author: Mr. Chief Justice English

text:
    Daniel vs. Guy et al.
    Iu a suit for freedom, where the leading matter in controversy was, whether the plaintiffs belonged to the white or negro race, and they were introduced for the inspection of the jury, it was not improper for the court to permit them to pull off their shoes and stockings and exhibit their bare feet to the jury, in order that they might observe their formation, it being proven by competent witnesses, and attested by experience, that the formation of the negro foot is peculiar, etc.
    Where the plaintiffs in a suit for freedom, are hired out by the sheriff, pending the. suit, a surety in the bond of the.hirer, taken under section 8, eh. 15, Gould's Digest, is not incompetent to serve as a juror on the trial.
    As a general rule, it is too late, after verdict, to except to the qualification of a juror.
    Where a new trial has been refused by the Circuit Court, this court will not reverse the judgment on the ground that the verdict is against the preponderance of the evidence, it being, as often held, the province of the jury to pass upon the weight of the evidence.

      Ajypeal from Drew Circuit Court.

    Hon. J. Gould, special judge.
    Tell, for the appellant.
    Garland & KaNdolph, lor appellees.
   Mr. Chief Justice English

delivered the opinion of the court.

This was a suit for freedom, by Abby Guy and her children, against Win. Daniel.

The case has been here before. See Daniel vs. Guy et al., 19 Ark., 121, where the facts are fully stated.

On the remanding of the cause to the Ashley Circuit Court, the venire was changed to Drew, on the petition of Daniel, where the issues were submitted to a jury, verdict and judgment of liberation in favor of the plaintiffs, motion for a new trial overruled, and appeal by defendant.

1. During the trial, the plaintiffs were brought into court for inspection, and were permitted to pull off their shoes and stockings, and exhibit their feet to the jury, against the objection of the defendant.

The counsel for Daniel does not question the propriety of introducing the plaintiffs for personal inspection by the jury, but argues, with much warmth of expression, that the court committed a gross error in permitting them to take off their shoes and stockings, and exhibit their bare feet for the, observation of the jury.

It is manifest, from the testimony introduced upon the trial, that the leading point of controversy in the cause was, whether the plaintiffs belonged to the white or negro race.

Physicians, whose testimony was introduced, and who professed to be acquainted with physiology, and the distinguishing features of the races, state that the color, hair, feet, nose and form of the scull and bones, furnish means of distinguishing negro blood or descent.

The experience of every intelligent observer of the race,' whether in the instances of mixed or unmixed negro blood, will doubtless attest the truth of the testimony of the professional witnesses. .No one, who is familiar with the peculiar formation of the negro foot, can doubt, but that an inspection of that member would ordinarily afford some indication of the race— though the evidence of race, thus afforded, would, of course, - be stronger or weaker, according to the extent of the admixture of the blood.

2. The instructions given by the court below to the jury, at the instance of the plaintiffs, and of its own motion, are substantially in accordance with the principles of law settled by this court when the case was here before.

The instructions asked for the defendant were given, as drafted by his counsel, with but one immaterial alteration by the court.

3. One of the grounds of the motion for a new trial, as stated in the motion, is, that the court permitted James S. Grubbs, a security in the bond executed under section 8, chapter 15, of the Digest, to be a juror on the trial, against the objection of the defendant.

The bill of exceptions states, that when Grubbs was called as a juror, the "defendant objected to his being sworn, Because he was one of the obligors in the bond for the appearance and hire of the plaintiffs, but the court overruled the objection, and permitted Grubbs to be sworn as a juror.

The bond referred to is not copied in the bill of exceptions, nor does it appear in any part of the record. For the benefit of the appellant, however, it may be supposed that the bond was taken by the sheriff under the 8th section of ch. 75, of Gould's Digest, and conditioned as therein prescribed.

Upon this supposition, it must be assumed that the court had ordered the sheriff to take possession of the plaintiffs, and hire them out during the pendency of the suit; that the sheriff had hired them to some person, and taken his bond, payable to the state, with Grubbs as surety., in some penal sum, conditioned that the hirer would permit the plaintiffs, during the pendency of the suit, to have reasonable' liberty of attending their counsel and the court, that they should not be removed out of the jurisdiction of the court; that they should not be subjected to any severity on account of their application for freedom; that the hirer would pay the hire agreed on, to the sheriff, and return the plaintiffs at the expiration of the time for which they were hired, or as soon as the action should be determined.

By our statutes, every petit juror must be a free white male citizen of the state, above the age of twenty-one years, a resident of the county, and not otherwise disqualified. Gould's Dig. ch. 98, sec. 22. No person can serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity or affinity, Ib. sec. 24. No witness or person summoned as a witness in any civil cause, and no person who has formed and expressed an opinion concerning the matter in controversy in any such suit, which may influence the judgment of such person, can be sworn in the same cause as a juror, ib. ch. 133, sec. 101.

By the common law, a person who has any interest in the cause is disqualified to serve as a juror. 3 Stephen's Com. 600; 3 Tuck. Black. 363; Davis vs. Allen, 11 Pick., 467. Mr. Bouvier says, one who has the smallest interest in the matter to be tried may be challenged for this cause. 3 Bouv. Inst. 331.

It is not perceived that Grubbs had any interest whatever in the suit of the plaintiffs for freedom, or that his liability as a surety in the bond of the hirer was in any way dependent or contingent upon the result of the suit. The hire was payable in any event. If the plaintiffs succeeded in the suit they were entitled, to it.; if they failed, the defendant was entitled to the hire. So the hirer was bound to return the plaintiffs to the sheriff at the expiration of the term of- the hiring, or the termination of the suit, whether the plaintiffs were successful, or failed in the action — to be liberated by the sheriff in the one case, and to be delivered by him to the defendant in the other. If the hirer had violated any of the other conditions of the bond, the liability of the surety to an action therefor, would not be lessened by the liberation of the plaintiffs; and there was therefore no motive arising from personal interest to induce him to act with partiality as a juror.

4. After the trial was over, the defendant filed the affidavit of Grubbs, stating that he had formed and expressed an opinion in the case from rumor; and that he had stated that he did not think that Daniel could ever get a verdict against the plaintiffs, or something to that effect; but that he had no idea at the time that he would ever be sworn as a juror in the case.

After the court decided that Grubbs was not disqualified to serve as a juror, by reason of his being the surety in the bond above referred to, it does not appear that he was challenged for any other cause, or that he was asked whether he had formed or expressed any opinion about the matter in. controversy, or stood indifferent between the parties ; nor does it appear that the appellant was not informed until after the trial, that he had formed and expressed an opinion in the case. As a general rule, it is too late, after verdict, to except to the qualification of a juror. Meyer vs. State, 19 Ark., 162.

The plaintiff's also filed a counter affidavit of Grubbs, in which he stated that any opinion which he may have formed in the case before the trial, was founded entirely on rumor, and was not such an opinion as would have prevented him from finding a verdict according to the evidence.

5. It is submitted for the appellant, that there was a total want of evidence to support the verdict. In.this, we cannot concur with the counsel, though it is possible that the jury found against the preponderance of evidence, through reluctance to sanction the enslaving of persons, who, to all appearance, wore of the white race, and, for many years before suit, had acted as free persons and been treated as such.

The remarks made by us upon the evidence, when the case was here before, (19 Ark., p. 137,) are in point; and we cannot, without departing from a rule established by numerous cases, award a new trial because of an impression on our part that the verdict may have been contrary to the weight of evidence.

The judgment must be affirmed.

Mr. Justice OomptoN did not sit in this case.


source: Caselaw Access Project

license: Public Domain

text:
    Hioks et al. vs. Wyatt et al.
    H. & W. were mercantile partners. H. sold bis interest in the firm effects to T., and W. & T., who became partners in a new firm, executed a covenant to H. to pay the debts of the old firm of H. & "W., and save him harmless on ne. count thereof. If they failed to do so, H. had a remedy against them on the covenant of indemnity; but creditors of the firm of H. & W. had no right of action against the new firm of W. & T.,"in consequence of their covonant to H., for want of privity of contract.

      Appeal from Columbia Circuit Court.

    Hon. Len B. Gbebk, Circuit Judge.

      G-allagheR, for appellants.
   Mr. Chief Justice English

delivered the opinion of the court.

Hicks, Arrington & Co. sued Wyatt & Thompson, before a justice of the peace of Columbia county, upon an account for two months services of Thomas J. Bolger, in the year 1857, at $50 per month; and obtained judgment for $66 00. Wyatt & Thompson appealed to the Circuit Court, where the case was tried anew, and verdict and judgment in their favor, and Hicks, Arrington & Co. appealed to this court.

Bolger, the principal witness, on his examination in chief, stated, in substance, that the firm of Hicks, Arrington & Co., was composed of James A. Hicks, Robt. E. Arrington and James Yaughan, and that they were engaged in the mercantile business in Magnolia, Columbia county. That he was employed in March, 1857, to serve the firm as a clerk, for twelve months, at $400 for the year, or $33 33-J per month. That about the 1st of November, 1857, Arrington and Yaughan sold their interest in the firm to Wm. Wyatt, and the new firm took the style of Hicks & Wyatt.

Hicks, who was a member of the firm of Hicks & Wyatt, and also a member of the firm of Hicks, Arrington & Co., told witness to remain with the firm of Hicks & Wyatt, and do business for them, the same as he had been doing for Hicks, Arrington & Co., and at the same time, to attend to the books and to the winding up of the business of the firm of Hicks, Arrington & Co.

Witness continued-in the establishment of Hicks & Wyatt, from that time until the 1st of January, 1858, attending to their business, and also the books of Hicks, Arrington & Co. For the first six weeks after Wyatt bought out Arrington and Vaughan, he attended to the business of Hicks & Wyatt; during the other two weeks, he was principally employed on the books of Hicks, Arrington & Co., but was often in the store of Hicks & Wyatt, selling goods for them, and frequently at night drew off, from the memorandum, the sales of the day on to the day book.

About the first of January, 1858, Hicks instructed witness to credit himself on tbe books of Hicks, Arrington & Co. for the services he had rendered the firms of Hicks, Arrington & Co., and Hicks and Wyatt, from the time Arrington & Vaughan sold out to Wyatt, up to 1st January, 1858; Hicks stating to witness at the same time that the firm of Hicks & Wyatt would account to the firm of Hicks, Arrington & Co., for the amount of such services. Witness did so accordingly, and received a credit on the books of Hicks, Arrington & Co., for the sum of $66 66, or at the rate of $33 33 per month; which was all the payment ho ever received for his services to the firms of Hicks & Wyatt and Iiicks, Arrington & Co., from the time of the sale by Arrington & Vaughan to Wyatt, up to the first of January, 1858.

Hicks sold his interest in the firm of Hicks & Wyatt to Samuel J. Thompson, some time in the fall of the year, 1858, and went out of the firm, and Wm. Wyatt and Samuel J. Thompson continued the business under the style of Wyatt & Thompson. Neither the firm of Hicks & Wyatt nor the firm of Wyatt & Thompson'ever paid witness any thing for his services during the year, 1857.

Hicks, Arrington & Co. also introduced in evidence a sealed instrument reciting a sale by Hicks, to Wyatt & Thompson, of his interest in the assets of the firm of Hicks & Wyatt, by which Wyatt & Thompson covenanted with Hicks as follows: “ We will pay or cause to be paid all outstanding debts of the aforesaid firm of Hicks & Wyatt, and that the said James A. Hicks shall be protected from the payment of any, or any part of said debts,” etc.

This instrument bears date 4th October, 1858.

Hicks, Arrington & Co. insist that on the 1st J an., 1858, the firm of Hicks & Wyatt became indebted to them -in the sum of $66 66, this being the amount with which Bolger was credited on the books of Hicks, Arrington & Co., on that day,, for services rendered by him for the firm of Hicks & Wyatt, in the months of November and December, 1857, as clerk, and that by virtue of the covenant above referred to, the firm of Wyatt & Thompson became liable to pay that debt, as well as all other debts of the firm of Hicks & Wyatt. But if this be conceded to be true, it does not follow that the firm of Hicks, Arrington & Co. had the right of action for the $66 66, or any part , of it, against the firm of Wyatt & Thompson. There was no privity of contract between these two firms. Wyatt & Thompson covenanted with Hicks to pay all of the debts of the firm of Hicks & Wyatt, and to save him harmless on account of said debts ; and if they failed to pay the debt in question, Hicks had his remedy against them for breach of their covenant; but" Hicks, Arrington & Co., who were not parties to the covenant, had no right of action against the firm of Wyatt & Thompson. Their remedy was against the firm of Hicks & Wyatt, and Hicks being a member of both firms, the remedy was in equity, and not at law.

Hicks, Arrington & Co. having failed to show any right of action against Wyatt & Thompson, it is unnecessary to state the evidence introduced in the defence, or to decide the questions growing out of it.

The judgment must be affirmed.


author: Mr. Justice Compton

text:
    Latta vs. Dodd.
    If on appeal from the judgment of a justice of the peace, the appellee recovers any amount, though less than the amount appealed from, the appellant must pay the cost, unless he shall have tendered as much or more than the amount recovered in the Circuit Court — the case of Iliahs vs. Maness, 19 Arle., 707, overruled as to this point.

      Appeal from Washington Circuit Coiwt.

    Hon. J. M. Wilson, Circuit Judge.
    Thomason for appellant.
   Mr. Justice Compton

delivered the opinion of the court.

Latta recovered judgment against Dodd, before a justice of the peace, for $84 61. On appeal to the Circuit Court, prosecuted by Dodd, and trial de novo, Latta recovered judgment for $20 40 only; and the court, thereupon, rendered judgment against Latta for the costs in the Circuit Court.

The only question is, whether the court erred in adjudging costs against Latta.

The ruling of the court below was in accordance with the decision in Hicks vs. Maness, 19 Ark., 707. But we concur with the counsel for Latta, that the decision in that case is erroneous, and ought not to be adhered to. The statute provides that, “ when an appeal shall be taken from the judgment of the Probate Court, or a justice of the peace, in favor of the appellee, costs shall be adjudged in the following cases: first, if, on the trial de novo, the appellee shall recover as much or more than the amount of the judgment, or, if judgment be affirmed, the appellant shall pay all the costs; second, if the judgment in the Circuit Court shall be in favor of the appellant, the appellee shall [lay the costs of both-courts; third, if the appellant shall, at any time before his appeal is perfected, tender, and offer to pay to the appellee, any portion of the judgment, which shall not be accepted in satisfaction, and the appellee shall not, in the appellate court, recover more than the amount so tendered and refused, -he shall pay the costs of the appellate court; fourth, if no such tender shall have been made, and the appellee recover any sum in the appellate court, or if, after such tender and refusal, the appellee shall recover more than the amount tendered, the appellant shall pay the costs in both courts.” Gould's Dig. ch. 40, sec. 26.

Now, if the first clause in the section above quoted, stood alone, the decision in Hicks vs. Maness might be sustained; because, from the language there employed, it might be implied that if the appellee recovered less than the amount of the j udgment appealed from, the appellant should not pay all the costs ; but then, this implication is repugnant to, and cannot prevail over the spirit as well as the express letter of the third and fourth clauses of the same section. Nor is this construction of the statute likely to work injustice to the appellant in such cases -; for, by tendering to the appellee, according to the third clause of the section, the amount really due and recoverable, he can avoid the payment of costs in the appellate court.

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

By English, C. J. — It is frankly to be confessed that Bro. Hanly and myself fell into an error in Hicks vs. Maness, by not carefully construing the first clause of the statute in connection with the others.


text:
    Gulledge vs. Howard and wife.
    A count upon a written instrument — being a receipt for money to be paid over for particular purposes — for the recovery of damages arising from a failure to pay over the money, is subject to the limitation of five yoars, not three years.
    This court will not enquire whether the Circuit Court rightly sustained a demurrer to a plea, where the defendant might have given, and did give in evidence, under another plea, the same facts set up in the plea demurred to.
    The liability of a mandatory, or bailee without reward, for the loss of the goods entrusted to him, depends on whether he was guilty of gross negligence.
    The finding of the court, sitting as a jury, will not be disturbed, unless there was a total want of evidence to support it.

      Appeal from Drew Circuit Cou/rt.

    Hon. John C. Murray, Circuit Judge.
    Harrison, for tbe appellant.
    The action was not founded on the receipt, but on the implied contract to refund the money: and the period of limitation was three years. Sec. 10, ch. 106, Dig. The receipt is not a contract, but only evidence of one. Beébe et al, vs. B. E. Bank, 4 Ar7c. 127; 4 T. B. 151; 2 Id. Baym. 758.
    The loss of the money was a good defence to the action, unless lost by the defendant’s negligence: and if so, that fact should have been put in issue by replication. Story on Bail, secs. 212, 213,278, 339,410; 3 East. B. 192; Ch. PI. 213; Gould’s PI. 14.
    Winter for the appellees.
    There was no total want of evidence to sustain the material allegations in the declaration, and therefore the finding of the court will not be disturbed. 2 Ark. 360, 392. 4 Ark. 312 ; 15 Ark. 403.
    The defendant was bound to keep and appropriate the money with due care and diligence; and if it was lost he was bound for it, unless it clearly appeared that he was free from fault or negligence. Story on Bail. 173, 175; Jones on Bail. 1046; 11 Wend. 25.
    The defendant was not prejudiced by the demurrer to his 3d plea being sustained. 1 JEng. 536.
   Mr. Justice Compton

delivered the opinion of the court.

Henry B. Howard and wife (formerly Mrs. Nelson,) brought an action of assumpsit against Thomas W. Gulledge, founded on the following instrument:

“ Received of Mrs. F. Nelson, two hundred dollars, to be applied to entering land in her name, in Drew- county, Arkansas, and ten dollars to give to ¥m. J. Carter, of Drew county, Arkansas, and ten 75-100 dollars to be given to J. B. Erwin, of Drew county, Arkansas. January 1st, 1855.”

(Signed.),THOMAS GULLEDGE.

The defendant pleaded 1st: non asswnpsit; 2d, that the cause of action did not accrue within three years next before the commencement of the suit; and 3d, that he casually lost the money, etc. The second and third pleas were held bad on demurrer; issue >was joined to the first plea, and the cause being submitted to the court, sitting as a jury, the finding was for the plaintiff, and judgment accordingly. The defendant then moved for a new trial, which was overruled, and he appealed.

In sustaining the demurrer to the second plea, the court did not err. The first count in the declaration, though inartistically drawn, was designed to be, and may be treated as founded on the written instrument for the recovery of damages arising from a failure on the part of the defendant, to appropriate the money as by his undertaking he had agreed to do; consequently, the period of limitátion, was five years. Gould’s Dig., ch. 106, sec. 15. Whether the demurrer was correctly sustained to the third plea, it is not material to enquire ; because, the matter alleged in this plea being admissible under the plea of non-assumpsit, and having been given in evidence under that plea, it cannot be said that the defendant was prejudiced by the ruling of the court. Pelham vs. Page, 1 Eng., 535.

On the trial, the defendant proved the loss of the money and the manner of its loss, and being a mandatory or bailee without .reward, as shown by. the proof,uhis liability depended on whether he was guilty of gross negligence. This was a question for the jury; (Doorman vs. Jenkins, 2 Adol. & Ell. 256;) and the court sitting as a jury, by consent, having found for the plaintiff, we do not feel authorized to disturb the finding, there being no total want qf evidence to support it.

Let the judgment be affirmed.


author: Hon. Tiiomas Johnson, special Judge,

text:
    Lyle vs. Jackson County.
    A contract for the building of a house, which is so uncertain and indefinite in its terms and stipulations as to be incapable of performance, imposes no obligation upon the contractor to undertake it.

      Appeal from Independence Circuit Court.

    II011. "William C. Bevens, Circuit Judge.
    Anderson, for the appellant.
    Hempstead, for the appellee.
   Hon. Tiiomas Johnson, special Judge,

delivered the opinion of the court.

The State of Arkansas instituted her action of debt for the use and benefit of Jackson county, in the Circuit Court of said county, against Andrew Lyle and Micajah B. McCoy, and the cause was afterwards removed by a change of venue. The suit was based upon a bond executed by Lyle and McCoy to the state, with the penalty of thirty-seven hundred dollars, and conditioned that if Lyle would build a county jail in the town of Jacksonport, by the first day of January, 1856, in every particular similar to the specifications and plan annexed to the 'bond, unless the county commissioner and Lyle should see fit to alter or make any change, so that it should not exceed the amount of work so changed, and that if he would build said jail in a good, substantial and workmanlike manner, and deliver up the keys to the commissioner by the first day of January, 1856, he should receive the sum of eighteen hundred and fifty dollars, and the bond to be void, otherwise to remain in full force, etc.

This is believed to be the substance of the contract. The plan and specifications set out in the declaration, and which are admitted to be correct by the demurrer, are as follows, to-wit: Brick foundation, two feet thick, two feet high, two cross walls; timbers ten inches thick, or wide as. they will face for floors; two pens ten inch square timber, nine feet high covered same as floor, wall brick nine inches to enclose jail rooms, nine feet high, twelve by fifteen feet square, air ventilators in foundation, one north, one south, one east and one west, door of one cell two and a half inches oak plank, doubled and spiked with five and a half inch wrought nails clenched. Room covered, top, bottom and sides with oak plank two and a half inches, well spiked on; other room same, with addition of lining with sheet iron and covered with second tier with oak plank spiked through irons, etc., to wall, door of outside of other cell to be same as first, and an inside door of iron bars, three-fourths of an inch thick, crossed and riveted, spaces two and a half apart, hung with good wrought iron hinges, and to fasten to facing with two hasps and staples, and two pad locks, (good) outside doors to fasten with the most approved jail locks, indoors one by two feet and crossed with irons one and a half inches square, spaces two and a half inches apart, wall twelve inches thick of brick, to continue twenty-six feet to corner, and on to front and on to jail passage left next jail eight feet wdde, with strong door in rear and partition;»passage to be sealed up next jail with inch plank, other side lathed and plastered inside of jailor’s house, partition and rooms lathed and plastered, with chimney and two fire places, and door in same, door in front, door in rear and door in partition, two windows in front fifteen panes ten and twelve glass, rear same, all tobe covered with good cypress shingles.

The plaintiff alleges in his declaratiou that the specifications and plans are not shown, because the same are lost, and avers that there was no alteration made in the specifications and plan by the commissioner and said Lyle, and further that the county of Jackson hath at all times been ready to pay to Lyle the said sum of eighteen hundred andfifty-dollars, at such time as he should perform the condition of the bond, and further, that he had wholly failed to keep and perform the .condition of his bond, but had broken the same, etc.

The leading objection to the declaration is, that it is entirely too uncertain to support a judgment.

The contract entered into by the parties is incorporated into the declaration, and forms a part of it, and if it is so utterly uncertain and unintelligible as not to be reducible to a certainty, it follows, as a matter of course, that it cannot become the subject of judicial cognizance-

The law requires that a declaration shall be certain to a certain intent in general, and means what upon a fair and reasonable construction may be called certain, without, recurring to possible facts, which do not appear. See 1st Chit. P,. 238. In Plowden's Commentaries, Fo. 140, 290, it is said “ That if any persons are agreed upon a thing, and words are expressed or written, to make the agreement, although they are not apt and usual words, yet if they have substance in them tending to the effect proposed, the law will take them to be of the same effect as usual words; for the law always regards the intention of the ■ parties, and will apply the words to that which, in common presumption, may be given to be their intent. See Comyn on Contracts, page 23. The law then does not require any peculiar form and order of words in agreements, but regards only <# the intention of the parties in whatever words such intention may be expressed, provided they have substance in them and tend to the effect proposed.

We infer from the words employed in the contract under consideration, that the effect proposed was the building of a jail and jailor’s house for the county of Jackson. .The question to be decided then, is not whether apt and usual words have been adopted to make the agreement, but whether any words of substance appear, and such as tend to the effect proposed. There is certainly a great want of certainty, if not an utter repugnancjr in the declaration. According to the condition of the bond Lyle was only required to build a jail, and in every particular similar to the specifications and plans thereto annexed.

The specifications as exhibited, show that not only a jail, but also a jailor’s house was to be built, but we think it would be impossible to make a house of any known dimensions out of all the specifications which are supposed to refer to the jailor’s house.

They are as follows: Wall twelve inches thick, of brick, to continue twenty-six feet to corner, and on to front, and on to jail passage left, next jail eight feet wide, with strong door in rear, and partition; passage to be ceiled up next jail with inch plank, other side lathed and plastered middle of jailor’s house, partition and'rooms lathed and plastered with chimney and two fire places and door in same, door in front, door inside and door in partition, two windows in front, fifteen panes ten and twelve glass, rear same, all to be covered' with good cypress shingles. The wall was to be twelve inches thick and to continue twenty-six feet to corner ancPon to front and on to jail passage left next jail eight feet wide, with strong door in rear and partition. It is to be continued twenty-six feet to corner, but where the starting point is, whether in the middle or at another comer, or from some other unknown point, it is impossible to determine. "We are left equally in the dark in respect to the width and height of the wall. The passage is to be ceiled up next to the jail with inch plank, other side lathed and plastered. Here wo learn there is to be a passage, but there is no intimation as to height, length or breadth of the rooms on either side of it. The middle of the jailor’s house, partition anfrooms, are to be lathed and plastered and there is to be a chimney and two fire places.

No data is given by which the middle of the jailor’s house can be ascertained, nor is it stated where the chimney and fire places are to be located.

It is perfectly manifest that Lyle could never have constructed such a building from these specifications as the commissioner would have been bound to accept. The contract, so far as it relates to the jailor’s house, being so uncertain and indefinite as to be incapable of performance, it follows that Lyle was under no obligation to undertake it, The specifications in reference to the jail are exceedingly vague and uncertain, yet we think that they are such as may be reduced to a certainty, and that without a violation of the ordinary rules of interpretation. The foundation, is to be of brick,'two feet thick, and two feet two inches high, and there were tobe two cross walls. True it is, that neither the extent of the cross walls, nor the materials of which they were to be composed, were expressly stated, but when taken in connection with what is said in relation to the outside wall, the intention is believed to be sufficiently manifest. The cross walls spoken of were designed in part to support the floor, and doubtless were to be of the same material as the one that was designed to enclose the two pens of square timber. True it is, that the extent of the wall is not specified, yet it is easily collected from tRe dimensions given to the jail rooms, which it was intended to surround. We therefore'think that although the specifications relating to the jail are not as definite and specific as could have been desired, yet they were sufficiently so to be intelligible to a man of ordinary capacity, and that consequently, if the contract had been confined to it, Lyle would have been left without any legal excuse for failing to perform it. But when it is considered that the contract embraced a jailor’s house as well as a jail, and that the whole taken together constitute an entirety, we are clearly of opinion that the demurrer was well taken and that it should have prevailed. The judgment of the court below will therefore be reversed and the cause remanded with instructions to proceed in accordance with the opinion herein delivered.

Mr. Justice Fairchild did not sit in this case'.


author: Mr. Justice Fairchild

text:
    Randolph et al. vs. Thomas.
    The offering of the debtor’s land in small quantities at an execution sale, where the debtor had expressed no desire as to the size of the parcels to be offered, the inadequacy of the prices paid, and the accidental detention, from the sale, of a man with whom the execution debtor had made arrangements to pay the executions, are not sufficient grounds to set aside the sales, in the absence of any charge or suspicion of fraud on the part of the sheriff in selling the property, or of the purchasers in buying it.

      Appeal from Deska Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Harding and Weatherford, for the appellants.
    Hutchinson, for the appellee.
   Mr. Justice Fairchild

delivered the opinion of the court.

Several executions had been issued from the office of the clerk oi the circuit court of Desha county against Bryant W. Thomas, that had bien levied on wild lands and town property, and upon which sales were advertised to take place on Monday? the 26th of November, 1860, the first day of the term of the circuit court. In pursuance with the previous legal requisites, the property was exposed to sale, and was sold in parcels, and for small sums, to different persons. At the same term of the court, after some of the purchasers had obtained deeds for their lands, and before others had been able to procure their deeds from the sheriff, Thomas presented a petition for the quashal of the sales, offering in it to refund to the purchasers the amount of their respective payments. The petition was resisted by the purchasers, but the court sustained it in setting the sales aside, from which determination an appeal was taken; and it is for this coart to decide whether the sales of the sheriff, or the decision of the circuit court shall be upheld.

It may be here remarked, that the acts of the sheriff in selling the property, and of the purchasers in buying it,are unaffected by any charge or suspicion of fraud; that the sheriff did onty his duty in offering the property for sale, and that the purchasers exercised but a legal privilege in bidding for and buying the property exposed to sale. Nothing is alleged against even the discretion of the sheriff, but that he offered the lands in too small quantities, in selling them in forty acre pieces, instead of offering them in large bodies. And no fraud is charged in the petition against the purchasers, except it is to be inferred from their obtaining the lands of the petitioner at prices which sacrificed them.

The faulty division of the lands in small parcels, the inadequacy of the prices paid for the property by the purchasers, and the accidental detention from the sale, of the man with whom the petitioner had arranged that the money called for by the executions should be paid, are the only grounds which we need consider iq the determination of the case.

By our law, when an execution is levied on real estate, the property is to be divided when it can be, unless the defendant in the execution shall .desire the whole of a tract or lot of land to be sold together. Gould's Dig., chap. 68, sec. 54. This provision is made for the benefit of the defendant, that no more land need be sold than is necessary to satisfy the execution, and to enable persons of small means to buy; thus increasing the number of bidders, and the probabilities of the higher prices that result from extended competition. The sheriff acted strictly according to our statute, and in accordance wdth the law upon general principles. Rowley vs. Brown, 1 Bin. 62; Ryerson vs. Nicholson, 2 Veates 517. As the provisions of our statute might be considered as directory only, (Gould vs. Tatum, 21 Ark. 331 and decisions of this court therein cited; Groff vs. Jones, 6 Wend. 523) a departure from them for the benefit of all the parties to the execution would save a sale from irregularity, but it is always discreet for an officer to observe the regulations of a directory statute. And our statute affords a strong reason for this, in the privilege it gives to the defendant to direct in what parcels, and in what order, his real estate shall be sold. But in this case, although the allegation is ample, that the lands would have sold better in largo bodies than as they were sold, there is no proof to sustain it; and the presence of Thomas at the sale, without making any objection toils being made as the sheriff made it, is conclusive against the position taken in the argument, that the manner of the sale produced a sacrifice of the lands that can have effect upon the validity of the sales against the purchasers.

Inadequacy of price is not, in itself, sufficient ground for setting aside an execution sale, but it may be a reason for requiring the sale to have been strictly regular, and in connection with other facts, may be an ingredient in fixing a charge of fraud upon the purchaser, or in giving a fraudulent character to the sale, as against the officer that conducts it, or against the plaintiff for whose benefit, and at whose instance it is made. Our own decisions are conclusive upon this subject, and might well excuse further examination of the law. Miller vs. Fraley, 21 Ark, 40; Hardy vs. Heard, 15 Ark. 189. But the earnestness with which this branch of the case has been argued forihe petitioner, the appellee in this court, and the alleged importance and hardship of the case, have induced us to look into the authorities cited for the appellee, and into such cases as the citations have directed our attention. The cases of Nesbitt vs. Dallam, 7 Gill & John. 512; Sherry vs. Nick of the Woods, 1 Ind. R. 579, and Benton vs. Shreve, 4 Ib. 71, affirm the general doctrine, and agree with our decisions, but disaffirm execution sales upon ether grounds than the inadequacy of price. In Swope vs. Ardery, 5 Ind. R. 214, the circumstances of the sale are recited, and it is there stated that, “under these circumstances, it is not very clear but that the sale'was void for inadequacy of price.” This is not an authority to overturn the principle announced. In Nelson vs. Brown, 23 Miss. 21, the plaintiff in the execution was the purchaser at the sale, and was properly held to be affected with notice of its irregularities. And the court expressly say that they “ do not maintain that mere inadequacy of price is sufficient to set aside, a sheriff’s sale.'

It is to be borne in mind that in this case there are no circumstances of fraud or irregularity, which can increase or aggravate the effect of mere inadequacy of price; and our examination of the cases cited by the appellee, and of the argument made for him, bringsus to the same conclusion upon which the decisions of this court would cause us to rest.

Upon the fact of the inadequacy of the prices at which the lands were sold, there seems to be no doubt but that they were sold at nominal rates, and that the estimate .of the value of the lands ranged from five dollars, or something less, to twenty dollars per acre; yet it is also to be remembered that this estimated value is shown by the testimony not to be the market value; that the lands' were wild, subject to. overflow, burdened with a levee tax of two years, and in the condition of the money market at the time of the sale, were not saleable for cash, at any price, and that the lands brought as much as experienced observers of execution sales could have expected, and as much as they had often noticed lands like those sold to bring at other sales. Upon this branch of the case we are of opinion that the sales cannot be set aside on account of the small sums for which the lands and the real estate were sold.

Thomas had engaged a man from Pine Bluff to be at Napoleon at, or before the time of the sales, for the purpose of paying the debts represented by the executions. The payment of these debts would have been made but for his accidental detention from the sale, by the grounding of a steamboat in the Arkansas river. There are many facts related in the evidence of the witnesses, which might be proper to be taken into consideration, if the accident and its results could have afforded any reason for the interference of the court below with the sales. But the unfortunate detention, from Napoleon, of the person from whom Thomas was to obtain the means of paying his debts, and of relieving his property, can nó more affect the validity of the sales than can the disappointment of any execution debtor, who may fail in his plans or expectations to procure the money necessary to save his property from being sacrificed. Without admitting that accident is a ground of relief in a court of law, it may be stated that Thomas, in order to put himself in a meritorious attitude against the purchasers, ought to have made known, at the sale, his arrangements for paying the executions, and that the default was not voluntary or expected by him. Nothing of this kind did he do. His pres mce at the sale without any objection to it, without any inforj mation of the means he had used to arrest it, and with an assertion that, if he chose to do so, he could pay the debts for which his property was to be sold, could not be considered in any other way than'a determination to let the law take its course. That course has been run; the sheriff acted fairly and legally; the bystanders bid, as, they had a right to do; the purchasers were not the plaintiffs in the executions, or persons representing them, but third persons, who availed themselves of the public invitation to bid upon the property; the misfortune of the defendant cannot be allowed to unsettle legal principles. The court below erroneously sustained the prayer of the petitioner, and its judgment is reversed.


text:
    Carter vs. Reagan & Wife.
    Tim defendant in an action of Unlawful Detainer, having paid the balance of the purchase money for the plaintiff and gone into possession under a contract that he was to retain it free of rent until the return of the plaintiff, holds under him, and not adversely, until the return of the plaintiff and demand of possession; and so is not entitled to the benefit of the act of limitations nor, under such contract, is he entitled to retain possession of the property until the money advanced is repaid him.

      AppChl from Desha Circuit Court.

    Hon. John 0. Murray, Circuit Judge.
    Farrelly & Finley, for appellant.
    Weatherford, for appellees.
   Mr. Justice Fairchild

delivered the opinion of the court.

Reagan and wife were entitled to the possession of certain town property in Napoleon, upon paying Cheatham and Stewart four hundred and twenty dollars. They were able to pay but three hundred dollars, but procured Carter to pay the remainder for them, and by doing so, he was authorized to receive possession of the property for Reagan and wife, and hold it free of rent till they should return from California, where they then were. It was about the first of January, 1855, that Carter, under this arrangement, took possession of the property; and he held it without interruption till the 28d of October, 1858, when Reagan and wife, having returned from California, demanded possession. This demand not being complied with, this suit of Unlawful Detainer was brought to recover the possession withheld.

Carter contended that, as his possession of the property had lasted longer than three years, the plaintiffs could not maintain their suit. Until the plaintiffs returned and demanded the property, Carter'held it under them, and for them, and his possession not being adverse to their claim is not a possession under the statute of Forcible Entry and Detainer, on which he can have the benefit of a plea of peaceable and uninterrupted possession against the plaintiffs. Burke vs. Hale, 4 Eng. 328; McGuire vs. Cook, 13 Ark. 452.

Carter also defended the suit on the ground that he was not obliged to yield the possession of the property, till the plaintiffs had offered to pay him the one hundred and twenty dollars which he advanced for them to Cheatham and Stewart. This would depend entirely upon the contract between the parties, supposing the contract, or a note or memorandum of it, to be reduced to writing, and signed by the plaintiffs. And this,was the ease, the whole communication upon this subject, on the part of the plaintiffs, being made in letters received from them from California. The .letters were not produced, and their contents were proved to the court. Two witnesses testified concerning the effect of the letters upon this subject — one did not know whether there was any thing in them about an agreement, or assurance of the plaintiffs that Carter should have the property till the one hundred and twety dollars were paid to him: while tire other testified that the plaintiffs would pay Carter the one hundred and twenty dollars that he paid out for thorn. Both witnesses agree that the letters were that Carter was to have the property free of rent, till the plaintiffs returned from California, but there is no proof that the possession was to be retained till the plaintiffs paid Carter the one hundred and twenty dollars. They would pay that sum, but did not agree to let Carter hold the property, after their return, till the payment was made.

The first instruction asked by the defendant was therefore abstract, not founded upon any evidence in the case, and was properly refused. The other instructions, both those given and refused, did not involve the court in error. The verdict was not against the evidence; the motion for a new trial was well overruled, and the judgment of the Circuit Court is affirmed.


author: Mr Justice Fairchild

text:
    Strong vs. Whatley.
    Upon a non-suit, in an action of Unlawful Detainer, the defendant has no right to have a jury called to assess his damages — his remedy is on the plaintiff’s bond.

      Appeal from Lafayette Circuit Court.

    Hon. James K. Young, Special Judge.
    Gallagher, for appellant.
   Mr Justice Fairchild

delivered the opinion of the Court.

Upon the calling of this cause, which is an action of Unlawful Detainer, the plaintiff, failing in his application for a continuance, took a non-suit, and judgment for costs and restitution was given against him by the court. The defendant asked that a jury be called to assess his damages, which the court refused, and he appealed.

The application could not have been legally granted. When the plaintiff’s right of possession is disputed, and the dispute is in the course of determination by a jury, if they find that he has been wrongfully,disposessed, they must give a verdict for the damages proved. Gould's Dig., chap. 72, sec. 17. But this case, though a disputed one, was never submitted to a jury. A jury cannot in this'action be empanneled solely to enquire into the damages. And they cannot entertain such enquiry at all, except it be incidental to a trial upon the main issue of the case. For a recovery of his damages the defendant in the case below should have depended on the bond given by the plaintiff. Let the judgment be affirmed.


text:
    Rogers’ ex’rs vs. Duval, ad.
    The acts of Congress to protect Indians from the payment of money on executory contracts (Acts of 3d March, 1847, and 30th June, 1834,) do not relieve white men from the discharge of their obligations to Indians.
    A plea, to an action by an administrator, setting up facts showing that letters of administration ought'not to have been granted, but not denying the issuance of letters to the plaintiff, held bad on demurrer.

      Error to Sebastian Circuit Court.

    Hon. J. M. Wilson, Circuit Judge.
    Yandever, for the plaintiffs.
    It is contended, on the part of the plaintiff in error, that the act of Congress, providing “ that all executory contracts, made

      and entered into by amj Indian, for the payment of money or goods, shall be deemed, and held to be null and void, and of no binding effect whatever,” has no limitation, but is general in its character; that it applies to all contracts made with an Indian, and that the contract, when made with an Indian by a white man, may be taken advantage of by either,, when sued on in this State, and will be declared tobe a nullity, according ¡to the decision of Clark vs. Crosland, 17 Ark. 11. 43.
    Contracts in violation of a statute are utterly void. Story on Con. 740; Hunt vs. Russell, 17 Mass. 258.
    The statute, secs. 1, 2, chap. 4, Gould's Digest, prescribes in wbat cases, and by whom, letters of administration shall be granted; and the second plea in this case effectually shows that the court granting the letters of administration had nothing under its jurisdiction to administer upon, and that David Barnett died in the Creek Nation, and not in the; State of Arkansas. That administration granted in this State by the Probate Court of a county having no estate in the county of the deceased, and where he had no residence, and where he did not die, would be void, is too plain a proposition to admit of a difference of opinion among lawyers. See 9 Mass. R. 543; Gutts, etc. vs. Haskins', Griffith vs. Frazier, 8 Granch 28; Toller (2d) 52, 120; el seq. 7, Bac. Abr. 65; title Void, etc.; Welch vs. Nash, 8 East 394; Smith vs. Rice, 11 Mass. R. 512; Williams vs. Whiting, 11 Mass. R. 432; Holyoke vs. Thomas Haskens, 5 Pickering R. 20; Harvard College vs. Gore, 5 Pick. R. 389; Sigourney vs. Sibley, 21st Pick. R. 101.
    Garland &■ Randolph, for the defendant
    The position's of the defendant, in regard to the first plea, are these: 1st. That a white man who makes a contract to pay an Indian money or goods, cannot avoid it by reason of the act of Congress; 2d. That the statute was not intended to affect contracts made within the jurisdiction of the' State of Arkansas; and 3d. That if it was so intended, it is unconstitutional, and therefore cannot affect them.

      As to the second plea: This is not a plea of ne tinques administrator. It does not pretend to deny the defendant’s appointment as administrator, but sets up facts going to show that the Probate Court of Sebastian county had no authority to make the appointment. The granting, of letters of .administration is within the jurisdiction of the Probate Court (5,, Arh 14 Ark. 298; sec. 2, chap. 48, Gould’s Dig." sec. 1 Ychap. 4, ib.), and no enquiry can be made as to the correctness of the judgment of the court in granting administration, in a collateral proceeding like this. 19 Ark. 499. %

   Mr. Justice Fairchild

delivered the opinion of the court.

To an action brought by Duval, administrator of David Barnett, Rogers pleaded that the bond sued on was given by-him to Barnett, who was a Creek Indian, and a resident in the Creek Nation, and that the bond was null for being in opposition to acts of Congress, which protect Indians from the payment of money on executory contracts. The legislation of Congress upon this subject, has been the subject of three cases before this court. In Clark vs. Crosland, 17 Ark. 43, it was held that a contract made by an Indian, in the Indian country, to pay money at a future day, could not be enforced in the courts of this State, because prohibited by act of Congress. In Hicks vs. Eushartonah, 21 Ark. 108, the law was held not to defeat a contract for the payment of goods, made in Sebastian county. And in Taylor vs. Drew, 21 Ark. 485, the plea of exoneration by the statute was adjudged bad on demurrer, because it did not allege that the note sued on was executed in the Indian country. That case would have been decisive of this, if the bond here sued on had been given by an Indian, instead of to one, for the plea under consideration only avers that Barnett resided in the Indian country when the bond was executed, not that it was there made. But the act of Congress could not, under any circumstances, release Rogers from the payment of the money he bound himself to pay, as it was not intended to relieve white men from the discharge of their obligations to Indians.

Rogers pleaded, secondly, that Duval was not the administrator of Barnett, because Barnett lived and died in the Creek Nation, and had nothing in Arkansas for administration. Notwithstanding the plea, Duval might have obtained letters of administration upon the goods and effects of Barnett, and if he had, they could not be questioned by plea in the Circuit Court. The facts alleged in the plea might have been good grounds for the refusal of letters of administration by the proper authority; perhaps, upon such facts, the Probate Court that may have granted letters would revoke them, but the plea is no answer to the declaration in its averment of the issuance of letters of administration.

Both pleas were bad; and the court in deciding them to be bad on demurrer is sustained.


text:
    Cheatham vs. Phillips.
    The endorsement made by a land agent upon the plats of lands furnished him by the auditor, of th e time at which he received them, is not to be treated as a solemn record that cannot be disputed or dispioven, but it may be proven that he received them at a time different from that endorsed by him.
    The swamp land commissioners could not delegate the power vested in them by the statutes to sell lands, and a sale by a sub-eommissioner appointed by them, while they had power to sell, and ratified by them, after their power to sell ceased; and the power vested in the land agent, was invalid.

      The purchaser did not perfect his title under the act of 20th January, 1855, by surrendering the certificate issued to him by the commissioners, to the land agent, and taking out a new certificate of purchase, the land agent having in the meantime sold the land to another person. {Deloach vs. Brownfield et al., ante.)

      Appeal from, Hempstead Circuit Court in Chancery.

    Hon. Len B. Green, Circuit Judge.
    Gallagher and Knight, for the appellant.
    The equities of this case are all with appellant. He was the first purchaser. He purchased in good faith, according to the routine of the commissioners, and paid for the land in the same mode. He received his certificate of purchase, and took possession of the land — and this was done long prior to the inception of appellee’s title. "
    Conceding that appellant’s purchase was made before the land agent received the maps and plats — and it is conclusively established that it was — any irregularities that might have existed, in respect of that purchase, were cured by the statute of 20th January, 1855, which, in effect, confirms the title in the purchaser at that date, and provides for the land agent to issue a new certificate. The appellant’s title was certainly made good and valid in equity against any subsequent purchaser. See, also, Act of 11th February, 1859, and Opinion of Solicitor General, to the effect that it confirms and makes good the purchase from the date thereof, by relation.
    Hempstead, for appellee.
    When the maps and plats were received by the land agent at Washington, the power of the swamp land commissioners to sell ceased at that precise point of time, and the land agent was invested with the exclusive power of sale. Hempstead vs. The Auditor, 16 Ark. 67; Hempstead, Land Agent, vs. CnderhiWs Heirs, 20 Ark. 35é.
    Every plat and map in the land agent’s office is shown to be marked as follows: “ Mailed 20th, and 'received December 22d,
      1853. B. F. Hempstead, Lcmd Agent.” The reception of the maps and plats was an act pertaining to the duties of his office, and was known to him, and was official; and therefore the •endorsement of the time they were reoeiwed, is conclusive upon all persons, and cannot be impeached. That the land agent was required to do by law, and like the official return of an officer,it cannot be brought into question collaterally. It can only be impeached in a direct proceeding where the officer is a party. Trigg vs. Lewis, 3 Litt. 130, 132; Wilson vs. Hurst’s Ex’r., 1 Peters O. G. P. 441; 4 Phil. Ev., Gowen & Hill’s Notes, note 602, jp.1847; note 741, pp. 1,083, 1,087,
    The board of swamp land commissioners alone possessed the power of selling swamp lands up to the time of furnishing the maps and plats to the land agents. It was a power they could not delegate — and sub-commissioners are unknown to the law. 20 Ark. 354.
    . Even if a sub-commissioner had authority to receive applications to purchase, the application and purchase must necessarily date from the time of its allowanee by the board of commissioners, and could have no relation back to an anterior period. It was the board of commissioners, as a board consisting of three persons, that had the power to sell, in the respective districts, until the maps were furnished to the agent, and then the power ceased. Hempstead vs. Auditor, 16 Ark., 68; Hempstead, Lcmd Agent, vs. Underhill’s Heims, 20 Ark. 354.
    The act of .17th February, 1859, does not apply to cases where the final title has issued; but only to cases where a certificate of purchase has been lawfully granted by the swamp land commissioners or agents, or any person acting under their authority; and the holder desires to obtain a patent and holding certificate,- and with which he may re-enter the land.
   Mr. Chief Justice English

delivered the opinion of the court.

The subject of controversy in this suit is the east fractional half of the north-east fractional quarter of section 31, -township 13 south, range 27 west, containing 59 87-100 acres, situated north of Swan Lake, in Hempstead county.

Phillips entered the land at the office of the swamp land agent for the Washington district, on the 22d of March, 1856, and (Obtained the deed of the state therefor, executed by Elias N. Conway, the governor, on the 27th of March, 1857.

Cheatham claims that he purchased the land of the board of swamp land commissioners on the 23d of December, 1853, and obtained irom them a certificate of entry of that date; which he surrendered to the land agent of the Washington district on the 10th June, 1857, and received, in lieu thereof, a patent certificate, upon which the deed of the state was executed to him by John P. Hampton, acting governor, on the 15th of the same month.

Phillips filed a bill in the Hempstead circuit court to cancel the title of Cheatham, and confirm his own; and, from a decree rendered in his favor, Cheatham appealed to this court.

It is alleged in the bill that the maps and plats of the swamp lands, etc., embraced in the Washington district, were received by B. E. Hempstead, the land agent, on the 22d of December, 1853 ; and that his power to sell the lands commenced, and the power of the board of commissioners ceased, on that day; and that, consequently, the entry of Cheatham was illegal and void, and the subsequent purchase of Phillips valid. ,

The answer denies that the maps and plats were received by the agent on the 22d, but avers that they were received on the 24th of December, 1853.

Jas. M. Killgore, who succeeded Hempstead in the office of land agent, deposed that every plat in the office was marked thus: “ Mailed 20th, and received December 22d, 1853-B. E. Hempstead, land agent.”

It is insisted for Phillips that the law made it the duty of the land agent to indorse upon the plats the time at which they were received by him from the auditor, and that the indorsement, so made, is to be treated as a solemn record, the truth of which can neither be disputed nor disproven in this proceeding.

We find no statute making it the duty of the land agent to indorse upon the plats the time at which he received them, but inasmuch as his power to sell the lands, described in the plats, commenced at the time they came to his hands, (Hem/pstead vs The Auditor, 16 Ark., 67,) it was proper that he should preserve in his office some evidence of the time of the occurrence of a fact of so much importance; and, doubtless, the usual and appropriate mode of doing this was by indorsement upon the plats.

But such indorsements are not records in the common law sense of the term, (2 Bur. Law Dic. 386; 2 Bouv. Law Dic. 428), and in the absence of any statute giving them the sanctity of solemn records, we cannot hold, upon principle, that they should have been treated, upon the hearing of this cause, as absolute and indisputable evidence of the time at which the land agent received the plats etc.

Killgore furthermore deposed that in the sale book, kept by Hempstead, preceding the entries of sales, there was a certificate made by him, that the maps and plats were received by him on the 24th day of December, 1853.

The depositions of several other witnesses conduce to prove that a box, which was understood to contain the maps and plats, reached Washington, in the stage from Little Bock, late in the evening of the 23d of December, 1853, and was left at the hotel, where it was seen as late as midnight. It was not positively proven that the box contained the maps ■ and plats, but the facts stated by the witnesses induce the belief that it did; and considering them, in connection with the certificate made by the land agent in the sale book, we shall hold, for the purposes of this case, that the maps and plats were not received by him until the 24th of December. The deposition of Hempstead was not taken.

It was clearly proven, by depositions read upon the hearing, that Cheatham did not, as alleged in his answer, purchase the land in controversy of the board of swamp land commissioners, on the 23d December, 1853, and obtain from them a certificate of entry on that day.

On the contrary, it appears that on the third of September, 1853, two of the commissioners appointed E. L. Pryor, of Hemp-stead county, a sub-commissioner to receive applications for the purchase of swamp lands situated within a certain district, by the following instrument:

“ Little Hook, Sept. 3d, 1853.
“ This is to certify that E. L. Pryor has this day been authorized by the board of swamp land commissioners to act as sub-commissioner for said board, and to do and perform such duties as are required by law from such board, in the district of lands assigned to him by J. D. Dixon, a member of the board.
L. J. EEAEDON,
JOHN MoDANIEL,
Swamp Land GonLrsP

By virtue of which appointment Pryor opened an office in the town of Washington, and received applications, through clerks employed by him in the office, for the purchase of lands, and certificates were issued to the applicants, in his name, in the following form:

“By virtue of my appointment, by the board of swamp land commissioners of the State of Arkansas, as sub-commissioner, and the powers by such appointment' vested in me to act as their agent, and by delegation of their authority, to receive applications for the purchase of swamplands in their names, I, E. L. Pryor, do hereby certify that--, of-county, has this day filed with me application addressed to said board of commissioners, for the entry and purchase of the following lands, viz:--,• containing--acres, being part of the swamp and overflowed lands belonging to the State of Arkansas, and has this day paid to me, for said land, the sum of-dollars, in swamp land scrip, issued on contracts made--to the 12th January, 1853, the said land being —— than six miles from a navigable water course, which scrip I have received for said commissioners in payment for said lands, and on presentation and surrender of this certificate to said board, the said commissioners will issue to said---a certificate of this date, under their own hands in due form, that patents may issue to said---for said lands.
E. L. PRYOR, Sub-commissioner of Swamp Land Commissioners

At stated periods these applications to purchase lands, with the scrip paid in by the applicants, were forwarded to the office of the board of commissioners, at Helena, by Pryor, and certificates of entry issued by the board to the applicants, in lieu of the certificates given by Pryor.

The distance from "Washington to Helena is from 225 to 250 miles, and it would ordinarily have taken a person traveling by stage, or private conveyance, five or six days to go from the former to the latter place.

On the 23d December, 1853, Cheatham applied at Pryor’s office, in Washington, to purchase the land in controversy, paid the price in scrip to Daniel ,E. Williams, who was acting as Pryor’s clerk, and a certificate in the form above copied, signed in blank by Pryor, and left in the office, was filled up to Cheat-ham, and a note of the application made by Williams in a book kept in the office for that purpose. The proof is not positive that Cheatham paid in the scrip at the time of his application, but the facts stated by the witnesses conduce to prove that he did.

Pryor deposed that for entries made before him, he settled with the board of commissioners monthly, or quarterly, and the applications made and scrip paid in were sent to them at Helena, by mail; and that from this course of business, the scrip of Cheatham, if he paid any at the time to- Williams, could not have reached Helena before the 6th or 7th of January, 1854. That on the entries made before him, Pryor, and among which was that of Cheatham, W. E. Butts, as the secretary of the Board of Swamp Land Commissioners, at Helena, issued certificates in place of those issued by Pryor, and sent them to him at Washington, but he did not■ deliver them to the purchasers, for the reason that Butts dated the certificates issued by him as of the day on which the applications and scrip came to his hands, instead of giving them the same date borne by the certificates issued by Pryor to the applicants.

That he, Pryor, considering this wrong, went to Helena himself, to return to Butts the certificates so by him issued, and dated, and to get him to issue others in their place (and Cheatham’s among the number,) to bear the same date as those issued by Pryor; and Butts accordingly did so.

The certificate so obtained by Cheatham is the same that ho surrendered on the 10th of June,'1857, and obtained in lieu thereof a patent certificate, on which he procured the deed of the State, from the acting governor, as above stated.

By the act of January 6th, 1851, the board of commissioners, provided for by the act, were vested with power to sell the swamp lands, for levee work, scrip, or cash, and to furnish purchasers with certificates of purchase and payment, upon which deeds were to be executed by the governor.

By the 3d section of the act of January 11th, 1851, the board were required to keep an office for the transaction of business at such point as a majority of them might designate, and it was made their duty to convene at such place once in every three months, and oftener, if necessary, for the proper dispatch of their duties, where a record of their joint proceedings was to be kept, and they were required to appoint a secretary, etc. By the 32d section of the act 12th January, 1853, the office of the board was located at Helena, where they were required to meet, as provided by previous acts, and discharge the duties. imposed upon them, etc., with power to change the location of the office, etc.

The Swamp lands belonged to the State, by grant from Congress. The title to them was not in the commissioners ; they derived their power to sell them from the statutes, and had to follow their requirements in order to make valid sales. There was no provision of the statutes authorizing the board of commissioners to appoint deputies or sub-commissioners, and to delegate to them the power of selling the swamp lands, and they could not, without authority of law, transfer to other persons the power of sale entrusted by the legislature to them.

They, or two of them, thought proper for the convenience of the public, as they doubtless supposed, to appoint Pryor a sub-commissioner, to receive applications for the purchase of swamp lands at Washington, and to forward to the board such applications, with scrip, etc., received from the applicants, for their action. But they could not, and did not vest in him the power of sale. The sale could only be completed by them.

Cheatham made application to Pryor, (or his clerk), to purchase the land in question, on the 23d of December, 1853, paid over his scrip, and received a certificate of application, signed by Pryor. But this was not a sale of the land, for want of legal power in Pryor to make the sale. The action — the ratifying act —of the board of commissioners, in whom the power of selling was vested by law-, was wanting to perfect the sale.

The application of Cheatham to purchase the land did not, perhaps, reach the office of the commissioners at Helena, before the 6th or 7th of January, 1854. It could not have reached there, if forwarded by Pryor on the 23d of December, before the 27th or 28th of the montli; and when it arrived the power of the board of commissioners to sell the land had entirely ceased, Hempstead having received his maps and plats on the 24th of December, and the power of selling the land- having vested in him. After the law transferred the power of selling the lands in his district from the commissioners to him, they could neither make a sale nor ratify and complete an unauthorized sale made by Pryor, if his 'receiving of Cheatham’s scrip, and giving him a certificate, be treated as an attempted sale, instead of a mere application to purchase, to be transmitted to the commissioners.

It is insisted for Cheatham that he acquired a right to the land, under the act of the 20th January, 1855, by surrendering the certificate issued to him by the commissioners, to Killgore, the land agent, on the 10th of June, 1857, and obtaining from him a patent certificate. But in the meantime, Hempstead, -who preceded Killgore in office, had advertised and offered the land at public sale, and it failing to sell for want of a bidder, he permitted Phillips to enter it on the 22d of March, 1856, which fact Killgore states that he overlooked at the time he. issued’ the patent certificate to Cheatham.

If Cheatham had obtained the patent certificate from the land agent before he sold the land to Phillips, it might perhaps have been treated as a valid sale to him, on the supposition that the scrip, which he had paid to Pryor for the land, and which was transmitted to the commissioners, had gone into the hands of the State. See Deloaoh vs. Brownfield et al., ante.

The decree must be affirmed.


text:
    Hawkins & Wife vs. Greene ad.
    Where a testator directed that his estate should he divided among his children when the youngest child should become of age, making provision for the support and education of his children, in the meantime, and for the management of his property, none of which was carried out, a court of chancery cannot construe the will to mean that such postponement of the division should be dependent upon the other provisions of the will being complied with, and decree a division of the property at once — such a construction being manifestly opposed to the plainly expressed intention of the testator.

      Appeal from Cla/rh Ciromt Court im Cha/ncery.

    Hon. Len B. Green, Circuit Judge.
    Gallagher & Knight, for the appellants.
    It was proper for ;the complainants to apply to chancery for a construction of this will. The court had jurisdiction for that purpose; (10 Paige 199,) and also to decree distribution to complainant, Amy, of her share' in a portion of the property devised, because her share vested in her on the death of her father, (1 Jarman on Wills, 641, amd oases cited; 643 amd n. (a); Keys on Chattels, seo. 208, 211,) subject to the debts of the estate and the postponement of the possession to the time stated; but this postponement was not a matter which chancery may not annul, if, under all the circumstances of the case, no injury from such annulment in favor of complainant will follow to the other devisees, and her condition be benefited, and the law more clearly followed by such a course, and no violence be offered to the intent of the testator. The court has ample power to order distribution as to a portion of the estate, at least, if not as to the whole of it. See 6 John, Ch. J4.
    Flanagin, for the appellee.
   Mr Justice Fairchild

delivered the opinion of the Court.

The will of Albert G. Johnston contained a request that Thaddeus F. Moreland and his wife should take the children of the testator, give them an education, and allow them to choose their business, as they should become of age; and when one became of age, that it should take its ratable part of the estate as a loan to be returned when the youngest child should become of age, at which time an equal division of the estate was to be made among all his heirs.

This seems to be the meaning of the will, although expressed with more fullness and exactness than the will, which is very meagre and informal.

The will farther requested that Moreland should move to the residence of the testator, and live there until some one of his children should wish to occupy it, who would take the rest of the •children.

The negroes of the testator were to remain on the plantation if they could support themselves and the testator’s children from the proceeds of the farm and the stock, and if this could not he done, the grown negroes were to be sold and the money put at ten per cent, interest in good hands.

The executors, of whom Moreland was one, renounced the trust. Moreland and wife declined to accede to the request relative to taking the testator’s children and occupying his residence. The oldest child of the testator was married in 1858, the will having been made in 1851, and she and her husband also declined to take possession of the homestead, and to gather the other children there, with themselves, as provided for in the will. The administrators, with the will annexed, of whom there have been two in succession, have not followed the will in keeping the negroes together on the plantation, or in selling the grown ones and loaning out the money as directed in the will, but have hired out the lands and the negroes, the avails of which, besides paying debts, have been applied to the support of the infant children, who are living in different places, under the direction of their guardians, it is presumed, as the answer shows, an annual application of the assets to the respective guardians of the children. The youngest child was five years old in 1859, when this suit was begun. ■

Upon this state of .facts, Jonathan B. Hawkins and his wife, she being t]ie married daughter of Johnston, heretofore mentioned, filed their bill on the chancery side of the Clark Circuit Court, against the administrator, with the will annexed, and the other children of Johnston, in which they insisted that as the intentions of the testator had been frustrated, in his children not having been kept together in the family of Moreland, or in .the family of any of his children, and in the negroes not having been retained on his plantation; that the reason of the postponement of the division of his estate had ceased, and they prayed that the estate might be finally partitioned between the children, as the ones entitled to it, or that the portion of Amy Hawkins should be set apart to them, not as a loan, but as her property. The plaintiffs also found their bill on the ambiguity oí the will, and ask for its construction by the court.

The administrator demurred to the bill for the supposed purpose of obtaining the opinion of the court upon the law of the case as presented by the bill, unembarrassed by any other consideration, as in this court he expresses a willingness, and desire even, that the prayer of the plaintiffs should be granted, if the law will allow the estate to be disposed of according to the application of the plaintiffs.

The demurrer to the bill having been sustained, the plaintiffs appealed, and press upon this court to decree for them, as they allege the Circuit Court should have done.

We must affirm the decree. What other disposition of his estate Johnston might have made, had he foreseen that Ms hopes respecting his children living with Moreland and wife, and with one of their number, would not have been fulfilled, we do not know. Nor can we say that, if he had known that his negroes would not have supported themselves and his children on the plantation, or would not have been sold, that is such of them as he directed to be sold, he would have made a different will from that which he left behind him as Ms last will.

When the meaning of a will is uncertain, even a doubtful construction of it might be supported by plausible argument based upon other provisions of the will, or upon its general apparent or presumable, design. But we should not know how to justify a construction of it, that is manifestly opposed to the plainly expressed intention of the testator; and to maintain the bill in this case, would be to give such construction to the will of the father of the female plaintiff. We have no power to remedy the inconveniences under which the plaintiffs may be confined, by holding the patrimony of the wife as a loan instead of receiving it as her absolute portion of the estate.

And it is not the object of this suit for a scheme to be devised or settled for the maintain anee of the other infant children of Johnston, and without suitable pleadings, upon wbicb to found a decree, we cannot exercise a jurisdiction even for the protection of infants, though upon a proper case alleged and proved, the exercise of such jurisdiction would follow as a matter of course. But we do not wish to be understood as asserting a jurisdiction that could in any way anticipate the division of the estate provided for by tbe testator. If such power may have ever been exerted by a chancellor, it would have to be enquired whether it was used in some character personal to the chancellor, or as the presiding officer of the court, and whether any such power could be'assumed in this State by tbe circuit courts sitting in chancery, under their constitutional grant of chancery jurisdiction. ,


author: Mr. Justice Fairchild,

text:
    Moren et al. vs. McCown et al.
    The Probate Court has the exclusive right to grant letters of administration on estates of deceased persons, etc., aud make settlements with administrators, which shall he final, nnless upon a charge of fraud, made in chancery and supported by affidavit: and a Court of Equity has no power to withdraw from the Probate Court the administration of the assets of an estate, aud assume the settlement thereof.
    But the Court of Chancery having assumed jurisdiction of an administration, and, tinder its authority, the administrator having paid debts and made sale and distribution of the property, these acts are confirmed as done by consent; and the amount due by the administrator having been ascertained by decree of the court below, this court, in reversing such decree for want of jurisdiction, and ordering the administration to be remitted to the Probate Court, will direct the administrator to be charged with such amount, and be allowed credit for such sums as he may be entitled to.
    This court, adhering to the decision in the ease of Clark vs. Shelton, 14 Ark. 480, that a bill in chancery may be maintained against the principal and his securities in an administration bond, and a decree rendered against them for the amount found due upon final settlement, in a case where a court of equity has jurisdiction over the principal, are not inclined to extend the principle to a ease in which the administrator nor his representative is made a party.

      Appeal from Hempstead Gi/reuit Court in Qhancery. •
    Hon. Len B. Gjbeen, Circuit Judge.
    Garland & Randolph, for the appellants.
    Watkins & Gallagher, contra.
   Mr. Justice Fairchild,

delivered tbe opinion of tlie Court.

Three several matters of consideration are involved in the cross appeals of this case; the liability of tbe sureties upon the administration bond of Elizabeth Moren, the first personal representative of Samuel Moren, deceased; the decree to be rendered concerning the administration oí Edward S. Johnson, who became the administrator of the goods that were unadministered by Mrs. Moren; and the action of the court below upon tbe purchase of slaves from Mrs. Moren, and from her vendees, which are claimed by the bill to belong to the heirs of Samuel Moren.

We do not know why the Circuit Court sitting in chancery should have taken control of the estate that Edward S. Johnson was administering under the authority, and subject to the direction of the Probate Court. That court has the exclusive right to grant letters of administration, to revoke them, to pass upon the original securities, and to determine when new bonds shall be given by an administrator, and to make settlements with him, that shall be final, except upon charge of fraud, made in chancery, supported by the affidavit of the person making the charge. This jurisdiction is valueless if circuit courts at will, or upon suggestion, can withdraw an administration from the Probate Court to a court of equity. When properly in equity, administrators will be treated as trustees; but the ordinary course of administration must be ' confined to the authority of probate courts; the settlement of estates must be made in them by the constitutional and legal power belonging exclusively to them, or there will be an utter confusion of jurisdictional distinctions. The clause in the Constitution conferring jurisdiction in matters of equity to circuit courts till the establishment of courts of chancery, does not conflict with this conclusion, for the mere settlement of an estate is not a matter of equity.

The power to transfer the administration of Samuel Moren’s estate from its constitutional and legal forum must not be conceded, because it was assumed to exist in the bill, or because it was exercised by the court, as no effectual resistance could be made by the administrator till final decree, and by appeal.

So far as the estate has been administered upon by appropriation of its assets to demands and costs, or by sale, partition and distribution between the heirs, what has been done by the court below will not be disturbed: will be confirmed as done by consent of parties. But the decree against Johnson, and Witter and Mitchell, his securities, in the administration, for the amount found against him as administrator, cannot be sustained. The administration is to be discharged from the Circuit Court of Hempstead county, sitting in chancery, and is remitted to‘the Probate Court, where Johnson will be charged with the sum for which the Circuit Court rendered a decree against him, to-wit: five thousand, one hundred and twenty-eight 21-100 dollars, and with such interest as has accrued on that sum since the first of January, 1858. And the Probate Court will settle with the administrator for such sum as if he had been charged with it in the Probate Court in the usual course of administration, giving him such credits as he may by law be entitled to, if any loss be proved to have been sustained out of the amount so charged, by his inability to collect any part of it that was due for the hire of negroes, and that was not on hand on the 1st of January, 1858. On this branch of the case no costs are to be paid by Johnson individually, but the costs in this court are to be paid by him, for which he will have credit in his settlement with the Probate Court. This settlement is to be speedy, and a final one ; and in the distribution of the assets in Johnson’s hands among the heirs of Samuel Moren, only the plaintiff’s heirs are to be bound by the appropriation of five hundred and eleven 99-100 dollars by their' counsel, as shown in the record.

The cases of Clark vs. Shelton, 16 Ark. 481; Moss vs. Sanderfur, 15 Ark. 381, and Dooly vs. Dooly, 17 Ark. 122, only define the jurisdiction of the Probate Court not to extend to contests of the ownership of property between persons claiming it by adverse titles. They all concede the jurisdiction' of the Probate Court to determine the responsibility of the administrator upon the admitted assets of the estate; and that is precisely what the Probate Court in this case was prohibited from doing by the withdrawal of Johnson’s administration of Samuel Moren’s estate from the Probate Court of Hempstead county to the Circuit Court sitting in chancery.

A more important point in this case depends upon the appeal of the securities of Mrs. Moren, the first administrator of the estate of Samuel Moren, against whom a decree was rendered for three thousand and eighty-nine 18-100 dollars, it being made up of the balance against her in an account stated m this case, in the court below, upon her administration, and of nine and one-third years interest thereon. This amount does not seem to include charges against Mrs. Moren for any of the negroes of the estate, which she is charged to have sold, or in some way applied to her own uses.

Ordinarily, the liability of the sureties in an administration •bond, resting alone upon the bond,upon which the legal remedy is adequate, is determinable only in courts of law. Boteler vs. Brooks, 7 Gill & Johns. 150. And an action at law upon the bond is not sustainable till the probate court has adjusted the account of the administrator, and ordered him to pay over an amountfoundtobeinhi'shands. Baker vs. The State, 21 Ark. 408. The same principle has been applied by this court to the bonds of guardians and collectors. Sebastian vs. Bryan, 21 Ark. 450; Jones vs. The State, 14 Ark. 172. The policy of our law is to hold the remedy on an official bond, in a court of law, subject to the action of the tribunal established to adjust the accounts of the party, who, by his default, is alleged to have forfeited his bond. Butin Clark vs. Shelton, 14 Ark. 480, this court held that a bill in chancery could be. maintained against the principal and his securities in an administration bond, under which the liability of the principal would be first ascertained, and upon which a decree could be rendered against the securities for the amount -of that liability, upon its not being discharged by the principal. This was held to avoid a multiplicity of suits; for, as the securities would, at last, be obliged to answer for the default of their principal, it was held better to allow that they should be"brought into the suit with him, when they could contest their own responsibility, and also observe the proceedings in which the. principal should be condemned, than to drive 'the plaintiff to the prosecution of two suits; one to have the liability of the principal decreed, and another to recover its amount from'the sureties by an action upon the bond. This case seems to rest upon good authority. Ennis vs. Smith, 14 How. 418; Spottswood vs. Dandridge, 4 Mun. 289; Carow vs. Mowatt, 2 Edw. 66. But although we do not decline to follow the case of Clark vs. Shelton, we are not inclined to extend its principle to a case' presenting a dissimilar state of facts. In that case, the jurisdiction over the principal was unquestioned. That state of case, with the ultimate responsibility of the securities, extended the jurisdiction of chancery over them, which was incidental to, and dependent upon, the undoubted right of the court to fake cognizance of the acts of the principal. In that suit, all the defenses of the securities could be made, and the decree against the principal, and against them, would be conclusive for them, in any action they might bring against the' principal, for any indemnity on account of the decree and its performance on their part. In this case the principal was dead, no personal representative of her was in court; when her securities shall have paid the decree rendered against them, they will have no cause of action against her estate but what will be disputable, for it will not be bound by proceedings to which it, or any person representing it, was not a pai ty. And although it had been alleged and proved that Mrs. Moren died insolvent, and with no expectations of any estate to fall to her, the legal principle would not be altered. The next case that would arise under the affirmance of the decree of the circuit court, might be where there was an indemnifying fund, and the sureties would have to show the legality of the decree against them, because their principal was not a party to it, and it would not be a charge upon the fund. The effect of the Virginia rule, as followed by this court in Clark vs. Shelton, goes far enough in extending the jurisdiction of chancery over a purely legal obligation: and we cannot, by a further extension, hold the securij ties of Mrs. Moren accountable in an independent proceeding, and which will not afford a legal right for their indemnity.

None of the authorities cited, or of the several Virginia, and other decisions upon this subject, which we have been able to find, show the exercise of an equitable jurisdiction over securities, in the absence of the principal, or of his representative, or of persons interested in his estate. But the case of Moore vs. Armstrong, 9 Porter 709, was such a case, and was sustained by the Supreme Court of Alabama. The doctrine of that case is acknowledged, in the opinion, to be opposed to decisions of South Carolina; and it is inconsistent with the conclusion to which we have arrived. It is founded upon the right of persons interested in an estate, to have relief against the securities upon a forfeited administration bond, and the want of means of enforcing a legal remedy'on the bond when the principal has made no settlement, or has not, in the proper court, been adjudged to have wasted the estate. We do not consider that such legal inability existed in this ease.

The securities of Mrs. Moren, by the decree of the court' below, are to pay an amount she owed to the estate of Samuel Moren, which amount was ascertained when there was no person to represent, her before the court.

For the re.asons herein given, the decree of the court upon this" branch is disapproved, and the bill, as against Mrs. Moren’s securities, and the representatives of one of them, is dismissed with costs.

What would have been our opinion upon the merits of this case we need not say; but we will not forbear expressing our gratification to find that this suit, though in the names of the hfeirs of Samuel Moren, is mainly prosecuted by, and on behalf of strangers, in blood, to the witlovy, and first personal representative of the owner of the property. The case shows that Mrs. Moren was left with a family oí nine children, the oldest of whom was young enough to be a charge upon her, with a parcel of negroes of such a sort as that, through helplessness from infancy and child bearing and age, the most of them served only to increase her cares and expenses. And because the struggles she made to keep her children together, and to raise the servants for the children, were not self-sustaining efforts at the time, this suit was begun to make the deficiencies, good out of her securities, and in the names of those who owed gratitude to her motherly trials, and oblivion to her womanly, failures. Though, it need not be said that she was unsuccess-, ful, for her family was kept around her own hearthstone while she lived; and the negroes, that were useless and burdensome-to ber, by their growth and increase of price, have become a valuable estate to her childien, which never could have been, if she had acted with the children and servants according to. the strict rules to which her securities are sought to be held, amenable in this court.

Upon the third part of the case, that which makes Collins, Shower, the Blocks, Phillips and Pettigrew parties, to cause them to deliver up or account for certain slaves, or to make the securities of Mrs. Moren pay for them, little need be said. For Shower, the only one of these against whom the heirs could maintain a suit, has not possession of the negroes sold to him, and the case seems to be abandoned against him, on account of his insolvency, and the value of the slaves is sought to be charged against the securities.

It is not proved that Mrs. Moren sold Ben to . Collins, while the ownership of Bryant, Peggy and Lucy never was in the estate, so as to charge Phillips, Pettigrew and the Blocks, with having its property; although, as between Mrs. Moren and the estate, the fact may be, though not proved to be, that the cotton that paid for Bryant, and the difference between him and Peggy and Lucy belonged to the estate.

Any relief concerning any of these negroes could be afforded only by virtue of this part of the case being joined with others that were grounds of equitable interference. Such not being the case, we are spared the review of the dismissal of the bill decreed by the court below upon this branch of the case.

The end of the whole case'is, that calling all the decrees of the court below one, it is reversed, and the bills of the plaintiffs are dismissed, such decree of dismissal being entered here as should have been made by the court below. And the case is remanded, only^that the administration of Johnson upon Horen’s estate be remitted to the probate court, as directed in this ■opinion.