author: Mr. Justice Compton

text:
    Barkman et al. vs. Simmons.
    Where a deed of assignment, for the benefit of creditors, purports to convey all of the debtor’s property, and refers to a schedule as thereto attached, the assignment operates on the articles specified in the schedule; but if no schedule is annexed, the deed is inoperative.
    Such deed of assignment, being limited and controlled by the schedule intended to be attached to it, is a special, not a general, assignment; and as by the schedule alone it can be ascertained what articles were intended to be conveyed for the benefit of the creditors, the failure to attach the schedule, renders the deed insensible, and parol evidence cannot be resorted to, as in case of a general assignment, to render it operative and effective.

      Appeal from, Ouachita Oi/rcuit Court.

    Hon. Len B. Green, Circuit Judge,

      Lyon, for the appellant.
    The Circuit Court erred in excluding from the consideration of the jury, the deed of assignment, executed by Lockwood and Phillips, for the benefit of their creditors. ' The deed was for a fair and meritorious consideration ; and divested Lockwood and Phillips of all ownership of the property at the the time the attachment was levied, at the suit of the defendant. It conveyed all their lands within the State, and all their goods and chattels— necessarily including the clocks, for the conversion of which, the • present suit is brought. Thi s was a general assignment of all the debtors’ property, and no schedule was, therefore, necessary; the deed, itself, was sufficiently descriptive of the property, and the schedule intended to be annexed, was for the convenience of parties in accounting for the proper disposition of the proceeds of sale. Hatch vs. Smith, 5 Mass. 42; Bobins et al. vs. Embry et al., 1 Sm. & Mar. Ch. Rep. 207.

    No schedule being necessary, the deed being sufficiently comprehensive to pass all of the debtor’s property, the omission to attach one did not render the deed inoperative. Emerson vs. Knower, 8 Pick. 63; Duval vs. Raisin, 7 Misso. 449.

    Gallagher, for appellee.
    The only point in this case is, did the Circuit Court err in rejecting the deed offered as evidence by the plaintiffs below.
    ‘ It is respectfully insisted that the deed "was properly rejected, because it was defective in a most essential particular,, and therefore inoperative and void. It purported to convey personal property as per schedule annexed; no schedule was annexed; the deed, therefore, was not perfected, and no property could be transferred by it. Driscoll et al. vs. Fislce et al., 21 Pick. SOS; Wilks vs. Fei'ris, S John. 335.
    It being clearly the .intention of the parties, as expressed in the deed, that a schedule, descriptive of the articles intended to be conveyed, should be attached to it, the deed itself was inoperative, and nothing whatever passed by it, for want of the schedule, upon which it depended, and upon which its provisions acted, and without which it was imperfect.
   Mr. Justice Compton

delivered the opinion of the court.

Barkman and Dickerson brought trover against Simmons, for the conversion of twenty-four clocks. The only facts necessary to be stated are the following: the clocks were attached as the property of Lockwood & Phillips, on the 3d of July, 1855, and sold under execution, in August following, at the suit of the defendant, who was their creditor. The plaintiffs claimed title to the clocks under a deed of assignment executed to them as assignees, by Lockwood & Phillips, for the benefit of creditors, dated 21st June, 1855. This deed was read in evidence, and contained a description of the property conveyed, as follows: “ All and singular the lands and tenements, hereditaments, appurtenances, situate, lying, and being within the State of Arkansas, and all goods, wares, merchandise, chattels, notes, bills, bonds, judgments, evidences of debts, securities and vouchers for and affecting the payment of money, claims, demands, things in action, and property of every name and nature whatsoever of and belonging to the said parties of the first part, (and which are more particularly and fully enumerated and described in the schedule hereto annexed, and marked schedule A).” .No schedule was, in fact, attached to the deed, and upon that ground the court, on motion of the defendant, excluded it from the consideration of the jury, as evidence in' the cause; and the ruling of the court upon this point is the only question presented for our determination.

The position assumed by the counsel for the plaintiffs below— who are appellants here — is, that, inasmuch as the deed purports to pass the entire personal estate of Lockwood & Phil-' lips to the assignees, no schedule was necessary, and none being necessary, the omission to attach one did not render the deed inoperative, notwithstanding it is stated in the deed that a schedule was attached. In this, we do not concur. It is conceded that, under the general description in the deed, all the personal property of Lockwood and Phillips would have passed, had no mention been made of a schedule “ annexed.” Such a general description has been held to be sufficient, because, upon investigation, every particular might be ascertained. (Hatch vs. Smith, 5 Mass. 42; Robins et al. vs. Embry et al., 1 Sme. & Mar. Ch. Rep. 207.) But where, as in this case, the deed purports to convey, in general terms, all the debtor’s property, and refers to a schedule as being thereto annexed, for a more specific description, the assignment is not a general one, that is, it does not pass the debtor’s entire estate, but operates only on the articles specified; and this, upon the general principle of construction, that if a general clause in an instrument be followed by special words which accord with the general clause, the deed shall be construed according to the special matter. Wilks vs. Ferris, 5 John. 335; Munro vs. Alaire, 2 Caines 327; Driscoll vs. Fiske, 21 Pick. 503; Beard vs. Kimball, 11 N. Hamp. 458. In Wilks vs. Ferris, supra; the property was described to be “ all the goods, property, w;ares, merchandise, chattels, vessels, debts, sum and sums of money, claims and demands, and effects, belonging to, and now due and owing to, the said Henry Cheriot, or to which, and in which, he has any right, property, claim, or demand — which said goods, wares and merchandise, hereby granted and sold, are particularly described and enumerated in the schedule A, signed by the said Henry Cheriot, and to these presents annexed,” etc. And the court said: “ This was not in fact, a general assignment of all Cheriot’s estate; for though the words, in one place, be general, yet the assignment immediately goes on to specify, by a reference to the schedule, the specific articles of property assigned; and it therefore could operate only upon the articles specified.”

In Driscoll et al. vs. Fiske et al., supra, the debtors were partners, and assigned all their books, stock in trade, printing apparatus and machinery, books of accounts, book debts, notes, and demands, and all their other property, of every name and nature, except such as is exempt from attachment, most ot the same being now at their place of business, a schedule of which is annexed,” etc. The schedule contained three items, viz: “Stock of books in store; printing presses and materials ; notes, demands, etc.” Afterwards, the furniture of one of'the partners, being then in his possession, was attached by a creditor. It was held, that the words of the assignment, though broad enough in themselves to comprise the furniture, were restricted by tbp schedule ; and that parol evidence that the assignment was intended to embrace the furniture was inadmissible, because it would vary the written instrument.

The deed of Lockwood & Phillips not being, then, a general assignment, but a special one, operating alone on the articles specified, in the schedule, we can look to the schedule only, to ascertain what those articles were, and whether the clocks in controversy were embraced. We cannot, for this purpose, resort to parol evidence, as in case of a general assignment; because, the deed states that the schedule was annexed, specifically describing the property assigned. It was undoubtedly the intention of the parties that a schedule should be attached to, and made a part of, the deed at the time it was executed, and without such schedule the deed was, in contemplation of law, incomplete, and therefore inoperative and void, as against creditors, at least, and ■perhaps as between the parties themselves. In Moir vs. Brown, 14 Barb. (S. C.) 39, decided by the Supreme Court of New York, the language of the deed of assignment was, “all and singular the lands, tenements and hereditaments, situate, lying and being within the State 'of New York, and all the goods, chattels, merchandise, bills, bonds, notes, book accounts, claims, demands, choses in action, books of accounts, judgments, evidences of debt, and property of every name and nature whatever, of the said parties of the first part, (the debtors,) more particularly enumerated and described in the schedule hereto annexed, marked schedule A.” The schedule was not attached at the time the deed was executed, nor until after the property assigned had been levied on at the suit of a creditor, and the commencement of a suit against the sheriff: And it was held that the schedule, containing a specification of the property conveyed, would have controlled and limited the general words of the assignment; that such schedule not being annexed, the assignment was insensible, and, as against creditors, did not convey the property to the assignees, and that parol evidence in relation to the schedule not annexed, was inadmissible to explain, vary or affect the sealed instrument — though such instrument was imperfect without it. In delivering the opinion of the court in this case, Hand, J., after quoting the language of the assignment, said: “ Clearly this schedule contained the personal estate, and the only personal estate transferred. It would control and limit the general words,• by every sound rule of construction. (Wilks vs. Farris, 5 John., 335; Munro vs. Alaire, 2 Caines, 327; Foe vs. Vernon, 5 East., 51; Doe vs. Greathead, 8 id. 91). And until that was annexed, the instrument would be inoperative. It conveys all the real estate in this State. But to the schedule we are to look for a specification of the personal property; and the assignors may say, nothing more was conveyed; only that which was thus ‘ more particularly enumerated and described.’ ” • After discussing several adjudications bearing upon the point, the same learned judge proceeds to say: “The schedule, had it been annexed, would have been valid, and would have controlled.the assignment, making it an assignment of certain specific articles. That was what all parties intended to do, but left the instrument inchoate and imperfect in a most material part.- The assignment proposed by the parties was never executed. How was it possible for the assignees, even as between them and the assignors, to show title to a single article? The schedule was, until annexed, no part of the deed, and could not be proved to explain, vary or affect the sealed instrument. All the cases in which this has been allowed, were by a memorandum made on the deed before or at the time of the execution; or by some plain reference to another separate instrument. Here, the reference is to a schedule annexed, and there was none. This was the portion of the deed necessary to give force and effect to the conveyance ; and without which it was impossible to know what was tranferred.”

So, in Weeks vs. Maillardet, 14 East, 568, the defendant, by articles under seal, bound himself to deliver to the plaintiff, “the whole of his mechanical pieces, as per schedule annexed.” In covenant for breach of the contract in not delivering the pieces, it was held that the schedule formed part of the deed, which, without it, would be insensible; and that it was competent for the defendant upon non est facimm pleaded, to show in defence, that at the time the articles were, executed, the schedule was not annexed, but was, in fact, afterwards subscribed and annexed by the witness to the articles, who was the agent of both parties, immediately after the execution of the articles, and after one of the parties had left the room — and this, though the pieces mentioned in the schedule so annexed were such as had been agreed upon by the parties before the 'execution of the articles. Lord Ellenborough, C. L, said: “The whole deed was inoperative, unless the schedule was co-existing' with it, and forming part of the obligation. Taken by itself, the deed is insensible, and has no object.to operate upon: therefore, it is not the defendant’s deed without the schedule, which gives effect and meaning to the whole of the duties to be performed on either side. The articles assume that at the time of their execution the schedule was annexed; and if there were then no schedule, there was no deed for any sensible purpose; for no duty could be demanded on the one side, or performed on the other side without the schedule.”

The case of Emerson vs. Knower, 8 Pick. 63, is not an authority in conflict with the views above expressed. In that case the deed of assignment contained a provision that a schedule of the property should be made out and annexed “ as soon as may be.” The court correctly held that annexing a schedule was not a condition precedent to the operation of the deed, and that the omission to annex it did not make the doed void, or defeat its operation- — -though the provision might amount to a covenant that the debtor would, whenever it shot¿d^b%:ge-X,. quired, make out and annex such schedule. The reason for this decision is obvious. The parties did not i/ntend that the annexation of the schedule should be essential to the operation of the deed. “ The property passed,” says the court, “ and was intended to pass before any schedule should be taken. The assignee had power, after the execution, to demand the property of all those in whose hands it had been placed, and though a schedule might be convenient, it was by no means essential to the contract, the property and the place where it was to be found, being specifically mentioned in the body of the indenture. The qualification of the provision in regard to the schedule, that it was to be made out and annexed as soon as may he, proves that it was not considered by the parties as affecting the validity of the assignment. It was for the convenience of the assignee and the creditors, and perhaps amounts to a covenant on the part of the defendant, that he would, whenever it should be required, make this annexatipn to the indenture.” Whereas, in Moir vs. Brown and Weeks vs. Maillardet, supra, as also in the case before us, it was the intention of the parties that the schedule should be made a part of the deed at the time of its execution, as shown in each case by the face of the deed itself.

Duval vs. Raisin, 7 Missouri, 449, has been much relied on. It is said to be in point for the appellants. The precise question we are considering seems not to have been raised in argument, nor passed upon by the court; though, from the facts in the case, as given by the reporter, it might have been. The case turned chiefly upon other points, the court merely remarking, that “ the neglect or delay ” in making out the schedules, could not render inoperative the deed of assignment, the assignee, in such cases, having the right in equity to compel “ a delivery of the books and securities ” — citing Keys vs. Brush, 2 Paige Ch. 312, where it was decided, as in Emerson vs. Knower, supra, that the annexation of a schedule to the deed of assignment pursuant to a provision in the deed, by which a schedule “ to be annexed,” was to be made out by the assignor “ with all convenient speed,” was not not a condition precedent to the operation of the deed — the chancellor holding it to be the manifest intention of the parties, as collected from this and other provisions in the assignment, that the deed should operate without the schedule. But if Dwoal vs. JRaisin, supra, could be considered — and we think it cannot be — as a decision in point for the appellants, we should not hesitate to dissent from it as being unsound in principle and unsupported by authority.

Binding no error in the record, the judgment of the court below is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Vaughan, et al. vs. Matlock.
    There being no precise form of words necessary to constitute a covenant, it must depend upon the intention of the parties, and to ascertain that intention the court may look, not only to the instrument, but to the circumstances attending its execution:
    A lease of a lot-of ground, described by metes and bounds, “ together with the fire proof brick cotton ware-house built thereon, and all and singular the other appurtenances thereunto belonging,” construed to be a covenant that the warehouse was fire proof, it appearing that the lessees leased the premises for the purpose of procuring a fire proof ware-house, in which to store cotton, etc.

      Appeal from Ouachita Circuit Oourt.

    Him. Ben B. Green, Circuit Judge.

      Lyon for the appellants.
    The representations by the lessor in the deed of lease, viz: that there was on the lots described therein a fire proof brick cotton ware-house, was not a mere description, but is an implied covenant on the part of the lessor. See Pa/rker et al. vs. Smith et al. 17 Mass. R.p. 413, and Gates vs. Oaldwell gb al. ews. 7 Mass. R. 68.
    A covenant may be created by any form of words, which show the intention of the parties. Fairfaas vs. Lewis, 2 Rand. 20; 2 Bibb 614; 5 Cow. 170; 2 Hillcm'd Real Property, p. 385, oh 86, see. 4.
    Fabrelly & Finley, for appellees.
    A party to a covenant of lease, who has executed his promissory note for a sum certain, in consideration of such a lease, cannot plead a partial failure of consideration, to avoid the payment of the note, or by way of recoupment, on the ground that he was induced to enter into said covenant of lease by the representations of the lessor, and that these representations were not true. See 1 Greenlf. Lv. 275, 276, 281; Boarmam vs. Johnston, 12 Wend. 573; 1 Spenee’s Eg. Jur. 779 ; 6 Ves. 678 ; 2 Kends Com. 471, 473, 478 ; 15 Ark.AQl; 1 Eng. 412.
   Mr. Justice Compton

delivered the opinion of the court.

This was assumpsit by Matlock against. Yaughan & Arrington, on a promissory note for the payment of twelve hundred dollars.

As a defence to the action the defendants pleaded a partial failure of consideration, averring in their plea, that the nóte sued on was made with four others, each for the same sum, and all dated 4th February, 1857, for the sole consideration of the yearly rents for the lease to them by the plaintiff, for a term of five years, of certain lots of ground lying in the city of Camden, on which was a brick ware-house, for storing cotton and “ up freight;” that the contract for the lease of the premises was reduced to writing, Was signed and sealed by both parties, and contained on the part of the plaintiff, a covenant warranting the ware-house fire proof, that the sole inducement moving the defendants to take the lease, was that they might have the use of a fire proof ware-house for the storage of freight and produce; and that but for the covenant aforesaid, they would not have leased the premises. The plea further averred that the warehouse was not fire proof, and that in consequence thereof, the defendants had sustained damage, etc.

The plaintiff had oyer of the lease, and setting it out, demurred to the plea, assigning for cause of demurrer, that the lease contained no covenant warranting the ware-house fire proof. The court sustained the demurrer, and the defendants declining to plead further, final judgment was rendered and they appealed.

The deed states that the said John Matlock, for and in consideration, etc., hath demised, etc., and by these presents doth demise, etc., unto the said Vaughan & Arrington, their executors, etc., all that messuage and lot of ground situate, lying and being in said city of Camden, described as follows: Four lots of land Nos. 199, 200, 201 and 202, in block No. 43, each fronting on the southerly line of Tan Burén street, 40 feet, and running back therefrom southerly the width of their respective fronts, each to Tyler Alley, 110 feet, and Polk street on the east. Together with the fire proof brick cotton ware-house, built thereon, and all and singular the other appurtenances thereunto belonging,” etc.

The only question presented for our determination is, whether the words “ fire proof brick ware-house,” in the above extract, are to be understood as a covenant on the part of Matlock. There being no precise form of words necessary to create or constitute a covenant, this must depend on what is to be collected as the intention of the parties, ■ and to ascertain that intention we may not only look to the instrument itself, but also to the circumstances attending its execution; for, though no rule is better established, than that parol evidence is not admissible to add to, alter or contradict a written contract, it is equally well settled that, to introduce parol- evidence of surrounding circumstances, in order to arrive at the real intention of the parties, and to make a correct application of the words of the contract to the subject matter thereof, and the objects professed to be described, is no infringement of the rule. Addison on Cont. p. 847; 1 Green'l. Ev. secs. 277, 286 and note. And the surrounding circumstances in this case, as disclosed by the plea, we must take to be true, because by the demurrer they are admitted to be so. "We find, then, that Yaughan & Arrington leased the premises for the purpose of procuring a fire proof ware-house, in which to store cotton and “ up freight.” In the lease, Matlock described his to be such. Was this merely to identify the premises leased? We think not. The premises are described as four certain lots of ground, with specified metes and bounds, “ together with the fire proof brick cotton ware house, built thereon, and all and singular the other appm-tenances thereunto belonging.” If, after describing the lots by number, block and boundary, the description had continued, “ together with all the appurtenances thereunto belonging,” would not that have been sufficient? Or, if it had continued “together with the brick ware house, and all other appurtenances, etc,” would not that have been a sufficient description ? Undoubtedly so. But the description in fhe lease went further — the ware house was déseribed as “ fire -proof,” which, we think, was not meant to be merely descriptive of the property, but was a covenant of warranty as to its quality.

And this construction is not unsupported by authority. In Parker et al. vs. Smith et al. 17 Mass. 411, land had been conveyed as bounded on a way upon one side, and it was decided that this was not merely a description, but an implied covenant that there was such a way. The court said: “The ¡principal question in this case arises upon the construction of the deed of Joseph Bussell to Benjamin Taber, in which he conveys a piece of land in what is now the town of New Bedford, bounding it southwardly and westwardly on a way, ■ or street. By this description the grantor and his heirs are estopped from denying that there is a street or way to the extent of the land on those two sides. We consider this not merely to be a description, but an implied covenant that there are such streets. It probably entered much into the consideration of the purchase, that the lot fronted upon two ways, which would be always kept open, and, indeed, could never be shut without a right to damages in the grantee or his assigns.” This case was cited with approbation in Emerson vs. Wiley, 10 Pick. 310, subsequently decided by the same court. So, in the matter of Lewis Street, 2 Wend. 472, it was held, that where a building lot was sold, bounded on a street, in the city of New York, designated as such on the city map, or on a map made by the owner of the lands, in reference to which sales were made, although the street remained, at the time, unopened under the authority of the corporation, a covenant might well be implied that the purchaser should have an easement or right of way in the street, to the fall extent of its dimensions. The same principle has been frequently applied in cases touching the sale of chattels. Thus, where wool was sold in sacks, on which, and in the invoice, it was described as of a certain quality, the seller was held thereby to warrant that the wool was of that quality. Richmond Trading & Manuf. Co. vs. Farquar, 8 Black. 89. In Hastings vs. Lovering, 2 Pick. 214, the article sold was described in the sale note, and also in the bill of parcels as two thousand gallons prime quality winter oil. This was held to be a warranty that the oil was such as described. See, also, Henshaw vs. Robins, 9 MetC. 83; Osgood vs. Lewis, 2 Har. & Gill 495.

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


author: Mr. Justice ComptoN

text:
    Sullivan ad. vs. Deadman.
    On the trial of a ease de novo, in the circuit court, on appeal from the probate court, it is in accordance with the spirit of the statute (sec. 201, chap. 4, Gould's Dig.,) to permit a party to introduce other evidence than that contained in the record of the ease, as tried in the probate court.
    The fact that the drawee has no funds of the drawer in his hands, is prima facie an excuse for not giving the drawer notice of the protest of a bill of exchange for non-payment: and if there be any special circumstances entitling him to notice the onus is upon him to prove them.

      Appeal from Arkamas Circuit Cou/rt.

    Hon. John C. Murray, Circuit Judge.
    Garland & Randolph, for tbe appellant.
    It is a general principle that where an appellate jurisdiction only is exercised by one court of record over cases coming from another, such cases are to be taken as they were in the latter court, without] addition or diminution, Marbury vs. Madison, 1 Cramch, 137; 4 Bou/o. Inst. 70. Under the statute (secs. 200, 201, chap. 4, Gould's Dig.¿). the Circuit Court, on appeal, is confined to the exceptions taken in the probate court, and required to give the same judgment that court ought to have given ; and this statute cannot govern the practice on such appeals, if a new case is permitted to be made in the Circuit Court.
    There was no notice to the appellant of the protest of the bill of exchange, (which objection this court has holden to be well taken, 19 Ark. 484,) and no sufficient excuse for want of notice.
    To excuse a want of notice, it is necessary that the drawer have no effects in tbe bands of tbe drawee, at any time during tbe currency of tbe bill. Byles on Bills of Exchange 231. Tbe burthen of proof, to excuse a want of notice, is upon tbe appellee in tbis case. 2 Marsh. 152; 3 Bibb 261; 3 Gonn. 172.
    WilliaMS & MartiN, for appellee.
   Mr. Justice ComptoN

delivered tbe opinion of tbe Court.

Tbis was a proceeding in tbe probate court, for allowance and classification of a claim against tbe estate of Milton Walker, deceased — being a bill of exchange drawn by Walker, and protested for non-payment. Tbe claim was allowed, and on appeal to tbe circuit court, the judgment of tbe probate court was affirmed. An appeal was then prosecuted to tbis court, where tbe judgment was reversed, and tbe cause remanded to tbe circuit court, with instructions that it be there tried de novo. 19 Arh. 484. A trial was accordingly bad, which resulted in a judgment for tbe claimant, and tbe administrator again appealed.

On the trial de novo in tbe circuit court, tbe claimant was permitted to introduce new proof, or, in other words, proof other than that contained in tbe record of tbe case tried in tbe probate court. Tbis was in accordance with tbe manifest spirit of our statutory provision regulating tbe practice in such cases. Gould’s Dig., chap. 4, sec. 201, p. 138. Tbe first objection, relied on, is not, therefore, well taken. But it is insisted that tbe excuse for not giving Walker notice, that tbe bill had been protested for non-payment, was not sufficient. It was shown in evidence, that tbe drawee bad no funds of the drawer in bis bands. Tbis was prima facie an excuse for want of notice; and if any special circumstances existed, which entitled tbe drawer to notice without funds, as that be bad a right to draw in consequence of engagements between himself and tbe drawee, or, that on taking up tbe bill, be bad a right to sue tbe acceptor or any other party, and tbe like, tbe onus was on the defendant to show those circumstances — and not having done so, the prima facie excuse made out is not rebutted, and must prevail. See Story on Bills, sec. 312, p. 389.

Let the judgment be affirmed.


text:
    Gill et al. vs. Ward et al.
    It is not necessary that the affidavit, prescribed by section 180, chap. 99, Gould's Dig., should be signed by tbe affiant — the omission to sign it not affecting its validity.

      Appeal from Yell Oi/rcuit Oourt.

    Hon. JohN J. ClendeNIN, Circuit Judge.
    Hollowell, for the appellants.
    JoedaN and Williams & Martin, for the appellees.
   Mr. Justice Compton

delivered the opinion of the Court.

The circuit court dismissed the plaintiffs’ appeal from the decision of the justice of the peace, in this case, upon the ground that the affidavit for the appeal, though duly certified by the justice before whom it was made, was not signed by the affiant.

• The language of the statute is, that the applicant, or some person for him, shall make and file with the justice, an affidavit that the appeal is not taken for the purpose of delay,” etc., Gould's Dig., ch. 99, sec. 180.

An affidavit, as defined by Blackstone, is “ a voluntary oath before some judge or officer of the court, to evince the truth of certain facts.” 3 Bl. Com. 304. In practice, it is said to be “ an oath or affirmation reduced to writing, sworn or affirmed to before some officer who has authority to administer it.” Bouv. L. Dic. 79, title, Affidavit. It is not necessary that the affiant should sign the affidavit. He must make it; that is, he must swear to the facts stated, and they must be in writing. It is then his affidavit — and as evidence that it was sworn to by thé party, whose .oath it purports to be, it must be certified by the officer before whom it was taken; which certificate is commonly called the jurat, and must be signed by such officer.

That the signature of the party who makes the affidavit, is not essential to its validity, where there is no statute or rule of court, which requires the affidavit to be signed, was held in Hilsman et al. vs. Garrard, 1 Har. 124; Redus vs. Wofford, 4 Sme. & Mar. 579; Shelton vs. Berry, 19 Texas 154; Millins vs. Shafer, 3 Denio 60; Jackson vs. Virgil, 3 John. 540, and Hoff vs. Spicer et al. 3 Cain 190. And we have not been able to find any adjudications where it was held otherwise. True, Bacon defines an affidavit to be “ an oath in writing, signed by the party deposing, sworn before and attested by him who hath authority to administer the same.” 1 Ba. Abr., title, Affidavit. But this definition, as observed by Wheeler, J., in Crist vs. Parks, 19 Texas 235, is probably founded on the practice under rules of court in England. And although it is said — and wé think correctly — in some of the cases above cited, to be the better practice, that every officer before whom an affidavit is made, should require the party sworn, to subscribe his name to the body of the affidavit, yet, in all those cases, it is distinctly held that the omission of the affiant’s signature does not affect the validity of the affidavit.

It follows that the court erred in dismissing the plaintiffs’ appeal, and for this error the judgment must be reversed, and the cause remanded for further proceedings.


text:
    Alexander vs. Stewart.
    The oases of Reed et al. vs. S. Bank, 5 Ark. 193 — that itis errorto render-judgment by default, while there is an issue undisposed of — and Martin et al. vs. S. Bank, 20 Ark. 336 — that it is error to amend the record at a subsequent term without notice to the party — adhered to.

      Error to Phillips Circuit Court.

    Hon. Mark W. Alexander, Circuit Judge.
    Garland & Randolph, for the plaintiff.
    Stillwell & Woodruff, contra.
   Mr. Justice Compton

delivered the opinion of the Court.

Stewart sued Alexander to the November term, 1858, of the Phillips circuit court, on a promissory note for $350: Alexander appeared to the action, and pleaded payment,'to which issue was joined. The cause was then continued, and-at May term, 1859, judgment by default was entered against Alexander. At November term, 1859, on the application of Stewart, the court vacated the judgment by default, .and by a nunc pro tunc order, caused judgment to be entered against Alexander, as by consent of the parties. Alexander had no notice of this application, and having brought the record here by writ of error, insists that the judgment ought to be reversed.

There being an issue of fact upon the plea of payment, not disposed of, the judgment by default was error, as held in Reed vs. The Bank of the State, 5 Ark. 193. And, though the court below undoubtedly had the power, on the application of Stewart, to cause its record to be so amended as to speak the truth, it was error to exercise that power without notice to Alexander, who was interested in the record, and had the right to be heard on the motion to amend, as held in Martin et al. vs. Bank of the State, 20 Ark. 336.

Let the judgmet be- reversed, and the cause remanded for further proceedings.


author: Mr. Justice Fairchild

text:
    Graham vs. Roark.
    The owner of slaves is responsible for the trespass of his slaves, in cutting down and destroying the growing crop of another, and in throwing down and carrying away the rails with which his lands are fenced, though such trespass be committed in his absence, and by the order of his overseer.
    No question is presented to this court upon the admission of evidence, where a motion for a new trial is made, and the admission of such evidence is not made one of the grounds of the motion for a new trial.
    Where a person enters the lands of the United States, he becomes the owner of every thing then attached to the freehold — such as growing crops and fences.

      Appeal from, Calhoun Circuit Court.

    Hon. John C. Murray, Cii'cuit Judge.
    Gallagher and Knight, for the appellant.
    The appellant is not liable for the trespass complained of in this action (though the owner of the slaves,) he not being present at the time, having no cognizance or knowledge of the matter, and never having approved of it. The whole matter being done wholly and solely by Harrold, and under his direction, he is alone liable; he being, in every view of our law, the “ master or owner ” of the slaves when committing-the trespass. The master is liable in trespass for the act of his servant only in consequence of his command; and is not liable in tort, in the absence of proof of his command.
    Farrelly & Finley, for the appellee.
    The statute, sec. 7, chap. 174, p. 1062, Gould’s Digest, provides that if the slaves are in the employ or hire of any person other than the owner, such person shall be liable. In this case the slaves were not in the employ of any person other than the owner, but of the owner himself, under the management of the overseer; and if, in committing the trespass, the overseer acted beyond the scope of his authority, he was a co-trespasser with the slaves, and was liable himself, but that would not relieve the master from the responsibility imposed by the statute.
   Mr. Justice Fairchild

delivered the opinion of the court.

In August 1856, the slaves of the appellant, acting under the direction of his overseer, cut down and carried away and destroyed the corn and peas that were growing upon a piece of land belonging to James King, who, being dead, is now represented in this suit by his administrator, the appellee; and also threw down and carried away the rails with which the land was fenced. For these injuries the appellee brought this suit against the appellant, founded upon the fifth section of ch. 174 of Gould's Digest, which provides that for the commission of such trespasses, as have been mentioned, by slaves, the master or owner is liable to the party injured for the recovery of single damages, the recovery to be enforced under the regulations prescribed in the preceding sections of the act. The trial was had upon the issue of not guilty; the verdict was for the plaintiff, judgment was rendered against the defendant and he appealed to this court.

The appellant was absent from the state when the slaves committed the trespasses complained of, and the evidence shows that upon his return he expressed his regret for the acts done by his slaves — his disapprobation of the conduct of the overseer in causing the negroes to destroy the growing crop and throw down the fence.- On account of this absence of the appellant and the conduct of the overseer, it is contended that the overseer, and not the owner of the slaves, is the proper person to be held to responsibility.

The object of the statute is to secure the owners of growing crops and of inclosures from the injuries that might be committed by slaves, without the consent of the master or owner; for if the trerpasses should be committed by the slaves under the direction of the master or owner, he would be liable as if they were committed by himself; that is, for treble damages sustained by the destruction of the crop, and for double damages sustained by reason of the fence being thrown down, with the penalty of five dollars for each throwing down of the fence. If the slaves had committed the trespass of their own will, without having been directed thereto by the overseer, no question of the propriety of the action against the appellant could have been raised; for the statute plainly attaches to the master a responsibility for the enumerated trespasses of the slaves. The law rightly concludes that when a loss has been sustained by the wrongful acts of slaves, it shall be borne by their owner rather than by the party injured; withdrawing the case from the operation of the general rule recognized in McConnell vs. Har deman, 15 Ark. 158, that masters are not answerable for the vicious acts of slaves, except as made so by statute. And we think the owner of the slaves can be in no better position by the commission of a trespass by his slaves, acting under the direction of an overseer, than if the trespass had been the unprompted act of the slaves. The grievance sustained by the injured party results from the acts of the slaves; the inducement under which the slaves act is not material, unless done under the direction of the master, or owner, when the act becomes his own, and is to be recompensed under the first and second sections of the act; or unless the slave be in the employ or hire of some other person than the owner, when the accountability of the permanent master is transferred to the employer or hirer, wrho, under the seventh section of the statute, in becoming the temporary master of the slaves, for the time, assumes the responsibility of an owner. But an overseer is not such hirer or employer, as is meant- in the seventh section. Slaves acting under the direction of an overseer, are in the employment of their master; they are not under the hire of the overseer.

There is no ground for the proposition contended for by the appellant, and. which Harrold, the overseer, by his testimony, seems willing to concede, that the appellee must exchange defendants, by holding the overseer to account for the acts of the slaves of the appellant while in his own employment, and when the rails thrown down from the fence of King are upon the farm of the appellant, and when his mules have eaten up the corn that was cut from King’s field. There would be more reason in holding that the direction of the overseer would bring the acts of the slaves within the sixth section, making the owner responsible as if the direction had been given by himself. This case, however, proceeds only for single damages, and the appellant is not injured in being held only to such damages, even if he might have been sued for treble damages, and for the double damages and penalty provided for in the first and second sections of the act; inasmuch as a recovery in this suit, under the fifth section, will bar any attempted recovery for any thing done by his slaves, though done in obedience to the order of his overseer.

It might be conceded that under the general law, Harrold, the overseer, would be liable for the whole damages which he procured the slaves to commit, and that the owner would not be liable for wrongs not commanded or participated in by himself, but the appellee preferred an action upon the statute to the common law proceeding; adopted a remedy that looked to the known responsibility of the owner of the slaves, and avoided the possible irresponsibility of the owner’s hireling.

There was no misjoinder of causes of action, as only single damages were recoverable for each sort of trespass complained of in the declaration.

The point made upon the alleged illegality of the evidence of removal of the rails cannot be sustained, as that was waived by a motion for a new trial, in which the admission of that evidence is not charged as a ground for new trial.

The verdict was not against the evidence, was in conformity to it, both in being for the plaintiff and in its amount, and was not against law as construed in this opinion.

King entered the land on the 25th of July, 1856, the trespasses were committed on it in the next month. When he bought the land of the United States the crops and fences upon it were his. Floyd vs. Ricks, 14 Ark. 290, 292; McFarland vs. Mathis, 5 Eng. 562; Gibbons vs. Dillingham, ib. 13. Brock vs. Smith, 14 Ark. 436, is not in conflict with these cases, and does not deny the right of King to the crop and improvements upon the land he entered. In that case the trees were severed from the soil and had become personal property before the land was entered. On page 435 the court expressly affirm Floyd vs. Ricks, and distinguish it from the case under consideration.

In refusing the instructions asked by the appellant, and in giving its general charge, the Circuit Court did not declare the law to be inconsistent with our exposition of it, and upon the whole record the judgment is affirmed.

Mr. Justice Compton did not sit in this case.


author: Mr. Justice Faibchild

text:
    Jackson vs. Rutherford.
    The finding of the Circuit Court sitting as a jury will not be disturbed, where it does not appear that it was against evidence, nor without any evidence on which to rest.

      Appeal from Pulaski Circuit Court.

    Hon. John J. Clendenin, Circuit Judge.
    Gaeland & Randolph, for appellant.
    Hempstead, for appellee.
   Mr. Justice Faibchild

delivered the opinion of the court.

Previous to the time of settlement between the parties, Jackson had deposited swamp land scrip, and had drawn out different sums.

On the 20th of December, 1856, the parties 'settled and Rutherford paid to Jackson, as the amount of scrip undrawn, seventeen thousand, eight hundred and fourteen 81-100 dollars, which he claims to have been seven hundred and eight 50-100 dollars more than was due to Jackson, and to recover the overpayment this suit was brought. The court sitting as a jury found for the plaintiff, and we see no reason to disturb the judgment rendered upon its finding, since we cannot say that the finding of the court is against the evidence, or without any evidence on which to rest.

Let the judgment be affirmed.


author: Mr Justice Faiiichild

text:
    Henry vs. Harbison.
    Where a father-in-law, upon or after the marriage of a daughter, sends slaves home with her, which are permitted to remain, free from his own control or claim, a gift of the slaves sent is presumed to have been intended by the father to his daughter, unless the contrary is established by proof.
    Where a demand and refusal to deliver the property in dispute are pre-requisites to the commencement of a suit, and the defendant admits upon the record a demand, the return of the sheriif upon the writ that the property was found in the possession of the defendant, is sufficient evidence of a refusal to deliver possession.

      Appeal from Pope Circuit Court.

    Hon. John J. Clendentn, Circuit Judge.
    JORDAN and Hollowell, for the appellant.
    Where a parent, upon the marriage of his daughter, suffers property to go into her possession, it is prima facie evidence of a gift. 4 Me Cord 228; 1 lb. 214, 139; 4 Iredell 165; 1 Hay. 2; lb. 97; 2&. 451; 2 lb. 126; 5 .More.' 504; 1 Ala. 652; 20 i&. 720; 22 lb. 422; 3 Hen. 4" Munf. 127; 2 Bibb 32; 4 lb. 73.
    The defendant having admitted, and made it a matter of record, that a demand in due form was made before suit brought, was estopped from denying a demand, or of taking any advantage for want of it.
   Mr Justice Faiiichild

delivered the opinion of the Court.

In 1852, Henry, the plaintiff below and appellant here, married Mary Ann Harbison,.a daughter of John Harbison. The married couple left the house of John Hai;bison about the first of January, 1853, for their own home, in his neighborhood, taking with them a negro, Martha, which remained with them till August, 1853, when Martha returned home, and in her place the negro girl, Phillis, was sent to Plenry’s house. There she remained till the fall of 1855, when both Harbison and Henry removed from South Carolina, the place of their residence, to Pope county, in this state. In the latter place both families lived, Phillis remaining in the family of Henry, and under his control, until in September, 1857, she was taken by John Plarbison, and after his death, in July, 1858, she came to the possession of the defendant, Hugh Harbison, who may be supposed to have been holding Phillis for the plaintiff, to whom John Harbison conditionally willed the slave. Hence, to recover the negro, the plaintiff brought this suit, an action of replevin, against Hugh Harbison.

The matter to be determined is, whether Phillis, in September, 1857, was the property of the plaintiff or of John Harbison.

It is well settled by a course of decisions prevalent in. the Southern States, that when a father-in-law, upon or after the marriage of a daughter, sends slaves home with her, which are permitted to remain free from his own control or claim, that a gift of the slaves sent is presumed to have been intended by the father to the daughter. Farrel vs. Perry, 1 Haywood 2; Par ker vs. Phillips, ib. 451; Davis vs. Duncan, 1 McCord 151; Smith, vs. Montgomery, 5 Mon. 504.

Whenever the question of ownership of such slaves arises upon a controversy between the father and son-in-law, or their representatives, the inquiry is, whether the slaves were the subjects of a gift, or of a loan. This is a question of intention. But without facts showing a contrary intent, it will be taken that the father intends a gift to his daughter. And the contrary must be clearly established. This conclusion is in obedience to the dictates of parental duty and affection.

Upon the settlement of a daughter in life, a father’s acts towards her are to be construed in the wray that will best discharge the obligation which binds him to provide for his child, and will the most promote her advantage. This construction tends much to repress family strife, to promote open and fair dealing between the parties affected and those with whom they have business.

To ascertain the intention of John Harbison, in permitting Phillis to be sent to, and remain in the family of the plaintiff, from August, 1853, to September, 1857, it may be noted, tha upon the plaintiff and his wife first commencing house-keep' ing, Martha was sent home with them because John Harbison being behind with his work, wished to keep Phillis, who was older and a field hand, to assist him in the coming crop, that after the crop was worked, Phillis, who had, in Harbison’s family, been called the servant of Mary Ann, was permitted to go to her arid her husband; that she remained in the family of the plaintiff while he and Harbison lived near together in South Carolina, till the fall of 1855, without any claim being made to the negro by Harbison; that the two families then moved together to this state; that Harbison hired out his negroes, and Henry hired Phillis to the same hirer; that the wages of Phillis were paid to Henry, were never claimed by Harbison, and that Phillis remained under the exclusive control and claim of Henry for more than a year after the death of his wife.

The expressions of dissatisfaction made by John Harbison to his wife, when she had sent Phillis to their daughter, Mrs. Henry, as stated by Margaret Dickey, and the evidence of the two Wylies, taken in connection with the proof of the foregoing facts, do not affect the legal character of the continuous notorious acts of Henry’s claim of the negro, and of John Harbison’s concession to that claim.

A few authorities, additional to those referred to, containing the same principle, but specially applicable to the facts of this case, may be cited. The Supreme Court of North Carolina, in 1794, said: “ When a man sends property with his daughter, upon her marriage, or to his son-in-law and daughter, any short time after their marriage, it is presumed, prima facie, that the property is given absolutely in advancement of his daughter; and when the property is permitted to remain in the possession of the son-in-law for a considerable length of time, as in this case, it will be necessary to prove, very clearly, that the property was only lent by the father, and that it was expressly and notoriously understood not to be a gift at the time. The peace of families, and the security of creditors are greatly concerned in the law being thus settled. * * * * * *' This property was given in the usual manner, that is, sent with them on their going to house-keeping, as it is called, or sent to them as soon as the parent could make the necessary arrangements in his farm, or family, for that purpose.” Carter vs. Rutland, 1 Haywood 97.

The facts in a South Carolina case are much like those disclosed in this case, although the negro was not sent by the father to the house of the son-in-law till a year after the marriage. The negro remained at the house of the son-in-law till the death of the wife and daughter, when the father claimed and got possession of the negro, for which the son-in-law brought an action of trover. On the trial, the judge charged the jury that the rule of law, that where a parent suffered property to go with a child, upon marriage, a gift was implied, did not apply because the negro was not sent to the son-in-law till a year after marriage. On complaint of this charge, the court held as follows: “We are constrained to grant anew trial, for the position, as stated by the court, is not law, and it may have influenced the jury in making up their verdict. The long and well established doctrine is, that the presumption of a gift may arise from the circumstance of a parent sending a slave to a married child, aud suffering it to remain in the possession of such child, without any express stipulation on the subject, and that whether the property be sent immediately on the marriage or some time after. The time at which it was sent may strengthen or weaken the presumption. If sent home with the child immediately on the marriage, it is almost conclusive. If a long time after, still the presumption may arise, although it is not so conclusive. * * * In the case of Hatton vs. Banks, the negroes were not sent when the young people first went home.” McCluney vs. Lockhart, 4 McCord 251. The same doctrine is held in Alabama, in cases thát also declare upon facts that show the intention of the father in parting with the possession of the negro. Olds vs. Powell, 7 Ala., N. S., 655; Williams vs. Maull, 20 Ala. 729.

It follows that the first, second and fifth instructions of the plaintiff, which embodied the principle .maintained in this opinion, were legal and applicable, and* were improperly refused by the circuit court.

At the instance of the defendant the circuit court instructed the jury, that if a father permitted a slave to work for a married daughter and her husband, and to remain at their house three or four years, that did not give the husband the right of property in the slave. This instruction was inapplicable to the facts of the case, and in itself calculated to mislead the jury, and taken in connection with the refusal of the court to give the first, second and fifth instructions asked by the plaintiff, was prejudicial to the plaintiff, and illegal. The first instruction of the defendant should not then have been given without such modifications as to make it consistent with the law'%s"herein-. announced. ^ v,f *”

A record entry in the cause states that it was/admitted by

the defendant, that a demand was made of the negro in controversy, before the commencement of the suit, in due form. It was also proved by the sheriff’s return, which was legal evidence, that the negro was taken out of the possession of the defendant.

There was then no foundation in the case for the fourth instruction of the defendant, that a demand was not sufficient without a refusal by the defendant to'deliver possession, for the plaintiff to maintain his action. After the demand was made the negro would not have been found by the sheriff in the possession of the defendant unless he had refused to comply with the demand, and after the admission by the defendant of the demand, he ought not to have asked for his fourth instruction. In obtaining it, the defendant subjected his judgment to review for an erroneous ruling of the court.

The judgment of the circuit court is reversed, with instructions to grant a new trial upon its return to the circuit court of Pope county.


text:
    Duval vs. Mayson.
    If all the parties interested as plaintiffs do not join in the action, it is ground for non-suit upon the trial.

      Appeal from Desha Circuit Court.

    Hon. John C. Murray, Circuit Judge!

      Stillwell & Wooduuff, for the appellant.
   Mr. Justice Fairchild

delivered the opinion of the court.

In an action of assumpsit brought against Duval, Mayson, the plaintiff, described himself as doing business under the style of Mayson & Britt, and counted upon an indebtedness that so accrued to him. Upon a trial on the general issue, and after proof of the account sued upon by a witness who represented himeelf as the clerk of Mayson & Britt, when the goods charged in the account were bought by the defendant, the defendant offered to prove that the plaintiff was not, at that time, doing business under the style of Mayson & Britt, but that said firm was then composed of the plaintiff and Francis E. Britt. The court sustained the objection of the plaintiff to the introduction of this testimony, and the defendant excepted.

The judgment is now sought to be reversed upon the exception taken to the ruling of the court, and the appellant must prevail.

If all the parties interested as plaintiffs do not join in the action, it is ground for non-suit upon the trial. The defendant is not obliged to plead the non-joinder in abatement. 1 Ch. Pl. 10, 12, 14, 487, (7 Am. Ed): Hicks vs. Branton, 21 Ark. 189.

The defendant had the right to show that Britt was a partner of Mayson when the action accrued upon the account, and to have required both of the partners to be joined in bringing the suit; else, if the fact should be as the defendant wished t® show, Britt would have the same right as the plaintiff, separately, to sue the defendant upon the account.

Judgment reversed.


author: Mr. Justice Fairchil-d

text:
    Brooks vs. Perry.
    Where the verdict of a jury is found upon conflicting evidence, this court will not review it.
    A principal is responsible for the acts of his agent within the scope of his authority. A party will not be heard to complain of instructions that are not prejudicial to him.
    The course and extent of the argument before the jury is within the discretion of the Circuit Court (20 Arle. G24), and this court will not control it where it does not appear that the interference of the court was prejudicial to the party.

      Appeal from Dallas Circuit Court.

    lion. John C. Murray, Circuit Judge.
    Gallagher, for appellant.
    Flanagin, for appellee.
   Mr. Justice Fairchil-d

delivered the opinion of the court.

This suit was an effort to make Mrs. Perry liable for goods bought by Exum, as her agent.

Upon the fact of the agency, or rather upon the purchase, of the goods being for Mrs. Perry, the evidence was conflicting, and upon that branch of the case, the verdict of the jury, not being subject to review, is conclusive against the recovery of appellant, the plaintiff below, of more than was awarded to him in the Circuit Court.

The court upon the motion of the plaintiff, instructed the jury, that if Exum was the agent of Mrs. Perry and acting within the scope of his agency exceeded or violated her instructions, she would still be liable for his acts, but with the modification, that if the plaintiff knew of tbe agent’s disregard of bis authority, Mrs. Perry would not be liable beyond her instructions ; and to this no objection was made. But afterwards the court explained the instruction to the effect, that the excess of the authority of the agent must refer to the articles which the agent was not authorized to purchase; and not to the purchase of an article which he was authorized to buy, though in a greater quantity than he was instructed: Or, to use the illustration of the court, if the agent was authorized to buy one hundred pounds of coffee, and bought five hundred, Mrs. Perry would be bound by the act of the agent; but would not be bound if the agent should, without authority, buy saw mills upon the credit of Mrs. Perry. In this explanation, no error was committed by the court of which the plaintiff could complain.

The appellant also alleges against the judgment, that his counsel was interrupted in his argument to the jury. Unless the interference of the court were shown to be without cause, and prejudicial to the party complaining, we should, of course, leave the Circuit Court to exercise its own authority and discretion in controlling the course and extent of the argument to the jury. Dobbins vs. Oswalt, 20 Ark. 624. But in this case the record shows that the court did not interfere as complained of, till an hour had been consumed in the concluding argument of the plaintiff’s counsel, and that the interference was to prevent the too frequent repetition of the argument. The time to be occupied by the argument of a case is within the control of the court, subject, like any abuse of its discretion, to review; but nothing in this case appears whence we ought to infer that the counsel was not indulged with all the time needful to present the plaintiff’s case fully and fairly before the jury.

All of the causes for a new trial being disposed of against the appellant, the judgment must be affirmed.


author: Mr. Justice Fairohild

text:
    Tafee vs. The State.
    No person should be tried upon a charge of felony, when he has not reason enough, whether in consequence of intoxication, or other cause, to appreciate his pei’il, or to act advisedly with his counsel in suggesting to them such facts as would break the force of the prosecuting evidence, and in adducing such exculpatory proof as his case would wai'rant.

      Appeal from Sevier Oi/reuit Court.

    Tlon. Len. B. GREEN, Circuit Judge.
    Gallagher and Knight, for the appellant.
    The prisoner was not in a condition to be tried; and therefore a new trial should have been granted. We submit that the terms used by onr statute are, in effect, that the prisoner shall not either be tried or sentenced, when he has not intelligence enough to understand the nature of the proceeding against him. (See AreJiboWs Cr. Pr. and PI. 5, and notes). It was clearly proven that during the trial the prisoner was too drunk to understand the nature of the proceedings; and we submit that the trial should have been stayed.
    ITollowell, for the State.
    The ground that the defendant by the excessive use of ardent spirits, had rendered himself unable to advise with his counsel during the trial of the cause, it is insisted, is not sufficient to reverse the judgment, after the court below, in the exereise of its discretion, saw proper to refuse the defendant a new trial on that ground. Nor does it appear wherein the defendant was prejudiced. True, it is stated that he was so stupefied that he did not receive an impartial trial, but there is no attempt to state wherein his rights were prejudiced. Welson m. White, 18 Ark. 574; Ooker vs. State, 20' Ark. 53.
   Mr. Justice Fairohild

delivered the opinion of the court.

Although a full examination of the record of this case has* been made, and all the points raised by counsel have been considered, we propose to confine the expression of the court mainly to that point of the case presented upon the motion .for a new trial, which makes it evident to us that the appellant, while upon trial, was so stupefied by intoxication as not to be able to understand the peril of his condition, to assist his counsel in their defence of him, or to avoid the repugnance, and perhaps the prejudice, which must have resulted from his debased and disgraceful position. Upon this subject there is no room for doubt. The affidavit of three of the attorneys of the court, who conducted the defence of Taffe, strengthened by the. supporting affidavit of five observers of Taffe’s conduct and condition during the trial, make it certain that Taffe was tried, and convicted when he was so intoxicated that he was not able to understand the facts of his case, and could not communicate with his counsel with intelligence. He was, from the beginning of the trial, under the disturbing influence of liquor, and continued to grow less intelligent till he sunk into entire stupor. It is a part of this case, as disclosed by the record, that, from an early stage of the trial, an unreasonable senseless person was upon a trial involving the loss of his liberty, and the exchange of the state of an enfranchised citizen, for the degradation and disabilities of a convicted felon. Without waiting to adduce citations, we should be willing to say that no person should be tried upon a charge, the effect of whose establishment would be to make a felon of a citizen, when he has not reason enough to appreciate his peril, or to act advisedly with his counsel, in suggesting to them such facts as would break the force of the prosecuting evidence, and in adducing such exculpatory proof as his case would warrant.

We must suppose that the court did not observe, or did not understand, the real condition im which Taffe was, as disclosed by the affidavits, else it would have arrested the progress of the trial till the return of his faculties. For we cannot conceive that any court would so disregard the propriety of a court, as to permit the trial of a culprit to be continued, when from tempo- - rary or permanent madness he was unable to understand the meaning of the accusatory proceedings,' or to make his defence.

The first principles of the elementary books are, that whenever a person is disqualified from defending himself, by the loss or want of reason, he shall not be the subject' of a legal prosecution or penalty. — As'thus: -“Also if a man in his sound memory commits a capital offence, and before arraignment for it he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence ? If after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if after judgment he becomes of non-sane memory, execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.” 4 Blk. Com. 24; also ib. 395.

“If aman in his sound memory commits a capital offence, and before his arraignment he becomes absolutely mad, he ought not by law, to be arraigned during such 'his frenzy, but 'be remitted to prison until that incapacity be removed; the reason is because he cannot advisedly plead to the indictment; and this holds as well in cases of treason, as felony, even though the delinquent in his sound mind were examined, and confessed the offence before his arraignment ;***** And if such person, after his plea, and before his trial, become of non-sane memory, he shall not be tried; or, if after his.trial he becomes of non-sane memory, he shall not receive judgment; or, if after judgment he becomes of non-sane memory, his execution shall be spared ; for were he of sound memory, he might allege somewhat in stay of judgment or execution.” 1 Hale's Pleas of the Crown, 34, 35 ; 1 Ch. Crim. Law, 761 ; Barb. Cr. Law, 272.

This question is entirely distinct from that which regards the accountability for a crime committed by a drunken person. That is well settled in the law, and has no conhectien. with the rule of practice requiring the defendant to be a reasonable being at the time of trial — none of the references we have made, no law that we can find, undertake to say that the trial may go on when the frenzy, or stupefaction, shall be owing to one cause, and shall be arrested in other cases. When it was ascertained that Taffe was not able to make such defence as he could or might have made, in the use of his right reason, and whether this inability was owing ta drunkenness, or to any cause beyond his control, the law is the same. To fulfill the humane purpose of the law, one arraigned on a felonious charge must be of sound mind when he is tried ; with the proximate or remote cause of the unsoundness the law does not charge itself with an examination, further than to adopt such restorative measures as may remove a temporary disability.

It is much to be desired that the counsel for Taffe, instead of proceeding in the trial, did not make his condition known to the court, when he might have been committed to jail till he was sober, and the cause proceeded in at that term, or continued until another term of the court, as the time and business of the court should make expedient. The trial should not have been treated-as a game of hazard, in which Taffe might be acquitted, or if convicted might obtain a new trial for having been incompetent to be tried.

We have not, after a considerable search through the books, found any case in which a new trial has been granted for the cause for which we grant it in this case, yet we are none the less impressed with the propriety and legality of our conclusion. That no such case has been found, must be attributable to the universal and inherent sense of right and propriety which have prevailed in courts, where such scenes as that of Taffe’s trial may have been represented, in deferring the trial, or in granting new trials, so that the question here decided has not "been often presented to courts of appellate jurisdiction.

If the intoxication of a juror be a sufficient cause for discharging a jury, 2 Graham & Waterman on New Trials, 101; United, States vs. Haskill, 4 Wash. 409: If a court, upon discovering the intoxication of a material witness in a cause, should adjourn it till the witness become sober, or if necessary, defer the trial a term, (3 Graham & Waterman on New Trials, 981;) certainly the intoxication of a defendant on trial for his liberty should be deferred by the court, upon discovery of the fact during the trial; or if not brought to its notice till a verdict was rendered, that should be set aside.

In the control which a court may exercise over persons resting under criminal charges, over its officers, who ought not to be allowed to bring drunken persons to the bar, and over the counsel in the cause, who should at once apprise the court of the incapacity of a client to participate in an intelligible defence, there is no reason to fear that this case shall be a precedent to defeat the ends of a prosecution.

The evidence in this case is of the slightest amount to sustain a verdict, but we trust that this fact, apparent upon the record, has not had any effect upon the decision made tipon the point discussed.

Let the judgment of the Circuit Court of Sevier county be reversed, and a new trial awarded to Taffe.


author: Mr. Chief Justice ENGLISH

text:
    Sessions vs. Peay, Receiver.
    The theory of sales by masters in chancery is, that the court is itself the vendor, and the commissioner or master is mere agent in executing its will.
    The whole proceeding, from its incipient stage up to the final ratification of the reported sale, and the passing of the title to the.vendee, and the money to the person entitled to it, is under the supervision and control of the court.
    The court will confirm or reject the reported sale, or suspend its completion, as the law and justice of the case may require.
    If not restricted by statute, it is within the power of the chancellor to prescribe, by the decree, the time, place, terms, and mode of sale.
    The proper construction of sec. 16, Art. II, chap. 28, Gould’s Digest, is, that when lands are to be sold under execution, issued upon a decree of Pulaski Chancery Court, the sale must be made at the court-house of the county in which the lands are situated, as under executions upon judgments at law; but the statute does not expressly, or by necessary implication, deprive the court of the discretionary power to prescribe the time, place and terms of sales made by the master, or a commissioner, under its decrees.
    As a general rule, however, unless good cause be shown to induce the court to direct otherwise, it should order the sale to be made on the premises, or at the court-house of the county in which the lands are situated.
    Where lands situated in Chicot, were directed by the Chancellor to be sold at the court-house in Pulaski county, this court must presume, in the absence of any showing to the contrary, that the Chancellor so directed for some good and sufficient cause, and will not reverse the order.
    In such case, the designation of the newspaper in which the notice of the sale is 'to be-published, is left to the discretion of the Chancellor.

      Appeal from Pulaski Gha/neery Oourt.

    Hon. Hulbebt F. Faibchild, Chancellor.
    Argued before Mr. Chief Justice English, Mr. Justice Compton, and Hon. Thomas Johnson, Special Judge — Mr. Justice Faibchild not sitting.

      Stillwell & WoodRuff, for appellant.
    The error to which we ask attention, and confidently rely on to reverse the decree,- is, that the sale was directed to be made, not at the court-house door of the county of Chicot, where, the land is situate, but at the court-house door of Pulaski county. This was wholly unwarranted by law. See see. 56, chap. 68, Gould's Dig., page 509, title Execution ; sec. 15, ■ chap. 117, p. 801, title Mortgages.

    These are the only sections of law of which we have any knowledge, relative to judicial sales, at least as far as relates to the time and place, and any departure from the directions of the statute, is not only in violation of law, but tends to manifest injury and oppression of the defendant, whose property is decreed to be sold, and could benefit no one but some speculator who is willing to sacrifice him for his own pecuniary gain.
    Not only the place, but the manner of advertising the sale was disregarded. The sale is to take place 150 miles from the court-house of Chicot county, and the notice is to be given by publication in a newspaper at Little Nock. No advertisement at all is to be made in Chicot. The people who are best acquainted with the land and most likely to desire to purchase are to have no notice.
    The appellant also contended that he had a right to discharge the mortgage debt in State bonds.
    Hempstead, for appellee.
    It is true that judicial sales under process of execution, must be made at the court-house door, when land or slaves are levied on. In this case, although the lands are situate in Chicot county ; yet the exclusive jurisdiction to foreclose the mortgage was given by law to the Pulaski Chancery Court; and if that court could pronounce a decree of foreclosure, it was competent to order the sale to take place in Pulaski county, and it was proper that the sale should take place there. Gould's Dig., sec. 13, p. 241; sec. 16, p. 242.

      Outside of any statutory provision, I take it to be clear, that, in ordering a sale of mortgaged property, a court of chancery is not restricted to the county where the property is situated; but for sufficient reasons could direct the sale elsewhere. 'It may be true that ordinarily the sale might be directed where the property was situated; but this is not absolutely obligatory; and the court has the right to order it to take place at such time, place, and on such notice as it may see fit. This is the usual course in sales ordered by a court of chancery.
   Mr. Chief Justice ENGLISH

delivered the opinion of the court.

This was a bill to foreclose a mortgage executed by Sessions to the Receiver of the assets of the Real Estate Bank.

The questions growing out of the attempt of Sessions to discharge the debt secured by the mortgage, in the bonds, etc., of the State, were decided in the case of Sessions et al. vs. Peay, Rec’r. 21 Ark. 100.

The lands embraced in the mortgage are in Chicot county. The chancellor decreed that if the debt should not be paid by a day named in the decree, the lands should be sold for its satisfaction, at the court-house of Pulaski county, by a commissioner appointed for that purpose.

It is insisted for Sessions, who appealed from the decree, that the chancellor erred in directing the lands to be sold at the courthouse in Pulaski.

The theory of sales of this character is, that the court is itself the vendor, and the commissioner or master is mere agent in executing its will. The whole proceeding, from its-incipient stage .up to the final ratification of the reported sale, and the passing of the title to the vendee, and the money to the person entitled to it, is under the supervision and control of the court. The court will confirm or reject the reported sale, or suspend its completion, as the law and justice of the case may require. Tooley vs. Kane et al., 1 S. & M. Ch. R. 522; Penn’s ad. et al. vs. Tolleson, 20 Ark. 652; Deadrick et al. vs. Smith, 6 Hump. 146.

If not restricted by statute, it is within the power of the chancellor to prescribe, by the decree, the time, place, terms and mode of sale; and the varying circumstances of cases render it necessary that he should be invested with discretion in these matters, in order to prevent the sacrifice of property, and to promote advantageous sales.

Mr. Daniell says: “In strictness, all sales ought to take place in the public room at the master’s office in London, and should be effected by the master’s clerk; and formerly when it was considered for the benefit of the parties interested that the estate should be sold in the country, or by any other person than the master’s clerk, it was necessary to have a special order of court to warrant such a deviation from the ordinary practice ; but the necessity for such an order has been taken away by the 75th of the Orders of 1828, which directs, ‘That where estates, or other property, are directed to be sold befox’e the master, the master shall be at liberty, if he shall think it for the benefit of the parties interested, to order the same to be sold in ■ the cowntrry, at such place, and by such person as he shall think fit.’ ” 2 Dan. Ch. Pl. & Pr. 1,447.

Mr. Hoffman says: “ In England, the sale takes place at the master’s chambers, or, if in the country, before the master’s clerk, deputed for that purpose. Our decrees (unless on consent or special cause ordered otherwise) direct that the lands be sold at public auction, in the county in which they are situated, or in the city of New York or Albany, if they lie there. Where the sale is to be in the country, the master may exercise his discretion, where to sell, but it is usual to do it at the county town. It is sometimes directed in the decree.” Hoff. Master in Chan, 216.

See. 7, Art. II, chapter 28, Gould's Dig., declares that the separate court of chancery, established by the act at the seat of government, “ shall proceed according to the rules, usages, and practice of courts of chancery, except when otherwise provided by law, and enforce its orders and decrees by execution, or in any other manner proper for a' court of chancery,” etc.

Sec. 16, ib., declares that “ the laws now in force in regard to execution sales shall apply to sales upon process, of said chancery court, which sales, when of property in Pulaski county, may be made on the first days of the terms of said court, . and such process shall be returnable upon the second days of the terms of the court.”

We think the proper construction of this section of the statute is, that when lands are to be sold under execution issued upon a decree of the court, the sale must be made at the court-house of the’ county in which the lands are situated, as under executions ■ upon judgments at law, but that the' statute does not expressly, or by necessary implication, deprive the court of discretionary power to prescribe the time, place and terms of sales made by the master, or a commissioner, under its decrees.

But we think, as a general rule, unless good cause be shown to induce the court to direct otherwise, it should order the sale to be made on the premises, or.at the court-house of the county in which the lands are situated.

We must presume, in the absence of any showing in the record to the contrary, that the chancellor directed the lands to be sold, by the commissioner, at the court-house of Pulaski, for some good and sufficient cause, and shall not, therefore, overrule his discretion and direct otherwise.

If the appellant had made it appear, to the chancellor, that the lauds would be sacrificed by a sale in Pulaski,, or that a more advantageous sale could be made in the county where the lands were situated, we must presume that he would have ordered the sale to be made in the latter county. As above remarked, the sale is under the control of the court up to the time of its completion.

The decree must be affirmed, but the time fixed for the sale having passed, the Cause must be remanded, so that the decree may be’ executed under further directions, to the commissioner, by the chancellor.

The chancellor directed the commissioner to advertise the sale in a newspaper published in Little Eock; and it is insisted for the appellant that the sale should also have been advertised in Chicot county, in order that persons residing in the vicinity of the lands, who, it is contended, would be most likely to bid for them, might be informed of the time and place of sale.

The force of this objection would depend upon the extent of the circulation of the Little Eock newspapers, in Chicot county; and we think the matter may be safely left to the information and discretion of the chancellor.


author: Mr Justice Fairchild

text:
    Reed vs. Harvey.
    The rule that requires a defendant to make his defence at law, by the presentation of every fact of defence existing at the time of the trial, has no application to a case where the defendant was not iprivy to the fact, and could not have supposed it to exist.

      Appeal from Ashley Circuit Court m Ghano&nj.

    Hon. JohN C. MueRAy, Circuit Judge.
    JohNSTON for the appellant.
    If it appear that a defendant was ignorant of important facts material to Ms defence, upon the trial at law, and which he could not have discovered and availed himself of, by due diligence, at the time of the trial,, a court of equity will grant relief. Hempstead et. al. vs. Watkins, 1 Eng. 368.
    Garland & EaNdolph for the appellee.
    We insist it was the duty of the appellant to have known that Sumner had made the payment, and to have quéstioned him on that point, and thus have placed the fact before the court.'' In order to have a verdict or j udgment set aside by a court of equity, because the party was not able to avail himself of a legal defence, he must show that his inability did not arise from his own default or negligence. 3 Johns. Ch. 351; Saxton 113 ; 6 Paige Oh. 622; Will. Eg. Jwr. 351; 2 Story's Eg. Jiw., sees. 895, 896; 9 Ala. 121.
   Mr Justice Fairchild

delivered the opinion of the Court.

Harvey sued Heed for services as an attorney in the settlement of a guardianship. John Sumner was also interested in the distribution of the property in the hands of the guardian, and had become liable with Heed to pay for the professional services of Harvey. At the trial, Sumner was put on the stand as a witness for Harvey, but just before going up to testify, he paid to Harvey five hundred dollars, which was the amount Sumner and Heed were to pay, and which was the debt for the recovery of which Harvey was prosecuting his suit against Heed. Heed did not know of the payment till after judgment was rendered against him, had no means of knowing it.

. When Harvey endeavored to collect his judgment, Heed filed his bill setting forth the foregoing as its allegations, and asked that Harvey be enjoined from collecting his judgment. Harvey demurred to the bill on the ground that Heed should have made the payment by Sumner, a defence to the legal suit.

The principle on which the demurrer rests, may be conceded to be good, when it has a proper application; as ordinarily, a party sued in a court of 'competent jurisdiction, should make his defence by a presentation of every fact existing at the time of the trial, and cannot obtain compensation in equity for what he has failed to prove at law. But Reed is not charged with k knowledge of Sumner’s acts; Sumner was not his witness; he did' not know that Harvey had been paid for what he was suing; he was not obliged to take notice of what had previously transpired between Sumner and Harvey, just before Sumner testified. ‘Whatever might have passed between Harvey and Reed that was proper for a legal defence, the latter would have been obliged to have proved on the trial at lawj; or to show a reason for relief by reason of accident, or upon some ground of equitable interference, but that did not require Reed to prove a fact of defence to which he was not privy, and which he could not have supposed to exist.

A defence admitting the existence of such facts as are alleged in the bill is not entitled to much favor, whatever might have 1 been the foundation of the indebtedness, for the double collection of any debt is not to be encouraged. But that services rendered in the exercise of the profession of the law should be the subject of such allegations, is greatly to be regretted, and when they were admitted by demurrer to be true, the court below should have maintained its jurisdiction over the bill.

The order of the judge of the circuit court of Ashley county, enjoining the collection of the judgment was right; the dissolution of the injunction, sustaining'the demurrer to the bill, and its /bVmiWI;, were wrong. The decree is reversed, the injunction must be reinstated, and the demurrer overruled.


author: Mr. Justice Faikohild

text:
    Reed and Wife et. al. vs. Ryburn et. al.
    Unless there be fraud in tbe final settlement of a guardian’s account — made upon the report of an auditor, and in which all parties seemed to acquiesce — there is no reason to disturb the adjudication of the probate court,
    where a bill in equity setting up a claim against the estate of a deceased person, is sworn to by the next friend of one of the complainants, who is a minor, it is a sufficient authentication.
    Guardians should be held to account strictly and faithfully for the trust funds that come into their hands; and no compensation should be allowed them where they have neglected their duties, mismanaged the property of their wards, and perpetrated positive wrong and injustice towards them.

      Appeal from Hempstead Circuit Court in Cha/ncery.

    Hon. SheltoN WatsoN, Circuit Judge.
    Garland, for the appellants.
    Hempstead and WateiNS & Gallaghek, for appellees.
   Mr. Justice Faikohild

delivered the opinion of the Court.

Although this case is much burdened by the number and complication of its facts, it calls for no extended notice from us, but simply for the application of the principle, that guardians'should faithfully account for their trust funds. Nor do the facts alleged in the bill make a case different from the mass of cases that are the subjects of complaint against guardians. It is the common story of the dissipation of the substance of infants by those whose duty and engagements are, and whose desire and efforts should be, to accumulate and preserve it when possible, and when necessary to expend it, to do so within a line of economical, legal and appropriate expenditure.

We do not feel disposed to entertain any question tending to enlarge the responsibilities of Bankhead beyond, the foundation of the report of Jett, to whom Bankhead’s single account of guardianship was referred. To that account, all parties, Bank-head, Harris, the interven or for the Dupree infants, and the probate court, seemed to acquiesce. As far as we' can judge from such examination as we have been able to bestow upon it, we perceive no reason to disturb the adjudication of the probate court thereon, as we see no fraud that would justify an interference with the action of the court, or the opening of the account. It must be remembered for Bankhead, that he was guardian less than two years, that the funds which came to his hands were such as could be saved from the wreck of the estate, or gathered from the personal assets of Harris, the administrator of Dupree, who married the mother of the Dupree children, and who, as surviving partner and administrator of Dupree, absorbed the greater part of the estate; and that Bankhead’s guardianship was closed, notas it might have been if a final settlement in the regular course of business had been allowed, but upon an order of the probate court requiring him to give further security. This is no shield from responsibility, although urged as an excuse for a less satisfactory statement of his trust, when it was closed, than might otherwise have been expected.

If the circuit court of Hempstead county sitting in chancery dismissed the bill against Bankhead and against Pryor, as his security, because the bill was the presentation of a demand against the estate of Bankhead, and was not properly, authenticated, we do not approve of its action. The plaintiffs in the bill, are Keed and his wife, in right of the latter, and Thomas C. Dupree, a minor, by Elijah Ferguson, his next -friend. If the bill had been prosecuted alone by the minor, a proper affidavit of the next friend to the bill would have been sufficient, for we could not'hold that the minor was too young to sue for himself, and too old to allow his next friend to swear to his bill. The claim made by the bill is a joint claim in favor of the minor and his sister, Mrs. Reed, and the affidavit of one of the joint claimants satisfies the demand of our' statute, as construed in Ashley vs. Gunton, 15 Ark., 422.

But taking Jett’s account as the measure of Bankhead’s liability up to its date, the master of this court, to whom the case has been referred, to ascertain the subsequent obligation of Bankhead, has reported that the assets, which he turned over to the probate court of Hempstead county, ■ upon the expiration of his guardianship, relieve him from responsibility as guardian, taking into account that he was entitled to some compensation for his services. With this conclusion, we are satisfied, as it agrees with the impressions derived from our own examination of the record, and we accordingly, upon the merits of the case, affirm the decree of the court below in dismissing the bill against Pryor as the personal representative of Bankhead, and against him individually, on account of his having been Bankhead’s security for the guardianship.

With regard to Byburn’s guardianship of the Dupree heirs, which, unlike Bankhead’s guardianship, was never settled in the court, but little need be said, as its results are to be gathered from a statement of his accounts, which has been .made under the direction of this court, by its clerk as master. The result of this statement is, that upon the 1st of July, 1850, Ryburn was indebted to Arabella J. Dupree and Thomas C. Dupree, in the sum of two thousand nine hundred and forty-seven 88-100 dollars, which, with interest at six per cent, per annum, amounts on this 1st of March, 1861, to four thousand eight hundred and thirty-four 44-100 dollars; leaving due to Stephenson C. Beed and Arabella his wife, in right of the latter, two thousand four hundred and seventeen 22-100, and the same sum to Thomas C. Dupree. This we approve with the exception of the allowance made by the master to Ryburn, of five hundred dollars for his commissions. The master allowed the sum solely because it was in the report of Williams, the master in the court below, and was not excepted to by the Dupree heirs, and against his own judgment of what was due to Ryburn.

Commissions are allowed to a guardian for the performance of duties imposed upon him by law; but, for neglect of those duties, for mismanagement of the property of his wards, for the perpetration oí positive wrong and injustice, the law does not award compensation; and therefore Ryburn cannot lessen the portions of Arabella Reed and Thomas 0. Dupree, already lamentably diminished, by an appropriation to himself of any amount under the head of commissions. With this correction, the report of the master is confirmed; and the decree of the court below being reversed so far, a decree is to -be entered up here against Ryburn, and Trigg, his security, in conformity with this opinion.

The negroes that are on hand will be partitioned between Arabella J. Reed and Thomas C. Dupree, with any arrears of hire, and for this purpose this case is remanded to the Circuit Court of Hempstead county, sitting in chancery.