text:
    Halbut et al. vs. Forrest City.
    1. Municipal Corporations : Contracts of; how made and proved.

    Contracts of municipal corporations may be proved by their ordinances and records, or made by authorized agents without seal, and proved by parol; and the authority of agents may, in many cases, be implied from circumstances.
    No officer, or member of a corporation, can, without its authority, make contracts for it, or bind it by his declarations or admissions.
    2. Landlord and Tenant : Contract to return in good order, etc.

    Whenever there is an agreement of the tenant to re-deliver the premises in any prescribed condition of good order, it is a question of the real intention and meaning of the parties, whether he meant to become bound to rebuild, in case of their casual destruction by fire during the term. In arriving at this moaning, the circumstances and probable intention of the parties will be considered.
    3. Statute op Frauds : Contracts to repair or rebuild.

    Agreements to repair or rebuild are agreements for work, labor and material, and are not required to be in writing.
    4. Agent : Authority to rent, no authority to repair, etc.

    Authority to an agent to rent a house does not authorize him to covenant to repair or rebuild.
    5. Municipal Corporation : Contracts not for corporate purposes, void.

    A contract by a town for rent of a house solely for the use of the county as a court-house, is void; but when a town is authorized to rent a building for its own use, it will not vitiate the contract to allow it to be used for other purposes of a public nature.

      APPEAL from St. Francis Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Howes, for appellant.

      Brown, contra.

   Eakin, J.

Appellants wmre the owners of a lot and building in Eorrest City, which they had rented to the city for the year 1874, at the rate of $50 per month, by verbal contract. On the sixteenth of December of that year the building was destroyed by fire.

In September, 1876, they filed in the circuit court of St. Erancis county their complaint against the town, in three' paragraphs.

The first charges that in the contract for 1874 the town ■agreed, at the expiration of the lease, to surrender the building in the same condition, in all respects, as it was received, and to keep it meanwhile in repair; that on the fourteenth day of December the lease was renewed for the year 1875, with, substantially, the same agreement; which renewal was ratified by the town council. The'building is .alleged to have been worth $2,000, and damages are sought for failure to rebuild.

The second paragraph charges the town with gross negligence in the use of said building, and want of due care, in this, that it cut a hole through the ceiling, and so negligently and carelessly passed a stove-pipe through the same as to endanger the building; and- although warned of the danger, allowed the pipe to be used in that condition, whereby the building was burned. For this they claim damages.

The third paragraph claims rents accrued since the destruction of the building, not only for the remainder of the month of December, 1874, and for the year 1875, but afterwards until the beginning of the suit, upon the ground that the town has continued to be tenant by sufferance.

The town of Forrest City admits that it rented the lot. and buildings from plaintiffs for the year 1874, but denies that it agreed to keep the building in repair, or to deliver the same in all respects in the same condition as when received, or that the contract of renting was renewed,, as alleged, for the year 1875, or that said contract was ratified by the council. It says that plaintiffs themselves-determined the lease for 1874, by notice in writing, demanding possession on the first day of January, 1875, which notice is exhibited by copy. It denies that the building was in its possession or under its control when destroyed by fire, on the sixteenth of December.

In response to the second paragraph, defendant denies-carelessness and negligence in the matter of the stove-pipe,, from which the fire originated. But says that William IT.. Wills, one of the plaintiffs and part owner of the-building, was a member of the town council; and that,, upon the dangerous condition of the stove-pipe being-suggested to the council, he was appointed a committee of one to examine the place, and have it made safe at the-expense of the town ; and that if there was any negligence-in the matter, it was his own.

With regard to the third paragraph, defendant denies indebtedness for the rents of 1875, and demurs to the-claim for rent for 1876.

The plaintiff had charged that the premises were rented to the corporation “for the purposes of a town hall' and council room, and for other purposes.” The original answer admitted this; but afterwards defendant filed a supplemental answer, not expressly denying the fact, but alleging that the building was rented for the use of St-Francis county, for court rooms, jury rooms, clerk’s office, etc, and that the council in this had transcended its authority, and could not bind the town.

Upon trial, the jury found for the plaintiff, and rendered a verdict for the balance of the rent for 1874 only, and costs. Plaintiff moved for a new trial. The motion was overruled, judgment rendered in pursuance of the verdict, and an appeal.

The evidence and proceedings upon the trial have been brought up by bill of exceptions.

Such grounds of the motion for a new trial as require notice may be best considered separately.

The court refused to allow plaintiffs, in support of the contract of renting for 1875, to introduce a conversation on the subject between one of the plaintiffs and the mayor. There was no error in this. It is true that the rigor of the old rule, which required the contracts of corporations to be under seal, has relaxed ; and with regard to municipal corporations especially, it is now conceded that their contracts may he proved by their ordinances and records, or made by properly authorized agents without seal and proved by parol; and that the authority of agents to make them may in many cases be implied from circumstances. For instance, in this case, if the contract to rent for the year 1874, had not been admitted, it would be sufficiently proved by the acceptance and use of the premises for that year. It remains true, however, that a corporation can not bind itself except by seal, or by matter apparent upon the record of its proceedings, or by the act of some agent thereunto authorized. No officer nor member of a corporation, however much he may be interested in its proceedings, can, without such authority, make contracts for it, or hind it by his declarations or admissions. The conversation with the mayor, unaccompanied with proof of his authority to contract, would have been mere hearsay. There does not appear to have been any offer to make such connection.

It appears in evidence that, on the second of November, 1874, plaintiffs had given the defendant written notice that the contract of renting would terminate oil the first of January, 1875, and demanding possession at that.time. Upon the trial, they offered to prove by parol that this notice had been withdrawn before the building was burned. This the court refused, upon what grounds is not shown. It was admissible, in connection with proof of a subsequent contract for the year 1875. It certainly did not estop the parties from making a subsequent parol contract, and the withdrawal of the notice would be implied by such contract, and enter into it. Without proof, however, of such subsequent renting for 1875, the exclusion of the evidence would not injure the plaintiffs, as such withdrawal would not of itself create a tenancy from year to year, under circumstances which would not have created such a tenancy in the absence of any notice whatever.

It is alleged, as error, that the court excluded from the consideration of the jury, the proceedings of the common council of the seventh and fourteenth of December, 1874. They would have shown that on the seventh the council appointed a committee, of which the mayor was a member, “ to make arrangements for securing rooms for courthouse purposes, and report” at the next meeting. The committee, at the next meeting on the fourteenth, reported that “after examination we have concluded that the Wills & Halbut building be retained by the city for said purpose, and would recommend the council to rent the same at the terms proposed — fifty dollars in currency per month.” This report was adopted, and the mayor appointed three aldermen, not including himself,“to contract for said building.” This is the last action on the part of the council which the proceedings would have shown. Evidently they contemplate further action on the part of the committee before the contract should be considered as clesed. They were admissible in connection with proof of further action on the part of the last committee, to show its authority. Without such supplemental proof, their exclusion did not injure the plaintiffs.

We come next to the exceptions concerning instructions. A portion of these relate to the liability of the corporation for rents after the year 1874. They are based upon the contingency that the jury should find a contract for continuation of the lease. It is useless to discuss these, as we may say, once for all, that there was no proof sufficient to sustain a finding of the jury, for a continuation of the contract of renting, after the year 1874, nor would have been if all the excluded evidence had been admitted. Henry Halbut, one of the plaintiffs, who attempted to introduce the conversation with the mayor, does not swear, directly, that there was a contract for 1875, independently of the excluded evidence. If there had been he would have been best informed on the subject, and could have set it forth in detail, with the parties who entered into it on the part of the council, and their authority.

William H. Wills, the other plaintiff, deposes in a very confused manner, concerning dates, but evidently means to say that in the fall of 1874, the contract of renting was renewed, and that the last contract was a written one. No written instrument was introduced, nor is it shown through what agent the .contract was made, nor how the authority of the agent was revived, as there was never any action on the renting for 1875, by possession or use, to aid in the implication of a contract. A verdict for rents of 1875, would not have been sustained on the evidence — or, at least, if found, should have been set aside, on motion, by the court below, where the doctrine of scintillas does not apply to the same extent as on appeal.

With regard to the liability of the city for damages for carelessness, or on its contract to redeliver the premises in the same condition as received, these questions arise under the tenancy for 1874, during which the buildings were burned. This tenancy is admitted, but the terms are denied, and the onus of proving the contract is on the plaintiff. It does not arise from the tenancy.

On this point, the proof is about as follows: The plaintiff Wills, says, that in the spring or winter of 1873 (meaning 1874), he rented the premises to the town of Forrest City, through Mr. A. L. Grady, then a member of the town council, for $50 per month. This contract was verbal. lie saye, “ defendants were to make such repair as the building needed to fit it for their purpose,” and also “to leave said building, upon the expiration of the said lease, in good condition and repair.”

This was all the positive evidence upon this point. Upon the other hand, Mr. Grady testifies that he was one of the commit! ee of the common council to contract for the building for 1874 — that there was a verbal agreement for the renting, and that there was nothing said in said agreement as to the returning the building in the same condition as when rented, after the expiration of the lease; orto repair the building at all; but that the changes in the building, necessary to adapt it to the purposes required, were to be made by the city.

The court refused to charge the jury, on motion of the plaintiff, that if they found, by the terms of the lease, that the corporation was to return the possession of the buildings to plaintiffs, at the expiration of its lease, in the same condition as when received by it, and the buildings were destroyed by fire, they should find for the plaintiffs the value of the buildings as proven.

Instead thereof, the court, of its own motion, instructed that the defendant, as to this point, was not liable, unless it had expressly covenanted to repair or rebuild, and á mere verbal covenant, or agreement, to return the premises in the same condition as taken, is not sufficient.

This is not correct as an abstract proposition of law. The-general rule, as laid down in Parsons on Contracts, col. 1, p. 504 [6 ed.), in book 3, chapter 3, section 3, is, that “if there be an express and unconditional agreement to repair, or redeliver in good order, or to keep in good repair, the tenant is bound to do this, eveq though the premises are destroyed by fire, so that he is, in fact, compelled to rebuild them; but not if destroyed by the act of God, or the public enemies.” The rule, however, is not imperative and unbending, whenever, by the terms, there is an agreement to redeliver the premises in any prescribed condition of good order. It is a question of the real intention and meaning of the parties, whether or not the tenant meant to assume the position of an insurer against fire.

In arriving at this meaning, the circumstances and probable intention of the parties will be considered, and the tendency of the more recent decisions is averse to extending the responsibility of the tenant when the covenant is not special and express, and so clear as to leave little doubt that he really meant to take the risk of an insurer. (See the question discussed in Levy v. Dyers, 51 Miss., 501, where various cases are commented upon.) In that case the defendant had rented a saw-mill, and covenanted to return the same in good running order, except the usual wear and tear. The court concluded that a covenant to redeliver or restore to the lessor in the same plight and condition, usual wear and tear excepted (or words of like import), does not bind the covenantor to rebuild, in case of a casual destruction by fire. Nevertheless, it can not be taken as a proposition of law that a mere verbal covenant or agreement to return the premises in the same condition as taken, is not sufficient to fix the liability. This assumes that such a contract must, in all cases, be in writing. A parol contract for a lease for a year may be made, and ■where the lessee occupies and pays rent under it, it will be governed by the terms of the original letting. 1 Wash. on R. Prop., p. 531. See, also, the case of Richardson v. Grifford, 1 Ad. & Ellis, p. 52, a case very much like this, where a lease was made without proper writings, and was taken as inoperative for more than three years, in accordance with the Statute of Frauds. The lessee was, nevertheless, held liable on his covenants to repair. The rule is, with regard to these leases which are only good for a limited time for want of writing, under the Statute of Frauds, that daring the time all the terms of the lease prevail, which do not go to extend the time, or which, in themselves, are not such as require to be in writing. 1 Whar. on Eo., sec. 855. Agreements to repair or rebuild, are agreements for work, labor and materials, and are not required to be in writing.

'Whilst not true in the abstract, the instruction was harmless in its application to the case made by the evidence. The mere verbal contract of Grady certainly did not bind the corporation, in the absence of evidence of his authority. There was no other evidence of that than may be implied from the acceptance and use of the premises by the town. This, of itself, would only be a ratification of the contract to take, and pay rent; but unless special covenants had been authorized by the council, or reported to it and ratified, or acted upon, the town would not, as to them, be bound by occupation. There was no evidence before the jury which would have justified them in holding the mere verbal agreement of Grady binding on the town, even if, in the direct conflict of evidence, they had found that Grady had made such an agreement.

The law, with regard to negligence, seems to have been correctly given. It was a matter properly left to the jury, and, upon this point, they found for defendant. The evidence was sufficient to support this verdict. It was shown, on the one hand, that the stove-pipe was put up and used whilst the tenancy for 1874 existed, and the arrangement and control of the building was in the hands of defendant; that the hole through the ceiling and upper floor was too small, and brought the pipe in too near contact with the wood ; that it was obviously and well known to be dangerous ; that the council had been warned of the fact, but permitted it to be used by an occupant of the building, and that the loss of the building ensued from that cause. On the other hand, it was shown that the hole had been made under the directions of one of the plaintiffs, who objected to its enlargement, on account of its effect upon the building ; that he was himself a member of the town council, aud when the dangerous condition of the pipe was reported to the council, was himself appointed to remedy the defect at the expense of the council; that he accepted the appointment, or at least did not decline, and had la-ken no steps to secure the building, although there had been ample time to do sol It is not shown that he even objected to the use of a fire in it until altered, or that he interfered in any way.

The court, on motion of plaintiffs, instructed the jury, that if they believed that defendant was using and occupying the building, and that through, its carelessness and neglect it was destroyed by fire, it would be liable for the value; and, of its own motion, added, that if the plaintiffs, or either of them, contributed to the negligence, the defendant was not bound. This, in general, is the law. The court was not asked to be more definite in explaining the effect and operation of the contributory negligence.

Upon a view of the whole case, we are of the opinion that, under any proper instructions, the jury ought not, upon the evidence, to have rendered a different verdict upon so much of the complaint as rests upon the contracts for rent, and to repair and redeliver in the same condition as when taken. As to so much of it as rest upon injury from negligence, the evidence was properly presented, upon fair instructions, and the verdict will not be disturbed.

No question is made, in this record, of the propriety of joining the two causes of action, and it is too late now to give this question any importance.

It may be proper to add that it appears, from the evidence, that the building was rented for the use of the county as a court-house. This was not a legitimate town purpose, and if it had appeared that this was the sole object of the renting, the contract would be invalid. See case of Jacksonport v. Watson, MS. Op., this term. This does not appear, however, either from the pleadings or evidence, and the proper presumption is, that it was used for town purposes also. Where the town may be authorized to rent a building for its own use, it will not vitiate the contract to allow it to be- used for other purposes of a public nature. The defense, upon this ground, could not be maintained, but, for the reasons above stated, let the judgment be affirmed.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    Anderson vs. The State.
    1. Criminal Practice : Oath of jury. Entry of .

    It is not necessary to enter upon the record the form of oath administered to the jury. It is sufficient for the entry to show that they were duly sworn. The supreme court will presume, in the absence of a contrary showing, that they were sworn according to law. But if the form of oath administered is entered of record, and appears not to be in substance and legal effect the oath .prescribed by law, it will be error.
    2. "Witness: Not impeached by proving indictment against.

    A witness can not be impeached, nor his testimony impaired, by proving that he had been in dieted for larceny.
    3. Practice in Circuit Court : Instructions : Judge must charge in writing.

    It is the duty of the circuit judge, at the request of a party, to reduce his charge to writing.
    APPEAL from Drew Circuit Court.
    Hon. T. E. Sorrells, Circuit Judge.

      JR. L. Mliott, for appellant.

      Mr. Attorney General Henderson, for appellee.
   English, C. J.

James Anderson was indicted, tried, found' guilty, and sentenced for rape, in the circuit court of Drew county; a new trial was refused him; he took a bill of exceptions, and prayed an appeal, which was allowed by one of the judges of this court.

I. There was a demurrer to the indictment, which the court overruled.

After the usual caption, the indictment is as follows:

-l The grand jury of Drew county, etc., etc., accuse James Anderson of the crime of rape, committed as follows, to-wit.- The said James Anderson, in the county aforesaid, on or about the twenty-third day of September, A. D. 1878, did. feloniously make an assault in and upon one Eliza Burks, a female; and that he, the said James Anderson, did then and there feloniously ravish and carnally know her, the said Eliza Burks, forcibly, and against her will, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Arkansas.”

The beginning of the indictment is in Code form. Gantt’s Dig., sec. 1797.

The offense is charged substantially in the language of the common law precedents for indictments for rape. 2 Arch. Cr. Pract. and Plead. (6th B.), p. 304; 2 Bishop on Cr. Proc., sec. 907.

The statute defines rape to be the carnal knowledge of a female, forcibly and against her will. Gantt’s Digest, sec. 1300.

The objection taken to the indictment, in the demurrer,, that it does not aver that the female alleged to have been injured, was a human being, is simply frivolous. No such an averment is to be found in any of the precedents for indictments for the crime of rape. The court properly overruled the demurrer.

II. The following is the record entry, as copied • in the-transcript, of the swearing of the jury :

“The parties announcing themselves ready for trial, it is ordered that a jury come to try the issue in this cause;. whereupon came T. C. Erwin, etc. (naming eleven others), who are duly selected, impannelled and sworn, to well and truly try the issue herein, and, after hearing the evidence adduced, argument of counsel, and charge of the court, retire to consider of their verdict,” etc.

It is submitted, for appellant, that the entry sets out the form of oath administered to the jury, and that it is not in the form prescribed by law.

The statute provides that the jury shall be sworn, substantially, as follows:

You, and each of you, do solemnly swear that you will well and truly try the case of the State of Arkansas against A. B., and a true verdict render, unless discharged by the court, or withdrawn by the parties.” Gantt’s Digest, 1921.

The code makers changed the form of oath formerly administered in this state, which was the substance of the oath as administered in England, and made no improvement upon it. See Patterson v. State, 7 Ark., 59.

It is not necessary for the clerk to enter the form of oatli administered to the jury. It is sufficient for the entry to show that they were duly sworn, and this court will presume, in the absence of a contrary showing, that the court below caused them to be sworn as prescribed by law. But if the form of oath administered is entered of record, and appears not to be, in substance and legal effect, the oath prescribed by law, it will be error. Such is the effect of the previous decisions of this court. Greenwood v. State, 17 Ark., 467, and cases cited; Harper v. State, 25 Ark., 83; Palmore v. State, 29 Ark., 253.

The judgment of the court i$, that in making the entry above copied, the clerk did not attempt or intend to set out the whole of the oath administered to the jury. The entry is similar to that in McDaniel v. Hanauer et al., 25 Ark., 48.

III. The first, second and third grounds of the motion for a new trial relate to the sufficiency of the evidence to support the verdict. The substance of the testimony will be stated below, in considering the fourth cause assigned for a new trial, which is that the court admitted improper evidence.

The substance of the testimony of Eliza Burics, the female alleged to have been outraged, is, that she occupied a house with one door and one window, in Monticello, Drew county. On a Monday, in the latter part of September, 1878, she washed very hard, and was tired at night. She cooked supper, and a while after dark, her husband being absent driving for Col. Slemmons on his canvass, she locked -the door, and she and her two little children went to bed. The window was nailed down. Some time during the night, she supposed about 10 or 11 o’clock, but had no time-piece, somebody woke her up by rubbing his hands over her face and head. She said, who is that? He said nothing. She said again, who is that? Then he said, hush; if you “hollow” I will kill you. Then he caught her throat with his hand, and choked her so she could not “ hollow.” Then he got on hei’, with his knees on her stomach, and said, I- have got you where I want you, etc. Witness then proceeded to state the means by which he forced and outraged her. When he got through, he jumped off of her bed into a dark corner of the room, and she was afraid to move for fear he would kill her. He then jumped out through the window. She saw him the best she could. It was a star-light night. During'the time he was outraging her, she felt his face and short whiskers. Pie was a full-faced man; he had on no coat; his shirt was neither white nor black ; it seemed to be a yellowish-colored, woolen shirt. The window was raised open with a stick of stove-wood, etc. She had never seen the prisoner but once before, when he was pointed out to her. She thought it was he that committed the rape upon her, but was not certain.

Hers was tbe only direct testimony connecting tbe prisoner with the rape. Other witnesses testified to some circumstances to which the jury may have attached more or less weight in making up their verdict.

Martha Packard, a witness for the state, testified in substance and effect, that the prisoner confessed to her that he had committed the rape. She also indicated that she was inimical to the prisoner.

The prisoner then introduced Jesse J. Hankins, as a witness in his behalf, who testified that he was acquainted with the reputation of Martha Packard for truth and veracity in the community where she lived; that it was bad, and that from that reputation he would not believe her on oath.

The state then proved by Jack Collins, Charles High-tower, Green Wilson and Peter Ragland, that they were acquainted with' the reputation of Martha Packard for truth and veracity in the community where she lived ; that it was good, and 'that they, from that reputation, would believe her on oath.

John II. Hammock, sheriff' of Drew county, was then sworn a3 a witness for the state, and permitted to testify against the objection of the prisoner, that Martha Packard had not, at any time within his knowledge, been indicted for any crime or misdemeanor in that county. That Jesse J. Hankins, the witness for the defense, had been indicted by the grand jury of Drew county, at some former term of. the court, for grand larceny, but that he had been unable to find the principal witness.' That Hankins had never been tried, or convicted of the offense.

> This testimony was inadmissible, and should have been excluded from the jury by the court.

A witness may be disqualified, and excluded from testifying, by proper evidence that he has been convicted of any infamous crime. Gantt’s Dig., sec. 2482. But it was not competent for the state to impeach Hankins, or discredit him, or impair the weight of his testimony, by proving that he had been indicted for larceny.

“ A witness may be impeached, etc., by evidence that his general reputation for truth or immorality renders him unworthy of belief, but not by evidence of particular and wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of felony.” Gantts Dig., sec. 2524. The character of an impeaching witness may be so impeached. 1 Wharton on Evidence, sec. 568, and, cases cited.

IY. The fifth ground for a new trial, ■ as stated in the motion, is in substance that Nancy Raymond was permitted to testify that defendant had entered her room, in which she slept at night, and attempted to carnally know her, and that this testimony was not excluded from the jury.

The bill of exceptions, which purports to set out all of the evidence introduced at the trial, fails to show that Nancy Raymond was introduced as a witness, or gave any testimony whatever.

Y. The only remaining grounds for a new trial that need be noticed is, that the court charged the jury orally, after the written instructions offered by plaintiff and defendant had been agreed upon, against the defendant’s objection.

It appears from the bill of exceptions that the court gave all the instructions moved on behalf of the state, and also all that were asked for defendant, and that “ the court, after the conclusion of the argument in the case, against the objection of defendant, charged the jury orally as to their duties generally upon the case.”

What the court said to the jury in its general charge does not appear, nor is it shown that the court was requested by the prisoner to reduce the charge to writing.

If the court, in the exercise of its constitutional duty to -declare the law to the jury, committed any error in the judgment of the counsel for the prisoner, it would have been the duty of the judge, at his request, to reduce the •charge to writing, that it might be reviewed on appeal. But no such request was made, and the charge is not before us. Sec. 23, art. 7, Const.

We find in the record but one error, that is the admission of the testimony of Hankins. The life of the prisoner, perhaps, hung on the testimony of Martha Packard, who •swore that he confessed the crime to her. He attempted to impeach her by the testimony of Hankins, and the state was permitted to discredit him by proving that he had been accused for larceny. We can not undertake to -say that the prisoner was not prejudiced by the admission ■of this evidence. It may have influenced the minds of the jurors.

Eor this error, we deem it safer, in a case involving the life of the prisoner, to reverse the judgment and remand the cause for a new trial.


author: Eakin, J.

text:
    Haney vs. The State.
    1. Hurder: Indictment must show manner of hilling.

    An indictment for murder that fails to show the manner of the killing is fatally defective.
    -5. Statute: Mistahein. When corrected by the court.

    Where it is obvious that the legislature did not intend to use a particular word written in a statute, and it is further apparent what word they did, intend, the courts will correct the mistake by substituting the word, intended for the one used.
    APPEAL from Clark Circuit Court.
    Hon. H. B. Stuart, Circuit Judge.
    Henderson, Attorney General, for the State.
   Eakin, J.

Appellant was indicted at the July term,. 1879, of the Clark circuit court, for murder. The indictment charged that on, etc., at, etc., he “did willfully,unlawfully and feloniously, and with malice aforethought, and with premeditation, kill and murder James Bell, with a. gun loaded with gunpowder and leaden balls, and held in the hand of him, the said John Haney.” He was, on trial, found guilty of manslaughter, and his punishment fixed by the jury at seven years in the penitentiary. He moved for a new trial, for reasons unnecessary now to notice, and afterwards in arrest. Both motions were overruled. Bill of exceptions taken, and appeal.

The grounds of the motion in arrest were :

First — That the indictment does not charge the manner of killing with sufficient certainly.

Second — That the facts stated do not constitute a public offense ; and—

Third — That the supposed act of the general assembly of the state of Arkansas, approved March 11, 1879, in pursuance of which the term of the Clark circuit court was then held, was unconstitutional and void.

The first and second causes were sufficient. The judgment should have been arrested, and the prisoner held for further action on the part of the grand jury. The indictment was fatally defective, in failing to indicate the-manner of the killing. This ease is the same in principle with Thompson v. State, 26 Ark., 323. See also Edwards v. State, 27 Ark., 493.

The court is urged, and it seems proper, to settle also the third ground of the motion in arrest, as it affects all the courts of the eighth judicial circuit, and renders the administration of justice therein uncertain. This point the court may notice from the record, without considering whether it was properly raised by motion in arrest of judgment.

By act of December 14, 1875, the courts of this district were to be held as follows : In Montgomery county, on the last Mondays in January and July. These are taken as the initial points of reckoning for all the other counties.

The courts of Scott were prescribed for the first succeeding Mondays; of Polk, for the second Mondays ; of Sevier, for the third Mondays; of Little River, for the fifth Mondays; of Howard, for the eighth Mondays ; of Pike, for the ninth Mondays; and of Clark, for the tenth Mondays, referring all to one point of calculation for the beginning of the terms; and allowing to some counties one, to some two and to some three or more weeks for the term.

When the twelfth judicial district was created, on the eighth of March, 1877, Scott was transferred to that, and Montgomery county took the place of Scott in the times for holding her courts. The other counties remained as before, all reckoning from the last Mondays of January and July.

This system of taking certain Mondays of the year, and fixing the terms of courts for a succession of counties, by reckoning so many weeks from those Mondays, has always been a favorite one in our state; and was largely adopted in the establishment of the circuits in the constitution of 1874.

Sec. 1 of tbe act of March 11, 1879, provides: “ That, hereafter, the circuit courts in the eighth judicial circuit shall be begun and held as follows, to-wit:

“ Commencing in Clark, on the fourth Monday in January and July.

“ Montgomery, third Monday after the fourth Monday in January and July.

“Polk county, the fourth Monday after the fourth Monday in January and July.

“ Sevier county, the fifth Monday after the fifth Monday in January and July.

“ Little River county, the seventh Monday after the fourth Monday in January and July.

“Howard county, the ninth Monday after the fourth Monday in January and July.

“Pike county, the eleventh Monday after the fourth Monday in January and July.”

And it was provided that the act should take effect from and after the first day of May, 1879.

This act, as literally read, presents the anomaly that, whilst the time for all the other courts of the district are reckoned from the common points of the fourth Mondays of January and July, the courts for Sevier alone are fixed by reckoning from the fifth Mondays of those months. This is not only anomalous, but absurd, inasmuch as those months can only at intervals of years have five Mondays ; and the legislature would appear to be singling out this county, to deprive her of the due and regular means for the administration of justice accorded to all the counties of the state. The general assembly had no power to do this, and can not be supposed to have intended it, if any plain, manifest intention consistent with the constitution can be discovered; and if such intention can be plainly seen, the literal reading of the act must yield to it. This intention of the legislative power is the paramount object of judicial search, in aid of which all rules of construction are devised.

If the act is held invalid with regard to Sevier county, and the courts of that county be held under the previous act, it will clash with the times prescribed in the new act for other counties. The act can not be apportioned, and must be sustained or discarded in toto.

It is probable that the courts of the eighth circuit have been held in the counties other than Sevier, under the new act, inasmuch as the same judge is supposed to have presided that refused to arrest the judgment in this case.

To hold the act invalid, will produce great confusion as to the rights of suitors, and others who have acted under orders of the court. Although this consideration would not justify this court in sustaining the act, unless some constitutional intention can be derived from its face, m connection with other acts on the same subject, it, nevertheless, imposes on the court the duty of searching carefully for such valid intention, ut res magis valeat, qxum, pereat.

Renouncing the idea that the general assembly intended to do an absurd and unconstitutional thing, which would be the result of a literal construction, let us inquire if there can be plainly discovered any other fixed and certain intention.

The obvious general intention of the act is to fix upon the fourth Mondays of January and July, for the beginning of the spring and fall circuits in Clark county; and to prescribe the succession of the several courts in the several counties, with such intervals as to allow, at each, proper time for the transaction of business. If we read the clause regarding Sevier county' as reckoning from the fourth instead of Van fifth Mondays in January and July, it will harmoniously effect this general intention ; and no other reading will. Eor instance, it will allow three weeks for Clark: then one for Montgomery; one for Polk; two for Sevier; two for Little River; two for Howard; and then the circuit will end with Pike. This system will be hopelessly and irreconcilably disturbed by any other reading of the act. The use of the word fourth in the place indicated, is the only key to harmony.

One reading the act will have suggested to his mind at once that the use of the word fifth is a clerical error, and that it resulted by a natural law of the mind (tending as it does to run in formulas), from the tautology of the preceding clause, repeated in the next.- A copyist, or a draughtsman, after using “fourth after the fourth,” would be apt, carelessly, to use the terms, “fifth after the fifth.”

Whilst this clerical error is sufficiently manifest from the general tenor of the act, which evidently meant to fix the times of holding the courts of the district in regular and orderly succession from the fourth Mondays in January and July, the court would, if necessary, find confirmation of this view in the original act, as introduced into the general assembly. The clause in question was written by the draughtsman as printed, but he evidently discovered the mistake, and blurred over the letters “if” in the word fifth, and wrote over them the letters “ our,” intending to change the word “ fifth ” into “ fourth.” In this shape, the bill passed without amendment. In enrolling, the clerk, by inadvertence, failed to notice the correction; and the enrolled bill, as signed, had the word, in this place, “fifth,” as originally written. It was so signed by the presiding officers of the two houses, and the governor.

The courts have it in charge to declare the law, and may, of their own motion, resort to any aids in determining what the law is; especially in eases where no rights of property have been fixed by action upon the act as enrolled. It is not necessary, in this case, as remarked, to resort to the original bill. The mistake is obvious on thé face of the act.

It is very true, as a general rule of construction, that where the language of an act is plain and unambiguous, the courts must give it effect, as it stands, or declare the law unconstitutional. But this rule is subject to much qualification, and does not apply to cases of plain clerical errors, where it is obvious that the legislature clid not intend to use the word as written, and it is further apparent what word they did intend. A mistake of this nature may be corrected by the courts, upon as sound principle as a mistake in a deed. It is not judicial legislation, nor judicial interference with the legislative will. It is in support of the legislative will, and wholly distinct from the reprehensible practice of warping legislation, to suit the views of the courts as to correct policy. The only conditions to be observed in the exercise of this power of literal correction are, that the courts should be thoroughly and honestly satisfied of the legislative intent, irrespective of the policy of the act.

It would be frightful if, in a case like the present, the business of all the courts of a circuit should be delayed by such a mistake, and the rights of litigants thrown into confusion until the next session of the legislature, for the want of this wholesome power, which is constantly applied to the contracts of individuals. Such is not the meaning nor spirit of our constitutional provision that the different departments should be independent of each other. They should respect the constitutional will and intention of each other, and that being clearly ascertained, should act in consonance therewith. These views are not new. In some form, the spirit of. them has been often declared by the courts. See, • for instance, the cases of People v. King, 28 Cal., 265; Moody v. Stephenson, 1 Minn., 401; Nazro v. Mer. Ins. Co., 14 Wis., 295.

The court did not err in refusing to arrest the judgment on the ground that the court was not held at the proper time. The circuit courts of the eighth district should proceed, as if the clause of the act of the eleventh of March, 1879, regarding. Sevier, read as follows: “Sevier county, the fifth Monday after the fourth Monday in January and July.”

For the insufficiency of the indictment, the judgment should have been arrested.

Let it be reversed., and the case remanded, with directions to hold the prisoner for such further action as the grand jury may take.


author: English, 0. J.

text:
    Crofton vs. The State.
    1. Lands or the State : Coupons not receivable for.

    Neither the “act to provide for the funding of the public debt of the slate,” passed April 6, 1869, nor the act of the fifth of March, 1875, fixing the price of state lands, etc., by any of their provisions, authorizes the commissioner of state lands to receive coupons of the funded bonds of the state in payment of lands sold by him.
    APPEAL from Pulaski Circuit Court.
    Hon. J. -W. Martin, Circuit Judge.

      Percy JSakin, for appellant.

      Attorney General Henderson, contra.

   English, 0. J.

On tbe eighth of October, 1877, IT. IT. Crofton applied to the circuit court of Pulaski county for a mandamus against J. N. Smithee, commissioner of state lands, etc. On the eighteenth of the same month the peti'tioner filed an amended petition, to which, on the same day, the commissioner filed an answer..

On the twenty-third of October, the petitioner entered a general demurrer to the answer; upon the submission of which, the court held that the facts stated in the petition were not sufficient in law to entitle the petitioner to the writ, and rendered judgment accordingly — from which Crofton appealed to this court.

¥e are first to decide whether the facts alleged in the petition were sufficient to entitle the appellant to the mandamus as prayed.

The petition follows:

Your petitioner would respectfully state that, in pursuance of an advertisement by the commissioner of state lands, Hon. J. N. Smithee, a copy of which advertisement is hereto attached, and made a part hereof, said Smithee, as such commissioner, did proceed to sell said lands at public outcry, to the highest bidder for cash. That petitioner bid the sum of $280 — -being the appraised value of the northeast quarter of southwest quartex-, and southeast quarter of southwest quarter of section thirty-two, township texx south, x’auge twenty-seven west — *for said lands; and, being the highest and best bid then offered, the said lands were then and there struck off and sold to petitioner for said suixx of $280.

“ That on the sixteenth of October, 1877, petitioxxer tendex’ed to said Smithee, as commissioner’, the sum of $280, as follows: Nine over-due coupons of the state six per cent, funded bonds, each for thirty dollar’s, amounting, in the aggregate, to $270, and $10 in state scrip; and that said Smithee, as commissioner, x’efused to x’eceive said coupons in payment for said lands, so bid in by your petitioner. That said coupons are in possession of and deposited with, the clerk of the court, subject to its inspection.”

Prayer for mandamus to compel the commissioner to receive the coupons in payment for the lands.

The petition does not allege what class of the lands of the state were oifered for sale by the commissioner, and bid for by appellant. Nor is the advertisement referred to in the petition, in the transcript before us. Whether the lands were swamp lands, internal improvement lands, forfeited lands, or lands mortgaged to the Real Estate bank, we do not know from the allegations of the petition.

The coupons alleged to have been tendered in part payment of appellant’s bid, and deposited with the clerk of the court below, are not copied into the transcript, and are not before us. The petition alleges that they were nine over-due coupons of the state six per cent, funded bonds, each for §30, and makes no other or more particular description of them. It may be supposed, from the language of the petition, that the coupons tendered were taken from some of the bonds issued under the act of sixth of April, 1869, entitled “An act to provide for the funding of the public debt of the state.” Acts of 1869, p. 115. That act required the governor to fund the debt of the state, consisting of bonds issued by the state to the Real Estate bank, and State banks, by issuing, in lieu thereof, new bonds of the state, payable at thirty years, bearing interest at six per cent, per annum, with coupons attached for installments of interest, payable in the city of New Work. It may be stated, as a matter of public history, that, under the provisions cf the act, some bonds were issued in lieu of bonds that had been issued to the State bank ; others, in lieu of bonds issued to the Real Estate bank, and sold for banking capital; and others in lieu of five hundred bonds for §1,000 each, pledged to the North American Trust and Banking company, commonly known as the ITolford bonds — the history of which may be found in Whitney v. Peay, Receiver, et al., 24 Ark., 22.

From which class of the new bonds, so issued, the coupons tendered by appellant were taken, does not appear from the allegations of the petition.

There is no provision of the act of April 6, 1869, making the coupons of bonds, issued' under the act, receivable in payment for lands sold by the commissioner of state lands.

By act approved Februai’y 26,1879, it is provided: “That the six per cent, funded bonds of the state, shall be received by the treasurer in payment of debts due the Real Estate bank, and in payment of the purchase money of lands whereof the state has title, by reason of the foreclosure of mortgages executed to said bank, whether the said bonds be due or not; provided, that bonds issued in lieu of the bonds known as the Holford bonds shall not be received.” Acts of 1879, p. 10.

Assuming that appellant’s bid was for bank lands, and that the coupons tendered were not from the excluded class of bonds, yet appellant can have no benefit of this act in this suit, because the tender was made, and the judgment of the court below, refusing the mandamus, rendered before the passage of the act.

The act of fifth of March, 1875, (Acfs of 1875, p. 218), fixing the price of state lands, etc., relied on by counsel for appellant, does not authorize the commissioner, by any of its expressions, to receive coupons of the funded bonds for lands sold by him.

In Thruston et al. v. Peay, Receiver, 21 Ark., 85, it was decided that it was competent for the legislature, under its power to regulate the law of set-off, etc., to make (as it had done by acts referred to in the opinion of the court) the interest due upon the bonds issued by the state for the benefit of the Real Estate bank, and evidenced by the coupons attached, receivable in pay of debts due the bank. But neither the decision, nor the legislation referred to in the opinion, has any bearing on any question presented in this case.

Counsel have discussed, in this case, the validity of the novated Holford bonds, but the facts alleged in the petition present no such question for decision.

The facts alleged in the petition being insufficient in law to entitle appellant to mandamus, and the demurrer to the answer reaching back to the petition, the judgment of the court was rightly rendered against appellant, and must be affirmed.


author: Harrison, J.

text:
    Lacefield vs. The State.
    1. Cbiminal Law : Assault with intent to murder.

    To sustain an indictment for an assault with intent to murder, the evidence must he such as would warrant a conviction for murder if death had ensued from the assault.
    2. Assault with Intent to Kill : Shooting one with intent to kill another.

    When one, intending to kill A, shoots and wounds B, or if it be doubtful which he shoots at, he can not he convicted of an assault with intent to kill B.

      Section 1327, Gantt’s Digest, has no application to assaults with intent to kill. It has relation to maiming or wounding; and prosecutions under it are for the maiming, or bodily injury done, and not for the assault or attempt.

      3. Criminal Pleading: Indictments need not follow statutory form.

    The form of indictment given in the statute need not be strictly followed. It is sufficient if it contain the requisites specified in section 1796, Gantt’s Digest.

    4. Same: Indictment for assault with intent to MU.

    Indictments for assault with intent to kill, need not state the moans used by the assailant to effectuate his intent.
    5. Criminal Practice: Trial without plea of defendant, error.

    To proceed to trial without a plea from the defendant, is error, for which judgment should be arrested.
    APPEAL from Conway Circuit Court,
    lion. W. L. Jacoway, Circuit Judge.

      Allen and Williams Sf Clark, for appellant.

      Attorney General, contra.

   Harrison, J.

The appellant was tried in the Conway circuit court upon the following indictment:

“CONWAY CIRCUIT COURT.

“ The State of Arkansas,

vs.

Lee Lacefield.

“The grand jury of Conway county, in the name and by the authority of the state of Arkansas, accuse Lee Lacefield of the crime of felony, committed as follows :

“The said Lee Lacefield, on the first day of December, A. D. 1878, in the county and state aforesaid, upon one Thomas Ilearstings, with a certain pistol, feloniously, willfully and of his malice aforethought, did make an assault with intent him, the said Thomas Ilearstings, then and there feloniously, willfully, and of his malice aforethought to kill and murder, then and there, no considerable provocation appearing; against the peace and dignity of the state of Arkansas. A. S. McKennon,

Prosecuting Attorney, Fifth Circuit.”

The jury returned a verdict of guilty as charged in the indictment, and assessed his punishment at three years imprisonment in the penitentiary.

He moved for a new trial, which was refused, and he was sentenced in accordance with the verdict.

Upon the trial the state introduced L. M. McClure as a witness, who testified that the defendant was, on or about the first day of December, 1878, in the town of Plummerville, in Conway county, and that he became involved in a difficulty with one Holloway. The witness induced him to leave Holloway’s presence and go with him to witness’s saloon. When they got to the saloon, the defendant took a pistol from his pants’ pocket, and, after cocking it, put it into another pocket. The witness dissuaded him from any further difficulty. He then left, and in a short time returned with Holloway, and called for whisky. He was intoxicated, and the witness tried to prevail upon him not to drink any more, but finally, after exacting from him a promise that he would behave himself, gave him a drink.

In a short time after taking the drink, he staggered or fell against the sash of a window and broke two panes of glass. The witness demanded twenty-five cents from him for the panes of glass he had broken ; when-he declared, with an oath, he would pay no such sum, and became very disorderly — using profane and abusive language to the witness. The witness called Thomas Hearstings, a bartender in the saloon, and he and Hearstings put the defendant out of the saloon on a porch, and Heartstings then went back into the saloon; the defendant holding on, to the witness; the witness, to get loose from him, seized him by the hair of his head, vrith both hands, and churned his head several times against the wall, and then threw him down on the fioor, and, with his hands in his hair as before, struck his head several times against the floor. The defendant then let go the witness, and the witness dragged him by the hair of his head off the porch to the ground, and left him and went back into the saloon to a desk at the farther end. Very soon afterwards Hearstings told the witness to look out, the defendant was going to shoot into the saloon, and immediately a shot was fii’ed froxix without, which grazed Hearstings’s xxeck, and he fell on the floor, exclaiming, “I am shot” — the bullet lodging in a pictux’e frame on the wall; axxd two orthx’ee other shots, from the same direction, were fired into the saloon in rapid succession, the bullets lodging in the wall. Th.e witxiess got a pistol and pursued the defendant, who was moving rapidly away, and arrested him, and, taking his pistol from him, delivered him iixto the custody of the constable. When arrested, his pistol had four empty chambers.

Thomas Hearstings testified for the state, and his testimony corroborated McClure’s, except that he knew nothing of the taking of the pistol from the defendant; and Columbus Taylor, another witness for the state, testified to seeing the defendant fire the shots.

The court chax’ged the jury: That, although the shots were fired at some other person, if Thomas Hearstings had been killed, the killing would have been murder, the same as though they had been fired at him, directly, unless they were fired in necessary self-defense.

The defexxdant excepted to this charge, and asked the following, which the coux’t refused: That the jury must, before they find the defendant guilty, be satisfied, beyond a reasonable doubt, that he intentionally made an assault upon Thomas Hearstings; axxd that proof of an assault upon another persoxx, although Thomas Hearstings was hit, was not sufficient to warrant a verdict against him.

The court erred in charging as it did, and in refusing to charge as asked by the defendant.

The proposition is incontrovertible that to sustain an indictment for an assault with intent to murder, the evidence must be such as to warrant a conviction for murder had death ensued from the assault. McCoy v. The State, 8 Ark., 451; Cole v. The State, 10 Ark., 318; 1 Russ. on Crimes, 719; Whar. Crim. Law, 467; Stark. on Ev., 53.

If the assault was made in a sudden heat of passion, caused by the beating and maltreatment the defendant received from McClure, and that was a provocation apparently sufficient to make the passion irresistible, and the death of McClure had ensued, the killing would have been manslaughter, and not murder.

If, therefore, the intent was not so criminal as would have made the killing murder if McClure had been killed, the crime could not have been greater if the act, or shooting, had resulted in the unintended death of Hearstings.

Bishop, in his work on criminal law, says : “ How intensely evil the intent must be to infuse the bane of criminality into the unintended act, is not easily stated in a word. ' Evidently there may be cases wherein * * * * * * it is too minute in evil for the law’s notice, the same as when the act is the true echo of the intent, and as when carelessness exists. So, also, as, on the one hand, the evil intended is the measure of a man’s desert of punishment; and, on the other hand, the injury done to society is the measure of its interest to punish, and punishment can only be inflicted when the two combine. It follows, that where the law has different degrees of the same offense, as in felonious homicide, which is divided into murder and manslaughter, the crime must be assigned to the higher or lower degree, according as the intent was more or less intensely wrong. * * * * * * Thus we have seen that to shoot unlawfully, but not feloniously, at the poultry of another, and thereby accidentally kill a human being, is manslaughter; to do the same with the felonious intent to steal the poultry, is murder.” 1 Bish.Crim. Law, sec. 334. And Wharton says : “ Whei*e a blow aimed at one person lighteth upon another and killeth him, this is murder. Thus, A, having malice against B, strikes at and misses him, but kills 0. This is murder in A; and if it had been without malice, and under such circumstances that if B had died it would have been but manslaughter, the killing of C, also, would have been but manslaughter.” 2 Whar. Crim. Law, sec. 965; 1 Hale, 766 n. (11).

Whilst it is true that every person is presumed to contemplate the ordinary and natural consequences of his acts, such presumption does not arise where the act fails of effect, or is attended by no consequences; and where such act is charged to have been done with a specific intent, such intent must be proved, and not presumed from the act.

“If the act is alleged to be done,” says G-reenleaf, “with intent to commit one felony, and the evidence be of an intent to commit another, though it be of the like kind, the variance is fatal. Thus, when a burglary wras charged with intent to steal the goods of W, and it appeared that no such person as W had any property there, but that the intent was to steal the goods of D, the alleged owner of the house, and that the name of W had been inserted by mistake, instead of D, it was held that the indictment was not supported.” 3 Green. on Ev., sec. 17.

In the ease of Rex v. Holt (34 Eng. Com. Law Rep., 522), the prisoner was indicted for shooting at John Hill, with intent to murder him. It was proven that the prisoner, intending to shoot and kill the Rev. James Lee, shot at Hill, mistaking him for Lee, but without doing him any injury. The judge left it to the jury to say whether there was an intent to murder Hill. The jury found that the prisoner did not intend to do any harm to Hill, and the judge directed an acquittal. 2 Stark on Ev., 572; State v. Neal, 37 Maine, 468; The State v. Jefferson, 3 Harrington, 571; Ogletree v. The State, 28 Ala., 693.

Section 1327, Gantt’s Digest, which declares that if any person, of his own malice, attempt to shoot, or to do some bodily injury to some particular individual, and in attempting to do so, shall shoot or injure some third person against whom the offender had no evil design, he shall be held and adjudged to be guilty in the same manner as if the injury had fallen on the person intended — has no bearing upon the question before the court. ! It has, as appears by both its language and the context, relation to maiming and wounding, and prosecutions under it are for the maiming or bodily injury done, and not for the assault or attempt.

It follows that the fact that Hearstings was struck by one of the bullets, but tended, as any other fact or circumstance in the case, to prove that the defendant shot at him — and if, from all the evidence in the case, the jury were satisfied he did not shoot at him, but at McClure, or were in doubt as to which he shot at, the charge in the indictment was not sustained.

The indictment, it is insisted, did not charge the commission of any particular crime.

Eelony is not a crime, but a class of crimes, and the use of the word felony in the indictment, as a designation of the offense, was inaccurate and improper; but the offense of which the defendant was accused, was made distinct and certain by tbe statement of tbe facts and circumstances of its commission.

The form of the indictment given in the statute need not be strictly followed — it is sufficient if it contain:

First — The title of the prosecution, specifying the name of the court in which the indictment is presented, and the name of the parties.

Second — A statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.” Gantts Dig., sec. 1796; Anderson v. The State, 5 Ark., 444.

It is also contended that it is defective in not setting forth the manner in which the assault with the pistol was made, as whether by shooting or striking,” etc.

The rule is well settled that in an indictment for an assault with intent to commit an offense, the same particularity is not necessary, as is required in an indictment for the actual commission of the offense ; and an indictment for an assault with intent to murder need not state the means made use of by the assailant to effect his murderous intent. They are matters of evidence to the jury. Robinson v. The State, 5 Ark., 659; 2 Whar. Crim. Law, 1281; 2 Bish. Crim. Proceed., sec. 77; United States v. Herbert, 5 Cranch, 87; Harrison v. The State, 2 Coldu., 232; State v. Dent, 3 Gill & Johns, 8.

The record states that the arraignment of the defendant was waived by him, but contains no entry of a plea to the indictment, though the trial was had, as if the plea of not guilty had been entered.

It was certainly very irregular to proceed to trial without a plea — there was no issue and nothing to try. It was an error for which the judgment should have been arrested. 1 Arch. Crim. Prac. and Plead., 178-31; 3 Whar. Crim. Law, sec. 3043; State v. Fort, 1 Car. Law Reps., 510; Cannon v. The State, 5 Tex. Ct. App., 34; Bush v. The State, ib., 64 ; The State v. Matthews, 20 Mo., 55.

The judgment is reversed, and the cause remanded with instructions to require the defendant to plead to the indictment, and to be proceeded in according to law.


text:
    Scott vs. Clark County.
    1. Statute; Whether constitutionally passed, raised by demurrer.

    An answer denying that an act of the legislature under which the plaintiff claims was constitutionally passed, is hut a demurrer; and the court will, at the suggestion of counsel or of its own motion, seek information to determine the question.
    APPEAL from Clark Circuit Court.
    Hon L. J. Joyner, Circuit Judge.

      Kimball £ Coleman for appellant.

      Rose, contra.

   Eakin, J.

Scott sued the county of Clark in her circuit court, for interest due upon a certain bond of the county; being one of a series issued under the act of April 29, 1873, “authorizing, restricting and regulating the subscription, issue and registration of bonds by counties,” etc.

The county answered, admitting all the facts, but denying that-there was any such law as that assumed in the complaiut. It endeavors to show by plea that the pretended act did not pass both houses of the general assembly, but that an original bill had passed the house of representatives, and a substitute therefor had been sent to the senate and there acted upon ; and had been approved by the governor without having ever passed the house.

The court, sitting as a jury, tried the facts ; found that the bill had never passed both houses in a constitutional manner, and had not become a law. Judgment was rendered against plaintiff for costs. He moved for a new trial, and by bill of exceptions brings up certified proceedings of the house and senate, with regard to the passage of the bill, and also copies of the original and substituted bills, which are admitted to have been found on deposit with the secretary of state, but not marked filed.

It was a misconception on the part of the court, and the parties, to consider the issues as made upon facts, and to try them, as by a jury. The answer was nothing, in effect, but a demurrer; it denied that the county could lawfully issue the bonds.” That was a question of law, to be determined by the court in its own breast, with such aids to information as it might invoke for its own satisfaction, whether furnished by the parties or not. There was no occasion for a motion for a new trial, nor for a bill of exceptions. This court, without either, under the promptings of counsel, or of its own motion, may seek information to determine whether an assumed law be indeed such.

The act in question is on file in the office of the secretary of state, with the signatures, in due form, of the speaker of the house, the president of the senate, and the governor of the state. This is sufficient prima facie to advise the courts of the existence of such a law7, and to direct citizens and others in the regulation of their rights and conduct. When an act has actually received the intelligent assent of both houses of the general assembly, been approved by the governor, and published by authority, there should be, shown a clear and palpable disregard of constitutional directions in its passage, to induce the courts to hold it for naught. The public are not expected, in the transactions of ordinary business, to look behind the acts enrolled and signed; and it would lead to great wrong and inconvenience, as well as destroy all confidence in legislation, if the courts should be hypercritical in supervising the forms and proceedings of the law-making bodies, and setting aside their acts for slight causes.

Looking into the transcripts from the journals, brought to the notice of the court by the attorneys, we find some confusion in describing the bill in places — the clerk not being always particular to distinguish between the original and substituted bills. Yet, upon the whole matter, we conclude that the bill, as printed, passed both houses, and is law.

The court erred in rendering judgment for the defendant.

Let the judgment be reversed, and the cause be remanded for further proceedings, consistent with law and this opinion.


text:
    Price vs. Dowdy.
    1. Appbopkiation op Payments: Rule for. ,

    In the absence of any agreement between the parties, or any actual appropriation of payments by either of them at the time, the law makes the appropriation. The rule for this, in case of successive charges, making a running account,and successive payments at different times, is to apply the payments to the charges in the order of their dates, extinguishing the oldest first. But this results from presumed intention of the parties.
    A different agreement may bo shown by evidence.

      2. Receiver ; When appointed for mortgaged property.

    ‘When a mortgagor, or one who has created a lien upon land, enforceable in equity, is insolvent, and the land is insufficient to satisfy the decree when rendered, a receiver will he appointed to take charge of it, and secure the rents and profits during the litigation to enforce the lien.
    APPEAL from Crittenden Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Lyles and Peters, for appellant.

      Wright and Folhes, contra.

   Eakin, J.

The bill in this cause was filed by Dowdy, a commission merchant and cotton factor, of Memphis, Tennessee, against Fleming H. Price, a cotton planter of Crittenden county, Arkansas, to foreclose a lien on a certain plantation in said county, which had been created to secure Dowdy, as accommodation acceptor of two drafts of $1,500 each, drawn by F. H. Price .in favor .of Wm; R. Price, and accepted and paid by Dowdy. The drafts were drawn on the fifth of August, 1874, payable, one on the first of November, and the other on the first of January, following. There is no question of the lien or its validity.

F. H. Price, in his answer, claimed that the debt upon the drafts, due from him to Dowdy, as accommodation acceptor, had been covered by shipments of cotton, the proceeds of which should have been appropriated to the drafts; and that, in fact, he did not owe Dowdy any thing at all upon a fair settlement of their accounts. He charged that Dowdy had made an apparent indebtedness in his own favor, by false charges of commissions, interest, etc.; and made his answer a cross bill for the settlement of accounts; submitting that, if upon a fair accounting with Dowdy he should be found indebted, Dowdy might have the lien claimed.

Dowdy answered the cross bill, and stated that the accounts had been from time to time duly rendered to Fleming, and assented to, without objection; and that the shipments of cotton made by Fleming Price had been appropriated to the running account of Price for supplies, and other advances.

It appears from his exhibits of the different accounts stated, that he had charged up the acceptances, with commissions for accepting, against Price, at the time the same were made, just as other items of money or supplies ; and that the balance on the account, stated for that period, was charged up in the next account stated.

If the proceeds of shipments of cotton are to be applied to the items of the account in the order of their date, the drafts will appear to be paid, and the lien will not remain for the general balance of accounts.

Upon this point Fleming Price deposes, that when he made shipments of cotton, he did so with the understanding that the proceeds were to be applied to the drafts, although it does not appear that he gave any specific ■ directions, to that effect, at the time. Dowdy, on his part, testifies, directly and positively, that he accepted the drafts upon the express agreement and understanding with Fleming Price, that the drafts were to remain a permanent lien upon the land, and that credits were to be applied, as made, to the running account for advances and supplies; and that he would not have continued to advance money and supplies to Price on any other terms.

The different accounts stated were found to have been correctly taken from his books, and furnished to Price at stated times — to which he made no objection. Interest upon all of them was charged at the rate of 10 per cent, per annum. It was claimed by Price that legal interest in Tennessee was 6 per cent., and that 10 per cent, was excessive. Dowdy proved that it was customary with business men and citizens to charge 10 per cent, interest in such cases, and that the money actually procured for Price, and advanced by Dowdy, had cost him 10 per cent, at the banks.

The last account stated brought the transactions of the parties down to May, 1876, when Price was shown to be indebted in a sum exceeding $8,000, which by subsequent charges undisputed, had been brought up to about $3,224. This account, rendered in May, had been acquiesced in by Price, and he had promised to pay it.

The cause was heard upon the pleadings and evidence, at the November term, 1877, of the Crittenden court. The chancellor held that the payments or shipments were properly applied to the running accounts, outside of the drafts, and that the lien remained for the balance due (which appears to be less than the drafts with interest), and that, the insolvency of the defendant being admitted, a receiver would be proper. He was of the opinion, however, that the interest charged had been excessive, and referred the accounts to the clerk, to state them on a basis of 6 per cent., and to report at once.

The clerk reported in a few days, at the same term showing a balance due of $2,937. Exceptions to the report were overruled, a decree rendered for complainant with order of sale, and a receiver was appointed to collect rents for the current year, and take care of the property. Price appealed.

In the absence of any agreement between the parties, or any actual appropriation of payments by either of them at the time, the law makes the appropriation. The rule for this — in case of successive charges making a running account, and successive payments at different times — is, to apply the payments to the charges in the order of their dates — extinguishing the oldest first. Upon the face of the accounts stated in this case, it appears that Dowdy had charged his acceptances with commissions, as so much money advanced, along with other advances and supplies, without any mark of distinction as to these drafts, to show that they were held upon a different footing, with a separate lien for their payment independent of payments made on the -general account.

If this were all, the rule would apply and the law would appropriate the proceeds of the cotton to these drafts in their due order of time, as these charges appear in the account But this results only from a px-esumption of intention, and may be controlled by evidence. It was competent to show a different agreement. The complainant may have kept his account in this manner for convexxience, and he is not estopped thex-eby. There is evidence to show an agreement that the proceeds should be applied, first to the open and unsecured account, reserving the acceptances to be paid last, and retaining the lien meanwhile as to them. Although the evidence is conflicting, the chaxxcellor seems to have given most weight to the evidence of Dowdy on this point.

Considering all the circumstances, we are of opinion that he held correctly in determining that the lien was to be retained until all should be paid. The decree is for a balance of an account, and is, so far, not in apt language. It should have been, as prayed, for a balance on the acceptances, considering them as fro tanto unpaid. But this is only matter of form. The decree is for a less amount than the drafts with interest would cover, and the error in form is not prejudicial to defendant.

The defendant can not complain of the directions to the master to reopen the accounts, by charging 6 per cent, interest instead of ten. That was in his favor, and he admits in his pleadings that 6 per cent, was the lawful rate of interest in Tennessee, and was intended to govern the transaction.

There was no error in appointing a receiver. The insolvency of the defendant and the inadequacy of the security was not denied. In such case, it would be inequitable to allow defendant to take advantage of his own wrong, and by refusing payment to enjoy the rents and profits of the land during a protracted litigation without leaving a sufficiency in the corpus of the property to satisfy the decree when rendered. There is no distinction in this respect between a mortgage which gives the mortgagee a technical legal title, which he might enforce by a possessory action, and an agreement for a lien enforceable, as this was, only in equity. The principle is the same, and arises from no legal right to possession in the holder of the lien, which the receiver exercises in his stead, but ex equo et bono, from the nature of the case. The court impounds the property by virtue of its inherent power to enforce the equities which come within its cognizance.

In restating the account, the master has allowed no interest on either side until the rendition of the different accounts stated, and has calculated the interest at 6 .per cent, from the time of each statement, upon the aggregate charges and the aggregate credits, in each statement respectively, until the time of the report. Each account stated stands by itself, bearing its own interest on the aggregate sum of its charges and credits from the date of rendition. No balances are struck nor amounts carried over into subsequent accounts. When all are stated, the charges with their respective interests, and the credits with their interests, are all balanced at the time of the report. This mode of stating it is particularly favorable to defendant, and can not be recognized as a precedent fixing the correct principle. It deprives the creditor, in whose favor the balance may be, of the advantage of his greater amount of interest in the periods between the advances and the time of rendering the accounts. This is well illustrated in the ease of these very acceptances. The bills fell due on the first of November, 1874, and the first of January, 1875. The amount of the principal only is charged in the account, and they are not made to bear interest until the tenth of June, 1875. There is no compounding of interest in this method, as claimed by the exception to the report. If there • was a mistake, it was largely in favor of appellant.

"We see no mistake in the report prejudicial to appellant, of any character, and think, without objection on the part of appellee, it was properly confirmed and made the basis of a decree.

Let the decree be in all things affirmed.


author: English, C.-J.

text:
    King et al. vs. Clay et al.
    I. Courts: Power of, over process. Injunction against.

    Common law courts have jurisdiction and power over their writs, and over the officers who execute them, and may, on motion, recall and quash process illegally issued. This being a plain and complete remedy at law to a party to an execution illegally issued, he can not apply to chancery for injunction against it. But one who is not a party to an execution illegally levied on his property, has not' this remedy, and may apply to chancery to enjoin the sale.

      2. Fraudulent Conveyance : None but creditor can assail.

    One who is not a creditor, is not in condition to ask chancery to set asida an alleged fraudulent conveyance of a debtor.
    3. Judgment : Amendment of without notice, error.

    Failure to give notice to the adverse party of an application to amend a judgment, is ground for reversing the order of amendment, on appeal or writ of error; but the order can not be held void m a collateral proceeding.
    4. Same : Entry procured by fraud, vacated in chancery. Fraud, how charged.

    Chancery will vacate an entry procured by fraud; but the allegations of fraud must be specific of the facts constituting it. General allegations are not sufficient.
    5. Decree: Binds only parties: Reversed if necessary party not made.

    A decree is not binding upon one not a party to the suit. It is error in a, court to render a decree without having before it a party necessary to make it final and effective.
    APPEAL from Lonoke Circuit Court in Chancery.
    Hon. J. W. Martin, Circuit Judge.

      Clark Williams, for appellant.
    Chapliue, contra.

   English, C.-J.

The material facts of this case, as disclosed by the pleadings and exhibits, are, that, on the sixth of April, 1866, Marion M. Clay, administrator of Thadeus N. Ferrell, deceased, commenced an action of replevin, in the detinet, against ’William Valliant, in the circuit court of Arkansas county, for a two-horse wagon, the declaration alleging that Valliant received the wagon of Clay, to be redelivered on request. Demand, and refusal, etc.

On the execution of a personal bond by Clay, with sureties, the sheriff seized the wagon, under the writ of replevin, and delivered it to him.

At the return term, Valliant pleaded non-detinet, and the cause was continued. At the May term, 1867 (sixteenth of May), the case was submitted to the court, sitting as a jury. The court found the issue for Valliant; fixed the value of the wagon at $125, and damages at $25, and, Valliant electing to take the value of the property, etc., the court rendered a personal judgment against Olay, in his favor, for $150, and costs of the suit.

At theMay term. 1870 (seventeenth of May), the following entry appears to have been made in the case, Hon. Henry B. Morse, presiding as circuit judge; Hon. "William M. Harrison having presided when the above judgment was rendered:

“Come the parties, and it appearing that at the May term, 1866, the said Marion J. Clay, administrator of the estate of Thadeus N. Eerrell, brought his action oí trespass on the case against "William Valliant, and that in said cause, at the May term, 1867, judgment was rendered in said cause against Marion J. Clay, in his individual character; and, it further appearing that said judgment should have been entered against Marion J. Clay as administrator of Thadeus N. Eerrell, and that the entering of the same against said Marion J. Clay, in his individual character, was through an error and misprision of the clerk, it is, on motion of the plaintiff ordered that said judgment be, and the same is hereby, corrected so as to be against the said Marion J. Clay as administrator of the estate of Thadeus N. Eerrell; and if is, on motion, further ordered that such correction take effect, and have force, from hence of the May term, 1867.”

On the twenty-second of December, 1876, a personal execution was issued against Clay, on the original judgment as entered the sixteenth of May, 1867, to the sheriff of Lonoke county, taking no notice of the entry of the seventeenth of May, 1870, modifying the judgment. Upon the execution was indorsed, by the clerk who issued it, a credit of $75, as of the third of November, 1868; and a further indorsement that William Yalliant, in whose favor the judgment upon which the execution issued was obtained, died in June, 1870; and that, on the third of January, 1871, George W. Turner was appointed by the probate court of Arkansas county, administrator of his estate, and, at the October term of said court, ordered to give a new bond as such administrator, and had failed to give such. bond.

The execution came to the hands of J. M. King, sheriff of Lonoke county, and was levied on lands situated in that county, as the property of Clay, and the lands were advertised to be sold the tenth of February, 1877.

Before the day of sale, Charlie Clay and Harry Clay, minors, by their next friend, Marion J. Clay, and the latter in his individual capacity, filed the bill in this case, on the chancery side of the circuit court of Lonoke county, against King, as sheriff, praying that the sale of the lands, under the execution, be enjoined.

The bill alleges, in substance, that complainant, Marion J. Clay, was appointed administrator of the estate of Thad-ens N. Ferrell, by the probate court of Arkansas county, on the-day of-, 1866 ; gave bond, etc., and acted as such administrator until the-day of--, 1868.

That, as such administrator, he brought the suit against Yalliant, which resulted in a personal judgment against him, as above shown ; and that the judgment was corrected by the entry of May 17, 1870, copied above.

That when the judgment was rendered, and at the time it was amended, the estate of Ferrell was solvent; that there was real property belonging to the estate, situated in Arkansas and Prairie counties, and yet property in said counties more than enough to pay the judgment, if, in fact, it could be collected by law.

The bill then sets out the personal execution issued against Clay, and the levy upon the lands, etc., as above stated; and alleges that all of the lands levied on are the property of the minor complainants, except the northwest quarter of section twenty-seven, township two south, range eight west, which is averred to be the individual property of Marion J. Clay, and claimed by him as a homestead.

That the execution was against Clay, in his individual capacity, and that the judgment was against him as administrator, etc.

That "William Yalliant, in whose favor the judgment was rendered, died in June, 1870, and the judgment had not been revived by his administrator, executor, heirs, or any one else entitled by law to revive it.

That King, as sheriff, etc., had advertised the lands, and would sell them unless restrained, etc.

Prayer for injunction, etc.

A temporary injunction was granted, in the absence of the circuit judge, by the judge of the county court of Lonoke county.

On motion of King, P. H. Wheat was made a defendant, as an interested party, and permitted to file an answer and cross bill.

The answer admits that Olay was appointed administrator of Eerrell’s estate, as alleged in the bill.

Alleges that in December, 1875, before the replevin suit, Wheat being the owner of a wagon, sold it to one Solomon Boyd, who sold and delivered it to William Yalliant; that the wagon never was the property of Eerrell, or Olay.

That Clay, without right, brought the replevin suit for tbe wagon, against Valliant, describing himself a3 administrator of Ferrell.

The auswer then proceeds to set out, and exhibit, the proceedings and judgment in the replevin suit, as above shown.

Alleges that .after the wagon was taken from Valliant and delivered to Clay, under the writ of replevin, Valliant demanded of Wheat that he should replace the wagon, or pay for it, and employ counsel and defend the suit. That Wheat delivered to Valliant another wagon, which was-satisfactory, employed counsel and defended the replevin suit at his own expense, and for his own use and benefit, and that the suit resulted in a personal judgment against Clay for the value of the wagon, etc., which was right and proper, etc., and that the judgment belonged to Wheat.

That the effort of Clay to have the judgment altered by subsequent order of court, without notice to Wheat or Valliant, and without their appearance in court, or consent,, was fraudulent, and said order void. That the entry of record that the parties appeared, was falsely made by the fraud, connivance and procurement of Clay. Denies that said judgment was entered by error or misprision of the clerk, but avers that it was deliberately entered by the then presiding judge of the court, after full argument, on the ground that an administrator must bring an action of replevin at his peril, and if he fail, must pay, and save his sureties harmless, and do justice to the defendant; and, after having wrongfully replevied property, he can not-turn the defendant over to the pro rata per cent, of an insolvent estate; and upon the ground that plaintiff had received defendant’s property from the sheriff, and defendant had a right to have a return of the property, or its value, and defendant having exercised his right of election, and chosen to take the value, the law made no exception in favor of administrators; and as the administrator had received the property, it was no hardship to make him pay the value; and if -there was any loss, and the suit was indeed brought in good faith,'the probate court could allow the administrator credit as for expense of administration for the excess.

Admits that the execution was issued as stated in the bill, and levied on the lands described therein.

Wheat makes his answer a cross bill or counter claim against complainants, and the administrator of Valliant, and avers that he is the owner of the judgment, and that it is unsatisfied,, except $75, credited on the execution; all of which, but $28, was appropriated to costs, etc.

Avers that the lands levied on were bought and paid for out of the funds of Marion J. Clay; that the minor complainants were children, of tender years, and had no property or means of their own. That Clay bought said lands himself, paid therefor out of his own money, and being at the time indebted to Wheat on said judgment, as well as to other creditors, for the purpose of hindering, delaying and defrauding his creditors, caused the title to said lands to be made to his said minor children, except the tract claimed by him as a homestead, and between the fraudulent conveyances and his homestead right, was attempting to hold his creditors at defiance, etc.

Prayer that said fraudulent conveyance be set aside, and said lands be subjected to said execution, and that so much thereof as might be necessary be sold, and the proceeds appropriated to the payment of the judgment, costs, etc., and for general relief.

King adopted the answer of Wheat.

A summons was ordered for George W. Turner, as administrator of Yalliant, and a guardian ad litem appointed for the minor defendants to the cross bill.

The complainants demurred to the answer and crossbill; the court sustained the demurrer, and rendered a final de-. cree, making the injunction perpetual, and defendants appealed.

I. In considering the demurrer to the answer, etc., we may look back to the bill to see whether it makes a case for relief in equity.

Treating, for the present, as the bill does, the order of the Arkansas circuit court, of seventeenth of May, 1870, as a mere correction of a misprision of the clerk in entering the judgment of the court in the replevin suit, at a former term, no execution could be legally issued upon the judgment as corrected — none against the property of Marion J. Clay, because, after the correction, there was no personal judgment against him, and, under our system of administration, no execution against the estate of Yalliant, could legally be issued.

There can be no doubt of the jurisdiction and power ©f the common law courts over their writs, and over the officers who execute them. And in the due exercise of this power, such courts may, on motion, recall and quash process illegally issued. State Bank v. Noland et al., 13 Ark., 301.

Olay, the defendant in the execution, had a simple and adequate remedy at law, by application to the court out of which the writ issued, to recall and quash it; and, if the court was not sitting, the judge, in vacation, could stay the execution of the process, until the court met. Sec. 14., Art. 7, Const.; Gantt’s Dig., sec. 2619. Ilis remedy being plain and ample at law, he had no ground to apply to chancery for an injunction, and, as to him, there was no equity in the bill. Lansing v. Eddy, 1 Johnson’s Chancery Rep., 49; Anthony et al. v. Shannon, 8 Ark., 53; Moore et al. v. Granger, sheriff, et al., 30 Ark., 577.

II. But the minor complainants stood upon a different footing; they were not parties to the execution — their father was the defendant in the execution — they had no legal right to apply to the law court, out of which it issued, to recall and quash it. The court might or might not have acted on their application.

The sheriff levied an execution against their father, upon lands owned by them, and they joined in the bill for an injunction. Insomuch as a sale and conveyance by the sheriff, would put a cloud upon their title, the better opinion seems to be that they could maintain a bill in equity to injoin the sale, and therefore there was, as to them, equity in the bill. Horman on Execution, 614; Key City Gaslight Co. v. Munsell, 19 Iowa, 305; Kirkpatrick v. Buford et al., 21 Ark. 268; Conklin et al. v. Forster, 57 Ill., 108; 61 ib., 334; Bunn v. Tozer et al., 10 Cal., 167; Vogel v. Montgomery et al., 54 Mo., 577.

HI. But it is alleged in the cross bill, in answer to the claim of the minor complainants, thatthey are not the owners of the lands levied on; that the lands were purchased by Clay, the defendant in the execution, with his own money, and that he caused them to be conveyed to his two minor sons, to hinder, delay and defraud his creditors ; aud these allegations were admitted to be true by the demurrer to the cross bill. And the cross bill prays that the fraudulent conveyance be set aside, and the lands, or enough thereof, be sold to satisfy the execution.

In other words, the cross bill seeks the aid of chancery to uncover the lands and subject them to the satisfaction of the execution against Clay. But if the entry of the seventeenth of May, 1870, is not void, and the allegations of the cross bill do not make a case for vacating it by decree in equity, as procured, by fraud, then not only is the execution levied on the lands invalid, but it is founded on no personal judgment against Olay, and though Wheat may own the judgment, he is no creditor of Clay, and is in no condition to ask a court of chancery to set aside the alleged fraudulent conveyances; and the demurrer to the cross bill was properly sustained. Meux v. Anthony, 11 Ark., 411; King v. Payan, 18 Ark., 589 ; Clark and Wife v. Anthony and Wife, 31 Ark., 546.

IV. Is the entry void upon its face?

It was well settled by this court, before the adoption of the Code that a court has power, after the close of a term at which a judgment is rendered (as well as during the term), on proper application and notice to parties legally interested, to amend its record so as to make it speak the truth. King et al. v. State Bank, 9 Ark., 185; Arrington v. Conrey el al., 17 ib., 100; Green v. State, 19 Ark., 178; Martin et al. v. State Bank, 20 Ark., 336; Freel v. State, 21 ib., 213; Alexander v. Stewart, 23 ib., 18.

Failure to give notice to the adverse party, of the application to amend a judgment, is ground for reversing the order of amendment, on writ of error or appeal. Alexander v. Stewart, and Martin et al. v. State Bank, sup.

By provisions of the Code, the court in which a judgment or final order has been rendered or made, has power after the expiration of the term to vacate or modify such judgment or order for a number of causes specified, and among them: “ third, for misprisions of the clerk.” Gantt’s Dig., sec. 3596.

The proceedings to correct misprisions of the clerk shall be by motion, upon reasonable notice to the adverse party, or his attorney in the action, Ib., see. 3597.

As to what are misprisions of the clerk, see Badgett v. Jordan, 32 Ark, 154.

It does not appear in the transcript before us that any notice was given by Clay, to Yalliant or his attorney, of the application to amend the judgment; but the record entry shows that the parties appeared, and on motion of Clay, upon facts shown to the court, the amendment was made.

The record entry does not show an attempt of the court to modify a judgment rendered at a former term, because of an error of the court in rendering it, but because of a misprision of the clerk in entering it. In other words, the judge presiding on the seventeenth of May, 1870, found on the facts shown to him, that the judge who Avas presiding, and tried the cause on the sixteenth of May, 1867, in fact, rendered a judgment against Clay as administrator, and by misprision of the clerk, a personal' judgment was entered against him, and upon such showing an order was made modifying the judgment as shown by the entry.

It may be that the judgment was right, upon the facts as entered by the clerk, and it may be that the court erred in changing it, and that such error might have been corrected on writ of error or appeal; but in this case the order modifying the judgment comes before us collaterally, and the court having jurisdiction of the subject matter, we can not pronounce it void on its face. Borden v. State, 9 Ark., 253.

Y. That chancery may vacate the entry, if procured by fraud, is well settled.

There is no direct allegation in the cross bill that notice was given to Yalliant, or his attorney in the action, of the motion to amend. Nor is there a direct allegation that Valliant did not appear, or was not present in person or by attorney, when the motion was made; nor are there any specific allegations of fraud on the part of Clay in procuring the entry to be made; nor is there' any prayer that the entry be vacated. A party seeking to set aside a judgment or order of court, on the ground that it was procured by fraud, must allege the particular facts constituting the fraud. General allegations are not sufficient.

The court did not err in sustaining the demurrer to the answer and cross bill:

VI. After sustaining the demurrer to the answer and cross bill, the court, upon the bill, rendered a decree, perpetually enjoining the execution of the judgment as amended, without causing the administrator of Valliant to be made a party. The bill was against the sheriff only, who had no interest in the judgment, but was only charged with the official duty of executing the writ issued upon it, and placed in his hands.

"Wheat, who claimed to be the owner of the judgment, very properly made Turner, the administrator of Valliant, a defendant to the cross bill, and took an order for a summons against him; but before the summons was issued, the case was disposed of on demurrer to the answer and cross bill, and the final decree entered. This decree is not bindingsupon the administrator of Valliant, because he was not made a party to the bill on which it was rendered, and, regardless of the decree, he might sue out another execution upon the judgment as amended.

It was an error in the court to render a decree without having before it a party necessary to make the decree final and effective. Simmons et at. v. Richardson & May, 32 Ark., 297.

Eor this error, the decree must be reversed, and the cause remanded, with leave to appellees to amend the bill so as to make the administrator of Valliant a defendant; and with leave to Wheat to amend his cross bill so as to make the allegations of fraud in procuring the amendment of the judgment direct and specific; and also to amend the prayer thereof, and for such further proceedings as may be in ac: cordance with principles of equity, and not inconsistent with this opinion.