author: Hon. JonN J. ClekdbNIN, Special Judge.

text:
    Huyck vs. Meador.
    Though one partner cannot sue his co-partner, at law, in actions ex contractu, for matters connected with the partnership, they stand in the same relation to each other as other persons as to all contracts or transactions not connected with the partnership.
    A written acknowledgment oí indebtedness to the plaintiff, without containing a promise to pay, or time of payment, may well be described in the declaration as a promissory note and due immediately.

      Appeal from PulasJd Cireuit Gou/ri.

    Hon. Liberty Bartlett, Circuit Judge.
    Rice, Garlahd and Farr, for the appellant.
    Defendant’s special plea was a plea in abatement, (1 Oh. 440, 461, note; Staph. PL, 49,) and should have been stricken out because not sworn to. 5 Ark., 140, 522; 14 ib. 27.
    The plea is fatally defective, because it sets up a partnership between plaintiff, defendant and others, but does not state that the note sued on, or the consideration thereof, or the matter set up in the common counts,,in any way grew out of, or was then connected with their partnership matters. 6 Ark., 191; 16 Wendell, 601; Story on Pari., 351, note md authorities referred to; GoTlyer on Part., see. 268.
    One partner can be sued by another to pay a specific balance, Paim vs. Hateher, 25 Wendell, 450; 6. Barb., 537; Story on Part., 218-229; 4 Comstock, 486; And as to contracts or debts not connected with the partnership, the partners stand towards each other as any other two persons would. Moody vs. Payne, 2 J. O.Ii. 548; Story on Part., 372; 1 Story’s Eg. Jur., seo. 677.
    Where no time is fixed for the payment of a note, it is payable immediately. 8 J. Ii., 191, 291; 15 Wend., 308 ; 3 Pernio, 12.
    That the instrument sued on is a promissory note. Jolmson vs.
      Johnson, Mvnor 263 ; Smith’s Merea/ntile Law, 263; Russell vs. Whipple, 2 Oowen, 536; 1 Rill 259; 10 Wend. 680; 29 Barb. 180 ; 6 N. Hamp. 364; 1 Verm. 22. 2 Hill 59.
    JenNings, for appellee.
   Hon. JonN J. ClekdbNIN, Special Judge.

The appellant in this court, who was the plaintiff in the court below, commenced his action of assumpsit in the circuit court of Pulaski county. The declaration contained two counts ; the first count based on the following instrument in writing :

“ Hue I. Huyek or order, the sum of three' thousand nine hundred and twenty eight dollars, ($3,928,) for value received of him, and on settlement up to date.”

C. Y. MEADOR.

Little Rock, Ark., Feb. 16, 1865.

[Stamp.]

And the second count being a general assumpsit account for money had and received, money paid, etc. The defendant filed two pleas, the first non-assumpsit, and the second a special plea to the second count of the declaration. The second or special plea is as follows:

“ And the said defendant by attorney comes and for further plea to the second count of said plaintiff’s declaration, by leave of the court here for that purpose first had and obtained, says OjGíío non, because he says that before the making of the said several supposed promises in said second count mentioned, to wit: on the first day of June, A. D. 1864, he, the said defendant, and the said plaintiff, and Erastus Marshall, and Charles Carroll, at the city of Little Rock, in the county aforesaid, entered into co-partnership in the theatrical business, and as such partners carried on business together under the firm name, style, and description of “The Yarieties Theatre” company in said city, from thence hitherto, and that there are unsettled accounts growing out of the business of said copartnership, which still remain unsettled and unadjusted, and that a suit in chancery is now pending in the circuit court of the United States for the eastern district of the state of Arkansas, between the said Charles Carroll complainant, and him the said defendant, and the said Huyck and Marshall, defendants, for an account of said partnership dealings, and for a dissolution of said partnership, which he, the said defendant, is ready to verify, wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action as to said second count against him.”

The plaintiff took issue to the first plea, and filed his demurrer to the second plea to the second count of the declaration. The court overruled the demurrer, and the plaintiff stood on his demurrer. The case was submitted to the court sitting as a jury upon the first count in the declaration and the first plea, and upon the trial found the issue for the defendant; the plaintiff moved for a new trial, which motion-being overruled, he excepted to the opinion of the court, and brought his case to this court by appeal.

The first point raised by the record and the assignment of error, for our consideration, is as to the sufficiency of the second plea of the defendant to the second' count of the declaration. This plea is unquestionably defective and insufficient, it tenders an immaterial issue, it alleges that a partnership existed between the plaintiff and defendant and other persons, but it does not aver that the matter in controversy in the suit then pending was in any manner connected with that partnership, or was any part of or connected with it.

Now while we admit the proposition that one partner cannot sue another partner at law in actions ex contractu, for matters connected with the partnership, we are equally clear that for contracts or transactions outside of the partnership, the parties stand in the same relation to each other in the courts of law as other persons. Bisset on Partnership, 78, to 86. In the case of Van Ness vs. Forrest, 8 Cranch 30, it was decided that “ if one partner give another his promissory note or his separate acceptance for value received on account of partnership, an action will lie on such note or bill. And in the case of McCall vs. Oliver, 1 Stewart, 510, it is decided “ that an action at law lies by one partner against another on a writing ascertaining the amount due from one to the other, on a settlement, though there be no express promise to pay.” See, also, 6 Ark., 191; 16 Wendell, 601; Story-on Partnership, 351. Authorities to this point could be multiplied, but we deem those already cited as sufficient.

Testing the plea by these principles and authorities, we are of the opinion that it was materially defective and insufficient, and that the circuit court erred in overruling the demurrer to the plea.

We come now to consider the other objection, raised by the record and the assignment of error. This question grows out of the action of the court bglow in refusing to permit the plaintiff to read as evidence, on the trial, the writing, (a copy of which is given before in this opinion,) and which writing may be said to be the foundation of the suit. The first count of the declaration avers that the defendant “made his certain promissory note in writing, etc.” and that “ he promised to pay immediately, etc.” The first question to be decided, is, was the instrument offered in evidence a promissory note; and secondly, if it was, when was it payable.

A promissory note is a written promise for the payment of money. (Bayley on Bills, 1,8.) The case of Russell vs. Whipple, 2 Cowen, 536, was upon a due bill in the following words: “Due Lawson Eussell, or bearer, two hundred dollars and twenty-six cents, for value received.” The court held.in this case that this instrument was a promissory note.

In the case of Kimball vs. Huntingdon, 10 Wendell, 679-80, the court decided that an instrument similar to the one offered in evidence in this case is a promissory note, as it contains every quality essential to such paper, the acknowledgment of indebtedness on its face implies a promise to pay. So in the case of Franklin vs. Marsh, 6 New Hampshire Rep., 364, it was beld that a writing in * these words : “Good to Cochran or order, for thirty dollars, borrowed money,” is a promissory note. See, also, Smith's Mercantile Law, 263 , 1 Hill, 259; 1 Vermont, 22; 2 Hill, 59.

Holding, as we do, that the instrument declared on in this case and offered in evidence is a promissory note, the enquiry next arises, when, by its terms, did it become due and payable. No time of payment being named in the note, it is due immediately, and was so correctly described in the plaintiff?’s,cIeclaration. See Sacket vs. Spence, 29 Barb., 180; 8 Johnson, 191, 192; 15 Wendell, 308; 3 Denio, 12.

We are therefore of the opinion that there was no variance between the note offered in evidence, and that declared on; and that the circuit court erred in not permitting the note to be read in evidence.

The judgment of the circuit court must be reversed, the cause remanded, with instructions to the court below to grant a new trial, to sustain the demurrer to the defendant’s second plea to the second count of the declaration, and for such other proceedings to be had in accordance with law and not inconsistent with this opinion.

Mr. Chief Justice YoNley did not sit in this casé.


source: Caselaw Access Project

author: Mr. Chief Justice WalKee

license: Public Domain

text:
    T Hodges Ex parte.
    On a contract for the sale of lands for the price of $30,000, one third to be at a short day, the balance in five years with interest, the vendors executed their covenant to the vendee, reciting the contract and binding themselves to make a good title to the lands on payment of the balance of the purchase money, unless the vendee shall then prefer to resell to the vendors; in such ease they agree to pay him for the land $50,000, and if they fail or refuse to pay that sum for the land, at the times stipulated in the original sale, then "to forfeit, and release to the vendee one half of the balanco of the purchase money on their sale to him: Held, that the latter portion of the confii'act, as recited in the covenant, was not an independent and separate contract, but that all its provi. sions should be taken and held as one contract, made upon sufficient considero» tion and binding upon the parties.
    Where a defense, legally cognizable at law has been unsuccessfully interposed in a suit at law, the defendant will not be allowed to avail himself of it in a court of equity; but where the defence is1 altogether equitable, though unsuccessfully attempted at law, it may afterwards be interposed in equity, (14 Arh., 363 ; 22 Ark. 282.)
    Where a defendant in a suit at law comes into a court of chancery to injoin the proceeding, he must, as a genera] rule, submit to judgment; and the offer in his bill to make his defense only in equity and abide the decision of that court, is a substantial compliance with the rule.
    A vendor who comes into a court of equity to enforce the execution of a'con-traet for the sale of lands, should tender a perfect and unencumbered title; at all events, such a title as he contracted to make.

      Application for Mandamus to grant an Injunction.

    Pike & Adams, for the application.
    The complainant offers in his bill to withdraw all defence at law and submit to judgment for the reason that his relief is alone in equity; and therefore the rule in Gonway vs. EUison, 14 Arh., 360, is not applicable in this case.
    The contract to re-purchase is not a nude or naked contract, without consideration; but is as valid and binding upon the parties as the original contract of sale. Silly vs. Silby, 5 A.<& Ellis, 548; 1 Par. on Con., 448 and authorities cited ; ib., 430. It was part of the consideration for complainant to pay — to enter into the contract.
    The contract oí sale and re-purchase is one entire contract, made upon and for a large and valuable consideration, paid according to contract, — is an entire contract, good and obligatory in all its parts; and the vendors refuse to re-purchase as stipulated in the contract, or to release the $10,000 and make the vendee a good title to the land.
   Mr. Chief Justice WalKee

delivered the opinion of the court.

This case comes before us upon petition for mandamus to compel the judge of the first judicial circuit to grant to the petitioner an injunction. Whatever the real merits of the case may be, upon issue and proofs, we must, for the purposes of this application, consider the allegations of the bill as true.

It seems that, on the 5th day of November, 1859, Daniel and James Hughes, for the consideration of $30,000, ten thousand of which were to be paid on the 20th of February, 1860, and twenty thousand on the 1st of January, 1865, and for the payment of which Hodges executed to them his writings obligatory of that date, sold to the said Hodges twelve hundred acres of land, situate in the county of Crittenden, Arkansas; and thereupon executed to Hodges their covenant, reciting the sale of the land, a description of it, the consideration or price to be paid for it, and time of payment; and continuing as follows: “Now, therefore, in consideration of the premises, we the said Daniel Hughes and James Hughes, hereby bind ourselves, our heirs, etc., to the said Hodges, his heirs, etc., as follows: First, to make the said Hodges a good and sufficient title in fee simple to said land with full warranties, to be prepared by us and tendered to said Hodges, on the payment of the balance of said purchase money for said land, unless the said Hodges shall, on the maturity of said balance of said purchase money, prefer to re-sell said, tract of land to us; then we agree to pay him for said land the sum of $50,000; and in case we fail or refuse to pay said Hodges or his assigns the said sum of $50,000, one third cash, on the same terms on which it is now sold, say balance in five years time with interest, for said tract of land at the time appointed above, then we forfeit and release to said Hodges or his assigns the one-half of said balance on said purchase money for said land. Said Hodges is to be allowed, before or after the. first day of January, 1865, to make his election whether he will receive a deed for title to said land as aforesaid, or re-sell the same to us at the price of $50,000. And he is not required to give notice of his said election until said last payment for said land is demanded; and then, notice to the person or persons so making the demand is notice to us both of such election. The said Hodges agrees on his part, if any ot the titles fail to said land, and he is evicted from possession of any of said land, to accept, in lieu thereof, acre for acre of the lands adjoining said tract and immediately south of the military road, known as the Hill lease, together with other lands south, east or west of said lease: and said Hodges is to retain possession of said land on the south side of said road, until the title of the entire tract first aforesaid is perfected by us, if the same should not be made perfect at the expiration of the lease of said Hill: said Hodges further agrees, on his part, if he tails to make payment of the said first payment of $10,000, (and we do not accept less) on or before the 20th day of January, I860, then this contract for the sale of said land from us to said Hodges is void) and not binding on any of the parties aforesaid.

These several mutual covenants were subscribed and sealed by both parties, and in regard to which and the circumstances connected with, and growing out of it, complainant relies for equitable relief.

Amongst the most prominent reasons assigned by the judge for having refused to grant the injunction is, that so much of the contract as relates to the re-sale of the land by Hodges to Hughes is without consideration and void. There are several acts covenanted to be performed by the respective parties, intended to anticipate and provide for contingencies that might or not arise, and to secure an election to Hodges, when the last payment became due, or thereafter, upon request of payment, either to pay the residue of the purchase money and take a deed for the lands, so to be conveyed, or to re-sell or release to the Hughes his claim to the land, giving to them notice at that time of such intention, which re-sale or release the said Hughes agreed to accept, and pay to Hodges $50,000 for the land.

This covenant of 'the Hughes, by which they bound themselves, upon notice to that effect, to take back the land sold to Hodges and pay him $50,000 for it, was not an independent and separate contract, but it was part of the original contract, in consideration of which, it may be, that Hodges was induced to make the purchase. The Hughes had secured .to themselves the immediate use of $10,000, and the annual payment of the interest on $20,000. In consideration of this, and the covenants made by Hodges to them, they agreed with Hodges that, if he preferred doing so, they would take back the land and allow him $50,000 for it, two-thirds of which was not to be paid short of five years thereafter. view of this contract and its several provisions, we do not hesitate to decide that it should be taken and held as one contract, made and executed for the consideration of the sum agreed to be paid for the land, and the several mutual covenants of the parties.

In this conclusion we are- fully sustained by the case of Stansbury vs. Feringer, 11 Gill & Johnson, p. 152, where it is said, that where a contract consists of several distinct and separate stipulations on one side, and a legal consideration is stated on the other, it must be considered that the entire contract was in the contemplation of the parties in each particular stipulation and forms one of the inducements therefor; and no one stipulation .can be supposed to result from, or compensate for the consideration, or any part of it, exclusive of other stipulations, unless the parties'have expressly so declared.

So, any benefit accruing to him who makes the promise, or any loss, trouble or disadvantage undergone by, or charge imposed upon him to whom it is made, is a sufficient consideration to sustain the promise. Smith on Contracts, page 90.

Thus holding the contract upon sufficient consideration and' binding on the parties, it becomes our duty, if practicable, to give it effect in all its parts, according to the intention of the parties: and when such intention can be distinctly ascertained, it will prevail. Story on Con., ch. 21, p. 3.

Under this contract Hodges took possession of the land, and thereafter, on the 9th of January, 1860, by a subsequent agreement, the Hughes conveyed 280 acres of the land embraced in the covenant to one Reuben Chick, in trust for the use of Hodges’ wife, for which he paid to them $7,000 cash, which sum was to have been deducted from the amount due them: That in addition to this sum and $10,000, the first payment on the land, Hodges, on the 1st of January, 1862, paid to them $1,363 40, taken together, making the whole sum paid to Hughes $18,363 40: That at the time the bond for $20,000 became due, Hughes and their representative resided in the state of Tennessee, within the lines of the Federal army and beyond reach with personal safety: That soon after the close of the war, in June,' 1865, he gave to the holder Of the bond notice of his election to re-sell the lands upon the terms agreed upon, but that the holder of the bond and representative of Hughes utterly refused to comply with their covenant, although he offered at the time to re-sell and convey to them all his title .and interest in said lands free from all incum-brance which had been placed upon it either by the deed for 280 acres to the use of his wife, or a deed of trust which had been executed by him to secure the payment of a sum Of money; That he now offers to remove all incumbrance which has accrued since his purchase, and convey and deliver to the vendors, Hughes and their representatives, at such time and in such manner as the court may direct.

Complainant insists on his right to a specific performance of the contract under his election: Exhibits and makes part of his bill, the proceedings in the court of law on the bond for $20,000, and several lesser notes given for the payment of the annually accruing interest on such bond: States that he has no valid defence at law, offers to withdraw all defence in that court, and to submit to judgment as' the court of chancery may direct, to make his only defence there, and in all respects submit to and abide the final decision of that court.

It will be observed that the defendant had interposed a defence in the suit at law on the bond and notes. What that defence was does not appear from the pleadings. Had the defence been such as might have been legally interposed in either court, after the defendant in tbe court of law had elected to make such defence there, he would not, as repeatedly decided by this court, be permitted to abandon such defence and offer it in a suit in chancery upon the same subject matter. But where the defence is altogether equitable, even though unsuccessfully attempted in the court of law, it may afterwards be interposed in equity. Conway vs. Ellison, 14 Ark. Rep., 363; Worthington vs. Curd & Co., 22 Ark Rep., 282.

As a general rule, it is true that, where a defendant in a suit at law comes into a court of chancery to injoin proceedings at law, he must submit to judgment; that is, the plaintiff in the suit at law has a right to be placed in such situation, that when the injunction is dissolved (should such be the case,) he may, without unnecessary delay, have execution of his judgment. This, the complainant expressly offers to permit, to make his only defence in equity and abide the decision of that court, which we think is a substantial compliance with the rule.

The bill seems to have been considered by the judge, to whom application was made for an injunction, as intended to rescind the contract, not, as we have said, to enforce its specific - execution: and, therefore, all the questions with regard to the defect of title in the vendor, or the sufficiency of the allegations with regard to conflicting titles need not to have been considered, because, even admitting that the title in the vendor was perfect, which, according to the allegations of complainant, is very questionable, indeed with regard to several tracts much incumbered, still we can see no sufficient reason why the vendor should not be required to take back the land upon the terms agreed upon at the time as part the contract of purchase. There is nothing in the enforcement the contract which would be considered oppressive and hard, against good conscience. But for the derangement in the system of labor and the probable change in the valne of lands, the result of the late civil war, which could not have been anticipated the parties contracting, it is not improbable that it would been a matter of speculation and profit for the vendors to'hávh taken back the land upon the terms agreed upon. They had already received from Hodges $18,363 in part payment of the land. The complainant alleges that he has cleared nearly four hundred acres of land and made other improvements, in all, of the value of $15,000; which, when added to the balance unpaid of about $14,000, would make $47,000. The largely increased value of the lands by improvements made by complainant, the use of which the Hughes were to have* for the five years before the payment of the two-thirds of the purchase money, would be considered in the equitable settlement of rents, etc. But, then, if this should prove a hardship, or in the opinion of the Hughes, be oppressive, they expressly reserved to themselves the right to remit $10,000 of the original purchase money.

"When the vendor comes into court (as the complainant has in this case,) to enforce the execution of a contract, he should tender a perfect and unencumbered title; at all events a title such as he contracted to convey. In this case, it was contemplated that the title should be. such as the Hughes had when they sold'to him; and before he can enforce the execution of the contract, the court will see that he remove from the land all incumbrances placed on it since his purchase. Complainant admits that he has encumbered two hundred and eighty acres by deed in trust to fhe use of his wife, and the other lands by a deed of trust to secure the payment of a sum of money; but says he can and will disencumber the land, and convey it at such time and in such manner, as the court may direct. Whether he can do this or not, or whether the several allegations in the bill are true or not is not for us now to consider.

In view of the whole case, as presented.by the bill and the law governing such cases, we are of opinion that the judge of the circuit court for the first judicial district should have granted to the complainant an injunction in accordance with the prayer of his bill. And that a peremptory mandamus be issued requiring said judge to grant to the complainant an injunction herein, in accordance with the prayer of his bill, under the rules and practice governing such cases.


author: Mr. Chief Justice Waleee

text:
    Hanger and Ayliff vs. Dodge
    ■When the maker of a note affixes to it a seal after the Btatute bar has matured, no question as to validity of the act arises on the plea of the statute of limitations— a speoial plea of non ost factum, would have been the proper defence.
    "When one of several makers of a promissory note affixes a seal to it, with the assent of the payee, such instrument of writing will, on the plea of limitation, be held to be his deed, and will be governed by the statute applicable to sealed instruments; but if such sealing was done without any authority on the part of the other maker and he neither recognizes nor affirms such act, he will not be bound by it.
    If a petition in debt sets forth two notes of the defendant, each note is, in effect, a separate count for a distinct and independent cause of action; and on issue to a plea answering both counts, the finding may be for the defendant on one count and for the plaintiff on the other, according to the proof.

      Appeal from Pulashi Circuit Court.

    lion. Liberty Bartlett, Circuit Judge.
    Clare, "Williams & Martin, for appellants.
    The uniting of two notes in one petition in debt is not authorized by the statute (Digest, 838,) and this proceeding being in derogation of the common law, the statute must be strictly construed.
    It the two notes could be sued on in one petition, they must be considered as separate counts; and the court erred in instructing the jury that if Hanger applied his seal to either of the bonds they must find the issue for the plaintiff. The instruction should have been to find according to the proof as to each count. 16 Ark., 303; 1 Ch. PI., 692; 1 Savmd., 312, note 5.
    The proof shows, as to one of the notes, that Ayliff sealed it; and to make it the deed of Hanger, it devolved on the plaintiff to show in evidence the authority of the agent under seal to do so. 12 Mass., 237.

      The sealing oí a note after it is barred does not revive it. Such act is not a part payment nor a promise in writing to pay the debt.
    Stillwell & "Wassell, for the appellee.
   Mr. Chief Justice Waleee

delivered the opinion of the court.

This is an action of debt, by petition, upon two writings purporting to be sealed. The first signed by Peter Hanger and Charles Ayliff: the second by Hanger & Ayliff. The petition is, in all respects, in conformity to our statute, and regular.

The defendants filed separate pleas; that of Ayliff was intended as a plea of limitation; the substance of which is, that the second writing set forth in the petition, signed Hanger & Ayliff, was, when executed, a promissory note, and remained such until more than five years from its date, and that, after that time, and after the statute bar had matured, he, defendant, affixed his seal to it.

If the act of Ayliff in affixing a scroll by way of seal to the note was a valid act, that is, one which he might lawfully do, with the assent of Dodge, then it is his deed, and carries with it the legal force of a sealed instrument, which would not be barred short of ten-years. But if, on the other hand, the act of making the scroll was not a valid act, it was not his deed: and special non est factum would have been his proper defence; and until so avoided, the instrument sued upon must be considered and held as the deed of Ayliff, governed by the statute of limitations applicable to sealed instruments.

The defendant Hanger pleaded special non est factum to both instruments, in which he alleged that scrolls had been affixed to his signature to each of them, whereby they were changed from promissory notes to bonds. Upon this plea issue was taken, and tried by jury, who found for the plaintiff, and judgment was entered accordingly.

The defendants moved for a new trial, which motion was overruled, and the evidence and instructions given and refused made part of the record.

After a careful examination of the evidence, we think that it is fully sufficient to fix the liability of Hanger upon the first writing set forth. The signature was proven to be his, and the scroll affixed to it appeared to have been made at the same time, with the same ink and hand. This proof was offered by-the plaintiff and stands uncontradicted by any evidence on the part of the defendant, upon whom, under the issue formed, the burden of proof rested.

The second writing, signed Hanger & Ayliff, was, from the evidence, executed by Ayliff, and for more than five years after its date, had no scroll affixed to the signature. After that time it seems that Ayliff affixed a scroll to it at the instance of Dodge. If Hanger & Ayliff were partners, or were doing business together, or otherwise connected in business, it is no where shown in evidence; nor does it appear that Hanger gave to Ayliff any authority, verbal or otherwise, to affix such seal, or that he recognized or affirmed such act after it was done. Under this state of the case there can be no doubt but that Hanger was not hound by the second writing.

The plea of Hanger was responsive to both notes, which the defendants were called upon to answer as two distinct causes of action, and for every practical purpose, in effect, separate counts, or distinct subject matters of complaint. Thus, in Saunders on Pleading and Evidence, vol. 1 p. 922, it is said that, “where several debts are alleged in indebitatus assumpsit to be due, in respect to several matters for wages, work and labor as a hired servant, work and labor generally, goods sold and delivered, money paid, money had and received, and the like, the statement of each debt is to be considered as amounting to a several count, though one promise is alleged in consideration of all the debts.” The plea of defendant answered fully .each count or, cause of action, and if the issue was sustained by the proof on either, he was entitled to judgment upon it. And .the court erred in ref using to give this instruction to the jury, at the instance of the plaintiff: “ That if the jury should find that Hanger signed either of the notes in evidence, they should find the issue for the plaintiff.” This instruction should have been limited to the issue upon the note so found to be executed by him, not the whole issue in the case. There were in fact two distinct independent causes of action set forth in the petition, and the jury were sworn to try them. They could, and we think should, in view of the evidence before them, have found one of the issues for the plaintiff and the other for the defendant; that is: that the first note was the deed of Hanger, and the second was not his deed; and we must believe, but for the instructions of the court, such would have been their finding. *

Let the judgment be reversed and set aside, and a new trial had in accordance with law and the opinion herein given.


author: Mr. Justice ComptoN

text:
    Hanger & Ashley vs. Dodge.
    Where the plaintiff, in a suit by petition in debt pursues the form prescribed by the statute, and sets out a sealed obligation purporting to be executed by the defendant by his agent, it is sufficient on demurrer -without other allegation of the authority of the agent.

      Appeal from Pulaski Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.
    Clare, Williams & Martiít for appellants.
    Stillwell & Wassell for appellee.
   Mr. Justice ComptoN

delivered the opinion of the court.

This was a proceeding by petition in debt, instituted by R. L. Dodge against Hanger & Ashley.

The petition is in the usual form, and sets out a copy of the writing obligatory sued on, which is as íollows:

$165.50. Little Rocíe, April 23,1860.

' One day after date we promise to pay to the order of R. L. Dodge, one hundred and sixty-five 50-100 dollars, with interest at the rate of ten per cent, per annum from and until paid for value received.

HANGER & ASHLEY, [seal.J

By J. O. Ashley, “

A demurrer to the petition was overruled iu the court below, and Hanger & Ashley declining to make further defence, judgment was rendered against them, from which they have prosecuted their appeal to this court.

' It is insisted that the demurrer should have been sustained, because it was not alleged in the petition that J. O. Ashley had authority to execute the writing obligatory. The petition alleges that Dodge “is the legal owner of a sealed note against the defendants,” and then follows a copy of the instrument which, on its face, purports to be the obligation of Hanger & Ashley, executed ■ by one who purports to be their agent. Admitting these allegations to be true, as the demurrer does, they are sufficient in a proceeding like this, to show a liability on the part of Hanger & Ashley. The statute prescribes the form of the petition, and in this case the pleader has strictly complied with its requirements.

Rinding no error in the record the judgment must be affirmed with costs.


author: Mr. Chief Justice Waleer

text:
    Roane vs. Green & Wilson.
    When a contract is reduced to writing in plain, definite and -unambiguous terms, and accepted by the parties as the sole evidence of the contract, neither party will be permitted to introduce parol evidence to alter, or vary its terms or meaning; nor will any conversations, or declarations, either before, at the time, or after the contract is reduced to writing, be admitted to modify or contradict its plain import. (13 Arle., 449-598; 15 ib., 648.)
    And so, in a suit upon a noté given for the payment of so many “dollars,” a plea setting up that the consideration of the note was property to be paid for in Confederate States money, and that when the note was given it was understood and agreed between the parties that the word “ dollars ” therein should be understood to mean “ Confederate States money,” held bad on demurrer.

      Error to Jefferson Oireuit Oowrt.

    lion. W. H. HaeRison, Circuit Judge.
    English, for the plaintiff.
    Stillwell & "Wassell, for the. defendants.
   Mr. Chief Justice Waleer

delivered the opinion of the Court.

This is an action of debt brought by Green & Wilson, in the Jefferson circuit court, against Julia Roane, upon the following instrument.

“ On or before the first day of January next, I owe and promise to pay Green & Wilson nine hundred dollars for value received, at ten per cent, from date till paid.

Oct. 24th, 1862. . JULIA ROANE.”

The defendant pleaded nil debet, upon which plea issue was taken, and two special pleas, to which demurrers were interposed and sustained. No further defence was offered, and judgment rendered for the plaintiffs.

The legal sufficiency of the special pleas is the sole question presented for our consideration.

The matter of defence attempted to be set up in bar of the action, was, that plaintiffs had sold to defendant beef cattle, which by express agreement were to have been paid for in Confederate States paper currency; that part of the price agreed to be paid for the cattle was paid in such currency; and that the note in suit was given for the balance due on such purchase: that it was understood and agreed between the parties at the time the note was executed, that the word “ dollars,” therein should be understood to mean Confederate States money, which was only worth about ten cents on the dollar. There was no allegation of fraud, nor that the cattle, the consideration for which the note was given, had not been received.

This brief statement of the defence attempted to be interposed by these pleas, may suffice without a more detailed reference to the allegations. Because, waiving all consideration of several obvious defects in the form of the pleadings, the facts as set forth therein, when taken in their broadest sense, and if pleaded in the most apt form, would be no bar to the plaintiff’s action. Suppose that the defendant should prove, as he has averred, that the contract between the parties was for confederate paper currency, the effect of such proof would be to set up and establish another and different contract from that declared upon; but it would certainly be no answer to a declaration upon a note for the payment of “ dollars.” Or, if the facts set forth in the plea, had been intended not to set up a new contract, but to vary the terms and legal import of the contract declared upon, if such plea be sustained in proof by parol evidence (which we will presently show cannot be done) the plea would have accomplished its purpose in thus qualifying the terms of the contract; but would offer no matter of defence-in bar of a recovery upon the contract even in its qualified state. In short, the whole scope and purpose of the plea upon the state pf facts presented would be, either to set up a new and different contract from that in suit, or to change and modify it in terms different from that which the language used in the contract imports.

Under.the circumstances of the case, we think it not improbable that the contract as reduced to writing, does not fully express the terms of the contract as agreed upon and intended by the parties contracting. But whether this be the case or not, when the contract is reduced to writing in plain, definite and unambiguous terms, and accepted by the parties contracting as the sole evidence of the contract between them, they become bound by it, and will not thereafter be permitted to introduce parol evidence to alter, or vary it in terms or meaning. There is, perhaps, no rule of law more definitely settled, or in regard to which the courts have been more unanimous in opinion, than the one now presented for our consideiation. If parol evidence can be introduced in aid of a proper understanding of this contract, it must be because there is some latent ambiguity in it, which extrinsic facts, if introduced, would make certain and definite ; for when such is not the case, then there is no margin for the introduction of parol evidence. The rule in such case is, that where the language is neither uncertain nor ambiguous, it is to be expounded according to its appropriate import. Story on Con., 14. And all oral conversations, or declarations, either before, at the time, or after the contract is reduced to writing, should be rejected, and the writing, taken as the only and sole evidence of the intention and meaning of the parties. Hooper vs. Chism, 13 Ark. Rep., 449; Jordan et al. vs. Fenno; id., 598; Glanton vs. Anthony, et al., 15 Ark. Rep., 543; Jackson vs. Sill, 11 John. Rep., 201; Smith's Law of Con., 94.

Even though, in reducing the agreement to writing, there was clearly a mistake made, parol evidence is inadmissible to correct it. As in the case of Jackson vs. Sill, 11 John. Rep., 201, in which the draftsman of a will, supposing a certain tract devised to be that which the testator occupied, described it as “ the farm the testator occupied,” without more definite description, which was in point of fact a mistake, the party was not permitted to give parol evidence to correct such mistake. In regard to which, ThompsoN, C. J., said: I think it unnecessary to notice particularly the evidence offered; for it is obvious that if it was competent, it would have shown that the premises were intended by the testator to be devised to the defendant Sill. The will was drawn, however, by Hr. Yanvechten under a misapprehension of facts, and under a belief that the testator was in actual possession of the premises. It is, therefore, a clear case of mistake, as I apprehend. And under this belief I have industriously searched for some principle that would bear me out in letting in the evidence offered; but I have searched in vain, and am satisfied the testimony cannot be admitted in a court of law, without violating the wise and salutary provisions of the statute of wills, and breaking down what have been considered the great land-marks of the law upon the subject.” In the case of Bond vs. Haas, 2 Dallas Rep., 133, the facts were, that in 1777, a contract was made for £250, current money of Pennsylvania, due one year after date. At the date of the contract continental money was rating at three for one. Upon the trial the plaintiff insisted that the whole sum should be paid in specie, and offered parol evidence that such was the understanding of the parties; but the court rejected the evidence upon the ground that it in effect altered the contract.

"Ye have seen that this is not a contract in which any latent ambiguity could exist. The contract has no reference whatever to any extrinsic facts which could be brought to explain it: and the rule in such case is, that the ambiguity must not arise from the words themselves, but from the ambiguous state of extrinsic circumstances to which the words of the instrument refer, and which are susceptible of explanation by a mere development of facts, without altering or adding to the written language, or requiring more to be understood thereby than will fairly comport with the ordinary or legal sense of the words used. And therefore, parol evidence would be inadmissible for any purpose connected with the matter attempted to be introduced.

If fraud or failure of consideration bad been the subject of inquiry, or if words or phrases, to which custom or science has fixed a peculiar signification, had been used, a different rule would prevail, which we are mot, under the state of case before us, to consider.

We have not overlooked the position assumed in argument by counsel, that the coutract was made (as they assume) in a foreign government, in which the word “ dollars,” had a fixed and definite signification, different from that given to it in the,government of the United States, which should limit and control its meaning and govern in its enforcement. Many of the facts set forth in the defendant’s pleas, and referred to by counsel in their argument, are public facts, connected with and growing out of the late civil war, of which this court will take judicial notice, and, after giving to them all due consideration, we are persuaded that no such change of government was either made, or attempted to be made, as in any manner to affect the use or meaning of the word “ dollars.” Our governments, state and national, have at times thrown such an excess of paper currency into circulation as alinost entirely, for the time being, to suppress 'the circulation of specie; but such excess of paper circulation, so far as we are aware, in no wise affected the meaning of the word “ dollars.” Both the United States government and the late Confederate States government had, at the time this debt was contracted, put into circulation a very large paper currency, each of fluctuating and uncertain value : and whilst we may well suppose that contracts were daily made with reference to the changing value of such currency, still the language used by the parties contracting, did not fluctuate and change its meaning with it. The word “ dollars” without other qualifying language.in connection with it, can never be understood to mean Confederate States paper currency. So to hold would be to warp and pervert its meaning. Nor can we permit, by the introduction of parol evidence, the qualifying words “ Confederate States currency,” to be introduced into the contract, either as a substitute for the word “ dollars,” which if done would leave the contract indefinite as to amount; or if we retain the word “ dollars ” and add the additional words “confederate money,” the contract would be most materially changed, which we have held not to be permissible.

The question under consideration is not a new one. It has been repeatedly decided by this court, and in view of the uniform concurrent decisions in most of the courts in the United States, may be considered as settled. And we have been induced to briefly review the decisions, rather because the rules of evidence, when applied to this case and perhaps many others, may result in hardship and inconvenience, than from any doubts as to the correctness of our former decisions.

The effect which national legislation may have upon paper currency, by declaring it a legal tender, or whether, when so declared, it thereby approximates so nearly in value to specie, as to be, in effect, embraced in the term “ dollars,” we intend now to express no opinion.

From the conclusion at which we have arrived, it follows that the special pleas of the defendant were insufficient to bar a recovery upon the contract declared upon, and that the demurrers to them were properly sustained.

The note sued upon was competent and sufficient evidence to sustain the issue upon the first plea, upon which judgment was properly rendered.

Let the judgment be affirmed.


author: Mr. Justice ComptoN,

text:
    Hagan vs. Deuell and Vaughan.
    Replevin does not liefor property in the custody of the law, (Goodrich as. Fritz, 4 Arle., 625; Spring vs. Bourland, 6 Bing., 658;) nor can cross-replevin be maintained, (Gould’s Big., eli. 115, sec. 2;) but where property has been re-plevied and delivered to the plaintiff, a stranger may well issue his writ of re-plevin for the same property without waiting for the determination of the first suit, to which he is not a party.
    The remedy provided by the statute (Gould’s Big., eh. 145, sec. 11 etc.) for trial of the right of property when it is claimed by any person other than the defendant in replevin, is not exclusive of any other remedies the party may have.
    A motion to quash a writ of replevin, and particularly before the return day, on the ground that the property was in custodia legis, is not the proper practice. Such defence should be by plea in abatement, or in bar.

      Appeal from, Pulaski Circuit Cov/rt.

    Hon. LibeRtt Bartlett, Circuit Judge.
    Yonley, Farrelly & KNight, for appellant.
    The action of replevin lies in favor of any one having the right of possession; but there shall be no cross replevin, nor for property in the possession of an officer by virtue of any legal authority.
    In this case there was no cross-replevin, the plaintiff being a stranger to the other suit. See opinion of Piatt J. in Ciarle vs. Skinner, 20 John. 466, and cases cited.

    If the appellees had a meritorious case their proper proceeding, before the return of the writ, was by petition for supersedeas: pr a trial of the right of property .before the sheriff, as provided for by statute. ( Gould's Dig.p. 905.) Amotion to quash is proper only where the writ is before the court and for defect apparent on its Pee, or other alleged irregu’arity.
    When it is said that replevin will not lie for goods taken in execution, the rule is to be taken to be limited to cases in which the writ of replevin is sued out by the defendant in the execution. 3 Kent's Gom. 605; 20 John. 466 : llsleyvs. Stubbs, 5 Mass. 280.
    Fake & YaughaN, for appellees.
    The main and, as we conceive, the only material points for the court to consider, are 1st, whether cross-replevin, or replevin for property in the possession of an officer by virtue oí legal authority, can be maintained. If not, then 2d, whether this action constituted cross-replevin, or was for property in the possession of the law.
    - The first question is settled by our statute, (Gould's Big. ch• 145, Sec. 2,) which is but a reiteration of the common law principle, as settled definitely in Goodrich vs. Fritz, 4 Ark., 525, and Spring vs. Bourland, 6 Eng., 658 — see also Ilsley vs. Stubbs, 5 Mass., 280, that property in the custody of the law cannot be maintained — the remedy being by trespass or trover.
    If cross-replevin means a counter replevin by defendant against the plaintiff, the statute is broad enough to have precluded the appellant from instituting his suit — the words are: “ no cross-re-plevin, or replevin for property in the possession of an officer by virtue of any legal authority shall be broughtand the court in-Spring vs. Bourland, supra, says it is “ broad enough to prohibit all persons whomsoever from bringing the action.” The first suit was still pending; and the property was held by the appellees subject to the decision of the court, and their possession was the possession of the law until the determination of that suit: and re-plevin cannot be maintained for property in custodia legis in any case, whether the plaintiff in replevin be the defendant in the execution or not. Carroll vs.Mwrsey, 9 Iredell, 89 ; Goodrich vs. Fritz, sup.-, Spring vs. Bourland. sup.; Saffell vs. Wash, 4 B. Mon., 92.
    As the law prohibits a writ of replevin in a case like this, the writ was null and void, and a motion to quash could be made at' any time. Shaw vs. Levy, 17 Pa. Pep., 103; State Bank vs. Poland, 13 Ark., 299 ; Morgan vs. Avery, 7 Ba/rb., 659.
   Mr. Justice ComptoN,

delivered the opinion of the court.

The facts necessary to an understanding of the questions that arise in this case, may be briefly stated as follows:

Hagan, the appellant, filed in the Pulaski circuit court, in term time, his declaration in replevin against the appellees, Deuell & Vaughan, and a writ, returnable to the next term of the court, was issued thereon and played in the hands of the sheriff, who, in obedience to the writ, replevied the property mentioned in the declaration and delivered it to Hagan. Subsequently, at the same term of the court, and before the writ had been returned, Deuell &'Vaughan moved the court to quash the writ and cause to be returned to them the property which had been replevied. The ground of the motion was, that on the day previous to the issuance of the writ, Deuell & Vaughan had replevied the same property from one David C. "Wilson, and had given the bond required in such cases; and that, therefore, the property was in the custody of the law. The court below sustained the motion to quash, and awarded a return of the property, with judgment for damages and costs.

That replevin does not lie for property in the custody of the law, has been declared by this court in Goodrich vs. Fritz, 4 Ark., 525, and in Spring vs. Bourland, 6 Eng., 658. Nor can cross-replevin be maintained, because that is expressly forbidden by the statute. Gould's Dig., chap. 145, sec. 2.) In the case before us there was no cross-replevin, for the reason that the plaintiff in this action was a stranger to that brought by Deuell & Vaughan against Wilson. It is contended, however, that although the property had been delivered by the sheriff to Deuell & Vaughan-before it was seized under the writ in the second action, it was, nevertheless, in the custody of the law, the former action being then still pending: and Goodrich vs. Fritz, and Spring vs. Bourland, supra, are cited and relied on as authorities in point. In both of those cases, the property was in the possession and custody of a constable who had seized it under an execution; and upon that state of facts, the court decided that the action could not be maintained. But in the case we are now considering, the precise question is, was the property in the custody of the law? We think it was not. The reason why property in custodia legis cannot be replevied is, that to permit it to be done, would be to interfere with the possession before the office of the law had been performed, as to the process under which it was taken. Here, the officer had parted with the possession. When he delivered the property to Deuell & Yaughan, the process was fully executed, his whole duty was performed, and the legal custody necessarily ceased. The fact that Deuell & Yaughan entered into the usual bond in such cases, cannot affect the question.. In the event they should not recover against Wilson, the bond- requires them to return the property; and if they fail to do so, subjects them to its penalty — this is a matter personal to them, and in no wise concerns the execution of the process under which the property was seized.

True, if Hagan should recover, Deuell & Yaughan could not make restitution to Wilson, should he recover'; but this can avail them nothing, because if they recover against Wilson the objection fails; and if they should not, it is their fault to have sued Wilson without a cause of action.

Powell, et al vs. Bradlee & Co., 9 Gill & Johnson, 220, decided by the court of appeals of Maryland, is a case bearing directly on the question. There the property had been replevied, and while in the possession of the officer was taken under a subsequent writ of replevin, at the suit of a third party against the plaintiffs in the first action. At the trial, there was evidence conducing to show that the plaintiffs in the first suit, had waived the delivery of the possession to them under their writ, and it was held that the court below did not err in refusing to instruct the jury that the plaintiff could not recover, if they found that such subsequent writ issued while the property was in the custody of the officer. The court said: “ the principle is unquestionable, that property while in the cusody of the law cannot be replevied; and the reason is that the law will not be so inconsistent with itself, as to be auxiliary or lend its aid to an act which would operate to defeat its own purposes. But the court were called upon to instruct the jury, that if they found that the writ of replevin, which issued in this case, was executed before the service of the first replevin upon the same property, and while it was in the custody of the sheriff, then the plaintiff was not entitled to recover. There being evidence in the cause to go to the jury, to prove a waiver ou the part of the plaintiffs in the original replevin, of the delivery oí possession to them, under their writ against the defendants in that action, the court would have erred in giving a positive instruction to the jury, in the manner required by the defendant’s first prayer.” Thus showing that when property is delivered by the officer to the plaintiff in replevin, it ceases to be in the custody of the law — indeed, this was conceded, arguendo, by the eminent counsel for the defendants in that case, who insisted that it was not competent for the plaintiffs to waive the possession, and that if it was, there was no evidence of such waiver.

In Ilsley, et al. vs. Stubbs, 5 Mass., 279, to which we have been referred by the counsel for the appellees, it is nowhere intimated in the opinion of the court, that the property was in custodia legis. On the contrary, the inference, we think, is plain that it was not so considered. In that case, the facts were the same as in this, and the question arose upon the' sufficiency of the defendant’s plea in abatement. The court, after remarking that the Massa-chussetts statute had authorized replevin against the officer, for chattels which he had attached, or seized in execution, provided the plaintiff in replevin was not the debtor, said : “Asa general principle, the owner of a chattel may take it, by replevin, from any person whose possession is unlawful, unless it is in the custody of the law, or unless it has been taken by replevin from him by the party in possession. The plea in this case, does not allege any property in Stubbs; but it alleges that the goods were delivered to him by the officer, in obedience to a replevin sued by Stubbs, not against the plaintiffs, but against Lund. Stubbs’ possession was, therefore, so far legal against Lund, that he could not recover them back again by another replevin, but only on a retorno habendo, if be should prevail against Stubbs. But Stubbs cannot, by his own writ, acquire any right of possession against the plaintiffs, who were not parties to it. They could not plead to Stubbs’ writ, nor could any retorno habendo be awarded them.” After further discussion of the question, the learned judge adds: “The court cannot decide that the allegations of the plea are sufficient to abate the writ, without also deciding that the owner of chattels taken from him by a trespasser, finding them in the possession of a stranger, who had taken them by replevin from the trespasser, cannot maintain replevin against the stranger. But the law will not authorize such a decision: for no transaction between the stranger and the trespasser can bind the right of the owner.”

Our statute, it is true, makes provision for trial of the right of property, before the sheriff and a judge, where any person, other than the defendant in replevin, claims property in the goods and chattels specified in the writ. (Gould’s Dig., chap. 145, sec. 17 et seq.) But this remedy, unsatisfactory at best, is not exclusive : the party may resort to any other z-emedy to which, by law, he may be entitled.

In any view of the case, we think the court erred in quashing the appellant’s writ; and it may be here remarked that a motion to quash was not the proper practice; especially so as the writ had not been returned. The defendants in the action should have interposed their defence by plea in abatement, or in bar. The plaintiff could then have come prepared to meet the defendants on the issue, as to the custody of the property. Such has been the practice in all the cases that have come under our observation, except where otherwise directed by special statutory provisions. Goodrich vs. Fritz, 4 Ark., 525 ; Spring vs. Bourland, 6 Eng., 658; Powell, et al. vs. Bradlee & Co., 9 Gill & Johnson, 220; Ilsley, et al. vs. Stubbs, 5 Mass., 279 , Shaw, et al. vs. Levy, 17 Serg. & Rawle, 103.

For the error above indicated, the judgment of the court below must be reversed, and the cause remanded for further proceedings


author: Mr. Chief Justice Olendenin

text:
    Lindsay vs. Lamb.
    "Whoever sells personal property in possession is held in law to warrant the title' and is incompetent as a witness for his vendee in an action concerning the title.
    Fraud may be shown at law as well as in chancery; and is a mixed question of law and fact; and any evidence tending to show that the title of the plaintiff was acquired by fraud, should go to the juj'y.

      Appeal from Lawrence Ci/reuit Court.

    Hon. W. B. Cain, Circuit Judge.
    Wateins & Bose, for the appellant.
    Stillwell & Wassell, for appellee.
   Mr. Chief Justice Olendenin

delivered the opinion oí the court.

Martin Lamb brought his action of trover in the Lawrence ■circuit court against John A. Lindsay, for the value of a wagon and a wagon-bed. The defendant plead not guilty. On the trial of this issue, the plaintiff offered as a witness, Archibald Jones, who at the instance of the defendant, was sworn on his voir dire, and testified that this suit was brought by the plaintiff to recover the value of a wagon; that witness had sold the wagon to plaintiff : that John A. Lindsay & Co., had levied on the wagon under an execution, issued on a judgment obtained before a justice of the peace in ;their favof against witness, and sold the wagon thereunder, and that at such sale the defendant Lindsay had become the purchaser. Upon this statement of the witness on his voir dire, the counsel of the defendant objected to the introduction of Jones as a witness for the plaintiff, but the court overruled the objection, and permitted the witness to testify, to which the defendant excepted.

This exception thus taken brings up for our consideration, the question as to the competency of the witness so offered, and who had so testified. The witness clearly showed that he was the vendor of the plaintiff; and we think the principle is well settled, that the warrantor of the title to the property which is in controversy is generally incompetent as a witness for his vendee in an action concerning the title; and it makes no difference in what manner the liability arises, nor whether the property is real or personal.

If the title is in controversy, the person who is bound to make it good to one of the litigating parties against the claim of the other, is identified in interest with that party, and therefore cannot testify in his favor. .

Li order to render the witness liable and therefore incompetent, as a warrantor of the title, it is not necessary to show an express contract to that effect, for an implied warranty is equally binding. See Greenleaf’s Evidence, vol. 1., p. 521-522, and authorites cited. This principle has been assented to by this court in the case of Arnold vs. McNeil, 17 Ark., 186. In Kent's Commentaries, vol. 11., p. 478, it is said, that whoever sells personal property in possession, is held in the law to warrant the title to the same. Testing the action of the court by these principles of law, we are of the opinion that the witness Jones was an incompetent witness, and that the court erred in permitting him to testify.

There is another point raised by the assignment of errors and the bill of exceptions in this case, which we deem necessary to decide.

After the witness Jones had testified in chief, the defendant, on his cross examination, proposed to examine him as “ to the fairness of the sale of the wagon by him to plaintiff,” but the court, on the objection of the plaintiff, refused to permit the defendant to examine him. The defendant then proposed generally to prove that the sale of the wagon by Jones to the plaintiff, was a fraudulent sale, but the defendant objecting, the court refused to allow the testimony to be introduced. The defendant proposed to prove by a witness, naming him, specific facts, set out in the bill of exceptions, relating to the sale of the wagon, and possession by Jones after the sale to plaintiff of the wagon, and which were, in some degree, designed to show the character of the transaction connected with the sale of the wagon, but the court refused to permit the defendant to make such proof. In this the court erred: the evidence should have gone to the jury: it was their province to hear it and to decide whether the sale was a fraudulent one or not. Fraud may be shown at law as well as in chancery, Phelan vs. Dotson, 14 Ark., 79; Ringgold vs. Waggoner, 14 Ark., 69. It is a mixed question of law and fact, and should have been left to the jury. Dodd vs. McCraw, 3 English 83.

For these errors, this case will be reversed and remanded for a new trial.


author: Mr. Chief Justice WalKer

text:
    McCarroll et al ads. vs. Stafford.
    According to repeated decisions of this court, a party failing to make an erroneous instruction, of the court a ground of his motion for a new trial, will be considered as having waived or abandoned it.
    Where the verdict of the jury is without evidence, or directly contrary to the evidence, it will be set aside and a new trial granted.
    On the plea of not guilty in an action of trover, the issue is sustained by proof that the defendant took the plaintiff’s property without authority and sold it. evidence tending to show the motives of the act, as that the owner having left the property liable to waste ¡pd destruction, he acted for his benefit, is foreign to the issue.

      Appeal from Yell Oireuit Court.

    Hon. Thomas Boles, Circuit Judge.
    Clark, Williams & MartiN, for appellants.

      Admitting that, as the erroneous instructions of the court were not made the ground of the motion for a new trial, they are not to be considered in this court, the only question is, whether the verdict is without evidence. We submit that the verdict is a palpable and direct violation of law and evidence; that the facts of the talcing and sale of the property are clearly and positively proven; that the motives of the defendant, the honesty.of his intentions, the fiduciary character assumed without authority, can avail him nothing in this suit.

      W. N. May, for the appellee.
    It is contended on the part of the appellee that the evidence was sufficient to warrant the jury in finding the verdict they did. A civil war, of which this court will take judicial notice, and no courts being then held, the property was wasting and liable to be totally destroyed; that it was entirely abandoned, and the request of the only person interested, was sufficient authority to him to preserve and sell it, and that he should not be held responsible for the subsequent loss, without his fault, of the proceeds.
    There being evidence upon which the jury might pass, this court will not disturb their verdict. 14 Ark., 419 ; 21 ib., 306 ; 22 ib., 213.
   Mr. Chief Justice WalKer

delivered the opinion of the court.

This is an action of trover and conversion, brought by the appellants, as administrators of the estate of Thomas Reagan, deceased, against William J. Stafford, for having taken and converted to his own use ten bales of cotton, the property of plaintiffs’ intestate. The general issue was plead^ and the case submitted to a jury, who, after hearing the instructions of the court, upon consideration, returned a verdict for the defendant, upon which judgment was rendered. And thereupon, the plaintiff moved the court to grant them a new trial:

First. Because the jury found contrary to evidence.

Second. That the jury were instructed by the court that if they believed from the testimony, that the defendant, W. J. Stafford, took the said cotton, or property in question, without the consent and authority of the owner, and converted the same to his own use, they should find for the plaintiff, which said finding by the jury was in this contrary to the law of the case as .given by the court.

Third. That said finding was shocking to the sensibilities of all persons, and contrary to every principle of the law in such case, and wholly contrary to the evidence adduced.

The court overruled the motion for a new trial, and the' plaintiffs excepted and and tendered their bill of exceptions containing the evidence and the instructions of the court, which was duly made part of the records in this case.

Upon examination of the several instructions given by the court as well as those asked by the plaintiffs and refused to be given, we feel satisfied that the court erred, particularly in the second instruction asked by the defendant, which was That if the jury believe from the evidence, that the defendant, in the absence of any one authorized by law to take possession of the cotton, took the same in the capacity of a fiduciary and not for his own use} and the same, without being disposed of, would have been lost or destroyed and valueless to the estate, and in good faith sold the cotton, and was afterwards robbed of the proceeds of said sale they should find for the defendant.” But though the plaintiffs objected to the giving of this instruction, as well as to the ruling of the court refusing to give an instruction asked by the plaintiffs, as they have failed to make this a ground for granting a new trial, according to the repeated adj udications of this court, they cannot avail themselves of any benefit from such erroneous decisions, upon appeal or error to this court. By their omission to make these part of the grounds of their motion for a new trial, they are considered as having waived or abandoned them, and we are limited, in our range of investigation in this case, to the correctness of the decision of the court upon the grounds set forth in the motion for a new trial; which are first, that the jury found contrary to, and without sufficient evidence : second, that they found contrary to the instructions of the court; third, the finding was such as to shock our sense of right.

The decisions of this court upon the questions presented by the state of case before us, are numerous, and the questions too well settle to require more at our hands than to examine the evidence and see whether in view of a settled rule of practice, a new trial should have been granted in this case or not.

The plaintiffs proved, by the admissions of the defendant and other evidence, that defendant took between five and ten bales and parts of bales of cotton, belonging to the estate of the intestate, Reagan, and sold the same for the sum of nine hundred and seventy-nine dollars and fifty cents: that at the same time the defendant admitted that he took the cotton, he stated that the money arising from the sale of the cotton, was stolen far him by soldiers attached to, or persons accompanying the federal army, in a short time after he received it. The defendant then introduced evidence and proved that the cotton taken by him, belonging to the estate of Thomas Reagan, the plaintiffs’ intestate, was in a condition liable to be wasted, was unfenced, and fed on by the cattle: that part of the cotton bales were half eaten up by the cattle and destroyed, and unless taken care of would likely have been a total loss to the estate: that the cotton was abandoned by Reagan’s family, who had left the premises: that the country was in a state of war, without courts: that there was no person authorized by law to take charge of the cotton, for the benefit of the beneficiaries of the estate, and that defendant took charge of it at the request of the only heir of the estate: that soon after the money was stolen from him, he applied to a federal officer to have search made for the money, which was refused. This is substantially, indeed almost literally, the evidence in the case, and upon consideration of which the jury found the issue tor the defendant.

The question is, under this state of case, for the reasons set forth in the motion for a new trial, should the court have set aside the verdict and granted the plaintiffs a new trial ?

The rale governing cases of this kind is, that where there is not a total lack of evidence to warrant the finding of the jury, at least upon some material allegation, without proof of which, the party would not be entitled to recover, the verdict of the jury will not be set aside in order to give the party the benefit of a new trial. As an illustration of this rule, may be cited the case of Bailey vs. Ellis, 21 Ark. Rep., p. 488, where in an action of replevin for cotton, there was no evidence whatever of the value of cotton, and, value being essential to a recovery, the jury had no evidence touching the value, to be wieghed by them, and the verdict was accordingly set aside, and a new trial ordered. If, however, there had been any evidence of such value, we would have left them to weigh the evidence, and determine the value of the cotton. The familiar and well established rule then is : that this court will not reverse the decision of the circuit court for having refused to grant a new trial, upon a mere question of the weight or preponderance of the evidence, but only in cases where they find without evidence, or directly contrary' to evidence, unless in extreme cases, where the verdict is so palpably contrary to evidence as to shock our sense of right and justice.

G-uided by this rule in determining the case before us, there can be no doubt that the verdict of the jury was wholly unwarranted by the evidence. There was no conflict of evidence whatever, nor was there any lack of full and conclusive evidence upon all the allegations put in issue. The action was trover: the plea was not guilty: the proof was that the cotton was the property of the plaintiffs’ intestate, that it was taken by the defendant without authority or color of title, and converted by sale for. the sum of nine hundred and seventy-nine dollars and fifty cents. This was the plaintiffs’ proof; and by reference to that introduced by the defendant, it will be perceived that so far from contradicting, it but repeats that which the plaintiff had proven. The further evidence introduced, tending to show that the cotton was exposed to waste, had been left by the owner, in time of war, and being in that situation, was taken by him and sold, and the money received stolen, was altogether foreign to the issue. The cause of action was complete when the defendant (a mere trespasser) took and converted the property to his own use. The motives which may have impelled him to do so, in no wise changed his liability, because when the property was taken and carried off without authority, it was in law a conversion, and the right .of action in the plaintiffs as administrators was complete, no matter whether the defendant afterward sold the cotton or not, or what he received for it, only so far as the amount for which the cotton was sold tended to prove its value.

Under all the circumstances ox the case, we think it quite probable, that the jury would not have found a verdict for the defendant but for the erroneous instructions given them by the court, but which, owing to the omission of counsel to insert that as one of the grounds for a new trial, we will not in this case consider. But be this as it may, we are satisfied that the verdict was not only rendered without evidence to sustain it, but directly against the most clear and conclusive evidence, in regard to which there was no conflict. Such being the case, the circuit court erred in overruling the plaintiffs’ motion for a new trial.

Let the judgment of the Tell circuit court be reversed, and the cause remanded with instructions to grant to the plaintiffs a new trial, and for further proceedings therein according to law.


author: Hr. Chief Justice Walker

text:
    Dickens vs. Howell.
    It is not a material variance in declaring upon a note, in which no day of payment is specified, to describe ita3 payable on request: particularly where the pleader does not prefer to set it out in licee verba.

      Appeal from Yell Circuit Court.

    Hon. Thohas Boles, Circuit Judge.
    Clark, Williams & MartiN for the appellant.
    That there was a variance between the obligation sued on and that given on oyer, referred to Baekett vs. Spencer, 29 Barb. {1SÍ. Y.) Rep., 180; Jones vs. Brown, 11 Ohio, (W. S.) 601; Cornell vs. Moulton, 3 JOenio, 12; 8 John., 189, 375; 2 McCord, 246.
   Hr. Chief Justice Walker

delivered the opinion of the court.

This is an action of debt brought in the Yell circuit court by Howell vs. Dickens. The defendant craved oyer of the writing declared upon, which having been given, he demurred for variance between the writing described in the declaration, and that given upon oyer. The special cause of variance is, that in the declaration, the writing obligatory is described as being payable on request, and that given on oyer is payable on the fifteenth day of October, 1861, the date of its execution. The court overruled the demurrer, and the defendant offered "no further defence. Judgment was rendered in favor, of the plaintiff', from which the defendant appealed.

The question of variance is the only one presented for our consideration.

The writing obligatory declared upon is in the following words: “For value received Tpromise to pay Haynes A. Howell eleven hundred and ninety-nine dollars, to bear interest at the rate of ten per cent, from date until paid. Witness my hand and seal this 15th day of October, 1861. Samuel DiokeNS, [Seal.]” The averment in the declaration is, that the defendant, on the 15th day of October, 1861, acknowledged bimself to be held and firmly bound nnto the plaintiff in the sum of eleven hundred and ninety-nine dollars above demanded, to bear interest at the rate of ten per cent, from date until paid, for value received, to he paid to the said plaintiff when he the said defmdcmt should 1)6 thereunto afterwards reguested. '

The appellant contends that the contract was due and payable at its date, and that the terms “ to be paid upon request,’’ so misdescribed the instrument as to make it payable, not at its date, but upon request; and the question is, do the terms, to be paid upon request, constitute such further description of the contract as to vary it in legal effect, or in other words, to change the time of payment, so as to make the bond payable at another and different time from that at which it was, by the terms of the contract, to have been paid. If it does, then the variance is material, and the demurrer should have been sustained; otherwise, the judgment of the court was correct.

By reference to the authorities upon this subject it will be found that, in contracts like the one under consideration, where no time of payment is mentioned in the note or hond, it is in effect a promise on demand. Story, in his work on Promissory Notes,p. 29, says: “Where a note does not Specify a day or time of payment, it is by law deemed payable on demand, and therefore is construed as if it contained the words, payable on demand, on its face.” We observe that Chitty, in his forms for declarations in debt upon bonds, has omitted the words: “When he the said defendant should be thereunto afterwards requested,” but in a note referring to this part of the declaration, says that “ they are usually inserted,” but as they “ are not usually in the bond, they seem better omitted in the declaration.” The form prescribed, and the note in explanation of it, although not of great weight in determining this question, show that it is not a matter of vital importance which form of declaring is adopted, whilst some of the American courts hold it best, where no time of payment is specified in the note, that it should be declared upon as a note on demand. Thus, in the ease of Green vs. Dribelis, 1 Iowa Reps., p. 552, in an action on a promissory note, in which no time of payment was specified, a demurrer was filed to the declaration, because it was not averred at what time the note was due and payable. The judge, who delivered the opinion of the court, said: “It is very correctly assumed by counsel for the plaintiff in error, that where no time for payment is mentioned in the note, it is, in contemplation of law, payable on demand.” The declaration is objected to on the ground that it does not specially describe the note according to its legal effect. The note should, no doubt, be declared upon as a note payable on demand, but it does not necessarily follow that the particular words on demand should be incorporated in the declaration, if it alleges, in other terms, the time when the note became due, and in this particular we can but consider the declaration sufficient in law.” Thus it will be seen that the ground of objection to the declaration in that case was, that the pleader had failed to do precisely that which he did do in the case before us, that is: allege that the bond was to be paid upon request, which is held by the court to be the legal effect of a promise to pay when no day for payment is specified in the contract. Such being the legal effect of the contract, in the language of Stoüy, “as much so as if it contained the words, payable on demand, on its face,” we think it clear that the pleader in this instance did not err in so declaring upon it, because in so doing he but stated what was true according to the legal effect of the bond, and consequently there vras no material variance between the bond as declared upon and that given on oyer.

The rights of the parties are, in no respect, affected by this construction of the legal import of the contract; no demand was necessary to entitle the party to his right of action, which was matured and perfect from the date of the bond. The addition of the descriptive words, “to be paid upon request,” used by the pleader,-is not understood as altering, or in any manner changing the time when the debt became due, and brings this case within the rule laid down by this court in the case of The State Bank vs. Peel et al., 6 English's Rep.,p. 753, in which this court held “ that a variance is immaterial when it does not change the nature of the contract, which must receive the same legal construction, whether the words be in or out of the declaration.” It should be remembered too, that the pleader did not attempt to set out the bond in liceo verba, but only set forth the contract in substance and legal effect, and when such is the case, the same strictness is not required as where the pleader attempts to set forth the contract literally.

"We are therefore of opinion that the court did not err, in overruling the defendant’s demurrer and rendering judgment for the plaintiff.

Let the judgment be affirmed.


text:
    Salliers vs. Bevens.
    It is error to entertain a motion to strike a case from the docket, setting up matter of justification in an action of trespass, which can be availed of, if at all, only by special plea.

      Appeal from Madison Circuit Gov/rt.

    Hon. Elias B. Haeeell, Circuit Judge.
    Gkegg for appellant.
   Mr. Chief Justice WalKee

delivered the opinion of the court.

This is an action of trespass with force and arms, brought by Salliers against Bevens and others, for forcibly taking the goods and chattels of the plaintiff. In the progress of the cause all of the defendants, except defendant Bevens, were discharged. Bev-ens interposed a plea in bar of tlie plaintiff’s action, which seems not to have been further noticed upon the record, and the case was continued. At the next term of the court after the plea was filed, and without making any disposition of it, Bevens moved the court to strike the case from the files, for the reason, as set forth in the motion, that a civil war was, at the time set forth in plaintiff’s declaration, pending between the Confederate States (of which Ai’kansas was one) and the United States ; that defendant Bevens was an officer in the service of the United States army in the prosecution of the war, and then acting under and in obedience to the orders of a superior officer: that plaintiff was an enemy to the United States, giving aid to the Confederate States in the prosecution of such war, and that he, the defendant, in obedience to the orders of his superior officer, took the goods of the plaintiff: that defendant claims protection under order number 3, of General Grant. These are substantially the grounds set forth in the defendant’s motion, which was verified by affidavit. The plaintiff thereupon filed his motion to strike the motion of the defendant from the files, because the matters set up in defendant’s motion (if available for any purpose) should have been presented by special plea. The court overruled the motion of the plaintiff to strike the defendant’s motion from the files, and thereupon, without any proof of the facts stated therein, sustained the defendant’s motion to strike the plaintiff’s- case from the files, and rendered judgment dismissing the plaintiff’s action with costs.

That the decision of the court, under the state of case presented, was clearly erroneous there can be no doubt. The matter set up in the defendant’s motion, if available as a defence, should have been interposed by special plea, that an issue might .have been taken upon it, to be tried upon evidence before a jury. Even if there had been ample proof offered, to sustain the matter set up in the motion, it would have been irregular for the court to have heard and acted upon it. It was no ground for dismissing the plaintiff’s action, even if valid as a defence in bar, which is not a question now before us for consideration. As a matter in bar, it could have been only pleaded specially, and the issue tried by a jury. The court had no right to try the merits of this defence.

This motion to strike the case from the docket (for we suppose that is what the defendant meant by striking from the files) was, for the reasons assigned, altogether without precedent and unwarrantable, under any rules of practice known to the courts, of law. The case was properly docketed: the matter to be litigated such as the court should hear: the grounds of the motion, matter of defence by special plea, which the plaintiff had a right to contest before a jury.

The court therefore erred in entertaining the motion, and most grossly erred (as appears from the record) in sustaining the motion without evidence. The plaintiff’s motion to strike out the defendant’s motion thus improperly presented, should have been sustained.

Let the judgment be reversed and the cause ther proceedings therein according to law. remanded for fur-


text:
    Hellman et al. vs. Fowler et al.
    The statute (Gould’s Dig., ch. IT, sec. 3,) provides that the affidavit in a pro* ceeding by attachment shall be positive: an affidavit, therefore, that the affiant verily believes that the defendant is about to remove, etc., is insufficient.
    On sustaining a plea in abatement of the writ and declaration in a proceeding by attachment, for insufficiency of the affidavit, the proper judgment is to abate the suit.

      Error to PulasTci Oireuit Court.

    Hon. Liberty Bartlett, Circuit Judge.

      Yonley, Farkelly & KNIght, for the plaintiff.
    The objection to the affidavit that it was made on the belief of the affiant, is settled by the case of Heard db Co. vs. Lowry, 5 Arle., 524-525. All that the statute requires in the affidavit is that the defendant is about to remove his goods, etc., not that they are being removed. The intention of the defendant to remove is sufficient for the issuance of the writ, and that intention, until the removal is commenced, cannot be absolutely and positively known — is a matter of belief only; and as the law gives a remedy that may be initiated before the goods are being removed, it is clear that the belief that they are about to be removed was all that the statute intended.
    There are so many differences in the statutes of the different states that the decisions under them can go no further than to furnish certain general rules; and on a contested point the reason of the rule and the grounds of the decision thereon must be wholly drawn from the statutes under which they originated; for instance: in ex parte Haynes, 18 Wend., 611, the affidavit that the witnesses “ are informed and believe” is held insufficient; but the statute requires that “ the facts and circumstances to establish the ground of the application” shall be proved.
    The defendant having given bond to appear and answer the plaintiffs’ demand, etc., was not in position to take any 'advantage of the alleged insufficiency of the affidavit until he had appeared and pleaded to the action. .Gould’s Dig., eh. 1Y, see. 29; Didier vs. Galloway, 3 Ark., 501; Delano vs. Kennedy, 5 Ark., 45Y; Heard c& Go. vs. Lowry, ib., 522.
    The plea in this case was bad because it prayed judgment of the writ and declaration, while it was entirely silent as to any prayer in respect to the affidavit — it pointed out defects in the affidavit, none in the writ and declaration. The demurrer should have been sustained. Haywood’s ex’r. vs. Chestney, 13 Wend., 495. When the bond was given, 'the suit' ceased to be a proceeding in rem‘, and the giving of the bond was the same as an appearance, 2 Gillm. 468; 6 How. Hiss. JR&p., 193, and appearance cures all irregularity of process; 1 Curtis S. C.

      Hep., 649; 3 Ala., 43; 3 Misso., 409; 1 Pet., 315; Watkwis Amer. Law, 507.
    Nice, for the appellees.
    The affidavit should have been positive — qualifying the statements therein with “ as I verily believe,” rendered it bad. The statement in Heard & Co. vs. Lowry, 5 Ark., 524, as to the point involved, is a mere dictum, and should have no force with this court.
    This matter has been fully adjudicated in New York. See expa/rte Haynes, 18 Wend., 611; Matter of Fauhner, 4 Hill, 598; Matter of Bliss, 7 Hill, 187; 6 Hill, 228; 6 Wend., 553; 5 Hill, 608. See also, 1 Brown {Pa.) Hep., 33; 1 McLean C. C. 12., 471; 1 McCord, 292; 23 III., 340.
    When the statute requires a fact to be sworn to in direct terms, it is not complied with by the party swearing that he is informed and believes the fact to exist. Brake on Attachments, sec. 108; B'wpreevs. Eisenach, 9 Geo., 598; Caldwellvs. Colgatt, 7 Barb., 253.
    If the affidavit was insufficient the judgment upon the plea was clearly correct, 9 Ark., 159; 17 Ark., 284.
   Mr. Justice ComptoN

delivered the opinion of the court.

This was a proceeding by attachment in the Pulaski circuit court. The declaration was filed in assumpsit, and the affidavit, on behalf of the plaintiffs, was as follows:

“ STATE OP ARKANSAS, ¡

OouNtt of Pulaski, j

I, Myer Harris, do solemnly swear that the defendants in the declaration hereto annexed, are justly indebted to the firm of J. & L. M. Heilman, plaintiffs in said declaration, in the sum of two thousand six hundred and five dollars and sixty-six cents; and that the said defendants, as I verily believe, are about to conceal and remove their goods and effects out of this state.

MYER HARRIS.”

“ Subscribed and sworn to before me this 23d day of December, A. D., 1865. JOHN W. JAY, CPk.,

By ThoMas H. Walker, D. 0.

At the return, term the defendants appeared and pleaded in abatement.. The plea is in substance, as follows:

And the said defendants pray judgment of said writ and declaration, because they say that no affidavit as the law requires, was filed in said action before the said writ of attachment issued the affidavit filed being insufficient in this, that the allegations thereof are made upon belief merely, and not from any knowledge of the affiant, and are not positive: and this they are ready to verify, wherefore they pray judgment of said writ and declaration and that they be quashed, etc.

• To this plea there was a demurrer, which was overruled, the plea sustained and judgment rendered that the suit abate and that the defendants recover their costs, etc.

Our statute (Gould's Dig., chap. 17, sec. 3,) provides that “the creditor shall, at the time of filing the declaration of his claim, also file an affidavit, of himself or some other person for him, stating that the defendant in the declaration or statement mentioned, is j ustly indebted to such plaintiff in a sum exceeding one hundred dollars, the amount of which demand shall be stated in such affidavit, and also that the defendant is not a resident of this state, or that he is about to remove out of this state, or that he is about to remove his goods and effects out of this state, or that he so secretes himself that the ordinary process of law cannot be served on him.” And it is insisted for the plaintiff' in error that, under the provisions of this statute, the affidavit in the case before us was sufficient, and we are referred to Heard & Co. vs. Lowry, 5 Ark, 522, as conclusive of the question. In that case, SebastxaN, J., remarking upon the affidavit, said: “ Moreover, the affidavit was in substantial compliance with the statute. It stated the sum due and that the defendant, as he verily believed, was about removing beyond the state. Had the plaintiff stated it positively, as the statute seems to require, it would have been only a matter of belief, the result of a strong moral conviction from circumstances tending to prove that intention.” But it may be observed that no question, as to the sufficiency of the affidavit, was raised in the argument, or adjudicated by the court, in that case, and that consequently, the remarks above quoted may be regarded as dictum, and the question still an open one.

There has been much discussion, both in the English and American courts, as to what shall l^e considered sufficient evidence to warrant, on an ex pa/rte application, the issuance of extraordinary process in proceedings analagous, in many respects, to that now under consideration. Thus, Mr. Justice Daniel, in his work on Chancery Practice, (vol. 3, p. 1939,) treating of ne exeat, says: “ It is also required that the affidavit, on which the application for the writ of ne exeat regno is founded, should show that the defendant intends going abroad. It seems, formerly, to have been thought that the affidavit was, in this respect, sufficient, if it merely stated a belief of the defendent’s intention to quit the kingdom, without going into circumstances upon which that belief was founded: But this rule has been very properly qualified by later decisions, and it is now held that the affidavit to obtain this writ must be positive as to the defendant’s intention to go abroad, or to his threats or declarations to that effect, or to facts evincing it,” citing Oldham vs. Oldham, 7, Ves. 410; Etches vs. Lance, 7 Ves. 417; Amsink vs. Barklay, 8 Ves. 597; Hannay vs. McIntire, 11 Ves. 54; Jones vs. Alphesin, 16 Ves. 470; Taylor vs. Leitch, 1 Dick., 380; Shearman vs. Shearman, 3 Bro. C. C. 370. And Lord Elden said he would never grant an injunction against waste, on an affidavit of belief that the defendant was going to cut timber, or that the complainant was credibly informed the defendant intended to commit waste. Etches vs. Lance, Hannay vs. McIntire, supra. So in proceedings to hold to bail, the affidavit must be positive, and not on belief merely. Towers vs. Kingston, 1 P. A. Brownes’ Rep., 33; Young vs. Corder, 2 Miles 155 ; Nelson & Graydon vs. Cutter & Tyrrell, 3 McLean’s Cir. Rep., 326 ; Satterlee vs. Lynch, 6 Hill; Wright et. al., vs. Coggswell, 1 McLean’s C. Rep., 471. And in Sydner vs. Tatman, 6 Texas 189, where, in a proceeding by attachment under the Texas statute, the affiant stated that he had good reason to believe, and did verily believe that the defendants were about to remove their property beyond the state, the affidavit was held insufficient. The court said: “ It has been often declared that process by attachment is liable to produce so much oppression and injury, that a rigid conformity with the law authorizing its issuance will be exacted. And no portion of the statute requires this rule to be more strictly adhered to, than in the affidavit to be made by the plaintiff, as one of the conditions on which the attachment is allowed. If the belief of the plaintiff without facts on which such belief can be reasonably based, should be held a sufficient compliance with the requisitions of the- statute, that “ the plaintiff shall make an affidavit in writing that he, the defendant, is about to remove his property beyond the state,” one of the best assurances against the abuse of the process would be rendered inoperative and entirely useless; because the legal responsibility of the affiant, to a prosecution for perjury, would be, in most cases, destroyed. The language of the statute admits of no equivocation or evasion. A distinct fact must be sworn to by the person who seeks the use of the process of attachment. An evasive affidavit of the party, as to his having good reasons for his belief, which reasons are confined to his own secret keeping, is not a compliance with the statute.” It will be perceived, from the language employed by the court, that the provision of the Texas statute, upon which the proceedings in that case were based, is precisely the same as that contained in ours, and on which the affidavit in the case before us, was founded. In the supreme court of Illinois it has been repeatedly decided, that an affidavit for a writ of attachment must allege the requirements of the statute positively, and not on the information and belief of the attaching creditor, or his agent. See Dyer vs. Flint, 21 Ill., 80; and Archer et al. vs. Claflin et al. 31 Ill. 306. In the latter case Mr. Justice Beeese said the affidavit “ was defective in failing to aver, in positive terms, the design to depart the slate with' the intention of taking their property out of the state to the injury of their' creditors, in the terms of the statute. These positive averments seem to be made necessary by the statute, and affidavits ought, and usually do, contain them,” citing White vs. Wilson, 5 Gilm., 21; and Walker vs. Welch, 13 Ill., 674. To the same effect are the decisions in Denfre vs. Eisenach, 9 Geo., 598, and in Clements vs. Casseby et al., 2 Ann. La. Rep., 567. And Mr. Drake, in his work on Attachments (2nd Edition Revised, sec. 108,) lays down the rule to be, that where the statute requires a fact to be sworn to in direct terms, it is not complied with by the party swearing that he is informed and believes the fact to exist.

Under the statute of the territory of Arkansas, the affidavit of the attaching creditor was sufficient if made upon belief, (Hughes vs. Martin, 1 Ark., 386:) but after Arkansas was admitted into the union, the legislature, in enacting our present attachment law, omitted the words, “ verily believes” contained in the territorial enactment; and it is reasonable to suppose that something was intended by this omission. The statute, as it now is, requires the affidavit to be positive, and in view of the authorities to which we have referred, and of the great abuses likely to grow out of a less rigid construction, we do not feel authorized to sanction a departure from its requirements. Indeed it is not easy to perceive how the affidavit in this case can be regarded as evidence for any purpose. It cannot be so treated by force of the statute, because not in compliance with it; and it merely states the belief of the affiant without disclosing the grounds of that belief. Suppose the affiant had been called into court as a witness to prove the fact that the defendants intended to remove their property beyond the state, and on being interrogated, he had answered that he believed they so intended, without stating any facts or circumstances upon which his belief was founded, would such a statement have been received as evidence? "We find no difficulty in reaching the conclusion that the affidavit was insufficient.^

In rendering judgment that the suit abate, and for costs, the court below did not err. The plea in abatement was verified by affidavit, was pleaded in apt time, and went to the entire proceeding, and not to so much of it only as was a proceeding in rem. Edmondson vs. Carroll, 17 Ark., 284; Childless vs. Fowler, 4 Eng., 159.

Finding no error in the record, the judgment must be affirmed with costs.