author: Mr. Justice Faiuchild

text:
    Williams et al. vs. Christian et al.
    The ease of Shal1 vs. Biscoe, (18 ArJc. 162;) that where the vendor has made a deed of land sold, the lien of the vendor does not pass to an assignee by assignment of the Botes given for the purchase money of the land, approved.
    Where the vendor of land gives a bond for title on payment of the purchase money, the lien of the vendor does not pass to an assignee by assignment of the notes given for the purchase money of the land, where such assignment is without recourse upon the assignor — the acceptance of the notes so assigned seems to imply a reliance upon the personal responsibility of the maker.

      Appeal from Ashley Circuit Court in Chancery.

    Waddell, for the appellants.
    Here an assignee of the notes claims to enforce the lien of the vendor, and to enforce it against assignees of the land. All this may be done. 13 Ark. 540; 14 Ark. 633.
    in this State, is, that a sale by title bond is, in all its material features, the same as a mortgage by the purchaser to the vendor to secure the purchase money. If a note secured by mortgage be assigned, the mortgage passes with it. 18 Ark. 575. So in this case the mortgage lien passed to the complainants with the notes. This is the settled law here.
    Hutchinson, for appellees.
    Where the legal title remains with the vendor, it is admitted the assignment of the notes given to secure the purchase carries with it-the lien, if the assignment is made with-any conditions or restrictions. But where the assignment made, as in this case, expressly without recourse on the assignor, the rule seems different The cases of Mackrath vs.

      Symmons, 1 White Tudoi^s Lead. Gas. 274; and Gf'iggsby vs. Hair, 25 Ala., seem to put the law beyond all doubt that the vendor’s lien does not pass when the notes are assigned without recourse.
   Mr. Justice Faiuchild

delivered the opinion of the court.

Christian sold his interest in certain lands to Hundley. For the price of the lands and for stock, household furniture, boats, wagon, and other personal property, Hundley gave to Christian' two notes, one for six hundred dollars, the other for six hundred and twenty-five dollars. In the computation of the values of the lands and of the personal property, that of the latter was estimated at six hundred and twenty-six dollars, and that of the lands at five hundred and ninety-five dollars. So the answer of Christian and of Hundley aver, and they may be considered responsive to the charge of the bill that the two notes represented the consideration for the lands that passed from Hundley to Christian.

Christian transferred the two notes to the plaintiffs in payment of a debt he owed them, without any recourse upon him.

; Christian gave to Hundley a bond for title to the lands when the amount due on them should be paid. It did not recite the notes nor refer to them at all, nor mention the sale of the personal property, but stated the sale of the lands, and the amount due on them, as above mentioned. The bond is not brought into the case, the bill alleging that the plaintiffs had not seen it, and did not know its contents, but charging its existence or execution, to which the defendants Christian and Hundley answered by the foregoing statement.

Afterwards, Christian and Norris purchased the. same lands ‘ from Hundley. And the plaintiffs having failed to collect the notes from Hundley, filed their bill against him, Christian and Norris, to subject the lands to the payment of the notes, on the ground that they represented the purchase money of the lands due from Hundley to Christian, for which Christian had a lien on the lands, and that Christian, by his assignment of the notes to them, transferred to them, his lien, which equity ought to assist them in enforcing against Christian and Norris.

If principle would support the bill, it could not extend to the notes as such, but to the sum in them embracing the price of the lands, that is, to five hundred and ninety-five dollars, with interest according to the face of the notes.

Christian had the legal title to the interest in the lands he sold to Hundley, as a security for ' the purchase money. He assigned the notes, including the purchase money, to.the plaintiffs, the appellants here, but without recourse upon him, and with Norris, bought back the lands from Hundley.

The bill charges that the agreement was between Christian and the plaintiffs, that the vendor’s lien of Christian should be transferred with the notes ; but that is strongly denied by the answer of Christian, is not sustained by proof, and is inconsistent with the terms of the assignment.

In Shall vs. Biscoe, 18 Ark. 172, this court, after a review of the numerous and conflicting decisions upon the assignability of vendor’s liens, accruing in the two classes of cases where the vendor had made a deed, and had given bond for a deed to the land sold, held, according to what it considered to be the weight of authority, that when the lands had been conveyed, the lien of the vendor did not pass to an assignee by assignment of the notes given for the purchase money of the land. We approve of that case, not only because it is a binding authority, as a decision of this court, made upon full examination of a vexed question, and because as a question depending upon authorities it is according to their weight, but because it is better founded in principle than the opposite course of decision observed in Kentucky and some other states; as it places the lien on the ground of a personal equity between the vendor and Vendee, and discourages secret incumbrances upon lands.

We are not called upon in this case to extend the principle to the other class of cases, and are therefore relieved from the enquiry whether there be any conflict between Shall vs. Biscoe and Moore vs. Anders, 14 Ark. 635; but we hold that the restrictecb assignment of the notes in this case does not transfer any lien -upon the lands mentioned in the bill to the plaintiffs, or to the iirm of which they are the successors. The acceptance of notes so assigned seems to us to imply a reliance upon the personal responsibility of the maker of the notes. This has been held in Maryland and Alabama-Schnebly vs. Ragan, 7 Gill & Johns. 125; Hall vs. Cleck, 5 Ala. N. S. 366. The Alabama case is more to be considered as, with Kentucky, the courts of that state maintain the transfer of a vendor’s lien by assignment of purchase money notes, when the lands purchased are conveyed by deed.

The decree dismissing the bill is affirmed.


source: Caselaw Access Project

author: Mr. Justice Fairchild

license: Public Domain

text:
    Christian vs. Greenwood et al.
    Though a sale of property be fraudulent on the part of the vendor, being made to defraud his creditors, the purchaser cannot be affected by the fraud unless he participated in it, with a knowledge of the fraudulent design, and with intent to further the accomplishment of such design.
    One creditor has the same right to purchase, with his debt, the property of his debtor, that another creditor has to sell it under execution; and this, though he knows that the debtor’s object in selling to him, is to deprive the other creditor of the means of making his debt — the effect is but preferring one creditor to another.
    But, in such case, the creditor must allow a fair price for the property and not buy more than is necessary for his own protection — at least it would be a suspicious fact, if, unless there be shown good reasons for the property not to be sold separately, he includes several parcels of property when one would pay the debt, and pay the overplus in money.

      A purchaser from a fratfdulent vendor will be held to be a participator in the fraud; if he have notice of it, and still deal with him, and thereby afford him tho means to make his fraudulent efforts against hie creditors successful; and this, though he may have paid a full price for the property.
    And so, where a purchaser of negroes knew that his vendor had run them off— had been told that the vendor had acknowledged that he had run them off to avoid the debts sought to be enforced against them — bought them after he knew they had been run off, and while they were absent, paying mostly in cash, he does not present such a case as entitles him to the protection of a court of equity but will be held responsible for the fraud of his vendor to the extent of his dealing with him, on the presumption of a fradulent intent on his part, as well as on the part of the vendor.

      Appeal from Ashley Cirowit Court in Chcmoery.

    Hon. Josiah Gould, Special Judge.
    Johnston, for appellant.
    The complainant insists that he has established every material allegation in his bill, and has made manifest his legal and equitable right to the negroes, Ned and Fanny, from the facts proven that he bought them from C. J. Hundley, in Louisiana, about the 4th of February, 1856, for $1500, a fair price, which he paid Hundley; that he took them into possession and removed them to Arkansas, and held them in possession peaceably until the 6th of September, 1856 ; that the negroes were free from liens when he bought them, and that Hundley liad an untrammeled right to sell them.
    But the defendants object that complainant did not purchase the negioes in good faith, but that he bought them with the intent to hinder and delay them in the collection of their debts.
    Hpon what hypothesis this charge of fraud is predicated, it is difficult to discover from the facts disclosed in the bill, answers, and proof:
    It is certainly clearly manifest from 'all the facts disclosed in the testimony, that complainant, in the purchase of the negroes, committed no act which necessarily imports fraud; and it is insisted that a fair and reasonable conclusion from the whole case as disclosed by the pleadings and testimony acquits him from the slightest suspicion of fraud, as contemplated by the statute. It is submitted that the true construction of the 4th section of the statute of frauds is, “ that the facts must show such an intent to commit a fraud that there can be no reasonable conclusion to the contrary.”
    This construction, it is submitted, is recognized and sustained by the ruling of the court in the case of Dcurderme vs. Ha/rdwick, 9 Ark., 485, and 8 'Peters 253. And the construction implies that both parties to the transaction must participate in tine fraudulent intent. 9 Ark., 485, 486, Darderme vs. Ha/rdwick; also 17 Ark., Splcmn vs. Martin, 152, and authorities cited.

    The testimony of Barnes and Hundley shows that Hundley was indebted to complainant at the time he purchased the negroes, and that complainant released to Hundley his indebtedness, in part payment of the negroes.
    It will not be contended that there is any fraud-in that act. In the absence of any lien on his property, Hundley certainly had the right to sell it to Christian, especially so when he sold it to pay him a just debt, without being liable to the charge of ' fraud.
    But defendants say that Hundley run his property from Arkansas to Louisiana to avoid the payment of debts he owed them, and complainant knowing that he had run them for that purpose, a short time afterwards, went to Louisiana and bought them. It cannot be contended that complainant is chargeable •with fraud in this act of Hundley, because it is not charged, nor proved, nor attempted to be proved that complainant in any manner aided or assisted, or influenced Hundley to run his negroes.
    Complainant submits that the defendants have failed to make out a case of fraudulent intent, as to the purchase of the negroes by him. <
    Complainant also submits that his purchase was made in good faith in the eyes of the law. For the reason that complainant and defendants, both being creditors of Hundley, Hundley had the right in law to pay complainant his debt, in preference to the defendants.
    And for the further reason that there being no levies on Hundley’s property the same was, in his hands, the legitimate subject of bargain and sale, and he had a free and untrammeled right to sell it to any purchaser who would pay his price, and no creditor of his had any color of right in the law or equity to prevent his selling it upon the simple ground of his indebtedness.
    "Waddell, for appellees.
    The question is, whether the conveyance by Hundley to Christian was fraudulent as against Christian, the vendee. Splcwn vs. Martin, 17 Ark., 152, is the best case for Christian, and will be cited on his behalf to show what is not denied by defendants, to-wit: That, to affect Christian with the fraud, it must be, shown that he participated in the fradulent intent. I then turn to the depositions to see what fraud is proved, and what Christian had to do with it. I find that Hundley ran the negroes off for the avowed purpose of evading these very debts ; that Christian was informed of the fact, and of Hundley’s avowed object; and that with this perfect knowledge of Hundley’s fraudulent aim, and while so hiding the negroes out, Christian bought them from him. As to Hundley, the conveyance was fraudulent. As to Christian, he received the conveyance with perfect knowledge of Hundley’s intent. Was this a participation in the fraudulent intent ? Splawn vs. Martin does not say what would amount to a participation in the fraudulent intent. Neither does Eardenne vs. Ha/rdwidk, 4 Eng. 486; nor Hempstead vs. JoJmston, 18 Ark., 141 (c.); nor any other case in Arkansas. I look into 'the cases on authority of which Splawn vs. Martm was decided. The first case is Peek vs. Oarmichael, 9 Yerger, 327. It expressly decides that if the vendee know of the fraud intended by the vendor, he participates in the intent by taking the conveyance. The next case, Trotter vs. Watson 6 Hurn/ph. 509, on page 514, speaks of knowledge of the fraud as a participation in it, and moreover lays down the law to be as stated in 2d Kent, 513 : That the conveyance may well be fraudulent, though a full consideration was paid. Also, in a note to áth Kent, 8th edition, page 464, it is said that “if the grantee knows, when he take the deed, that the object of the grantor is to defraud others, the deed is void though he -may give a full consideration, and cites Edgall vs. Lowell, 4 Vermont Rep. 405, and the above case of Trotter vs. Watson, and English!s decisions. And in Magniac vs. Thompson, 1th Peters S. .0. Rep., 389, which was decided by Judge Story upon full argument by able lawyers, the above doctrine both as to payment of consideration notpreventing the transaction from being fraudulent, and as to notice of vendor’s fraudulent aim implicating the vendee in the same intent, was admitted on all hands to be incontrovertible.. The error assigned in that case was that the court below had held that to implicate the vendee in the fraudulent intent, he must have participated in some manner more active, and decided in such intent than by merely receiving the conveyance with knowledge of vendor’s intent; and it was conceded that such a holding of the law by the court below would have been erroneous; but Judge Story showed that the court below had not ruled the law that way, but had ruled it the way plaintiff’s counsel said it ought to be ruled, to-wit: that taking the conveyance, with knowledge of vendor’s fraudulent purpose was a participation by vendee in the fraudulent intent, and no more need be proven against him to invalidate his title. Apply the law, as thus well settled, to Christian’s case, and he is a participator in the fraudulent intent, and his title void.
   Mr. Justice Fairchild

delivered the opinion of the Court.

. On the 4th of February, 1856, Christian purchased of Cecilias J. Hundley, two negroes — Ned and Fanny. Át the time of the purchase, the negroes were not in Ashley county, the place of Hundley’s residence, but were in Louisiana, where they and the other negroes of Hundley had been taken to avoid their sub jection to the payment of the debts of Handley to the appellees, Greenwood & Co. Immediately upon the purchase, the ‘negroes were brought back to Ashley county, Ned went into the possession of Christian, Fanny returned to the employment and house of Hundley, but under’ hire from Christian, and they thus remained, till in September, 1856, they were levied upon as Hundley’s property, in pursuance of directions from the appellees, to satisfy executions which they had sued out against him on judgments obtained in the Circuit Court of Ashley county. To prevent the sale of the negroes under these executions, Christian filed his bill against the appellees, alleging that the negroes were his, and not subject to be applied to the payment of Hundley’s debts; he having bought' them when there was no lien upon them, in perfect good faith, and upon the payment of a fair and full consideration. A.n injunction, according to the pr'ayer of the bill was granted.

The answers of the appellees tender an issue as to the ownership of the negroes; the appellees maintaining them to be subject to the satisfaction of their executions against Hundley, as their alleged purchase by Christian was a feigned' transaction, made to assist Hundley-to defraud the appellees out of the demands represented by the executions.

There are other allegations in the pleadings: in the bill, to show the propriety of the application for an injunction; and in the answers denying this upon the want of jurisdiction of chancery, and alleging facts tending to make good the main defence of fraudulent dealing between Christian and Hundley; but we shall notice only .the principal point in the case, because the consideration of that is conclusive of the whole case; and because it is well settled that, if the bill be true, it presents a proper case for the relief for which it asks. Sanders vs. Sanders, 20 Ark., 612, 614.

Hpon the final hearing of the case, the Circuit Court of Ashley county, sitting in chancery, dismissed the bill, and Christian appealed.

The sale of the negroes to Christian was fraudulent on the part of Hundley, and was made by him to defraud the appellees, and out of these very debts that are mentioned in the pleadings.

But Christian cannot be affected by Hundley’s fraud, unless he participated in it by assisting Hundley to put his property out of the reach of the appellees, and appropriating it to himself with a knowledge of Hundley’s fraudulent design, and with intent to further the accomplishment of such design. Dardenne vs. Hardwick, 4 Eng. 486; Splawn vs. Martin, 17 Ark. 152; Hempstead vs. Johnson, 18 Ark., 141; Ewing vs. Bunkle, 20 Ill., 463.

The argument that Christian had the same right as the appellees to secure his own debt against Hundley, is good if applicable. If Hundley was owing Christian, he might secure the debt by a voluntary sale from Hundley of his property, as well as the appellees could procure the payment of their demands by the compulsory sale of Hundley’s property under execution. And this would be so, though Christian knew that Hundley’s object in making the sale was to deprive the appellees of the means of making their debts. On the part of Hundley, the effect of such sale to Christian would be but preferring one creditor to others which the law tolerates, and on' the part of Christian, it would only be endeavoring to do by contract what the appellees were doing by law, each trying to secure his own interest. Pearson vs. Rockhill, 4 B. M. 299.

In such a case, Christian’s conduct would not be held fraudulent, as the law would presume that he acted not to defraud other creditors of Hundley, but to secure himself. Seigler vs. The Knox Co. Bank, 8 Ohio State Rep., 516; Ford vs. Williams, 3 B. M., 557.

A creditor, buying the property of an insolvent debtor to secure his own demand, has the same equity that other creditors have ; each has an equitable interest in the debtor’s property; and the legal title, conjoined to an equity, will overcome a mere equitable interest. Seymore vs. Wilson, 5 Smith, 421, 418. Although the law will not restrict a creditor from buying enough property, from a failing or fraudulent debtor, to pay the whole debt, or from buying all the debtor’s property, and applying it to the extinguishment of the debt, as far as it will go, the buyer must allow a fair price for the property, and must not buy more than is necessary for his own protection. Ford vs. Williams, 3 B. M. 557. We do not intimate that the value of the property bought must be less, or must be no more, than the debt to which it is applied, but it would be a suspicous fact that the purchase should include parcels of property, one piece ‘of which would pay the debt; and the cause for suspicion would be increased, if the overplus should be paid in money, or with a consideration that would be invisible to other creditors.

In a case where the price of the property bought was nine hundred dollars, and the debt on which it was bought was six hundred and sixty dollars, the court of appeals of Kentucky upheld the sale, notwithstanding the excess of two hundred and forty dollars was paid in money, and was not shown to have been paid on debts of the insolvent seller of the property, because the property, being that of a female slave and two infant children, was not such as the law or good conscience required to be separated, and because a fair price was given for the whole of the negroes. Young vs. Stallings, 5 B. M. 307.

And so in this case, if Christian had shown himself a creditor of Hundley for the amount that he paid on Ned and Fanny, in claims upon Hundley, that .amount being four hundred’ and nineteen dollars, according to the testimony of Barnes, or five or six hundred dollars as to be gathered from Hundley’s own deposition, we should not be disinclined to grant the desired relief to Christian, if his purchase had extended only to one of the negroes, or if it had extended to both, and there were good reasons for them not to be sold separately, and his conduct had been in other respects that which was only attributable to a creditor, successful in the race of diligence against the appellees.

But Christian does not occupy the advantageous position of a creditor of Hundley upon which to rest his purchase of Hundley’s negroes. Barnes and Hundley are the only persons who testify about the payment for Ned and Fanny; and Hundley who may be supposed not to be under any bias against Christian, says that Christian paid him in cash, nine hundred or a thousand dollars, and in an account against him, in one against his mother, and in one or two against his brother. That is no proof at all that Hundley was indebted to Christian in any specific amount; and Christian must take the place of a stranger •who purchases property from a fraudulent seller, and that is one that is far different from being a creditor, endeavoring out of the wreck of an insolvent debtor’s property to find something to save his own debt. Still, if Christian bought the negroes of Hundley, there being no lien upon them in favor of the appellees, and paid the value of them without notice of Hundley’s fraud, his equity as a purchaser, is at least equal to the equity of the appellees to have their debts paid out of Hundley’s property, and the legal title derived from the purchase will prevail. His position as a purchaser is different and less favorable than that of a purchasing creditor, for as a purchaser he will be held to be a participator in Hundley’s fraud, if he have notice of it, and still deal with him, and thereby afford him the means to make his fraudulent efforts against his creditors successful. Seymore vs. Wilson, 5 Smith, 420.

And this is the case, notwithstanding he may have paid a full price for the property. 2 Kent (8th Ed.) 674; Beals vs. Guernsey, 8 John. 452. These two authorities refer to property bought in fraud of a judgment, but the reference being to personal property, which a judgment does not bind, the authorities are not inapplicable to this case.

The appellees are judgment creditors, are shown tobe so by the hill which alleges the extent of the executions upon Christian’s negroes and though they were not so when Christian bought the negroes, it was from the fraud of Hundley that they were not at that time, and of this fraud, executed with relation to these debts of the appellees, Christian was informed in October, 1855, by the agent of the appellees.

To have the benefit of the perpetuation of his injunction Christian should have shown a clear title to the negroes, that is, one unaffected by any taint of fraud. This he has not done. He knew that Hundley had run off these and four other negroes, all he owned, to Louisiana; he had been told by the agent of the appellees that Hundley acknowledged that he had run them off to avoid the debts that he prays not to be extended over the negroes Ned and Fanny. Knowing of these debts, and not knowing of any others that Hundley owed, as it may be presumed he did not know of debts that Hundley could not recapitulate, he did not see that the money he paid to Hundley or that any part of the twenty-five or twenty-six hundred dollars, which Hundley got for the other negroes, was applied or intended to be applied by Hundley to their satisfaction; he bought the negroes out of the usual course of business, by buying them when they had been run out of the state, and while they were absent; he paid mostly in cash lor them, which could hot but aid Hundley in his design to defraud the appellees. s

In view of these facts, though we are not called upon to say that Christian was an active participator in Hundley’s fraud against the appellees, we are sure that he has not presented such a case as entitles him to the protection of a court of equity. He is brought within the cases that hold that a grantee that has knowledge of the fraud of a grantor must be held responsible for it to the extent of his dealing with him, and that indulge the presumption of a fraudulent intent on his part, as well as against the grantor. Ford vs. Williams, 3 B. M. 558; Pastilo vs. PEcvr, ris, 26 Conn. 482.

The Circuit Court sitting in chancery, properly dismissed the bill of Christian, but that dismissal and the affirmance here are not intended to affect Christian’s legal right, only to declare that a court of equity will not interpose in his behalf against the appellees.


author: Mr. Chief Justice English

text:
    Tucker vs. Bond et al.
    A constable who levies an execution upon property claimed by another person than the defendant, is justified in selling it, as against the claimant, if upon a trial of the right of property, the verdict is that the property belongs to the defendant; such verdict is,[however, no justification, under the statute, of the plaintiff, or other person interfering in the sale: but if there be a levy, which is a valid and subsisting lien upon the the property, and the defendant then sell the property, a sale under the execution is legal and a justification to all concerned: And so> in an action of tresspass, in such case, against the purchaser of the property, the plaintiff in the execution and his agents, and the defendants file a notice of justification settingup not only the trial and verdict, but a legal arid valid sale, the court may well refuse to instruct the jury that the facts set up in the notice will only justify the constable.
    The verdict of the jury on the trial of the right of property levied upon under execution, being that the execution is a “lien upon, and bound the property,”— this is within the spirit and intention of the statute and equivalent to a finding it to be the property.of the defendant in the execution.
    The return of an officer upon an execution that he had levied it upon certain property is prima facie evidence that the levy was in fact made, and in such manner as to make it effectual.
    If an execution be levied upon property, and by direction of the plaintiff, the sheriff permits it to remain in possession of the defendant, and returns the execution without sale, the levy will not continue a lien against intervening rights of other persons.
    But the return of the execution without sale by the officer, under the impression that he had no power to sell — that his successor had qualified, and that it was his duty to make the sale — does not postpone the levy to the claims of purchasers or junior executions; nor does the fact of leaving the property in the possession of the defendant for a reasonable time, and without any fraudulent motive —the defendant retaining possesion as agent of the officer.
    Where property levied upon is left in the possession of the defendant in the execution, and a purchaser at private sale has notice of the levy before his purchase, he is not deceived by the property remaining in the possession of the defendant; and evidence of such notice may well be considered by the jury in an action of trespass by him against a subsequent purchaser at a sale under the execution.

      Appeal from Sebastian Circuit Oowrt.

      Hon. John M. Wilson, Circuit Judge.
    Garland & Bandolph, for appellant.
    If the facts set up in the notice are sufficient to justify, they enure to the benefit of the officer alone, and not to his co-defendants. See Scmders vs. Hamilton, 3 Dana 550, and cases cited.

    A finding of the jury, on a trial of the right of property, before a constable, that the execution is a lien on the property, ■would not justify the officer in selling, and the mere indorsement of a levy upon the execution without taking the property into possession, will not bind it. Hull vs. Southworth, 5 Wend. 265; Westmeli vs. Pmchney, 14 Wmd. 123; 4 Wend. 446, 550; 7 Halstead 352.
    If the defendant in an execution retains possession of the property alter levy, it raises the presumption that his possession is legal. Slocomb vs. Blaclcbvurn, 18 Arle. 309.
    Green J. Clark, for the appellees.
    The verdict of the jury which tried the right of property between the defendant in the execution and the claimant, being adverse to the claimant’s right, was a justification' to the officer in selling the property, and, of course, if he was justified in selling, the other defendants were justified in purchasing. See Gould’s Dig.^.ftlQ^secs. 161, 165. It is not expected that such a verdict should be formally written with technical accuracy or legal precision: it is sufficient if the decision be against the claimant’s right. '
   Mr. Chief Justice English

delivered the opinion of the Court.

This was an action of tresspass brought by Edward Tucker against Thomas Bond, Wm. H. Gardenhire, Wm. Barnes, and Edward C. Moore, and determined in the circuit court of Sebastian county.

The declaration charged the defendants with taking and converting twenty-three head of hogs, the property of the plaintiff!

the cause was submitted to the court, sitting as a j ury, upon the general issue, and notice of special matter in justification, and finding and j udgment in favor of defendants.

Upon the trial, the plaintiff submitted foierteen propositions, and asked the court to declare them to be the law of the case; the court refused the 3d, 6th, 7th, 9th, 11th, 13th, and léth, and approved and declared the law to be as expressed in the others.

The hogs in controversy were purchased by the plaintiff of James Moore, about the 10th of October, 1856, at which time there were three executions against Moore, in the hands of the defendant, Bond, the constable of Sugar Creek township, where the parties resided, issued by a justice of the peace of the township.

Two of the executions were not levied upon the hogs before Moore sold them to the plaintiff; and the court declared the law to be, that they were not liens upon the hogs, which disposed of them, but whether correctly or not, need not be decided, as the law was so declared at the instance of the plaintiff, who, of course, does not complain of a decision in his favor.

The other execution was issued on the 12 th July, 1856, to the defendant, Gardenhire, who was then constable of the township, and who levied it upon the hogs, as the property of Moore, on the 31st July, and advertised them to be sold on the 10th of August; but returned the execution without selling them under the belief, as stated in his return, that the defendant, Bond, who succeeded him in the office of constable, had qualified as such, before the day fixed for the sale.

The execution was renewed by the justice of the peace, and was in the hands of Bond, with the levy made by Gardenhire, indorsed, at the time Moore sold the hogs to the plaintiff.

Bond summoned a jury to try the right of property in the hogs, the jury found that they were subject to the execution, and a portion of them were afterwards sold by Bond, under the execution, and purchased by the defendant, Barnes. The other defen-, dants advised, and encouraged the sale.

When Gardenhire levied on the hogs, he left them in the possession of Moore, the defendant in the execution, who drove them to the residence of Tucker, the plaintiff in this suit, after he purchased them, and they were there, in a pen, at the time of the trial of the right of property, and the sale under the execution.

The third legal proposition submitted by the plaintiff, and refused by the court, is as follows:

“ 3d. That the facts set forth in the notice of justification, if true, could do no more than justify the officer in selling, and would not justify the plaintiff in execution, or others concerned in committing the tresspass.”

This proposition was properly refused, because it applied to the facts “set forth in ihenoUce of the justification? generally, and without discrimination — and if it had been declared to be the law, would have swept away the defence of all the defendants, except Bond, the constable, who made the sale of the hogs.

The notice set forth the issuance of the execution to Garden-hire, the levy made by him upon the hogs, the placing of the renewed execution in the hands of Bond, with the subsisting levy indorsed, etc., as well as the trial of the right of property, etc.

Had the proposition been confined to so much of the notice as recited the trial of the right of property, and the verdict of the jury, it would no doubt, have been good law.

For, as remarked upon a similar statute, (Sanders vs. Hamilton, 3 Dana 550,) the legislature have thought fit, owing to the perilous condition of the constable, to authorize him to summon á jury to try the right of property, when claimed by a. person other than the defendant in the execution, whose verdict, (that the goods belong to the defendant,) as against the claimant, justifies the constable in selling the property levied on. But the legislature have not thought fit to provide the same security for the plaintiff in the execution, or other persons interfering in the sale. Dig., ch. 99, sec. 16, etc.; Pennington vs. Yell, 6 Eng. 235.

But if the levy made by Gardenhire was a valid and subsisting lien upon the hogs at the time Moore sold them to Tucker, the after sale of them by Bond, under the execution, was legal and a justification to all of the defendants.

The sixth proposition submitted by the plaintiff, and refused by the court, is as follows:

“ 6th. That the finding of a j ury, on the trial of the right of property, before a constable, that the execution is a lien on the property, would not justify the officer in selling.”

This proposition, though abstract in its terms, was intended to apply to the form in which the jury who tried the right of property in the hogs, before Bond, rendered their verdict. ¡

The jury reduced their verdict to writing, and it was returned to the justice of the peace, but was handed to him by one ’of the parties, and not produced upon the trial. Several of the jurors, who tried the right of property, were introduced as witnesses, and testified that the verdict was in favor of the execution — that it was a lien upon, and bound the property — Tucker having bought the hogs of Moore after they were levied on, but before the trial of the right.of property, some of the jurors were unwilling to state in the verdict that they found the hogs to be the property of the defendant in the execution, and they agreed upon a verdict that the execution bound the property.

The statute provides that “ if the jury find the goods and chat-ties to be the property of the defendant in the execution, the verdict shall, as against the claimant, justify the officer in selling such goods and chattels.”

The verdict was within the spirit and intention of the statute. The hogs were the property of the defendant in the execution at the time they were levied on; before the trial of the right of property he had sold them to Tucker, and the jurors could not conscientiously find that they were still the property of the defendant in the execution, but they found the substance of what the statute required to justify the constable in selling — that the property was subject to the execution.

It follows that the court did not err in refusing to declare the-sixth proposition to be the law of the case. The 7th, 9th and 11th propositions refused by the court, assert the law to be, in substance and effect, that the constable could not make a valid levy upon the hogs without taking them into his possession; and that by leaving them in the possession of the defendant in the execution, the levy became ineffectual as against the plaintiff, Tucker, who subsequently purchased them of him, etc.

No witness testified that he was present when Gardenhire levied on the hogs. In what manner he made the levy does not appear, otherwise than from his return upon the execution, in which he states that he levied on the hogs and advertised them for sale, etc. The return was read in evidence, and was •prima facie evidence in his favor, as well as of the other defendants, that the levy was in fact made, and in such manner as to make it valid. In Cornell vs. Cook, 3 Cow. R., the court, per Savage, Ch. J., said: “ The first question is, whether the endorsement of a levy upon the execution, in the plaintiff’s hands, and by the plaintiff himself, is sufficient evidence of the fact, to enable him to maintain trover or trespass, against a third person, who intermeddled with the property levied* on. We have several times decided, and I think correctly, that such an endorsement is prima facie sufficient. It is an official act required by the statute; and every presumption is in favor of a public officer’s faithful performance of his duty. It seems to be sufficient, also, upon the ground of necessity; as an officer cannot be supposed to carry witnesses with him to prove every levy, or other official act required of him.”

The evidence conduces to prove that the hogs were left in the possession of Moore, after they were levied on by Garden-hire, and remained in his possession until he sold them to Tucker, and drove them to his residence. Several witnesses saw them in a flock or bunch, as they termed it, in the range where they had been in the habit of using, after they were reported to have been levied on, and advertised for sale, etc.

In Slocumb, Richards & Co. vs. Blackburn, 18 Ark. 315, we held, in accordance with a well established rule, that where personal property is levied upon, and by direction of the plain - tiff, the sheriff permits it to remain in possession of the defendant, and returns the execution without a sale, the levy will not continue a lien against intervening rights of other persons^

Here the execution was not returned by direction of the plaintiff, but the constable returned it under the impression that his successor had qualified, and that it was his duty to make the sale.

“ It is not necessary that an assistant officer should be left in the possession of the goods levied on, or that the goods should be removed. They may be left in the possession of the defendant, or of a receiptor, with or without bond and security _ The officer, by thus leaving them, makes himself responsible to the creditor for the goods; but does not abandon his levy so far as the debtor is concerned. Leaving the property in possession of the debtor for a reasonable time, and without any fraudulent motive, is not per se fraudulent. But if the property is so left for an unreasonable time, and the debtor is permitted to exercise an unlimited dominion, and to sell, consume, or dispose of it as his own, this is evidence of a fraudulent use of the execution, so as to postpone the levy to the claims of bona fide purchasers, or junior executions. And if the officer voluntarily permits the defendant to regain possession in his own right, and not as agent or bailiff of the sheriff, the levy may be postponed to one subsequently made.”

Thus the law is stated by Mr. Gwynne in his work on Sheriffs, and he has made a fair condensation of cases cited by him, and others which we have examined.

Upon the facts of this case, we think the court did not err in refusing the proposition in question.

Nor did the court err in refusing to declare the law to be, as expressed in the plaintiff’s 13th proposition, that the evidence tending to show that he had notice of the levy before he purchased the hogs of Moore, was not to be considered under the issues, etc., because if he had such notice he was not deceived by the hogs remaining in possession of Moore after the levy, and was not a bona fide purchaser, etc.

The 14th proposition — that the law of the case was for the plaintiff — requires no comment.

There being no motion for a new trial, we are not required to review the finding oí the court upon the facts of the case. ^ The judgment must be affirmed.


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    The State vs. White.
    Where a license to retail spirituous liquors has been granted bf the county court on the applieant paying the price for such license, and he has paid it to the county treasurer, and applied to the clerk for the license, although it was not proper for him to commence retailing until his license was issued by the clerk, the jury were warranted in finding that he was guilty of no criminal violation of the statute in retailing before the issuance of the license; and, of course, the person acting as his clerk was guilty of none.

      Error to Benton Circuit Court.

    Hon. J. J. Green, Circuit Judge.
    Hollowell, for the State.
   Mr. Chief Justice English

delivered the opinion of the court.

White was indicted in the Benton Circuit Court for retailing without license.

On the trial the State proved that, in the month of Decernber, 1859, he sold ardent spirits, of different kinds, to persons in less quantities than one quart.

White, in justification, proved that Elgy, his father-in-law, presented a petition in accordance with the'statute, to the county court of Benton county, on the 6th of October, 1859, for license to retail ardent spirits; and the court made an order granting him license for twelve months, on his paying into the county treasury $25, the price prescribed by the court for the license.

On the same day, Elgy, in conformity to the.order, paid the sum required to the treasurer of the county, and took his receipt therefor.

Afterwards, he opened his grocery, or bar, as he called it, and employed White as a clerk, vrho was acting as such when he sold the spirits referred to by the witness for the state.

After Elgy paid the $25 to the county treasurer, and obtained his receipt, he saw the clerk of the county court on the street, and requested him to issue his license. He had the treasurer’s receipt in his pocket at the time, but did not show it to the clerk. The receipt was not filed with the clerk, nor the license issued until some time in the following spring.

Upon the above facts White was acquitted by a jury, under the charge of the court as to the law of the case, and the prosecuting attorney, deeming the state aggrieved by the acquittal, appealed to this court.

It was not proper for Elgy to commence retailing until his license was issued by the clerk, and delivered to him, but the court having made an order directing the license to be issued, upon his paying the price fixed into the county treasury, and he having accordingly paid the money to the treasurer, and obtained his receipt therefor, we think the jury were warranted in finding, upon the facts of the case, that he was guilty of no criminal violation of the statute (Dig., chap. 169, secs. 8, 11); and it follows, as a matter of course, that White, who was acting as his clerk, was not guilty of crime.

The judgment must be affirmed.


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    Cornish vs. Sargent.
    Where the mandate of this court is filed during the term of the Circuit Court, the cause ought to be continued; and it is error to take judgment by default against the defendant at that term.
    The failure to file the mandate of this court in the Circuit Court, for any period of time after the case is remanded, is no cause of abatement.

      Error to Union Circuit Court.

    Hon. Len B. Green, Circuit Judge.
    Carleton, for the plaintiff in error.
   Mr. Chief Justice English

delivered the opinion of the Court.

Sargent sued Cornish in the Union Circuit Court, on a note, and obtained judgment by default. Cornish brought the case to this court by writ of error, and at the July term, 1856, the judgment was reversed, and the cause remanded with instructions to the court below to permit Cornish to file pleas in bar.

At the October term, I860, of the Union Circuit Court, Sargent filed the mandate of this court, which the Circuit Court ordered to be spread upon its records, and directed the cause to be reinstated upon the docket; and, at the same term, Sargent took judgment by default against Cornish for the amount of the note declared on.

Cornish sued out a writ of error to reverse the judgment so . obtained against him.

The mandate of this court being filed in term, the cause should have been continued until the next term, without judgment, under the 14th Rule of Practice. 3 Eng. R. 240.

It is insisted for the plaintiff in error that the case should have been abated because of the neglect of Sargent to file the mandate for so long a period, but we have no statute making such want o£ diligence cause of abatement.

The judgment must be reversed, and the cause remanded for further proceedings.


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    Cooper, et al. vs. The State.
    Where a party arrested for a criminal offence, has been committed to jail in default of bail by the magistrate, and the amount of bail required endorsed upon the order of commitment, the sheriff has no power under the statute, to take the recognizance of bail.
    A recognizance or bail bond taken without authority, is void.
    The discontinuance of the suit as to one of the defendants in a proceeding by scire facias on a recognizance of bail, is not a discontinuance of the suit as to the other defendants.

      Error to Chicot Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Stillwell & Woodruff, for plaintiff in error.
   Mr. Chief Justice English

delivered the opinion of the court.

Augustus Catchings was arrested and taken before two justices of the peace of Chicot county, on a charge of shooting John Nash with a pistol, and required to give bail for his appearance at court, in the sum of $1,000, and failing to furnish bail, was committed to jail. The warrant of commitment was dated 21th June, 1859, and upon it the magistrate indorsed that bail was required in the sum above stated.

On the 14th of the same month, the sheriff of the county took a bail bond for the appearance of Catchings at the ensuing term of the circuit court, in the penal sum of $1,000, with James H. Cooper and Joseph L. Turner, as securities.

At the appearance term, the bail bond was forfeited, and a scire facias issued, which was served on Cooper and Turner, and returned not found as to Catchings.

At the return term Turner made default. Cooper responded to the scire facias, settingup several objections to the regularity of the bail bond, which were overruled by the court; a discontinuance was entered as to Catchings, and final judgment against Cooper and Turner, for the penalty of the bond, and they brought error.

The objections taken to the bail bond in the response of Cooper below, have been greatly multiplied in the assignment of errors, but there is but one of them that seems to us to be fatal to the bond.

Without the assistance of any brief on the part of the State, we have made diligent search, and can find no statute which authorized the sheriff to take the bail bond in this case.

On the failure of Catchings to give bail before the examining court, the justices, in accordance with the statute, committed him to jail, and indorsed on the warrant of commitment the sum in which bail was required. Gould’s Dig. chap. 52, secs. 48, 50.

Section 57, of the same chapter, provides that “ whenever any person shall be committed to jail on a warrant of commitment issued by any magistrate, for a bailable offence, a recognizance, with proper security, may be taken by any court or magistrate authorized by law to issue a writ of habeas corpus.”

The sheriff has no authority to issue the writ of habeas corpus. Ib. ch. 82, sec. 2.

Where a sheriff arrests a person charged with crime, on a capias, after indictment, in a bailable case, he is authorized to take a bail bond for the appearance of the prisoner. Ib. ch. 52, sec. 119; ch. 160, sec. 14; Kitrell Ex parte, 20 Ark. 507; 5 Ark. 268.

But where the accused is committed to jail, by an examining magistrate for want of bail, as in this case, it seems that he must be admitted to bail upon habeas corpus.

Where a recognizance or bail bond is taken without authority, it is void. Commonwealth vs. Laveridge, 11 Mass. 337.

The discontinuance of the suit as to Catchings, who was not served with process, was not a discontinuance of the action as to the other defendants, who were served, as insisted by the counsel for the plaintiffs in error.

The proceeding by scire facias, on a forfeited recognizance or bail bond, is a new suit; the writ, under the statute, answering the purpose of both declaration and summons. Darby et al. vs. State, 21 Ark. 525.

It is unlike a scire facias to revive a judgment, where there can be no severance or discontinuance as to the living party; without a discontinuance as to all. Grey et al. vs. The State Bank, 5 Eug. 455; Finn as ad. vs. Crabtree as ad., 7 Ib. 597.

In Warren vs. The State, 19 Ark. 215, which was a scire facias on a forfeited recognizance of bail, it was, in effect, decided that a discontinuance might be made as to a party not served; without a discontinuance of the whole action.

The judgment must be reversed and the cause remanded for further proceedings.


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    Omey vs. The State.
    In an indictment for selling ardent spirits to a slave, without permission, it is necessary to state the name of the master, and allege the sale to have been without the permission of the mistress, overseer or person having charge of him, as well as of the master.

      Appeal from, Franklin Circuit Court.

    Hon. J. J. Green, Circuit Judge.
    Stillwell & Woodruff and Thomason, for appellant.
    Ifollowell for the State.
   Mr. Chief Justice English

delivered the opinion of the Court.

Omey was indicted for selling ardent spirits to a slave.

There were three counts in the indictment. The first and third charged the defendant with selling ardent spirits to Charles, a slave, without permission of the master, mistress, overseer, or person having charge of said negro, but did not allege the name of the owner of the slave, etc.

The second count alleged that the negro belonged to Thomas Aldridge, and that the defendant sold ardent spirits to the negro without permission of his master, but does not negative the permission of the mistress, overseer, etc.

The defendant moved to quash the indictment, the motion was overruled, the plea of not guilty was entered for him fey the court, and he was tried and convicted.

The first and third counts in the indictment were defective in not alleging the name of the owner of the slave. State vs. Cadle, 19 Ark. 613.

The statute provides that no person shall sell, or cause to be sold, to any negro or mulatto slave, ardent spirits in any quantity, without permission of the master, mistress, overseer, or person having charge of said negro or mulatto slave; and any white person offending against the provision of this act shall be guilty of a misdemeanor,” etc.

It does not make out the offence under the statute to charge that the ardent spirits were sold to the slave without permission of the master, for the permission may be given by the mistress, overseer, or person having charge of the negro; and it is more consistent with the rules of criminal pleading for the indictment to negative the permission of all of the persons who are designated in the statute as authorized to give it. See Bone vs. State, 18 Ark. 109.

The judgment must be reversed, and the cause remanded) with instructions to sustain the motion to quash the indictment.


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    JOHNSON vs. Brock.
    The plaintiff in replevin proved that he once owned the property in dispute — the defendant proved an acknowledgment by the plaintiff that he had sold the property to a third person — the plaintiff then offered to prove by way of rebutting testimony, his own declarations and directions given to the witness, not in the presence of the purchaser, nor explanatory of, nor in any way connected with his acknowledgment of the sale, nor at the same time: Held, that the declarations so made were inadmissible; but that the plaintiff might have proved any qualification of his acknowledgment of the sale, or how it was made, or what was the dealing between him and the purchaser; but that could not be proved by what he had said to the witness, unless it was at, and a part of the sale or dealing, and in the presence of the purchaser.
    Where several instructions are, in effect, the same, and the court has given one, it is no error to refuse to give the others.
    The doctrine of doubts has no foundation in civil practice, (20 Ark. 598; 21 Ark. 356.)
    The title to personal property does not always draw to it the right of possession — as where it is hired for the time.

      Appeal from Hempstead Circuit Court.

    Hon. Lest B. GseeN, Circuit Judge.
    Eakin for the appellant.
    Appellant surely had the right to explain by his contemporaneous and concurrent declarations at the time of the sale alluded to, whether it was a conditional sale, an agreement for a sale in futuro, or a positive transfer of property. It was proposed to introduce and prove his declarations as part of the res gestas, as independent facts themselves, showing his intentions, and in that view it could make no difference whether they were made in the presence or absence of defendant. If his declaration, at the time explained his meaning, or if it could be deduced from directions contemporaneously given to another, concerning the subject matter, he surely had a right to show in that way, that at the time he did not agree to a transfer of the property.
    The rule as to the admissibility of declarations, is very clear ly laid down in the case of Enos vs. Tuttle, 3 Conn. R. 250; see Greenl. Ev. sec. 108, and note; Stark, on Ev. 30; 11 Pick. 362; 1 Not $ McCord, 221; 2 Serg. $ Rawle, 197; 14 lb. 275. The rule as to the admission of declarations and directions is laid down with great precision in the case of Cornelius vs. The States 12 Ark. 805.

      Garland & Randolph, for appellee.
    The declarations and directions offered to be proved were not made in the presence of the defendant, nor were they communicated to him, nor were they made in the presence of Kirk. See as to declarations by a party, Brown vs. Wright, 17 Ark., 9; Tatum vs. Mohr, 21 Ark. 350.
   Mr. Justice Fairchild

delivered the opinion of the Court.

After Johnson, the plaintiff, had proved that he once owned the horse which he had replevied from the defendant in the suit on trial, and the defendant had proved the plaintiff’s acknowledgment of having sold the horse to Kirk, the plaintiff called a witness and proposed to the court to prove to the jury by said witness, as rebutting testimony, the declarations and directions given to the witness by the plaintiff, not in presence of Jno. Kirk, during the pendency of the supposed negotiation for a sale of the horse from plaintiff to said Kirk, connected and contemporaneous therewith, for the purpose of explaining said supposed sale, and to show its real character and terms.”

We gather from the arguments made for Johnson, that the object of this testimony was to prove that the- sale to Kirk, which the defendant’s witness had spoken of, was not an absolute but a conditional sale. If such was its object, which we cannot deny, and certainly cannot affirm, what'Johnson said should have been offered in proof, and the court could then have judged of its competency. It was not for Johnson to say what declarations of his were connected with the sale of the horse to Kirk, or would be explanatory thereof, would show its character and terms; but if his declarations had been repeated to the court, it would have had a basis on which to decide whether they amounted to an act, by showing the assent of Johnson to a sale, or to a -transaction that would justify a stranger to Johnson, to Kirk, and to the horse, in believing or suspecting that the horse in Kirk’s possession was not Kirk’s horse. But the court was not bound to receive such testimony under the proposition made by Johnson. Bat the testimony was not admissible, because incompetent, for no fact had been the subject of testimony, which allowed Johnson to introduce his declarations to show the sale to Kirk conditional, unless they had been explanatory of the acknowledgment of Johnson to the witness, George W. Kirk, of the sale of the horse to John Kirk. That acknowledgment was the only fact that had been testified about, was the only matter that was subject to any explanation, and such declarations would have been admissible as a part of the transaction, that is, a part of the acknowledgment. There had been no proof of any supposed negotiation for a sale of the horse from Johnson to John Kirk, and the evidence shows that the acknowledgment of Johnson to George W. Kirk was made after the sale, and that whatever Johnson said, that he wished to prove by his rebutting witness, had no connection with the acknowledgment.

After the defendant had proved the acknowledgment, it wms open to Johnson to prove any qualification of it that he could; or to prove as an independent fact, and in the way he would prove any fact, how he sold the horse to Kirk, or what was the ■dealing between him and Kirk about the horse; but that could not be proved by what he had said to the rebutting witness, unless it was at, and a part of the sale or dealing, and this could not be unless the person dealt with was present participating in the fact, and thereby affected by what Johnson should say. Declarations of a party are often admissible as a part of a transaction, because they show the meaning and motive of the party, the object, nature, character and effect of the transaction about which the declaration is made; but before or when a declaration is received to affect an act, the act must be proved.

The doctrine announced and citations made for Johnson do not show the pertinency of the testimony he proposed to introduce.

In 1 Greenlf. Ev.sec. 108, the surrounding circumstances that are a part of the transaction are stated to be admissible along with the principal fact. So in Cornelius vs. The State, 7 Eng. 803, the declarations of Cornelius were admissible, because explanatory of his motive in killing the cow; which was the principal fact, and which was proved against him. In the numerous class of cases, in which Harbison vs. Henry, decided at the present term, is one, where fathers send negroes with or to their daughters upon marriage or housekeeping, their declarations at the time are admissible, to show whether the negroes were given or loaned. The declarations must be concurrent with the act and explanatory of its nature. The declarations in this case were to disprove a contract of sale. They would not be evidence to prove a contract, and they ought not to be received for its disproof. Mims vs. Sturdevant, 23 Ala. 666.

In giving the first instruction asked by Johnson, the court had declared the law contained in the second and was under no obligation to declare the same law again. The third instruction was properly refused, because the doctrine of doubts and of clear cases has no foundation in civil practice. Tatum vs. Mohr, 21 Ark. 356; Yarbrough vs. Arnold, 20 Ark. 598. The tenth instruction, like every one from the third to the eleventh, was abstract, had no connection with any testimony given to the jury. The court did right in refusing the tenth instruction, but would have been much nearer right to have refused all from the third to the eleventh, on the same ground that we justify its refusal of the tenth.

The title to personal property does not always draw to it the right of possession, and so the eleventh instruction of Johnson was well refused. The owner of a slave cannot replevy it while under hire to a third person. Wallace vs. Brown, 17 Ark. 449.

As the court did not err in excluding the offered rebutting testimony, and in refusing the second, third, tenth and eleventh instructions asked for by Johnson, it did not err in not granting a motion for a new trial, no other causes for it being assigned. Johnson’s appeal is not sustained. The judgment of the Hemp-stead Circuit Court is affirmed.


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    Grubbs vs. Ellyson.
    A homestead is not subject to attachment any more than it is to an execution.

      Appeal from Ashley Circuit Court.

    Hon. John C. Mueeay, Circuit Judge.
    Johnston & Bolling, for the appellant.
    Waddell for the appellee.
   Mr. Justice Fairchild

delivered the opinion of the court.

The plaintiff in error sued Ellyson on a note, and obtained a writ of attachment against his property, which, among other things, was levied on twelve and a half acres of land on the south side of the north half of the south-east quarter of section fifteen, in township seventeen south, of range seven west. Ellyson moved to quash so much of the return of the sheriff as showed the levy of the writ upon the piece of land referred to, because he was a free white citizen of the state, a house-holder, the head of a family, and because the land was his homestead, and actual family residence, and because the demand of the plaintiff had not arisen before the 8th of December, 1852. The plaintiffs filed their response, stated in the record to be in’ the nature of a demurrer to the motion. Giving to the response the effect of a demurrer, it was an admission of the facts alleged in the motion, and no affidavit of their truth was necessary. We need not, therefore, decide any thing upon Mrs. Ellyson’s affidavit accompanying the motion; but the legal effect of the allegations of the motion is alone to be considered. These show that Ellyson was entitled to a homestead, under the 29th section of chap. 68, Gould’s Dig., as a free white citizen of the State, and householder, and that the land levied on was his family residence. An attachment is but a preliminary execution, so that a homestead is not subject to attachment any more than it is to an execution, that is final process. The motion being taken as true, establishes the right of Ellyson to hold his homestead exempt from attachment. Tumlinson vs. Swinney, 22 Ark. The motion was not an attempt, nor does it have the effect, to question the truth of the affidavit upon which the writ of attachment issued. It admits the right of issuance of the attachment, but contests its levy upon the homestead. The Circuit Court overruled the demurrer to the motion, and its ruling is approved.


author: Mr. Justice Baikchild

text:
    Morton vs. Scull.
    Where an agent, for the sale of property, is acting upon the line of business committed to him, his principal is chargeable with the false representations made by him.
    Though representations may be false, they are not deceitfully fraudulent unless known to the maker to be fals,e. {Plant vs. Oondit, 22 Ark.)

    The principal is liable for the false representations of his agent in the sale of a slave, where the purchaser buys upon the representations of the agent, without any previous knowledge of the slave, and with no means of then testing the correctness of the representations.
    It is error'to give instructions that are not applicable to the case, and which may mislead and confuse the jury.
    While acting upon the matter of his agency a special agent binds his principal as effectually as a general agent can .do.
    In an action of deceit for falsely representing the qualities of a negro, who proved to be an incorrigible runaway, the measure of the plaintiff’s damages is the difference between his value as he was, addicted to running away, and as he would have been, free from that vice, at the time when, and place where he was purchased.

      Error to Jefferson Circuit Cowrt.

    Hon. Read Fletcher, Special Judge.
    Garland & RaNdolph, for the plaintiff.
    It is well settled that if the representations of a vendor, on a sale of property, are false, to the knowledge of the party making them, this is sufficient to maintain an action for deceit. 2 Rob. Prac. 621, 622, 627; LobclelV vs. Baker, 3 Mete. R. 469; Polhill vs. Walker, 23 Png. Com. Law R&p. 49.
    Oousotte was the agent of Scull to sell the negro, and he had * all the authority necessary to effect that object. This of course empowered him to tell the qualities of the negro, or even to warrant the title to him. Story on Agency, secs. 53, 59, 60, 61;
      Alexander vs. Gibson, 2 Gamp. 555; 6 Oowm 354; 23 Wend. 260; 1 Mete. 193.
    Because Cousotte was Scull’s agent to do a particular thing, it does not follow that his power to do that thing was any more restricted than would be the power of a general agent to do the same thing. On the contrary, his authority being limited to a particular business, did not make it special in the technical sense of the law, but it may be as general in regard to that business as it its range was unlimited. 21 Wend. Sid ; 23 ib. 260; 1 Pet. R&p. 264; Story on Agency, note 1, to see. 133.
    Upon the facts of the case, as they appear in evidence, we submit the jury should have found for Morton. He proved every thing he alleged, and the finding of the jury must have been because of the contradictory and abstract instructions given by the court.
   Mr. Justice Baikchild

delivered the opinion of the Court.

Morton sued Scull in an action for deceit, in falsely representing the qualities of a negro, which Scull, by his agent, Cousotte, made in selling the negro to Morton. Upon the trial the case of Morton was fully sustained by the evidence. The verdict was against Morton, and for this, if for no other reason, should have been set aside by the circuit court. And we think no violence would be done to the rule of this court, in reversing the judgment, because the circuit court refused a new trial, for the verdict being against the evidence. All of the proof in the case, with the exception of Cousotte’s testimony, showed plainly that the negro sold was an incorrigible runaway, that Scull bought him as a runaway, that he had experience of this habit, while he owned the boy, and that when he started Cousotte to sell the negro, he was taken from jail, where he had been placed for safe keeping by Scull, after having been caught and returned to Scull. The false representations of Cousotte, and that the latter was agent, acting in the business for which Scull had commissioned him, that is, selling the negro boy Jim, are well established. There can be no pretence of any contrariety of testimony, on any of these subjects, unless the evidence given by Cousotte himself, of his representations to Morton, might be claimed to be against the account given of the same matter by Blocker, who was present and heard what passed between Cousotte and Morton; and between these wit-' nesses there seems to be no real contradiction, although Cousotte testifies differently from Blocker, as might be expected from his situation, but that difference is manifestly in making mention of other incidents, and not in relating facts that produce a conflict of testimony. We might say that the verdict was against all the evidence upon the material facts of Scull’s knowledge of Jim’s vicious habit, and of Cousotte’s false representations concerning the negro, if the case were necessary to be put upon that ground alone.

In- selling the negro, Cousotte was acting as the agent of Scull, upon the line of business committed to him, and Scull is chargeable with the false representations made by Cousotte.

The instructions given to the jury at the instance of Morton were not objected to, and except the last, seem to be unobjectionable. The last one will be remarked upon hereafter, as upon another trial of the case its subject will be under consideration in estimating the amount of the verdict, should Morton be able to show his right to a verdict, as he did on the former trial. To the-first and second instructions of the defendant, there is no well founded objection. Bor, with regard to the first it may be said, that though representations may be false, they are not deceitfully fraudulent unless known to the maker to be false. Plant vs. Condit, 22 Ark., covers and controls this case upon the subject of deceit and representation. The third instruction of the defendant should not have been given, for the facts clearly are that Morton, upon the representation of Cousotte, took the negro without any previous knowledge of him, and with no means of then testing the correctness of the representations. The first instruction given by the court, upon its own motion, is liable to the same objection. The other like instructions of the court, except a part of the fifth, are upon the subject of warranty, which was not involved in the case, and therefore should not have been given, as their effect could only be to mislead or confuse the jury. That part of the fifth instruction not relating to warranty, but to general and special agency, is of the same character as the .other, for it had no applicability to the case. The distinction between a general and special agent is to be noted only when the special agent has exceeded his power; while acting upon the matter of his agency, he binds his principal as effectually as a general agent can do.

For the errors indicated, the judgment must be reversed, -and the case remanded for a new trial. Upon another trial the fourth instruction of Morton should be modified. The damages sustained by Morton is the difference between the value of the boy Jim as he was, addicted to running away, and as he would have been, free from that vice, at the time Morton bought, and at the place of buying, that is, Jefferson county — with the comparative value of guaranteed and vicious negroes in New Orleans; with what Morton got for him there, or with his expenses there, or in being taken there, Scull has no concern. McDonald vs. Crabtree, 21 Ark. 431. This does not apply to damages that were caused directly by the negro’s habit of running away, as the expenses incurred by his captures.


author: Mr. Justice Fairohild

text:
    Langley vs. Barkman.
    An appeal will not lie from an order of a justice of the peace, under sec. 26, chap. 66, Gould’s Dig., in reference to estrays.

      Ajypeal from Glarh Ci/reuit Court.

    Hon. LeN B. GreeN, Circuit Judge.
    GarlaND & KaNdolph, for Langley.
    ElaNAgiN, contra.
   Mr. Justice Fairohild

delivered the opinion of the Court.

Barkman took up a stray colt which Langley claimed, and he established his claim to the satisfaction of a justice of the peace, under section 25, chap. 66, Gould's Dig.; and the justice made the order provided for in the 26th section, requiring -Barkman to give the colt up to Langley, upon his paying all legal costs, and all further costs” Barkman was ordered to pay. Bark-man appealed to the circuit court. That court refused to take jurisdiction of the ownership of the colt, but tried the other branch of the case, and adjudged Langley to pay four dollars and twenty cents to Barkman for keeping the- colt. "With this Langley was dissatisfied, and appealed to this court; while Bark-man prosecutes his appeal because the circuit court would not try the right of the colt. Langley moved, in the circuit court, to dismiss the appeal because the court had no jurisdiction of the subject matter of the controversy, which the court overruled.

The court should have sustained the motion. The proceeding before the Justice was not appealable. The only object of the statute is to enable the taker up of a stray animal to restore it to its owner, and obtain indemnity against the bond given to the county — the right of the animal is not determined; the taker up may refuse to obey the order of the justice, if he will, and exjJose himself to an action of detinue or trover, in which the right of property may be tried, (section, 29 of Statute,) or to replevin. Davis vs. Culbert, 17 Ark. 85 ; Phelan vs. Bonham, 4 Eng. 389.

The circuit court had no jurisdiction of either branch of the case, and its judgment is reversed, with direction to dismiss the case, for want of jurisdiction.


author: Mr. Justice Faieohild

text:
    Burke’s ad. vs. Stillwell ex’r.
    The defendant demurred to one count of the declaration, which was bad,- but the court overruled the demurrer, and the defendant filed several pleas, to one of which the plaintiff demurred, and the court sustained the demurrer, though the plea was good; and on the trial of the other issues, the court admitted evidence that was applicable only to the plea thus demurred out. Held, that the evidence was well received, the demurrer to the plea reaching back to the bad count in the declaration.
    In a suit against the executor of his deceased partner, he may.set off a debt due from the plaintiff to the partnership, under the principle decided in Leach vs. Lambeth, (14 Ark. 668.)
    An attorney giving a memorandum to his client of a judgment obtained for him, Btating that it had been settled by drafts in his hands, to be accounted for on settlement, will be presumed to have collected the money before suit brought, and will be liable to an action for money had and received.
    In an action against an attorney, by his client, for money collected by him, the collection of which was evidenced by a memorandum in writing given by the attorney, acknowledging the collection and promising to account, he produced an instrument of writing, executed, by the client, several years before such memorandum was given, authorizing S. to collect the debt and pay him one-half of the proceeds: it did not appear that S. accepted the instrument, or that he or the client acted under it; or that the attorney recognized the claim of S: Held, that it was not sufficient to overcome or resist the evidence of the plaintiff arising from the memorandum.

      Error to Pulaski Circuit Court.

    Hon. JohN J. CueNdeNIN, Circuit Judge.
    Garland & HaNDOlph, for plaintiff.
    The items of the set-off due to Fowler and Stillwell jointly, were not properly allowed as a set-off in this action, against the executor of Fowler. Eizzellvs. Stone, 7 Eng. 378; 2 Pcursons on Con., 243, 244, and cases cited in notes. They are not due to Fowler’s representative, but belong to the surviving partner, who alone can sue for them. Story on Pa/rt. sec. 346, and cases cited.

    The instrument by which the defendant attempted to show that Smith had an interest in the money collected, was nothing more than a power of attorney. And the law is clear that it was revoked by the death of Burke and Smith, or either of them, Story on Agency, secs. 488, 490. For Smith’s interest, if he had any, was merely an interest in that which was to be produced by the exercise of the power, and was not an interest in the subject on which the power was to be exercised. Hunt vs. Sousmanier, 8 Wheat. 174; 5 Cond 405.
    Stillwell & Woodruff, for appellee.
    The demurrer to the 4th plea ought to have been overruled. It showed that Burke, at the time of the receipt of the drafts by Fowler, was indebted to him and his executor, and the law would apply the money coming into the possession of either to the payment of that indebtedness. If the defendant has any legal or equitable lien on the money, or any right of cross action upon the same transactions, the plaintiff can only recover the balance, after deducting such claims. 2 Grernl. JEv., see. 117; 1 Oh. PI. 341.
    The only evidence introduced by the plaintiff was the memorandum, and that fell far short of proving “ money had and re-, ceived.” Peay ad. vs. Bingo, 22 Ark. 68. In this action it must be proved that defendant received money or cash — the receipt of money’s worth is not sufficient. 1 Bing. W. G. 198 ; 5 Burr. 2, 589; 6 B. & G. 163. It was not proven that Fowler ever received a dollar in money or cash, that belonged to Burke; and the verdict for the defendant is right, regardless of the set-off.
    But admitting that the plaintiff’s evidence was sufficient, it was proven that Burke had assigned the proceeds of the judgment recovered by Fowler to Smith — that only one half the amount was due to Burke, and that was covered by the claim of the defendant against him.
   Mr. Justice Faieohild

delivered the opinion of the Court.

The administratrix of Patrick G. Burke brought an action of assumpsit against Stillwell, the executor of Fowler, and the evidence in it for the plaintiff, was the following writing, executed by Fowler:

Columbia, April 5th, 1857.

Memorandum for Patrick G. Burke, esq.

Patrick G. Burke, plaintiff, ) Judgment in Chicot versus [-Circuit Court, March Lycurgus Jj. Johnson and Nathan Boss. ) term, 1857.

For $1,019 19 cts. in damages, amount settled by drafts in my hands, to be accounted for, etc., on settlement. Defendants to pay costs for which execution has been ordered, is not paid, etc.

A. FOWLER.

With non-assumpsit and payment, Stillwell interposed two pleas of set-off, one of indebtedness of Burke to Fowler, and one of indebtedness of Burke to Fowler and Stillwell, partners in tbe practice of law, which Stillwell, the surviving partner, executor of Fowler, and defendant, offered to set-off against the demand of Burke. Issues were made up on all of the pleas, but the last plea of set-off', to which a demurrer was filed and sustained.

An account was filed showing the particulars of the set-off, the charges being for legal services of Fowler as an attorney for Burke, to the amount of five hundred and twenty dollars. Against the allowance of this demand, it is urged, that all but the first item of one hundred dollars, was for services of Fowler & Stillwell, and that the residue belonging to Stillwell, the surviving partner, could not be set-off in this suit founded on a demand of Burke against Fowler. The evidence is as thus contended for by the plaintiff. But the Circuit Court must have thought otherwise, else, having quashed the last plea of set-off, it would have disregarded the evidence as inapplicable to any pleading or issue in the case, on the plaintiff’s motion to exclude it, or would have granted a new trial for its erroneous finding,’ if it had thought, when the motion for a new trial was made, that the evidence had been unwittingly received and considered. But’the testimony is, that Fowler and Stillwell were in partnership in 1855, as the witness thought, and so continued until the death of Fowler, and that the services charged against Burke were rendered after 1855, saving that the suit for whose conduct the first item was charged, was begun in 1854. There was then no plea in the record under which this evidence could have been legally introduced, or been legally considered after the partnership of Fowler & Stillwell had been proved as we have stated. Yet the court, after sustaining a demurrer to the set-off, alleging Burke’s indebtedness to Fowler & Stillwell, rested its finding for the defendant on evidence which sustained that plea, and did not have any other foundation. This must have been the ground of the motion for a new trial, so far as the finding was unsupported by the evidence concerning the set off. But we think this evidence was well received, for the demurrer to the fourth plea, the last plea of set-off, should have been overruled as to the plea, because the plea was good, and should have extended back to the first count in the declaration and annulled it, as it was very faulty in setting forth no cause of action. And, though the court had overruled a demurrer to this count, and the defendant had pleaded to it, he had a right to have it considered and treated as bad, when the plaintiff demurred to his plea.

The proceeds of the services of Fowler & Stillwell, belonged equally to Stillwell, as executor of Fowler, and to Stillwell individually, that is in equity, though, at law, the death of Fowler cast the right of action for them upon Stillwell. If this suit had been brought before Fowler died, and against both Fowler and Stillwell, Stillwell could have set-off against the suit any several demand which he had against Burke. This is the principle of our statute of set-off, as expounded by Bietcío, O. J., in a dissenting opinion in Trammell vs. Howell, 4 Ark. 610, and which was adopted as the correct construction in Leach vs. Lambeth, 14 Ark. 668, overruling former decisions of this court, which held that a demand of one plaintiff against several defendants could not be set-off by a demand of oue of the defendants against the plaintiff. What Stillwell could do in the supposed case, he did by his plea in this case, and he had a right so to do. If Burke’s debt to Fowler & Stillwell, by the offer of Still-well, the surviving partner, could go against Fowler’s debt to Burke, his administration cannot complain, and the beneficent object of the statute to settle in one action several causes of action, is promoted. The finding of the court in allowing the evidence in support of the whole account of set-off, was right in itself, and was not a ground for a new trial, for although there was no plea of set-off on'which the evidence could rest, there would have been but for the ill-advised demurrer of the plaintiff to the fourth plea. A party must not drive a court from a legal conclusion, though it was attained by a departure from the law, and by a return thereto in a deviation from ill©gal premises. The whole account of set-off was properly allowed, it was all well proved.

The Circuit Court found against the plaintiff, as to her whole demand, though it consisted of one item, and was substantiated. by the memorandum of Fowler, before copied. This result must be attributed to the following writing introduced in evidence by the defendant, over the signature of Patrick G. Burke:

“ State oe ARKANSAS, County op Chioot.
' “ Enow all men by these presents, that I, Patrick G. Burke, have this day, nominated, constituted and appointed Henry Smith, of the county and' State aforesaid, my true and lawful attorney, in fact, and in my name, for his sole use, to collect and receipt for a certain claim in my favor, against Lycurgus L. Johnson, Nathan Boss and "William W. Collins, which is in suit in the Circuit Court of said county, or to compromise and settle the same in any manner he may think proper, and when the same is settled, to pay me one-half of the nett proceeds of said claim, and to employ any attorney or attorneys to prosecute the same to judgment, hereby ratifying and confirming all my said attorney’s acts in the premises, as though I were personally present. Witness my hand and seal this 26th day of December, A. D., 1854.
P. G. BTJBXE. [seal.]”

On consideration of this instrument, the court regarded Heni’y Smith as entitled to the half of the plaintiff’s demand that was not resisted by the set-off. Fowler did not recognize Smith’s claim in making the memorandum, nor did Stillwell in framing the account of set-off, each paper assuming Burke to be the creditor, and the debtor on account of his judgment against Johnson and Boss. Nor unless from the presumption attending the production of the instrument, is there any evidence that Fowler or Stillwell had any notice of its execution. There is no proof that Smith ever accepted it, that he or Burke ever acted under it, and the presumption from Fowler’s acts are strong to the contrary. As the matter was before the Circuit Court, we are sure it was not sufficient evidence. We think it was no evidence, even with Need’s corroborating testimony, to overcome or to resist the evidence of the plaintiff to the residue of her demand, after deduction of the set-off and interest. Upon another trial, these defects may be obviated, but we cannot allow the judgment to stand on the foundation of this writing, as it is brought to our notice.

The principle here settled, as the difference between the plaintiff’s demand and the set-off, will not be the subject of enquiry again. The fourth plea of Stillwell must be re-instated, and the first count of the declaration quashed on the plaintiff’s demurrer as mentioned.

Eowler received the drafts referred to in his memorandum as money, he promised to account for them on settlement as money, he must be presumed to have converted them into money before this suit was brought. In this, the case is unlike Peay vs. Ringo, 22 Ark. 70, as in that, Eingo & Trapnall did not receive Notrebe’s note as money. We think the action for money had and received is sustainable on the evidence of the memorandum.


text:
    M., O. & R. R. R. R. Co. vs. Mayor, etc. of Camden.
    The subscription of a municipal corporation to the capital stock of a railroad company, unless authorized by legislative authority, is not valid and binding on the corporation.

      Appeal from Ouachita Circmt Court.

    Hon. Len B. GreeN, Circuit Judge.
    Garlaghee, and Knight, for the appellant.
    On the main question — the question of authority in the city by virtue of her general powers under her charter as a municipal corporation — it is stated, in Pierce on Am. P. B. Law, y». 108, that by virtue of their ordinary powers, and without special legislative authority, the competency of municipal corporations to contribute to such enterprises as those in which the plaintiffs were engaged, cannot be sustained; but he adds, that this question has not as yet been the subject of judicial examination; and he further adds, in note 8, but in Talbot vs. Pent, 9 B. Mon. 537, it is said that a city might contribute its surplus funds — such subscriptions being within the local purposes of a municipal corporation, as tending to promote its prosperity. But that question is not legitimately raised in this case : the declaration sets forth a good cause of action on demurrer; and the defence relied upon ought to be interposed by plea.
    Fajbrelly & FiNLEY, for appellees.
    A corporation does not possess the incidental privilege or power to subscribe for stock in another corporation, and such subscription is illegal and void, unless authorized by the charter, or other special legislative enactment. See Dartmouth College vs. Woodard, 4 Wheat. 626; Mead & Armory vs. Providence Insurance Co., 1 Curtis', 2 Cra/nch, 127; 15 John. Rep., 358.
   Mr. Justice Fairchild

delivered the opinion of the court.

The defendants, the mayor and aldermen of the city of Camden, are charged in the declaration, preferred by the Mississippi, Ouachita and Bed Biver Bailroad Company, with having subscribed two hundred shares, of one hundred dollars each, to the capital stock of the company, by virtue of which they became liable to pay calls or installments on their subscription ; that the’ company, pursuant to tbeir charter, and to ordinances and conditions of the subscription, have made various calls for payment upon stock subscriptions ; that the installments and interest due from the defendants on the calls made upon their subscription amounted, on the first of February, 1858, to eighteen thousand, four hundred and twenty-seven dollars, which the defendants had failed to pay. This suit, an action of assumpsit, is brought to enforce the payment oí this sum. The case is brought here by the railroad company, to obtain a reversal of the judgment oí the Circuit Court that sustained the demurrer by which the declaration was met, in which demurrer various defects of pleading are urged; but we shall confine our opinion to two of the specified causes ot demurrer, one alleging that the subscription of stock was unauthorized by the charter of Camden, and the other, that the subscription is illegal and void. And passing by the form of the first objection, which seems rather to interpose a fact in bar of the suit, than to assign the want of alleging the íact as a fault in the declaration, we shall consider the two specifications as raising the proposition, that the stock subscription of Camden to the Mississippi, Ouachita and Bed Biver Bail-road Company is illegal, because the municipal corporation had no power to make such subscription.

And this is a conclusion that results from the character of a corporation,

A corporation “ having been created for a specific purpose, not only can make no contract iorbidden by its charter, which is, as it were, the law of its nature, but in general can make no contract which is not necessary, either directly or indirectly, to enable it to answer that purpose.” Angell & Ames on Corporations., sec. 256. “ A corporation must act within the limits of its delegated authority, and cannot go beyond it.” Mary or of Baltimore vs. Hughes, 1 Gill & John. 495. “ In the State of Tennessee, a corporation is the creature of the legislative department of the government; it exists solely and alone by virtue of its act of incorporation, and it can exercise no powers but such as are expressly granted to it, and such as are the result of necessary and proper implication.” Nichol vs. Mayor of Nashville, 9 Humph. 261. Also, Memphis and St. Francis Plank Road Company vs. Peeves, 21 Ark., 305.

We have looked attentively through the charter of Camden, and the amendatory acts, and can find nothing, and have been referred to no act that authorizes such a contract as the alleged subscription of stock by the mayor of Camden. The second section of the charter of the plaintiff contains no such authority. For although it declares the company to “ be composed of such persons, corporations, states, counties and cities as may subscribe to stock in said company, and comply ” with the provisions of the charter and regulations adopted under it, no authority is thereby given to cities to make other contracts than they could make without the charter. We therefore adopt the language which the Supreme Court of Alabama used in a case much stronger against the city council of Montgomery, than this one is against the corporate on of Camden: “ Looking into the charter of the city of Montgomery, and its amendment, we find no express authority to enter into the contract declared; neither is the exercise of such power necessary to carry into effect any of the expressly granted powers; nor was the exercise of the power under consideration a necessary means of effecting the purpose for which this corporation was created.” City Council of Montgomery vs. Montgomery and Wetumpka Plank Road Co., 31 Ala. 83. The law restricting the power of corporations is of such an elementary character, and so generally understood that this is the first case of which we are informed, where such a contract as the one charged in this case has been the subject of decision in an appellate court. A writer under the date of August, 1857, affirms that no such case has been the subject of judicial examination, and we have not been able to find any since reported. The same writer, treating of the validity of subscriptions to railroad stock by cities and municipal corporations generally, says that “Their competency, by virtue of their ordinary powers, and without special legislative authority to contribute to such enterprises, cannot be sustained.” Pierce on Am. Railroad Law, 168.

On the other hand, it has been strongly contested that such subscriptions cannot be authorized or confirmed by legislative authority and sanction. The affirmative of this has been fully established, by a series of able decisions, but in Godden vs. Crump, 8 Leigh, 150; Slack vs. Maysville & Lexington Railroad Company, 13 B. M., 39; Shurpless vs. Mayor of Philadelphia, 21 Penn. State Rep. 188; Moses vs. Reading, ib. 203, which we have examined, there were dissenting opinions, and the same is reported of Griffith vs. Ohio & Lnd. R. R. Co., 20 Ohio 622; which we have not seen. 2 Am. Railroad Cases,64. Great efforts have been obliged to be made to uphold subscriptions of cities to the capital stock of railroads, even when. authorized or ratified by legislative authority, and that in many instances supported by a popular vote; but the parties to this suit seem to be the first to have made a contest upon unauthorized subscriptions of this sort.

We affirm the judgment of the Circuit Court in sustaining the demurrer.