author: Mr. Justice Faihchild

text:
    Walker et al. vs. Towns, ex.
    If a vendee of real estate resist the payment of the purchase money upon defects of title in the vendor, he must, by allegation and proof, make and sustain specific charges, showing exactly where the deficiency is, who claims title to the laud, and that the claim is good — a general allegation that the vendor had no title being insufficient.
    Twenty-five years adverse possession of land, without any showing why the statute of limitation does not run, is enough to infer a good title, though it rested only on possession.
    If, at the time of the purchase, a vendee has knowledge of a defect of title, he cannot set up such defect to resist the payment of the purchase money.

      Appeal from Hempstead Circuit Cotu t in Chancery.

    Hon. Len B. Green, Circuit Judge.

      Gallagher and Knight, for the appellants.
    On the application of the vendor, equity will npt compel the purchaser to take a doubtful title:»and, under this contract, Walker had no right to expect that an unencumbered estate in fee simple would be conveyed to him: and there is nothing shown which places him in position to have forced upon him an unsound title for a sound price, or to oblige him to be satisfied with the possession of the land-alone, without title, and to accept, in place of a conveyance of the land, the mere naked warranty of an executor of the vendor, or even of the vendor himself. 5 Ves., jr., 186,189, 784; 16 Ves., jr., 272, and cases cited; 3 Munf. 317; 5 Paige 306. And even if the titles are protected by the statute of limitations, Walker, under the contract with Boyd, would not be obliged to receive such titles. Sug. on Vend. 237.
    The vendor here had contracted to give the vendee a perfect title — the possession, the right of possession, and the right of property, all of which are necessary to a complete title (2 Hill on R. P. 177); but was only able to give the possession, the title remaining in the first purchasers from the government.
    Hempstead, for the appellee.
    When the payment of the purchase money is resisted on the ground of a defect in the title, the nature of that defect must be shown, clearly and circumstantially, so that the court may see whether it is a substantial defect or not. A defendant cannot, by simply declaring that the vendor cannot make title, put upon him the onus of producing or establishing the title. If the vendee objects and would have relief on that score, he must make not a general, but a specific objection, so as to authorize the court to pronounce and decide upon it. McGehee vs. Jones, 10 Geo. 127. The doctrine on this subject is correctly stated in Grantland vs. Wright, 5 Munf. 295, where it was held that a vendee in possession of land, is not entitled to relief against a judgment for the purchase money, nor can resist its payment on the ground that the vendor’s title is not ■shown to be good. The burden, said the court, is upon the vendee to prove it bad. 3 A. K. Marsh. 334. And he must show an actual, outstanding superior title in a third person. Key ton vs. Brawford, 5 Leigh 39.
    The principle is now established, beyond question or doubt, that where there was no fraud in the contract, and where the purchaser remains in possession, he can neither prevent the recovery of the purchase money, nor enjoin its collection, nor indeed have any relief in equity whatever, on the ground of defect of title. .He cannot have relief from his contract to pay on the mere ground of defect of title without a previous eviction, dr its legal equivalent. 1 J. G. R. 213; 2 J. C. R. 521; Rawle on Cov. 519; 16 Ark. 290; 6 Mar. La. Rep. 223; 11 $. 4' M. 129; 4 Texas 431; 31 Miss. Rep. 307.
   Mr. Justice Faihchild

delivered the opinion of the Court.

Francis W. Boyd sold to Walker his farm, in Hempstead county, with the farming utensils, stock, and twenty-one slaves, for which Walker was to pay fifteen thousand dollars, in five annual installments, the last of which became due the 7th of April, 1848, and was witnessed by a bond for the payment of three thousand dollars, with six per cent, interest from its date, the 7th of April, 1843. Boyd gave a bond for title to the lands, by which he was to make “ a full and warrantee deed in fee simple” to the lands “ on the completion of the payment” of the fifteen thousand dollars. To secure the payment of the same, Walker also mortgaged to Boyd the slaves he bought from him. All the bonds — -each one representing an annual installment of three thousand dollars — but the last, were paid, and upon that two thousand dollars were paid on the 20th of June, 1850. But the residue of it remaining unpaid, on the 20th of April, 1859, the appellee, as the executor of the will of Boyd, began this suit, which is a bill to enforce the mortgage upon the slaves to the extent of the sum due. The will of Boyd was set forth by copy with the bill, by which the appellee claimed that he had authority to make such deed as Boyd, in his bond for title. agreed to make, and with the bill as amended, the appellee tendered a deed.

The only defense made to the bill is that Boyd had no legal title to three hundred and sixty acres of,the land sold to Walker; and that in his lifetime it was notin his power to perform the covenant contained in his title bond, and that the appellee cannot do so, the inability still existing.

Waiving all questions upon the defense being made in the answer to the bill, and upon the effect of the replication to the answer, and considering the subject as if presented by a bill to restrain the collection of the purchase money, as was the case in Worthington vs. Curd, 22 Ark., or as in Bolton vs. Branch, 22 Ark., which was a case in which a bond for title had been given, and the vendor filed a bill to subject the land to the payment of the purchase money, and the vendee, bj' cross-bill, asked for an injunction against various proceedings of the vendor intended to pursue his legal and equitable remedies, it may be repeated, as was ruled in those cases, that if a vendee resist the payment of the purchase money upon defects of title in the vendor, he must, by allegation and proof, make and sustain specific charges, showing where the deficiency is, and upon what it rests; who makes claim of title to the land sold, and that the claim is good. In this case-there is no allegation of any claim, no reason is given for the general charge contained in the answer that Boyd had no title, and could make no good conveyance to Walker of a part of the lands included in the sale. And there is no proof on the part of Walker to sustain his answer. The evidence of the appellee is not of the highest grade; it is that Hopson owned the land in 1833 or 1834, or some part of it, on which the substantial improvements of the place now are; that Abram Stewart and Andrew Caldwell each owned some of the lands making up.the Boyd place; but in general terms it is stated that Hopson owned the place, and sold it to Scroggins, he to Boyd; that Boyd transferred it to Pearsall and Trotter, and took it back from them, and then sold it to Walker in 1843. The general course of transfer of lands and of business in their sale, is to give written assurance, or conveyance thereof, and when in the circuit court such evidence as we Lave detailed has been given to show title, no objection to its admissibility or effect can be entertained in this court Two hundred and forty acres of the land, whose title in Boyd is impeached, were confirmed to Stewart in 1828,under a Spanish grant; eighty acres were entered by Andrew Caldwell in 1833 and in 1835, and as to these lands there is no room for inference that their heirs or representatives, other than Boyd, can make any claim to the lands. Twenty-five years adverse possession, without any showing that Stewart left any minor children, and with proof that the youngest of Caldwell’s children was thirty years old, are enough from which to infer a good title, though it rested only on possession. Hopson entered forty acres of the land in 1833, and out of the twelve or thirteen children he left behind, about half of them were minors in 1859. That forty acres might be considered as Boyd’s under the slight evidence given of the title passing from Hopson by the sale, if such conclusion were necessary, but it is not, as the burden of proof was upon Walker to show that the land belonged to Hopson’s heirs, and to do it upon proper allegation. Upon this subject we refer to Bolton vs. Branch, before mentioned, and to the authorities therein cited; and to the cases of Coleman vs. Rowe, 5 How. (Miss.) 469; and Abbott vs. Allen, 2 Johns. Ch. 525.

There is nothing here to induce us to believe that the alleged defects of title were not known to Walker when he took the title bond, as well as when he .set up his defence in his answer. This wmuld bring the case within the principle of Worthington vs. Curd, 22 Ark., where the authorities are cited upon this point. This principle is applied in Greer vs. Finucare, 5 How. (Miss.) 546, to a vendee holding under a bond for title.

It will be seen that we do not treat this case as one of specific performance, as put for Walker; nor do we find it necessary to^decjde, the points raised by the appellee, that the con- ' veyance and payment of the purchase money were not mutual acts and dependant upon one another, by reason of the words of the title bond, or of the payments being made in installments. We have examined the authorities upon the latter point, but reserve a decision thereon until it shall become necessary.

The decree of the circuit court, sitting in chancery, sustaining the bill is affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Moore vs. Estes.
    Although an account sued upon may be inartistically made out, it is sufficient if the defendant understand the nature of the demand, and is not mislead in preparing his defence.
    It appearing, during the progress of the trial, that the plaintiff, in whose name the cause was progressing, as administratrix of her deceased husband, had married, it was the correct practice to discharge the jury and continue the cause that an administrator de bonis non should bo appointed and substituted as plaintiff.
    The substitution of an administrator as party to a suit ought to be by order of court, on production of his letters; but where the cause has progressed in his name as such to final judgment, without objection, the want of such formal order is no ground of reversal.

      Appeal from Fulton Circuit Court.

    Hon. William C. Bevews, Circuit Judge.
    Byers & Cox, Stillwell & Woodruff, for plaintiff.
    The court erred in discharging the jury after tlie trial had commenced. The defendant had a right to a verdict on his plea of ne unques administrator, under which it might well have been shown that the plaintiff’s letters had been revoked. 1 Saund. PI. 1130. The plaintiff might have entered anon-suit, but it was an abuse of discretion for the court to discharge the jury without the consent of the defendant after the plaintiff had introduced testimony. During the progress of a trial a juror can be withdrawn only by consent. 2 Tidd’s Pr. 785; 1 Arch. Pr. 195.
    Under the statute (Dig., sec. 7,p. 92,) the administrator can become a party only by an order of court substituting him as such. In this case there is no record entry suggesting the death of the original plaintiff, or showing the appearance of the administrator.
    The account sued upon is, in effect, for the use and set-vices of horses, etc., and no evidence whatever was introduced to suppoit such an account.
   Mr. Chief Justice English

delivered the opinion of the court.

Jacob W. Clark sued George W. Moore before a justice of the peace, upon an account, obtained judgment, and Moore appealed to the circuit court of Fulton county.

Clark died, his wife, Sarah, administered upon his estate, and the cause progressed in her name.

At the May term, 1859, the case was submitted to a jnry, the defendant’s attorney notified the plaintiff’s attorney that he would rely on the plea of ne nnques administrator upon the trial. A witness was introduced by the plaintiff, who, after testifying in relation to the demand in controversy, stated that Mrs. Clark had recently intermarried with Archibald Estes, and that no one had been appointed administrator of her former husband in her stead. Whereupon, on motion of the plaintiff’s attorney, the court permitted a juror to be withdrawn, and continued the case in order that an administrator de bonis non might be appointed and substituted as plaintiff.

At the November term following, Archibald Estes having in the mean time been appointed administrator de bonis non of Clark’s estate, appeared and prosecuted the case, and by consent of parties it was submitted to a jury, and verdict and judgment in his favor, as such administrator, for $81.

The defendant moved for a new trial, which was refused, and he excepted and appealed.

1. It is insisted for appellant that the account sued on was for horse hirej and that there was a total want of evidence to sustain it.

The account was evidently made out by an illiterate person, and very inartistically drawn. It is as follow's:

“ April 2d, 1857.
George W. Moore Dr.
In account with Jacob W. Clark,
To the use and sarvis of 2 Horses and wagon and Horses from the 2. day of April to — till the first of October in said year to Haul on my farm and to go to mill, and to go to Bates-ville, Haul Lumber, wood and do what riding I might want to do, for what I have paid to said George W. Moore for the work and use of said team, sum of eighty dolíais, for which I claim judgment for the sum of eighty dollars, and damages to the amount of twenty dollars for onperformants of contract, damages at the discression of said court.
JACOB CLARK.”

It was proven on the trial that in the spring of the year 1857, Clark purchased of Moore a tract of land, for which he gave him $400 in money, and a wagon and two horses; and Moore was to let him have the use and services of the wagon and horses from the 1st of April to the 1st of October, of the same year. At the time of the trade the wagon and horses were delivered to Moore, and afterwards Clark made a demand upon him for them, and he refused to let him have them. The services of the wagon and horses from the 1st of April to the 1st of October, 1857, were worth between $80 and $100.

It is manifest that the account sued on was not made out for horse hire merely, but for the value of the use and services of the wagon and horses, for which Clark had contracted in the sale of the land to Moore, and of which he had been deprived, in violation of the contract. His right to recover was very well made out on the trial, and the objection to the account goes to its form rather than its substance. No doubt but Moore understood the nature of the demand, on seeing the account, and was not misled in preparing his defence.

2. It is assigned as a ground for a new trial, that the court erred in permitting a juror to be withdrawn, and the case continued, etc., at the May term, 1859.

To say nothing of the novelty of making an alleged irregularity, which occurred at a term of the court previous to that at which the trial was had, ground of the motion for a new trial, there was no error in the action of the court in the matter complained of.

Upon the trial it was made to appear that Mrs. Clark, in whose name the cause was progressing as administratrix of her deceased husband, the original plaintiff, had recently intermarried* with Estes, and thereby ceased to be administratrix; whereupon, the court discharged the jury, and continued the cause, in order that an administrator de bonis non might be appointed, and substituted as plaintiff. It would have been irregular for the court to permit the trial to progress after it was made to appear that there was no one legally representing the estate of the deceased plaintiff. No judgment could properly have been given for or against the estate.

3. It is objected that there was no order of court substituting Estes as plaintiff.

It appears that after taking out letters of administration de bonis non, upon the estate of Clark, he appeared, at the term following, to prosecute the suit, it was entitled upon the record in his name, submitted to a jury, by consent of parties, admitted upon the trial that he was administrator de bonis non of Clark, and there was a judgment in his favor, as such, for the sum found by the jury to be due his estate.

Regularly, Estes should have produced his letters before the trial, and been substituted as plaintiff, by an order of court, (Gould's Dig. ch. 1, sec. — ) But we think the want of such formal order is no ground of reversal, after trial without objection, and judgment, etc., in his name as administrator, etc., as above stated.

The judgment must be affirmed.

Absent Mr. Justice Fairchild.


text:
    The State vs. Rhoda.
    Cases may occur in which a crime may be committed on the boundary line between two counties; and it would be a narrow construction of the bill of rights, in relation to venue, to hold that the offender would not be subject to indictment at all.
    Whore the boundary line between two counties has been surveyed and ma\ked, and the proof in a criminal prosecution fails to establish in which county the offence was committed, no question is presented upon the provision of the statute in reference to uncertainty of boundaries: and the venue as charged; not been proven, no cause is shown for granting the state a new trial.

      Appeal from Johnson Circuit Court.

    Hon. J. M. WilsoN, Circuit Judge.
    Hollowell, attorney general for the state.
   Mr. Chief Justice English

delivered the opinion of the court.

Rhoda, and others, were indicted in the Circuit Court of Johnson county, for gaming. On the trial of Rhoda, Frazier, a witness for the state, testified that on the day charged in the indictment, he, Rhoda, and others, being together in Johnson county, went up to the head waters of Shoal creek, and under the mountain there, in the woods, played pocre for money, etc. That the place where they played cards was right about where the line runs, dividing the counties of Yell and Johnson. Witness had never helped survey the line, but that was where it was reputed to run — where he understood from the citizens it run. That he was not certain whether the place where the parties played cards was in Johnson or in Yell county. He believed it uncertain in which county it was.

A. M. Ward, witness for defence, stated that he helped to survey the line between the counties of Yell and Johnson. That the line commenced at the mouth of Big Piney, and run due south until it struck the main divide between Shoal creek and Schiksilie, and thence in a westerly direction, with said main divide, to the county line of Franklin county. His impression was that all the waters of Shoal creek were in Johnson county, but he was not certain of that fact. The first named line may have run across below some of the head waters of shoal creek.

The attorney for the state asked the court to charge the jury:

“ 1st. That if they believe from the evidence that defendant played a game of pocre at cards, and bet money on the game, etc., etc., and that said playing and betting were done and committed on the boundaries of the counties of Johnson and Yell, they should find the defendant guilty.
“ 2. That if the jury believed from the evidence that the defendant bet money on a game of pocre, which game was played at cards, etc., etc., and that it is uncertain where the boundary line between the counties of Johnson and Yell is, and if from the evidence, and from that cause, it is uncertain in which county the playing and betting were done, if done at all, they should find the defendant guilty.

Which instructions the*court refused; but' instructed the jury:

“ That the state was bound to prove that the defendant be money upon a game of pocre, played at cards in Johnson county,” etc.

The jury found the defendant not guilty, a new trial was refused the state, and she excepted and appealed.

In criminal prosecutions by indictment or presentment, the accused has a right to a speedy public trial by an impartial jury of the county or district in which the crime shall have been committed. Bill of Rights, sec. 11.

The statute provides that “ when any offence may be committed on the boundary of two counties, etc., the indictment may be found, and trial and conviction thereon had, in either of such counties. Gould’s Dig. ch. 52, sec. 109.

Oases may occur in which the crime may be committed on the boundary line between two counties; for example, the card players, in this casej might have placed themselves on the line, if they had thought proper, and engaged in playing and betting there. In such cases it would certainly be a narrow construction of the provision of the bill of rights, in relation to venue, to hold that the offender would not be subject to indictment at all.

The court below refused the first instruction, on the ground perhaps that it was not warranted by the evidence.

The second instruction was, perhaps, refused for the same reason.

The statute also provides that “if it is uncertain where the boundary is, the indictment may be . found, etc., in either county.” Ib.

Here there seems to have been no uncertainty as to where the boundary line between the counties of Johnson and Yell was, because it had been surveyed, and as it must be supposed, marked. (Gould’s Dig. ch. 43.) But the uncertainty was as to the place where the offence was committed — whether it was on the one side or the other of the line. It seems that the parties retired to a place on the head waters of Shoal creek, in the woods, under a mountain, and there engaged in gaming. The only witness who was present,' could not, or did not state, whether it was on the one or the other side of the line. He did not help run the line, and only knew from reputation where it was. The place where the gaming occurred, was right about where he had understood the line run, but was not certain on which side of the line it was.

The line being designated by law, and hawing been surveyed and marked, the case did not fall, we think, within the mischief intended to be remedied by the statute.

The indictment charged that the offence was committed in Johnson county, and the venue not having been clearly proven as alleged, we shall not reverse the judgment of the Circuit Court refusing the state a new trial.

Affirmed.


text:
    Thompson vs. Patterson et al.
    The appellant haying been made a witness, and the jury, who héárd hís statement having rendered a verdict against him, and the presiding judge who had an opportunity of observing his manner of testifying, having refused to set aside the verdict, this court being nnable to say that there was a total want of evidence to sustain the verdict, affirms thejudgment.

      Appeal from Van Burén Circuit Court.

    Hon. William C. Sevens, Circuit Judge.
    JORDAN, for the appellant, contended that the appellant was merely an agent, and not personally responsible.
   Mr. Chief Justice English

delivered the opinion of the Court.

Patterson & Bradley sued Thompson before a justice of the peace of Van Suren county, for $20, given by them to him in exchange for a counterfeit bill of the Canal Bank of New Orleans. They obtained judgment against him, and he appealed to the circuit court, where the cause was tried anew by a jury, the verdict and judgment- were again in their favor, a new trial refused, and he appealed to this court.

The court gave an instruction to the jury of its own motion, and also an instruction moved by appellant, but it is not complained that either of them was erroneous.

We are asked to review the evidence upon which the cause was tried, and it is insisted that the verdict is totally unsustained.

Thompson, the appellant, was introduced as a witness, and with the exception of proof that the bill was counterfeit, and was tendered back to him before suit, the case was tried entirely upon his own statement.

His statement follows:

“ Some time prior to the institution of this suit, there was a stranger at my house, who had horses for sale. He asked me to change a twenty dollar bill, which I refused to do. At this time he had bought fifty cents worth of something of me, and paid me for it — did not want to change bill to pay me. He requested me to get the bill changed for him — I took it and went to Mr. Barbee’s store, and he refused to give gold and silver for the bill. I next went to Purvatt’s and he did not want to change the bill. Í disclosed to each of them that it -was not my money, but belonged to the horse drover. I then returned the bill to the drover, and he asked me if I had tried at every place in town, to get the bill changed. I told him that I had not. He then requested me to go and try again, which I consented to do. 1 then went to James H. Patterson, who is engaged in business with John Bradley, and showed him the bill, and told him that it belonged to the stranger at my house, and that he was desirous to have it changed — Patterson said he was indebted in the city of New Orleans, and wanted the bill on that account, it being a bill on Canal Bank of said city, and would give the change for the bill, but his money was at his house, and that he had not time to get it. I then told him that if he wanted the bill I would hand the money to the man myself, and proposed leaving the bill with Patterson at that time. He told me to take the bill along, which I did. I went back to the drover, and handed him in exchange for the bill, twenty dollars in change, [here the bill was presented to appellant, and identified]. The day after I saw Patterson about changing the bill, I took the bill to him, and handed it to him, andhe then handed me twenty dollars. After the bill was brought, or sent back here, and after Patterson had tendered me the bill, I bought some drugs from a French doctor, and I went to Patterson to get the bill to pay for them. I asked Patterson if it would be proper to pass it — Patterson said I could pass it if I liked, but that he would not pass it for the State — I then declined to take the bill back.”

On cross examination by his counsel, he stated as follows:

“ I did not consider that I ever owned the bill. There was nothing said at the time I handed the bill to Patterson, and he gave me my twenty dollars, about the changing of the bill. I handed it to him in accordance with the conversation the day previous. Patterson is considered the best judge of paper money in the community, and the bill which I took for the drover, to get changed, he pronounced a good bill. I told Patterson that the bill did not belong to me, that it belonged to the drover. What I did, I did merely as a matter of accommodation to Patterson and the drover. Patterson said tbe bill would suit him to pay a debt in New Orleans as well as gold,' and he wanted it for that purpose.”

What impression the appellant made upon the minds of the jurors by the manner in which he testified, we do not know, nor can we tell what .portion of his statement ’they believed, and what portion they discredited, if any.

It seems that after the bill had been tendered back to him, and he was informed that it was spurious, he was disposed to put it upon the French doctor for his drugs, and went to Patterson to get it for that purpose, but when Patterson indicated to him that this would not be right, he declined to take back the bill. What impression this portion of his evidence made upon the jury, and whether it tended, in their judgment, to discredit any other portion of his statement, we have no means of determining.

When he first took the bill to Patterson, he expressed a willingness to change it, in the belief, of course, that it was genuine. Let it be supposed that when appellant took the bill to him on the next day, he had discovered it to be spurious, would he have been legally bound to take it off appellant’s hands, and pay him twenty dollars in good money for it? We doubt if he would, for appellant does not positively state that Patterson requested him to advance the money to the drover for him, and agreed to take the bill, and repay him.

A jury of his neighbors, who heard his entire statement, rendered a verdict against him. The presiding judge, who had an opportunity of observing his manner of testifying, refused to set the verdict aside; and we cannot undertake to say that there was a total want of evidence to sustain the verdict; or, that another trial, if awarded, would result more favorably to him.

The judgment must be affirmed.


text:
    Ashby et al. vs. Johnston et al.
    The failure of the obligee-in a bond to probate the claim against the estate of the deceased obligor, whereby the claim is barred by the statute of non-claim, does not discharge the sureties in the bond.

      Appeal from Claik Circuit Court.

    Hon. Len B. Green, Circuit Judge.
    Garland & Randolph, for the appellants.
    We insist that the plea was good, and that the demurrer to it should have been overruled, and we base ourselves upon two plain propositions of law: first, that by reason of the facts stated in the plea the estate of Johnston was forever discharged from'liability to the appellees on account of the cause of action stated in the declaration. Sec 99, ch. 4, Gould’s Dig.; Walker as ad. vs. Byers, 14 Ark. 246; Bennett et al. vs. Dawson, 15 Ark. 412; and secondly, that a discharge of Johnston’s estate was a discharge of the appellees also. State Bank vs. Fowler et al., 21 Ark. —; Rathbone vs. V/arren, 10 Johns. R. 587.
    Flanagin, for appellees.
    The mere delay to sue the principal, however long, does not, under the general statute of limitations discharge the surety. 23 Miss. R. 125; 5 Cal. R. 173; 3 Cows. 446; 4 Eng. 185; nor though the principal become insolvent, 14 Miss. 473; nor though the principal die, and the claim, for want of prosecution against his estate, become barred. 8 Ala. 948; 4 Sm.. <§• M. 165; 7 lb. 487.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was an action on a guardian’s bond.

The suit was brought by Albert G. and George W. Johnston, (survivors of Philip PI. Johnston, deceased), for whose benefit the bond was executed, whilst they were minors, against John W. Ashby and Thomas A. Heard, the. sureties in the bond, the principal, (Albert G. Johnston), and guardian of the plaintiffs, having departed this life before suit.

The defendants interposed a plea in bar, alleging, in substance, that after the accrual of the cause of action, the principal in the bond died, leaving a will, and his executors declining to qualify, letters of administration, with the will annexed, were granted by the probate court to one Singleton; and that the plaintiffs did not, at any time within two years after grant of letters, present their demand, properly authenticated, to the administrator for allowance, etc., whereby the demand against the estate was barred, and the defendants discharged.

A demurrer was.sustained to the plea, the defendants rested, final judgment was given against them, an inquest of damages, and they appealed.

The appellants insist that the cause of action upon the bond against the principal being barred by the statute of non-claim, by reason of the failure of the plaintiffs to probate the claim against his estate, within the'time prescribed by the statute they, as sureties in the bond, are also discharged; and they rely on the case of State Bank vs. Fowler et al., ante,.

But the case cited does not sustain the defence set u.p in the plea. There, on scire facias to revive a judgment, Fowler, the principal, was discharged, on plea of payment, and the Bank afterwards undertook to open the judgment, by bill in chancery, on the ground that the plea was false, and failing as to Fowler, and the judgment remaining in force as to him, this court held that Pike, the surety, was also discharged; that when the principal is discharged on a plea not personal to himself, as upon a plea of payment, etc., the surety was also discharged, because, if be paid the debt, he had no remedy over against the principal.

But it is well settled that where, from mere ©mission of the obligee to probate the claim in time, the cause of action is barred against the estate of the principal, in the hands of his executor or administrator, by the statute of non-claim, this of itself, does not discharge the sureties in the bond, the statute being, in its nature, but a statute of limitation. See Johnson vs. Planters Bank, 4 Sm. & M. 171; Cohen et al. vs. Com. of S. F. 7 lb. 441; Marshall vs. Hudson, 9 Yerg. 63; McBroom et al. vs. The Governor, 6 Porter 33; Cawthorn vs. Weisinger, 6 Ala. 716.

The appellants might have paid the demand, and caused the claim to be allowed against the estate of the principal in their favor, or they might have compelled the appellees to probate the claim, within the time prescribed by the statute. Ib.

Tt has been held that where sureties are compelled to pay the debt for the principal after the administration upon his estate has been closed, they have the right to subject'his estate in the hands of his legatees or distributees to the satisfaction of the amount paid by them. But this question is not before us now.

The judgment must be affirmed.


text:
    Brearly, ad. vs. Norris.
    Gross frauds might be practiced upon an estate, and it is against the policy of the statute to allow a person, especially a stranger, to pay unautbenlicated claims against the estate, and make out an account for the money so paid, and procure its allowance, against the objection of the administrator, bj the testimony of the original claimant; but where this was done.by the widow of the deceased — there being then no administration — and there is reason to believe she aciod in good faith, and 'that the claims were^ust, no injustice could have been done the estate.

      Appeal from Pope Circuit Court.

    Hon. John J. Clendenin, Circuit Judge.
    Hollwell, for the appellant.
    The allowance of the account in this case for the several claims paid by the appellee, on the testimony of the original claimant, was not only in violation of the well settled rules of evidence, but also in face of the letter of the statute. Gould's Dig., secs. 102, 103, chap.'4; i Greenl. Ev., sec. 326, p. 440; 1 Gilb. Ev., 223, 224.
    This court has invariably held a strict compliance with the statute in all proceedings for the collection of claims against the estates of deceased persons, must in all cases be adhered to. Laffcrty ad. vs. Lafferty, 5 Eng. 268;. Beirne vs. Imboden, 14 Ark. 237; 15 Ark. 419.
   Mr. Chief Justice English

delivered the'opinion of the Court.

Samuel Norris died intestate in Pope county, sometime in the year 1856, leaving his wife, Susan Norris, surviving him.

After the death of her husband, Mrs. Norris paid several claims against his estate, amounting in the aggregate to $104 85.

Afterwards, in the year 1857, Brearly took out letters of administration upon the estate, and Mrs. Norris made out an account for the claims paid by her, presented it to the administrator, duly authenticated by her affidavit, for allowance, and he rejected it. On application to the Probate Court, the amount above stated was allowed and classed against the estate, in her favor, and the administrator, who contested the claim, excepted and appealed to the Circuit Court, where, upon inspection of the record, the judgment of the Probate Court was affirmed) and the administrator appealed to this court.

On the trial in the Probate Court, the persons to whom Mrs. Norris had paid the claims were introduced as witnesses, and each one of them testified that Norris was indebted to him, at the time of his death, in the sum stated in Mrs. Norris’ account, and that she paid the debt after the death of her husband.

The administrator did not think proper to interrogate the witnesses as to the character of their claims, how they were evidenced, or in what manner they were authenticated when Mrs. Norris paid them.

There is no indication in the record that the claims paid by Mrs. Norris were not just, or that she acted otherwise than in good faith in paying them. a

It is probable that Mrs. Norris intended paying the debts of her husband, and taking care of his estate, without the expense of administration, an economical policy favored by sec. 5, chap. 4, Gould's Dig., and that she paid the debts in question in pursuance of such intention, but that afterwards, for some cause not disclosed in the record, letters of administration were taken out by Brearly.

The probate judge, who tried the case, and allowed her claim, doubtless knew more of the matter than is disclosed in the record before us.

It is true, as insisted by the counsel for appellant, that the statute contemplates that claims against estates must be authenticated by the affidavits of claimants, and that it would be a departure from the policy of the statute to allow a person, especially a stranger, to pay unauthenticated claims against an estate, and then make out an account for the amount so paid, and procure the allowance of it, against the objection of the administrator, by the testimony of the original claimants. Gross frauds might be perpetrated upon estates in that way.

But here there could have been no motive on the part of Mrs. Norris to defraud the estate of her deceased husband, and there is every reason to believe that she acted in good faith in paying the claims, and that they were just. Surély, if there had been anything wrong about the matter, the administrator could have drawn from the witnesses some evidence of the fact, by interrogating them upon the trial, before the probate judge, as to the character of their claims, and the circumstances under which they were paid by Mrs. Norris, but it seems that he did 'not think proper to do so, but contented himself by objecting generally to their testimony.

We find nothing in the record to induce the conclusion that the probate judge erred, or did injustice to the estate in allowing the claim of Mrs. Norris, and concur with the circuit judge in affirming the judgment.

Absent, Mr. Justice Fairchild.


text:
    Brearly ad. vs. Norris.
    The language of the statute (15th sec. ch. 106 Gould’s Dig.) making ten years the period of limitation on judgments and decrees', is comprehensive, and embraces all judgments and decrees without discrimination or exception; and the statute may be pleaded to a judgment or decree as well on a proceeding in the probate court for allowance as in ordinary suits at law.
    The assignment of a judgment or decree does not vest in the assignee the legal ■title; but the assignee does acquire the equitable title, with the right to control its collection, and there is no substantial reason why it may not be allowed as a claim in favor of the assignee, against the estate of a deceased judgment debtor, if not barred at the time of his death.

      Appeal from Pope Circuit Court.

    Hon. John J. Clendenin, Circuit Judge.
    Hoi.lowell for the appellant.
   Mr. Chief Justice English

delivered the opinion of the court.

On the 18th March, 1846, the Trustees of the Real Estate Bank obtained a judgment on a note in the Pope Circuit Court, against Andrew Scótt and Samuel Norris, for $ 1,000 debt, and $404 16 damages.

On the 24th of March, 1856, Norris died, and afterwards letters of administration upon his estate were granted to Joseph H. Brearly by the Probate Court of Pope county.

At the June term, 1857, of the Chancery Court of Pulaski county, a communication from A. W. Lyon was laid before the chancellor, proposing to convey a tract of land to the receiver of the assets of the. bank, in consideration that the receiver would transfer the judgment to Susan Norris, widow of Samuel Norris, deceased; and the chancellor made an order directing the receiver to accept the proposition of Lyon, and to assign the judgment to Mrs. Norris, upon his executing a good and sufficient deed for the land, with general covenants of warranty, etc. In pursuance of the order, the receiver made an assignment of the judgment, in writing, to Mrs. Norris.

A transcript of the judgment, to which was appended the affidavit of the receiver, that nothing had been paid on it prior to the assignment to Mrs. Norris, etc., etc., and also the affidavit of Mrs. Norris, that nothing had been paid to her, etc., etc., was presented to the Probate Court of Pope county, at the October term, 1858, for allowance and classification against the estate of Norris.

The administrator appeared, waived notice, and contested the demand; and at the January term, 1859, the claim was allowed and classed; and he appealed to the circuit court, where the judgment of the Probate Court was, upon inspection of the record, affirmed.

On the trial in the Probate Court, Brearly insisted that the claim was barred by the statute of limitations, but this defence was overruled.

The 15th sec. of chap. 108, Gould's Dig. (Act of 14th Dec. 1844,) after fixing the period of limitation to actions upon the bonds of sheriffs, coroners, etc., etc., declares that “ actions on all other writings obligatory, bonds, writings under seal, and judgments and decrees, shall be commenced within ten years after the cause of action shall accrue, and not afterwards.”

The language of the statute is comprehensive, and embraces all judgments and decrees without discrimination or exception.

More than ten years having elapsed from the rendition of the judgment, in favor of the trustees of the bank, against Norris, to the time of his death, and there being no evidence in the record before us, in this case, that the judgment had ever been revived, an action upon it was barred by the statute of limitations, before his death.

Although in the statutory mode of proceeding in the Probate Court for the allowance of a claim against an estate, no declaration, writ, or other formal pleadings are required, as in ordinary suits at law in the Circuit Courts, yet it is regarded as an action, to wh'ich the statute of limitation may be pleaded, if the cause of action is barred at the time of the death of the person against whose estate the demand is sought to be allowed. Biscos et al. vs. Madden, as ad. 17, Ark. 539; Walker as ad. vs. Byers, 14 Ark. 247, Pennington’s adx. vs. Gibson, 1 Eng. 447; Ryan et al. vs. Lemon, as ad. 2 ib. 79; Dooley et al. vs; Walker 5 Ark. 705.

It is insisted that Mrs. Norris acquired no interest in the judgment by the assignment to her, which she could assert in the Probate Court.

The assignment did not vest in her the legal title to the judgment, so as to enable her to bring an ordinary action at law upon it, in her own name; but by the assignment she acquired an equitable title to the judgment and its fruits, with the right to control its collection, etc. Weir et al. vs Pennington et al. 6 Eng. 748, Clark vs. Mess, et al. ib. 736; 13 Ark. 503.

In Walker as ad. vs. Byers, 14 Ark. 251, Mr. Justice Scott delivering the opinion of the court, said: “ The claims and demands, which the statute contemplates shall be exhibited to the executor or administrator, in the manner provided by the statute, before the expiration of two years from the granting of letters, on pain of being forever barred, are all claims capable of being asserted in any court of justice, either of law or equity, existing either at the time of the death of the deceased, or coming into existence at any time after his death, and before the expiration of two years-,” etc. And in Oswalt vs. Moore, 19 Ark. 258, this language was repeated, and an equitable claim in favor of Moore, allowed against the estate of Mrs. Dobbins.

Mrs. Norris having the equitable right to the judgment and its fruits, we can see no substantial reason why it might not have been allowed as a claim in her favor, against the estate of Norris, had it not been barred by the statute of limitations, at the time of his death. .

The judgment of the Circuit Court must be reversed, and the cause remanded with instructions to reverse thejudgme'nt of the Probate Court, and hear the cause anew.

Absent, Mr. Justice Faiechild.


author: Mi’. Chief Justice English

text:
    Brearly ad. vs. Peay, Rec’r.
    A plea to a scire facias to revive a judgment, that it has been assigned to a third person, is bad on demurrer; because the assignment vests only the equitable title in the assignee, with the right to control the collection and use the name of the plaintiif.
    To a scire facias issued in 1857, to revive a judgment rendered in 1846, and which had been revived in 1852, the presumption of payment from lapáe of time does not apply.
    The failure of the Circuit Court to dispose of a bad plea, is not sufficient cause to reverse the judgment.
    A party may pursue concurrent remedies — issue a scire facias to revive a judgment against the administrator of a deceased judgment debtor, and present the claim for allowance in the Probate Court — though he can have but one satisfaction.

      Error to Pope Circuit Court.

    Hon. John J. Clendestn, Circuit Judge.
    Hollowell, for the appellant.
    Hempstead, for the appellee.
   Mi’. Chief Justice English

delivered the opinion of the court.

This was a scire facias to revive the same judgment which was the subject of controversy in Brearly adr. vs. Norris, ante.

Brearley, the administrator of Norris, pleaded in bar of the scire facias that the judgment had been assigned to Mrs. Norris, by Peay, as Receiver of the assets of the Real Estate Bank, pursuant to an order of the Chancery Court of Pulaski county, and a demurrer was sustained to the plea.

The demurrer was properly sustained. The assignment vested in Mrs. Norris an equitable title to the judgment, and its fruits, and she had the right to control its collection, and to use the name of Peay, receiver of the assets of the bank, as plaintiff in the scire facias to revive the judgment. Weir et al. vs. Pennington et al. 6 Eng. 748.

The scire facias recited the recovery of the original judgment by the trustees of the bank, under the deed of assignment, the death of Norris, and the grant of letters of administration to Brearly, upon his estate, the removal of the trustees, and the appointment of Peay, as receiver, etc., and prayed the revival of the judgment in his name against Brearly, as administrator, etc. The writ was in good form, and the proceeding by scire facias was the legal mode of reviving the judgment in the name of Peay, against the administrator of Norris, the original defendant. 2 Tidd, 1114-5, 1118; Dig. ch. 68, sec. 19, 20; lb ch. 96, sec. 14, 15.

, Brearly also pleaded nul tiel record, and upon the trial of the issue to the plea, objected generally to the introduction of the transcript of the record of the judgment, offered in evidence by the plaintiff. No valid objection to the transcript has been pointed out, and none is perceived.

He also pleaded payment, but upon the trial offered no evidence of payment. Ilis counsel here relies upon the presumption of payment from lapse of time.

The original judgment was recovered 18th March, 1846, and the scire facias was sued out 2d of December, 1857.

By the act of 14th December, 1844, fixing the period of limitation to actions upon judgments at ten years (Gould's Dig. ch. 108, sec. 15,) the 30th section of chapter 91, of the Revised Statutes, which declares that judgments, etc., thereafter rendered, should be presumed to be paid after the expiration of ten years, etc., was expressly repealed. Sec. 35 of ch. 108, of Gould's Dig., which is the same as sec. 29, ch. 91, Rev. Stat., applies to judgments rendered prior to March 5th, 1838. Woodruff vs. Sanders ad. 15 Ark. 143; Rector et al. vs. Morehouse, 17 ib. 131.

By the common law, the presumption of payment of a judgment does not arise until after the lapse of twenty years from the date of the judgment. Ringgold vs. Randolph, 16 Ark. 213.

The judgment now in question had been rendered less than twelve years at the time the scire facias was sued out. Moreover, upon the trial of the plea of payment, the plaintiff proved that the judgment had been revived in September, 1852.

There was also a very informal plea alleging that the judgment had been assigned to Mrs. Norris, that she had procured an allowance of it in the Probate Court, and that the administrator had appealed from the judgment of allowance, and the appeal was pending, etc.

No notice appears to have been taken of this plea, and it is insisted, by the counsel for Brearly, that the judgment should be reversed, because the plea remained undisposed of. Had the plea presented a good defence to the scire facias, the failure to dispose of it might have been ground of reversal, but the judgment should not be reversed, and the cause remanded merely to get rid of a bad plea.

We have held in the case of Brearly ad. vs. Norris, that the judgment as presented to the Probate Court for allowance, was barred by the statute of limitations. But a scire facias to revive a judgment being but a continuation of the original suit, is not subject to the plea of the statute of limitations. Brown, Robb & Co., vs. Byrd, 5 Eng. 533; Waylard vs. Coulter, 6 ib. 480; Evans vs. White, et al. 7 ib. 133.

A party may pursue concurrent remedies, and it is safest to do so in many cases, as it has proven in this, but there can be but one satisfaction.

This case is unlike the case of Dooley et al. vs. Watkins, 5 Ark. 704, where the claim was presented to the Probate Court for allowance, and there was an adjudication upon the merits of the claim, and afterwards an action was brought upon the same claim in the Circuit Court, and it was held that the recovery in the Probate Court was a bar to the action.

The judgment must be affirmed.

Absent, Mr. Justice Fairchild.


text:
    Thompson vs. Gossitt.
    That a person was in feeble health at the time of selling land, is no cause for rescinding the contract of sale, in the absence of proof that he was legally incompetent, from mental imbecility, to make a valid contract.
    Partial loss of memory, one of the infirmities incident to advanced ago, doe1 not render a person incapable of making contracts, while his other faculties remain unimpaired.
    In the absence of mistake, fraud or want of capacity, satisfactorily made out, a court of chancery cannot relieve a person from the consequences of an improvident sale of his land.

      Appeal from Ouachita Circuit Court in Chancery.
    Hon. Harris Flanagin, Special Judge.
    Gallagher, for appellant.

      Farrelly & Finley, for appellees.
   Mr. Chief Justice English

delivered the opinion of the court.

The case made by the bill is, that Gossitt purchased of Thompson a number of tracts' of swamp land, at $225, and gave his obligation for the purchase money, payable in six, twelve and eighteen months, with ten per cent, interest, and took Thompson’s bond for title, etc. On-the failure of Gossitt to pay the obligation first due, at maturity, Thompson brought ejectment against him for the lands, obtained judgment, and had sued out a writ of possession, etc. Complainant had tendered payment of the whole of the purchase money, counting the interest upon the obligation last falling due in advance to maturity, which Thompson refused to accept, and the money, with the costs of the ejectment suit, was brought into court; and the bill prayed for an injunction and specific performance of the contract of sale. \

Thompson answered the bill, arid made his answer a cross-bill, praying a rescisión of the contract.

The principal grounds on which he asks a rescisión of the contract of sale, may be stated in the language of his counsel here, which is expressed in terms as favorable to him as in the answer:

“ He admits the giving of the title bond,’ and the receipt of the notes, but states that the amount represented by the notes was not the whole amount of the purchase money, for which he .agreed to sell the lands. That besides the $225, in notes, he ought to have received and been paid by Gossitt the sum of $382 cask. That it was only on these terms that he was willing, at the time, to sell the lands; that he thought he was to receive that sum then; but by some mistake, which he can only account for by his low state of health and consequent mental imbecility at the time, he entirely forgot to mention this cash matter in the bond, or to receive it, or to even mention it at that time.
“ That as soon as he recovered his health and mental ability, he went to Gossitt, having examined the papers and seen how he had been deceived, or how great a mistake had happened, and tendered him fall remuneration for what Gossitt had done on the land, and demanded a rescinding of the agreement, but Gossitt refused.”

Gossitt’s answer to the cross-bill does not seem as full and frank as it might have been, but he distinctly denies that he was to give any other consideration for the lands than that expressed in the notes and recited in the bond for title.

No witness heard the terms of sale as finally agreed upon between the parties. After some propositions were made and declined, in the presence of the witnesses, the parties went to themselves, conversed together some time, and then went into Gossitt’s house, saying they had agreed. And Thompson commenced preparing the papers, and did not complete them until late at night, the trade having been made in the evening. He stayed all night with Gossitt, and left in the morning for home.

■ The contract of sale was entered into 21st February, 1855, and it appears from Thompson’s answer that he did not discover the mistake about the cash payment until the following July, after he had recovered his health, when he proposed to Gossitt to rescind the contract, and to compensate him for improvements which he had made on the lands, and he refused, etc.

The witnesses prove that Thompson was in feeble health at the time of the sale, but the evidence does not show that he was legally'incompetent, from mental imbecility, to make a valid contract!

lie is an old man, and one witness states that his memory wras treacherous. He was in the habit of attending a number of the circuit courts in his section of the state; and before leaving home, would frequently lay out papers, and his spectacles, upon the table, to take with him, but forgot them, and after being gone for sometime, would return and get them, and again start upon his journey.

The partial loss of memory is one of the infirmities of advanced age, but such infirmity does not, in contemplation of law, nor in fact, render the aged man incapable of making contract?, whilst the other faculties remain unimpaired.

According to the answer, the cash payment was to have been larger than the aggregate sum of the credit payments, and if the witnesses had proven that so much in cash was to have been paid, by the terms of the contract, we could readily believe that the memory of appellant must have been greatly decayed to have forgotten so important an item as the $302 in cash, not only when drawing the title bond, and reciting the terms of sale, but for months after.

That the appellant sold the land (taking the terms of sale to be correctly expressed in the bond for title) for much less than its value, there can be no doubt, from the evidence, but in the absence of-mistake, fraud or want of capacity, satisfactorily made out, the court cannot relieve him from the consequences of an improvident sale.

The answer alleges that appellee made to appellant a false and fraudulent representation as to an order of the county court changing the direction of a public road, which ran over a portion of the land, and which induced appellant to agree to sell the lands for a less price than he would otherwise have taken.

One witness states that Gossitt, in a conversation with him, left the impression upon his mind that he had procured an order of court changing the road, but it does not appear that appellant was present, or heard the conversation.

If there was any fraud, on the part of Gossitt, in making the purchase, it is the misfortune of Thompson that he has been unable to draw from him a confession of it in the pleadings, or to establish it by sufficient evidence.

The decree must be affirmed.

Absent, Mr. Justice FaiRciiu.d.

\


author: Mr. Justice Compton

text:
    Watkins vs. Quarles & wife.
    A testator devised the remainder of his estate, real and personal, to his wife for life, and that the balance of his slaves — after giving a temporary use of a pprtion of them — “ shall remain upon the plantation upon which I now reside, during the life time of my wife, Mary Walker; or, in the event of her death, then to remain upon said plantation until my son, John M. Walker, shall arrive at the age of twenty-one years, at which period they, with the balance of my entire estate, to descend in equal shares to the said John M. Walker, and to my daughter, Mary Walker, and her bodily heirs, and in the event of the death of the said John M. Walker, without bodily heirs, his entire interest in my said estate, to descend to the said Mary Walker and her bodily heirs; Held, that the legacy to John M. and Mary Walker vested at the death of the testator, with a postponement of the possession until the time fixed by the will for a division of the property between them: and that the devise over in the event of the death of John M. without bodily heirs, is void, as being too remote — the words meaning, in a technical legal sense, an indefinite failure of issue.

      Appeal from White Circuit Court iu^ Chancery.

    Hon. William C. Sevens, Circuit Judge.
    Stillwell & Woodeuff, for the appellant.
    The first question presented is, who became entitled to the half of the slaves which we contend would have vested in John M., had he arrived at the age of twenty-one years; or, in the issue of his body surviving, had he died under that age, absolutely?
    It is perfectly obvious that it was the intention of the testator, that upon the happening of a certain event, (the death of John M. Walker, without bodily heirs,) the whole of the residue of his estate, real and’personal, should pass to and be enjoyed by his daughter, Mary Walker. It is well settled, that the intention of the testator shall always prevail, unless it conflicts with some rule of law. It is also settled, that if the event must happen, within a life or lives in being and twenty-one years and nine months, the limitation over is not too remote! 3 Ark. 193-, Moody vs. Walker, 1 Salk. 229; and other cases there cited; Doe vs. Newel, 4 Maulé Sel. 334; 1 Jarman on Wills 254, 255; 1 Russ. <$• Mylne S$3; 7 Term Rep. 591; 1 John. Rep. 449.
    In ease of an immediate gift, it is generally true, that a bequest over in the event of the death of the preceding legatee refers to that event happening in the life time of the testator-but this construction is adopted from necessity, in consequence of the absence of any other period to which the words can be referred; consequently, where there is another point of time to which such dying may he referred, (as is obviously the case where the bequest is to take effect in possession at a period subsequent to the testator’s decease, the words in question- are considered as extending to the event of the legatee dying in the interval between the testator's death and the period of vesting in possession. 2 Jarman on Wills, pp. 665, 472; 1 Roper on Legacies, pp. 610, 611, (ed. of 1846); 3 Russ. 362; DaCosta vs. Keir, 2 M. 4- K. 15; 3 same 71; 2 Jo. 4 Col. 290.
    It seems evident that the testator intended the limitation over to take effect upon the happening of the death of JohnM., before the time the devise to him was to take effect, in possession. That was not to take place until the death of Mary Walker, the mother, or his arriving at twenty-one years of age. Both must occur first. If she died before he was twenty-one, he could not take possession. If he became twenty-one in her life time, still he would not be entitled till her death.
    When we say that the estate .did not vest in John M. Walker, we mean the absolute right; for we admit .that a conditional estate vested in him at the death of the testator. The interests of the mother, daughter and son, such as they' were; vested at the same time. 1 Roper on Legacies 403, etc., (edi 1829.)
    The vesting of an absolute estate in John was postponed until he arrived at twenty-one years of age, if, as it turned out, he survived his mother.
    The rule is, that- where a legacy is given to one, to be paid or payable at or when he shall attain the age of twenty-one, or any future definite period, the legacy is considered as vested. 1 Roper on Legacies, 37(3, 7, 8, 9 10, {ed. 1829.)
    But the words paid or payable are material, and if they are omitted, and the bequest is to the legatee, provided, in case of, or token, he attains the age of twenty-one, etc., the legacy does not vest till the legatee attains twenty-one. 1 Roper on Legacies, 383, 4, 5, 6, 7, 8, 9, 390, {ed. 1829), where a number of adjudicated cases are referred to. 11 WendelVs R. 272, Patterson vs. Ellis.

    John M. Walker’s arriving at the age of twenty-one, was a condition precedent to the vesting of an absolute estate in him. 4 Kent’s Corn. 122, 123, 124, 125; 1 Roper on Legacies, 501, 502, {ed. 1829); 1 Jarman on Wills, 797, 798, 799, 800.
    Mary’s interest in the moiety that would have been vested in John absolutely, on his arriving at the age of twenty-one, was a contingent remainder. 4 Kent's Com., pp. 200, 207, and notes.

    Fairchild for the appellees.
    There being no devise to trustees or to executors, to hold the title for those for whom the estate was intended, if disposed of at all by the will, it was the property of those for whom the wall was trying to provide; between whom it was to be divided, after remaining upon the plantation till the prescribed period of division; that is, the property was fully 'vested in Mary Walker, the daughter, and in John M. Walker, though the individual possession thereof was deferred to John M. Walker’s majority. At the death of Mary Walker, one-half of the whole estate of James Walker, not specifically devised by the second and third items of the will, was vested in John M. Walker? though the division of the property, and exclusive enjoyment thereof, was deferred till he should be twenty-one years old. May vs. Wood', 3 Bro. C. C. 473; Dawson vs. Killctt, 1 Bro. C.

      C. 123; Monkhouse vs. Holme, lb. 300; Prrker vs. Hodgkinson, 15 Sim. 295.
    It is manifest from, the whole will that the résidue of the estate, all but that included in the second and third items of the will, was intended by James Walker to go to Mary Walker) the daughter, and John M. Walker.
    The time of division was delayed, not because John was not to have the estate, not because he did not have an interest in it, but for the convenience of the estate, and all concerned in it. And in such case the rule is, that the vesting dates.from the gift, not from the time its use is to be given, or it is to be surrendered to the legatee. Hanson vs. Graham, Q Ves. 247; Parker vs. Sowerby, 21 Eng. Law <$• Eq. R. 42, 43; Bird sail vs. Hewlett, 1 Paige 34; Baylcy vs. Bishop, 9 Ves. 11; In re Hodgson’s Trust, 21 Eng. L. E. 259; Perry vs. Rhodes, 2 Murphy's Law Sp Eq. R. 140; Barnes vs. Allen, 1 Bro. C. C. 182; Booth vs. Booth, 4 Ves. 403; Blamire vs. Geldart, 16 Ves. 314; Leeming vs. Sherralt, 2 Hare 20.
    It is submitted that the foregoing authorities establish the proposition, that the interest of John M. Walker in the general residue of James Walker’s estate, was an interest in remainder, dependent upon, and to be preceded by the life interest of Mary Walker, the mother, but one that vested with the life interest; which, with the remainder to John and Mary Walker, the daughter, made up the entire estate as owned by James Walker and devised by him.
    The fifth item of James Walker’s will closes in these words: “ and in the event of the death of the said John M. Walker, without bodily heirs, his entire interest in my estate to descend to the said Mary Walker and her bodily heirs.”
    And my proposition upon this clause of the will is, that the attempt to pass John M. Walker’s share in the estate-in the event of his death without bodily heirs, over to Mary Walker, is void for two reasons; because the limitation over is too remote; and because it is in opposition to the absolute interest given to John M. Walker.

      The limitation over to Mary Walker is upon an indefinite failure of issue, and is therefore void. Moody vs. Walker, 3 Ark. 189, 198; Patterson vs. Ellis, 11 Wend. 272, 292; Biggs vs. Bensley, 1 Bro. G. C. 190; Exel vs. Wallace, 1 Ves. 117, 120; Barlow vs. Salter, 17 Ft’S. 481, 482; Elton vs. Eason, 19 Ves. 80; Blagrove vs. Hancock, 16 Sim. 276; Miller vs. Macomb, 26 Wend. 229; Doe vs. Ellis, 9 East. 382; Glen vs. Strothqff, 2 Bro. C. G. 27; Butterfield vs. Butterfield, 1 Ves. 134; 4 Kent. 273,281, 282.
    And, even if the clause of limitation over of John M. Walker’s share, in the event of his death without bodily heirs, could have restricted an interest in lands from an absolute to an entailed estate, it would not so operate on personal property, it always having been the law that such words as confer an estate tail in lands, pass the whole interest in personal property. Ghandlcss vs. Price, 3 Ves. 101; Crooke vs. Dc Vandes 9 Ves. 203; Foley vs. Burnett, 1 Bro. C. G. 284, 285; Maulding vs. Scott, 13 Ark. 91.
    And whenever a testator has given away his whole interest, he cannot give any more. Any attempt at further control of the thing given, is repugnant to the gift, and therefore void. Flanders vs. Clark, 1 Ves. 10; Bradley vs. Pdxotlo, 3 Ves. 325; Jackson vs. Bull, 10 Johns. 20.
    But this will not abate the first, the absolute gift; that, of course, remains good. Blcase vs. Burgh, 2 Beavan 226; Ring vs. Hardwick, ib. 359; Hulme vs. Iiulme, 3 Sim. 650; Green vs. Harvey, 1 Hare 431.
    However fruitless it may be to speculate upon the intention of testators in using words which courts hold mean an indefinite failure of issue, the remarks of Chancellor Kent are applicable in this case, as it seems to have been the plain meaning of James Walker to provide for John M. Walker and his bodily heirs, and that until such heirs had ceased to exist, however remote that time might be, Mary Walker, the daughter, and her bodily heirs, were not to enjoy John M. Walker’s share of his estate. Anderson vs. Jackson, 16 Johns. 400, 401; -4 Kent
      274. Also, Pleydell vs. Pleydell, 1 P. W. 750. But whatever may have been James Walker’s intention, it cannot prevail over the law.
   Mr. Justice Compton

delivered the opinion of the Court.

James Walker died, in the early part of 1852, leaving a wife, Mary Walker; a daughter, Mary Walker, then wife of Alexander S. Walker; a son, John M. Walker, and a grand-daughter, Emily Sophronia Walker, only surviving child of Crawford Walker, a deceased son of James Walker.

A short time before his death, James Walker made a will, in which, after appointing Alexander S. Walker and Mary Walker the wife of the testator, executor and executrix, he devised his entire estate as follows:

“ Second. I give and bequeath to my grand-daughter, Emily Sophronia Walker, minor heir of my son, Crawford Walker, deceased, certain negroes, slaves for life, which slaves are severally named and described in a certain deed of gift made by me, and bearing date of 13th day of July, A. D. 1849, and which deed of gift is now duly recorded in the recorder’s office of said county of White, in Record Book D, pages 96, 97, 98, 99.
“ 3. To my executrix and executor, I give full power and authority to sell and convey certain tracts of land now owned by me, to-wit: The one lying on the Arkansas river, in the county of Pulaski, and State aforesaid, containing 456 acres, or thereabouts; one lying in said county of White, and State aforesaid, and being about three miles south, or south-west, from the town of Searcy, containing 240 acres, commonly known as the branch or spring land; the other is one-half the interest in the undivided north half of section 12, in township 7, north of the base line, in range 7, west of the fifth principal meridian; and in the event of the death of my wife, the said Mary Walker, who is the executrix herein named, previous to effecting the sale of the said tracts of land above named, I give my executor, Alexander S. Walker, full power and authority to sell and convey the same, and after the same is so sold, the proceeds thereof to be equally divided between my said wife and Alexander S. Walker, and my son, John M. Walker; or in the event of the death of my said wife, previous to said sale being effected* then the proceeds thereof to be equally divided between Alexander S. Walker and John M. Walker, each to share and share alike.
“ 4th. The remainder of my estate, both real, personal and mixed, I give and bequeath to my wife, Mary Walker, during her life. Nevertheless, that the slaves which I have placed in the care of, and under the control of Alexander S. Walker and Mary, his wife, which are described as follows, to-wit: Rachel; aged about 50 years; Dick, a man, aged about 30; Ann, his wife, aged about 22; Louis, a boy, aged about 3 years; Jacob’ aged about 1 year; Frank, aged about 17 years; Clara, aged about T6 years; Robert, aged about 24 years; Henry, aged 12 years; and Rachel, a girl, aged about 10 years, shall be, and remain, in possession of the said Alexander Walker and Mary, his wife; and that they have all the benefit arising from the labor of said slaves, until there shall be a general division of my said estate, which is hereinafter mentioned, at which time they shall revert back, be and constitute a part and parcel of said estate.
“ 5th. That the balance of my slaves shall remain upon the plantation upon which I now reside, during the lifetime of my wife, Mary Walker; or in the event of her death, then to remain upon said plantation -until my son, John M. Walker, shall arrive at the age of twenty-one years, at which period they, with the balance of my estate, to descend in equal shares to the said John M. VJalker, and to my daughter, Mary Halicer, and her bodily heirs; and in the event of the death of the said John M. Walker, without bodily heirs, his entire interest in my said estate to descend to the said Mary Walker and her bodily heirs.
6th. And at the death of the said Mary Walker, her entire interest in said slaves to descend to her bodily heirs, with an equal and child’s part to her husband, Alexander S. Walker, (provided be survives her.) during his natural life; and at the death of the said Alexander S. Walker, said slaves to descend in equal shares to the bodily heirs of the said Alexander S. and Mary Walker, his wife. In testimony,” etc.

The writing referred to in the second item of the will, as a deed of gift, was a declaration on the part of James Walker, that certain slaves, therein mentioned, had been loaned to Crawford Walker, then deaá, and it covenanted that he would stand seized of, and hold them in trust for Louisa Walker, the widow of Crawford Walker, and for Emily Sophronia Walker, the child of Crawford and Louisa Walker. Upon the death of Louisa Walker, and the death of Emily Sophronia Walker, without lawful issue, the slaves named were to revert to James Walker; and it was the revertionary interest only , which the will gave to Emily Sophronia Walker — all previous and other interest having passed out of James Walker by the instrument referred to, which was, dated the 13th day of. July, 1849.

In April, 1852, which was but a short time after the death of James Walker, Mary Walker, his wife, died; and in April, 1854, John M. Walker, the son, died, lacking some months of being twenty-one years of age.

Upon these facts, Emily Sophronia Walker, a minor, by her mother and next friend, Louisa Walker, filed her bill on the chancery side of the White circuit court, in which she claimed that, after deducting the lands mentioned in the third item of the will, one-half of the whole estate of James Walker, upon the death of Mary Walker, his wife, passed to John M. Walker, as his absolute property; and that upon his death, as aforementioned, without having been married, and without a will, one-half of his property vested in his sister, Mary Walker, and the other half in herself, she being the only child of Crawford Walker, a deceased brother of John M. Walker; or else, that as to the residue of James Walker’s estate, after taking out the three tracts of land mentioned in the second item of the will, he, the said James Walker died intestate, in which event she claimed one-third such residuary estate; and upon the death of John M. Walker, one-half of his third, making one-half of the whole residuary estate. But in this event she conceded her liability to bring into the general distributable fund, the slaves described in the instrument referred to in the second item of the will, and offered to do so.

Pending the suit, Louisa Walker, the next friend of the plain" tiff, died, and she the plaintiff, married Pichegru T. Quarles, and he and his wife were admitted to prosecute the suit as plaintiffs. Alexander S. Walker also died, and the suit abated as to him, Mary Walker, his widow, married Thomas Watkins, who appeared to the suit and was made a defendant. Mary Watkins then died, leaving her husband and two infant children, Alexanders. Walker, by her husband Alexander Walker, and Mary J. Watkins, by her last husband, Thomas Watkins. These infants were made parties to' the suit, and defended by their guardian ad litem, Thomas Watkins. Shortly afterwards, the infant, Alexander S. Walker, died,.leaving his half sister, Mary J. Watkins, his only heir. Mary J. Watkins, the other infant, then diedj leaving her father, Thomas Watkins, her only heir. The suit was thenceforward prosecuted against Thomas Watkins, as sole defendant, he, as such heir at law and distributee, having succeeded to all the rights and interests of the deceased infants, so far as concerned the personal property claimed by the bill. As to the real estate, it was agreed between the parties that the whole of it, upon the death of the infants, vested in the plaintiff, Emily Sopronia Quarles, leaving the personal property as the only subject matter of controversy.

On the final hearing, the court below was of opinion that the residuary bequest to John M. Walker, the son, and Mary Walker, the daughter, never vested — John M. Walker, having died under the age of twenty-one — and that upon the death of Mary Walker, the wife, and of John M. Walker, the son, the whole estate of James Walker, real and personal, except the three tracts of land mentioned in the third item of the will, was descernible and distributable as though he had died intestate; and decreed accordingly.

To ascertain and settle the rights of the parties, two questions are to be determined: 1st. Whether the residuary bequest to John M. and Mary Walker, vested at the death of the testator; and if it did, 2d. Whether the limitation over of John M’s share to Mary, was upon an indefinitefailure of issue, and therefore void.

Where the gift of a legacy is absolute, and the time of payment only is postponed, as where a sum of money is given to A, to be paid when he shall attain the age of twenty-one, the time not being of the substance of the gift, postpones the payment, but not the vesting of the legacy; and if the legatee die before the period specified, his representatives are entitled to the money. Where, however, the legacy is given, if\ at, or when the legatee shall attain the age of twenty-one, or in language of like import, time is of the substance of the gift, and the legacy does not vest until the contingency happens. But, although the terms in which a legacy is given be such as, standing alone and unexplained, w-ould prevent it from immediately vesting, yet if from the context oí the will it appears that a condition precedent to its vesting was not intended, but that the words importing a condition were merely employed to designate the period when the legacy should be received or enjoyed,. that sense is put upon the words which the will requires.

This principle is illustrated by a variety of adjudications, though we need refer to those only which bear more directly on the case under ccnsideration, and in which it has been held, that where an intermediate interest in the property bequeathed is carved out, and given to another person, beneficially, until the legatee shall arrive ata particular age, and when he attains to it, the property is directed to be transferred to him: Or, where the property, or its intermediate interest, is given to executors or trustees to answer particular purposes, as to pay debts and the like, with direction that the legatee shall have the property after they are paid: or where the intermediate interest is given to another person for life, and after his death to the legatee: — the person, in all such cases, to whom the absolute property is limited, will take an immediate vested interest in the subject, that is, the interest of the first and subsequent takers vest together; for, it is said to be clear, notwithstanding the words of condition, that the testator intended to give immediately the property to the person in remainder, with a postponement of the enjoyment only, until he attained to a particular age, or until the particular purposes were answered, or so long as the tenant for life continued to live. Thus, in Lane vs. Goudge, 9 Ves. 225, where an annuity was bequeathed to Naomi Ivey, for life, remainder to James Lane, until his second.daughter attained twenty-one, and then to her absolutely, it was held that the legacy vested in-the daughter at the death of the testator. And, where the testator devised lands to his wife till his son attained twenty-one, and when'his son arrived at that age, then to him in fee; and the son died under twenty-one, the Lord Chancellor decided that the son took a vested remainder. Mansfield vs. Dugard, 1 Eg. Ca. Abr. 195; cited in Roper on Legacies, (second American from the fourth London edition,) pg. 582. So in Johnson vs. Baker, 3 Marp. (L. & E.) 318, the testator gave to his wife all the property he received with her; and thqjpest'of his éstate he gave her until his son should come to lawful age, when the same should belong to him; and, in the mean time, directed that his son be maintained and educated at a reasonable expense out of his estate, in proportion to the value of all the property and its general profits and income. The widow died leaving her son surviving, who died before he attained the age of twenty-one; held that the legacy to the son vested at the death of the testator. To the same effect are the cases of Perry vs. Rhodes, 2 Murph. (L. & E.) 140; Taylor vs. Biddall, 2 Mod. 289; Hanson vs. Graham, 6 Ves. 239. The rule, that where the property is given intermediately to the executor for the accomplishment of particular purposes, the payment only and not the vesting of the legacy is postponed, was laid down in Boraston's case, 2 Coke’s Rep. (by Thomas,) 51. There, the devise was to aman and his wife for eight years, and after that terra, the lands were to remain to the executors,of the devisor for the performance of h'is will, until such time as Hugh Boraston should, accomplish his full age of twenty-one years; and when he should come to his age, of twenty-one, then to him, his heirs and assigns forever. Hugh Boraston died under twenty-one, and it was contended that the remainder was not to vest in him, unless he attained the prescribed age; but the court of •King’s Bench determined that the remainder vested at the death of the devisor, with the postponement of the possession until Hugh completed the age of twenty-one — the case being, it was said, nothing else in effect than a devise to the executors until Hugh attained the age of twenty-one, remainder to him in fee.

Indeed,, as all the cases show, the great objéct to be ascertained in the construction of a will is the intention of the testator, which, when it is discovered, will always prevail if not inconsistent with some settled rule of law; and the rules above referred to, as well as all others on the subject, have been established as tending to that end,

Under the fourth item of the will in the case before the court, the testator devised the general residue of the estate to his wife for life, with the exception ft ten negroes- then in the possession of Alexander Walker and Mary, his wife, who were to keep them in possession and have the benefit -of their services until there should be a “ general division ” of the testator’s estate, when they were to revert and constitute a part of the estate.

By the term “ general division,” here used, the testator clearly had reference to that disposition of the property to his children, John M. and Mary, provided.for in the fifth item of the will. In that item he directed that the balance of the slaves should remain upon the' plantation on which he then resided, during the life time of his wife; or in the event of her death, until John M. should arrive at the age of twenty one, at which period, they, with the entire residue of his estate, should “ descend in equal shares” to,the said John M. and Mary; and in the event of the death of John M. “ without bodily heirs,” that his entire interest should “ descend ” to Mary. Here, an intermediate interest — the labor of the slaves mentioned in the fourth item of the will — -was carved out of the property devised, and given to Alexander S. Walker, and Mary, his wife, for the full period of postponement, that is, until the death of the testator’s wife, or until John M- should attain the age of twenty-one, if she should die before he arrived at that age; while out of the rest of the property devised, an intermediate interest was also carved, and given to the wife of the testator for life — ■ and though this latter interest migbf determine before John M. attained the age of twenty-one, nevertheless, the slaves were to remain on the plantation of the testator until that time, when the whole, of the property given under the fourth and fifth items of the will, was to “ descend ” to John M. and Mary.

Upon this state of case, and in view of the principle that legacies are always to be considered as vested unless the intention of the testator is manifestly otherwise (Coobin vs. Wilson, 2 Ash. 178; Eldrege vs. Eldrege, 9 Cush. 516,) the authorities above cited fully sustain us in holding- — as we do — that the legacy to John M. and Mary Walker, vested at the death of the testator, with a postponement of the possession pnly until the time fixed by the will for a division of the property between them, in order to let in the intermediate interests carved out; as also to effectuate the express direction and purpose of the testator, that a part of the slaves should remain together upon the plantation — a provision for the convenience of the estate and the interest of those who were to get it — until the time when such division was to be made. Furthermore,'to decide that the legacy in question was not to vest until John -M. attained the age of twenty-one, would be to say that although the testator m^de a will by which he undertook to dispose of his entire estate for the benefit of his children, he nevertheless intended to die'intestate as to the residue — which, was the greater portion thereof — unless John M. should attain that age. Treating the question as one of intention, such a proposition would be most unreasonable. It was the intention of the testator that John M. and Mary, his only surviving children, should have the entire residue of his estate ultimately and at all events. The only contingency connected with the bequest was that in the event of the death of John M. without bodily heirs, his interest was to divest and vest in Mary and her bodily heirs; and whether the intention of the testator, in this respect, can be carried out, is the remaining question to be determined, i The doctrine of executory devises was elaborately discussed by this court in Moody vs. Walker, 3 Ark. 146, and the conclusion reached, as regards the point we are now considering, is supported by the decided weight of English and American authorities. It is there, said that the words “ dying without heirs lawfully begotten of the body,” or of like import, mean, in a technical legal sense, an indefinite failure of issue, that is, a failure of issue whenever it shall happen, sooner or later, without any certain or definite period, within which it must occur; or, in other words, they mean the period when the issue or descendants of the first taker, shall become extinct; and that if an executory devise be limited to take effect after a dying, without heirs lawfully begotten of the body, or -words of like meaning, the limitation over is void as being too remote and founded on an indefinite failure of issue; though in such cases, the courts, in order to sustain the limitation over, will lay hold of any expressions in the will bj1- which the general language is restrained, and a definite failure of issue indicated, as a failure of issue at the death of the first taker, or at any other definite point of time within the period in which a limitation by way of executory devise may lawfully vest, which is a life or lives in being, and twenty-one years and nine months.

In the case now before the court, the words are “ and in the event of the death of the said John M. Walker, without bodily heirs, his entire interest in my said estate to descen€ to the said Mary Walker and her bodily heirs.” There being no words in the will to restrain this general language, it is clearly a limitation over upon an indefinite failure of issue within the meaning of the rule in Moody vs. Walker, supra, and is void.

The decree is reversed and the cause remanded, with instructions to the court below to decree to the plaintiffs, in right of Emily Sophronia Quarles, one half of the slaves and personal property bequeathed to John Ml Walker, under the fourth and fifth items of the will of James Walker, together with the reasonable hire of the slaves from the date of Thomas Watkins’ intermarriage with Mary Walker — the parties paying each one half- the costs in this court and in the court below.

Mr. Justice Fairchild did not sit in this case.


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    Hays vs. Roberts.
    If either of several replications be a good answer to a plea, it is sufficient on demurrer.
    Although the record does not state that the party rested upon his demurrer being overruled, the court will so infer where he does not take issue to the pleading demurred to, but goes to trial on another issue.

      Error to Saline Circuit Court,

    Hon. John J. Clendenin, Circuit Judge.
    Williams & Martin, for the appellant.

      Smith, for the appellee.
   Mr. Chief Justice English

delivered the opinion of the Court.

Roberts brought trespass against Hays for entering his close, taking his-goods, etc.

Hays pleaded not guilty, and a special plea'of justification. Roberts took issue to the first plea, and filed four replications to the .second. Hays demurred to the replications, the demurrer was overruled, and judgment against him for cost of the demurrer.

The parties then submitted the issue to the plea of not guilty to a jury, and the verdict and judgment were for plaintiff, and the defendant, without reserving any question upon the trial, brought error.

Three of the replications to the plea of justification traversed material allegations of the plea, concluding to the country, and the other replication alleged an abuse of the process under which Hays justified, and concluded with a verification.

It is conceded by the counsel for the plaintiff in error that two of the replications were good answers to the plea; and upon this concession the judgment upon the demurrer was properly rendered for the plaintiff below, even if the other two replications were bad, because the good replications were a bar to the defence set up by the plea. Cuyler vs. Trustees of Rochester, 12 Wend. 169; Harrison vs. McIntosh, 1 John. 384.

The record does not expressly state that the plaintiff in error rested upon his demurrer to the replications, but it is to be inferred from the record entries that he did. Upon the overruling of the demurrer he not only did not take issue to the replications, but, in the language of the record, “ thereupon said cause came on to be heard upon the general issue of not guilty, and both parties announcing themselves ready for trial,” etc., etc.

The judgment must be affirmed.


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    Renfro, ad. vs. White.
    It is within the power of the Probate Court, on the application of a surety in an administration bond, to require the administrator to- give a new bond, when it is made to appear that the sureties in his bond are insufficient.

      Appeal from, Hempstead Circuit Court.

    Hon. Lem B. Green, Circuit Judge.
    Gallagher, for the appellant.
    Hempstead, for the appellee.
   Mr. Chief Justice English

delivered the opinion of the Court.

Renfro was the administrator de bonis non of Bolen C. Phillips, deceased, under bond in the penal sum of $200,000.

White, one of his sureties, made application to the Probate Court of Hempstead county, from which his letters had issued, for an order requiring him to execute a new bond, upon the ground that his original bond had not been taken according to law, the sureties being insufficient.

Upon the notice and affidavit required by sec. 36, chap. 4, Gould’s Dig., and upon proof that the aggregate value of the property of the sureties in the bond was not equal to the value of the personal estate of Phillips, in the hands of Renfro, the Probate Court ordered him to give a new bond. Pie appealed from the order to the Circuit Court, where, on inspection of the record, the judgment of the Probate Court was affirmed, and he appealed to this court.

Upon examination of the record, we find no satisfactory showing that the Probate Court exercised unwarranted authority, or abused the sound legal discretion vested in it by law; in making the order complained of. See State, use, etc. vs, Stroop, ante.

The judgment of the Circuit Court must be affirmed.


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    Pettillo, ad. vs. Hopson.
    On a plea of failure of consideration the defendant is, most assuredly, entitled to an abatement for only so much as the consideration had failed.

      Appeal from ' Van Burén Circuit Court.

    Hon. William C. Bevens, Circuit Judge.
    Byers & Cox, and Stillwell & Woodruff, for appellant.
    If there was any failure of consideration, it was only partial: the pleas were not-supported, and of course the verdict ought to have been for appellant. 6 Ark. 416; 17 lb. 10; 10 lb. 273; 19 lb. 666.
   Mr. Chief Justice English

delivered the opinion of the Court.

Pettillo, as administrator of Hylton, sued Hopson on a note for $150, executed to his intestate.

Hopson interposed two special pleas, alleging, in substance, that the note sued on was executed in consideration that Hylton would convey and deliver to him seven acres of land, which he had failed to do, whereby the consideration, upon which the note was given, had.wholly failed, etc.

Upon the trial of issues to the pleas, the defendant introduced evidence conducing to prove that he purchased of Hylton the seven acres of land and the improvement referred to in the pleas, at $300, paid him part of the price in money and property, and gave him the note sued on for the remainder. That Hylton had agreed to make him a deed for the seven acres of land, and deliver him possession thereof, but failed to do either. That the land was not worth more than $50. That Hylton was also to deliver to him possession of the improvement on the public land; and it was proven that defendant did obtain possession of the improvement, and sold it for $500.

The plaintiff asked the court, sitting as a jury, to declare the law to be, in effect, that defendant was not entitled to an abatement of the note beyond the value of the seven acres of land, which Hylton had failed to convey to him. But the court refused so to declare the law to be, rendered judgment for the defendant, and refused the plaintiff a new trial.

Most assuredly the defendant had no right to keep back the full amount of the note, when there was but a partial failure of the consideration upon which it was executed. 1 St. & P. 226; Ib. 71.

The judgment must be reversed, and the cause remanded, with instructions to grant the appellant a new trial.


text:
    Ross vs. The State.
    Where the record does not contain any indictment upon which the defendant was convicted, nor show that an indictment was returned into court, this court will reverse the judgment, and remand the cause for further proceedings.

      jError to Sebastian Circuit Court.

    Hon. Felix I. Batson, .Circuit Judge.
    Faust, for the plaintiff in error.
    Where there is no indictment in the record sent to this court, the conclusion is that none was found against the defendant, much less presented in open court; and the proceedings against him are a nullity, sec. 14, art. 2, Const. Ark.) Secs. 85, 87, ch. 52, Gould's Big.) Brown vs. State, 7 Humph. 155; Chappel i'S. State, Yerg. 166; Green vs. State, 19 Ark., and authorities cited; and the defendant ought to be discharged, Stith vs. State, 13 Ark. 680; The King vs. Bourne, 7 Adal. <§■ Ellis 58; and authorities there cited.

   Mr. Chief Justice English

delivered the opinion of the Court.

This case was brought here by writ of error to the circuit court of Sebastian county.

From the transcript returned with the writ, it appeared that Daniel Ross, the plaintiff in error, had been convicted by the verdict of a jury, of robbery, and sentenced to the penitentiary for twelve years. But there being no indictment in the transcript, and no showing that the grand jury had returned into court any indictment against Ross, a certiorari was awarded to perfect the transcript, in accordance with the principles settled in Green vs. The State, 17 Ark. 183, and other cases there cited.

In the transcript brought up by certiorari, as in that returned with the writ of error, there is no indictment, and no entry that the grand jury returned into court any indictment against Ross.

' The clerk states that the indictment, and a motion in arrest of judgment, had been lost, destroyed, or purloined from his office, etc.

In the first record entry, the cause is entitled thus:

“ State .of Arkansas, Plaintiff,
vs. y Indictment for assault to murder and rob.
Daniel Ross and A. Koo-wee, Defendants.'1'1
In the second entry, thus:
“ State of Arkansas, Plaintiff,
vs. y Assault with intent to kill and rob.
Daniel Ross and A. Koo-wee, Defendants.”

Under this caption it is shown that the defendants severed, and that Ross was tried and found, by the jury, guilty of robbery.

In the final entry, the cause is entitled thus:

“ State of Arkansas, Plaintiff,
vs. y Indictment for robbery.
Daniel Ross, Defendant.

Under this caption it is shown that Ross moved in arrest of judgment, that the motion was overruled, and he was sentenced to the penitentiary for twelve years in accordance with the verdict.

Under the principles settled in the cases above referred to, we cannot affirm a conviction for felony upon a record so defective as the one before us, but the judgment must be reversed and the cause remanded for further proceedings.

And it appearing that the plaintiff in error is confined in the penitentiary, a mandate must be issued to the sheriff of Pulaski county, to receive the prisoner of the keeper of the penitentiary^ and convey and deliver him into the custody of the sheriff and jailor of Sebastian county, to abide such further proceedings as may legally be taken against him in the court to which the cause is remanded.