author: Dicebíson, Judge,

text:
    Samuel Waters against John H. Leech.
    Error to Pulaski Circuit Court.

    The power conferred, previous to the session of the General Assembly of 1840, upon the Corporation of Little Rock, could only be exercised in furtherance of the legitimate object of its charter, viz: the preservation of good order in the city.
    This power, so limited, ought to be reasonably exercised.
    The Town Council might impose a reasonable line for “ misdemeanors, disorders, neglects, and nuisances committed within the limits of the city but theatrical performances cannot be embraced under either of these heads when they are legalized by the payment of the tax of twenty dollars per month imposed by the city corporation.
    Therefore, so much of the tenth section of chapter 5, of the revised ordinances of the city of Little Rock, adopted February 22d, 1839, as declares that the City Constable “ shall be entitled to receive of the owners or exhibitors of every theatre, &e., for each night of his attendance the sum of two dollars,” is repugnant to the charter of the corporation of the city of Little Rock.
    This was a suit brought by John H. Leech, City Constable of Little Rock, against Sam Waters, before Hawkins, Justice, where he obtained judgment for the sum of ‡25 00, upon an account rendered January 21st, 1840, for official seryices, (as directed by an ordinance,) in attendance at theatre ten nights, at ‡2 50 per night, from which judgment the plaintiff in error appealed to the Pulaski Circuit Court.
    Upon the trial in the Circuit Court it was admitted that the defendant in error attended at the theatre in the City of Little Rock, of which the plaintiff in error was the owner or exhibitor, ten nights in the month of January, A. D. 1840, as charged in his bill filed before the Justice, and that the defendant in error was City Constable of Little Rock during that time. It was also admitted that the plaintiff in error was, during the whole of such time regularly licensed to keep and exhibit such theatre, in accordance with the ordinance of the city then in force, and that the defendant in error did not attend the theatre at the request of the plaintiff in error.
    The ordinances of the city of Little Rock, above referred to, which were relied upon, and adduced upon the trial before the Circuit Court, sitting as a Jury, and made a part of the record, in the bill of exceptions, are as follows: Section 9, of chapter 22, under the head of Revenue, compiled and promulgated in March, A. D. 1839, and in force on the 21st of January, A. D. 1840, provides that there shall be levied, as city tax, the sum of twenty dollars, for each month, on every circus, show, menagerie, theatre, or exhibition kept, exhibited, or opened in the city;” and section 10, of chapter, under the head of Constable, adopted February 22,1839, and in force on the 21st January 1840, provides that “it shall be his (the Constable of the city) duty to attend every theatre, menagerie, circus, exhibition and show kept, opened or exhibited in this city, on every night of such exhibition or performance, and to enforce order and suppress riot and tumult, for which services he shall be entitled to receive of the owners or exhibitors, for each night of attendance, the sum of two dollars and fifty cents.”
    On the trial in the Circuit Court the judgment of the Justice was affirmed.
    Ashley & Watkins, for plaintiff in error:
    It is not for the amount in controversy in this particular case, but against the monstrous injustice of the principle involved, that the plaintiff in error has sued out and prosecutes this writ. A principle by the practical operation of which the plaintiff in error is virtually taxed by the corporation of Little Rock, in addition to the State and county revenue, which he pays in common with other citizens, upwards of one thousand dollars per annum, that is to say, at the rate of two hundred and fifty dollars a year for a city license, and seven hundred and eighty-two dollars and fifty cents, in the course of a year, by way of fees to the City Constable, and which, if once admitted, might be carried out and increased to an indefinite extent, to the entire prohibition of not only the theatre, of which the plaintiff in error is the owner or exhibitor, but of every menagerie, circus, exhibition and show, though sanctioned by law and not of an immoral nature or tendency.
    It behooves us then to inquire if there be any thing in the act or acts incorporating the city of Little Rock, which invests the Mayor and Aldermen with these and other extraordinary powers, which they have assumed, in regard to taxation, and if so, whether the Constitution of the State, confers upon the General Assembly the right to make any such delegation of power to any corporation whatever.
    I take it to be the broad scope and meaning of the Constitution, on the important subject of revenue, that all revenue shall be raised by ad valorem taxation, and no one species of property, subject to taxation, to be taxed higher than any other species of property of equal value. The only exception to this is that the General Assembly have power to tax merchants, pedlers, and privileges, in such manner as may be from time to time prescribed by law. The obvious reason for such an exception is, that merchants having the ability to be, and hawkers and pedlers, being in their nature transitory, might effectually evade taxation unless some other mode of taxation, as by way of license, be resorted to; and privileges being supposed to mean some other incorporeal right incapable of ad valorem estimation.
    It is immaterial whether the term revenue, as used in the Constitution, be construed as applicable to the State revenue. This court have decided, in the case of Gibson vs. the county of Pulaski,fhat to keep a stud horse is not a privilege, within the meaning of the Constitution, upon which an unequal and onerous tax could be imposed, or, in other words, that every citizen has the right to follow any pursuit or occupation for a livelihood, so long as it is not prohibited by law, without being taxed to prohibition.
    It may be that the several counties, cities, or towns, by virtue of their incorporation, may have the right to raise any amount of revenue commensurate with their wants, but in any event, that revenue must be raised by an ad valorem tax, upon every species of property from which a tax may be collected, (with the addition in the case of counties of a poll tax,) as the most fair and equitable mode of taxation that could be desired, in accordance with the doctrine of equality of rights and equality of burthens which pervades our Constitution.
    By applying these principles to the case now before the court, it will be perceived that the charge made on the defendant of ‡'2 50 per night, for alleged services, rendered to the plaintiff in error, nolens volens, is unauthorized by law, and unfounded in justice. It is useless to disguise such a charge under the specious name of fees: the plaintiff in error holds it to be a tax of the most enormous kind.

      Bui: the defendant in error contends that the act incorporating the city of Little Rock does not confer upon the Mayor and Aldermen the least shadow of right to make any ordinances or by-laws whatever, which could authorize the defendant, as City Constable, to exact of the plaintiff in error the sum of $2 50 per night. We take it to be the settled rule of construction of charters of corporations, viewed, as they are, with jealousy by our Constitution, that no corporate powers can be exercised, or in any other manner, save as they are conferred by the act of incorporation, or arise by necessary implication. The People vs. the Manhattan Co., 9 Wend. 351; the People vs. Utica Insurance Co., 15 J. R. 382.
    The act approved February 21st, 1838, expressly repealing all the corporate powers created by the original act of November 2nd, 1835, and being su bstantially an entire new act of incorporation, does not confer upon the Mayor and Aldermen any such right. Sec. 4, of the same act, gives to them the power to “ make any by-laws, ordinances, &e., as to them may appear necessary for the good order and government of the city, and the inhabitants thereof, and to make, limit, and impose reasonable fines and amercements for all misdemeanors, disorders, &c., for which the laws of the State have not provided an ample remedy and penalty.” This obviously refers to the criminal jurisdiction (which by the way it does not confer) over petty offences. It cannot be contended that, for the sake of preserving order, the corporation are authorized by it to send an officer specially to stand guard over a man’s premises, and charge him for being ready to render him a service, which, as an officer of peace, it is his sworn., duty to do under all circumstancess The plaintiff in error thinks that there is some other peace beside the peace of the city, and that is the peace of the State, and that when he pays State and county taxes, in common with other citizens, and more especially, when he pays a license to the city at the rate of $240 a year, he is entitled to the protection of the laws, if necessary, in the pursuit of a lawful calling, without having to pay so much extra, by way of peace offering.
    Sec. 7, of the same act, purports to give the Mayor and Aider-men “the exclusive power of taxing or licensing dram-shops and other drinking establishments, &c., and to lay and collect a tax, for city-purposes, on all taxable property situate therein according to the value thereof, &c., and a poll lax, never to exceed, &c., and to fix the fees of Recorder and Constable, and to tax trading boats, &c. which are all the powers it gives to the Mayor and Aldermen on the subject of taxation, not one of which has the remotest bearing to authorize the passage of any ordinance which could entitle, the defendant to a recovery against the plaintiff in error, upon the state of facts, as shown by' the record in this case.
    Should the court entertain any doubts as to whether these sections of the ordinances of the city, referred to in the bill of exceptions, can be made to constitute a part of the record, by consent of the parties, the plaintiff in error does not conceive that the entire omission of the ordinances can prejudice this case in any way whatever. This court decided in the case of Lenox vs. Pike, and others, that the paper purporting to be a bill of exceptions, setting out the evidence, formed no part of the record. In this case the facts, as set out in the bill of exceptions, do all properly appear of record, and are certified by the Judge to be all the evidence in the case. The fact that such ordinances existed, is admitted, and stated of record; the ordinances themselves being matters of law, could not be entered of record unless specially pleaded. But the plaintiff in error stands upon higher ground; and in view of the doctrine established by this court, of affirming every judgment of an inferior court, unless it manifestly appears to be contrary to law, he insists that the facts which do appear upon the record, show the judgment, under the law of the land, to be erroneous; and that the corporation of Little Rock, have not the power, by law, to pass an ordinance which, by any possibility, could justify a recovery under such a state of facts.
   Dicebíson, Judge,

delivered the opinion of the court:

There is but one question involved in the decision of this case: Had the corporation of the city of Little Rock power and authority to pass an ordinance requiring the city Constable to attend at the Theatre during its performance, and allowing a compensation therefor, to be paid by the proprietor or exhibitor? The corporation of the city of Lillie Rock possesses only such legislative powers as are prescribed by Ihe charter from which it derives its existence. It exercises a delegated power only; and must in all its acts, confine itself strictly within the limits of its authority. The question then presents itself directly: What are those powers as connected with the subject immediately before us? It is of no consequence as to the period at which a charter to the citizens of Little Rock was granted, or what amendments were made thereto prior to the 22nd February, 1838, when an act “entitled an act supplementary and amendatory of an act to incorporate the city of Little Rock, approved November 5, 1835,” was passed, of which the 4th section declared “ that the said Mayor and Aldermen, or a majority of them, shall have full power and authority from time to time, and at all times hereafter, to hold-a common council in said city at such places as they may designate, and to make such by-laws, ordinances and regulations in writing, not repugnant to the constitution and laws of this State, and the same to enforce, revoke or alter, as to them may appear necessary for the good order and government of the city and the inhabitants thereof; and to make, limit and impose reasonable fines and amercements for all misdemeanors, disorders, neglects and nuisances, committed within the limits of said city, upon persons committing them therein, and for which the laws of the State have not provided an ample remedy.” The third section of the same act makes various provisions, all refer-ing specially to “ the better preservation of order and the enforcement of the laws of said city.

These are the only legislative powers with which the corporation is invested. The power to make by-laws is given to corporate bodies to enable them to fulfil the purposes of the institution, and must necessarily be confined to such objects and persons as are specially defined in the charter.

The corporate powers are not only limited, but must he reasonably exercised in sound discretion, and not only strictly within the limits of the charter, but in perfect subordination to the constitution and the general law of land, and the rights dependent thereon; and that power, if properly exercised, may be enforced by just and competent penalties.

These are the rules by which all corporate bodies must be governed, and it remains for us to determine whether the ordinance or by-law, by which the plaintiff was required to pay two dollars and fifty cents on each exhibition to the defendant in error, is properly within the limits of the grant to the corporation. By one ordinance they declared that “ there shall be levied and collected as a city tax the sum of twenty dollars for each month on every circus, show, menagerie, theatre, or exhibition kept, opened, or exhibited in this city.” Subsequently they passed another ordinance or by-law that “it shall be his (the Constable of the city) duty to attend every theatre, menagerie, circus, exhibition and show kept, opened, or exhibited in this city, on every night of such exhibition or performance, and to enforce order, and suppress riot and tumult, for which service he shall be entitled to receive of the owner or exhibitor, for each night of his attendance, the sum of two dollars and fifty cents,” both of which said ordinances were in force at the same time. Whether the corporation had power to impose the tax of twenty dollars we shall neither inquire into or determine as no objection is raised to it. That under the charter the corporation had power to make proper and reasonable by-laws, ordinances, and regulations for the preservation of the good order and government of the city, and its inhabitants, cannot be doubted. But we are at a loss to determine by what name the imposition of the two dollars and fifty cents to be paid to the City Constable shall be called or known. The exhibition or performance mentioned certainly cannot be considered as either a misdemeanor or disorder, a neglect or nuisance; for, by the payment of the twenty dollars per month, the corporation had rendered it legal, and could therefore impose no fine or amercement unless there had been an actual violation of some known and established law of the land. It cannot be considered as a tax, because this power is limited to taxable property situate within the city, to a poll-tax, upon trading boats vending produce and merchandize at the landing of said city; and to licensing dram shops or drinking establishments. We have seen that the object of the charter is the preservation of good order within the city, but that the power by which this is to be effected is not only limited, but the means by which the funds are to be raised to meet the expenses of so doing are expressly defined and pointed out; and that the exercise of these powers must not only be confined to such objects and purposes as are specially defined in the charier, but that they must be reasonably exercised. As previously remarked, no objection is raised to the twenty dollars imposed by the first ordinance. But we are at a loss to know by what power, after authorizing the exhibition at the theatre, and thereby rendering it lawful, an additional imposition of two dollars and fifty cents for each performance should be ordered to be paid to the City Constable by the owner or exhibitor, who is no party to the contract, and who did not require the services of the Constable. Is it reasonable? The tax of twenty dollars per month is two hundred and forty per annum, and if the performance should continue during the year, it would add to the emoluments of the defendant in error seven hundred and thirty-two dollars and fifty cents, for which the other would derive no benefit or consideration. Suppose the corporation was to pass an ordinance that the City Constable should attend every day upon each and every dram-shop, or other drinking establishments, and that the owner or keeper thereof should pay such Constable two dollars and fifty cents per day therefor, would such an ordinance be considered within the proper and legitimate authority of the charter? Would this be a reasonable exercise of power? If the principle is admitted that under the general power of providing by ordinances and by-laws for the preservation of good order within the limits of the city, the corporation can do this, where, we would inquire, is the limit to their authority ? They may, with the same propriety, make his duty extend to standing guard over dram-shops and drinking establishments, and at the stores of the citizens, thereby rendering those laws and ordinances oppressive and injurious, under the specious pretence of suppressing riot or tumult which might or might not take place. It cannot be considered as a fee to the City Constable for services performed, but an indirect tax levied upon the plaintiff in error, in contravention of the powers of the. charter. If, in the imposition of a fine or amercement for the commission of a misdemeanor or disorder committed within the limits of the city, and for which the laws of the State have not provided an adequate remedy, the services of the City Constable should be necessary in - serving of process, &c., and-the party prosecuted is convicted, then indeed he may become liable for the fees. And if a neglect of some duty is to be enforced, or a nuisance removed, and the services of the Constable required, he must look to the corporation for compensation. And it is for the purpose of meeting such expenditures that a tax is authorized to be levied. But it surely would not be contended, that if a party was prosecuted for the supposed violation of some by-law or ordinance ■ and acquitted, that he could be rendered liable to pay the Constable his fees. And yet this would be equally as just, as reasonable, andas much within the limits of the charter, as to allow the City Constable two dollars and fifty cents for his attendance at each and every performance at a theatre. There can be no doubt, in our opinion, that the corporation transcended their powers, and that so much of section 10, of chapter 5, of the revised ordinances of the city of Little Rock, adopted February 22d, 1839, as declares that the City Constable “ shall be entitled to receive of the owners of exhibitors for éach night of his attendance, the sum of two dollars and fifty cents,” is repugnant to the charter of the corporation of the city of Little Rock.

The judgment of the Circuit Court must therefore be reversed with costs.


source: Caselaw Access Project

author: Ringo, Chief Justice,

license: Public Domain

text:
    Amos Hartley against Tunstall, Waring and Byrd.
    Ekkok to Pulaski Circuit Court.

    Where the defendants in an action reside in different counties, the statute does not authorize each writ issuing to a county to contain the names of all the defendants in the suit.
    The writ to each county can contain the names of no defendants other than those who reside in that county : nnd' if each contains the names of all the defendants, they will be quashed on motion.
    But a final judgment cannot on such motion be entered against the plaintiff.
    And if the defendants are entitled to any judgment for costs, it can only be for such costs as they have expended, and not for the costs on the part of the plaintiff.
    The plaintiff, in an action of debt instituted in the Circuit Court of Pulaslp, declared against Thomas T. Tunstall, of the county of Independence, and Richard C. Byrd and George Waring, of the county of Pulaski, and sued out two separate writs of summons, each against all the defendants, one to the Sheriff of Pulaski, and the otlier to the Sheriff of Independence, both of which were executed more than thirty days before the return day; the former on Byrd and Waring in Pulaski, the latter on Tunstall in Independence.
    At the return term, Tunstall, before either of the defendants had appeared to the action, moved the court to quash the writs; and his motion was sustained; and final judgment given that the writs be quashed, that the plaintiff take nothing by his suit, and that the defendants go hence, without day, and recover of the plaintiff all the costs in and about this suit expended.
    Ashley & Watkins, for plaintiff in error:
    Upon the calling of the cause in the court below the defendants moved the court to quash the writs in the case, which motion was sustained, but upon what ground it is difficult to discern; and the only question for the consideration of the court is, whether the Circuit Court erred in sustaining the motion to quash the writs? The decision of this court in the case of Womsley vs. Cummins, 1 Ark. 125, was seized upon as authority to sustain the motion. I must be permitted to observe that the decision in the case of Womsley -os. Cummins has had a most unhappy influence as a precedent for tech-nicalties, tending to delay and embarrass the administration of justice. Without attempting to controvert the opinion of the court in that case, I proceed to enumerate the various points of difference between that case and the present one, in order to show that it is not applicable as authority, and that the judgment of the court below in this case is clearly erroneous.
    The case of Womsley vs. Cummins was governed by the law of the Territory concerning joint and several actions; Dig. 312;and the court seemed to attach great weight to the phraseology of the law, which required that the separate summons or capias should be a counterpart of the writ issued to the county where the suit was commenced. So, that notwithstanding the succeeding section of the same law provided that where there are several defendants to any suit or action, some of whom are summoned or taken, and others not summoned or taken, the plaintiff shall be at liberty to proceed against those summoned or taken without regard to those not summoned or taken, &c; yet, that when Cummins quashed the writ to Washington county, against Martha Trimble alias Patty Riggs, it was also a quashal of the writ as to Womsley; or in other words, that Cummins could not discontinue as to one defendant and proceed against the other.
    Now the law of the State, Rev. Stat. 620, sec. 5, under which this action was commenced, provides that when there are several defendants who reside in different counties, the suit may be brought in either county, and a separate writ issued to each county against such of the defendants as reside therein, and does not require that the writs should be counterparts, so that one hangs upon the other, but admits of the fair construction that the writs, are so far separate that the one may be good and the other bad; as for instance, without a seal, or through carelessness, not signed by the clerk, or for misdescription of the parties — especially when taken in connection with the law concerning joint and several obligations and contracts, Rev. Stat. 475, which authorizes a plaintiff to sue on a joint obligation as if the same were joint and several; and with the subsequent section, 47, under the bead of “practice at law,” which provides that where there ate several defendants in a suit, and someof them are served with process (which I understand to mean valid process) in time, and others not served in time, the plaintiff may discontinue as to those not served (which would be the case where there had been a timely service of invalid process) or not served in time, and proceed against those who are bound to appear or he may, &c., so that if one of the separate writs in this case be good, the quashal of both is erroneous, because the plaintiff below had the right, by law, to discontinue, as to Tunstall, and take judgment against Byrd and Waring, who were bound to appear.
    But the plaintiff in error insists that each writ in this caséis a good and valid writ, and sufficiently certain. The court will observe that in the case of Womsley vs. Cummins the writ against Martha Trim-ble, alias Patty Riggs, ran as follows:
    “ Territory of Arkansas,
    “ County of Crawford,
    to wit:
    “ The United States, &c., to the Sheriff of the county of Washington, greeting: You are hereby commanded to summon Greenup Womsley and Martha Trimble, alias Patty Riggs, to appear before the Judge of our Circuit Court, at the court-house in the county aforesaid whereas in this case the writ to Independence county is more full and explicit, being as follows:
    “State of Arkansas,^
    “ County of Pulaski, j
    T° WIT'
    “ The State of Arkansas, to the Sheriff of the county of Independence, greeting: You are hereby commanded to summon Thomas T. Tunstall, Richard C. Byrd and George Waring, if they are to be found, &c., to appear before the Judge of our Circuit Court of Pulaski county, at the court-house in the county aforesaid, on the first day of next March term, at a court to be holden on the second day of March next, then and there to answer, &c.” Now it seems to me that this writ contains all the certainty that the law requires. According to the authority, the word aforesaid may well refer either to the county of Pulaski, as the venue stated in the margin, or to Pulaski county, its immediate antecedent in the body of the writ, which, in either event, would make the writ good, ut magis res valeat quam pereat.

    Again: this writ is regularly issued out of, and under the seal of the Pulaski Circuit Court Court. By express law of the land and universal usage, which every defendant is bound to know, every writ is returnable to the court from whence it issued; thus rendering certain the place where he should appear, to wit, before the Judge of our Pulaski Circuit Court, at the court-house in the county aforesaid. Again: the acts regulating the summons of the Circuit Courts are public acts, of which every individual and court is bound to take notice. For instance, in the Federal Court a defendant is summoned to appear at our next March term, without specifying when the March term commences, because the defendant is presumed to know it. In the case now before the court the only pretence of uncertainty is between the counties of Pulaski and Independence. Now by law the time of holding the Pulaski Circuit Court was the second day of March, it being’the first Monday, and the Independence Circuit Court was not to be holden on that day.
    In conclusion, if the writs in this case are submitted to the test of common sense and plain understanding, no disinterested man could be at a loss to know when and where and whom the defendants were summoned to answer.
    Blackburn, Contra:

    As the motion was a general one by consent, and does not set out the grounds upon which it was predicated, we are therefore driven to the writs to see what the irregularity was, that authorized the court below to quash them. The counterpart of the writ that was served on Tunstall is an exact and literal copy of the original, except, that it was directed to the Sheriff of independence county, and commanded him to summon the defendants to be and appear before the Judge of the Circuit Court at the county aforesaid, &c.; the counties of Pulaski and Independence both appearing in the writ before this command, and the defendant could not know where to appear. There is evidently error in the issuing of the counterpart, because the place of holding the court is not sufficiently set forth, and the court was right in quashing it. Womsley vs. Cummins, 1 Ark. Rep. 130, and the court said in the case just cited, that if the counterpart is bad “it must consequently extend to the other, and the dismissal or quashing of the process against the former must operate the same way upon the latter.” And we will find that the principles there laid down will apply with redoubled force to the present cause. At common law, if - there were more than'two jointly and severally bound, the plaintiff must sue either one or all; 1 Chit. PI. 30; 3 T. R. 782; Bac. Abr. title Obligation (D) 4; 1 Saund. 291, C.; and the plaintiff could not place himself in a better situation by suing all and discontinuing as to a part; for a “discontinuance as to one is a discontinuance as to all.” 5 Com. Dig. 529, title Pleader, (W 3.) And the defendants in error contend that although there has been some statutory innovations upon the common law, that this cause is not the least changed thereby, and the counterpart having been served thirty days before the court and defective, the court could not suffer the plaintiff to discontinue as to Tunstall and take judgment against Byrd and Waring, for that would be in the face of that provision of common law, cited above from Com. Dig., and it is a necessary implication of law, that if .the court adjudged that one of the parties was not in court, that the plaintiff was bound to have them to enable him to maintain his action against the other two; that the judgment of the court must extend to all; therefore the writs in this case were properjy quashed, because this case does not come within the provisions of the 47th section of chap. 116, of the Revised Statute, p. 626, which says, when there are several defendants in a suit and some of them are served with process thirty days before the return term thereof, and others of them are not served in due time, the plaintiff may discontinue as to those not served, or not served in time, and prosecute against those that are bound to appear. If Tunstall had not been served at all, or not served in time, in either case the plaintiff might have discontinued as to him, and proceeded as to the others that were served, or he might have taken a new process against Tunstall; but even under the statute, if the plaintiff failed to take either a new process against those not served, his failing to proceed with his cause would discontinue it, and in this case, the plaintiff filed no motion to discontinue as to Tunstall, but awaited the decision of the court on the defendants’ motion to quash the writs, which motion was inseparable, and the-court had to decide either for or against it. The plaintiff'in this case, elected to sue all three co-obligors, as he had a right to do, (although one of them resided in a different county,) by the 5th sec. of chap. 116, Revised Statutes, p. 620; his writ to Independence county having been served in due time, it was a judicial writ and good until adjudged bad by the proper tribunal, and it was amendable by the statute of jeofails; therefore, the plaintiff (after the defendant had filed his motion to quash) was-bound to stand by it, and adjudging of it bad placed him out of court.
    The statute passed 10th January, 1816, Pope, Steele, and Mc-Campbell’s Dig. p. 312, and referred to by this court'in the case of Taylor vs. Conway, Auditor, at the January term, A. D. 1840, was repealed by the 25th sec. of chap. 120, Revised Statutes, p. 697, and was not in force when this case was commenced in the court be-''' low, thereby leaving the case exactly as at common law, if the record does not show that it was within the 47th sec. of chap. 116, Revised Statutes; for this court said in the case of -Taylor vs. Conway, Auditor, &c„, “that statutory provisions innovating upon and changing the common law,” the plaintiff, to avail himself of this special privilege, must present his case within the operation of the statute, “ and must show by some proper averment,” or from the face of his proceedings “ upon every principle of law,” so. “ as to exclude” his cause “ from the operation of the general rule.” And upon this principle, if the statute had authorized the obligee to sue all, or as many of the obli-gors as he pleased, yet when he had once made his election, he must be bound by it, because it is not within the statute to discontinue, except in cases above mentioned, and if the statute does not authorize the plaintiff to discontinue, then the effect of a discontinuance is to be ascertained by the common law, and a discontinuance as to one is a discontinuance as to all.
   Ringo, Chief Justice,

delivered the opinion of the Court:

The question as to the validity of these writs depends mainly upon the construction to be given to 5th sec. of the 116th chap. of the Rev. St. Ark., which provides, that “ where there are several defendants in a suit, instituted by summons or capias, and they reside in different counties, suit may be brought in either of such counties, and a separate writ may be issued to each county against such of the defendants as reside therein; and when a defendant in a suit instituted by attachment has property in several counties, separate writs of attachment may be issued to each county; and when there are several defendants in a suit, a capias may be issued against one or more of them that are liable thereto, and a summons may be issued against the others.” The plaintiff insists that the writs in question are warranted by and issued in pursuance of statutory provisions. But, in our opinion they do not conform to the provisions of the statute, nor -are they authorized by it, because the language used surely does not justify the conclusion that any of the separate writs, authorized by the statute to be issued, shall be issued against^ all of the defendants, but on the contrary, each separate writ, where .the defendants reside in different counties, must, according to the express reading and evident design of the law, be issued against such defendants only as reside in the county to which the writ is issued, and if it were otherwise, all of the defendants might be harassed with the service of each separate writ, and be legally served several times with process to answer the same demand, and costs would, in any event, be increased if the practice of issuing writs as adopted in this case was authorized and established; and thus the defendants might be subjected to an additional burden and inconvenience both useless and illegal. We, therefore, are of the opinion that the writs were improvidently and illegally issued, and ought to have been superseded or quashed, on the motion of the defendants; and if the court had simply quashed or superseded them, the decision could not, in our opinion, have been questioned or disturbed. But the court, instead of stopping at that point in the proceeding, as it should have done, pronounced final judgment against the plaintiff, “ that he take nothing by his suit, and that the defendants go hence, without day, and recover of the plaintiffs all the costs in and about this suit expended,” which is, in every respect, both in form and substance, a judgment in bar of the action itself, and not a legal consequence from, or warranted by the premises. For, as the defendants had never appeared to the action, and were not parties to the suit legally before the court, so that a valid judgment could be pronounced against them even for costs, or so that their rights would have been bound by any adjudication upon the premises, of course no valid judgment could be rendered in their favor against the plaintiff. And it may not be improper to remark here, that the judgment for costs is rendered in favor of the defendants for all of the costs in and about the suit expended, when if they had been entitled to any judgment whatever for costs, it would have been legally rendered for such costs of the suit as had been expended by the defendants, without embracing also the costs on the part of the plaintiff. The judgment is therefore reversed with costs.


author: Dickinson, Judge,

text:
    Roland Gentry against James Madden and others.
    Error to Pulaski Circuit Court.

    In trover, though the taking might have been lawful, yet if the defendant took upon himself the right, and assumed the control of the property, whether it came to his possession by finding, or otherwise, it is sufficient evidence of conversion, without a previous demand and refusal.

      It is not necessary that there should be a manual taking, or that the defendant should have applied the thing to his own use. If he exercised a control over it, in exclusion of, or in defiance of, the plaintiff’s right, it is in law a conversion, be it for his own, or another’s use.
    If a person therefore finds a raft of timber on a sand bar in a navigable river, high and dry, and takes possession of it, and assumes to dispose of it, hires a person to assist him in removing a part of it, and sells that person his interest in the remainder, reserving to himself the portionsremoved, it is a conversion of the whole.
    And the fact that a raft is aground on a sand bar, where it would safely remain until a rise, if not taken away, does not show the property to be lost or abandoned, if the owner knew where it was>; and a stranger is no more justified in taking possession of it, than of any other property not in the owner’s immediate possession or inclosure.
    Where an actual tortious taking, or an actual conversion, is proved, there is no need of a demand.
    This was an action of trover commenced by James, Thomas and Phillip Madden, against Tarlton Massengill and the plaintiff in error, for converting four lots or blocks of pine plank, containing sixteen thousand feet, of the value of four hundred dollars. The writ was served on both defendants. At November term, 1838, Gentry filed his plea of not guilty, and the case was continued. At September term, 1839, the plaintiffs joined issue to Gentry’s plea, and a trial was had by jury, and a verdict for Gentry. A new trial was granted, and at March terra, 1840, the case was again tried, and a verdict found against Gentry for $250.

    On the trial the evidence adduced was as follows: Slinkard stated that on the first of March, 1838, he was employed by Mr. Madden to come down with a raft. About twelve miles above Little Rock they got aground on a bar, and had to leave four blocks, and come on down with the balance. There were from 15' to 16,000 feet in the four blocks, and lumber was_ selling at the Rock at from $20 to
      $25 a thousand. Got aground on the bar a little above Maj. Fields’ place. Returned to the bar the next day, but the river was falling. Did not return again until May following, which was the first rise after he left there, and the blocks were gone. The lumber was worth $>20 to $¡25 a thousand, out of water. It was pine flooring lumber, sawed on Piney Creek. It was the Maddens’ plank. It would have remained on the bar till he returned in May, if it had not been taken away.
    Dent stated that the plank was discovered by Massengill lying on the bar. Massengill and Gentry went over to it in a canoe. Massengill first saw the plank and got Gentry to go over with him, and agreed to go halves. They took it to be drift. Witness agreed, if all parties were willing, that he would go over and help them, if they would give him plank enough to lay a floor in his house, sixteen feet square, and they both said they were willing. There were four blocks, when they got there, a little wrecked; two blocks seemed to be turned under, and the under two were buried in the sand. After we got out about 130 plank, Gentry asked me if I did not want his part of the plank; and Massengill insisted on my taking it, and said Gentry was willing to give up the raft and take for his part what was taken ashore. Gentry took the 130 plank for his part of the raft which he sold to me; and I helped Massengill to re-raft the plank and take it to Little Rock, to deal with it according to law. We came down and consulted Lawyer Blackburn, at Little Rock, to know what we should do, who told Massengill that he knew whose plank it was, that it belonged to Mc-Clanahan, a friend of his, and was lost; that he would befriend Mc-Clanahan, and hold on to the raft, and agreed to take charge of it, have it brought out, and pay us whatever the law entitled us to for salvage. Blackburn fastened the raft at the landing, and we gave it up to him. When we re-rafted the plank, we had to ,carry it some fifty or sixty yards in the river. The four blocks were very safely lodged, and would not have gotten away for some time after they were lodged. Another raft lodged about two miles below, the same fresh. Massengill said that Gentry thought he would get the 130 plank for nothing, but that he was mistaken, because it would have to be accounted for when we got to Little Rock. • If a rise had come, the top blocks were bound to have floated off.
    This being all the evidence in the case, the court refused to give the following instructions asked for 'by Gentry:
    That in a case of finding, when there; is no evidence of a tortious taking, there must be evidence of a demand, and refusal on the part of the defendant to deliver up..the property, in order to entitle the plaintiff to recover; and -' '
    That the defendant in, this case is liable only for the value of the plank which he converted to his owir use.
    These instructions being refused, Gentry excepted.
    Pike, for plaintiff in error:
    Admitting that Gentry kept possessiori-óf the 130 plank, three questions 'are presented by the record: - -'

      First: Was it a conversion by. Gentry after a finding, or was it a tortious taking?

      Second: If it was originally, a. findings was or was not a demand to deliver and a refusal, necessary to iRaice '.a- conversion ?

      Third: Admitting there was a conversion, how far was Gentry liable ?
    s First, then, was it a finding, or a tortious taking? Upon this point, it seems to us, there can- be no -dou.bt. The >plank is discovered wrecked upon a>sand bar. Two of the blocks are turned over, and the lower two wrecked upon the sand. If a rise comes, the upper part must float off. No person is with it, and it lies there, in the Arkansas river, in every sense of the word, á wreck. By the Territorial law,then in force, when any such raft was “ lost, wrecked or adrift, and in a perishable condition,” on any river.or navigable water course, it was lawful for any person to take it up and secure it; and for doing so, he was entitled to a salvage of 10 per cent.
    It is clear that it was the intention of the finder to obtain salvage, and to that end, to deal with the plank according to law. Gentry, however, desirous to avoid trouble, agreed to give up to Dent all his claim on the raft for the 130 plank which had been taken ashore; which was agreed to. Whether Gentry' retained the plank is not positively stated; but at all avenís be ivlaAed c© more. Aad although it was a2’gued below that he sold io i!N;ii cm.-half the raft for 130 plank, the idea is preposterous. Why soil half of four blocks of plank for a few plank, part of the same half ? It is plain that he sold bis claim to salvage — and Dent and Maccengill immediately proceeded to carry the plank to Little Rock, there to deal with it according to law. What became of it after it was fastened to the landing we do not know.
    Second: This being originally a finding, how did a conversion arise? We contend that in such case there could be no conversion, unless by demand and refusal.
    The conversion is the gist of (lie action. The manner in which the goods came into the hands of the defendant, is mere inducement, and need not be proved. 3 Star* Ev* 1492. A conversion, it is said, seems to consist in any tortious act, by which the defendant deprives the plaintiff of his goods, cither wholly or for a time. Ib. The allegation of conversion docs not acccscarily import an acquisition of property by the defendant, for a convcra'cn may be an actual destruction of the property. The deprivation of property to the plaintiff is the foundation of the action. Ilayzeorth vs* Sill, 3 B. and A. 683.
    Butin general, evidence of some tortious act is essential to a conversion, and it is not sufficient to prove mere non-feasance. 3 Stark. Ev. 1495; Bromley vs. Gua;wdl, S Bos. and Pul. 438.
    The ordinary presumptive proof of a conversion consists in evidence of a demand of the goods by the plaínlííF, and a refusal to deliver them by the defendant who has possession of them. 3 Stark. Ev. 1496; Baldwin vs. Cole, 6 Mod. 212; Bristol vs. Burt, 7 J. R. 254; McCombie vs. Davis, 6 East 510. This proof is always necessary, where the goods came lawfully into the defendant’s possession, as by finding, or a bailment, or delivery of the owner. 3 Stark. Ev. 1497. And where, evidence of a demand and refusal is given, it does not always show a conversion; as where A. having found goods, refuses to deliver them, because ho docs not know whether the person demanding is the true owner. 3 Stark. Ev. 1499.
    The Territorial statute on the subject of salvage, p. 507, sec. 5, agrees with the English law in this particular. It is thereby provided, that in case the taker up rcíicvs ¡S «v.;!:? oath ¡lint he was not instrumental in causing the piepcriy io'bc. to to, and that he has not secreted, retained or disposed of, or caused to be secreted, retained or disposed of, any part of the properly; and on his ref mil to deliver such property,the owner may rccovartH&vaiac thereof by aa action of trover and conversion. This is analogues to the case of taking up an estray 5 and in Nelson vs. Merriam, 4 Pick. 249, it was held that where a person had taken op an estray, imd had kept it, without pursuing the steps pointed cut by law, he was not liable to an action of trover, unless he used the ©stray or refused to deliver it on demand. The court there said that the failure to completa the proceedings required by the statute, might or might not seucV the original taking tortious, according to the original character of the taking. That where an estray was taken up for the purpose of preserving it for the owner, the original taking was not only lawful, but praiseworthy, and then the defendant was in possession by a righi/ul, and sot a tortious act, and trover could not be, maintained without evidence of some actual use of the estray by the defendant, o? oi-aTrcfasnl to deliver upon demand. See Drake vs. Shorter, 4 Esp. 165.
    In the present case, it Is perfectly clear ñora the evidence, that Massengill and Gentry took pcscorwe ¿ of the plank for the sole purpose of preserving it for lh3/owner, and obtaining salvage. Every act speaks this — and though they had no right to retain possession of any portion of thc'plank, yet unless the portion so retained was used, there was no conversion.
    By the statute itself, the action of trover is only given where the taker up refuses to take the oath required by law, and also refuses to deliver np the property on demand. This ij conformable to the common law, where there is a finding ;;s well as consonant with justice. There is no proof whatever ilutobcir/ used any portion of the plank, or even took possession of it — -and fir aught that appears in evidence it may be still lying un the bual:, or have been taken away by the owners, whoever they were, for ibero was no proof that the plank was owned by the plaintiff, ia this suit.
    We think, therefore, that there was ia factno proof of conversion in this case; and that the court below erred in refusing to give the first instruction above mentioned»
    Third: If there was conversion, how far was Gentry liable?
    It must be at once admitted that the original taking of the plank constituted no conversion. Up, to the time when Massengill and Dent started with the plank to Little Rock, there could have been no conversion, except as to the 130 plank, if as to that. The residue had not at that time been converted bjr any body, for Massengill and Dent were then taking it to Little Rock, to be dealt with according to law.
    The only conversion, therefore, which Gentry could by possibility have been guilty of, was of the 130 plank.
    Now in trover no damages are recoverable for the act of taking. Cooper vs. Chitty, 1 Bur. 31; Wickliffe vs. Sanders, 6 Mon. 296.
    The amount of damages in an action of trover cannot be more than the value of the thing converted, and legal interest. Sanders vs. Vance, 7 Mon. 213, 214; Dillenback vs. Jerome, 7 Cowen 294.
    The defendant belovtf could therefore be liable for no more plank than he converted. The 130 plank which he agreed to receive as his share, was the utmost extent of his conversion; and the value of that amount of plank was not proven. We. think, therefore, that the court erred in refusing the last instruction; and that the judgment should be reversed.
    Tkapnam., Cocke, Contra:

    The conversation and remarks of the co-defendant Massengill cannot be evidence in the case, though incorporated in the record. It is evident from the testimony: first, that the plank was not lost or adrift. 2nd. That the taking by the defendant in the court below was not by finding, but was made with a view to a division and appropriation oí the plank, and therefore was wrongful, and accompanied by circumstances of actual conversion, and therefore exempted the plaintiffs below from proving a making a demand and refusal. “ A conversion may arise either by a wrongful taking of the chattel, or by some illegal assumption of ownership, or by illegal using or misusing it, or by wrongful detention.” 1 Chit. Pl. 140, 141; 3 Wils. 33; Willes 55; 2 Saund. 47; Bullers N. P. 44.
    The taking being wrongful, the wrong doers are individually and jointly responsible for the whole amount of'the damage done to the persons injured: any participation in the illegal violation of the rights of others makes the participator responsible for the whole injury suffered. Prince vs. Flyner, 2 Litt. 24; Nations vs. Gray, 1 Ark. 557.

    And therefore if Gentry was responsible at all, he was responsible for the full amount.
    The taking was evidently tortious; the object of the taking, the amount of the injury sustained, the weight of the evidence, are facts which belong exclusively to the consideration and decision of the jury, where we respectfully hope the court will leave them.
   Dickinson, Judge,

delivered the opinion of the court:

One of the points in this case is whether there was sufficient evidence of a conversion to justify the verdict. The principle is well settled, that although the taking might have been lawful, yet if the defendant took upon himself the right and assumed the control of the property, whether it came to his possession by finding or otherwise, it is sufficient evidence of conversion, without a previous demand and refusal. Buller's N. P. 44. The declarations and acts of the defendant below united, form an assumption of control over the plaintiff’s property. The taking possession and assuming to dispose of the four blocks, as he evidently did do in hiring Dent to assist him in removing a part of the plank, and afterwards selling to him his interest in the remainder, reserving to himself the portion carried out, Js certainly a conversion.

In the case of Kent vs. Welsh, 7 J. R. 257, the court decided that it was neither necessary that there should be a manual taking of the thing in question by the defendants, or that he should have applied it to his own use. But that if he exercised a control over it in exclusion of, or in defiance of, the plaintiff’s right, it.is in law a conversion, be it for his own or another’s use. The same principle is maintained and carried out in the case of Murray et al. vs. Burling, 10 J. R. 172; and in 2 Starkie, 147.

The plaintiff in error however contends that, in any event, he is only liable for the 130 plank which he agreed to take for his part of the raft. We see no difficulty in this objection, for if there was a conversion of the 130 plank, it was but a continuance of that control which he had assumed, in the first instance, to exercise over the whole property. He hired Dént to assist him in doing what? In taking out and placing it in such a position as to dispose of it with more facility. These facts were all before the jury, and having been passed upon by them, the verdict ought not to be disturbed on that ground.

The other witness proves that the property was not lost, that the four blocks were left aground; that he visited them the next day, but that the river had fallen too much to permit him to remove them. That in May following, on the first rise of the river, he returned, when he discovered that the four blocks were gone, and that they would have remained at the place he left them if they had not been taken away. This evidence is conclusive that the property was not either lost or abandoned; and therefore the taking possession was no more a justification than the talking of any other property which was not at the time in the owner’s immediate possession or inclosure. The defendant knew that it was not his own property, and the jury correctly considered him as a wrong doer and trespasser from the beginning. If such be the facts, and these the conclusions to which the jury were brought by the evidence, he could not entrench himself behind the statutory provisions relating to property lost, wrecked, or adrift, and in a perishable condition upon the river, for no one of his acts evinced the slightest intention on his part to make the law his guide in the disposition of the property. On the contrary the whole of the evidence justifies the opinion that he intended to convert it to his own use, and that such intention was actually carried into execution.

There is no clearer principle laid down than that if an actual tortious taking be proved, it is not necessary to prove an actual demand, for the taking being unlawful is itself a conversion; so likewise if an actual conversion be proved, it is not necessary to prove a demand. The evidence shows how the property came to the hands of the defendant, and that there was not only a tortious taking, but an actual conversion by the defendant.

We discover no error in the refusal of the Circuit Court to give the instructions asked for. The judgment must therefore be affirmed with costs.


text:
    Owings, for the use of Farrelly, against Finley, Adm’r of Oakley.
    Error to Hempstead Circuit Court.

    In requiring of non-residents a bond for costs before the institution of a suit by them, it was the object of the Legislature to secure to the officers of the court their costs in the case, at all events.

    Therefore, a bond, conditioned that if the “plaintiff shall maintain his said action, or if judgment shall be given against him, he shall well and truly pay all the costs of suit, which he shall be liable to pay,” then to be void, is insufficient, and not such as the statute requires.
    Whatever may be the result of an action, commenced by one who is not a resident, the obligation of some responsible person must be first filed that he will pay “all the costs which may accrue therein,” subject to no contingency.
    After a scire facias had been issued and executed upon an administrator, and a motion was made by plaintiff’s counsel to revive the suit against him, a motion by the administrator to dismiss the suit, for want of sufficient bond for costs, might be properly made.
    This suit was originally instituted against Oakley, Finley’s intestate. On the 31st day of July, 1839, a bond for costs and declaration was filed: on the same day the writ issued; upon which, until the fourth day after the suit was dismissed, was the following return: “Executed, &c. July 31, 1839, by, &c. Ro. H. Conway, D. S.”

    The writ was returnable to October term, 1839. At that term no step was taken, whatever, in the cause. At an adjourned term held in November, 1839, the suit abated by the death of Oakley, and a scire facias was ordered to issue against Finley, as his administrator, returnable to the next term. This sci. fa. was executed in due time, by reading, in Ozan Township.
    At the return term, on the 8th of April, 1840, Finley moved to dismiss the suit, for want of a sufficient bond for costs.
    On. the next day, April 9th, the plaintiff filed his motion to revive the suit, and also his motion for leave to file a new bond for costs: and the defendant filed his motion to dismiss the suit, because there was no sufficient service of the original writ.
    On the 10th day of April, the plaintiff admitted on the record that Owings and Farrelly were both non-residents — and thereupon the motion to dismiss, for want of a sufficient bond, was sustained.

      On the 11th of April the defendant moved to strike from the files a new bond for costs put among the papers by the plaintiff.
    On the 13th of April the plaintiff filed his bill of exceptions.
    On the 14th of April the plaintiff obtained leave for the Sheriff to amend his return, on the original writ, by inserting the name of the Principal Sheriff and the word “by,” before the the name of Ro. H. Conway, D. S.

    The bill of exceptions sets out the defendant’s first motion to dismiss, the plaintiff’s motion for leave to amend his bond for costs or file a nefV one, a new bond tendered by the plaintiff, all in hcec verba; and then states that the court permitted the new bond to be filed, and sustained the motion to dismiss. -
    Thimble, for plaintiff in error:
    On the motion of Finley to dimiss this suit for want of sufficient bond for costs, the plaintiff insists that the bond filed before the commencement of this suit was a good bond; but if not, Finley had no right to make any motion in the case; .he was not, at that time, a party to the suit, no order having b.een taken substituting him as a defendant, at the time of filing his motion; nor was he, at any time afterwards, substituted as defendant. On the fourth day of the term a motion was made to revive the suit in his name, but not acted on by the court at that term. On the said fourth day the plaintiff filed a new and good bond for costs; this he had a right to do. Sec. 1 Ark. 250, Means vs. Cromwell. In this case the suit is dismissed, and judgment rendered in favor of Finley, who was not a party to the suit, and who never did become a party to the suit, he never having been substituted as a party.
    In this case the following points are submitted:
    First: The original bond for costs substantially complies with the statute.
    Second: The motion, filed by .Finley on the third day of the court, was a void, vain act, for at that time he had not been made a party to the suit, and had no right to make any motion in reference thereto before he had been made a party, and his name substituted on the record, by order of the court, as defendant therein. See Rev. Stat. Ark. 59, sec. 10. The filing of the motion by said Finley did not make him a party to the suit.

    Third: On the fourth day of the court, and before the said motion to dismiss for want of bond for costs was raised, the plaintiff filed a new and sufficient bond for costs. Means vs. Cromwell, 1 Ark. 247; 1 Mo. Rejo. 638 and 9, Gov. of Mo. vs. Rutón; Boggs vs. Lawninf ib. 261; Brown vs. Ravenscroft, ib. 397; Hardin's Rep. 172, 640.
    Amendments are favored. Rev. Stat. Ark. 634, sec. 112.
    Fourth: Said motion to dismiss was not made in due time.. It is true that the motion was filed on the third day, but was not actually made until the fifth day. This is matter in abatement only; Means vs. Cromwell, 1 Ark. 250, and the authority there cited. If this matter had been presented by plea in abatement, the filing of the plea on the third day would have been good, and the subject could not have been called before the court until the cause was regularly called on the docket; but not so when the objection to the bond for costs was taken by motion, for the motion could have been made before the court on any of the first three days, as, by our practice, motions are called for on each morning of the court; this motion could, therefore, and ought to have been made, on or before the third day of the term. To file a motion is not to make a motion.

    Fifth: The motion to dismiss was not made until the fifth day of the term, when the suit was dismissed, and a judgment for costs in favor of Finley. If, at this time, Finley was a party to said suit, he was bound to plead to the merits, on or before the calling of the cause; consequently, this motion ought to have been made and disposed of before that time. If Finley was not a party to the suit, (which he was not,) the court erred in entertaining said motion, in dismissing said suit, and in entering judgment in favor of Finley for costs.
    On the 6th day of the term, and after said suit was dismissed, the court, on the motion of Finley, ordered that the new bond of plaintiff’s be struck from the files of the court. This was coram non ju-dice. The subject matter and the parties were all from before the court.

      For the above reasons, the said plaintiff asks that the judgment be reversed, and that he be allowed to proceed with his suit, on the bond by him filed.
    Pike, Contra:

    There is but one question presented by the record in this case. It is, whether the court erred in dismissing the suit?
    But, in this, several minor questions are involved:

      First: Was the bond for costs good?

      Second: Ought the suit, in any event, to have been dismissed, until the administrator had answered to the scire facias, or until there had been an order reviving the suit?

      Third: Ought the plaintiff to have been allowed to file another bond for costs?

      Fourth: Was there any other ground on which the suit should have been dismissed?
    On this bill of exceptions it is only necessary to remark, first: that it was not filed “at the trial,” nor “while the thing was transacting.” It does not contain, in itself, intrinsic evidence that the exception was taken and reserved while the thing was transacting, or the matter excepted to was passing before the court. Second: it contains a statement of facts other than those transacting in the court, or properly before it when the exceptions were taken and reserved. According to the decision of this court, therefore, in Lyon vs. Evans, 1 Ark. 359, there is no single fact, stated in this bill of exceptions, which is legally the subject of the bill or property inserted in it; and, therefore, this whole bill of exceptions constitutes no part of the record of the cause. And third: no bill of exceptions is allowable under such circumstances, any more than it is allowable upon a decision on a demurrer, because the record itself shows, or ought to show, all the facts desired to be presented by the bill of exceptions. A bill of exceptions ■ only lies to incorporate in the record and present to the appellate court facts which would not otherwise appear in the record. In the present case the record shows every thing incorporated in the exceptions, except the form of the offered bond for costs, which has no business in the bill of exceptions, as this court would presume that the plaintiff offered to file a good bond. See, on this subject, Law vs. Merrils, 6 Wend. 268; Shepherd vs. While, 3 Cowen 33; Midberry vs. Collins, 9 J. R. 345; People vs. Dalton, 15 Wend. 531; 2 Sumn. 106.

    The bill of exceptions is therefore entirely out of the record.
    Let us examine then, first, whether the original bond for costs was a good one, for if it was the suit was wrongly dismissed. This suit was commenced after the Revised Statutes were in force, by which it is provided that in every case where the plaintiff, or person for whose use the action is brought, shall, before he institutes such suit, file in the Clerk’s office the obligation of some responsible person, being a resident of this State, by which he shall acknowledge himself bound to pay all costs which may accrue on said action. Rev. Stat. 201, sec. 1.

    The condition of the obligation originally filed in this case was, that if Owings should maintain his action, or if judgment should be given against him, he should well and truly pay all costs of suit which he should be liable to pay, then to be void. Now it is perfectly manifest that this is no obligation given by a person resident in the State, by which he acknowledges himself bound to pay all the costs that may accrue in the suit. Nor does it even bind ‘the actual plaintiff, the person for whose use the suit is brought, to pay the costs. It is the bond of Samuel Moore alone, because it is signed “ Edward Farrelly, [seal] by Henry Cheatham,” and if it were not, the bond itself shows that Farrelly was a non-resident. Moore, therefore, gave no bond acknowledging himself to be bound to pay all costs which might accrue.
    We contend, therefore, that the bond was insufficient. But the plaintiff in error contends that the, motion filed by Finley “ was a void, vain act, for at that time he had not been made a party to the suit, and had no right to make any motion in reference thereto, before he had been made a party, and his name substituted on the record, by order of the court, as defendant therein.”
    To sustain this novel position, the counsel refer to page 59 of the Revised Statutes, section 10, and contend that the filing of the motion by Farrelly did not make him a party to the suit. It is difficult to perceive in what manner these conclusions are drawn from that section. It merely provides that an heir, administrator, <fcc., of a sole party defendant, may be substituted as defendant, on the application of the plaintiff, and by order of the court. Section 16 provides that such order shall be made, either on the voluntary appearance of the party, or by order of court, after he has been served with a scire facias. The scire facias is to correspond as nearly as practicable with the original writ, and be executed and returned in the same manner.
    This scire facias being served and returned, Finley appears and shows cause why the suit should not proceed against him, by moving to dismiss it. If he had been made a party, his motion to dismiss would have been too late; and it might as well have been said that if the suit had been in the first instance commenced against him as administrator, he could not have moved to dismiss for want of a bond for costs, until after appearance.
    Let us examine, in the second place, the decision of the court refusing to permit him to file a new bond. The plaintiff’s brief says that on the fourth day of the term the new and sufficient bond for costs was filed. It says also that on the 6th day of the term the court ordered the new bond to be stricken from the files. Both these are mistakes. The new bond never was filed, by leave of the court, so as to become a part of the record. It was put among the papers, but the bill of exceptions itself shows that the court refused to permit it to be filed. Nor did the court ever decide on the motion to strike it from the files.
    After the motion to dismiss was filed, the court had no discretion. What says the statute? “if any such action shall be commenced without filing such obligation, the Circuit Court shall, on motion, dismiss the same, and the attorney for the plaintiff shall be ruled to pay the costs accruing thereon.” Rev. Stat. ch. Costs, sec. 2. This language is peremptory, and admits of no double construction. The filing of such a bond is made by it a condition precedent to the issuing of the writ, and unless the Circuit Courts undertake to legislate, they must obey the mandate of the law. Decisions iri other States, upon other statutes, have no bearing upon this subject, which must be governed simply by the language of the law.
    This court has said that the objection is matter in abatement, under the Revised Statutes, and that the motion must be made in the same time as a plea in abatement, and is governed bj the same rules. If it is, then, when the motion was made, it precluded the possibility of subsequently filing a new bond, according to the decision in Means vs. Cromwell.

    But again the novel position is assumed that “ to file a motion, is not to make a motion.” If filing a motion, and entering such filing upon the record, is not making a motion, what is making a motion? Is filing a plea, and noting it on the record, pleading to the action?
    • Further the record shows that until three or four days after the suit was dismissed, there was no valid service of the original writ upon the record, and therefore the second motion of the defendant, to dismiss for want of service of the writ on Oakley, ought to have prevailed.
    There being no showing on the record that Oakley had ever been summoned, certainly his administrator could not be compelled to answer on scire facias, and the suit ought, in any event, to have been dismissed.
   Dickinson, Judge,

delivered the opinion of the court:

The first section of the act, (Rev. Stat. 211,) relating to costs, provides, that “ when the plaintiff or person, for whose use the action is commenced, shall not be a resident of the State, the plaintiff or person, for whose use the action is about to be commenced, shall, before he institutes such suit, file, in the office of the Cleric of the Circuit Court in which it is to be commenced, the obligation of some responsible person, being a resident of the State, by whom he shall acknowledge himself bound to pay all costs which may accrue in such action;” and the second section declares, “ that if such action shall be commenced, without filing such obligation, the Circuit Court shall, on motion, dismiss-the same, and the attorney for the plaintiff shall pay the costs accruing thereon.” It is admitted upon the record that both Owings ond Farrelly were non-residents at the time this suit was instituted. The bond filed was conditioned, that if the said Owings “ shall maintain his said action, or if judgment shall be given against him, he shall well and truly pay all costs of suit, which he shall be liable to pay,” then to be void. -The Circuit Court correctly decided that the condition did not conform to the statute, inasmuch as the parties were not bound to pay “all costs which may accrue in the said action.” There is a material difference between the condition of the bond required by the statute, and the one filed. By the former, if judgment was obtained by the plaintiff, and the costs could not be made of the defendant, he and his security would be bound for it. In the latter, in the event that “he could not maintain his action, or that judgment was given against him.”

One object of the Legislature in requiring the bond to be conditioned for the payment of “ all costs which may accrue,” is to secure the officers of the court; for though judgment might be against the defendant, yet if the costs could not be made out of him, such a bond as the plaintiff filed would, by no means, fulfil that object. There can be no objection as to the time at which the motion was made, for, previous thereto, a writ of scire facias had been issued, and executed on the administrator of Oakley, and a motion made by the plaintiff’s counsel to revive the suit against him.'

The bill of exceptions does not, in the present instance, appear to have been tendered at the trial; nor were the exceptions taken and reserved while the matter was passing in the court; but to have been drawn up and signed several days after the case had actually been decided, and when there was no suit properly before the court. It cannot, therefore, be considered as forming any part of the record, and must in accordance with the principles laid down in case of Lyon vs. Evans, 1 Ark. 359, be entirely disregarded. The judgment of the Circuit Court, must, therefore, be affirmed with costs.


author: Lacy, Judge,

text:
    James Danley against Robbins’ Heirs.
    Ebkor to Pulaski Circuit Court.

    Moving for a new trial is a waiver and abandonment of all bills of exceptions taken during the trial.
    Upon a motion for a new trial the party may set forth the points on which he relies, and incorporate all the evidence adduced on the trial. He stands then in the same position as if he had taken no exceptions.
    But if he moves for a new trial, and fails on that motion to set out the evidence, he abandons his bill of exceptions taken during the trial incorporating the evidence; and nothing is left on the record but simply a motion for a new trial, and a refusal.
    Absent, Ringo, Chief Justice.

    In this case several bills of exceptions were taken at the trial by the plaintiff in error. He subsequently moved for a new trial, without incorporating the evidence, otherwise than by his bill of exceptions. The case was argued here at full length, by Pike for the plaintiff, and Tkapnall & Cocke, Ashley & Watkins, contra.

    It is unnecesssarv to refer to the argument, except so far as it relates to the point on which the case was decided.
    Watkins, for defendant in error:
    We contend that the motion for a new trial is virtually a waiver of the exceptions. “If any defect of judgment happen from causes wholly extrinsic, arising from matters foreign to, or dehors the record,' the only remedy the party injured by it has, is by motion for a new trial. * But if any error in the proceedings appear upon the face of the record, the party injured by it has his remedy by demurrer, motion in arrest of judgment, or writ of error, according to circumstances.” 15 Petersdorff Ab. 170, note. Thus showing the distinction between what is ground for a new trial, and for arrest of judgment, or writ of error. u Where a bill of exceptions has been tendered, the court will not grant a motion for a new trial unless the bill of exceptions be abandoned.” 2 Chit. Rep. 272. “A party shall not move for a new trial after motion in arrest of judgment.”
      Turbervill vs. Stamp, 2 Salk. 647. Where there is a bill of exceptions a new trial shall not be moved for on the same point of law as is-contained in the bill. Fabrigcf vs. Moystin, 2 Black, 929; Cowper,-151; Lofft, 262. A new trial will not be granted where the party moving for it has a right to review, unless he will relinquish that right. 1 Mass. 237. After tendering a bill of exceptions, at the trial, a motion was made for a new trial. But the court said you must make your election either to abandon the bill of exceptions or this motion. This motion cannot be granted unless the bill of exceptions be abandoned. Hanger vs. Mortryn, 1 Black. 929. So on the other hand,where the defendant, pending his motion for a new trial, served the plaintiff with a.copy of an allowance of a writ of error. The court held this to be an admission of the fact of the case, and refused to’ grant a new trial. 2 Tidd. 821.
   Lacy, Judge,

delivered the opinion of the court:

The defendant below took several exceptions to the opinion of' the court during the progress of the case, and afterwards moved for a new trial. The question to be determined is, is the plaintiff entitled to a motion for a new trial while his exceptions are in ? This point has been expressly ruled by a series of adjudicated cases of too high weight and authority to be now questioned and disturbed. The policy and necessity of the rule is obvious, and rests for its support upon one of the most important and salutary principles in the whole science of pleading. In Cunningham et al. vs. Bell, et al., Judge Story says, « a motion for a new trial cannot be entertained according to the rules of practice unless the bill of exceptions is waived.” A party has election either to proceed upon error, whether the. points were correctly ruled at the trial, or waiving that remedy to stand upon his motion for a new trial. He cannot be permitted to proceed both ways. The ground for granting a new trial is that the party is without any other remedy. 5 Mason, 173; Corlies et al. vs. Cummins, 5 Cowen, 415; 1 J. R. 192, 5.

He who objects, and afterwards pleads over, cannot in general take - any thing by his objection. It would be highly unjust to permit him to state his case upon a question of law, and when that has been- adjudicated against him, to plead over, and take advantage of the error, if any there be, that he has expressly waived and abandoned. The party is always presumed to know the strength and merits of his own case, and to place it upon the most advantageous ground, whether in defence or in prosecution: This is a universal principle; and by abandoning any position which he may take, and afterwards resorting to another, he waives whatever advantage he might have had upon his first objection. If this was not the case there would be great uncertainty and confusion introduced in the science of pleading. This principle is strictly applicable to the case now before us. The party excepting has a right to stand upon his exceptions and have the questions brought up by error or appeal, if he thinks proper so to do. Or he may move for a new tria!, and place himself upon the merits of his motion, and if that is adjudicated against him, he is entitled to the same remedy to correct the decision below. But so long as his exceptions .are in, he is not entitled to a motion for a new trial. He may select either mode of proceeding, but when he has made his selection he is bound by it. The motion for a new trial is an abandonment of the exceptions, and that this is the correct rule there can be no question. To remove all doubt, however, it would be well to receive a waiver upon record before the motion is entertained.

The plaintiff, upon his motion for a new trial, may set forth the points upon which he relies, and also incorporate all the evidence adduced upon the trial. He stands then in the same position as if he had previously taken no exceptions. The application of this rule determines the point in controversy in the case before us. By abandoning his exceptions and failing to set out the evidence, there is nothing left in the record but simply a motion for a new trial and its refusal. The legal presumption therefore is that the court below rightfully overruled the motion for a new trial.

The judgment below must therefore be affirmed with costs.