text:
    Sparks vs. Mack, Stadler & Co.
    1. Instruction:
    An instruction which contains long recitals of facts, that might tend to confuse, rather than simplify the issue, was properly refused.
    2. Fraudulent Conveyance :
    A sale of goods in good faith to pay a preferred debt, and without au intention to delay other creditors, is not fraudulent. A debtor may prefer one creditor to all others.
    3. •--.
    A party who conveys his property for the payment of a part of his .debts, leaving others unpaid, cannot reserve an interest in it. The whole of his property is liable for his debts, and it is fraudulent to conceal any part of it from his creditors.

      4. --.
    A conveyance by a debtor in failing circumstances, which stipulates that the grantee may use the proceeds of the sale of the goods to buy others, and imposes, upon him the duty of keeping up the stock, etc., clearly shows that the exclusive ownership of the property was not vested in the grantee, and is void as to creditors.
    5. --: Evidence.

    Upon an issue as to whether a conveyance was fraudulent as to creditors, the circumstances and relationship of the parties to the conveyance, the terms of the conveyance, whether absolute or conditional, and the subsequent possession of the property, may all be considered in arriving at the intention of the parties.

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

      Adams, for appellant.

      Brown, contra.

   Walker, J.:

Mack, Stadler & Co. brought an action of assumpsit, in the Circuit Court of St. Francis County, against William M. Sparks and William C. Barron, merchants, trading under the firm name of Sparks & Barron, and had goods attached as their property.

G. N. Sparks, the appellant, claimed the goods as purchaser from Sparks & Barron, and filed his interplea, in which he asserted his claim to the goods.

Plaintiffs answer the interplea, and allege that the sale of the goods by Sparks & Barron to G. N. Sparks was made in fraud of the rights of their creditors, and is void.

The only contested question at issue, was that of fraud, which was submitted to a jury upon the evidence and instructions of the court.

The jury found a verdict for the plaintiff, upon which judgment was rendered in their favor.

Sparks moved for a new trial, which was overruled, and he appealed to this court.

The questions of law presented for our consideration arise upon the instructions of the court, which are as follows

First — The question which you are to determine by your verdict is, was the property named in the interplea, at the time of the levy of the attachment, the property of G. N. Sparks ?

Second — The title of the interpleader is sought to be set aside by the attaching creditor for fraud, and upon this inquiry the law is, that if the interpleader was not, at the time of his purchase of the goods, a party to the fraud of Sparks & Barron (if they were guilty of fraud), the jury will find for the interpleader, for, however fraudulent may have been the purpose of Sparks & Barron in the sale of the goods, yet, if G. N. Sparks was not a knowing party to, and participant in the fraudulent purpose, he would take the property, free from any claim of the attaching creditor.

Third — Fraud is a question of fact, not to be presumed, but must be proven, and unless the jury find, from theievidence, that G. N. Sparks, at the time of his purchase, was a party to a fraudulent transaction on the part of Sparks & Barron, tojcheat, hinder, or delay their creditors, and accepted the conveyance of the goods for that purpose, they will find for the interpleader.

The fourth and fifth instructions were refused ; they are as follows :

Fourth — If the jury find, from the testimony, that Sparks & Barron, at the time of the sale of the goods to the interpleader, was indebted to the plaintiffs, and, also, to Stewart, Gwynne & Co., in a sum as large, or larger, than to any, or all, of their creditors; that Stewart, Gwynne & Co. were present, urging the payment or securing of their debt, to pay which, Sparks & Barron, with the assent of Stewart, Gwynne & Co., sold the goods to the interpleader on a fair and reasonable credit, secured by a deed of trust executed by the interpleader to the bookkeeper of Stewart, Gwynne & Co.; that in the transaction it was a part and parcel thereof; that the notes of the-interpleader were to be endorsed to Stewart, Gwynne & Co., as payment of so much of a bona fide debt of Sparks & Barron, to Stewart, Gwynne & Co.; that, in pursuance thereof, said notes of the interpleader were so taken by Stewart, Gwynne & Co., in payment of so much of said debt, and the paper of Sparks & Barron given up to them for said notes, these transactions were not fraudulent, but such as Sparks & Barron might lawfully make.

The substance of the fifth instruction was: That a creditor in failing circumstances may lawfully apply his property to the payment of his debts to one creditor to the exclusion of all others.

The fourth instruction was, as will be seen, a long recital of facts supposed to be proven, a kind of omnibus, gathering a multitude of facts, the finding’ of all which is necessary to arrive at a conclusion, and in the form asked might tend to confuse rather than simplify the issue, and we think the court properly refused to give the instruction, as well as the fifth, in the form asked, but gave to the jury in lieu thereof the following instruction:

“If the jury believe from the evidence that the sale of the goods was made in good faith to pay a debt to Stewart, Gwynne & Co., only as a preferred creditor, and without any intention to delay other creditors, it is not a fraud, for a debtor may prefer one creditor to all others.”

At the instance of the plaintiffs, the court gave the following instructions:

“ If the jury find from the evidence, that at the time of the sale and conveyance from Sparks & Barron to G. N. Sparks that a secret agreement existed between the seller and the buyer, by which an interest, either as partner or otherwise, in the property sold, was retained by William M. Sparks, the transaction was fraudulent and void, and that the property did not vest in the interpleader, but was subject to attachment.”
“Second — A deed shown to have been void in its inception cannot be made good by any subsequent parol agreement between the parties; consequently, if the jury find that at the time of the execution of the deed, William M. Sparks retained an interest in the goods conveyed, no subsequent agreement could make the original transaction valid.”

These instructions were proper. The party who conveys his property for the purpose of paying his debt, must do so in good faith; he is not permitted apparently to sell the whole of the propei’ty, and at the same time to reserve to himself an interest in it. The whole estate of the debtor is liable to the payment of his debts, and it is fraudulent to conceal any part of it from his creditors.

“A conveyance,” says Bump., in his work on Fraudulent Conveyances, p. 239, by the owner of property to another in trust for himself, is, in effect, a conveyance to himself, and such a measure can never be necessary for any legal or honest purpose.”

At page 243, the same author says: “ If the transfer is intended in good faith to have operation in favor of the grantee, and to confer upon him a right, to be exercised at his pleasure, over the property, it will be valid; but if it is a mere sham, executed colorably, and only for the purpose of protecting the debtor, and without any original intention to convey the property to the grantee, it is void.”

The restrictions thrown around the property conveyed to G. N. Sparks, clearly showed that the exclusive ownership of the • property was not in him. If, in fact, the property was his, there could certainly have been no necessity to stipulate that he might use the proceeds of the sale of the goods to buy others, or to impose upon him the necessity of keeping up his own stock of goods; this he would, as the real and sole owner, do at his own discretion and pleasure.

A provision, much like that in this case, was inserted in a conveyance in the case of Robinson v. Elliott, 22 Wall, 513, which was held to be void as against creditors. The clause in the deed in that case was as follows:

“And it is hereby expressly agreed, that until default shall be made in the payment of the notes, the party of the first part may retain possession of said goods, and may sell the same as heretofore, and supply their places with other goods, substituted by purchase for those sold, and shall, upon buying, put them into the store for sale, subject to the lien of the mortgage.”

This is just such a stipulation as is found in the deed to G. N. Sparks, and if we should construe the deed as the appellees’ counsel would have us do, as in effect a mortgage security, it would come expressly within the ruling of the United States Court. When considering the effect of the above recited clause, in the deed in Robinson v. Elliott, Mr. Justice Davis said : “The deed is void, and the court, not the jury, has the power to say whether on the face of the mortgage it was void.”

In the case of Jenkins v. Lande: An absolute sale of a lot was made for a stipulated sum expressed in the deed, and paid, with a parol agreement to permit the party selling the lot to occupy it for one year free of rent.

The sale was held, as against the creditors, void, upon the ground, said Mr. Justice Davis: That the law will not permit a debtor in failing circumstances to sell his land and convey it without reservation, and yet secretly reserve to himself the right to possess and occupy it for a limited time for his own benefit, at the expense of those he owes, and is a fraud upon them, because it places beyond their reach property which should be subject to the payment of their debts.

In the case of Paul v. Croker, 8 N. H., 288: It was held, that where by a bill of sale, goods are absolutely conveyed, with a secret trust not apparent on the face of the instrument, such conveyance is fraudulent and void as against creditors.

In none of these cases, the question of the extent of the possession or use, or the value of the property concealed, seems to influence the decision of the court, but it is held to be sufficient in all of them, to set aside the entire conveyance as fraudulent.

Judge Spencer, in the case of Austin v. Bell, 20 Johns., 442, reviewed the New York decisions, and asserts the principle clearly, “that a deed which does not fairly devote the property of a person overwhelmed in debt, to the payment of creditors, but reserves a portion to himself (unless assented to by the creditors), is, in law, fraudulent and void, and, whether apparent upon the deed or not, its effect is to coerce the creditors to a settlement, by embarrassing or delaying their remedy.”

These authorities, we think, sustain the court in the instructions given, and in refusing those asked by the interpleader. They were not abstract, but had direct application to the state of case-presented by the evidence.

In the first, second, third and fourth instructions, the jury were told that Sparks & Barron had an undoubted right, in good faith, to sell their goods for the purpose' of paying their debt to-Stewart, Gwynne & Co., even though, at the time of selling, they were in failing circumstances, and unable to pay all of their debts, and that G. N. Sparks, 'even with a knowledge of such circumstances, had a right, in good faith and in ignorance of the intended fraud by Sparks & Barron, to buy the goods, and that if he did buy under such circumstances, he should be protected in his purchase. The court told the jury further that fraud was not to be presumed, but it must be proven. Not certainly by positive evidence in all cases, but also from facts and-circumstances, such as, when considered separately, may lead to no satisfactory conclusion, but, when taken together, often become strong and satisfastory evidence.

The circumstances of the parties contracting, the relationship existing between them, the failing circumstances of the one, or the inability of the other to pay for the property purchased, the terms of the sale, whether absolute or conditional, the subsequent possession of the property, whether permitted to remain with. the seller, or taken possession of by the purchaser, may all aid in reaching a proper conclusion as to the intention of the parties at the time of making the contract.

It is rarely the case that parties intending to perpetrate fraud, openly disclose their real purpose, but on the contrary, often make a pretense of fairness and honesty, to conceal their real intention, which, so far from serving the purpose intended, sometimes leads to discovery and exposure of the fraud.

In the case under consideration, we find from the evidence that two partners, Sparks & Barron, who are unable to pay their debts, making sale of their real estate. One conveys by deed 20th February, 1875, for the consideration of $2,500. The other, on the 6th April, 1875, conveys his lands to his mother for $3,000, and, on the 21st of the same month, only fifteen days after, the firm sell and convey their stock of goods to a brother of one of the firm, who is unable to pay anything down for the goods, or, for aught that appears, had any means of payment at the time of the sale of the goods. A member of a firm at Memphis, Tennessee, one of the principal creditors of Sparks & Barron, with their bookkeeper, is found at the store of Sparks and Barron in Forrest City, Arkansas, and about the same time there also comes to the store G. N. Sparks, who had been residing in Craighead county, Arkansas. The debt of the Memphis firm was $9,000, more, according to the evidence, than all the other indebtedness of the firm. It is but fair to presume that the Memphis firm were there to get pay for their debt, or have it secured. The fact that they had their bookkeeper along, aside from other considerations, would indicate this purpose. Whether they had heard of these conveyances of the real estate, or had been invited by Sparks & Barron to come, does not appear.

Sparks & Barron propose to Gwynne, of the firm of Stewart, Gwynne & Co., to sell them their stock of goods in store. Gwynne declines to purchase, but suggested to Sparks, of the firm of Sparks & Barron, to get some one to buy them out, and for him to take an interest in the goods as a silent partner with such purchaser.

W. M. Sparks, who was examined as a witness, says he told Gwynne that his brother, G. N. Sparks, had recently come from Jonesborough, to go into business at Forrest City, and perhaps he could induce him to make the arrangement; that he saw his brother, G. N. Sparks, who agreed to become the purchaser, witness to be a silent partner in the business with him. This statement is fully corroborated by G. N. Sparks. Gwynne also corroborated this statement, only that he knew nothing of the understanding that W. M. Sparks, of the firm of Sparks & Barron, was to become a silent partner. Giving his statement due consideration, and that of the witness, Dobb, who heard nothing said about W. M. Sparks being a partner in the purchase, we are satisfied that the statement of the two parties, actors in the contract, and familiar with the terms of the contract itself, is most reliable, and leaves but little doubt that' such was the contract agreed upon when the sale of the goods to G. N. Sparks was made. According to his evidence, he was unable to buy and pay for the goods, but bought them on time; gave his notes to Sparks & Barron for $5,000, to be paid in three several payments, one of this firm, if we are to credit his own statement, being a secret partner in the purchase of the goods. According to the weight of the testimony, this plan was suggested by Gwynne, and carried out by William M. Sparks, one of the firm to whom the notes were given, and'which were endorsed and turned over to Stewart, Gwynne & Co. The sale of the goods was, in the meantime, to go on, and the money arising from the sale to be applied to the purchase of other goods, to keep up the establishment, and, of course, for the benefit, apparently, of G. N. Sparks, but, really, for the benefit of a member of the firm, \vho was responsible for all of the debts, but who was not to be known as interested in the goods; and then, as if to make assurance doubly sure, G. N. Sparks conveys the goods to Dobb, the bookkeeper of Stewart, Gwynne & Co., absolutely as his property, but not to go into his possession unless upon the contingency that after the first note fell due, 30th September after the purchase, payment was not made. In the meantime, the goods were to remain in the hands and under the control of G. N. Sparks and his secret partner.

The goods were to remain, and did remain, in the storehouse of Sparks & Barron, all the time they were in the possession of G. N. Sparks, and after they passed into the possession of Dobb, the trustee, and were still in the same storehouse when levied upon by the attaching creditor.

Why, if Dobb really held or claimed the' goods, as trustee, to pay the debt of Stewart, Gwynne & Co., he has failed to set up claim to the goods, is not accounted for, or why, if Stewart, Gwynne & Co. had beneficial rights in the trust property, they have not asserted their claim, is alike unaccounted for. G. N. Sparks is the only claimant; the issue is between himself and the attaching creditor. Upon his oath as a witness, he says he has no interest in the suit, nor in the goods attached. If such is the case, it is not improbable that he is merely a nominal party; certainly, if he is to be believed, the goods are not his, and he has no interest in them; he says, moreover, that he has taken in the notes which he gave to Sparks & Barron, and which they assigned to Stewart, Gwynne & Co.

It was under this state of case that the instructions were given, and upon consideration of which the jury found that the goods were not the property of the interpleader.

We think the instructions were properly given, and the verdict in accordance with the weight of the evidence.

Let the judgment of the court below be in all things affirmed.'


source: Caselaw Access Project

author: Harrison, J.:

license: Public Domain

text:
    The State vs. Hoover.
    Indictment:
    In an indictment, under the act of January 21st, 1875, to protect enclosures, etc., it is sufficient to charge the offense in the language of the act. And, although it would be better to allege, definitely, the áay on which the offense was committed, the failure to do so cannot prejudice the substantial rights of the accused, and will not vitiate the indictment.
    APPEAL from Pike Circuit Court.
    Hon. L. J. Joyner, Circuit Judge.

      Henderson, Attorney General, for the State.
   Harrison, J.:

Bernard Hoover was indicted in the Pike Circuit Court, under the act of January 21st, 1875, to protect inclosures from trespasses, for a trespass on the inclosed ground of one Kasanah Owens. A demurrer to the indictment was sustained, and the defendant discharged; the State appealed.

The grounds of the demurrer were :

First — That the facts charged did not constitute an offense.

Second — That they were not stated with sufficient certainty.

The offense is thus charged :

The said Bernard Hoover, on or about the 15th day of July, A. D. 1876, in the county aforesaid, did willfully and unlawfully pull down the fence of certain inclosed grounds belonging to one Kasanah Owens, without the consent of the said Kasanah Owens> contrary to the statute in such case made and provided, and against,” etc.

The language of the statute is: “ If any person shall ride, range, or hunt, in the inclosed grounds of another, without the consent of the owner previously obtained, or shall pull down or break the fence, or leave open the gate of the farm, plantation, or other inclosed grounds of another, the party so offending shall be guilty of a misdemeanor,” etc.

This court has often held that, as a general thing, in an indictment upon a statute, it is sufficient to allege the offense in the terms of the act. In this case the offense is charged in the very words of the statute, and it is impossible to conceive that the defendant might not know of what he was accused ; Gantt’s Digest, sec. 1796.

It would have been better, perhaps, as more formal and accurate, to have stated definitely the day on which the offense was committed ; but sec. 1787, ib., says, that “ the statement in the indictment as to the time at which the offense was committed, is not material, further than as a statement that it was committed before the time of finding the indictment, except where the time is a material ingredient in the offense.”

Such a defect, if it be one, could not tend to the prejudice of the substantial rights of the defendant, for he could not but understand that the offense was alleged to have been committed prior to the finding of the indictment; secs. 1781 and 1782, ib. The words “ or about ” should be regarded as surplusage; 1 Whar. Cr. Law, sec. 622 ; 1 Bish. Cr. Pro., sec. 231; Hampton v. The State, 8 Ind., 336; Hondebeck v. The State, 10 Ind., 459.

The indictment is sufficient, and the demurrer should have been overruled. The judgment of the court below is, therefore, reversed and the cause remanded to it, with instructions to overrule the demurrer to the indictment, and to proceed in the case according to law.


text:
    Pillow vs. Wade & Wife et al.
    1. Dower; Release to husband void.

    A married woman cannot release dower in favor of her husband; she can only release it by joining with the husband in a deed to a third person. •
    2. Husband and wife:
    Are incapable of contracting with each other.
    3. --: Construction of a deed of settlement.

    A conveyance by a husband to a trustee upon the following trust, viz: “ In trust, nevertheless, for the use and benefit of said (the grantor’s wife) as a separate estate and property for her support,” clearly indicates that the object of the settlement was the support and maintenance of the wife during her life; and it makes no difference that the conveyance was to the trustee in fee, the trust terminated when the iiurpose for which it was created was accomplished, and the estate reverted to the grantor.
    4. Practice in Chancery: Decree, ete.

    Upon the dismissal of a complaint in equity to cancel a deed executed by the plaintiff, and alleged to cast a cloud on his title, on the ground that the deed appears upon its face to be inoperative, the decree should, where the deed contains peculiar provisions and recitals, set out the ground of the dismissal.
    APPEAL from Lee Circuit Court in Chancery.
    Hon. J. N. Cypert, Circuit Judge.

      Lose, for appellant.

      Tappan & Hornor, contra.

   Harrison, J.:

This was a suit in equity by Gideon J. Pillow against D. F. Wade and Anna P. Wade, his wife, H. M. Williams and Sallie P. Williams, his wife, John D. Mitchell and Narcissa P. Mitchell, his wife, and Jerome B. Pillow.

The complaint alleges, that the plaintiff being, at the close of the civil war, much in debt, and wishing to use his lands, in settlement with his creditors and discharge of his liabilities, owning at the time five plantations in Phillips County, and three large unimproved tracts in St. Francis, to effect such purpose, deemed it advisable to procure a release of the dower of his wife, Mary E. Pillow, but feeling that it would not be just or prudent to ask such release, without an equivalent consideration, he proposed, to which she assented, to dissever, by release, her dower in several plantations and tracts, and to consolidate the same in one body; and with that view, he had her dower in all the several plantations and tracts valued by two disinterested and competent persons, who estimated the whole at $60,000; and thereafter, on the 15th day of July, 1865, his wife, by deed, released to him her dower in all, and he, at the same time, conveyed to the defendant, Jerome B. Pillow, his plantation known as the Mound place, and which is in Lee County, now, in trust for her, and as a separate estate and property, for her support, both of which deeds were duly acknowledged and recorded.

That the sole object of the conveyance was to secure to his wife, in case she should survive him, an estate in the Mound place, equal in value to the dower in the lands she released; but that, through mistake or inadvertence, the deed was so drawn as to acknowledge an indebtedness to her of $60,000, and to make the same a charge upon the plantation.

That Mrs. Pillow died in 1869, leaving surviving her the following children, her heirs at law: Robert G. Pillow, Gertrude S. Pillow, Mary Amanda Brown, intermarried with Thomas J. Brown, Lizzie P. Johnson, intermarried with Wilber P. Johnson, Alice P. Fargason, intermarried with D. B. Fargason, Anna P. Wade, intermarried with D. F. Wade, Sallie P. Williams, intermarried with H. M. Williams, and Narcissa P. Mitchell, intermarried with John D. Mitchell; and that he had administered upon her estate in Arkansas.

That when the said deed of trust was made, the plaintiff and Mrs. Pillow were residents of the State of Tennessee, and continued to be so until her death, and that tjje plantation had remained, and was still, in his possession.

That Robert G. Pillow, Gertrude S. Pillow, Mary Amanda Brown, Lizzie P. Johnson and Alice P. Fargason disclaimed, as heirs of their mother, any interest in the plantation, and, with the said Wilber F. Johnson and D. P. Fargason, had released to the plaintiff whatever estate or interest they might claim under the deed of trust, but that Anna P. Wade and her husband, Sallie P. Williams and her husband, and Narcissa P. Mitchell and her husband, assert and claim that the transaction was a purchase by the plaintiff' of his wife's dower, and that a debt of $60,000 therefor was secured to her on the plantation by the deed of trust.

And that the said deed of trust, though the estate conveyed is terminated, is a cloud upon the plaintiff's title, and it prays that the deed may be canceled and the cloud upon his title removed.

Copies of both the deed of trust and the release of dower were filed as exhibits with and made part of the complaint.

The release, after reciting that the value of the dower in all the plantations and lands, naming them, had been ascertained to be $60,000, and that the payment of that sum had been secured to her by a mortgage on the Mound place, proceeds thus: “Now, therefore, I, Mary E. Pillow, wife of the said Gid. J. Pillow, do hereby and in consideration of the sum of money above named and secured to be paid, release and relinquish to my said husband, the said Gid. J. Pillow, his heirs and assigns, all my right of dower in and to his above named eight tracts of land situated in Phillips and St. Francis counties, and the State of Arkansas.”

The deed of trust commences thus: “This indentuure of mortgage made and entered into this 15th day of July, 1865, between,” etc., and, after reciting that his wife had released her dower in his several plantations and tracts of land, to enable him to pay his debts, and that the value of the same had been estimated at $60,000, proceeds as follows: “Now, therefore, I, the said Gid. J. Pillow, in consideration of said several relinquishments made, by my wife aforesaid, do hereby acknowledge myself indebted to my said wife in the sum of $60,000 to secure the payment of which said sum I.do hereby bargain, sell, convey and confirm to the said Jerome B. Pillow, in trust for my said wife, the following tract of land, viz.: My Mound plantation (more particularly describing it) situated in Phillips County, Arkansas; to have and to hold said tracts of land and bargained premises, to the said Jerome B. Pillow, his heirs and assigns forever, but in trust, nevertheless, for the use and benefit of said Mary E. Pillow, as a separate estate and property for her support.

“The said Gid. J. Pillow binds himself, his heirs, executors and administrators to warrant and defend the right of said bargained premises to the said Jerome B. Pillow, his heirs and assigns, in trust, etc., but to secure payment to the said Mary E. Pillow of the sum of $60,000 aforesaid. Upon payment of said sum, this obligation to be null and void, otherwise to remain in full force and effect.”

Wade and wife, Williams and wife, and Mitchell and wife, 'demurred to the complaint for the want of equity. The court sustained the demurrer, and dismissed the complaint, and the plaintiff appealed.

The attempted release of her dower by Mrs. Pillow was a nullity. A married woman can relinquish dower, only, by joining with her husband in a deed of conveyance to a third person. Gantt’s Digest, sec. 839; Witter v. Biscoe, 13 Ark., 423; Stidham v. Matthews, 29 ib., 658; Countz v. Markling, 30 ib., 18; Carson v. Murray, 3 Paige 503; Rowe v. Hamilton, 3 Greenl., 63; Shaw v. Reese, 14 Maine, 432.

But not for that reason only, could there be no liability of the plaintiff to pay Mrs. Pillow the sum mentioned in the deed of trust. As husband and wife they were incapable of contracting with each other. It is apparent, therefore, that no lien for the payment of a debt was created by the deed of trust on the plantation, and that so much of the deed as . related to a debt was nugatory and without effect.

It is not, however, insisted here by the appellees that there was a lien or that any such debt existed, but they contend that the plaintiff, by the deed, made a voluntary settlement of the plantation on Mrs. Pillow and her heirs.

Passing unnoticed the averment in the complaint that the sole object of the conveyance was to secure to Mrs. Pillow, for her life, in case she survived the plaintiff, an estate in the plantation equal in value to the dower she attempted to relinquish, which the demurrer admits, we will look to the language of the deed declaring the trust, upon which the trust was made, which is as follows: “In trust, nevertheless,, for the use and benefit of said Mary E. Pillow, as a separate estate and property for her support.”

The terms here used, very clearly indicate that the object of the settlement Was the support and maintenance of Mrs. Pillow, during her life, for, if an unlimited estate was intended, why' were her words “for her support” added ? To give these words any meaning at all, they must be considered in a restrictive view, and as limiting the trust to her life.

It can make no difference that the conveyance was to the trustee in fee. The trust terminated when the purpose for which it was created was accomplished. 2 Perry on Trusts, sec. 920.

“The general rule of law is,” said Baron Parke in Barker v. Greenwood, 4 Mees. & W., 429, “that whenever there is a limitation to trustees, although with words of inheritance, the trustees' are to take only so much of the legal estate as the purposes of the trust required.” Jackson v. Myers, 3 John., 396; Ellis v. Fisher, 3 Sneed, 231; Badgett v. Keating and wife, ante.

The trust having terminated upon the death of Mrs. Pillow, the estate reverted to the plaintiff, and the deed is now inoperative and void. But although no title in her heirs is shown upon the face of the deed, and it casts no cloud upon the plaintiffs title, yet we think the decree of the court below, because of the peculiar provisions and recitals in the deed, should have expressed the principles upon which the complaint was dismissed.

Chancellor Kent, in Hamilton v. Cummings, 1 John., Ch. R., 517, remarked: “I am inclined to think that the weight of authority, and the reason of the thing are equally in favor of the jurisdiction of the court, whether the instrument is or is not void at law, and whether it be void from matter appearing on its face, or from proof taken in the cause, and that these assumed distinctions are not well founded,” and, after reviewing the authorities, he continued: “But while I assert the authority of the court to sustain such bills, I am not to be understood as encouraging applications, where the fitness of the exercise of the power of the court is not pretty strongly displayed. Perhaps the cases may all be reconciled on the general principle, that the exercise of this power is to be regulated by sound discretion, as the circumstances of the individual case may dictate; and that the resort to equity, to be sustained, must be expedient, either because the instrument is liable to abuse from its negotiable nature, or because the defense, not arising on its face, may be difficult or uncertain at law, or from some other special circumstances peculiar to the case, and rendering a resort here highly proper, and clear of all suspicion of any design to promote expense or litigation. If, however, the defect appears on the bond, itself, the interference of this court will still depend on a question of expediency, and not on a question of jurisdiction.”

These remarks of the learned cháncellor were quoted by Chief Justice Marshall, in Piersole v. Elliott, 6 Pet., 95, but without any expression of approval, and he said much contrariety of opinion prevailed on the question.

In that case, Piersole v. Elliott, the deed had been, by the court, in a previous suit between the parties, declared void on its face; it therefore deemed it expedient to so' modify the decree of the Circuit Court dismissing the bill, as to show that it was 'dismissed because the deed was void at law for matter apparent on its face.

The decree of the court below is affirmed, but will be so modified as to show that the complaint was dismissed, because the deed, when properly construed, shows upon its face that the trust, thereby created, was only for the life of Mrs. Pillow, and it is now inoperative and void.


author: English, Ch. J.:

text:
    Collins vs. Mack.
    1. Statute op Limitations:
    In an action at law, the statute of limitations cannot be availed of by demurrer, but must be pleaded in bar, unless the complaint show that a sufficient time has elapsed to bar the cause of action, and, also, the nonexistence of any ground of avoidance.
    2. Evidence: Competency of husband and wife.

    The exclusion, at common law, of the husband and wife as witnesses, for or against each other, was based on grounds of public policy, for the protection of the marital relation'. Seos. 2480-1-2-3, etc., Gantt’s Digest, excluding husband and wife from testifying for or against each other, is not in conflict with the provisions of the Constitution of 1874, prohibiting any exclusion on the ground of interest, etc.; and it was error to permit the husband, in a suit by the wife for breach of a promise of marriage, to testify as to matters that occurred previous to the marriage.
    (The case of Magness v. Walker, 26 Ark., 470, reviewed and qualified.)

      3. Evidence: Competency of admissions to a physician.

    The admissions of a patient to a physician, while the latter was in attendance during her illness, and which were not necessary to enable him to prescribe for her, or do any act as a surgeon, may be proven by the physician.
    4. --: Admissions.

    Where a party to a suit becomes a witness, it is not necessary to lay the usual foundation for proving previous admissions, contradictory to the party’s testimony.
    5. Measure oe Damages: In an action for breach of promise of marriage. An action for breach of a promise of marriage, embraces the injury to the
    feelings and affections, as well as the loss of marriage; and the jury, in estimating the damages, may take into consideration all the circumstances of the case.
    The measure of damage, in an action for breach of a promise to marry, is not to be measured by the wealth of the defendant; though evidence of his rank and wealth may be pertinent to the issue, as illustrating the injury sustained by the plaintiff by loss of the marriage.
    APPEAL from Lincoln Circuit Court.
    Hon. John A. Williams, Circuit Judge.

      Pindalls, for appellant.

      Carroll & Jones and B. C. Brown, contra.

   English, Ch. J.:

This was an action for breach of promise of marriage, brought by Sallie E. Mack, against John Collins, in the Lincoln Circuit Court.

The defendant demurred to the complaint, on the grounds :

“ First — Because the same does not state facts sufficient to constitute a cause of action.
Second — Because plaintiff’s cause of action is barred by limitation.”

The court overruled the demurrer, and the defendant filed an answer of three paragraphs:

First- — Denying that he ever promised to marry the plaintiff.

Second — That the plaintiff’s cause of action accrued more than three years before the commencement of the suit.

Third — A general demurrer.

The court overruled the demurrer; the issues were submitted to a jury; verdict and judgment in favor of plaintiff for $5,000.

Motion for new trial overruled ; bill of exceptions, and appeal by defendant.

First — As to the demurrer to the complaint:

The counsel for appellant submit that there are two counts in the complaint, one for breach of promise of marriage, and the other for seduction, and that both counts are bad, the first because it avers a promise of marriage, but alleges no breach of the promise, and the second because appellee could not sue for her own seduction.

It is true that the complaint, as it appears in the transcript, is divided into two paragraphs, such as are usual in literary composition, but they are not numbered Code fashion; and looking at the whole complaint, we think the pleader intended to set forth but one cause of action, that of breach of promise of marriage, and that the seduction, superinduced by means of the promise of marriage, was alleged as matter of aggravation.

So the counsel of appellant below must have understood the complaint, for, in his answer, he denied the alleged promise of marriage, but did not deny the seduction.

In an action at law the statute of limitations cannot be availed of by demurrer to the complaint, but must be pleaded in bar, unless the plaintiff should be foolish enough not only to show, upon the face of his complaint, that a sufficient time had elapsed to bar his cause of action, but, also, the non-existence of any ground of avoidance, which was not done in this case ; Rankin v. Turney, 2 Bush, 555; Hieronymous v. Mayhall, 1 id., 508.

Second — As to the competency of the husband to be a witness for the wife in a civil action by her:

On the trial, the appellee introduced her husband (Joseph Mack) as a witness in her behalf, and the court permitted him to testify against the objection of the appellant, and this is made the second ground of the motion for a new trial.

It seems that after appellee was delivered of a child, of which appellant was the father, and after he had married another woman, she intermarried with Joseph Mack, but did not join him with her as plaintiff in this action against appellant for the breach of the alleged promise of marriage made by him to her while sole.

Mack testified as follows: I am the husband of plaintiff; I went to work for John Collins (defendant) in November, 1871, helping him to build a levee; I quit working for him in February, 1872, when we were, running the line of the leree ; I told John Collins that a young man by the name of Thornton was sparking Miss Sallie (plaintiff) on last Sunday, and that I thought he liked her, and was going to marry her. John said, ‘ No, that fellow will not marry her, for Sallie and I are engaged.’ I then said, I think if you and Sallie are engaged, you will get her instead of the other fellow, because I think she likes you better than she does him.’ I once saw John put his arms around Miss Sallie, and they fell down in the scuffle, and Mrs. Weaver (who was present) said, f My God ! did you ever see two such peoples ?’ ”

The object of this testimony was to prove the alleged promise of marriage, which appellee, who had been previously examined, proved directly.

The matter proven by the witness was material to the issue, and came to his knowledge before his marriage with appellee.

By the Constitution of 1868: In the courts of this State there shall be no exclusion of any witness in civil actions because he is a party to, or interested in, the issue to be tried,” etc.; Art. ■7, sec. 22.

In the schedule to the Constitution of 1874, this provision is continued in force (subject to legislative repeal or amendment), in these words: In civil actions, no witness shall be excluded because he is a party to the suit, or interested in the issue to be tried,” etc.; sec. 2.

By sec. 662 of the Civil Code, enacted after the adoption of the Constitution of 1868: “ All persons, except those enumerated in the next section, shall be competent to testify in a civil action.”

gee. 663. The following persons shall be incompetent to testify:

First — Persons convicted of a capital offense, or perjury, etc.
Second — Infants under the age of ten years, etc.
“ Third — Persons of unsound mind, etc.
“Fourth — Husband and wife, for or against each other, or concerning any communication made by one to the other during the marriage, whether called as a witness while that relation subsists, or afterwards.” See Gantt’s Digest, secs. 2480-1-2-3, etc.

In Spivey et al. v. Platon, adm’r., 29 Ark., 606, we held that so much of the fourth clause as relates to communications made by husband and wife, one to the other, was but declaratory of a familiar and well settled common law rule of evidence.

If, by the common law, the husband and wife were incompetent to testify for or against each other, in a civil action, solely on the ground of interest, then, by the above provision of the Constitution, such disqualification was removed, and they were placed on a footing, as to competency, with other witnesses, and so much of the above statute as renders them incompetent to testify for or against each other, is in conflict with the Constitution, and void.

The husband and wife, says Mr. Kent, cannot be a witness for or against each other in a civil suit. This is a settled principle of law and equity, and it is founded as well on the interest of the parties being the same, as on public policy. The foundations of society would be shaken, according to the strong language in one of the cases, by permitting it. 2 Com., 178.

The rule by which parties are excluded from being witnesses for themselves, says Mr. Greenleaf, applies to the case of husband and wife; neither of them being admissible as a witness in a cause in which the other is a party. The exclusion is founded partly on the identity of their legal rights and interests, and partly on principles of public policy, which lie at the basis of civil society. For it is essential to the happiness of social life, that the confidence subsisting between husband and wife should be sacredly protected and cherished in its most unlimited extent; and to break down or impair the great principles which protect the sanctities of that relation would be to destroy the solace of human existence. 1 Greenlf. Ev., sec. 334.

It makes no difference at what time the relation of husband and wife commenced; the principle of exclusion being applied in its full extent, whenever the interests of either of them are directly concerned. Id., sec. 336.

Nor is there any difference, in principle, between the admissibility of the husband and that of the wife, when the other is a party.. Id.

In Davis v. Dinwoody, 4 Durnford & East, 678, where the sheriff was sued for selling the separate goods of the wife, under an execution against the husband, and the husband was called as a witness to identify the goods, it was objected to his competency, that he was interested, to which it was answered that he came to speak against his interest, etc. Lord Kenyon, Ch. J., said; “ Independently of the question of interest, husbands and wives are not admitted as witnesses, either for or against each other; from their- being so nearly connected, -they are supposed to have such a bias upon their minds that they are not to be permitted to give evidence either for or against each other.”

And Butler, J., said: It is now considered as a settled principle of law, that husbands and wives cannot, in any case, be admitted as witnesses, either for or against each other.”

And in Wyndham v. Cheatwynd, 1 Burrow, 424, Lord Mansfield said: In the matter of evidence, husband and wife are considered as one, and cannot be witnesses, the one for the other. The husband cannot be witness for his wife in' a question touching her separate estate.”

In The People v. Mercein, 8 Paige, 49, Chancellor Walworth said, the rule which excludes the wife from being a witness for or against her husband, is founded upon a principle of public policy. And Mr. Tyler, after quoting the remarks of the chancellor, in that case, said: This was said with respect to the testimony of the wife for or against her husband, and the rule is as sacred with respect to the testimony of the husband for or against the wife.” Tyler on Inf. and Cov., pp. 321-2.

Mr. Cord says: The best reason for not allowing a husband or wife to be witnesses against each other is, that if a wife were a witness for her husband, she would be under a strong temptation to commit perjury; and if against her husband, it would be contrary to the policy of marriage, and might create much domestic dissension. So vice versa of the husband.”

The husband is an incompetent witness for the wife, where her separate estate is concerned.” Cord’s Legal and Equitable Rights of Married Women, secs. 1032-3.

Mr. Reeve says: It is a rule of law, that husband and wife cannot be witnesses for, or against each other. * * * The principle of this rule, arises from the anxious solicitude, which the law discovers, to preserve domestic tranquility. It cannot be supported on the ground of interest in the suit ; for the wife has no property that can be affected by the suit. She is not then, interested in it. It is highly probable, that she is anxious respecting the event of the suit. So a father is anxious, in the case of a child; but the interest which excludes, must be a direct pecuniary interest.

In ordinary eases, any person may be a witness in his own cause, or in one in which he is interested, if the opposite party consents to it; but in the case of husband and wife, if the husband, wife, and their antagonist all agree that the wife may be a witness, the law interferes, and prevents it. This shows that it is not because the wife is interested, that she is prevented from being a witness; for the right of the opposite party to object to an interested witness, may be waived; but to suffer such waiver, in the case of a husband and wife, has a tendency to disturb that' domestic tranquility, which is so desirable; and therefore, the law forbids it.” Reeve’s Domestic Relations, 188-9.'

In Wilson v. Sheppard, 28 Ala., 623, a married woman brought suit, for the conversion of personal property, claimed by her as part of her separate estate, and called her husband as a witness— Held, that he was incompetent.”

By the Code of Alabama, no objection can be allowed to the competency of a witness, “ because he is interested in the event of a suit, or liable for costs, unless the verdict and judgment would be evidence for him in another suit.

The court said: “The incompetency of husband and wife, to testify for or against each other, unless in a few exceptional instances, has its foundation, not merely in the identity of their legal rights, but in a wise public policy.

So in McDuffie v. Greenway, 24 Texas, 625, where the separate goods of the wife were levied on under an execution against the husband, and claimed by the wife, the husband was called as a witness for her. The court said: “The husband was not a competent witness for the wife, for although his pecuniary interest in the suit might be adverse to her’s, it is a rule founded in sound policy, that the husband cannot, in such a case, be a witness either for or against the wife.”

By the Code of New York, “No person offered as a witness, shall be excluded by reason of his interest in the event of the action.”

.In White v. Stafford, 38 Barbour, 420, the plaintiff called his wife as a witness.

The court said. “ This provision (the statute above copied) annihilates, at a blow, every objection to the admissibility of witnesses, on the ground of pecuniary interest. So far, therefore, as the rule excluding husband and wife, may. be supposed to stand on that ground, it is overthrown by this section; but, as we have seen by the preceding citations, the rule of exclusion is based upon the broader and higher ground of public policy. It is obvious that section 398 of the Code (copied above) was only intended to remove the disability of pecuniary interest, and not to affect other grounds of exclusion. But it is not necessary to pursue this point, for in the case of Hasbrouck v. Vandervoort, 5 Selden, 153, the Court of Appeals have distinctly adjudicated, that this section did not affect the rule under consideration.”

See also Smith v. Railroad, 44 New Hamp., 334; 1 Dillon R., 66, note; Funkhouser and wife v. Pogue, 13 Ark., 295.

Ve conclude, therefore, that the provision of our statute, above copied, which declares, that husband and wife shall be incompetent to testify for, or against each other in civil actions, is not in conflict with the provision of the Constitution, which declares that: “ In civil actions, no witness shall be excluded because he is a party to the suit, or interested in the issue to be tried,” and that the court below erred in permitting the appellee to introduce her husband to testify as a witness in her behalf.

In coming to this conclusion, we have not overlooked the remarks of Mr. Justice Gregg in Magness v. Walker, 26 Ark., 470.

That suit was for rent by Magness against Walker, on a contract made by the wife of Magness as his agent, and when he was absent in Texas, with Walker. Walker was sworn as a witness for himself, and gave his version of the contract. Magness having been absent when the contract was made, and having no personal knowledge of it, offered his wife as a witness, who made the contract as his agent, and she was excluded by the court below. This court held that she was admissible under the circumstances; and there are some authorities which sustain this ruling, on the ground of necessity, and to prevent a failure of justice. Mr. Justice Gregg, however, undertook to construe the clause of the Constitution of 1868, which we have been considering, but did not notice the statute on the subject, and his remarks, beyond the precise question then before the court, must be regarded as obiter dictum.

Third — As to admissions, etc.:

Appellant called as a witness Dr. Joshua Henly, who testified that he was a practicing physician, and was called to attend appellee in her confinement at the time she was delivered of the child spoken of by her in her testimony.

Appellant offered to prove by this witness that during said visit and attendance, and about six hours after she was delivered of her child, appellee told" witness that she and appellant never had been engaged, and that he never had promised to marry herj Upon the objection of appellee, the court excluded this evidence, but upon what ground, does not appear in the transcript.

Not, surely, on the ground that the admission was a confidential communication to the witness, necessary to enable him to prescribe for appellee as a physician, or to do any act for her as a surgeon, (Gantt’s Digest, sec. 2485,) for her statement to him was not of that character.

Nor do we think that the admission could properly have been excluded on the ground that appellee had not, while on the stand as a witness, been asked if she had made such admission.

She sustained two relations to the suit: First, as plaintiff; second, as a witness in her own behalf. By becoming a witness, she did not lose her character as plaintiff.

The acts and declarations of a party to a suit, when they afford any presumption against him, may be proven by the opposing party. Phelan v. Bonham, 9 Ark., 389.

Appellee had stated,' on her examination, that appellant had promised to marry her. Had she been a witness in the cause only, and not a party, appellant could not have discredited her, by proving that she had made a contrary statement on some former occasion, without first interrogating her as to such former statement. Drennen v. Lindsey, 15 Ark., 359.

By making herself a witness in her own behalf, appellee could not cut off, or impair, the full right of the appellant to prove her admissions or declarations as a party. Had the proposed evidence of her admission been admitted, she could have been recalled and examined by her counsel in regard to it.

Appellant, however, was hardly prejudiced by the exclusion of Dr. Henly’s testimony, because, before he was introduced, appellant had proven, by four other witnesses, that appellee had made similar admissions to them, on other occasions.

Fourth — As to instructions given for appellee :

The court gave five instructions to the jury, for appellee, to which appellant objected:

“First — This is an action for a .breach of promise of marriage, and if the jury are satisfied, from the testimony, that such a contract was made, and was broken without just cause, they can fix the damages in any sum not exceeding five thousand dollars, (the amount claimed in the complaint).
“ Second — If the jury believe, from the sworn evidence of the witnesses, that the defendant, within three years next before the commencement of this suit, promised to marry plaintiff, and that after said promise, defendant married another person, without just cause, they may find for plaintiff, in any sum not exceeding five thousand dollars..
“ Third — If the jury find for plaintiff, they may award her actual damages, and such further damages as they may deem right, as a compensation for lacerated feelings, and indignity to which she was subjected by the defendant’s failing to fulfill his promise of marriage.
“ Fourth — If the jury find for plaintiff, they may assess the damages at a sum commensurate with the injury resulting from, the breach of the marriage contract, and they may take into consideration all the circumstances of the case.
Fifth — If the jury believe, from the evidence, that defendant promised to marry plaintiff, and that such promise was within three years next before the commencement of this suit, and that plaintiff was ready and willing and offered to marry him, and he refused so to marry plaintiff, without just cause, and that plaintiff has been damaged thereby five thousand dollars, they will so find.”

The court also instructed the jury, of its own motion, that in making up their verdict they would not take into consideration the question of seduction. But of this the appellant d^es not complain.

The criticism of the counsel for appellant upon the five instructions given for appellee, points out verbal, rather than substantial, faults.

The action for breach of promise of marriage, says Mr. Sedgwick, though in form ex contractu, yet, it being impossible, from the nature of the case, to fix any rule or measure of damages, the jury are allowed to take into their consideration all the circumstances; and, provided their conduct is not marked by prejudice, passion, or corruption, they are permitted to exercise an absolute discretion over the amount of compensation. The damages in this action, says the Supreme Court of New York (Southard v. Rexford, 6 Cowen, 254), vest in the sound discretion of the jury, and the circumstances of each particular case.” Sedgwick on Damages (6th ed.), p. 248.

Again, he says : The action for breach of promise of marriage, as has been already said, though nominally an action founded on the breach of agreement, presents a striking exception to the general rules which govern contracts. This action is given as an indemnity, to the injured party, for the loss she has sustained, and has been always held to embrace the injury to the feelings, affections, and wounded pride, as well as the loss of marriage. From the nature of the ease, it has been found impossible to fix the amount of compensation by any precise rule ; and, as in tort, the measure of damages is a question for the sound discretion of the jury in each particular instance, subject, of course, to the general restriction, that a verdict influenced by prejudice, passion, or corruption, will not be allowed to stand.

Beyond this, the power of the court is limited, as in cases of tort, almost exclusively to questions arising on the admissibility of evidence, where offered by way of enhanciug or mitigating damages. So where it appears that the promise was made by the defendant with a view to seduce the plaintiff, and that the defendant thereby did, in fact, seduce the plaintiff, this will be allowed to go to the jury in aggravation.” Id., pp. 455-6, and notes.

If Mr. Sedgwick had presided at the trial of this cause, instead of his Honor Judge Williams, and had read to the jury the passages from his work on the • measure of damages, which we have copied above, the appellant would have had more cause to complain than he has of the charge of the presiding judge ; for the appellee swore that it was by means of the promise of marriage that appellant induced her to yield to his solicitations for sexual intercourse; yet the presiding judge told the jury that in making up their verdict they would not take into consideration the question of seduction. It is probable, however, that the jury disregarded this charge of the judge, as they gave to appellee the full measure of damage claimed in her complaint.

See Goodall v. Lavina Thurman, 1 Head. (Tenn.), 209.

Fifth — As to appellant’s instructions:

Appellant asked eight instructions, and the court gave all of them except the fifth and eighth, which were refused, and are as follows:

Fifth — To entitle the plaintiff to recover damages, it must appear that she was damaged by the breach of promise ; and the plaintiff must prove the amount she has lost by such breach of promise, by showing the amount of defendant’s property, and his standing in society at the time the alleged breach of promise occurred ; and if the plaintiff fails to prove that the defendant owned or possessed property of value, the presumption is in favor of defendant that the plaintiff lost nothing in property by the alleged breach.
“ Eighth — If the jury find, from the evidence, that pjaintiff has, since the alleged breach of promise and seduction, contracted a marriage, and no evidence appearing to show that such marriage is not respectable and honorable, it is a circumstance that the jury may consider as against the plaintiff as to the damage she is alleged to have suffered by the alleged breach of promise by the defendant.”

Mr. Greenleaf says : “ Nor are damages to be assessed merely ' according to the defendant’s ability to pay ; for whether the payment of the amount due to the plaintiff, as compensation for the injury, will, or will not, be convenient to the defendant, does not at all affect the question as to the extent of the injury done, which is the only question to be determined. The jury are to inquire, not what the defendant can pay, but what the plaintiff ought to receive. But, so far as the defendant’s rank and influence in' society, and, therefore, the extent of the injury, are increased by his wealth, evidence of the fact is pertinent to the issue.” 2 Greenleaf Ev., sec. 269.

In Goodall v. Lavina Thurman, 1 Head., 216, which was an action for breach of promise to maary, the court said : “ It is contended, that as the defendant was poor, it was erroneous in the court to charge, as it did, that the jury could not look, in the assessment of damages, to his ability to pay. The charge on this point was: ‘That the damages to be recovered are in the sound discretion of the jury, under the circumstances surrounding the case. ' The jury, in assessing the damages, are to inquire, not what the defendant can pay, but what the plaintiff ought to recover. They may look to the rank and condition of the defendant !’ A man’s poverty certainly should not secure him from damages commensurate with the injury inflicted. It is enough that they cannot be collected when recovered. The charge would, perhaps, have been more full and accurate to have made some reference to the estate of defendant, as a matter to be looked to in the discretion of the jury,-but error cannot be predicated of this omission.”

Whether the appellant in this case was wealthy or poor, does not appear. Neither party thought proper-to introduce any evidence on that subject.

The fifth instruction moved for appellant, and refused by the court, would seem to make the amount of defendant’s property the measure of plaintiff’s recovery in an action ■ for breach of promise of marriage, and to assert that it is a presumption of law ’that the defendant is poor, unless the plaintiff proves him to be a man of property.

We have-seen from the above authorities that plaintiff’s damages are not to be measured by the wealth of the defendant, though evidence of his wealth and rank may be pertinent to the issue; and we are not aware that the law presumes the defendant to be poor or rich, but under the impression that it leaves the party relying for advantage upon one or the other to prove it.

Framed as it was, appellant’s fifth instruction was properly refused.

The eighth instruction moved for appellant, and refused by the court, seems to assume that there ivas no evidence that appellee’s marriage, after appellant’s alleged breach of promise, etc., was not respectable and honorable, etc.

Every instruction should be hypothetical — based upon the supposition that if the jury find certain facts to be proved or disproved, then the legal consequence resulting therefrom is one way or the other. Floyd v. Ricks, 14 Ark., 287; Bank v. McGuire, id., 530; Atkins v. State, 16 Ark., 569.

Appellee, on her examination, after relating her sad story— how, in substance, she was invited to live with her aunt, appellant’s mother; how he first offended her by an improper approach, their subsequent agreement of marriage, the means to which he resorted, under a promise of marriage, to induce her to yield, in the first instance, to his solicitations for intercourse, his breach of promise by marrying another woman, the birth of her child, her estimate of the damages which she had sustained, etc., — added, that but for this, she would not have married Mack; that she had no home or place to go to, and that he had no property, and was a laboring man.

What impression the jury had of Mack, from the fact that he had married a fallen woman, we do not know.

If the defendant, in an action for breach of promise of. marriage, may show, in mitigation of damages, that plaintiff subsequently contracted an honorable and advantageous marriage, we are not persuaded that it was shown in this case.

Sixth — We have but little to say about the sufficiency of the evidence to sustain the verdict, of of the amount of damages assessed by the jury. There was a conflict between the testimony of appellee and appellant, as there usually is where the parties are allowed to be witnesses, but of the weight of the evidence it was the province of the jury to judge.

Appellant swore he never promised to marry appellee. He admitted that he had criminal connection with her, his own cousin, and while she was living under his mother’s 'roof, and under her protection.

He laid the blame of the beginning of their illicit intercourse on appellee, but tke jury may not have thought this manly, or have believed it, as, in such matters, men are usually the aggressors. He may not have made a favorable impression upon the jury by telling them that he kept up this criminal intercourse with his unfortunate cousin up to the time of, and for a few days after his marriage with another woman. His solemn marriage vows were unheeded, or soon forgotten.

But for the error of the court in admitting the testimony of the husband of appellee, we should not be inclined, upon the whole record, to disturb the verdict.

Since the cause was brought here the death of appellant has been suggested, and his administratrix substituted.

For the error above indicated, the court below should have granted a new trial.

The judgment must be reversed, and the cause remanded for a new trial. (Gantt’s Dig., secs. 476-1).