author: Eakin, J.

text:
    Little Rock and Fort Smith Railroad Company vs. Dyer.
    1. Parties : Action for trespass on homestead of a deceased husband.

    The widow is entitled to the possession of the whole homestead of her deceased husband, and is the proper party to bring an action for trespass in entering upon and using it. The heirs may sue separately, in case, for a permanent injury to the freehold, resulting from the trespass.
    2.- Practice : Parties: Misjoinder of. How corrected.

    Misjoinder of parties plaintiffs is no ground for arrest of judgment. It may be set up by answer; or, if it appear from the pleadings, may be corrected by motion.
    3. Right oe Way: Damages for, against railroad companies : Pleading.

    A railroad company having a right of way absolutely by its charter, subject only to damages for taking land without compensation, is not liable to the action of trespass for doing so. The remedy provided by act of January 22, 1855 (Goulds Dig., 884), for obtaining assessment and payment of damages, is exclusive. But companies organized under general acts under the constitution of 1868, have no such general right to enter upon and use lands. They must first make, or provide for, compensation for them, or they will be liable in trespass for the entry upon and taking of the land. If a railroad company belong to the class not liable to the action of trespass, it must show it in its answer to such action ; otherwise, the general rule applies, which makes corporations, as well as individuals, liable for civil torts.
    4. Trespass : Pleading: Vi et armis not necessary allegation.

    It is not necessary in trespass to allege in terms that the injury was done vi et armis.

      APPEAL from Crawford Circuit Court.
    Hon. Thomas Martin, Special Judge.

      Clark £ Williams, for appellant.
   Eakin, J.

Appellee, a widow, occupying the farm of her deceased husband, together- with some of his children, as a homestead, joined the heirs in a suit-against the company, for entering upon the land and building through it a road-bed. There had never been any administration on the estate.

They simply allege that defendants, without their consent, and without compensating them, or offering to do so, for damages sustained, or yet to be sustained, entered upon-a portion of the lands constituting the farm, and ¿constructed a solid embankment, néarly a quarter of a mile long, through open fields. • They .say that by reason thereof, the lands and fields came to be overflowed and washed, and they were, in a great measure, deprived of the use of them in cultivation. Damages are laid at $800.

Defendant denies the want of permission, setting up the written consent of plaintiff, Sarah Dyer, who, it alleges, had control of the premises. It denies, also, that the overflow of water'was caused by the embankment.

The material evidence, the effect only of which is stated in the bill of exceptions, showed tl ast in 1877 nearly all of the premises were so overflowed by water as to be unfit for'cultivation, and that the damages to the premises was “ from $50 to $800.” There was some testimony tending to prove that said inundation was caused by the embank•ment; aud, for the defendant, some to the contrary. It was proved that defendant put a culvert in the embankment of sufficient capacity to admit the flow of ordinary rain-falls; and that the land had been used to overflow before, but not more than from óne-eighth to one-third the extent that it had after the embankment was built.

1. Parties:

In action for trespass on a deceased husband's homestead.

Defendant showed that Sarah Dyer, on the thirteenth of December, 1870, granted it, by deed, a right of way through the “east half of the southwest quarter of section 36.” The pleadings, however, admit that the defendant entered, also, on the northeast quarter of the northwest quarter of section 1, for the purposes of the embankment. In other words, the grant does not cover the lands taken.

Upon the trial the jury found for the plaintiff t\\& sum of $300 damages, for which judgment was rendered in favor of Sarah Dyer.

■ Defendant reserved no exceptions to the instructions, and moved for a new trial on the grounds :

1. That the verdict was contrary to the weight of evidence, and the law and instructions of the court.

2. That the damages were' excessive.

The motion was overruled.

The court also refused a motion „to arrest the judgment, and defendant appealed. The motion in'arrest appears in the transcript of the proceedings. If was grounded on a misjoinder of parties, and failure of the complaint to show cause of action.

The action is one of trespass.

There are no allegations in the complaint adapted to sustaiu the old action on the case, for negligence and want of skill in'the construction of the road-bed, whereby damage ensued.

The widow,, whilst living, is entitled to the possession of the whole homestead, and is the proper person to bring the action for the trespass in' entering and building the embankment. The heirs could have sued separately, in case, by alleging a permanent injury to the freehold as a consequence of the trespass. The judgment in this case, however, for the immediate damage, if proper at all, was properly-rendered in favor of Sarah Dyer. Misjoinder of parties, however,-is not good ground for motion in arrest O • T , of judgment. It may be set up in the answer ; or if it appear from the pleadings, may be corrected by motion.

2. pabties:

of,how eorreo ted.

is®;,w^GHT'

Damages for, against railroad companies, Pleading.

¿Teesfass:

5s sary na°uegation.

The “Little Rock and Eort,Smith Railway company” here sued as a corporation, and answers as such. It will, therefore, m this case be so considered. But there is noth- * ing in this record to advise us when it was organized by the present name. If it had right of way absolutely by its charter, subject only to damages for taking land without compensation, then it was not liable to the action of trespass. The remedy provided byact of January 22, 1855, (Gould’s Digest, p. 884), for obtaining assessment and payment of damages would be exclusive. (See C. and F. R. R. Co. v. Turner, 31 Ark., 499; Same v. Trout, 32 Ark., 17; Johnson v. St. L., I. M. and S. Ry. Co., ibid, 758). Companies chartered or organized-by virtue of general acts, under the constitution ofl868, have no such general rights to enter upon lands and use them. It is conditional that prior compensation be paid, or provided for. (Const. of 1868, Art. V, sec. 48.) If the defendant was -organized by, or. derived its powers from an act under that constitution, and had not obtained a grant of the right of way, nor made nor provided for compensation, its action would be a trespass. If it belongs to the class of corporations not liable in this action, it should have shown it. Otherwise the general rule applies, which makes corporations as well as individuals liable for civil torts.

The complaint, though somewhat informal, was good, as ah action of trespass. It is not necessary, in terms, to allege that the injury was done vi et arrnis.

The next inquiry raised by the motion for a new trial is, was the verdict such as tbe law, instructions and evidence can support?

The instructions embraced both aspects of plaintiff’s case, and advised the jury with sufficient accuracy, of the law of damages applicable not only to a trespass and its legitimate consequences, but also to an action on the case for want of skill and due care in building the embankment. There being no allegations to support any proof as to want of skill and care, the latter branch of the instructions was unadvised. They appear in the bill of exceptions, and although exceptions to them are not reserved, they may be noticed in explaining the verdict.

The plaintiff had granted a right of way over one forty-acre tract, and had no right to recover any damage as to that. The pleadings admit that the embankment passed partly through that, and partly through an adjoining forty-acre tract, over which defendant had no right of way. The verdict was, therefore, properly against the road.

Lastly, as to the amount: There is absolutely nothing •to show howT much of the damage resulting from the embankment wTas attributable to that portion of it which was unauthorized. All we know is, that the whole damage was from $50 to $800, which is wild, vague and uncertain. We do not know whether the jury had in view the necessary and proper damage resulting from a well-built embankment, or the damage from want of care and skill in building it. The sum of $300 is not warranted by any proof. The verdict should have been for nominal damages only, and costs. The onus of showing the amount was on plaintiff, and she did not sustain it.

Upon the return of this case, his honor, the circuit judge, will exercise his discretion in allowing such amendments to the pleading as will present clearer issues.

For error in overruling the motion for a new trial, reverse the judgment, with' directions to grant a new trial, and for further proceedings consistent with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Conner, Ford’s Ad., et al. vs. Abbott.
    1. Mortgage: Acknowledgment: The word “consideration!'essential.

    If the acknowledgment of the execution of a mortgage fails to state that the mortgage was executed for the “consideration” therein expressed, it is insufficient, and the mortgage, though recorded, is void against subsequent purchasers, even with noticebut is good between the parties to it.
    2. Married 'Women : Note and mortgage of r, void, unless, etc.: Protected in chancery without defense.

    A promissory note of a married woman not given for her personal benefit or that of her separate property, is void. And so is her mortgage in which her husband has not joined, and which has been acknowledged by her as a femme sole, and not as a married woman. And in a suit to foreclose such mortgage, a court of equity will protect her, though she make no defense against it. .In such cases, it is the duty of the Chancellor to examine her in open court, in regard to her wishes, and to see that her assent is intelligently and freely given, before making any decree other than would be made against her in invitum. And wherever, upon appeal, this practice appears to have been omitted by the Chancellor, and she has not disposed of her rights by the statutory method, this-court should, of its own motion, extend the protection which the law intends to afford. But such decree against her is not void, but good until reversed.
    [The mortgage in this case was executed before the adoption of the constitution of 1874. Bep.]

      3. Stockholders: When partners.

    When parties become stockholders in a company for the purpose of organizing a corporation under the laws of the state, and engage in' the business for which the company was formed, but fail to complete the incorporation of the company by filing the articles of incorporation in the office of the secretary of state, they become partners with interests proportionate to their shares, and can take property, in equity, for partnership purposes.
    APPEAL from Randolph Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Yonley Sp Whipple, for appellants.

      Henderson ¿••Caruth, contra.

   Eakin, J.

On the nineteenth of August, 1874, appellee, Abbott, filed this hill against James H. Ford and wife, Willoughby Conner and wife, and James T. Martin and his wife, Kate A. Martin, to foreclose a mortgage made to secure a note to complainant for ¡¡>4,000 by said Ford, Conner and Kate A. Martin, dated February 4, 1873, and payable at twelve months, with interest at the rate of 24 per cent, per annum from date until paid.

The mortgage was upon a body of lands in said county of 680 acres, and was signed by said Ford and Conner, with their wives, and by Kate A. Martin. It was acknowledged by all the parties grantors, but said Kate A., both in the execution and acknowledgment, acted as 'a femme sole, no mention being made, in the face of the instruments, of her coverture. Questions are raised in argument of the sufficiency of the acknowledgment of Ford, and of his wife and Conner’s,' which will be noticed hereafter. The bill states that said James T. Martin is the husband of said Kate A., but does not disclose when he became so. It seems, from the evidence, however, that she -was married at the time.

Complainant claims to be in possession ; acknowledges a payment of $200 and prays foreclosure of the balance.

Conner and Martin, with their wives, answer, admitting the execution of the mortgage. They deny complainant’s possession, but say that he holds under and by authority of a certain company known as the ‘“Fourche Manufacturing company,” to which the property in question had been conveyed by Eord and wife, with' complainant’s consent. They set forth the names of those composing the company, and say that they purchased the premises from Webb, Conner & Co. for $16,000, upon condition that said firm would procure a deed to the company, of the lands, from Eord and wife, who had sold to Conner & Co., but then had made no deed. The articles of association of the company, entered into on the .first day of March, 1874, are exhibited, which recite the purchase from Webb, Conner & Co., of 440 acres of the laud, for'the purposes of the company, for $1,600. A deed was accordingly executed to the company onthe 14th of May, 1874; by Ford and his wife, and respondents say, the company has beefi, ever since, in possession, and is a necessary party to this proceeding. They say further that when the purchase from Ford was made, and his deed .taken, complainant agreed with Webb, Conner & Co. to take $2,500 of stock in the company, and to receive a stock certificate for that amount; and also, as collateral security in part payment of the note, another stock certificate from Conner & Co., for the sum of $6^000; and fui’ther, said firm was to'pay" him $500 in cash; all of which was to be in consideration of a release of the mortgage upon the mortgaged lands, which he agreed to make on those terms.

They allege that certificates of stock were issued to all subscribers who had paid' up their stock, and that complainant, in part payment of his mortgage, received a certificate of $2,500 in stock, and that Webb, Conner & Co. tendered to him another certificate of $6,000, to be held as collateral, for further satisfaction of the mortgage, which tender had been kept good, and the stock offered in court with the answer; and that the sum of $500 was covered by an account of said firm against said complainant, due before the commencement of the suit.

They ask, therefore, that the mortgage be canceled, and that complainant he held to a specific performance of his agreement, and that an account be stated, and for further relief.

The articles exhibited provide for the formation of a joint stock company, under the laws of the state, with a capital of $26,000, to be divided into shares of $100 each. The names of the subscribers are given, with the amount of stock taken by each, ranging in sums from $100 to $10,000, amongst which appears the name of complainant for twenty-five shares, amounting to $2,500. They number, in all, forty-one subscriber's. The articles were filed with the clerk of the county, but not with the secretary of state.

Ford and wife, answer, and admit the execution of the mortgage, but deny complainant’s possession. They allege' their sale made to Conner & Co., and the execution of the deed, by Conner & Co.’s directions, to the “Fourche Manufacturing company,” which they say was by complainant’s consent. They set forth the names of all who composed the company, including that of complainant, and say that he induced the company to accept, and respondents to make, the deed, by the express understanding that he would release his mortgage, thereby causing the company to organize and issue certificates of shares for paid-up stock. They repeat the allegations of Conner and Martin, and sustain the same as to the circumstances and agreement under which the land was conveyed to the company. They allege that the company was organized, and that complainant acted as a director, and accepted the office of treasurer and served the company for several months as such, at a salary of $50 per month.

They claim that he is thus estopped from proceeding to foreclose his mortgage. They make their answer a cross-complaint, stating that said Eord was seized of the lands in fee simple, in February, 1873, and sold the same by title-bond to Conner and wife, and Kate A. Martin and her husband, for $6,000, to be paid in yearly installments.

There was a mill upon the land, and for the sake of making costly improvements, he afterwards joined the vendees in making the mortgage. In the spring of 1874,-Conner informed him that he was insolvent and could not pay the mortgage, nor could Kate A. Martin, and induced him to make a deed of it to the company about to be organized for manufacturing and trading purposes, and to take stock from Conner for what should be due him from said Conner and Kate A. Martin on the land. At the same time he had been advised by Conner that complainant would take stock upon his mortgage to the extent of $2,500, and $6,000 more from Conner as security, and a payment of $500, and would release his mortgage.

Ford further sets forth the agreement to form the manufacturing company and the intention to incorporate themselves under the law, which intention failed by mistake in fixing the value of the shares.

He says, however, that the company is proceeding to transact a general business without having filed the necessary documents with the secretary of state, and are using* the premises which he sold to them. That he sold in good faith and joined in the company, under the belief that Abbott, the complainant, would release his mortgage, and the company would hold the property free from incumbrances — all parties taking stock for their several interests.

He alleges that the company has a large amount of various kinds of assets on hand; that the officers are receiving large salaries, and that now said complainant, contrary to his agreement and understanding, is endeavoring to. foreclose the mortgage.

He makes all the other members of the association parties defendant to the cross-bill, and prays that the articles be reformed in accordance with law, and that the president and board be compelled to file them with the secretary of state and county clerk, so as to constitute a valid joint-stock conxpany, before proceeding further in business, and that Abbott and Conner be compelled specifically to perform their agreements, and for general relief.

Upon motion, a summons was issued for all the subscribers made defendants, and,- by consent, Willoughbj7 Conner, one of the parties to the suit, was appointed receiver.

Complainant answered the cross-bill, admitting Ford’s seiziu in fee as alleged, but denying that he ever offered him any inducement to execute the deed to the company, or authorized Conner or any one else to say to Ford that if he would execute it the mortgage would be released. He denies that he agreed to cancel it upon the terms alleged; but admits that, being misled to believe the company had been duly organized according to law, he, under that impression, did make the agreement with Conner, upon condition that the latter would pay him $500 in cash, and the company would issue to him $2,500 in paid stock, and in addition thereto, that Conner would deliver up to him $6,000 in paid certificates, to-be held by him as collateral for his mortgage debt, which was still, however, to remain as a lien on the property ; and if the subscribers would all pay promptly their installments. But he says there was no legal corporation, nor agreement to bind the subscribers to a mercantile partnership. Tie denies that Conner ever paid or tendered him the sum of $500, or that any of the conditions were performed upon which he was to release the mortgage. The company was never organized; many of the subscribers have withdrawn — refusing to pay up their stock, and taking no further interest in it. He admits that he acted as director and treasurer, and was paid a salary for his services as miller, during three or four months.

Levi Hecht, one of the subscribers, holding paid up stock to the value of $1,000, answered the bill. Tie positively asserts the agreement of complainant, Abbott, upon the formation of the company, to take the shares as alleged, and release the mortgage. He prays for an account between those holding paid up stock.

The firm of Surridge & Fisher; also holders of paid up stock to the value of $1,000, answer, and assert an express agreement between Abbott and the other subscribers for the release of the mortgage, on the purchase of the lands by the company. They pray the same relief with Hecht.

The decree was made, on hearing, for Abbott, for a foreclosure of the original mortgage, with a money decree for the debt against the administrator of Ford, who had died pending the suit, and Conner, and said Kate A. Martin.

The amount found due was $8,404.44, for the payment of which a sale "was ordered, and execution for any balance ■which the sale might fail to satisfy. The cross-bill of Ford and wife was dismissed.

l Aoknowledqment:

ationS”dessentiaim.

2. Married

^rÍshín teote'a Prin withoutde-

All the' defendants appealed.

A review of the pleadings • and voluminous testimony, ]ea(jg 0UI. rainds to the following conclusions of fact: The ^an(^ i’1 question was a valuable tract belonging to Ford in fee simple. There was a mill upon it with valuable machinery. Ford sold by title-bond to Conner and Kate A. Martin, a femme covert, but made no deed. They required more means than they had to work the place successfully, and Ford joined with them in the execution of a note to Abbott to borrow money for the purpose; and, to secure it, the mortgage in question was made. As to Kate A. Martin, it is apparent that both the note and mortgage were absolutely void. She executed both, and acknowledged the latter as a femme sole. This she was incompetent tó do. The note does not purport, nor does any proof show it, to have been executed for the benefit of herself, personally, or her separate property. Her husband does not join with her in the mortgage, nor does she acknowledge it under privy examination. She is sued with her husband, and neither of them set up these matters in defense, but they were brought to the notice of the Chancellor by the record. There is no doubt of the power of courts of chancery to make binding decrees with regard to the rights of all parties before it, whether sui juris or not, and these decrees must, in all collateral proceedings, be respected. But the practice in chancery should be in aid of that fixed or inflexible policy of the law which protects married women from alienations of their property under compulsion or undue influence of their husbands. That policy might be entirely defeated if the alienation should be accomplished by making married women parties to a suit with their husbands, and transferring their property by decree, on failure of defense. They do not conduct suits in person, or usually employ separate attorneys. Compulsion or undue influence might be quite effectual to prevent that. It is the common practice in England, in dealing with the rights of married women, to examine them personally in court with regard to their wishes, and to see that their assent is freely and intelligently given, before any decree is made, other than such as would be rendered against them in invitum.

This practice is the only safe one for our Chancellors, and wherever upon appeal it appears to have been omitted, and they have not disposed of their rights by the statutory method, this court, in its superintending control, has and should exercise the power of its own motion, of extending the protection which the law intends to afford. There may be peculiar circumstances making exceptional cases, but none such here appears. This court has gone far in the support of the policy of the law, in holding that a married woman can not-estop herself by any matter in pais from claiming her rights in real estate; and it is but a reassertion of the same principle to hold it error in a Chancellor to divest them upon her mere failure to assert them, without a privy examination, or something equivalent. We do not mean to be understood as saying that such decrees are void — the court having jurisdiction of the persons and subject-matter. They arc good until reversed, as all decrees within the jurisdiction are. Nor do we mean to say that courts of chancery may not, by decree, transmit, alter or affect the rights of married women in property not previously conveyed as the statute requires. But in doing so, the Chancellor should take care that her wishes are ascertained, and that she freely and voluntarily assents to the same without compulsion or undue influence. "Where this is not done, and there has been no legal conveyance, the Chancellor should leave her rights as he found them, although she may be, herself, passive in the suit. No decree at all should have been rendered against Kate A. Martin, binding her or her property.

The acknowledgment of Ford is defective. It fails in stating that the mortgage was executed for the “ consideration ” therein set forth. This would render the mortgage void against subsequent purchasers, even with notice, but leaves it good against himself and Conner, who were parties. This made it sufficiently valuable to support a contract for a release, if any were made, or to form the subject of an equitable estoppel; or if there were no estoppel, to support a suit for foreclosure against such of the makers as cou’d act sui juris, and subsequent purchasers failing to set up a defense.

Under this condition of affairs, it appears that the several mortgagors, together with Abbott, the mortgagee, and others to the number, in all, of forty-one, agreed to form a joint stock company, for manufacturing and trading purposes, under the general laws of the state, and thus constituting a corporation or body politic; and to purchase a large portion of the land in question as the basis of their operations. They seem, in good faith, to have endeavored to perfect their organization.. Articles were drawn and signed with the names of the subscribers, and the amount and value of stock taken by each, and the articles were filed with the clerk of the county.

There had been reluctance and hesitation, however, on the part of many of the subscribers, to engage in the enterprise whilst the mortgage of Abbott was hanging over the land, by which it might, at any time be taken, or the company be compelled to sink its capital in redeeming. Abbott, at the time, seems to have favored the enterprise, and authorized Conner to make iR-known that he was willing to take upon his debt §2,500 of paid-up stock in payment, and $6,000 of like stock tabe placed in his hands by Conner as collateral for the balance, and $500 from Conner to be paid in money, and, that being done, to release to the company his lien upon the land. Abbott, it is true, denies some of this, and insists that there were still other conditions; but making‘due allowances for difference in memories, we rest upon the conclusion that this statement embraces all the material points of what he meant that his contemplated associates should understand. With this understanding the difficulty was removed, and the organization proceeded. A board of directors was elected, of which Abbott was one. He was also made treasurer, and served the company as miller, for three months, drawing a salary. Meanwhile, he seems to have become dissatisfied. It is discovered that the articles are not iu accordance with the law. The shares are fixed at §100 each, whilst the act requires they should be §25, and the articles have not been filed with the secretary of state. Abbott declines to execute ihe release, and many of the subscribers become discouraged and refuse to pay their calls. But the land had already been put in by the joint consent and act of all interested; and Ford, in whom the equity of redemption remuiued, had made a conveyance to the company. For the value, paid stock to the amount of $16,000 had been issued, of which Abbott received, individually, $2,500, as agreed, and the other owners, shares in proportion to their interests. ■ Of the shares received by Conner, who seems to have been principal owner, $6,000 were tendered to Abbott for the security of his debt, and some was assigned by Conner to those subscribers who were his creditors. Ford received about $3,000. The sum of $500 to be paid to Abbott was never tendered to him in cash, but it is shown that Conner had an account against him, which, if settled, would have more than covered the amount; and that Conner offered to settle in that way. Abbott testifies that it was a further condition that all the subscribers should pay their calls promptly, but he is not supported in this by the other witnesses who testify as to the agreement — all of whom, save Abbott, concur in saying that the corporation was formed and the purchase from Ford made under the impression derived from Abbott’s acts and declarations, that the title to the land would be yested in the company, free of all incumbrances, in consideration of the conditions to be performed by Conner.

The doctrine of equitable estoppel is clearly marked, and so well defined in its grounds and principles that it is easily applied to any state of facts. It arises from conduct, and is independent of the statute of frauds.

No writing is essential to its operation. It has been easily formulated by text-writers. “ It exists,” says Justice Story, ‘‘ where a man designedly and knowingly produces a false impression upon another, who is thereby drawn into some act or contract injurious to his own rights or interests (Eq. Jur., sec. 884), he will not be allowed to assert his rights afterwards, to the injury of the person so misled.” And^ further, he says (ubi supra): “ If a man, having title to an estate, which is offered for sale, and, knowing his title, stands by and encourages the sale, and does not forbid it, and thereby another person is induced to purchase the estate, under the supposition that the title is good, the former, so standing by and being silent, will be bound by the sale, and neither he nor his privies- will be at liberty to dispute the validity of the purchase.” “It embraces,” says Mr. Bispham (See Principles of Equity, sec. 287), “ all those numerous cases in which a party is prevented from asserting his title, because, by active encouragement, or equally effective silence, he has induced third parties to believe that no such title exists, and they have expended money, or in some way altered their position on the faith of such supposed non-existence.” And further, as if apropos to this case in judgment, he says, “that one who allows his name to appear as a shareholder to induce others to take stock, is estopped from denying that he is such.”

These are but illustrations of an all-pervading principle extending through every branch of equity jurisprudence which .holds it fraudulent in any one to mislead another by acts, words or silence, when good faith and fair dealing require him to speak, to do acts or invest money, and then assert rights with regard to the subject-matter, which would be injurious to the person misled, and leave him in worse position than if he had never acted.

This rule applies clearly to estop Abbott from enforcing his mortgage against so much of the land as is embraced in the deed from Ford to the company.

Tie encouraged the formation of the company; held himself out as a subscriber of $2,500 of the stock; became a director, and the treasurer ; received a sa'iary; induced Ford to convey his equity of redemption to the company, and forego his claim against Conner, to whom he had sold it, and to take stock in payment of his interest; induced Conner to give up the purchase made by him from Ford, and take paid stock for his interest, part of which he has sold; and induced'others to take this paid stock from Conner for valuable consideration, all under the manifest impression which he made upon Conner, and allowed Conner to make upon all interested, that his mortgage on the lands to be purchased- from Conner, and conveyed by Ford, should pass to the company free of bis mortgage. Nor, having allowed all this change in the condition of the parties, and having accepted the $2,500 in stock, can he now repudiate the whole, upon the ground that Conner has failed to pay him the sum of $500 in actual money, but insists on setting off an account.

This would be unjust, not only to the other members of the company, but to Conner himself. If Abbott had meant to insist on this payment as a condition precedent, he should have given notice to that effect before the deed was made from Ford and the paid stock issued. To allow the other matters to go on, until the rights of the members of the company became irrevocably changed, participating himself so actively therein, and receiving remuneration for his services under that order of things, amounted to a waiver of the payment of the $500 as a condition precedent, and estops him from now insisting upon the avoidance of the whole matter, because the money was not afteiwards paid in hand regardless of set-off.

If this arrangement had not been made, Ford and Co'nuer might have sold the.equity of redemption for a valuable consideration in market, before its value might have been devoured by the voracious interest then allowable by law, and running on the debt. It would not have more than doubled the principal, as this decree shows it did. "Whether the corporation was valid, or otherwise, it was at least good as a vo'untary association, in which the members were paiti ers, with interests proportionate to their shares, and could take property in equity, for partnership purposes.

The shares are valuable, and Abbott must in justice to all, be held to his agreement to credit the note with $2,500 as of the date of the transfer or issuance to him of the certificates; and to accept as collateral $6,000 of the stock in lieu of so much of the land as was conveyed to the company ; and to have his demand of $500 against. Conner adjusted, as a further credit on his note, and to recover of Conner to the extent of any amount which he may be due thereon after allowance of all proper set-offs. This lien upon the lands included in the mortgage, and not in the conveyance, remains unaffected. The release does not estop him beyond its equity, which only extended, it seems, to give clear title to the company to the lands conveyed for the purposes of the enterprise. The foreclosure for the whole debt upon the whole lands was erroneous.

There was no error in dismissing the cross-bill of Ford for a specific performance of the agreement, and to compel the members to perfect the articles of association, and the organization of the corporation. This relief is not so closely connected with the subject of the suit, as to make it imperative on the Chancellor to entertain the prayer. Besides, all this kind of relief is generally futile. A forced association would not be apt to be successful, and is rarely ordered — never with any view to its continued operation. Perchance, with the lands relieved of the mortgage the members may all desire to make their organization complete as a corporation, and continue the enterprise. If not, it is better that there should be a separate bill for winding-up its affairs, if it can not be done by voluntary agreement.

Inasmuch as there are some equities in the bill, with regard to the lands not conveyed to the company; and others disclosed by the pleadings and evidence, with regard to the claim of $500 against Conner subject to proper off-sets; and with regard to the interest of $6,000 in the company tendered in court to Abbott as collateral, the bill will not be here dismissed, but will be remanded for further proceedings under such amendments as the parties may be advised to make. The opinion of the court upon the case, as made, is that Abbott should credit the note he holds with the sum of $2,500 as of the date when he received the paid certificates of stock; and with the further sum not to exceed $500 that he may be found to owTe Conner by way of set-off, of the date when the sarnie may be found on taking an account, to have been due; and that, for the balance, he is entitled to a decree against all the makers of the note save Kate A. Martin ; and that for the satisfaction of said decree he is entitled to an order for the foreclosure and sale of the lands embraced in the mortgage. and not conveyed to the company ; and also for the $6,000 interest in the company itself which he is entitled to take as collateral, upon the tender made, if he may choose to accept the same, and that he is entitled to execution for any amount which may still remain unsatisfied. Interest upon his note is under the law to be calculated at 24 per cent, per annum to the date of the money decree, and the decree itself to bear interest-afterwards at the rate of 10 per cent, per annum. The bill as to Kate A. Martin should be dismissed.

The lands conveyed to the company'are its own unincumbered assets, so far as yet appears, and form, with its other assets, the basis of the value of the shares. The court is also of the opinion that the requisites of the statutes have never been complied with, and that the company has never become a corporation, but exists as a legal partnership. -

The appellee must pay the costs of this appeal. The costs of the court below will be in the discretion of the Chancellor.

Reverse the decree and remand the cause for further proceedings, consistent with this opinion.


author: English, C. J.

text:
    Gordon, Ad., vs. Howell, Guardian.
    Administration : Venue in sale of deceased's lands.

    J urisdiction for the sale of a deceased’s lands is only in the probate court of the county in which the personal representative was qualified — not in another county in which the land may be situated.
    APPEAL from Conway Circuit Court.
    Hon. Thomas W. Pound, Circuit Judge.

      Coblentz, for appellant.

      W. N. May, contra.

   English, C. J.

This was an application to the circuit court of Conway county for a certiorari, etc.

The petition was filed on the tenth of September, 1877, by Alfred E. Howell, as guardian of Margaret J. Bennett and Dyton Bennett, jr., minors, and Phcebe Howell (formerly Bennett), and her husband, Alfred E. Howell, and George W. Bennett, an' emancipated minor.

The material facts alleged in the petition are as follows:

That about the seventh of October, 1867, Dyton Bennett died intestate in Perry county, Arkansas, leaving him surviving as his only heirs at law, said Margaret J. Bennett, Dyton Bennett, jr., George ~W. Bennett, and Phcebe Bennett (who had since intermarried with Alfred E. Howell), all of whom were his children, and yet minors except Mrs. Howell; and that Howell had been duly appointed guardian of the minor plaintiffs except George W. Bennett, who appeal’s to have been emancipated.

That Dyton Bennett was a resident of Perry county at the time of his death, and thereafter Anderson Gordon was appointed administrator of his estate by the probate court of said county of Perry, and said administration had remained in said county, and had never been finally closed up.

That deceased left land in Perry county, and a laige amount of personal property, which went into the hands of Gordon as his administrator, and that there were but a few hundred dollars of claims probated against the estate, etc.

That deceased was also the owner of river bottom lands situated in Conway county, which are described of the value of $1,500, and which, on his death, descended to his heirs at law.

That on the twelfth of October, 1869, Anderson Gordon, as such administrator, procured an order of the probate court of Conway county, to sell said lauds at private sale for the alleged purpose of paying debts of the estate. A transcript of the petition and order of sale are exhibited.

That no further proceedings were had in the probate court of Comvay county in relation to the sale, no report of sale of the lands having been- made, but that Gordon was attempting to set up some claim to the lands under and by virtue of the order; and that he had never been finally discharged as such administrator, etc.

Petitioners submitted that the probate court of Conway county had no jurisdiction to make said order of sale, there being no administration of the estate pending in that county.

That there was no law authorizing an order for an administrator to sell real estate at private sale to pay debts. And that the probate court of P.erry county, where the administration upon the estate was granted, and pending, only had jurisdiction to make an order for the sale of said lands to pay debts, etc.

Prayer for certiorari to the clerk of the probate court of Conway county, commanding him to make out and certify to the circuit court a transcript of the record of the proceedings of said probate court in the matter of said order of sale, etc.

Gordon, who had notice of the application, appeared and consented to the issuance of the writ of certiorari, upon which the clerk of the probate court returned a transcript of the petition and order of sale, nothing further relating to the matter appearing of record.

After the return, the case was submitted to the court on demurrer interposed by Goi’don to the petition; the court held that the order of sale was null and void, because the probate court had no jurisdiction of the subject-matter, and rendered judgment quashing 'the order, and Gordon appealed to this court.

Before the adoption of the Code, an application for an order to sell lands to pay debts had to be made by an executor or administrator to the probate court of the county in which the lands were situated Gould’s Digest, sec. 165, Chap. IV.

But by sec. 88 of the Civil Code, “ An action for the distribution of the estate of a deceased person, or for its partition among his heirs, or for the sale of real property, must be brought in the county in which his personal representative was qualified.” See, also, Gantt’s Digest, secs. 168, 4536.

Here the administration was in the probate court of Perry ■county, and the lands ordered sold were in Ccmway county, where there was no administration of the estate of Bennett.

It was not a mere error for the probate court of Conway county to make the order of sale, to be corrected on appeal, as submitted for appellant, but the court had no jurisdiction of the subject-matter, and its order was, therefore, void, as held by the court below.

Affirmed.


author: Enslish, C. J.

text:
    Phillips vs. The State.
    Criminal Pleading : Indictment: Wrong name in formal part of.

    ■When in the style and charging part of an indictment the defendant’s name is properly written, the substitution of a wrong name in the formal part does not vitiate it. The common law plea of misnomer is of no avail now under the Criminal Code procedure.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Palmer, for appellant.
    Henderson, Attorney General, contra.

   Enslish, C. J.

Indictment as follows :

“State oe Arkansas, against Enoch Brown, T. J. Phillips.

In the Phillips Circuit Court, November Term, 1879. Indictment.

“The grand jury of Phillips county, in the name and by the authority of the state of Arkansas, accuse Enoch Brown and T. J. Hugs of the crime of horse-racing, committed as follows, viz.: ■

“The said Enoch Brown and T. J. Phillips, on the twelfth day of August, 1879, in the county aforesaid, then and there unlawfully did run a horse-race on a public highway, to-wit: on the lower Little Rock road, a public road of said county, against the peace,” etc.

A capias was issued upon the indictment against defendant T. J. Phillips, who was arrested, and gave bail for his appearance to answer the charge; and, accordingly, appeared, and filed a demurrer to the indictment, on the fol-lowing grounds:

1. That the indictment is not direct and certain as to ■the parties charged with having committed the offense.'

2. It is otherwise vague and insufficient.

The court overruled the demurrer, and he waived arraignment, and entered the plea of not guilty, upon which he was tried, convicted, fined ten dollars, and appealed.

The indictment was preferred under see. 1 of the act of November 5,1875, making it a penal offense to run a horse-race on a public highway, or on the street of any town or city, etc. Acts of 1875, p. 8.

The objection made to the indictment is, that it charges the offense against Enoch Brown and T. J. Hugs, and not T. J. Phillips.

The style of the indictment is: The State of Arkansas v. Enoch Brown and T. J. Phillips; and in the charging part -of the indictment it is alleged that, “the said Enoch Brown and T. J. Phillips” ran the horse-race. The name T. J. Hugs, as written in the formal commencement of the indictment, is manifestly ,a mere clerical misprision.

In The State v. Hand, 6 Ark., 165, relied on by counsel for appellant, there was a successful common law plea of misnomer, which is of no avail now under the Criminal Code procedure. The State v. Webster et al., 30 Ark., 166; Gantt’s Dig., sec. 1785, p. 405.

Affirmed.


text:
    Walker vs. The State.
    1. Carrying Weapons : Indictment for.

    An indictment, under the act of 1875, for unlawfully carrying a pistol as a weapon, need not negative the exceptions contained in the proviso of the . act.
    2.' Same : Jurisdiction.

    Carrying a pistol as a weapon is a misdemeanor of which justices of the peace and circuit courts have concurrent jurisdiction under the constitution.
    3. Bilí. OE Exceptions: Must be filed and made part of the record.

    If the bill of exceptions copied in the transcript is-not indorsed “ filed ” by the clerk, and there is in the transcript no record entry showing that it was filed and made part of the record, the question whether the evidence warranted the verdict is not legally before this court. •
    4. Venue: Failure to prove, no cause for arrest of judgment.

    That an alleged offense was not committed in the county, is not properly matter in arrest of judgment, but cause for new trial.
    5. Circuit Courts : The act establishing a court at Dardanelle constitutional.

    The act of 1875, creating the Dardanelle district in Tell county, and requiring the circuit court of that district to be held at Dardanelle, is constitutional; and the provision limiting the selection of the grand and petit juries of that district to the territory comprised within the district . is not in conflict with the tenth section of the Declaration of Eights.

      ERROR to Yell Circuit Court.
    Hon. W. JD. JacoVay, Circuit Judge.

      Clark <f- Williams, for plaintiff.

      U. M. Rose, contra.

   English, C. J.

The indictment is as follows:

“ The grand jury of Yell county, in and for the Dardanelle' district, in the name and by the authority of the state of Arkansas, accuse H. W. Walker of. the crime of a misdemeanor, committed as follows, viz.: The said H.^ W.

Walker, on the fifth day of January, A. D. 1878, in the district, county and state aforesaid, unlawfully did carry a certain pistol as a weapon, against the peace,” etc.

The indictment was returned into court on the twenty-seventh of February, 1878. At the August term following, defendant demurred to the indictment, on the ground that it did not negative the exceptions made by the proviso of the act under which it was preferred (Acts of 1875, p. 155), and the court overruled the demurrer.

At the February term, 1879, defendant demurred to the indictment, on the ground that the court had no jurisdiction to try the case, and the demurrer was overruled.

At the August term following, defendant was tried on plea of not guilty, and verdict and judgment against him for a fine of $25.

He moved for a new trial, on the grounds that the verdict was not warranted by the evidence, and contrary to law, and the court overruled the motion.

He also filed a motion in arrest of judgment, on the following grounds:

“ 1. Because the act of the legislature entitled, ‘An act to establish separate courts in the county of Yell,’ approved December 15, 1875, whereby the Dardanelle district of Yell county was constituted, established aud organized, is unconstitutional.

weapons:0

indiefcmerit for.

2-: Jurisdiction. •

3. Bill of Exceptions:

Must be filed and made pare of the record.

“2. Because the alleged offense was not committed in the territory embraced in said Dardauelle district of Yell county, as established by said act.”

There is a bill of exceptions copied in the transcript, purporting to be signed by the judge, but it is not indorsed filed by the clerk, nor is there in the transcript any record entry showing that it was filed and made part of the record.

E We have heretofore decided that an indictment un¿er the act of the sixteenth of February, 1875, for unlaw- • J 7 7 fully carrying á pistol as a weapon, need not negative the exceptions made under the proviso of the act. Wilson v. The State, 33 Ark., 557.

II. Carrying a pistol as a weapon, in violation of the act, is a misdemeanor, and the circuit courts and justices of the peace have concurrent jurisdiction of misdemeanors, under provisions of the constitution, as held in The State v. Devers, 34 Ark., 188.

Both demurrers to the indictment were properly overruled.

III. As the' paper copied in the transcript purporting to be a bill of exceptions, and to contain the testimony introduced at the trial, was not made part of the record, the question whether the evidence warranted the verdict is not legally presented. The plaintiff in error was found guilty by the jury, the court overruled the motion for a new trial, and, in the absence of a legal showing to the contrary, the verdict and judgment are presumed to be risht.

4- Venúe:

Prove“ren° cause for ?n:est °f

ñ ClROU1T

ÍtWDaida? stitutionañ

IV. The second ground of the motion in arrest of judgment, that the offense was not committed in the Dar- *■" • d'anelle district, is not properly matter in arrest; but, if true in fact, cause for a new trial.

A .judgment may be arrested for error appearing of record, and the Code-makers have undertaken to say that “the only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court.” Gantt’s Dig., sec. 1975.

It is alleged in the indictment that the ofíense was committed in the Dardanelle district, ■ and if the state had failed to prove this, or any other material allegation of the indictment, a new trial should have been granted.

V. If the act creating the Dardanelle district, and requiring the circuit court to be held twice a year at Dardanelle, as well as at Danville, the county seat of Yell county, is in violation of any provision of the constitution, and therefore void, the judgment should have been arrested— indeed the whole prosecution was coram non.

In Jones, ex parte, 27 Ark., 349, a similar act, providing for the holding of the circuit court of Sebastian county at Fort Smith, as well as at Greenwood, the county seat, for public convenience, was held to conflict with no provision of the constitution of 1836, or the constitution of 1868. See, also, Patterson v. Temple, ib., 202.

The act of the fifteenth of December, 1875 (Acts of 1875, p. 188), appears to have been carefully drafted, in view of the above decision, and to overrule it, and to hold the act void, on a mere doubt, and thereby avoid all the judicial proceedings which have occurred in the courts held at Dardanelle, under the act, would be a public, calamity.

Section 12, of article VII, of the present constitution, provides that the circuit courts shall hold their terms in each county at such times and places• as are, or may be, prescribed by law.”

Here the places (plural) as well as the times of holding the circuit courts of each county are left open to legislation. It-is probable that the framers of the constitution anticipated that as the state increased in population, large towns and populous communities might spring up remote from county seats, and that public convenience might, in some instances, require the circuit court of a county to be held in more places than one. Whether public convenience demanded the passage of the act providing for holding terms of the circuit court of Yell county at Dardanelle, a commercial town on the Arkansas river, as well as at Danville, the county seat, was a matter of legislative discretion, which it is not our province to supervise.

The act does not, as suggested by counsel for plaintiff' in error,, reduce the area of Yell county, or change its county seat from Danville;-it merely divides the county into two Judicial districts, for the purpose of the act (see Const. Art. XIII, secs. 1, 8, S and 5), and is carefully framed so as to leave the county seat proper, and for general county purposes, at Danville.

VI. It appears of record that the-, grand jury which found the indictment, and the petit jury which tried the case, were selected from the Dardanelle district, in which the offense is alleged to have been committed, in accordance with provisions of the act; and counsel for plaintiff in error submits that any provision of the act limiting the selection of jurors to a district of the county is in conflict with the tenth section of the Declaration of Rights.

The act provides that the county of Yell shall be divided into two judicial districts, to be called the Dardanelle dis-ti'ict and the Danville district, and that all that -portion of the said county known as Galla Rock, Dardanelle and Delaware townships shall compose and be called the Dardanélle district; and all the residue of said county shall compose, and be called the Danville district; and provides for the county court to fix the boundaries of the districts, etc. Sec. 1.

. Section 8 provides that the citizens of Yell county shall only be liable to serve on juries in the districts in which they reside, but all persons may be subpoenaed in any portion of said county to attend either court, etc.

Section 10 of the Declaration of Rights declares, that: “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the county in which the crime shall have been committed,” etc.

By the charter of the city of New Haven, jurors for the city courts were required to be taken from the freemen of the city, and in Colt v. Eves, 12 Conn., 251, the court said : “The objection is that the jurors are not taken from the body of the county, but from a particular section ; and so the trial by jury is not preserved inviolate. To preserve the trial by jury inviolate, can not mean that we must pursue the exact course taken in England to collect jurors. If it does, what time is to be selected; for they have been constantly altering the qualifications, the exemptions, and modes of summoning jurors. Besides, the common law requires merely, that the jury should come from the vicinage,

The statute of 4 and 5 Anne, requires that the jury should be taken from the body of the county.

“ The most general rule,” says Lord Coke, “is that every trial shall be of that town, parish or hamlet, or place known out of the town within the record, within which the matter of fact issuable is alleged, which is most certain and nearest thereunto, the inhabitants whereof may have the better and more certain knowledge of the fact. * * * The strict principle of the common law seems to have been adopted in the city charter, and a great inconvenience to our remote citizens thereby avoided. Were this, however, an innovation upon the common law, it would not follow that the trial by jury was not preserved inviolate. It never could have been intended to tie' up the hands of the legislature so that no regulation of' the trial could be made by jury,” etc.

“Many of the incidents of a common law trial by jury,” says Mr. Cooley, “ are essential elements of the right. The jury must be indifferent between the prisoner and the commonwealth. They must also be summoned from the vicinage where the crime is supposed to have been committed ; and the accused will thus have the benefit, on his trial, of his o.wn good character and standing with his neighbors, if these' he has preserved; and also of such knowledge as the jury may possess of the witnesses who may give evidence against him. He will also be able with more certainty to. «ecure the attendance of his own witnesses.” Cool. Con. Lim., 4 ed., pp. 395-6.

The people of the colonies complained of the crown of England, in the Declaration of Independence, that they had been deprived, in many cases, of the benefits of trial by jury, and transported beyond seas to be tried for pretended offenses.

Our Declaration of Rights secures to the accused a speedy public trial, by an impartial jury of the county in which the crime is committed.

The accused can not be tried out of the county in which the crime is committed, except upon a change of venue, on his own application, nor can jurors be summoned from other counties to try him.

An act of- the legislature of Iowa provided for holding the district courts in the county of Lee at Fort Madison and at the city of Keokuk, and gave the latter court jurisdiction in all .criminal cases in the city-of Keokuk, and in the townships of Jackson, Des Moines and Montrose, in said county of Lee.

Trimble v. The State, 2 Green’s Rep., 404, was an indictment for murder in the ’ district court at Keokuk. The prisoner challenged the array of gjrand and petit jurors, on the ground that they were taken from the district and not from the body of the county of Lee. On error to the supreme court, Williams, C. J.. among other things, said:

“It is contended by defendant’s counsel that the venire for the summoning of the grand and petit jurors, requiring them to be taken from the city of Keokuk and the townships of Jackson, Des Moines and Montrose, and n >t from the body of the whole county of Lee, is defective in law, and is in derogation of the rights of the prisoner.

“The right of- the legislature to divide the county for judicial purposes is denied. The judicial power of the state is invoked to maintain the rights of the accused, as guaranteed by the law of the land. It is alleged that by confining the selection of grand and petit jurors, the accused has been curtailed in his right to have his case committed to juries made up of the qualified voters chosen from the body of the county of Lee, as the venire required that they be taken from the townships of Jackson, Des Moines and Montrose, in the county of Lee.”

After deciding that the division of the county into judi•cial districts, for public convenience, was not prohibited by the constitution, the opinion proceeds:

“ The townships of Jackson, Des Moines and Montrose are within the bounty of Lee, and the jurors having been selected from them, were taken, as required by law, from the body of that county,, and not of another. The body of the county is to be considered as expressing the-county limit, ■so as to prevent the selection of jurors residing without the county. We do not understand that the law requires jurors to be taken from any and all portions of the county. * * * * * The three townships which are set apart for judicial purposes in establishing the court at the city of Keokuk, contain a population amply sufficient for the procurement of a proper number of good and lawful men to constitute juries for the criminal and civil causes. If by reason of great excitement, or otherwise, prejudice •should exist against- a party, so as to prevent a fair and impartial trial, the statute has provided a remedy allowing .a change of venue.”

If the legislature may divide a county into judicial districts for- public convenience, it would, to some extent, defeat the purpose and policy of the act to require jurors to he taken from the' whole county to serve in thé circuit -court held in each district.

It does not follow, as submitted by counsel for plaintiff in error, that if so much of the act be sustained as requires jurors to be taken from within the limits of the judicial district, a valid act might be passed requiring the sheriff to summon jurors, in a criminal case, from some particular township, section, or subdivision of a section.

The power of the legislature to excuse citizens from jury service 'who reside without the limits of a judicial district established for public convenience, may not be entirely free from doubt, but, by a long-settled rule, the courts must ■ resolve mere doubts in favor of the validity of legislative acts.

Affirmed.


author: Harrison, J.

text:
    Toliver vs. The State.
    1. Criminal Pleading : Burglary and Larceny: Indictment: Cumulative punishment.

    Burglary and grand larceny, where the one is connected with the other, may be joined in one indictment; and, upon conviction for both, cumulative punishments may be assessed — the second commencing at the termination of the first.
    2. Bill oe Exceptions: Must he made part of record.

    Unless a bill .of exceptions appears to have been filed and made part of the record, it can not be noticed.
    APPEAL from Yell Circuit Court.
    Pión. ~W. D. Jacoway, Circuit Judge.
    Harrison, for appellant.
    Henderson, Attorney G-eneral, contra.

   Harrison, J.

The appellant, Henry Toliver, was indicted for burglary and also grand larceny, and both offenses were charged in the same indictment.

He was convicted of both, and his punishment was assessed by the jury for the burglary, at three, and for the larceny, at two years’ imprisonment in the penitentiary.

Pie moved in arrest of judgment because the two offenses were charged in the same indictment, and the verdict was for cumulative periods of imprisonment. The court over■ruled the motion, and he was sentenced in accordance with the verdict, the latter period of imprisonment to commence on the termination of the former.

Burglary and grand larceny, if the one was connected with the other, may be charged in one indictment. Gantt’s Dig., secs. 1349, 1351; Dodd v. The State, 33 Ark.

The statute expressly provides for cumulative periods of imprisonment.

Section 1990 Gantt’s Digest, is as follows:

“If the defendant be convicted of two or more offenses, the punishment of each of which is confinement, the judgment shall be so rendered that the punishment in one case shall commence after the termination of it in the other.” Dodd v. The State, supra; Bish. Crim. Law, sec. 953.

~We find in the transcript what purports to be a bill of exceptions in the case, but which does not appear to have been filed or in any way made part of the record. "We can not, therefore, notice it.

The judgment is affirmed.


text:
    The State vs. Vandimark.
    1. False Pretense: What it is.

    A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it to be false, as is adapted to induce the person to whom it is made, to part with something of value.
    2. Same : Indictment where several pretenses.

    If there be several false pretenses, only one of them need be set out in the indictment; or, if several be set out, and one be proven, the indictment is sustained.

      ERROR to Pulaski Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Henderson, Attorney General, for plaintiff.
   Harrison, J.

Jack Yaudimark was indicted with Peter Herman’in the Pulaski circuit court, for obtaining money under false pretenses, and being separately tried, was convicted and Ms punishment assessed by the jury at three and one-half years’ imprisonment in the penitentiary. He filed a motion in arrest of judgment, upon the ground that the facts stated in the indictment did not constitute a public offense, which motion the court sustained, and held him to answer a new indictment.

The state has brought the case here by writ of error.

■The indictment is ’as follows:

“ State oe Arkansas, Peter Herman and Jack Yandimark.

[Pulaskl Gotmty Gireait Gourt’

The grand j ury of Pulaski county, in the name and by the authority of the state of Arkansas, accuse Jack Yandimark and Peter Herman of the crime of obtaining money by means of false and fraudulent pretenses with the intent and design to defraud Calvin Jamison, as follows, to wit: On the sixth day of December, A. D. 1879, the said Jack Yandimark aided and abetted by -one Peter Herman, in the county and state aforesaid, did designedly, feloniously and by means of false and fraudulent pretenses with the felonious intent and design, then and there to cheat and defraud Mm the said Calvin Jamison, obtain from him the said Calvin Jamison the following money, the property of him the said Calvin Jamison, to-wit: One twenty dollar bill of United States currency, commonly called greenbacks, worth twenty dollars; one twenty dollar bank note, circulating as currency, commonly called bank note, worth twenty dollars; one ten dollar bill of United States currency, commonly called greenbacks, worth ten dollars, and two ten dollar bank notes circulating as currency, commonly called bank notes and worth each ten dollars, amounting in all to the number and value of seventy dollars, then and there furnished and delivered by him the said Calvin Jamison to the said Jack Vandimark at the instance and upon the false and fraudulent pretenses of them the said Jack Vandimark and Peter Herman in manner and form, and under the circumstances as follows, to-wit: That the said Peter Herman feloniously and deceitfully contriving, aiding and abetting to cheat and defraud the said Calvin Jamison, led him the said Calvin Jamison to the said Jack Vandimark, and then and there the said Peter Herman pretended to lend to the said Jack Vandimark a certain sum of money to this grand jury unknown, with the fraudulent intent to cause the said Calvin Jami-son to lend and deliver to the said Jack Vandimark money; that then and there the said Jack Vandimark represented himself to be a stock owner from Kentucky, and then and there pretended.that he had stock at the union depot in the county and state aforesaid, and was then on his way to Memphis to dispose of them the said stock; that he the said Jack Vandimark, together with his confederate, the said Peter Herman, would take him the said Calvin Jamison with them to Memphis, and would pay him one dollar per day ; and the said Jack Vandimark further pretended that he had money -in the bank in the city of Little Rock, county and state aforesaid, and that he was going-immediately from the said depot to the said bank to draw money and return to the said Galvin Jamison, when in truth and in fact he the said Jack Yandimark was not a. stock owner from Kentucky or any other state, neither in-truth and in fact did he the said Jack Yandimark have any stock at said union depot, nor'was he on his way to said Memphis to dispose of any stock Avhatever, nor in truth, and in fact did he the said Jack Yandimark have any money deposited in any bank in the city aforesaid, all of which he then and there well knew. And the grand jury aforesaid further accuse the said Peter Herman on the sixth day of' December, 1879, in the couuty and state aforesaid, of feloniously, fraudulently and knowingly pretending and representing .to him the said Calvin Jamison that he the said Yandimark was a fine gentleman, and a trusty, worthy and reliable man; that he the said Yandimark' was a stock owner from Kentucky and had stock at the said union depot, and that he the said Yandimark was on his way to-Memphis to dispose of said stock; and that he the said Yandimark had money in the bank in the city of Little-Rock, county and state aforesaid; and that he the said Calvin Jamison would be perfectly safe in lending him the saidYandimark money, when in truth and in fact he the-said Yandimark was not a fine gentleman and a trustworthy, reliable man, but a fakir and a cheat; and in truth and in fact he the said Yandimark was not a stock owner from Kentucky nor any other state, neither did he have any money-in the bank aforesaid, nor any stock at said union depot, nor would he the said Calvin Jamison be safe in lending him the said Yandimark any money; all of which he the-said Peter Herman then and there well knew; but the said false and fraudulent statements were made by him the said Peter Herman to him the said -Calvin Jamison to give him the said Jack Yandimark a better opportunity to carry out. liis felonious design of cheating and defrauding him the said Calvin Jamison by inducing him to part with his money, and by color and by means of the false pretenses and representations aforesaid of them the said Jack Vandimark and Peter Herman, he the said Calvin Jamison was induced to part with his said money, amounting to seventy dollars, which he the said Jack Vandimark then and there received and appropriated to his own use. And' so the grand jury aforesaid accuse the said'Jack Vandimark and Peter Herman of the crime of obtaining then and there from the said Calvin Jamison the said one twenty dollar bill of United States currency, commonly called greenbacks, worth twenty dollars; one twenty dollar bank note circulating as currency, worth twenty dollars ;' one ten dollar bill of United States currency, commonly called greenbacks, worth ten dollars, and two ten dollar bank notes circulating as currency, worth each, ten dollars, amounting in all to the sum of seventy dollars, the property of him the said Calvin Jamison, by .false and fraudulent pretenses, as above set out, designedly, unlawfully and feloniously, with intent and design then and there to cheat and defraud the said Calvin Jamison to the great damage and deception of him the said Calvin Jamison against the form of the statute'in such cases made and provided, and against the peace and dignity of the state of Arkansas.”

1. False Pretense:

What it is.

The indictment though very informally and loosely drawn, contains an averment of every fact necessary to constitute the offense charged as to the defendant in error. Though it is not stated that Vandimark borrowed, or promised to return the money, it is alleged that he obtained it by means of the false pretenses. A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it not to he true, as is adapted to induce the person to whom it is made to part with something of value. 2 Bish. Crim. Law, sec. 415.

eSierepre tenses'.

In the case of Young and others v. The King, 3 Term R., 98, the first reported case under the statute of 30 Geo. 2, C., 24, four men came-to the prosecutor and falsely pretended to him that one of them, Young, had made a bet of five hundred guineas that "William Lewis would run, on the next day, on the high road from Gloucestershire to Bristol, ten miles in one hour, and that the others were interested in the bet; and, by false pretenses, obtained from him twenty guineas of the five hundred. The indictment did not state that it was proposed that the prosecutor should become interested with them in' the bet, or the particular consideration upon which he advanced the money. Thepersons were convicted and sentenced to be transported for seven years. The King’s Bench, upon error, held that they were properly convicted.

. A promise connected with an existing fact does not take the case out of the statute. “It is,” says Bishop, “as to the ciiminal consequences, a mere nullity. If there is sufficient pretense of a false existing, or past fact,, the consequence attached to it by the law is not overthrown by the promise; if there is not a sufficient pretense of this sort, the -promise does not supply the defect.” 2 Bish. Crim. Law, sec. 424.

Though it is not directly charged that the false pretenses by Herman were made in the presence of Vandimark and concurred in by him, the indictment, which charges the false pretenses by Vandimark himself, that he was a stock owner, and had stock' at the union depot and was on his way to dispose of it, and that he had money in bank in Little Rock, is sufficient; for if there be several false pretenses, only one of them need be set out, or if several be set out, if any one is proven, the indictment is sustained. 2 Bish. Crim. Proced., secs. 136, 137.

The judgment is reversed and the cause remanded to the court below, with instructions to render judgment in accordance with the verdict.


text:
    Packard et al. vs. Taylor, Cleveland & Co.
    1. Parties: Joint owners, of a vessel: Several liability.

    By the Code, any or all joint owners of a vessel may he sued on any con-, tract made in respect to it.
    2. Common Carriers : Their liability.

    The carrier’s obligation to keep and carry goods safely, is founded on the custom of the realm, at common law, and is independent of contract; being imposed by law for the protection of the owner, and founded upon public policy and commercial necessity; and in the absence of any contract reasonably restricting or modifying the liability implied by law, the carrier is an insurer — liable, not only for negligence, but even for inevitable accident not occasioned by the act of God. And if an unseaworthy vessel is sunk by the act of God — a violent wind — that would not have sunk a seaworthy vessel, the owners are liable to the shippers for the loss they sustain.
    3. Same: Gonnecting carriers’ liability.

    Where goods are shipped to be transferred by successive carriers, the carrier in whose possession they are when destroyed or injured, is liable as such, to the owner or consignee for the loss.'
    APPEAL from Jefferson Circuit Court.
    Hon. J. A, Williams, Circuit Judge.

      M. L. Jones, for appellants.

      McCain, contra.

   Eakin, J.

Taylor, Cleveland & Co., merchants at Pine Bluff, brought this action at law against appellants, Packard & Hammett, owners of the steamboat'“Lizzie,” to charge them for damages to goods which had been delivered to said steamer at Little Bock, to be transported to Pine Bluff, and which had been injured by the sinking of the steamer in the Arkansas river, before her departure from the wharf. Bills of particulars, describing the goods, were filed, and the damage sustained, sufficiently proved.

Parties:

f°sofaTesI ral- íiabím ty'

The defenses set up by the answer may be reduced to three:

1. That there was a non-joinder of proper parties fendant, inasmuch asa third party not sued was a third • owner of the vessel. This may be disposed of, at once, in passing. -

Although independently of any statute, it was necessary to sue all the joint owners of a vessel on any contract made respecting it, and a non-joinder was matter in abatement^ yet this has been positively altered by the Code. See Gantt's Digest, secs. 4479 and 4480. Any or all may now be sued.

2. That defendants made no contract with plaintiffs for the carriage of the goods, but received them from the St. Louis and Iron Mountain Bailroad company, to be carried in its behalf, and to which, alone, they are responsible.

3. That defendants were guilty of no negligence, nor misconduct, but that the accident happened solely from the act of God, and the perils of the river.

Hpon trial by a jury, there was a verdict for $750 damages, and judgment in plaintiffs favor accordingly. There was a motion for a new trial, which was overruled. A bil^ of exceptions was taken, and an appeal granted.

It appears from the record, that the plaintiffs below had purchased in Boston and New Yoik, bills of goods which had been consigned to said railroad at St. Louis. They were received there, by the railroad company, for transportation to the owners at Pine Bluff, a point upon the Arkansas river below Little - Rock, at which latter place the railroad crosses the river. No bill of lading was given. The railroad company had a contract with the steamer “ Lizzie,” through her owners, who were common carriers by water, to take down all goods consigned to Pine Bluff, dividing the freight in a certain proportion. < Upon their arrival at Little Rock the goods were placed in the charge of a transfer company which delivered them to the clerk of the “ Lizzie,” on the wharf. The vessel, on her last trip, had'been injured by a snag. She was brought to the wharf for repairs. A dock had been run under her, and pumped out so far as to elevate the injured portion of the hull, and the carpenter had cut two holes in her bottom to be repaired with new timber, one about four feet by twelve inches, and the other about three feet by ten inches. Whilst the boat was thus on the dock the goods were taken aboard. The weather was bad. It had been raining, and there was some wind. The boat was lying with the forward portion upon the dock, and the stern held to the bank by a slack chain. Whilst in that position, by some accident the dock slipped out, and the vessel sank to the bottom, damaging the goods. The immediate cause of the accident is not certainly known, but the proof tends to show that about that time a small whirl of wind passed across the river, di'ove her stern against the bank, and broke the chain in the rebound, thus shaking her from the dock.

There was proof that it was necessary to put the goods on board to protect them from rain, that the weight of them was calculated to steady the dock, and that it was the practice to load freight, sometimes, on vessels whilst upon dock undergoing repairs. These are the material facts affecting this case. The amount of the damage was properly proved by direct testimony.

The instructions given on plaintiff’s motion, against defendant’s objection, are the following:

1. Where goods are shipped to be transported by successive carriers, the carrier in whose possession they are when destroyed, or injured, is liable as such to the owner or, consignee for the loss; and further, in effect, that—

8.The burden of proof is on the carrier to exempt himself from damages.

4. Defendants are bound to show that the injury resulted from the act of God.

6. If the goods were damaged by any defect in the ves sel which rendered her unseaworthy, the defendants are liable.

7. The jury may find interest at six per cent, per annum, on damages. ”

8. Defendants may be sued as part owners, although there wTere other part owners and partners.

9. Any act or omission of the carrier, or anything which may befall his boat, and occasion damage to property, is regarded by the law as negligence,' unless it is the act of God, or the public enemies.

10. If the steamboat received goods for carriage at Little Eock, niarked to plaintiffs, and belonging to them the law would imply a contract to carry and deliver them.

To which the court, of its own motion, and likewise-against defendant’s objection, added this: “Common carriers are not excused from liability by accidents caused by the action of the elements (usually denominated the acts of God), which would not affect a pei’fectly seaworthy vessel.”

• For defendants, the court instructed:

1. That if the accident to the “Lizzie” was the result of any such act of God as lightning, storms, tempests, whirlwinds, etb., and was the immediate cause of the damage to the goods, the defendants are not liable.

5-6. They are not liable if the goods were damaged from no' negligence on their part, but by reason of an unforeseen and unavoidable accident, occasioned by a sudden gust of windprovided, the officers used the usual and ordinary care and prudence in regard thereto.

9. Plaintiffs must prove that defendants are common carriers, and received the goods as such, under contract,' express or implied, with plaintiffs; and that they were damaged by the negligence or carelessness of defendants as such carriers.

10. - If the j ury found that the railroad received the goods at St. Louis to be transported to Pine Bluff, and it was understood that the goods were to be carried from Little Rock to Pine Bluff on the steambeat “ Lizzie-” under the contract made with the consignee or shipper; then, the said steamer “ Lizzie ” became a part of the continuous line of carriers from St. Louis.

And the court refused to instruct for defendants:

2. That if the boat was on the dock for repairs, securely and sufficiently fastened- for the purpose, and it was customary to place goods or freight on steamboats whilst undergoing repairs, and upon docks, for ballast, and that the boat, whilst in this condition and so ballasted, was torn from her fastenings and made to take water and sink, by a sudden and violent gust of wind, whereby damage ensued to the goods, they will find for defendants. .

3. If they believe that there was another joint owner of the boat, so registered and held out to' the world, the plaintiffs, having failed to make him a party, could not recover in this action, and to find for defendants.

2. Common

^ Their na-

4. If they believed that there was a contract for carrying freights from St. Louis to Pine Bluff, between the railroad on one part, and the boat-owners on the other, by which the former was to give through bills of lading, and the steamer was to carry goods under that contract, and these goods were so being carried, the defendants are not liable in°this action.

It will be seen that a portion of the objections to the instructions given for plaintiffs, and some of the instructions asked by defendants and refused by the court, are based upon this assumed principle, that if the defendants were acting only under a contract with the railroad to carry, for the corporation, freights which it had undertaken to deliver at Pine Bluff', they could only be held to answer at the suit of the railroad, and not of the plaintiffs

But it must not be lost sight of, that defendants were? themselves, common carriers between Little Bock’ and Pine Bluff, carrying for the railroad only as a part of their general business. The contract had only the effect of a contract between common carriers, for increase of custom to the steamboat line, securing it, in competition with other carriers upon the same route. It did not relieve the steamboat owners from any of the general responsibilities of common caniers with regard to goods so transferred to them for carriage 1 y the railroad.. They were not the pri. vate agents of the railroad company, but were carrying on a general business, lor the benefit of any one who might' employ them. They are bound by the same obligations and to the same persons which bind successive common carriers, receiving goods from each other and transmitting them along the route to the point of ultimate destination. There were no bills of lading in this ease, restricting or defining the several liabilities of the railroad and the steamer “Lizzie.” The general law must govern.

3. -: ins oarner's liabuity.

The carrier’s obligation to keep and carry safely is founded on the custom of the realm, at common law ; and is independent of contract, being imposed by law for the protection of the owner, and founded upon public policy and commercial necessity. (Chitty on Carriers, 34, 35.) There may be a special contract, also, not indeed superseding that implied by law, which still underlies the other, but restricting or modifying it in some • particulars, in a manner which the courts may not consider unreasonable, or subversive of the general policy. (lb.) But in the absence of any such contract, the carrier is an insurer — liable not only for negligence, but even for inevitable accident, not occasioned by act of God. In this case there is no question of public enemies.

We ave cited to the cases of Bank of Kentucky v. Adams Express Co., 3 Otto, 174, and Newell v. Smith, 49 Vt., 255, as M authority to sustain the position that the contract of affreightment being with the raih’oad, the defendants can not be sued upon it. The first was a suit against an express company to recover the value of a package of money which defendant had received, to ' be delivered.to plaintiff, at Louisville. The. express company had employed the services of a railroad to transport its packages, which were accompanied by and remained under the control of its messenger. An accident happened to the road, by which the car was burned and the package destroyed. The defense set up was, that the express company having contracted to be held only to the liability of a common bailee, for hire, in case of loss by fire, was not answerable for the negligence of the employees of the railroad, over which it had no control; and so it was held by the circuit court. This was reversed, on appeal to the supreme court of the United States, the latter tribunal holding that the'railroad company was the agent of the express company, and that the latter must answer for the negligence of the former. The question of the liability of the railroad company to the consignees of the package would be analogous to this, but it did not arise. The court, however, arguendo, took this liability for granted, upon the authority of The New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 Howard, 344, and say: “Granting that the plaintiffs can sue the railroad company for the loss of the packages through its fault, their right comes through their contract between it and defendants. They must claim through that. Had the packages been delivered to the charge of the railroad company, without any stipulation for exemption from the ordinary liability of carriers, it would have been an insurer both to the express company and to the plaintiffs.” 3 Otto, p. 184.

In the case here before us, the goods were taken by the St. Louis, Iron Mountain and Southern Railway company, without any express contract, to be carried to Pine Bluff',- and were delivered to the defendants at Little Rock, as common carriers, to be transported to their destination, without any stipulation for exemption from the ordinary liability of carriers. According, to the principle above announced, the owners of the “ Lizzie ” would thus become insurers, both to the St. Louis, Iron Mountain and Southern Railway company, and to the plaintiff's. It is true, however, that in 3 Otto the case is stated hypothetically.

The case in 49 Vermont, supra, goes only to fix the liabilities of a carrier who expressly contracts to deliver goods at a destination beyond the terminus of his own road, for the negligence of any connecting road in the line of transportation.

This court has held that this liability for loss by a connecting carrier may be repelled by express stipulation. (Taylor, Cleveland & Co. v. Little Rock, M. R. and T. Railroad Co., 32 Ark., 393.) But neither the latter case nor the case from Vermont conflicts with the principle announced in 6 Howard, supra, that the consignee of goods may maintain an action against the carrier in whose hands the loss happens, through the rights of the carrier originally bound.

Although the English courts have adopted the principle that a carrier who receives goods to be conveyed to a point beyond the terminus of his own route, is liable for losses whilst in the hands of connecting carriers, and have even held that in such cases the subsequent carrier uan not be held liable by the owner, yet the American courts have taken a different view. See the question discussed and authorities cited in Redfield on Railways, sec. 162 and notes.

I have not met with any American case absolving the connecting carrier from liability to the consignee, although the contract may have been made with a preceding one on the route.

' There are some cases which hold the connecting carriers entitled to all exemptions and qualifications which the original carrier had secured for itself by special contract, thus limiting its common law liability. Such was the case of Manhattan Oil Co. v. Camden & Amboy R. R., 52 Barbour, 72, but they go no further. Even in England the principle seems confined to cases where the first company has expressly contracted to deliver at the point of destination; and some learned judges reject it altogether. (Redfield, supra). 'Justice Redfield, in the case of Farmers’ and Me chanics’ Bank v. Champlain Trans. Co., 23 Vt., 209, considered that this was pushing the law of carriers to an absurd extent; and considered the better and more just and rational rule to be, that in the absence of a special contract, each carrier is only liable for the extent of his own route, and the safe storage and delivery to the next carrier. And to the same purport are a vast concourse of American decisions.

The court did not err in its instructions, or refusals, on this point.

All the other instructions are either sustained, or rendered harmless to defendants, by the plain and palpable showing, from the'evidence, that they received the goods without having at hand any seaworthy vessel, or place to store the goods out of the weather. A steamer with two great holes in the hull, which could not live five minutes on the calmest water, is, although supported on a dock, held under her by a chain, not such a vessel as it was the duty of defendants to furnish. There is no proof of any act of God which would have affected any vessel which would have floated at all. The defendants, in putting goods upon her, took all the risks, which were not lessened by any example of other carriers in other ports. They took risks also. It might have held the boat more steadily on the dock to load the freight upon her, but the owners of the goods were not interested in repairing the boat, and it was a perversion of them to use them for such purposes. It caused their loss. The act of God which shook the dock from under the vessel was not the immediate cause of the damages. It was the holes in the vessel, admitting torrents of water as 'soon as it touched the surface. The defendants should not have received the goods, or'should have stored or protected them until the steamer could be made seaworthy. In carrying them on board a vessel in that condition, they made their safety depend on the strength of a chain, or the want of agitation in the air. They were not bound to receive the goods until they were ready to engage in their transit, and ought not to have done so without means of keeping them safely. It is the first duty of a carrier by water to provide and have ready, boats suitable for the purpose.

Under no proper instructions could the jury have found a verdict, upon the evidence in this case, for defendants.

It is useless, therefore, to inquire ¡-.critically concerning the instructions. Suffice it to say they were, on the whole, favorable to defendants; apd that, in any view, the verdict was not only right, but so inevitable that any other would be set aside.

There are other points made on the motion for a new trial, which we have duly considered, but deem, it unnecessary to discuss, as they would not affect the result.

Affirm.


text:
    Seifrath vs. The State.
    1. Bill op Exceptions : Must show it contains all the evidence.

    Unless the bill of exceptions negatives tlie idea that other testimony was adduced in the court below, this court will presume in favor of the judgment below, that there was sufficient proof to warrant it.
    2. Motion eor New Trial: Must not contain facts.

    Mere statements in a motion for a new trial that certain rulings were made by the court and excepted to by a party, amount to nothing, unless it is shown by the bill of exceptions that such rulings were made and excepted to. It is the office of a motion for a new trial to show the grounds on which the new trial is asked, but such grounds are not to be taken as true unless shown to be so by.the bill of exceptions.

      ERROR to Franklin Circuit Court.
    Hon. W. E. Jacoway, Circuit Judge.

      Boles, Feilder ‡ Feilder, for plaintiff.

      Henderson, Attorney General, contra.

   English, C. J.

Frederick Seifratb was charged, tried and convicted before a justice of the peace of Eranklin county for caitrying a pistol as a weapon. He appealed to the circuit court, where he was again tried by a jury, on plea of not guilty, convicted and fined $25.

He filed a motion for a new trial, which was overruled, and he took a bill of exceptions, and brought error.

It was assigned as ground for a new trial that the verdict was contrary to evidence. Th,e bill of exceptions sets out the testimony of a number of witnesses examined at the trial, but does not state in so many words, or words of equivalent import, that this was all the-evidence introduced, or use any expression to exclude the inference that other evidence might have been introduced.

Unless the bill of exceptions negatives the idea that other testimony was adduced in' the court below, this court will presume in favor of the judgment below, that there was sufficient proof to warrant it. Jordan v. Adams, 7 Ark., 348; Everett v. Clements, 9 ib., 478; Mitchell v. Byrd, 7 ib., 408; Moss v. The State, 17 ib., 331.

It is stated in the motion for a new trial that the court erred in giving certain instructions, and in refusing others, the substance of which is stated in the motion. But the bill of exceptions does not show that any instructions were asked by either party, or that any were given or refused, or set out any.

It is also stated in the motion for a new trial that the court limited the counsel of defendant to five minutes for argument of the case before the jury, and that the counsel declined to attempt to make an argument in so short a time; but the bill of exceptions fails to show that the time for argument was at all limited by the court.

Mere statements in a motion for a new trial that certain rulings were made by the court, and excepted to by a party, amount to nothing unless it is shown by the bill of exceptions that such rulings were made, and excepted to. It is the office of a motion for a new trial to state the grounds on which the new trial is asked, but such grounds are not to be taken as true, unless shown to bé so 'by the bill of exceptions.

Affirmed.