text:
    Flanagin v. The State.
    It is legitimate to go into evidence to show the circumstances under which a party accused of crime failed to deny a statement made in his presence tending to connect him with it — as that he was induced to remain silent under tlie influence of threats — but it is irrelevant, and therefore illegal, to inquire as to threats aifecting other suspected persons ; and so, a question as to threats made against the accused and others, being an entire one, was bad, and the court properly overruled it.
    The conduct of the prisoner at the time of his arrest — as whore he and others being produced for the purpose of identifying him, he partially concealed himself — was proper for the consideration of the jury, as raising a presumption of guilt.
    Where two persons have lived in illicit cohabitation, the one is a competent witness for or against the other.
    When a child under fourteen years of ago is offered as a witness, inquiry should be made as to the degree of understanding he possesses; and if he appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he should be admitted to testify, no matter what his age may be.
    It is the duty of the court to advise the jury not to convict of felony upoii the testimony of an accomplice without corroboration; but not to instruct ■ them to do so ; and instruction to that effect was properly refused.

      Appeal from Pulaski Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.

      Howard & Moore, for appellant.
    The appellant claims that it was legitimate, in cross-examination, to go into all the circumstances connected with the arrest and informal examination of the parties jointly indicted, a part of which the prosecution had brought out, so as to ascertain whether any threats or inducements had been held out to induce the parties to testify.
    The testimony as to the conduct of the prisoner when arrested was clearly illegal — he was not then charged icith an offense.

    Cohabitation without marriage does not render one party incompetent as a witness for or against the other. 3 Dev. Sg Bed., 177; 9 Ala., 990; Batheios v. Galindo, l Bing., 610; and the court clearly erred in rejecting the testimony of Ann Skelton.
    The court erred in excluding the testimony of Ben. McDougal, who was set aside as a witness because he ivas only thirteen years old. In the case of infants, no time is fixed as the standard when they are not competent as witnesses; their competency depends on their “natural intelligence,” and whether “ they have been so instructed as to comprehend the nature and effect of an oath,” “as it shall appear on examination in court.” Bull, N. B., 293; 1 Greenl. Bv., 367, and cases cited.

    The broad doctrine is laid down in the text books that it is competent for the jury to convict on the testimony of an accomplice alone; but the rule and practice in cases of felony is laid down correctly by Mr. Greenleaf, (1 Gr. Bo., sec. 380,) where he says the jury may, if they please, act upon the testimony of the accomplice, without any confirmation, but the judge will advise them not to convict of felony on such testimony, without corroboration. And all that the prisoner asked was that the court should so advise the jury.
    .Jordan, Attorney General, contra.
   Compton, J.

The appellant, a colored person, rvas convicted, in the Pulaski circuit court, of murder in the first degree, and sentenced to be hanged. A motion for a now trial was overruled, and the case now comes up, by appeal, for consideration in this court.

The first question presented, is as to the admissibility of certain evidence sought to be elicited, on cross-examination of the witness Giles, who was introduced'on behalf of the State. The witness stated, on his examination in chief, that he was present when the accused was arrested and taken before one Farrington, to be interrogated; and that a knife, shown the witness, he believed to be the identical knife produced on that occasion, by one Campbell, who said that the accused had borrowed it from him. On cross-examination, the -witness further stated that the accused, and other persons thought to be connected with the murder, -were repeatedly taken before Farrington and interrogated; -whereupon, the counsel for the defense proposed to ask the witness whether threats were made, or whether inducements of any kind -were held out to any of the parties, during the several examinations, in order to obtain from them information touching the crime of which they stood suspected — which the court refused to permit. In the progress of the trial it had already been made to appear, by the testimony of an accomplice, that the knife alluded to was borrowed from Campbell by the accused, on the night of the murder, and -was used in effecting an entrance through the window of the house in which the fatal blow -was struck. The object of the prosecution was to corroborate the testimony of the accomplice by that of the witness, Giles ; as the silence of the accused, when the knife was produced in his presence, accompanied by the statement of Campbell that he had loaned it to him, might be regarded as an implied admission, on the part of the accused, that he had so borrowed it. Any evidence, therefore, tending to show that the accused remained silent under the influence of threats or promises, was certainly admissible; but the question propounded to elicit such evidence was so framed as to involve an inquiry into other matters not relevant to the issue. It was strictly legitimate to go into evidence to show the circumstances under which the accused failed to deny tlie truth of Campbell's statement, at the time the knife was produced, but it was irrelevant, and therefore illegal, to inquire as to threats made, or inducements held out, affecting other suspected persons, at the several times when they were interrogated by Farrington. The question being an entire one, embracing matters which were not as well as matters which were legal, the whole question was bad, and the court properly overruled it. George v. Norris, 23 Ark., 121.

It is next insisted that the court erred in refusing to exclude •so much of the testimony of the Avitness, Mitchell, as shows the conduct of the accused at the time he AAras arrested. The accused, avIio Avas a soldier in the 54th U. S. colored infantry, was suspected, in consequence of haAÚng sold to one Gorman a watch, Avhich was taken from the deceased at the time of the murder. The regiment was formed in line, by the officer in command, so-that Gorman might the more readily identify the soldier from Avhom he bought the AA'atch. The Avitness then stated that, Avhile Gorman Avas passing along the line for this purpose, the accused partially concealed himself behind the door of one of the houses Avhich stood near the lino — to which the counsel for the defense objected. The evidence AA'as proper for the consideration of the jury, as raising a presumption of guilt, and there was, therefore, no error in admitting it. Whar. Crim. Law, 269.

The next question is, as to the competency of Ann Skelton, a colored Avoman, Avho Avas offered as a Avitness for the defense. On preliminary examination, the Avitness said she had lived with the accused for a length of time — Iioav long was not stated — as his Avife, when they quarreled and separated; that they neArer married ; but, in her own language, “just took up together.” Upon this statement, the court below rejected the witness as incompetent, This was error. The general rule which forbids the examination of the wife as a Avitness, where the husband is a party to the suit, can not be applied; because the relation of husband and wile is not shown to haAre existed betAAreen the parties. The bond of their union was illicit eohabitation, the witness occupying the attitude of a kept mistress only; and in such case, it is well settled by the authorities, that the one is a competent witness for or against the other. Greenl. Ev., vol. 1, sec. 339; Bathews v. Galindo, 4, Bing., 610.

The defense also offered Ben. McDougal as a witness,who, in answer tó a question asked by the court, said he was thirteen years of age — whereupon, the court refused to examine him further as to his capacity to testify; but excluded him as incompetent. In this there was error. As to children, there is no precise age within which they are absolutely excluded, or the presumption that they have not sufficient understanding. At the age of fourteen all persons are presumed to have common discretion and understanding, until the contrary appears; but under that age it is not presumed; hence, inquiry should be made as to the degree of understanding which the child, offered as a witness, possesses ; and if ho appears to have sufficient natural intelligence, and to have been so instracted as to comprehend the. nature and effect of an oath, he should be admitted to testify, no matter what his age may be. Greenleaf's Ev., vol. 1, sec. 367, and, authorities above cited.

The court refused to instruct the jury, on motion of the counsel for the defense, that “ unless they believed the testimony of the accomplice was corroborated, they should acquit.” Although the testimony of an accomplice should be weighed with great caution, there is no rule of law which requires the jury to disbelieve him unless his testimony is corroborated by other evidence. On the contrary, the jury may, if they choose to do so, act upon the evidence of the accomplice, without any confirmation of his statement. It is the duty of the court, however, to advise the jury not to convict of felony upon the testimony of an accomplice, without corroboration. In such case, the court does not withdraw the cause from the jury by positive direction to acquit, but only advise them not to give credit to the testimony. Greenl. Ev., vol. 1, sec. 380. Here, the instruction asked for, was such that the jury would have regarded it as a positive direction to acquit, unless the testimony of the accomplice was corroborated; and it -was, therefore, properly refused.

There was no error in refusing to give the fourth and sixth instruction, moved by the counsel for the defense. The instruetions were not applicable to the state of the case made by the evidence, and, without explanation, were calculated to mislead the jury.

Nor the errors above indicated, the judgment must be reversed, and the cause remanded, with instructions to grant the accused a new trial.


source: Caselaw Access Project

author: Compton, J.

license: Public Domain

text:
    Fisher v. Collins.
    It is "within the discretion of the circuit court to permit, an amendment of a writ of summons made returnable at a time other than that fixed by law.

      Appeal from Sebastian Circuit Court

    Hon. E. J. Searle, Circuit Judge.
    William AValker, for appellant.
    DuV al & King, for appellee.
   Compton, J.

The writ of summons in this case was made returnable at a time other than that fixed by law. The defendant moved to quash and the plaintiff moved to ^imend. The motion to quash was overruled, and leave given the plaintiff to amend the writ, which was accordingly done, by inserting the proper return day, in lieu of that which had been improperly inserted, to which the defendant excepted, and saying nothing further, final judgment was rendered against him, and he appealed

In Mitchell v. Conley, 13 Ark., 314, the decision of the court below, jiermitting an amendment of the writ of summons, after jilea in abatement filed, was aflirmed. This court said: “ It is the infirmity of this branch of the law, that no general rules can be safely laid down to govern amendments in practice. All that ought to be said is, that they are allowed for the furtherance of justice; that they ought to be so allowed as not to ojierate as a surprise, either in matter of law or fact, and always upon notice to the jiarty to be affected by them; that they ought to rest in the discretion of the court allowing or refusing them, and that this discretion, if reviewed at all by the appellate court, ought rather to be revised where the amendment is wrongfully refused, than where it is erroneously allowed.” And in the subsequent case of Thompson v. McHenry, 18 Ark., 537, this court affirmed the judgment of the circuit court refusing to allow an amendment of the original writ, in a suit by attachment, made returnable at a time other than that prescribed by law, where the motion to amend was insisted by the defendant, and where the garnishee had neither voluntarily appeared, nor been notified of the ajiplicatiom The decision seems to have turned upon the point that the proposed amendment would have surprised the garnishee, by jfiacing him in an attitude of -default, without notice of the ajiplication. The court said: tl Had these parties been previously notified of the intended ajiplication to amend the writ, or had voluntarily ajipeared to that ajiplication, the court, having the jiower, might have allowed the amendment, upon such terms as would have worked no sacrifice and no injustice. As the case ajijiears, however, in the record, we see no good reason for any sound conclusion that the court below abused its undoubted discretion in the jiremises.” According to these decisions, the allowance of the amendment in the case now before us, as well as the terms on which it was allowed, were matters within the discretion of the court; and we perceive nothing in the record which would warrant us in disturbing the exercise of that fatal discretion. The judgment is, therefore, affirmed.


text:
    Sykes v. Laferry.
    Where a justice of the peace lias jurisdiction of the subject-matter of a suit, and the defendant appears, has the benefit of a trial on the merits, and prosecutes an appeal, he could not be heard to say there was no jurisdiction of his person.

      JError to Johnson Circuit Court.

    Hon. Thomas Boles, Circuit Judge.
    Cravens, for plaintiff.
    The defendant made himself a party to the cause by appearing and contesting the case and appealing; and will not now be heard to say that the court had no jurisdiction of his person. 1 Ark., 55; Ark., 70; Ark., 286.

   Compton, J.

This was a suit commenced by the plaintiff in error — who was also plaintiff below — before a justice of the peace, on a promissory note for the sum of thirty dollars. The note was filed with the justice,' and a summons was issued and served oik the defendant, who appeared; the cause was tried on its merits, and judgment rendered against the defendant, who appealed to the circuit court, where — the record states — the “ cause was, upon motion of the defendant, dismissed for want of jurisdiction, and the proceedings before the justice of the peace quashed,” &e.

The ground of the motion to dismiss, as stated in argument, was, that the defendant resided in a township other than that in which he was sued. It does not so appear in the- record; but if it did, it could make no difference, because there was, undoubtedly, jurisdiction of the subject-matter; and after the defendant had appeared before the justice of the peace, had the benefit of the trial on the .merits, and had prosecuted an appeal to the circuit court, he could not then be heard to say there was no jurisdiction of his person. McKee v. Murphy, 1 Ark., 55; Smith v. Stinnett, id., 497. The motion to dismiss ought to have been overruled, and the case should have been tried on its merits.

Judgment reversed and cause remanded.


text:
    Hudson v. Gilliland.
    Where a person has tortiously obtained possession of the property of another, and sold it and received the proceeds, the owner may waive the tort, and bring assumpsit for the price received.

      Appeal from Madison Circuit Court.

    Hon. William Story, Circuit Judge.
    Hon. J. H. Walker, for appellant.
    Where a party takes the property of another and sells it for money, the party aggrieved can maintain a count for money had and received. Chitty on Con. (6 Eng. Ed.), 678-680; 1 Ch. PI., 100; % Greenl. Ev.,secs. 1W-1%1.

   Compton, J.

This case is brought here by appeal from the Madison circuit court.

The action was assumpsit, and the declaration contained a count for money had and received. At the trial — which was before the court sitting without a jury — the plaintiff introduced a witness, who testified that the defendant told him that he— the defendant — had stolen or taken two mules from the plaintiff, had sold them for seventy or eighty dollars each, and had received the money; and that, at the same time, the plaintiff asked the defendant if he did not think he ought to pay for the mules, and the defendant said he thought not. This was all the evidence introduced on either side; and upon this state of facts the court declared the law to he, that the plaintiff was not entitled to recover, and rendered judgment accordingly. This was erroneous. Where a person has tortiously obtained the possession of the goods of another, and sold them and received the proceeds, as was clearly shown in this case, the owner may, if he chooses to do so, waive the tort, and bring assumpsit for the price received. Bowman v. Browning, 17 Ark., 599.

Judgment reversed and cause remanded.


text:
    Wassell v. Tunnah.
    Where the terms of a statute are ambiguous, the court, in order to ascertain their meaning, must resort to the general spirit and intent of the enactment, keeping in view its known object and the mischief intended to be remedied.
    In view of the enlightened public policy which dictated the homestead act, and its obvious intent, the phraseology “ one town or city lot ” must be understood as the lot or piece of ground on which the head of a family has a house, with the appurtenances, which he uses as a home, no matter whether it contains more or less than one lot, according to the plat and survey ■of the town or city.

      Appeal from Pulaski Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.

      Farr & Vaughan, for appellant.
    Gallagher & Neavton, for appellee.
   Compton, J.

The facts necessary to an understanding of the question involved may be briefly stated, as MIoavs: Wassell recovered judgment against Tunnab, in the Pulaski circuit court, for the sum of one hundred and fifty dollars, besides costs of suit.' Upon the judgment, so recovered, execution Avas issued to the sheriff and levied on lots 10 and 11, in block numbered 100, in the city of Little Rock, as the property of Tunnah, who, being the head of a family, resided on, used, and claimed the same as his homestead. The'two lots or subdivisions constituted but one inclosure, within which, and partly on both subdivisions, was the dwelling house, with the necessary appendages, consisting of out-buildings, &c. Pursuant to the process in his hands, the sheriff advertised the premises for sale, when, on application of Tunnah, the circuit court quashed the execution and levy; from which decision Wassell appealed.

It is conceded, in argument, that one of the city lots, embraced within the inclosure of the appellee, was exempt from sale.under execution; hut it is insisted that, upon -a fair construction of the homestead act, both were not. The act provides that “ every free white citizen of this State, male or female, being a householder, or the head of a family, shall be entitled to a homestead, exempt from sale or execution, * * not exceeding one hundred and sixty acres of land, or one town or city lot, being the residence of such householder or head of a family, with the appurtenances and improvements thereunto belonging.” And, in a subsequent section, it is further provided “ that nothing contained in this act shall be so construed as to exempt from execution and sale any town lot, with any improvements thereon, except such as constitute the actual family residence, and such buildings as are necessary appendages thereto.” Gould’s Dig., ch. 68, secs. 29-31. Does the phraseology, “ one town or city lot,” used in the act, mean a lot, according to the plat and survey of the town or city, or are we to Understand it in a more comprehensive sense, as meaning the lot, or piece of ground, in a town or city, on which the head of a family has his dwelling house, with the appurtenances, no matter whether it contains more or less than one of such lots? In this respect the terms of the statute are ambiguous, and, consequently, we must resort, in order to ascertain their meaning, to the general spirit and intent of the enactment, keeping in view its known object, and the mischief intended to be remedied.

It was an enlightened public policy, looking to the general welfare as well as to that of the individual citizen, which dictated the passage of the homestead act; and the obvious intent of the act is to secure to every householder, or head of a family, a home, a place of residence, which he may improve and make comfortable, and where the family may be sheltered,, and live beyond the reach of those financial misfortunes which even the most prudent and sagacious can not always avoid; and the better to effectuate this intent, and thereby promote the prosperity of the State, as -well as the independence of the citizen, no limitation as to value is fixed upon the homestead. The splendid mansion and the humblest cabin stand upon the same legal footing — each is the home of the citizen, as he has it, and as such the law protects it. The act, then, being remedial, and such being its spirit and intent, the narrow and literal construction contended for by the counsel for the appellant can not be adopted consistently with the established rules of law applicable in such cases. The Legislature must have known that many persons had erected buildings in towns and cities without regard to the lots indicated by the survey of the particular town or city; and where the dwelling house was on one lot, and the necessary out-buildings on another — or where, as not unfrequently happens, the dwelling itself stood on the line between the two lots, and was partly on both — can it be supposed that it was the intention of the Legislature to practically deny the occupant the benefit of the act, or to extend it in such way as to make it necessary, in order to protect the homestead, that he should pull down and rebuild his houses — to say nothing of appurtenances that could not be removed — so as to get them all on one of such lots ? Certainly not. A construction which results in a discrimination so unjust, so obviously at war with what we have seen to be the general spirit and object of the act, and for which no good reason can be assigned, should not be adopted. This court, in McKenzie v. Murphy, 24 Ark., 155, decided that an alien domiciled in this State, being a householder, or head of a family, was entitled to the exemption of his homestead from sale on execution, because, according to the intent of the act, the word “ citizen ” meant an inhabitant, a resident, as contradistinguished from the word “ citizen,” when used as implying political or civil privileges. And, in the case now before us, we are clearly of opinion that the phraseology, “ one town or city lot,” must be understood within the meaning of the homestead act, as the lot or piece of ground, in a town, or city, on which the head of a family has a house, with the appurtenances, which he uses as a home, no matter whether it contains more or less than one lot, according to the plat and survey of the town or city.

It is not deemed necessary to notice the act amendatory of the homestead act, approved 11th of March, 1867, further than to remark that, as to the matter in question, it provides precisely what we have construed the act to mean without the amendment.

Finding no error in the record, the judgment of the court below must be, in all things, affirmed with costs.


author: Clendenin, J.

text:
    Hollis v. Moore.
    No judgment can be rendered for the plaintiff when there is a good plea in the case unanswered.

      Appeal from Crawford Circuit Court. .
    H011. Thomas Boles, Circuit Judge.
    Jesse Turner, for plaintiff in error.
    William Walker, contra.
   Clendenin, J.

The appellee commenced his action of trespass vi et armis in the circuit.court. The defendant, after service had, appeared and filed three pleas of not guilty, a special plea of justification, and the statute of limitation. The cause was submitted to a jury, and a verdict rendered for the plaintiff. The defendant moved for a new trial, and, upon his motion being overruled, he tendered his bill of exceptions, and appealed.

Upon examining the transcript of the record in this case, we find that there were no issues made up, or tendered to the pleas of the defendant. The pleas, therefore, stood unanswered, and it is certainly a clear proposition that a plaintiff would not be entitled to judgment when there is a good plea in the case unanswered ; and this has been the uniform ruling of this court. Williams, et al., v. Perkins, 21 Ark., 18; Reagan v. Irvin, decided at this term.

As the record is now before us, we do not feel authorized to decide upon the other points assigned for error. For the error indicated, the ease must be reversed, and remanded to the circuit court, with directions to that court to grant the defendant a new trial, and to permit the parties to perfect their pleadings.


text:
    Lawson v. The State.
    Judgment against defendant reversed, because it does not appear from tlie record that tlie' jury were sworn.

      Appeal from Crawford Circuit Court.

    Hon. Thomas Boles, Circuit Judge.
   Clendenin, J.

The appellant was indicted for the crime of larceny; he was tried, convicted and sentenced, and having filed his motion for a new trial, which was overruled, he appealed to this court.

Not having the benefit of any assignment of error, or brief on the part of the appellant, to indicate the points of his objection to the proceedings in this case, in the circuit court, we are required to examine the transcript of the record sent to us, to see if there is any error. Hpon that examination we find a very material error; for it nowhere appears. upon record, as we have it, that the individuals who tried the case, and rendered the verdict, were sworn in any manner as jurors in the case. The record entry is, that twelve persons — naming them — were selected for the venire, heard the evidence, and rendered a verdict, and in no part of the record is there any intimation that they were sworn.

For this error, the judgment of the circuit court is reversed, and remanded, with directions to grant the defendant in that • court a new trial.


text:
    The State v. Scott, et al.

    The statement, indorsed on an indictment for trespass on personal property, that it was found on the testimony of several persons — naming them— whose property was not injured, and signed hy the prosecuting attorney, though not a literal is a substantial compliance with the statute.

      Appeal from Yell Circuit Court.

    Hon. Thomas Boles, Circuit Judge.
    Jordan, Attorney General, for the State.
   Clendenin, J.

The defendants were indicted in the circuit court for a trespass on personal property. They moved to quash the indictment, because the name of the prosecutor was not indorsed on the indictment, and because it was not stated at the end of the indictment that the same is found upon the testimony of a witness other than the owner of the property injured, and signed by the prosecuting attorney. The motion to quash was sustained, the indictment quashed, and the defendant discharged. To this judgment of the circuit court the State excepted, and incorporated in her bill of exceptions, the indictment and motion to quash, and appealed.

Section 89, chapter 52, Digest of Arkansas, declares that: “ No indictment for any trespass oh the person or property of another, not amounting to a felony, shall be preferred, unless the name of the prosecutor be indorsed thereon, except ■ on the information or knowledge of one or more of the grand jury, or on the information of some public officer, in the necessary discharge of his duty, or on the testimony of some witness, other than the party injured; in which case, a statement of the fact shall be made at the end of the indictment, and signed by the attorney for the State.”

It is a requirement of the law, that the name of the prosecutor shall be indorsed on the indictment, or that the names of the witnesses upon whose testimony it was found, other than the party injured, shall be stated, and that a statement of the fact shall be made at the end of the indictment; and the question is presented by the record, whether it has been done. In a literal sense it has not; because the name of the prosecutor is not indorsed, nor is the statement required made, at the end of the indictment; but we learn from the bill of exceptions, that the statement, “ this indictment is found on the testimony of "W\ C. Scott, et al., persons whose property was not injured,” and “ signed by the prosecuting attorney,” was indorsed on the back of the indictment. This indorsement was, we think, a substantial compliance with the statute, and the indictment, therefore, was sufficient, and the motion to quash was improperly sustained by the circuit court, and for this error the judgment of that court must be reversed.


author: Walker, C. J.

text:
    Norton, et al., v. Miller, et al.

    It is irregular and erroneous for the prohate court of one county to appoint ■ a guardian for minors who reside with their property in another county.
    Both the principal and sureties in a bond are estopped from denying the truth of its recitals — as where the recital is, that the principal was appointed guardian, &c., they will not be permitted to deny the jurisdiction of the court making the appointment.
    Where a guardian voluntarily submits the settlement of his guardianship in a probate court other than that appointing him, he and his sureties are estopped to deny the jurisdiction of the court, however irregular its proceedings may have been. *
    Where a guardian settles his accounts in the probate court, the settlement is conclusive as well upon his sureties and wards as himself, except for fraud, and can not be inquired into collaterally.
    A guardian should not be permitted to resign his guardianship and be discharged until he makes full settlement.

      N. was appointed guardian of several minor lieirs, ■ and executed bonds as such, with different sureties in each bond, to whom N. mortgaged property to indemnify them. A large amount of property belonging to the wards came into the hands of the guardian. He was removed from the guardianship without making final settlement, and a successor appointed. No order was made by the in’obate court that he pay over to his successor. The heirs united in a bill in chancery against the sureties. Held, that no equitable jurisdiction was shown to exist upon which a decree could be rendered against the guardian, nor against the sureties. That there was no legal liability on the guardian to pay to his successor until an order on him by the probate court, and, until he made default, no liability to pay rested on his sureties. That the heirs could not jointly sue, nor the sureties in the several bonds be jointly sued, nor be held to account beyond their liability on their, several bonds. That the remedy of the heirs, being now of age, was severally on each bond by suits at law.

      Appeal from Sebastian Circuit Court in Chancery.

    Hon. E. J. Searle, Circuit Judge.
    Clark, “Williams & Martin and Vandever, for appellants.
    DuVal & King, for appellees.
   Walker, C. J.

The complainants (children and heirs at law of Joseph Miller, deceased) tiled their bill in chancery against William H. Norton, their guardian, and his sureties, upon eight several guardian bonds, for an account and payment of the money and estate which they allege came to the.hands of their guardian, and is due to them as such heirs.

We will proceed to consider the several questions presented, somewhat in the order they arise upon this voluminous record, referring, as we progress, to such parts of it as may be necessary to a proper understanding of the particular questions discussed.

It is first contended, by the appellants, that the probate court of Crawford county, in which letters of guardianship were granted to Norton, had no jurisdiction of the case because the heirs of Joseph Miller resided in Sebastian county, and had no property in Crawford county at the time Norton was appointed guardian, and entered into bond; and therefore, the appointment of Norton was irregular, and the bonds entered into were, at most, valid only as common law bonds.

Joseph Miller died in 1848, being at the time of his death a resident of Crawford county, where letters of administration were granted upon his estate by the probate court of that county. Subsequently — after Crawford county had, by act of the Legislature, been divided, and the new county of Sebastian, including the residence of the heirs of Miller, was established, but before it 'was organized — the probate court of Crawford county, which, had previously granted letters of administration upon Miller’s estate, appointed Norton guardian of Miller’s children — the complainants.

The question thus presented is, was this appointment regular, and if not, is Norton and his sureties bound upon their bond to account for the estate received under such appointment?

It seems that the act which established the county of Sebastian was approved and in force only four days before the appointment of Norton as guardian, by the probate court of Crawford county, and it is highly probable that the court was not aware of the passage of the act; but, however this may be, in point of fact, the law was none the less controlling, and it was irregular and erroneous to have made an appointment of a guardian over minors, who, with their property, were residents of another county.

But, from the view which we take of the case, the question as to the regularity of the proceeding before the Crawford probate court making the appointment, is not properly before us. Norton and his sureties are estopped by their bond from raising this objection; because, in the condition of the bond, they, in express terms, say, that “on the 9th day of January, 1851, Norton was appointed, by the probate court of Crawford county, guardian,” &c. And so absolute and conclusive upon them is this admission, that, no matter how nntrue in point of fact, they can not question it. Greenleaf says: “ It makes no difference in the operation of this rule, whether the thing admitted was true or false: it being the fact that it was acted upon that renders it conclusive.” 1 Greenl. Ev., page 208. In the case of The People v. Norton, 5 Selden's Rep., p. 179, in which a question arose as to the liability of a trustee upon his bond, the court say: “Lynch got possession of the trust estate under-the proceeding by color of which he claimed to be trustee, and Norton voluntarily undertook, as his surety, that he would faithfully administer the trust. If the proceeding was irregular, for want of notice to the children of Mrs. Lynch, they might object to it in a proper manner, for that Cause; hut Lynch, after having obtained the property upon the pretense of being the trustee, can not be permitted to deny his liability to account as such. The defendant, who voluntarily became his surety in order that he might take the trust property, is, for a like reason, precluded from denying his liability as such.” The case of Iredell v. Barber, 9 Iredell’s Rep., 234, is strongly in point. King had been appointed guardian for Mrs. Pane, a lunatic, and entered into bond with surety for the faithful performance of his duties, and, in the condition of his bond, recited his appointment as guardian by the court — a court, however, that had no power to make the appointment, and this want of jurisdiction to appoint was relied upon by King and his sureties in bar of a right of recovery upon the bond. In considering which, Pearson, judge, said: “ It is true the court had no power to appoint King the guardian of Mrs. Pane, and authorize him to take her estate into possession, but the defendant will not be heard to make this objection; he concurred in the act, his bond solemnly asserts that * * * ., and after he has taken the estate into his possession, and wasted it, it is not for him to say that it was unlawful, and therefore he is not bound by his undertaking deliberately entered into.”

In the case of the United States v. Manin, et al., 2 Brock. Rep., 115, Chief Justice Marshall said,: “ The appointment of Man ill is illegal, but tliat does not render the bond void. It was given in the confidence that James Manin was legally appointed to office.”

These decisions are strongly in point, and decisive of the question; indeed, they do but affirm what this court has heretofore decided, in the case of Outlaw, et al., v. Yell, use, &c., 8 Ark., 352. In this case, the probate court of Crawford county was a court of competent jurisdiction in such cases, but not rightfully in this case, because neither the persons nor the property of the minors was within the territorial limits of the county. The minors petitioned the court that Norton should be made their guardian; he accepted the appointment, and the other defendants, his sureties, entered into bond for the faithful discharge of his duties as such guardian. Under the power and authority thus conferred, he took the property of the minor children of Miller into his possession, and, as they alleged, have squandered and wasted it; and when he and his sureties are called to an account upon their bond for such waste, we hold that they are estopped by their admissions in the bond from doing so. And the same rule applies, with equal force, to the further proceedings had in the ¡irobate court of Sebastian county, to which the case was irregularly transferred ; because, no matter how irregular the proceedings of that court may have been, Norton, the guardian, by the voluntary submission of the settlement of his guardianship to that court, is estopped from denying its jurisdiction. The principle upon which estoppel rests, is not that the fact does 'not exist, but that the party is estopped from raising the question of its existence. Nor does the fact that part of the defendants (the sureties on Norton’s bond) did not submit to such jurisdiction, affect this question. Their liability is conditional, and arises upon a valid bond executed in Crawford county, and they were not otherwise parties to the record.

The defendants bitterly complain in their answer that the settlement made by Norton with the probate court, charged him with a larger amount than was' really due his wards. If such, was the case, Norton should have excepted and appealed from the decision of the probate court. This he did not do; and therefore, unless for fraud, the settlement is conclusive upon him, and as a consequence upon his sureties. Norton’s account current for settlement, was filed on the 14th of January, 1852, and was subsequently restated and approved by the court, on the 18th day of July, 1854. On the 7th day of September, 1854, Norton was displaced as guardian, and defendant, Wheeler, was appointed guardian for all of said minors except two.

• However erroneous we should hold these proceedings to be, upon a direct issue to-set them aside, still when they collaterally arise, as they do in this case, we must hold them sufficient to reqxiire the parties to account to the heirs of Miller for the estate which, it appears, remained in Norton’s hands upon settlement, or afterwards during his guardianship.

In the further investigation of this case, the next question for our consideration is, whether the complainants are entitled to equitable relief upon the state of case disclosed by the bill. The defendants have, by answer, raised this question as fully as it would be if presented by demurrer, and insist that the complainants have severally, not jointly, a right of action against Norton and his*sureties upon the bonds as executed by them; and that the liability of each is limited to the bond so executed, and for all which the complainants have a clear remedy at law.

, To determine this question, wo must briefly review the case as made by the bill.

It appears that Joseph Miller, a resident of what was then Crawford county, in the year 1848, died intestate, leaving a widow and- eight children, and property, real and personal, of considerable value; that Norton; in 1849, married the widow of Miller, and was, on the 9th of January, 1851, appointed, by the probate court of Crawford county, guardian for each of said children, by separate orders of appointment and letters of guardianship, and entered into separate bonds, with surety, to each of his wards, in the penal sum of four thousand dollars, with the usual conditions for the performance of his trust. Subsequently, a large amount of money and property came to the hands of Norton, belonging to his -wards, as well as real estate, the rents of which were of great value; that Norton transferred his guardianship to Sebastian county, where, by an order of the probate court of that county, the defendants, Grimes, McDonald and Atkinson, sureties upon Norton’s bond to Martha E. Miller and Charles Miller, were released and discharged from further liability, and that James P. Spring and Solomon E. Clark became sureties for Norton upon bonds’ to these two heirs ; and that, in order to save them harmless as such sureties, Norton conveyed to them, by deed of mortgage, real estate of great value; and that Nicholas Spring, as the surety on the bond to Mary Jane Miller; Adolphus' Meyer and Jeremiah Kanady, on the bond to Henry Miller; John E. "Wheeler as surety on the bond to Emma Miller, and John McCannon and Asa Clark as sureties on the bond to Joseph Miller, severally obtained from Norton mortgages on real estate and personal property of great value, which was only partially incumbered. The balance appearing to be due and unsettled by Norton, upon his last settlement, was fourteen thousand one hundred and fifty-nine dollars and seventy cents, which — together with the sum of about two thousand dollars, -which, it is charged, came to his hands since his last settlement and before his discharge as guardian — was the sum claimed by the complainants to be due from Norton and his sureties to them.

Complainants charge that there were several items omitted in the settlement, which, if allowed, would increase the amount in the guardian’s hands, but there is no allegation of fraud in the settlement, on account of which they claim that it should be set aside and the account restated; that Norton left the State and had gone to parts unknown to complainants ; that he was wholly insolvent, and that there was no other property remaining which belonged to him, except that mortgaged to his sureties, the defendants; that, although the defendants are bound on several bonds to different wards, the property mortgaged to them is held in trust for the benefit of the complainants jointly ; and that whatever amount may remain due, after the sale of the mortgaged property, should be paid by the sureties jointly, as of joint sureties upon one bond.

This is substantially the case made by the bill, and upon consideration of which we have failed to discover the equitable grounds upon which it rests; and, at the outset, the inquiry arises, why was the settlement of this case withdrawn from the probate court ? No final settlement had been made when the probate court discharged Norton from his guardianship and appointed his successor; no order was made requiring him to pay over the money found due, upon settlement; and, until such order requiring him to pay over the money and estate in his hands to his successor, no legal liability rested upon Norton to make such payment, and until he was in default for not having made such payment, no liability rested upon his sureties to pay. Jones, et al., v. State, use, &c., 14 Ark., 170; State, use, &c. v. Croft, 24 Ark., 550.

If any intervening cause incumbered or hindered a recovery at law, it should have been stated in the bill, and in its absence there is no basis laid for the exercise of chancery jurisdiction, not even against Norton alone, much less his sureties, whose liability is conditional. The rule, as laid down by this court in Clark v. Shelton, 16 Ark., 480, is, that it is only where the jurisdiction over the principal is clearly established, with the ultimate responsibility of the sureties, that the chancery court can exercise jurisdiction over them; a liability which, however, is incidental to, and dependent upon, the undoubted right of the court to jurisdiction over the principal; and as no equitable jurisdiction is shown to exist, upon which a decree could be rendered against Norton, there is clearly no basis laid for making his sureties parties to the suit, not even if they had all been bound to secure the payment of one bond.

Norton’s undertaking as guardian was several and not joint. He was the separate guardian of each ward, as much so as if different persons had been appointed guardian for each; and whilst it is true that the money which came to his hands was a common fund, to which they were entitled as heirs of Miller,, it was received by him under his trust, not as a joint fund for all of them, but for each of his wards separately, and he had no authority to receive it otherwise. It was irregular for him to make a joint settlement of his several guardianships, with the court; but he should properly have charged himself with the amount due to each, and been credited by the actual expenditures for each ward separately. If such was not the case, in an action at law upon the guardian’s bond, the plaintiff could not properly aver that the guardian had received money due to him individually, because it would be claimed as a joint fund; nor could his wards join in an action at law for its recovery, because their right to recover would be against different parties, under separate contracts, and thus they would be deprived of all remedy at law, either jointly or severally. It is evident, therefore, that the heirs of Miller should not have been joined as complainants; nor could their guardian and his sureties upon the several bonds be- sued jointly, or held to account to the complainants beyond their liability upon each separate bond. In Wren, et al., v. Gayden, 1 How. (Miss. Rep.) 366, a case .in many respects similar to the one under consideration — where a suit in chancery had been brought by severa' wards against their guardian — it appears that some informa division of property had been made between the wards beffm Gayden was appointed guardian; but that the whole of th< property remained in his possession for á time, and was after wards delivered to most of his wards, for whom, by separat appointments, Gayden had been made guardian. All of hi wards joined as complainants in a bill against him, chargim him with fraud and willful neglect and waste of their property Under this state of case, the court, when considering a demurre to the bill, said: “ So far as Gayden is sought to be charged i his character of guardian, there is no privity of interca between the complainants, no legal dependence between thl claims sought to be enforced, for G-ayden, having executed separate guardian bonds, cannot be held responsible to his wards jointly; his liability as guardian to a portion of the complainants is separate and independent.”

It may be remarked that although part of the property had been paid over to several of the wards, yet the suit in which the complainants joined was for an account of property wasted and squandered by the guardian, and fraudulently withheld from them, which makes that a much stronger case than the one before us; and yet the Supreme Court of Mississippi held, as we think correctly, that the rights of the complainants and the liabilities of the guardian were separate and distinct, and could not be joined in the same action.

The other material questions for our consideration have been fully settled by the previous decisions of this court. In Moren, et al., v. McCown, et al., 23 Ark., 93, after a brief reference to several of our former decisions, which, under the peculiar circumstances of the case, had denied to the probate court the ■exercise of jurisdiction, Mr. Justice Fairchild, who delivered the opinion of the court, said: “They all concede the jurisdiction of the probate court to determine the responsibility of the administrator, upon the admitted assets of the estate, and that is precisely what the probate court, in this ease, was prohibited from doing, by withdrawing the administration of Samuel Moren’s estate from the probate court of Hempstead county to the circuit court sitting in chancery. Ordinarily, the liability •of the sureties in an administration bond rests alone upon the bond, upon which the legal remedy is adequate to its determination only in a court of law, and an action at law upon the bond is not sustainable until the probate court has adjusted the account of the administrator, and ordered him to pay over an amount found to be in his hands. Baker v. The State, 21 Ark., 408. And the same principle has been applied by this court to the bonds of guardians and collectors. Sebastian v. Bryan, 21 Ark., 450; Jones v. The State, 14 Ark., 172. The policy of our law is to hold the remedy on an official bond, in a court of law, subjeet to tlic action of the tribunal established to adjust the accounts of the party, who, by his default, is alleged to have forfeited his bond.” The court then reviewed the case of Clark v. Shelton, and proceeded: “But although we do not decline to follow the case of Clark v. Shelton, we are not inclined to extend its principles to a case presenting a dissimilar state of facts; in that case the jurisdiction over the principal was unquestioned. That state of case, with the ultimate responsibility of the sureties, extended the jurisdiction of chancery over them, which was incidental to, and dependent upon, the undoubted right of the court to take cognizance of the acts of the principal.”

In view of these and other cases, and after the most careful consideration, we have reluctantly come to the conclusion that this bill — the sufficiency of which is expressly raised in the answer by way of demurrer — can not, upon any known principles of equity, be sustained. We say reluctantly, because we can very plainly see that the estate of these complainants has been so greatly mismanaged that it is improbable they will ever get what is really due them, and that the recovery may yet, for a time, be delayed; but we can not, for that reason, depart from our previous decisions, which, we think, properly define the jurisdiction of the probate court, and protect it in the exercise of its constitutional powers. The bill wholly fails to show such facts as would justify the parties in withdrawing the case from that court. Norton had not closed his guardianship ; his last settlement was but a x-esting point, a basis for further settlemeixt, and, before he should have been permitted to resign his guardianship, he should, under the provisions of the 36th section of Digest, chapter 81, have been attached or imprisoned until ho performed his duty in that x’espect. It appears, moreover, that Wheeler had been appointed guardian to all of these minor's except two; and, as the successor of Norton, it became his duty to proceed against him, and to recover any amount of the estate of his wards remaining unaccounted for iix Norton’s hands, for there is an express covenant, in the condition of the guardian’s bond, that upon the determination or ceasing of the guardianship, or when the heirs become of age, the guardian will account, &e.

It has been suggested by counsel, in argument, that the children of Miller are now of age, and if so, they have a clear remedy at law against 'either or both of their guardians, and their respective sureties, to the extent of the, liability upon their several bonds.

From this view of the rights and liabilities of the respective parties, that feature of the bill, and the decree of the court based upon it, which treats the sureties upon the several bonds as jointly liable to the heirs of Miller, is palpably erroneous. The liability of the smeties was limited to the terms of each contract, and derived its force from the consent of the contracting parties. The agreement of the sureties was that they would be bound in a penal sum for the faithful discharge of the duties of the guardian towards the particular ward to whom the bond was given, atid had no reference whatever to any other guardianship or bond, and courts of equity, no moré than courts of law, can bind the parties beyond their legal liability, according to the terms of their agreement.

The mortgages given by Norton upon his estate, to save his sureties from loss by reason of their suretyship, is governed by the same rule. Each mortgage was given for the security of the parties to whom given, and created a lien upon the property thereby conveyed, from the time they were respectively executed and filed in the recorder’s office for record. Any excess of property after sale, or of money arising from sale, over what is necessary to indemnify the sureties to whom given, would revert to the benefit of the next lien, to Norton,-or to one -who might hold his equity of redemption. '

Let the decree of the Sebastian circuit court be reversed and set aside, with instructions to dismiss the bill for want of urisdiction.


text:
    Warren v. Chambers, ad.

    ■Where the water of a river or lake, whether navigable or not, recedes slowly and imperceptibly, and the land before covered by water is left dry, such land belongs to the riparian owner from whose shore the water has so receded.

      Appeal from Jefferson Circuit Court in CImneery.

    Hon. William M. Harrison, Circuit Judge.
    G-allagher & Newton, for appellant.
    Clark, Williams & Martin, for appellee.
   Compton, J.

This was a bill in chancery, exhibited by Samuel II. Warren against William E. Chambers, as administrator of Stephen Bonnell, deceased, for an abatement in the price of certain lands which Bonnell sold to the complainant.

At the final hearing the- bill was dismissed, and the complianant appealed.

The ground on which an abatement of the purchase money is sought, is, that Bonnell has no title to*a portion of the land embraced in his deed to the appellant. The land sold was hounded on Tucker’s lake, according to the original survey of the meanders of the lake, made by authority of the United-States. Shortly before the sale to the appellant, the meanders of the lake were again surveyed, when it appeared that there was a strip of land lying between Bonnell’s land, as originally run, and the lake, which had become dry by recession of the water. This strip ivas conveyed with the other land, and is described in Bonnell’s deed as “ the swamp land recently surveyed.” The evidence showed that the water receded gradually — continuing to do so through a series of years.

Waiving other questions that have been .discussed, we will proceed to determine whether Bonnell had title to the strip of land above indicated; for, if he had, then this controversy is ended, and the decree of the circuit court below must be affirmed. The question presented involves an examination, to some extent, of the doctrines of alluvion and dereliction. Alluvion, according to the English common law, is an addition made to land by the washing of the sea, a navigable river, or other stream, where the increase is so gradual in its progress that it can not be perceived how much is added in any moment of time. Land thus formed belongs to the proprietor of the adjacent land to which it is attached. Dereliction, according to the same authority, is a recession of the waters of the sea, a navigable river, or other stream, by which land that was before covered with water is left dry. In such case, if the alteration takes place suddenly and sensibly, the ownership remains according to former bounds; but if it is made gradually and imperceptibly, the derelict or dry land belongs to the riparian owner from whose shore or bank the water has so receded. Woolrych on Water Courses, marg., pp. 29, 34, 35, 46, 47, and authorities there cited. And the reason, as given by Blackstone, why alluvial and derelict land, gained by imperceptible degrees, belongs to the owner of the adjoining land, is that de minimis non curat lex, and because such owners, being often losers by the breaking in of the water, or at charges to keep it out, this possible gain is a reciprocal consideration for such possible charge or loss. Bl. Com., vol. 2, 262.

In this country, these rules of the common law have been applied to lake as well as other waters. Thus, in Murry v. Sermon, 1 Hawks, 56, decided by the Supreme Court of North Carolina, the defendant in ejectment claimed title to the land in dispute, which was bounded by Mattamuskeet ialce, under a patent dated in 1761; and the plaintiff claimed under a grant of recent date, covering lands between the defendant’s lines and the lake. Both parties introduced evidence as to what had been actually run for the lines of the . defendant’s land; and the court below instructed the jury to find for the defendant, no matter whether the lake had receded or not; for, in either case, it remained his boundary. This was held to be erroneous, and a new trial was awarded, in order that the jury might find the fact whether the waters of the lake had receded gradually and imperceptibly, or suddenly and sensibly, from the land in controversy, because, on that question, the court said, the rights of the parties depended. So, in Banks v. Ogden, 2 Wal., 57, recently determined in the Supreme Court ■of the United States, it was held that accretion by alluvion from Lake Michigan belonged to the proprietor of the land bounded by the lake. It is true that, in both of these eases, lakes are navigable, and in the case before us, evidence was introduced in the court below to prove that Tucker’s lake is navigable; but in such cases, it is immaterial whether the water is navigable or not. In England, from whence we derive the doctine of alluvion and dereliction, and where it is said to be applicable to streams generally, (Woolrych on Waters, marg. p. 46,) no river is navigable, in a common law sense, above the point where the tide ebbs and flows, though it may be so, in fact; and this rulé has been adopted in most of the American. States. Angell on Water Courses, sec. 542, et seq., and cases there cited. Whether a river is navigable, in a technical common law sense, or in the ordinary acceptation of- the term, or' whether it is navigable or not, may become an important inquiry in eases touching the right of the public to use it as a highway, and for commercial purposes. So, a like inquiry would be pertinent in cases involving the ownership of the bed of the stream, as between the government, or those claiming under it, and the riparian proprietors; because, at common law, the bed of a river belongs to the government so high up only as it is navigable in a technical sense, that is, as far as the tide ebbs and flows; and above that point it belongs to the riparian owners; each — where théir lands lie on opposite sides of the river — owning to the middle or thread of the stream. But whether a river or other water is or is not navigable, can in no way affect the right of the riparian proprietor to such additions as may be made by alluvion or dereliction. Ilis right rests altogether on another and different foundation. The facts to be ascertained are the local situation of the land and the mode by which the increase has been added. If the land is contiguous to the water and the addition is made slowly and insensibly, his title to such addition is complete. In Municipality No. 2 v. Orleans Cotton Press, 18 La. Rep., 122, it was decided that the right to future alluvial formation was a vested right inherent in the property, and an essential attribute of it, resulting from natural law, in consequence of the local situation of the land to which it attaches ; and that it was an accessory to the principal estate or land, which cities as well as individuals might acquire, jure alluvionis, as owner of the front or riparian proprietor; and that the right was founded in justice, arising from the risks to which the land was exposed, and from the burden of keeping up levees or embankments in front of the river to protect the estate. And in Banks v. Ogden, supra, the Supreme Court of the United States said: “ The rule governing additions made to land, bounded by a river, lake or sea, has been much discussed and variously settled, by usage and by positive law. Almost all jurists and legislatures, however, both ancient and modern, have agreed that the owner of the land, thus bounded, is entitled to these additions.1 By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to receive whatever benefits they may bring 'by accretion; by others, it is derived from the principle of public policy, that it is the interest of the community that all land should have an owner, and most convenient that insensible additions to the shore should follow the title to the shore itself.”

The testimony in the record brings the case before us clearly within the rules of law to which we have referred. The conclusion, therefore, is that the appellant acquire title to the derelict land, under the conveyance from Bonnell; and that, consequently, the decree must be affirmed. '


author: Clenpenin, J.

text:
    Douglas, et al., v. Twombly.
    Whore an execution has been issued on a judgment; been levied on personal property and a delivery bond given and returned forfeited, a new judgment springs into existence immediately upon the forfeiture, and the original judgment is extinguished, though the bond is defective in omitting the condition prescribed by section 51, ch. 6S, Big.

    A writ of error will not lie to the original judgment, where there has been a forfeited delivery bond; but if there be any defects or informalities upo n the face of the execution, the delivery bond, or the return and forfeiture, the proper tribunal to consider them is the court from which the execution issued and at the term to which it was returnable.

      Error to Arkansas Circuit Court.

      Plea in abatement of the writ.

    L. A. Pinball, for plaintiff's.
    Watkins & Pose, for defendant.
   Clenpenin, J.

The defendant in error instituted his suit, by petition and summons, against the plaintiffs in error, upon a promissory note. Such proceedings were had in the circuit court that final judgment was rendered in that court against the defendants there, and they have sued out their writ of error to this court.

Upon the return of the writ of error, the defendant in error filed his plea, setting up, in substance, that, on the judgment rendered by the circuit court in this case, he sued out, and there was issued, a fieri facias execution, which was levied on the personal property of .one of said plaintiffs in error, who, for the purpose of retaining possession of said property, entered into a delivery bond, with security, which bond was returned with the execution, forfeited, by the sheriff. To which plea a replication'of nul tiel record is filed by ¿lie plaintiffs in error, and issue tliereon by the defendant; and this issue we are called upon to determine.

It is now the settled rule of this State, approved by a continued series of adjudications, that whore an execution has issued on a judgment, been levied on personal property, a delivery bond given and returnee;! forfeited, a new judgment springs into existence immediately upon the forfeiture, and That a writ of error will not lie to the original judgment, because it is extinguished, eo instanti, upon the forfeiture, by the statutory judgment. Frazier v. McQueen, et al., 20 Ark., 68, and cases cited.

Our present law concerning delivery bonds derived its main features from the law of Virginia; and in that State it is held that, if a forthcoming bond is forfeited, the execution is at an end, because the forfeiture had the effect of a judgment, and execution issued against all the obligors on the: statutory or constructive judgment. Cook v. Piles, 4 Munf., 153. And in Mississippi, where the laAv of Virginia Avas also substantially adopted, a forthcoming bond had the force and effect of a judgment, Avhen forfeited. No judicial action Avas necessary to produce that result, and execution issued on this statutory as upon any other judgment. 4 Howard’s (Miss. R.), 350. And so effectual is this satisfaction, that, after a delivery bond taken and forfeited, a second execution, levy and bond, on the original judgment, are utterly void. Witherspoon v. Spring, 3 Howard (Miss. R.), 60. And in Clark v. Anderson, 2 Howard (Miss.), 853, it Avas said that “ the forthcoming bond, after forfeiture, becomes, by operation of law, a judgment, and necessarily extinguishes the former judgment, because tAvo judgments are not alloAved at the same time against the same person, on the same cause of action.”--

And the Supreme Court of the United States, in Brown v. Clark, 4 Howard, 9, upon this point, say that “the lien of the first judgment ceases, and a new and more comprehensive lien arises, upon the statutory judgment, embracing the property of both principal and sureties in the forthcoming bond, ánd no action of the court is necessary on the forfeited bond. As soon as the bond is forfeited, the old judgment is extinguished, and a new lien attaches.” And this court, in the case of Biscoe, et al., v. Sandefur, et al., 14 Ark., 584, says that “this new judgment is considered as possessing the qualities, force, effect and dignity of a judgment obtained in the “ordinary mode of proceeding according to the course of the common law, and in a court of competent jurisdiction.”

"We thus see, from these authorities, that, immediately upon the forfeiture of the delivery bond, a new judgment sprang into existence.

But it is contended, by the appellant’s counsel, that the delivery bond in this case -was defective, and that, therefore, no valid judgment could be created by its forfeiture, and that the original judgment is still in force.

IJpon the inspection of the transcript of the execution, levy, delivery bond and return of the sheriff, offered as evidence on the issue now before us, we find that the delivery bond does not contain one of the conditions required by law. The 51st ■section of chapter 68, Digest of Arkansas, declares that “ hereafter, besides the conditions now prescribed by law, there shall be inserted in every delivery bond, taken by any officer, a further condition, that, in case the property specified in said bond shall not be delivered, as provided therein, the said bond shall have the force and effect of a judgment, on which an execution may be issued against all the obligors thereof.” This condition should, no doubt, have been incorporated in the bond, but being left out, and being defective in that respect, can we consider it in this collateral inquiry? "We think we can not ■do so. As we have before remarked, immediately upon the forfeiture of the bond there was a new judgment created by the statute, and that judgment is still in existence and beyond ■our control (not being before us by appeal or writ of erroi’), and although based, it may be, upon voidable proceedings, still it is, by law, the judgment of a competent tribunal. If there were defects or informalities upon the face of the execution, the delivery bond, or the return and forfeiture, the proper tribunal to have considered such defects or informalities was the court from which they issued, and to which they were returnable, and who could, as a coui’t of first resort, have quashed the execution, or set aside the delivery bond and the return, ^nd Avhose action Avould have been the subject of review in this court, upon a case properly presented by appeal or writ of error. But the objection, not having been 'made in that court, can not be considered in this.

And this position is, avo think, maintained by the Supreme Court of Kentucky, in the case of Kelly v. Larok & Stephens, 7 B. Mon., 223. In that case, a suit Avas instituted on a judgment rendered in the State of Mississippi, upon a judgment on a forfeited delivery bond, and the court say: “But the bond, by the statute of Mississippi, upon its return to the office as forfeited, is declared ‘ to have the force and effect of a judgment, and upon which execution may be taken out, as upon a judgment, for the amount of the original execution,’ and the question arises, can it bo impeached collaterally by evidence in pais? We think it can not. It composes part of a judicial proceeding in Mississippi; is record evidence of right in the plaintiffs, sanctioned by the return of á SAVorn and responsible officer, and could not, as we believe, be impeached by evidence de hors the record. While it remains in force, unreversed or annulled by any direct mode of proceeding, it is record evidence of right in the plaintiffs, and could only be impeached by evidence of as high a grade as itself.”

In Mississippi, the court say, “the statute gives to a forfeited forthcoming bond the effect of a judgment, but there is, in truth, no judgment, as the court does not pass upon it; nor is any judgment entered on the record. If the bond AAras defective, or irregularly taken, it might have been quashed, but can not be reached by writ of-error.” 3 Howard, (Miss. R.,) 421. And in Moody v. Harper, 28 Miss. R., 624, the court say: “It is nOAv the settled law of this State that the circuit court has no jurisdiction to quash a forthcoming bond after the return term to which it is returned forfeited, and that an order quashing such a bond is void.”

And, in the case of Reardon, ex parte, 9 Ark., 453, this court incidentally say: “But, inasmuch as, in the examination of ■the question decided, other questions, touching the remedy, when the bond is insufficient for defects apparent upon its face, or upon the face of the bond and execution, as where it is insufficient for a reason that would sustain a plea of non est factum, have, to some extent, come under our observation, we will remark that all the authorities seem to concur that, after the term has elapsed to which the bond is returned, relief for either cause is beyond the power of that court, unless in caseé where the bond is an absolute nullity. This position, seeming to be based upon the idea that the court of law would no more set aside,- at a subsequent term, that which, by operation of law, has the force and effect of a judgment, than it would an actual judgment formally entered up at a preceding term; and that, after the lapse of that term, relief is alone to be sought in a court of chancery, seeming to base this position upon the ground that that court, when the party’s claim for relief grows out of circumstances that would have sustained a plea of oion est factum at law, could fully relieve on a substantive ground of equitable interpositionby as similating this statutory judgment, thus obtained, to a judgment obtained by fraud, without any fault on the part of the defendant.”

And, in the case of Ruddell v. Macgruder, 11 Ark., 583, this court say: “During the return term, the court may, on motion, pass on the sufficiency or insufficiency of the bond, for defects apparent upon its face, or upon the face of the bond and execution. But after the return term has elapsed, all relief against the bond is beyond the power of that court, unless in cases where the bond is an absolute nullity.” * " * “Where the bond has been forfeited, it has, by operation of law, the force and effect of a. judgment, on which execution may issue, and the sheriff’s return to that effect is conclusive record evidence of the fact of forfeiture.”

And, in the case of Biscoe, et al., v. Sandefur, et al., 14 Ark., 486, this court say that “it is proper to observe that, as a forthcoming bond, whilst in force, under the existing law, is a satisfaction of the first judgment, a faulty or irregular bond may be quashed on motion, at the return term of the execution, and thus remove the impediment to proceeding on the judgment.” See, also, 16 Ark., 625.

In the light of these authorities, and for the reasons given, we find the issue for the appellee, and that the writ of error In this case must he dismissed.


author: Walker, O. J.

text:
    Nichol v. Dunn, et al.

    Where a person makes himself a party to a suit in chancery by filing- a cross-bill, and it is dismissed on demurrer, an axipeal will. lie, though his cross-bill may have been consolidated with the original bill, the issues on which are'undisposed of.
    A stranger, or volunteer, paying the debt due to a vendor of real estate, having a lien for the jiurcliase money, is not subrogated to the vendor’s lien.

      Appeal from- Arkansan Circuit Court in Chancery.

    lion. William -M. Harrison, Circuit Judge.
    Watkins & Nose, for appellant.
    The right of substitution is grounded entirely upon princi.7 >les of equity, and may be decreed where na contract of any kind, nor any privity, exists between the parties. Kyner v. Kyner, 0 Watts, 221; 11 Harris, 294• The right exists more from equity than per contract, and rests upon principles of equity wholly independent of contract. 1 Corns., 598. Where the purchase money of real estate is paid, the party paying has the same priority over other incumbrances. Clark v. Monroe, lip Mass.-, 351; Jackson v. Austin, 15 J. It, 477; Up Ark., 638. It was the intention of the parties in this case that the lien should enure to the benefit of the party paying the vendor’s claim for the purchase money; and the payment being so received, equity will subrogate him to the vendor’s lien. "
    The demurrer of "William D. Dunn admitted the facts set up in the bill, and consequently admitted that he had no lien or right to contest the substitution.
    This is a final decree, and one from which an appeal will lie. 1 Con., 691; 1 Band., 431; 6 JIow., 305.

    Clark, "Williams & Martin, and Bell & Carleton, for appellees.
    We submit there was no final decree from which an appeal will lie, because, until there is a final decree in the whole cause, there is no right of appeal in any one. See Keatts v. Bector, 1 Ark., 391.

    By the payment, to Mrs. Ashley, her claim, rights and lien were extinguished, and there could be no subrogation in-this case. Shall v. JBiscoe, 18 Ark., Up3; Engles v. Engles, 4 Ark., 386. The vendor’s lien is a personal right to the vendor, and when he is paid there no longer exists a lien. That there is no subrogation to the vendor’s lien in this case, see 1 Corns., 586; 3 Paige, 133; Trailing Cas. in Eg., 113.

   Walker, O. J.

The appellees contend that there has been no final decree rendered in this case, from which an appeal can be taken; not, however, upon the ground that the decree is not final, so far as relates to the cross-bill of Nichol, but that his cross-action was, upon motion, consolidated with the original action and other cross-bills, and ordered by the court to be progressed with and heard as one suit; and because the decree, upon demurrer to the cross-bill of Nichol, dismissing his bill, left the issues upon the original bill, and other cross-bills undisposed of, that there was no such final decree rendered in the case that an appeal will lie.

In this wo think the counsel mistaken.

One of the distinguishing features of chancery jurisdiction is, that it has power to bring all the-parties in interest before it, so that, in full view of all their rights, a decree may be rendered which will settle the equitable rights of all parties, and be binding upon all. For this purpose, when it is made to appear that persons not parties to the suit arc interested in the matter in litigation, the court frequently declines to progress with the cause until they are brought before it; and such being the ease, it would be singular indeed if one who has made himself a party to the suit, and, as he alleges, with equitable rights superior to those litigating with him, should be, by a decree, dismissed from the court, and be denied the privilege of being heard until the matters in litigation as between the other parties had been heard, and a final decree rendered as to them. ¥e have, in a former decision, held that a cross-bill, like all other bills, must contain within itself, if true, a distinct cause of equitable relief; that the cross-bill and original bill are distinct suits, which proceed side by side, the hearing of one being delayed until the hearing of the other. Trapnall v. Burton, et al., 24 Ark., 380. The decree against Nicho! is a final decree; it disposes of his whole case, and puts him out of court, and is, in our opinion, such a final decree that an appeal will lie. The grounds of equity set up by Niehol, in his cross-bill, are, that he paid to Ashley’s exeeuti’ix nine thousand dollars of the debt due by David L. Dunn for certain lands, and that, by force of such payment, he should, upon equitable principles, pro tanto, be subrogated to the same rights which Ashley’s executrix would have had but for such payment; and that the sole question, under this state of case, is, is Nicliol entitled to a prior lien upon the land ? And we had as well announce, at the outset, that, in view of the state of case presented, Niehol is entitled to no such prior lien. He was not a party, either in interest or otherwise, in the purchase of the land made by David L. Dunn of Ashley’s executrix, but came as a stranger, a volunteer, to pay the debt of David L. Dunn, without authority or interest in the purchase. Under such circumstances, he could not charge the estate of David L. Dunn with the amount so paid, for no one has a right, by volunteering to pay money for another, to make him his debtor; and, such being the case, we do not perceive the grounds upon which he rests his claim to be subrogated to the rights of lien which Ashley’s executrix, as vendor, held upon the land contracted to Dunn. Coote on Mortgages, 230; 1 Ch. Pl., 350. An examination of the several eases cited by counsel do but confirm us in the view of the case thus taken. Cases frequently arise, upon contests between prior and subsequent purchasers’ liens, in which the junior lien creditor, in order to protect himself, is compelled to pay the debt of the creditor holding the prior lien, and is entitled by subrogation to the rights which the senior lieu creditor would have had but for such payment, but this equitable right of subrogation grows out of some preexisting right. The lien creates no property in the estate, nor right of action to recover it, but a certain charge upon it, a right to satisfaction out of it. The case of Foster v. Fox, 4 Serg. & Rawle, 92, is of the class of cases to which we refer. In that case the creditor of the vendee paid the money due upon a judgment and took a transfer of the debt, and it was held that he was entitled to the judgment, and might revive it to his own use, and thus enforce the payment of the money against the purchaser of the vendee’s interest at sheriff’s sale. It will be observed, in that case, that there was the purchase of a debt, not the payment of a debt, as was done by Nicliol in this case. Foster v. Fox was decided upon the same general principle upon which the case of Moore and Cail v. Anders, 14 Ark., 628, was decided, in which it was held that the assignment of á note for the purchase money of land secured to be paid by a vendor’s lien, carries with it, as an incident to the debt assigned, the vendor’s lien reserved by the contract of sale; but if there had been an absolute conveyance of the land by deed, without such reservation, the mere assignment of the note executed for the purchase money Avould 'not carry Avith it the vendor's lien, and the assignee of such note would not be subrogated to the vendor’s lien rights upon the land conveyed, for the payment of the purchase money. Shall v. Biscoe, 18 Ark., 142. And in Williams v. Christian, 23 Ark., 255, it aatis held by this court that, Aidiere a note for the purchase money for land Avas assigned Avithout recourse upon the assignor, the vendor’s lien does not pass by such assignment to the assignee. It Avillbe seen, in all of these cases, that the claim of lien by the assignee groAi's out of his purchase and transfer of the debt, or where a payment is made to relieve the property from a prior incumbrance, but for AA-hicli his right to satisfaction Avould exist; but in 110 case is the voluntary payment of a debt by one not responsible for its payment, and which is not a charge upon property, sufficient to entitle him to be subrogated to the right of lien AA'hich the creditor had upon the estate of his debtor. Wilks v. Harper, 1 Comp., 586.

Therefore, liOAvever pure may have been the motives of Nichol to disincumber the estate AA'hich might descend to his grandchild, as sole heir of DaA'id L. Dunn, he can not be permitted to occupy the more favored position of purchaser and assignee. Ashley’s executrix, as vendor, field, a prior lien on the property contracted to David L. Dunn, over all other creditors, and they are clearly entitled to priority of payment; but as it-is eA'ident that Nichol, under the circumstances of the case, can not be considered a creditor of David L. Dunn, it Avould be contrary to OA'ery principle of equity to confer upou him the prior lien AA’hich Ashley’s executrix held, to the extent, of the purchase money paid by him, -AA'hich, if enforced, might sweep off the Avholc of Dunn’s real estate, and leave the claims of srfbsequont purchasers and creditors Avholly unsatisfied. The demurrer to the cross-bill of Nichol ivas, therefore, properly sustained.

Decree affirmed.


text:
    Dell v. Gardner, et al.

    As held in Fesmire, et al., ®. Erode, the right of action for use and occupation is in the surviving tenant in common alone.
    Where the entry upon the lands of another is peaceable and the occupation acquiesced in, without any agreement, written or verbal, as to rent, the owner may bring an action for use and occupation..
    The use and occupation of the house of the plaintiff is a consideration sufficient to uphold a promise to pay for such use.

      Appeal from Sebastian Circuit Court.

    Hon. E. J. Sbarle, Circuit Judge.
    William Walker, for appellant.
    DuVal & King, for appellees.
   Walker, C. J.

Gardner, Sliumard and Bumford were the owners of a house and lot in the city of Fort Smith, as tenants in common, the occupancy of which, in the fall of 1863, they abandoned. The defendant, Dell, without their permission, entered and occupied the house for some months; there is no evidence tending to show that Dell entered with actual force, but, on the contrary, the proof is that some soldiers of the United "States army had taken a printing press into the house before Dell entered into possession. Gardner, Shumard and the administratrix of the estate of Bumford, joined as plaintiffs in an action of assumpsit against Dell, for the use and occupation of the house, and recovered judgment against him, from which judgment Dell has appealed to this court.

The first question to be considered is, could the surviving owners of the house and the administratrix of Bumford’s estate join in an action for the use and occupation of the tenement of which they, together with Nnniford, who had departed this life, had been joint owners. Second, can an action for use and occupation, where the defendant entered the premises and occupied them without the consent of the owners, or by contract under them, be maintained.

The first question was settled at the present term of this court, in the case of Fesmire and Stone, administrators, v. Brock, in which it ivas held that the right of action for the use and occupation of lands, owned by tenants in common, could only be sustained in the name of the surviving tenants in common; and, under the ruling in that case, we must hold that it was error to join the administratrix of Bumford with the surviving tenants.

As regards the second question, we have held that the right of recovery for use and occupation is not a common law remedy, but a right of action conferred by statute. Fitzgerald v. Beebe, 7 Ark., 306. Our statute, sec. 11, ch. 100, Dig., gives a right of action, on the case, to the landlord, for the recovery for use and occupation of lands and tenements, held by any person under an agreement (not by deed); and the 13th section provides that, where lands and tenements are held and occupied without any special agreement for rent, the owner may recover a fair compensation for such use and occupation by an action on the case. In the ease under consideration, the tenement ivas entered and occupied. without any special contract for rent, or indeed any contract whatever, unless it be such as may be implied from the circumstances connected with the entry and occupancy, which is the precise question to be settled in this case. The evidence is wholly silent as to the manner in which the soldiers got possession, and, from all the circumstances, it is not improbable that they found the house vacant, and entered it as a tenement which had been temporarily vacated upon the advance of the Federal army upon that city. In Keller v. Henry, 24 Ark., 575, we held that an entry into vacant houses, unattended by force, might bo treated as a peaceable entry; and, in this case, we do not see why, when a peaceable entry is made upon the lands or tenements of the owner without an express agreement to do so, the owner may not acquiesce in such entry, and treat the occupant as his tenant.

Chief Justice Collier, in Davidson v. Ernest, 7 Ala. Rep., 718, reviewed, at considerable length, the former decisions of that court, in connection with numerous English and American decisions, and approves that of Hull v. Vaughan, 6 Price, 157. In that case it was agreed that there was no contract for rent, but simply a permission on the one side and an enjoyment on the other; when, considering which, Mr. Baron Graham said: “In this species of action, it is not necessary that •the relation of landlord and tenant should be distinctly made out between the parties, because the action, in form, is calculated to meet cases where the parties do not bear those characters; if, in point of fact, there was an ownership on the one hand and an occupation on the other.” • And Chief Justice Collier, in Davidson v. Ernest, said: “The justness of the decision in Hull v. Vaughan was so apparent that the court were prepared to adopt it.”

It may be remarked that the 13th section of our statute is, as held in Fitzgerald v. Beebe, more comprehensive than the English statute, under which Hull v. Vaughan was decided; for in that section it is expressly provided, that where any one enters, without any special agreement for rent., the owner of the tenement shall have his action for use and occupation. Section 12 had made provisions for a recovery upon a •parol demise; and when the 13th section gives the right of action, where there is no express agreement for such occupancy— that is, no agreement, either verbal or written — it must have been intended, by the framers of the act, to extend the remedy to cases where the circumstances under which the occupation is held raises an implied agreement or undertaking to pay. If such was not the intent, then we' know of no class of cases to which the 13th section will apply, as provision had been made, ■under the 11th and 12th sections, for all other contracts for use and occupation, whether verbal or written. This construction is certainly promotivo of the ends of justice, as it furnishes a remedy for a right founded in the purest equity. It is not necessary, says the Court in Hull v. Vaughan,ihat the relation of landlord and tenant should be distinctly made out between. the parties; if there is, in point of fact, an ownership on the one hand and an occupation on the other,-that will suffice; and this rule, so conducive to the ends of justice, we will adopt in this case, in which the entry appears to have been peaceable, and the occupation acquiesced in by the owners.

Under the circumstances of this case, there is also another ground upon which the plaintiff:' would be entitled to recover. It appears from the evidence that the defendant, after the termination of his occupancy, agreed to pay the attorney of the owners for such use and occupation ; and that, afterwards, upon some difference of opinion between himself and such attorney as to the value of the rents, the matter was, by mutual consent of parties, referred to third persons for settlement, who agreed upon the amount to be paid; that an account was made-out against defendant, by said attorney, in favor of the plaintiffs, for the amount agreed upon by the referees, and presented to said defendant for payment; that the defendant said he would pay it as soon as he went to the house and got the money, but subsequently refused to pay.

The use and occupation of the house of the plaintiffs was a consideration sufficient to uphold the promise to pay. So that, upon either of these grounds, the surviving tenants in common had a right of action against the defendants, upon which, but for the misjoinder of parties, they would have been entitled to recover; but, because of such misjoinder, the judgment- must bo reversed.