probate and class his debt with other creditors for payment out of the whole estate; whilst it was insisted, on the part of Haskell, that his intestate, in the lifetime of Jordan, had contracted for a lien upon the lands, had a right at his election to file his claim for probate with other creditors or pursue his remedy for satisfaction out of the lands. This was the main question presented for our consideration, and it was held that the death of Jordan did not affect the rights of Smith, acquired under his contract of lien, which, if valid before Jordan’s death, remained so afterwards; that the land at the time of Jordan’s death was incumbered with Smith’s debt, and brought Smith within the rule that he who is first in time, who has incumbered the property with his own debt when added to his equal equity in other respects, makes his the superior equity, and it entitles him to satisfaction out of the particular estate thus incumbered. Haskell et al. v. Sevier et al., 25 Ark., 152.

The objections taken by defendant’s counsel seem to have arisen out of a misconception of the real grounds of this action, which is not against an estate for satisfaction out of the personal assets, but to obtain a satisfaction out of a particular estate, which had been, by contract, incumbered in the lifetime of the debtor with its payment.

Holding, as we do, that the causes for demurrer were not well taken, and consequently that the bill is sufficient to entitle the complainant to a decree, if proven, we will turn our attention to the remaining question: Have the facts been sufficiently proven to entitle the complainant to a decree in his favor?

An interlocutory decree by default was taken against the administrators. Two of the heirs appear and answer. The material fact denied is that the debt is due ; if not, the heirs will of course be protected.

The recitals in the deed furnish very satisfactory evidence of most of the facts in issue. They show that a note for $15,000 was executed by Lewis Shanks, payable to Petyma Smith, complainant’s intestate; the date of the note, the time when due and the rate of interest, are' all set forth, and that the note was executed in part consideration for the payment of the land therein conveyed to. Shanks, and that the contracting parties therein declare that the deed was executed, in the language of the deed, with the understanding of all the parties that a lien is reserved upon the land until the purchase money is fully paid off.” In addition to these facts shown by the deed, which is duly authenticated and made an exhibit in the case, the deposition of the administrator, Smith, which appears to have been regularly taken, is to the following effect: That although not present when the deed was executed, he had been afterwards informed by his intestate, that such a note was executed as that described in the deed; that he knew of his own knowledge that the note was in existence shortly before the federal forces took possession of Pine Bluff; after which intestate told witness that she had been robbed of that and other valuable papers; that intestate was his mother, and after her death, he searched amongst her papers, and in trunks and all places where papers were likely to be kept, and could not find the note; believed it to be lost or destroyed.

This evidence well sustains the facts set forth in the deed and averred in the bill. In view of which the decree in the court below in favor of complainant will be sustained.

Let the decree be affirmed.


text:
    Cloud, Adm’r, vs. Wiley et al.
    1. Appeal : Effect of upon the judgment

    Upon the recovery of judgment, the cause of action is destroyed by merger, and the granting of an appeal does not revive it so that another suit may be maintained on it, or impair the judgment, but the latter continues to subsist until reversed and set aside.

      3. Former Recovery: When may be pleaded.

    In such case the defendant, if sued again during the pendency of the appeal on the original cause of action, may plead a former recovery.
    3. Appeal prom Probate Court : Appellee cannot dismiss.

    The appellee, on appeal by an administrator from a judgment of allowance against the estate of his intestate in the probate court, has no right to dismiss the proceeding in the circuit court, or before the clerk thereof in vacation; and it is error for the circuit court to strike the appeal from the docket on account of such attempted dismissal.
    APPEAL from Ciarle Circuit Court.
    Hon. Ei J. Searle, Circuit Judge.

      Watkins & Rose, for appellants.

      Witherspoon and Garland c& Nash, contra.

   Walker, J.

The facts necessary to a proper understanding of the questions of law to be considered, are :

That Wiley and Lawrence presented a claim against the •estate of Harden M. Prior, to Cloud, the administrator, for his approval and allowance, which he refused to allow, but waived the regular notice and appeared at the October term, 1866, of the probate court for Clark county, in which a trial was had, and the court, after hearing evidence, rendered judgment in favor of the claimants, Wiley and Lawrence, from which an appeal was prayed by Cloud and granted, and a transcript sent to tbe circuit court to which the appeal was taken. Afterwards, and before the sitting of the circuit court, the plaintiffs (appellees), by attorney, appeared before the clerk of the circuit court, in vacation, and asked that the case be dismissed, which was granted by the clerk and the case dismissed. Soon after this, the plaintiffs again presented their claim to the administrator of the estate of Prior, for allowance and classification, and the claim was disallowed; notice again waived and the parties appeared before the same-court at another term, and a second trial was had upon the same lost note, which was presented and upon which the first-trial and judgment were had. After the plaintiffs had closed the evidence on their part, the defendant introduced and offered in evidence a record of the proceedings and judgment in the first trial, and without formal pleadings insisted that the judgment was evidence of a former recovery upon the-same cause of action. Upon consideration of the case, the-probate court decided in favor of the defendant, and rendered judgment in his favor, from which the plaintiffs appealed to-the circuit court, and the case was sent to that court for hearing upon appeal. Both appeals were docketed.. The plaintiffs moved the court to strike the first appeal from the docket,, as improperly docketed, for the reason that the suit had been dismissed before the clerk in vacation; which motion was-sustained by the court and the case stricken from the docket, and the defendant excepted. And it appears that at this-point all further proceedings touching the first appeal ceased.

Errors were assigned by the appellant, which were sustained by the court, and a trial de novo had.

When the case came up for trial, the defendant moved the court to declare the law to be:

1. That the dismissal of the former case on the same cause of action had no legal effect.

2. That unless proof is offered of the contents of the note sued on, outside of the payee and assignee’s affidavit, judgment must be given for the defendant; which the court refused to do, and upon consideration of the evidence, rendered judgment for theniaintiffs, from which the defendant appealed.

The most material question presented for our consideration grows out of the defense of former recovery. Was the first judgment in force when the second suit was brought? If it was, there can be no question that the second suit upon the same cause of action could not be maintained. This involves a consideration of the effect of the appeal upon the judgment appealed from, the power of the appellee to dismiss an appeal, or to dismiss his case (he being the plaintiff in the cause) after judgment in his favor and an appeal taken by the defendant. There can be no question that the probate court had ample jurisdiction of the cause of action, and that a regular judgment was entered, from which an appeal was taken to the circuit court. The judgment, in the language of Blackstone, “is the sentence of the law pronounced by the court upon the matter contained in the record.” 3 Black. Com., 395. Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. Id., 398. And after which there is in fact no cause of action in existence, until the judgment is set aside by the court which rendered it, by an appropriate application for that purpose, or is reversed by some appellate tribunal before which it is taken by appeal or other appropriate process. The appeal taken from a judgment in nowise affects its validity. The right of appeal by a party who feels himself aggrieved by the judgment is clear, and one which, if regularly taken, the appellee has no power to defeat; because, if the appeal be simply dismissed, the judgment of the court from which the appeal is taken remains in as full force as if no appeal had been granted. Ashley v. Brasil et al., 1 Ark., 144.

It would.be a mockery to give to the defendant the right to appeal from a judgment rendered against him, and at the satne time to the plaintiff the right to dismiss the case, whether in vacation before the clerk or in term time before the court (which in effect was to dismiss the appeal), because the appeal was the only matter before the circuit court, or in regard to which the clerk could act. There was no cause of action pending in the- probate court. That had been disposed of, merged in a judgment. The only matter before the circuit court was the appeal; and although the plaintiffs in their application to dismiss, use the word ease instead of appeal, it was a motion in effect and in fact to dismiss the appeal; which we must hold the appellees had no power to do, and that it was error in the circuit court to order the case stricken from the docket, which action of the circuit court, whilst it left the appeal undisposed of, in. nowise affected the validity of the judgment of the probate court; and most clearly, whilst it so remained it was a bar to a recovery in any after suit upon the same cause of action; and consequently, the circuit court erred in refusing to pronounce the law as asked by the defendant in his first proposition and in rendering judgment for the plaintiffs; and for this error the judgment must be reversed :and set aside.

We have looked with some care into the after condition of this case, because there is a large sum of money involved, and the evidences of debt sufficient to warrant a recovery. Whilst we give effect to this valid defense of former recovery, we leave a valid and subsisting judgment in favor of the plaintiffs, rendered in the first suit, but with regard to which the defendant claims to have been aggrieved, and from which he has prayed an appeal, which has been stricken from the docket, and to which he excepted at the time, but with regard to which no appeal was taken. Consequently that case is not before us, and we deem it out of place to indicate the redress, if any, which the defendant may have in that case.

Let the judgment of the circuit court be reversed.


author: Williams, Sp. J.

text:
    Harrison vs. Trader and wife.
    1. Attachment : Sow levied, and effect of.

    A public declaration by an officer to whom a writ of attachment was directed that he attached certain land as the property of the defendants named, in the writ, made in the presence of a citizen of the county, was a good levy under the 7th section of the act of March 7, 1867, and created a lien on the land from the date of the attachment.
    2. —How and when the lien is created.

    The lien of an attachment springs by operation of law out of the act of the plaintiff in bringing his suit properly, and of the offi* cers In issuing and serving the process, and upon the performance of these acts, the lien, though inchoate, is perfect and substantial.
    3. —Lien preserved upon reversal of judgment of dissolution.

    When in a proceeding by attachment and levy upon land, judgment is rendered against the plaintiff and the attachment dissolved and he takes an appeal, which is dismissed for failure to file the transcript in time; after which he prosecutes a writ of error and procures a reversal of the judgment below, without filing a supersedeas bond in either case, the lien of the attachment is preserved as between the parties.

      4. Appeal: T transfers jurisdiction to appellate court.

    On appeal or writ of error, jurisdiction of the cause is transferred to the appellate tribunal, and proceedings in the inferior court are wholly suspended, except in so far as the statute requiring supersedeas bond authorizes the issuance of execution.
    5. —Effect of reversal of judgment.

    Where judgment is reversed on appeal or writ of error, the rights of the parties stand as if no action had been taken by the inferior court.
    6. Bill of Exchange: Notice of-nonpayment.

    When the drawer of a bill of exchange promises to furnish the accommodation acceptor the means to meet the paper at maturity, and fails to do so, he is not entitled to notice of "nonpayment.
    APPEAL from Phillips Circuit Court.
    Hon. ~W. H. Clatton, Circuit Judge.

      Bose and Palmer & Sanders, for appellant.

      Hanley & Stewart, contra.

   Williams, Sp. J.

This suit was commenced in the Phillips circuit court on the 14th of February, 1867. A writ of attachment was issued, upon which the sheriff made the following return, to wit:

I executed the within writ of attachment at Phillips county, Arkansas, on the 29th day of March, 1867, by declaring publicly, in the presence of Cameron Biscoe, a citizen of my county, that I did attach the following named lands as the property of the within named defendant, William H. Trader and Ellen Trader his wife.” (Here follows a description of the land.) “ Levied on by virtue of the within writ of attachment. The said William Trader and Ellen Trader, his wife, are not found in my county. Bart T. Turner, Sheriff."

Under the 7th section of the act approved March 7, 1867, this was a good levy on lands, and created a lien on the lands of defendants from the date of the attachment.

This suit was founded on a bill of exchange drawn 13th of March, 1861, by Ella R. Newsome and T. S. N. King, on Bartly Johnson & Co., New Orleans, and made payable on 20th of February after date, to Ella R. Newsome. The bill was indorsed by Ella R. Newsome to plaintiff. This suit is brought against Trader and his wife as one of the drawers, she having intermarried with defendant, W. H. Trader.

There are three counts in the declaration. The first avers presentment to the acceptors at maturity, which, allowing grace, was 23d day of February, 1862, and refusal to pay and notice to defendants.- The second count avers that no demand was made upon acceptors at maturity, and no protest and notice was given until July 8,1862, for the reason that a state of war existed, and there was no intercourse between New Orleans, Louisiana, and Lexington, Kentucky, the former being ■the residence and domicile of the acceptors, and the latter the home and residence of the holder, Harrison; that on July 8, •demand of payment was made on the acceptors, and they refused to pay, and protest and notice to defendants, etc. The third and last count avers the presentment of the bill for payment, '.and the refusal of the acceptors to pay, and the protest, and .avers as an excuse for notice as follows : plaintiff in fact says that the said Ella N., and the said King had no effects in the hands of the said Bartly Johnson & Co., from the time of the •said making of the said bill of exchange to the presentation and protest of the said bill of exchange, nor had they paid the said Bartly Johnson & Co. any consideration for the acceptance and payment thereof, and that they were not damaged for the want of notice of the protest thereof. On the 9th of January, 1868, the appellees filed separate pleas of the general issue, and the appellee, W. H. Trader, filed also a separate special plea in bar; to which last plea the appellant interposed .•a demurrer, which was by the court below overruled, and a final judgment in bar wras rendered in favor of defendants therein. From this judgment the appellant appealed. His appeal was dismissed by this court on the 27th day of January, 1870. See Harrison v. Trader and wife, 25 Ark., 621. The appeal was dismissed because the transcript was not filed within the time prescribed by law.

Appellant sued out a writ of error on the 1st of March, 1870, •one month and four days after the appeal was dismissed in this court. There was no supersedeas, or bond, either on the appeal or writ of error. At the December term, 1870, of the supreme court, a motion was made to dismiss the writ of error, which was overruled. See 27 Ark., 59. At the December •term, 1871, this court reversed the judgment of the court below, and ordered it to sustain tbe demurrer to the plea of Trader. 27 Ark., 288.

When the mandate of this court was filed below, the demurrer to Trader’s special plea was sustained, and the case was tried upon the general issues by the court below sitting as a jury. The court found the issues for the plaintiff, and rendered judgment in personam against defendants, but on motion of appellees, expressly refused to order the judgment to be executed against the property attached.

The record entries are as follows:

“Now on this day come the parties in this cause, and announcing themselves ready for trial, and neither party requiring a jury, this cause is submitted to the court sitting as a jury, when the defendant filed his notice of what he intended to give in evidence, and notice that he should ask the court not to declare any judgment, it might render a lien upon the lands attached herein; and the court heard the evidence, proceeded to declare the law as contained in the seven propositions filed, to which judgment of the court in declaring the 3d, 4th, 5th, 6th and 7th propositions as law, the said defendant excepted at the time. The court thereupon proceeded to find the facts as stated in the finding of facts filed in the cause, and the court being sufficiently advised, etc., doth find that the said defendants are indebted to the said plaintiff in the sum of four thousand, two hundred and thirty-seven dollars. It is therefore considered by the court that the said plaintiff do have and recover,” etc.

And after thus rendering judgment, the court proceeded to order as follows : “ Inasmuch as no supersedeas was issued, nor bond given on the appeal or writ of error, it is further considered by the court that the attachment lien was lost by the judgment of this court pronounced at the November term, 1867, December 1, 1867, to which judgment of the court that the attachment lien was lost, said plaintiff excepted at the time, and brings here into court his bill of exceptions, which is signed, sealed,” etc.

Plaintiff below prepared and filed an elaborate bill of exceptions, and motion for new trial, setting out in full all the evidence, and made a motion for a new trial on the whole case, as well as on the ground of refusing to recognize the attachment lien, which was overruled by the court below, to which appellant excepted. This was a work of supererogation on his part, for the 'declaration, writ, return and proceedings of this court, and of the court below, are all of record, and sufficiently presented the point involving the adverse decision, in which the court below practically held the attachment lien void, and rendered a personal judgment only. It may be fortunate for the plaintiff that defendant filed no motion for new trial, and took no appeal from the personal judgment, or rather, it might have been in such case attended with some risk, for the facts in his bill of exceptions might have been used against himself.

The appellees have gone extensively into the facts and instructions, as set out in the bill of exceptions of appellant, but as they have filed no motion for new trial, nor have appealed, we would not reverse the personal judgment against them on the case before us.

In this case the court found that the draft was drawn in March, 1861, and accepted for accommodation of drawers, to be paid one year afterwards, on an express promise made by the drawers to the acceptors, that cotton was to be shipped to meet it at maturity; that this cotton was not shipped. A jury might, upon this state of facts, have well found, that no notice was necessary, and the court should have instructed a jury that want of effects of drawer in the hands of accommodation acceptor, under such circumstances, would excuse notice; for,' •but for the existing war, the failing to ship cotton would have been a fraud, which the war did not so far excuse as to render demand and notice necessary. As the court acted as both court and jury, we find nothing in the declarations of law and the finding on this point, so shockingly iniquitious as to justify us in reversing the personal judgment.

The whole question then is,'Was the lien of the attachment lost by the erroneous judgment of the court below on the demurrer, and the appeal and writ of error without supersedeas ?

Proof was introduced to show that after the appeal was taken, and pending the same, Trader and wife sold the land. While we cannot assume to conclude the rights of parties not before us, we cannot, on the other hand, swerve from our duties by a consideration of possible results. We shall decide this case just as the court below should have done as between the parties, and unless such purchasers have intervened by interplea, all evidence on the subject of the purchase was extraneous. We do not decide that the purchasers could have interpleaded. We simply mean to say that the purchasers’ rights were not before the court properly, and are not here before us.

The court below having refused to declare the judgment rendered by it a lien on the land attached, and having expressly refused to allow its judgment to be executed against the attached property, and refused to enforce the attachment lien in the only mode known to the law, the plaintiff having •duly excepted to the action, the question before us is, whether this action of the court below is warranted by law. On the part of appellees, it is contended that, by the taking of the appeal without supersedeas, and the ultimate dismissal of that ■appeal in this court was an affirmance of the judgment of the court below, which, it is contended, was an implied dissolution of the attachment; and the bringing of a writ of error was a new suit; and being taken without surpesedeas, the judgment below remained in force. We might hesitate, were the question new, to decide, after the dismissal of an appeal for want of being prosecuted in time, that a writ of erfor might be prosecuted ; and might feel strongly inclined to agree with appellees that the dismissal of the appeal was an affirmance. But we have not looked into that question, because, in this case, this question is res adjudicate and it is the law of this case that a writ of error lay after the appeal was dismissed; and if the writ lay in the case, we know of no rule which would limit its operation. The plaintiffs had the statutory period within which to bring it, and all his rights remained unimpaired, although in abeyance until vitalized by the action of this court compelling the court below to withdraw the bar which it had interposed by sustaining erroneously the plea in bar. Appellees cite authorities to show that in case of dissolution of an injunction, an appeal without supersedeas does not reinstate it.

The first case cited is Hart & Hoyt v. The Mayor and Aldermen., etc., 3 Paige, 381. In this case it was held that in the absence of statutory provisions, no appeal from an order dissolving an injunction would restore it, and that there must be an order from the proper court reinstating it pending the appeal, citing Hoyt v. Gelston, 13 Johns., 139; Wood v. Dwight, 7 Johns. C., 295. In the case in 3 Paige, above cited, the chancellor uses this pertinent language : “ It is there insisted that an appeal from an order or decision of the court refusing to grant an injunction gives to the applicant the full benefit of an injunction pending the appeal, and restrains the other party from proceeding.” The chancellor thereupon proceeds to decide that the appeal has no such effect. All the other cases cited by appellees are kindred cases of injunction, except the-case of Simpson v. Simpson, 25 Ark., 487, which was a divorce case. The appellee quotes the language of Justice McClure in the case, in which the late distinguished chief justice facetiously remarks : “ If Mrs. S. had married after the decree of divorce Ind before the taking of an appeal by the appellant, we doubt if the reversal of this judgment would have restored her to the loving embrace of Enoch H. Simpson.” This remark of Justice McClure was mere dicta; but if good law, has no analogy to this case, for a criminal prosecution for bigamy would have been the only remedy Enoch would have had, as there is no writ known to the law to force a wife to the “ loving ” embrace of a divorced husband; and the want of criminal intent would have acquitted Mrs. Simpson in the given case. But it might be quite a different question if the legitimacy of the issue of such a second marriage was presented.

The cases cited by appellee in reference to injunctions indicate clearly the line of distinction between injunctions and attachments. An injunction exists by and inheres in the order of the court; that removed, there is no injunction, and in the absence of a statute, even an appeal with supersedeas would not continue the injunction without an order of some court of competent jurisdiction. Kerr on Inj., 214.

But in attachment liens, the right grows from and inheres in the law, and the act of the plaintiff in bringing. suit properly, and the clerk in issuing the writ, and the sheriff in levying it on defendant’s property as the law directs. These acts being performed, the lien, though inchoate, is. perfect and substantial; as much so as the lien of a mortgage when properly executed, acknowledged and recorded; as much so as a mechanic’s lien, when the work is done, and the lien proven and filed in the clerk’s office, as the law directs; as perfect as a vendor’s lien, where his purchase money is unpaid for real estate.

If in any one of these cases, any one of these lien-holders has to apply to a court for its action, to enforce his lien, which action of court is equally necessary to all the above liens, would it be contended that the erroneous action of the court in refusing redress, by which the party would be driven to an appellate tribunal, would so far impair his rights as to prevent their enforcement at all?

It is contended that there is here an intervening purchaser. We have no such case before us. This plaintiff is entitled to enforce his lien against the land attached. If there is a purchaser who can establish in fact, or in law, that he is not a purchaser pendente lite, and occupies a berter attitude than the defendant, by reason of any fact or circumstance, or that he got more than his vendor could have, to wit: the land free of the lien by reason of estoppel of plaintiff by some act or declaration, we will decide his case when properly presented.

In the case of Earle v. Couch, 3 Metc., 450, the facts were, that a bill was filed by creditors of James D. Couch, to set aside a conveyance of slaves to his wife, which, it was alleged, was made to defraud Couch’s creditors. In the transaction, one Armstrong conveyed certain slaves to a trustee for Mrs. Couch, and received conveyance of other slaves. Armstrong, in his answer, denied that he had any knowledge of any fraudulent intent on the part of Couch; alleges that the transaction on his part was honest; that he had conveyed four slaves, Esther, Frances, Sam and Henry, to Thompson in trust, in consideration that J. D. Couch had conveyed to him the slaves in controversy and his interest in his father’s estate. Armstrong makes his answer a cross-bill against John Couch, the infant son, and only heir of Mrs. Mary F. Couch, who was then dead, and against the administrator of Thompson, Mrs. Couch’s trustee, who was also dead; and suggests that if the deed from James D. Couch to him should be adjudged fraudulent, and he should be deprived of the property therein conveyed to him by Couch, that his deed to Thompson, the trustee, should be cancelled, and he be restored the slaves therein conveyed. John Couch, a minor, the only heir of Mrs. Mary Couch, was made a defendant to the creditors’ suit against J. D. Couch and Armstrong. On the 13th day of September, 1850, a decree was rendered by which both of the deeds were set aside, to wit: the one from J. JO. Couch to Armstrong, and the one from Armstrong to Thompson, in trust for Mrs. Couch.

The slaves which had been conveyed by Armstrong to Thompson were delivered to Armstrong by order of the court, who sold the slaves to persons who were cognizant of the suit and its results. This decree stood until 1858, when John Couch, who had answered the former suit by guardian ad litem, filed his bill of review; upon hearing of which the former decree was set aside, and the case opened as to the rights of the infant John Couch ; from which decree the purchasers of the slaves from Armstrong, who were parties, appealed. In delivering the opinion of the court, Judge Peters uses this language:

“ But another question materially affecting the interest of all the appellants is presented; and that is, are they to be regarded as purchasers 'pendente Hie? At the time the original decree was rendered, the appellee was an infant, and so was when the bill of review was filed. The several purchases were made by appellants between those periods. Said decree, when they made their purchases, was liable to be reviewed and set aside upon a bill of review, or reversed by suing out a writ of error;” and cites the case of Clary v. Marshall's Heirs, 4 Dana, 95, wherein that court held that a purchaser of a tract of land from a party who had obtained a decree and conveyance of the land from a commissioner appointed by the court for the purpose, which decree was set. aside upon a bill of review filed after his purchase, acquired no better title to the land than his vendor had; that he was a purchaser pendente lite, and bound by the proceeding under the bill of review. He also cites Debrell v. Foxworthy, 9 B. Monr., 228, where the same rule was applied. He then concludes: “We see no reason why the same rule should not apply here.” We think these cases bear a striking analogy to the case now before us.

In the case of Simmon v. Price, 18 Ala., 405, in which was the question of an administrator’s final settlement, and the right of a former administrator, who had finally settled, to call a subsequent administrator de bonis non, to account for liabilities of the estate to him as former administrator. From the action of the orphan’s court appeal was prosecuted; pending the appeal without supasedeas, the administrator de bonis non had distributed the estate to the heirs, and his settlement had been made and approved by the orphans’ court. The supreme court of Alabama held that this did not debar the original administrator from requiring of his successor a final settlement, with him, which was the matter involved in the appeal. In delivering the opinion of the supreme court, Dargan, C. J., uses this language : “ When a judgment is reversed, the rights of the parties are immediately restored to the same condition in which they were before its rendition; and the judgment is said to be mere waste paper,” and cites Dupuy v. Roebuck, 7 Ala., 484.

In the case of Argenti v. San Francisco, 30 Cal., 461, the supreme court of California held that the consequence of the reversal of a judgment was, that the partiesen the court below have the same rights which they originally had, citing Phelan v. Supervisors of San Francisco, 9 Cal., 15; Steane v. Acquire, 7 id., 443.

Mr. Drake, in his work on Attachments, sections 411, 412, says: “The dissolution of an attachment necessarily discharges from its lien the effects or credits on which it may have been executed, whether reduced to possession by the officer, or subjected in the hands of garnishees. When dissolved, the defendant is entitled to a return of the property on demand, unless the judgment of dissolution be suspended by writ of error or appeal. This, it is said, takes away the defendant’s right to demand the property, and the officer, if he have notice of the writ of error or appeal, would hot be justified in returning the property. But if before writ of error or appeal the defendant demand it, and the officer gives it up, the latter cannot afterwards, on reversal of the judgment, be held responsible for it.

The dissolution of an attachment, however, does not, it appears, so far destroy it, that under no circumstances can the plaintiff, upon the reversal of the judgment, reassert his right to the avails of the attachment. Thus, where two attachments were executed on the same effects, and that first executed was quashed, and the judgment quashing it was reversed, but in the mean time the property was sold and the proceeds paid to the plaintiff in the second attachment, it was decided that the first attachment creditor was entitled to recover -from the second the sum paid to him, citing Carpenter v. McCorkle, 9 Grattan, 177.

But where over three years had elapsed before the writ of error was prosecuted, it was held in Morrow v. Holloway, 3 G. Greene, 157, that the attachment was not revived as against third persons. This was based purely upon the ground of the unreasonable delay.

These decisions have reference to personalty; as to which it is necessary that a reasonably prompt conclusion to the litigation must be had. If not, the party delaying may impair his rights. But as to real estate, the law is somewhat different. Says Mr. Drake, at sections 239, 240, The effect of an attach ment of real estate is to give plaintiff a lien upon the property and this lien has been held to be as specific as if acquired by the voluntary act of the debtor, and stands on as high equitable ground as a mortgage, citing Carter v. Champion, 8 Conn., 549.’ * * “ Unlike the case of a levy on personalty, the officer levying acquires no lien or special property in the land. He is not required or authorized to take possession of it, nor in any event is he accountable for it, or for its rents. His agency and authority are terminated whenever the duties are performed for which process was put into his hands. The lien created by the attachment, whatever may be its character, is in the attaching creditor, and he only can release or discharge it.” Much stress is laid in the argument of appellees as to the want of a supersedeas. The office of a supersedeas is merely to suspend the execution of a judgment. There was no execution to be suspended, except for cost in this case. The law, as it then stood and now is, required a bond only for the purpose of indemnifying the party, whose execution was suspended, for the delay. The plaintiff below was willing to pay the costs, or risk an execution for them, and no other judgment needed a supersedeas.

The consequence of the judgment of the court was a dissolution of the attachment; the appeal suspended the judgment as to every thing except its execution for money due for cost, and but for the statute which prohibits appeals and writs of error from suspending the execution of judgments unless a a bond is given, tbe effect of appeals and writs of error would be to suspend all action in the court below for all purposes, because the jurisdiction of the cause is no longer there, but is transferred to the appellate court. Our statute extends only to supersedeas of executions, all other features of the court’s action are suspendedby-an appeal or writ of error; and if the cause is reversed, the rights of parties stand as though no action had ever taken place in the inferior court. In this case, what better bonded indemnity did defendants wish than the original attachment bond, which was good until the case was finally disposed of?

It is argued also that titles are jeopardized if the law is, that the lien is restored and relates back; that a purchaser finds a clean title on the record, except a dissolved attachment, as to which the party has three years within which to appeal, etc. If a party desiring to purchase a tract of land finds it in this condition, he is bound to know the law, and he can either let his purchase alone, or apply to the plaintiff in the attachment and get a direct statement, which will estop him, that he does not intend to prosecute it. If he fails to do this he takes the chances and risks of showing some act or circumstance other than the mere dissolution, to warrant him in claiming to be an innocent purchaser.

We therefore, find no error in the proceeding of the court in rendering judgment against defendants herein, and the same is affirmed; but finding error in tbe proceeding of the' circuit court of Phillips county in holding and declaring that the lien of plaintiff on the land attached was lost, and in re-' fusing to order execution against the same, said orders and rulings are in all things reversed, annulled and set aside, with costs, and the judgment of the court below will be executed accordingly.

English, C. J., did not sit in this case.

      This dicta is sustained by the following authorities: Kerr on Inj., marg. p. 636, note; Hicks v. Michael, 15 Cal., 107; Merced Min. Co. v. Fremont, 7 id. 130; Garrow v. Carpenter et. al., 4 Stew. & Porter (Ala.,) 336; Boren et. al. v. Chisholm, 3 Ala., 513. Contra, Turner v. Scott, 5 Randolph, 332. — Rep.