text:
    McNEIL v. GARLAND & NASH.
    Statute ok Limitation — Burden of proof, etc. — Whore a pica of the Statute of Limitation, in bar of the right of action, is traversed, the burden of proof is on the plaintiff to show both a cause of action, and the suing out of process within the period mentioned.

      Same — -When runs against professional ser dees. — The claim of an attorney, for professional services, is not barred by the statute, so long as the debt which he seeks to recover for his client remains unpaid, or until final judgment thereon, unless the relationship sooner ceases by mutual agreement, or is otherwise dissolved.
    Running Account — What Constitutes. — To constitute a funning account there must be mutual credits between the parties, or an existing credit on one side, which constitutes a ground of credit on the other, or there must bs an express or implied understanding that mutual debts shall be a satisfaction or set-off pro tanto between the parties.
    APPEAL PROM PRAIRIE CIRCUIT COURT.
    Hon. John 'Wiiytock, Circuit Judge.

      Clark $ Williams, for Appellant.

      Garland § Nash, for Appellees.
   Bennett, J.

Appellees brought- suit against appellant, in the Prairie Circuit Court, for professional services as attorneys. Appellant’s answer to the complaint contained what might be taken as a plea of payment and a plea of the statute of limitations. The appellees filed a replication to the plea of limitations, that the account sued on was a mutual, reciprocal and continuous running account with the defendant and that the last item therein was within three years next before the commencement of this suit.

Trial by jury' and verdict for the plaintiffs.

The defendant moved for a new trial'for the following reasons :

First. Tlie verdict is not sustained by the evidence.

Second. The verdict is contrary to law.

Third. There was error in the law which occurred at the, trial and was excepted to.

Fourth. Surprise, which ordinary prudence could not have guarded against.

As to the third cause, there was so much indefinitness about it as to render it entirely nugatory. And the fourth cause has no foundation in the record. What there was to surprise the defendant during the trial is hard to determine.

The only question that arises, on the first and second'causes, is as to whether the demand, taken as a whole or as separate causes of action, was barred by the statute of limitations.

The demand, sued on, is an open account for services rendered to appellant, by. appellees, as attorneys. The bill of particulars is in words and figures as follows, to-wit:

Phillip McNeil, Dr. „ To Garland & Nash.

Eeb., 1866. Retainer and counsel.........................$ 50 Ó0

July 15, 1866 Trip to his residence, two day’s attendance to business................ • 200 00

Aug. 28, 1866. Prairie Circuit Court, Desmuke vs.

McNeil.................................. 50 00

Aug. 28, 1866. McNeil vs. Hinton & Nichols......... 50 00

May, 1868. Harris vs. McNeil............................ 150 0Ó

Total amount........................................... $550 00

Cr....................................................... $50 00

When the statute of limitations is set up in bar of a right of action, by the plea that the action did not accrue within six years, which is traversed, the burden of proof is on the plaintiff* to show both a cause of action and the suing out of the process within the period mentioned in the statute. 2 Greenleaf on Evidence, 384; Hurst vs. Parker, 1 B. & Ald., 92; Taylor vs. Spear, 6 Ark.. 382; Guthrie vs. Field, 21 Ark., 386.

The suit was commenced the 3d of August, 1870.

The appellees proved, on the trial, that the services were rendered, as stated in the bill of particulars, except the first, but did not definitely prove the time of rendition. The dates of the items in the account are not conclusive upon either party. The plaintiffs had a right to prove that the services, for which the charges are made, were rendered or concluded within throe years before the suit was brought, although stated differently in the account current.

The statute of limitations does not commence to run against.the claim of an attorney at law for professional services, so long as the debt which he seeks to recover for his client remains unpaid, or until final judgment therein, unless the relation of client and attorney sooner ceases by mutual or other agreement, or the professional relationship dissolved. Angell on Limitations, p. 136; Foster vs. Jack, 4 Watt’s R., 334; McCoon et al. vs. Galbreath, 29 Penn., 293; Hale’s Exr’s. vs. Lewis, 11 Texas, 359; Walker vs. Goodrich, 16 Ill., 341.

Taking the entry of the final judgment, in the case, as the usual termination of the relation of attorney and client, what does the proof disclose as to the facts'?

There is no evidence whatever as to the first item as stated in the bill of particulars. As to the second, the testimony of witness, Bronaugh, is all the light as to the time of performance ; he says: Sometime in the year 186 — , Mr. L. B. Nash, of the firm of Garland & Nash, came through Brownsville, Prairie county, Arkansas; when he met with him he (Nash) stated he was going to the residence of McNeil to attend to some business for him. Witness did not remember at what season of the year it was. The next evening he (Nash) returned, on his way back to Little Rock.” -

This was all the testimony as to the time when the services, as charged in the second item, were performed. Even .admitting that they ■were performed, as stated in the bill of particulars, there is no proof of the time of rendition, and if the time, as stated, is the correct time of rendition, this item was barred by the statute of limitations. This all applies to the three next items. As to the last one, the appelles, in addition to the general testimony applicable to others, introduced ’ the record and final entries in the cause of McIntosh for the use of Harris vs. McNeil, in the Prairie Circuit Court, wherein it appears that the final judgment in the ease was rendered on the 8th day of May, 18G7. Another judgment, as appears from the record, was entered up in the case of McNeil vs. McIntosh, outlie 12th day of October, 1869. This case was not stated upon the bill of particulars, nor was it proven to have been attended to by Garland & Nash. The last item, then, was the only one that came within the time prescribed by law for the prosecution of such suits. But it is claimed by the appellees that this was a mutual, running account, of such a nature as comes within the rule that items within three years draw after them - other items beyond that period. This, we think, is erroneous.

To constitute such an account there must be a mutual credit, founded on a subsisting debt on the other side, or an expressed or an implied agreement for a set-off of mutual debts. Angelí on him., 138,an’d-authorities there cited. •

A natural equity arises when there are mutual credits between the parties, or when there is an understanding that mutual debts shall be a satisfaction or set-off, pro tanto, between the parties.

The only thing the appellees can claim that their account ivas a “ mutual open account current,” was the fact of the payment of fifty dollars by the appellant. But it has been ivel? settled, that when payments have been made by one party, for which credits are given by the other, it is an account without reciprocity and only upon one side. Angell on Lim., 138; Ingraham vs. Sheward, 17 Serg. R., 347; Prenalt vs. Runyon, 12 Ind. 174; Peck vs. N. Y., etc., Steamship Co., 5 Bos. N. Y, 226; Weatherwax vs. Casomnes & Co., 17 Cal., 344.

The items, in the account before us, q,re all on one side, there being none on the other, except a credit of payment. We think the term mutual open account current” means something more than charges on one side and credits of payment on the other.

There'being no mutuality in the account between the parties, the statute cuts off' so much as accrued more than three years before the commencement of the suit, unless otherwise taken out of its operation.

In a review of tlie whole case, the verdict of the jury was not warranted by the law and evidence; therefore it is reversed, the cause remanded with instructions to sustain the motion for a new trial, and proceed with the case in accordance with law.


source: Caselaw Access Project

author: Harrison, J.

license: Public Domain

text:
    CLONINGER AND WIFE v. RHODES et al.
    APPEAL EROM POPE CIRCUIT COURT.
    IIon. "W\ N. Mat, Circuit Judge.

      Clark $ Williams, for Appellees.
   Harrison, J.

The appeal in this case was taken in the court below, on the 13th day of October, 1870, but the appellant has filed no transcript of the record and proceedings of the cause, in this court. The appellee has filed a motion to dismiss the appeal. The appeal is dismissed.


text:
    EVANS v. WALKER, Adm’r, etc.

      Appeals — When dismissed. — When, on appeal, the transcript is not filed within the time prescribed by law, the appellee, on filing a certified copy of the judgment and order of appeal, may have the same dismissed.
    APPEAL EROM PRAIRIE CIRCUIT COURT.
    IIon. John ’Whytock, Circuit Judge.

      Clark § Williams, for Appellee.
   Harrison, J.

At a former day of the present term, “the appellee filed a motion to dismiss the appeal in this case, because no transcript of the record and proceedings had been filed in this case.

He filed with his motion a certified copy of the judgment, and order of appeal, from which it appears that the appeal was taken in the court beloiv, on the 10th day of April, 1869. According to section 862, of the Code, the transcript should have been filed within ninety days after the appeal was granted. None having been filed even up to this time, the motion should be sustained and the appeal dismissed.


author: Bennett, J.

text:
    JONES, Ex parte.
    Constitutional Law — Act January 21, 18.61. — There is no prohibition, either in the Constitution.of 1836 or 1868, against the exercise of the power, by the Legislature, of establishing more than one place for holding Circuit Courts within the limits of any county in the State, and the act of the 21si of January, 1861, entitled “An act to establish separate courts in the county of Sebastian,” so far as it designates Port Smith as the proper place to hold a Circuit and Probate Court, is valid.

      Courts — Action of, when void. — The holding of a court at a time or place, 'other than that prescribed or authorized by law, and all proceedings thereunder are cora/m nonjudice and void.
    PETITION E0R HABEAS CORPUS.

      U. M. Rose, for Petitioner.
    Under tbe Constitution of 1836, tbe Circuit Courts were regarded as tbe principal courts of assize of their respective counties — bad jurisdiction throughout tbe county for which it was held, and bold at tbe county seat. No other Circuit Courts were known, and we should give to tbe language tbe same meaning which it had in the minds of those who used it. State vs. Scott, 9 Ark., 270; Allis, ex parte 12, Id., 101. The Constitution of 1868 did not continue in force any law which was opposed to the Constitution of 1836, though it might not come in conflict with its own provisions. Const., 1868, Sec. 16. . The act of 1860, was therefore, not made good.
    The words “ Circuit Courts,” in the Constitution of 1868 have the same meaning as in that of 1836. Const. 1868, Art.

      VII. Sec. 1.
    The unity of a county as a quasi municipal corporation as much requires that' there shall be but one Circuit Court for that county, as that there shall be but one County Court. Two Circuit Courts exercising the same supervisory control of it over one County Court, ‘would subject the latter to a state of misery forbidden by the Constitution. Const. 1868, Art. 1, Seq. 7. '
    The greater part af the acts of 1860, and 1871, being manifestly unconstitutional, tlie whole must fall. Leach vs. Smith, 25 Ark., 256 ; Patterson vs. Temple, MS. opinion.

      Montgomery, Attorney General, for tlie State.
    The court held at Port Smith, at which the prisoner was convicted and sentenced, being held within the jurisdiction of the judge holding the same, was a tie facto court if not cle jure. . '
    When a person voluntarily submits to the jurisdiction and does not attempt to question the authority, the action of the court is valid. Hives vs. Pettit, 4 Ark., 582.
   Bennett, J.

Qn the 24th day of May, 1872, James N.‘ J ones filed, in this court, a petition for a writ of habeas corpus, alleging he was illegally detained by George S. Scott. The writ was issued. The return upon it states that the petitioner is held by him as keeper of the State penitentiary, by virtue of the commitment and order of the Circuit Court of the county of Sebastian, held at Fort Smith, on the 16th day of October, 1871.

To which return the petitioner files a general demurrer.

The legality of the commitment and order of the Circuit Court is only questioned by the demurrer, upon the ground that the court was not held at the time and place prescribed by law.

On a previous day of this term, in the case of Patterson vs. Temple, MS. opinion, we had occasion to review the various laws of the General Assembly, the acts of the people and the proceedings and orders of the County Court of Sebastian county, since July 21, 1868, in relation to their county seat matters.

In that case, we decided that Greenwood was the county seat of Sebastian county, and that the act of the General Assembly, approved March 28, 1871, was unconstitutional and void.

These being the only points raised, in the record of that case, tliis court did not feel warranted in going further, hut left the questions of time and place of holding the various courts in that county, as it was by law declared previous to that time. On the 21st day of January, 1861, the General Assembly approved an act entitled “ An act to establish separate courts in the county of Sebastian.” This enactment provides that for the purpose of holding Circuit and Probate Courts, Sebastian county shall be divided into two judicial districts, and what shall be the jurisdiction of these courts within those limits, and what shall be the jurisdiction of them generally, throughout the county. This act provides for the putting of these separate courts into active operation. It also disclaims any intention, by expression or implication, to make any division of the county otherwise than for the- purposes named, and says: “As to all matters not within the provisions of this act, the county of Sebastian shall be one' entire and undivided county.” It does not disturb the Circuit or Probate Courts, previously established at Greenwood, flic county seat, only so far as it, in part, restricts their territorial jurisdiction. It does not undertake to disturb the unity of the county as a quasi municipal or political corporation. It does not interfere with any of its corporate powers or the authority that had charge of the fiscal affairs of the county. It does not attempt-to institute the mode whereby the citizens of one portion of the county may be taxed more, and in a different manner than the other. It does not purpose to divide the debts and responsibilities of the whole county, and apportion them to Be paid by certain localities, as was the case in the act of March 28, 1871. But this act merely, in effect, establishes a Circuit and Probate Court at Fort Smith, and defines their territorial jurisdiction. Could the General Assembly do this as far as the Circuit Courts were concerned, and not violate any constitutional provision? We think it could.

We find by reference to Section 1, Art., 6, of the Constitution of 1836, “ That the judicial power of this State shall be vested in one Supreme Court, in Circuit Courts, in County Courts and in justices of the peace. Tlie General Assembly, * * * when they deem it expedient, may establish Courts of Chancery.” •

Section 3, of the same Constitution, defines the'general jurisdiction as to subject matter of Circuit Courts, but is silent as to territorial limits, and provides that this court should be held “ at such place, in each county,” as might be by law directed. Section 5 says, Circuit Courts shall exercise a superintending control over the County Courts, and over justices of the peace, in each county, in their respective circuits, etc. Section 6 gives to Circuit Courts chancery powers.

Tt is conceded to be a correct doctrine that every enactment of the State Legislature is presumed to be constitutional and valid; that before it can be pronounced otherwise, that clause of the Constitution must be clearly designated with which the act of the Legislature conflicts, since the Legislature, representing the people, have, as a rule, power to pass any and all acts except those prohibited by either the State or Federal Constitution. State vs. Ashley, 1 Ark., 513; Eason vs. State, 11 Ark., 481; Leach vs. Smith, 25 Ark., 251.

Under the Constitution of 1836, Circuit Courts were emphatically State Courts, having general jurisdiction, and were tribunals for the general administration of justice. They were not restricted in their operations to any prescribed territorial limits as far as that Constitution was concerned. True, it is rare (and we know of no instance) to find more than one Circuit Court, or court of general assizes established within a county, throughout the States of the Union, unless it has a large number of inhabitants within its limits, and where one such court could not transact the business which would naturally aiise without great delay and injustice.'

While we may not wish to encourage the policy of establishing more than one place for holding Circuit Courts within the limits of airy county in this State, thereby subjecting sparsely •settled communities to the great burden of paying for the expense of such courts, yet, should the law-making power think the due administration of justice demands .such a course of action, we can find no constitutional provision,* cither in the Constitution of 1836 or 1868, that would prohibit them from so. doing, but public policy would seem to demand that they-hesitate long and deliberate well before taking such a step.

The act under consideration, so. far as it designates Fort Smith as the proper place to hold a Circuit and Probate Court, is valid.

It appears, affirmatively, by the-record'which is filed with the petition, that James N. Jones, the petitioner, was convicted of larceny and sentenced to the penitentiary at a term of the Circuit Court begun and held at Fort Smith, in that county, on the 16th day of October, 1871, if being the third Monday after the fourth Monday in September of said year. This was not the time for holding Circuit Courts at Fort Smith.

By an act of the General Assembly, approved February 4, 1869, we find the Circuit Courts of the Fifth Judicial Circuit shall be held as 'follows, to-wit: In Sebastian county (Fort Smith district), on the fifth Monday after the fourth Mondays in March and September. How does this affect the rights of the petitioner ?

In the ease of Brumley vs. State, the court say: “ The meeting together of the judge and officers of court at the place, but not at the time fixed by law for holding the court, was not a court under our Constitution and law, but was a mere collection of officer’s, whose acts must be regarded as coram non judice and void.” Brumley vs. State, 20 Ark., 78; Dunn vs. State, 2 Ark., 229.

In the case at bar, the judge was clothed with no judicial authority; there was no court, consequently no judgment.

The defendant, James N. Jones, will be discharged from the custody of the keeper of the penitentiary, and remanded into the charge of the sheriff of Sebastian éounty, to be proceeded against, according to law, for the offense of which he is charged.


text:
    STOW, Ex parte.
    PETITION EOR HABEAS CORPUS.

      U. M. Rose, for Petitioner.
   Bennett, J.

There is no difference'between the questions presented in this petition, and those in the case of Jones, ex parte, just decided, with the exception that he was convicted at a term of the Circuit Court, begun and held at Fort Smith, in the Fort Smith district of Sebastian county, in the State of Arkansas, on the 30th day of Api’il 1872, it being the second day of the April term of said year, at 10 o’clock a. m.

It appears, from the transcript of the case filed, that the regular Circuit Judge, Hon. E. D. Ham, was not present at the time proscribed by law for opening the regular spring term of the Circuit Court, at Fort Smith, in the Fort Smith district, viz : on the fifth Monday after the fourth Monday in March, which would have been on the 29th day of April, 1872. It also appears that in obedience to See. 9, Art. 7, of the Constitution of the State, the attorneys of said court elected T. II. Barnes, Esq., as a Special Judge, to hold the court, who was qualified and presided at the trial of the petitioner.

These proceedings, together with all the subsequent ones, appearing to be regular and at the time and place prescribed by law, the judgment and commitment are good and binding.

Therefore, defendant Stow will be remanded back into the custody of George S. Scott, the'keeper of the penitentiary, to serve out his sentence according to law.


text:
    STEPHEN TRIMBLE v. THE STATE.

      'Gaming — Who liable for. — Wherever a gambling table or gambling device is kept, set up or exhibited within the State, all, whether proprietor, clerks, servants or agents, who aid or assist in the keeping, setting up or exhibition, are liable to indictment and punishment.
    Same — “ Kenof a gaming device. — The game called and known as “Aereo,” is a game at which money or property may be won or lost, and is a gaming device within the meaning of the statute.
    APPEAL EROM DREW CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit Judge.

      Montgomery, Attorney General, for Respondent.
   Bennett, J.

Appellant was indicted in the Circuit Court of Brow county, on the 13th day of April, 1871, for exhibiting a certain gambling device, which was adapted and designed for the purpose of playing a game of chance called “ heno,” at which game money could be lost or won.

April 15th, the appellant appeared in court, in obedience to the summons issued upon the indictment, and moved the court 'to quash it,- which motion was overruled. Verdict oí guilty. Motion for new trial overruled. Appeal taken.

The motion contained the following grounds for á new trial:

First. Because the court erred in oyerruling his motion to quash the summons herein, whereby he was surprised.

Second. Because the verdict was contrary to law and evidence.

Third. Because the court overruled the defendant’s offer to introduce the evidence of Richard E. Banks, herein.

Fourth. Because the court overruled the instructions asked for by the defendant.

Fifth. Becaus’e the court gave the instructions asked for by the State.

Sixth. Because the judgment was not responsive to the verdict.

Why the appellant moved to quash the summons does not appear in the record. The defendant was charged with a misdemeanor, and that was a public offense for which he was liable to immediate arrest and prosecution. The summons, while not in the exact words of- a warrant of arrest, yet, it had performed the office of one, and, by its authority, had brought the defendant into court to answer the charge of the grand jury. This was sufficient. This cause, therefore, was no ground for a new trial.

Was the verdict contrary to the law and evidence?

In reviewing this question, we shall take into consideration the second, third, fourth and fifth causes assigned for a new trial, which only raise the question : Is a clerk, servant or employe, equally responsible with the owner of the device ?

During the trial, the appellant offered to prove that he was acting in the capacity of a clerk or servant for another, person, and was not proprietor of the gambling device. The only object of the proof was to avoid the offense as charged in the indictment, as shown by the instruction asked for by the defendant, which was as follows: “If the jury.believe, from the evidence, that the defendant was merely an employe, clerk or servant in the house where the gaming device was charged to have been exhibited, and had nothing to do with the profits, hazards or chances of the game, and was on wages from the main proprietor, they will find the defendant not .guilty.”

This instruction was properly overruled. The defendant might keep the keys and have the actual use of the building, admit or exclude visitors, receive money for admission and do •every act incident to the keeping of it as a place of public resort for gaming, and still be only a clerk, servant or agent for another. ¥e- do not conceive that the statute, under which he is indicted, makes it necessary, in order to charge one with the offense therein prohibited, that he shall directly receive the gain or- reward to his own use; although it is obvious that a man would not be likely to be. employed to keep such an establishment unless it yielded some gain or profit, and though a clerk, it may be reasonable to infer that his payment came out of these gains.

But a far more satisfactory reason why a clerk, servant or agent for a gambler, in a gambling house, should be liable equal with the proprietor is, that the criminality of the acts prohibited, is in opening" and keeping a place of public and common resort, to which access can be had for the purpose of .gáming. Thus offering temptations to the idle and dissolute, and endangering the quiet and peace of neighborhoods and communities.

This is the mischief intended to be prohibited, and is as much fostered and created by him who, de facto, sets up, keeps or exhibits any gaming table or gambling device, and suffers persons to resort there, whether he does so from his own will or by the procurement of another, and whether for his own emolument or that of another. Commonwealth vs. Drew, 3 Cush., 279.

The terms used in the statutes, “every person who shall set up, keep or exhibit any gaming table or gambling device * * ■of any description, * * * be the name what it may, adapted, devised or designed for the purpose of playing any game of chance, or at which money or property may be won or lost, shall be deemed guilty of a misdemeanor,” etc., manifestly characterized that such gambling devices were dangerous to the morals and peace of the community. The design of the statute was to suppress all such institutions, and we may safely say, that no gambling table or device has ever beeninvehted, by man, that is more pernicious in its influences than that of “henoIt is very simple. A child can learn it as well as a grown person. This very simplicity isjwhat renders it. so dangerous to the laboring man or mechanic, who, having a few dollars in his pocket, wishes to try his luck, and not having time to learn the principles of other games, trusts blindly to “keno.” Like lottery, this game possesses an unusual attraction, owing, ho doubt, to the fact that sometimes fifty dollars may be won in five minutes by an outlay of as many cents. It is, however, an hundred chances -to .one that the player will come nearer losing that amount in trying ta win a “yoi.”

If the law was, as asked for by the defendant, that the clerk or agent of the owner could exempt himself from the penalty of the law, by showing that he' had kept the gambling tabíe or device for the use and benefit, and by the authority of another person, it would let in all’ the mischief intendéd to bo prevented by the statute.

A person, residing out of the State and beyond the jurisdiction of its laws, by taking the lease of rooms and. employing unconscionable and unscrupulous clerks and agents, might wholly defeat the salutary object of the law; but such is not the intention. . Wherever a gambling table or 'gambling, device is kept, set up or’ exhibited within the State, all, whether proprietors, clerks, servants or agents, who aid or assist in the keeping, setting up or exhibition, are liable to indictment and punishment.

As to the instruction given on the part of the State, it certainly was law and properly given. It left the jury to determine, from the evidence, whether the defendant did exhibit such a gambling device as was charged in the-indictment. The jury found he did, and properly so, from the evidence as shown on the record.

The witness, Henly, said ho saw the defendant on or about the 7th day of April, 1871, assist in the exhibition of a game of “keno; ” that said game of “keno” is a game at which money or property may be lost orwon, and that money was lost and won at such exhibition.

Witness, Kidd, said he had seen the defendant, at the time charged in the indictment, exhibiting a device called keno. Keno is a game at which money or property can be won or lost, and money was lost at that time, but none was risked by the defendant or by the owner of the device. The owner made nothing but commissions.

It was also agreed by the counsel for the defendant and the prosecuting attorney, that keno is played by a device containing figures, and the players pay an equal amount for the cards, which are' numbered and registered; the first number registered .completing a line of figures gets all the money paid for the cards bought, except a commission of ten per cent., which goes to the keno keeper.- .This ivas all the evidence.

The two Avitnesses swore positively that the defendant assisted in, and did exhibit this game of keno, and that such game is one at which money may be lost and won. The jury could not have found any other verdict and had any regard for their oaths.

As to the sixth cause assigned for a new trial,, upon an examination of the record, it Avill be seen that the judgment is in almost the exact words of the verdict. No judgment could have been more responsive to a verdict.

No error appearing, the judgment is affirmed.


text:
    PORTIS v. THIS STATE.

      “Keno” — A gambling device, etc. — All persons who play at the gamo commonly . called and known as “Keno," are guilty of gambling; and the person who sets up, keeps or exhibits this apparatus, contrivance or machine, is guilty of setting up, keeping or exhibiting a gambling device, and is liable to the penalties of the statute.
    Misconduct oe Jury — When defendant cannot complain. — Where misconduct on the part of jurors has been of injury to a party, it is the duty of the court to set aside the verdict, but the defendant cannot complain where the act or misconduct would have been for his benefit.
    APPEAL FROM JEFFERSON CRIMINAL COURT.
    Hon. I. McL. Barton, Criminal Judge,.

      J. A. Williams, for Appellant.

      Montgomery, Attorney General, for Appellee.
   Bennett, J.

This is a conviction for exhibiting a gambling device.

■The record presents three questions for adjudication. 1st. Bid the indictment allege a public offense? 2d. ■ Bid the defendant exhibit a gambling device? 3d. Was there such misconduct on the part of the jury, trying the case, as to warrant the court to set aside the verdict ?

Bid the indictment allege a public offense ?

The indictment accuses James M. Portis of the crime of exhibiting a gambling device, committed as follows, viz : “ The said James M. Portis, in the county aforesaid, on or about the 3d day of January, 1871, did then aqd. there unlawfully set up and exhibit a cértain gaming bank or gambling device adapted, devised or designed for the purpose of playing a game of chance or at which money or property may be won or lost, and property was won or lost at the time of said exhibition, which said gaming bank or gambling- device ' aforesaid, is.commonly called “keno.”

. This kind of a gambling bank or gambling device is not specifically named in the statute, nor is it known judicially to the court. Therefore, in order to determine that it falls within the denunciations of See. 1, Art. 3, Chap. 51, Gould’s Digest, which denounces heavy penalties against those convicted of its violation, it should appear that-the table, device, bank or machine is such as is used for gambling for money or property. The statute denounces, by name, the setting up, keeping and exhibiting, for instance, a faro bank, at which money can be lost and won. Thus a legal signification is given to a device or table of that kind and is specifically prohibited. But not-so with “keno.” This only, if at all, is denounced under the general prohibition. The indictment must show that it comes under this general prohibition.

The indictment under consideration shows that the words of the statute were literally followed.

An indictment based upon a statutory offense is good if it follows the statute. People vs. Beatty, 14 Cal., 566; Spratt vs. The State, 8 Miss., 247; State vs. Ward, 9 Texas, 370; Cram vs. State, 14 Ib., 634; Reeves vs. State, 9 Ib., 447.

The demurrer was properly overruled.

Bid the defendant exhibit a gambling device ?

The scheme is .denominated “keno,” a gaming bank or gambling device, at which money or property may he won or lost. It is an invention or device of modern date, ingeniously contrived to evade the law against gaming and lotteries. The plan is thus described by the witnesses: “ The keeper of the game has a globe; there are put in it ninety balls, each numbered, from one to ninety, and then there are kvo hundred cards, with fifteen numbers on each card, five numbers in each row; then each player buys a card which contains the fifteen numbers, for which he pays the keeper of the game fifty cents, and others do likewise until several cards are sold; the roller, as he is called, turns the globe over and takes out one of the balls and calls out the number of such ball, and if any one of the players have a number on a card which they have purchased, corresponding to the number so called out, such player puts a check on such number on his c'ard, and so on, at each call by the roller, until one of the players has five checks in a row on his card, and then he has made what they call “keno,” and then the game stops. The globe, from which the balls aró-taken by the roller, sits upon a table, in one end of which is a drawer from which change is made by the collector, and chips, frequently issued in lieu of money, redeemable by the collector; and the person who collects the money from the parties who have bought cards, tajees up the card that has “ kenoecl” and calls its number, and if it is pegged, its number is also called by the roller. The collector then calls out the numbers on the card that are contained in the row that has “ kenoed,” and as he calls a number, the roller examines the balls that have come out, and if the numbers called out by the collector, as being on the card, correspond with the balls that are out, the collector announces that “ heno is correct,” and tho money that has been .paid for the cards sold, is paid over to the holder of the lucky card.”

Is this a gambling device ? Gaming is the risking of money, between two or more persons, on a contest or chance of any kind, where one must be loser and the other gainer. Some games depend altogether upon skill, others upon chance, and others are of a mixed nature. Billiards arc an example of the first, lotteries of the second, and backgammon of the last. 2 Bouvier’s Law Dic., 553.

' Device is something formed by design, and has reference to something worked out for exhibition or show.

A gambling device may then be defined to be an invention to determine the question as to who wins and who loses, that risk their money on a contest or chance of any kind.

The denunciations, however, of tho statutes are against banks and devices, constructed for and used for gambling purposes, and not against such as are constructed and used for purposes of amusement, -as chess, and backgammon, etc. It was the great evils of gaming tables and the thousand and one gambling devices that are constantly being invented to evade and cheat the law, it was intended to suppress. These statutes should he liberally construed by courts of justice in aid of the legislative intention, so, if possible, to rid communities of these growing corruptions and to check these pernicious practices.

This “ keno ” institution, with its globes, balls and cards, so far as the court, is advised, was not invented for the purpose of innocent amusement or pleasant pastime, but is set up, kept and exhibited to induce numerous persons to buy the use of cards at a small sum of .money, with a chance, by the aid of the other appliances of this device — (the balls, globe, and lackey who turns them), to win a much larger one, the sum total of each one’s contribution. While the keeper or exhibitor is certain to get the per centage for the use of his device, yet he, by its assistance, determines the question as to whether A or B shall take all the money, less the per centage, or whether they shall lose what they have contributed for the use of the cards. It is not that species of gaming called a lottery. A lottery, says Webster, is a “ distribution of prizes by chance.” The prizes have an existence before tickets are sold; but in “ keno,” each player puts up his fifty cents to make an aggregate sum, which is the amount played for.

The description given of this game, by the witnesses, makes it purely a game of chanco; for each person putting up money, in effect, bets that the card he has selected contains the numbers which will entitle him to the money of the others engaged in the game, and this bet is determined by the device exhibited. According to every correct idea of legal construction, this is gaming, and all 'players are guilty of gambling, and the person who sets up, keeps or exhibits this apparatus, contrivance or .machine, is guilty, of setting up, keeping, or exhibiting a gambling device, and is liable to the-penalties of the statute.

The evidence, as is disclosed by the record, is positive and clear that the defendant did exhibit this gambling device as charged. Both law'-and evidence fully sustain the verdict.

Third. Was there such misconduct on the part of the jury trying the case, as to warrant the court to set aside the verdict ?

During the trial, one of the jurors sitting in the case, and while a recess was had, said to one Bluther, that if he (Bluther) would give him (thejuror) fifty cents, he would hang the jury so that the defendant wouldget clear of “keno.” Where misconduct on the part of jurors has been of injury to a party, it is the duty- of a court to set aside the verdict. It was misconduct on the part of the juror to offer to hang the jury for the defendant for money. But it appears he did not do.what he offered to do, but decided according to the law and the evidence, and no injury resulted from the act. If he had done what he offered to do, the State and not the defendant, would have been the injured'party, and the defendant.cannot complain of an act that would have been for his benefit. This juror should have been heavily fined, but his act created no cause for a new trial. *

No error appearing in the record, the judgment of the Criminal Court of Jefferson county is in all things affirmed.


author: Searle, J.

text:
    HOWELL v. GRAVES et al.

      Conversion — Recovery where tort waived. — Where defendant converts property of plaintiff to his own use,- and plaintiff waives the tort and elects to sue on an implied promise, he can only recover the amount actually received by the defendant.

      Practice — Where nature of action resembles form under old system. — Where the action in its nature, under the Code of Practice, resembles the form of an action under the old system of practice, the law for the introduction of evidence and the giving of instructions to the jury under the old system, will ordinarily be observed.
    “APPEAL PROM YELL CIRCUIT COURT.
    IIon. William N. May, Circuit Judge.

      W. C. Ratcliffe and T. IX W. Yonley, for Appellant.
    We submit tliat tbe court erred in giving tbe second instruction of tbe plaintiffs, as tbe evidence clearly shows that the appellees were not partners, in respect to the transaction or cause of action upon which the instruction was basedSee Oliver vs. Gray, 4 Ark., 425; Kent. Com. vol. 3., Sec. 24; Champion vs. Bostwick, 18 Wend., 175; Louis vs. Marshall, 12 Cowen., 69 ; Slory on Partnership, Secs'. 27-29.

      A. II. Garland, for Appellees.'
    There being some evidence to sustain the finding, the court will not interfere on the facts. Rose Big., 559, new trial, sec. 45.
    That appellant should he held to account for the non-performance of his contract. See ü. S. vs. Kulle, 9 Waii., 83; 8 Howard, 578 ; 11- Howard, 162 ; 4 Wall., 185 ; 2 Parsons’ Cont. 636-675.
   Searle, J.

Jacob Graves and Jonathan Shoemaker brought their action against John B. Howell, in tbe Yell Circuit Court, to tbe May term thereof, 1871, for tbe recovery of the value of certain cotton alleged, in their complaint, to have been delivered by them to defendant to be by him sold at Little Rock, Arkansas, etc.; and also for the recovery of the value of certain bagging and ties alleged to have been delivered by them to him.

The defendant answered, setting up several matters in resistence of said demands.

The issues were tried by a jury and verdict and judgment rendered for the plaintiffs to the full extent of their demands.

The defendant moved for a new trial on the following grounds:

Because the verdict of the jury was contrary to the evidence.

Because the verdict was contrary to the instructions of the court; and

Because the court improperly instructed the jury.

The motion was overruled; to which defendant excepted and filed his bill of exceptions, setting forth all the evidence and the instructions of the court, and instructions asked to be given and refused, a transcript of .which is before us as part of the record in the case.

It is scarcely necessary to • notice the first and second grounds of the motion for a new trial. Our attention will be directed chiefly to the third.

It seems that in the fall of 1864, the plaintiffs picked and baled seven bales of the defendant’s cotton, near Lewisburg, Arkansas, and received for their labor one undivided third thereof; that in the winter of 1864-5, they contracted with defendant to ship their said cotton to Little Rock; that defendant accordingly shipped it together with two other bales belonging entirely to them, to Little Rock, and placed it in the hands of one Tucker, as his own, to be by him shipped to some eastern market; that it was shipped to Memphis and Philadelphia and sold for less than it would have brought at Little Rock, and that defendant paid plaintiffs three hundred dollars upon their cotton. It was further in evidence (though the evidence on these points was very conflicting) that the plaintiffs, upon defendant’s undertaking to ship their cotton, instructed liim to sell it at Little Rock, on his arrival there; that upon his return to Lewishurg and stating to the plaintiffs what he had done with their cotton, they disavowed his acts. At least these latter facts were found by the jury, which was competent for them to do from the conflicting evidence in relation thereto.

The defendant asked the following instruction: “If the defendant converted the property of the plaintiffs to his own use, and they have waived the tort, and elected to sue in assumpsit or on an implied prpmise, they can only recover the amount actually received by him, and if this amount has already been paid to them, the jury will find for the defendant;” which was refused; and in lieu thereof, the court gave the following instruction : “If the jury believe, from the evidence, that the plaintiffs were 'entitled to 0110-third of the proceeds of seven bales of cotton, and were the owners of two other bales of cotton, and that said cotton was placed in the hands of the defendant, as their agent, for shipment to Little Rock on the contract between the parties, that the said defendant should sell the same at Little Rock, and that the said defendant, in defiance and violation of said contract, shipped the cotton to another point, and by said violation of the contract, the plaintiffs were losers to the amount sued for, they must find for the plaintiffs.”

The complaint alleges no conversion. After setting forth the value of the cotton, it simply, in effect, asks for a judgment for money had and received. The conversion which the evidence, though conflicting, seems to disclose, and which the jury found as the basis of their verdict, was waived. The plaintiffs, consequently, could only recover what the defendant actually received for the cotton, or what the cotton actually sold for. Bowman vs. Browning, 17 Ark. 600; Hudson vs. Gilliland, 25 Ark. 100; Pratt vs. Cork, 12 Cal. 90.

The complaint must be framed with precise reference to the specific remedy invoked, as prescribed in Section 101, Code of Civil Practice: Smith vs. Knapp, 30 N. Y. Where an action in i'ts nature, under our code system of practice, resembles any form of an action under the old system of practice, the law for the introduction of evidence, and proper to be given in instructions to the jury under the latter system, will, ordinarily, bo observed in the former, though the code abolishes all forms of actions but one. In order to recover the value of the cotton when it should have been sold according to the instructions of the plaintiff's, the complaint should have alleged the conversion and asked a judgment for damages, and the measure of damages would have been the value of the cotton, ascertained by the jury, at the time of the conversion.

The court erred in relation to the above instructions, in giving the one and refusing the other.

As to the bagging and ties sued for, it appears from the evidence that the same were furnished the defendant by one of the plaintiffs alone; notwithstanding which, the court instructed the jury that “If they found the bagging and ties were furnished the defendant by the plaintiffs, or either of them, they will allow the plaintiffs the full value thereof.”

This was certainly erroneous; the plaintiffs were not partners in, or joint owners of the bagging and ties. Plaintiff, Shoemaker, was solo owner of them. The joinder of the plaintiffs, therefore, for the recovery of the value thereof, was improper, and the court should have, instead of giving the last above mentioned instruction, ordered the complaint amended by striking out this cause of action.

. For the errors above pointed out, the judgment of the court below must be reversed, and the cause remanded for a new trial, to be had according to law, and not inconsistent with this opinion.


text:
    NORDMAN v. CRAIGHEAD, Guardian, etc.

      Pleadings — Practice changed by Code. — Sec. 48, Chap._ 28, Gould's Digest is repealed by the substitution of the amendedr.>Sfee¡íiore 14S of the Code of Civil Practice, and is applicable to proceedings both at law and in equity.

      Same — Requisites of. — The pleading- must contain the facts constituting the cause of action, or grounds in defense when matter in the answer or reply is relied on; apd the pleader should Ale with, and refer - to, in his pleadings, in a manner sufficiently explicit to identify them, such writings as are relied on, and which may not be,'strictly speaking, evidence.
    Same. — So much of the deed or writing relied on and referred to' as may be necessary to show the character and purpose of such reliance, must he set forth in terms or substance in the pleading.
    Practice— When motion, not demurrer, proper. — When a deed or writing constitutes. no part of the averinents of the pleading, a failure to file it cannot he reached by demurrer.
    APPEAL FROM JEFFERSON CIRCUIT COURT.
    IIon. IIenry B. Morse, Circuit Judge.

      A. II. G-arland, for Appellant.
    The complainant failed to file with bis hill the original deed, ór a copy of the same, or to state that he could not procure said deed, or a copy thereof, on which he relied; his bill should have been dismissed. Sec. 48, Chap. 28, Dig.; Sec. 148, Ark. Code; 11 Ark. 121; Hill, use, etc. Wintersmith vs. Barrett, etc., 14 B. Mon. 86; 2 Metcf. Ky. 88; 25 Ark. 30. The assignment of the notes to complainant did not convey the equitable lien of the vendor. Moon $■ Cail vs. Anders, 14 Ark. 365; Inglehart vs. Armiger,l Blande, Chancery, Md. Nor is there any allegation in the bill that he became subrogated to the personal, or equitable rights of the vendor.

      B. S. Johnson, for Appellee.
   Searle, J.

John P. Craighead, appellee herein, as guardian, etc., filed his complaint, in equity, in the Jefferson Circuit Court, against Eugene Nordman, appellant herein, to enforce a vendor’s lien for the’ parpóse of securing the payment of two promissory notes, etc. The complaint avers, among other things, that one Owen sold, by deed of conveyance, to the said Nordman, certain described real property; that a part of the price of said property was paid down; that notes were executed and delivered to the vendor for the balance; that a special lien'was reserved in said deed to secure the payment of said notes; that the notes wore assigned, together with said vendor’s lien, to said complainant, and that a copy of said deed would be filed, if necessary, etc.

At the May term, 1871, of said court, the same being the return term, the said Nordman filed a demurrer to the complaint upon the following grounds, namely: 1st, That the complaint sets up the fact- of the existence of a certain deed to the land referred to therein, and does not make the same a part thereof. 2d, That-it does not appear from'said complaint that said deed referred to therein is filed and ma'de a part of the same.

The demurrer was overruled; a decree rendered, as prayed for, and appellant appealed to this court. Two questions, we presume, were intended to be raised by this demurrer, namely : 1st, Should the deed, or a copy of the deed relied upon, as containing the reservation of the lien averred in the complaint, have been filed? and, 2d, Should it have been made a part of the complaint ?

These questions will be considered together. Before our present system of civil practice went into operation, there was the following provision, applicable entirely to proceedings in equity: '“If either party shall rely on any record, deed or writing, the substance thereof shall be stated in his bill, answer or plea in the same manner as is required in pleading at law; and he shall file with his bill, answer or plea, as exhibits, an authenticated copy of such record, and a true copy of such deed or writing, and hold the original subject to the order of the court and inspection of other parties, in term time, if within his power.” Sec. 48, Chap. 28, Gould’s Digest. Under this section, where the pleader relied upon any record, deed or writing, the pleading should exhibit an authenticated copy of such record, or a true copy of such deed or writing, and it seems, under the old practice, such exhibitions made such copy a part of the pleading, and a failure to make such exhibition rendered the pleading bad upon demurrer. Such, at least, seems to have been the ruling of this court. Brodie et. al. vs. Skelton, 11 Ark. 121; Fletcher vs. Hutchinson, 25 Ark. 31. But this section has been repealed by the substitution of the amended Section 148 of the Code of Givil Practice, which is as follows: “If either party shall rely upon any deed or other writing, he shall file, with his pleading, the original deed or writing, if in his power, or a copy thereof. If he cannot procure such deed or writing, or a copy, thereof, he shall so state in his pleading, together with the reasons therefor, and if such reasons are sufficient, he may file the best evidence of the contents of such deed or writing in his power,” etc. This section is substantially the same as Section 48, Chapter 28, Gould’s Digest; and had our system of practice not been changed, we would not hesitate in applying the rulings of the court, upon this latter section, to the section under consideration. But our laws of civil proceedure having been completely changed by the substitution of the “Code of Civil Practice,” the provisions of this section must be applied and enforced in a manner not inconsistent with other provisions and requirements thereof. In relation to the application of the provisions of this section, and the rules relating thereto, we have derived much light from the decisions of the “Court of Appeals” of Kentucky, applying the provisions of a similar section in their “Code of Practice,” of which ours is almost a verbatim-oo-pj.

The provisions of this section, though applicable to proceedings at law, are intended to apply chiefly to proceedings in equity. Their obvious object is to compel the pleader to file with his pleadings such writings as are relied on by him, and which may not be, strictly speaking, evidence, or the foundation of the action or defense. If they are not referred to, or relied on in the pleading, hut are such as may be properly introduced, in evidence, the pleader need not file them with his pleadings: Ruggies, etc. vs. Moore, 18 B. Mon. 824.

The pleading must contain the facts constituting the cause of action, Or grounds of .defense when new matter in the answer or reply is relied upon: Secs. 109-116, Code of Civil Practice; Hill etc. vs. Barrett etc., 14 B. Mon. 86; Collins vs. Blackburn, Ib. 254.

So much of the deed or writing relied on, and referred to, as may be necessary to show the character and purpose of such reliance, must be set forth either in terms or substance in the pleading: Dodd vs. King, 1 Met. 430; Riggs, vs. Motly, 2 Met. 88; Ruggles vs. Moore, 18 B. Mon. 824. The obvious reason of this, as well as of the filing of the writing, is to give the opposing party that knowledge of the true character of the demand or defense necessary to enable him to properly resist it. But the setting out, in the pleadings, of the matters relied on, in the deed or writing,.does not dispense with the necessity of the filing of the same. Not only should such deeds or -writings be filed, but they should be referred to in the pleading, and referred to in a manner sufficiently explicit to identify them. In proceedings in equity, exhibits referred to in the pleadings and filed become a part of the record, but not, however, as allegations or averments in the pleadings : Strother vs. Dovejoy, 8 B. Mon. 139; Harman vs Wilson, 1 Duval 322, and the authorities cited above. We regard these rulings as applicable to the section (148) under consideration, and as explicit, reasonable and just.

In the case under consideration, the notes sued upon.were the foundation of the action ; the deed is simply relied upon in evidence of the vendor’s lien, avered in the complaint to have been reserved therein to secure the payment of the notes.

The complaint sufficiently contains the facts, constituting the cause of action. It sets up properly that part of the deed upon which, the plaintiff relies for relief. It also sufficiently refers to the deed. But the plaintiff, instead of filing it, or a ■copy thereof, merely proposed in his complaint to file it if necessary. The deed, or a copy thereof, should have been filed.

One other question .is here suggested, and that is, could the failure or omission to file the deed or a copy thereof be reached by clemurrer ? This question has almost been sufficiently answered by our above observations. The office of a demurrer, under the Code of Civil Practice, is to state objections apparent upon the face of the complaint or pleading: Sec. 114, Code of Civil Practice; Coe vs. Beckwith, 11 Abb. 299; 19 How. 399; 31 Barb. 339. The deed, in its nature, being-no part of the averments of the complaint, a failure or omission to file it, or a copy thereof, could not be reached by demurrer.

The appellant’s remedy for the failure of the appellee to file the deed, or a copy thereof, was by a rule of court to be granted upon his motion therefor, compelling him to file it, or show cause why he could not: Ruggies vs. Moore, 8 B. Mon. 824. The court, therefore, did not err in overruling the demurrer.

The decree of the court below must be affirmed.


author: Whytock, Special J.

text:
    H. & W. BLUNT v. WILLIAMS.

      Covenant — Plea of performance. — To breach assigned for non-payment of money, a plea of performance, by giving note and due bill, should allege that the same wore accepted by the plaintiff as a payment or satisfaction of his claim.

      Practice — Exceptions, when not considered. — Exceptions taken to the rulings of the court below, but not incorporated in a motion for a new trial, will not be considered.

      Partners — When may sue each other. — A partner may sue a co-partner on an. express agreement, and an action of covenant may be maintained by one-partner against his co-partner.

      Depositions — General objections to.- — A general objection to a deposition is not sufficient to reach an irregularity, and will not be considered as extending to formal defects..
    ERROR TO JEFFERSON CIRCUIT COURT.
    IIon. William M. Harrison, Circuit Judge.

      Watkins § Bose, for Appellants.
    The declaration is insufficient, and the demurrer to defendant’s plea reaches back to these defects. See Bose Dig. Tit. Demurrer, page 269, section 34.
    'There was no covenant to pay $4000 for the entire interest of Williams, only permission given to buy at a certain price, and no breach could be assigned: 10 Johns. 575 ; 2 Hayer. 127; 7 Cowen662.

    The declaration, not averring that the plaintiff sold and delivered up the said entire half interest to the defendants, is materially defective, and shows no cause of action as to that : 1 Bibb. 465.
    There are two distinct breaches assigned, and entire damages assessed, for one of which breaches the plaintiff had no-cause for action: Hardin 489, 2 Mon. 87.
    The court erred in not awarding a repleader: Oerritt.vs» Fain, 3 Pick 124; 14 Baym’d 167.
    It was a partnership matter, of which the court had no jurisdiction : Parsons on Cont. page 139, note Z.

      Covenant will not lie on a contract under seal, which has been materially varied by a subsequent parol agreement: 6 ■ Tort. 201; 6 Mis. 29. '

      Bell &¡ Carlton, for Appellee.
   Whytock, Special J.

This is an appeal from the Circuit Court of Jefferson county, from a judgment rendered in that (ourt against the defendants, II. W. & Wm. N. Blunt, on the ¡5th day of October, 1867. Motioiis for a new trial, and in wrest of judgment, were made and overruled. The action was brought upon a contract, or articles o’f agreement, under seal, bearing date March, 1866, executed by all the parties, and by which -the plaintiff, Williams, agreed to sell to the Blunts a half interest in the lease and outfit of a plantation, known as the McKinsev place, for the sum of $3000, to be paid for- by the Blunts as follows: “One .thousand in cash, and the balance on the return of Wm. W. Blumt from Maryland, or until the first of April” then next. The contract also provided that the Blunts should be responsible for the balance of the rent due, amounting to the sum of $1150. It was further covenanted that the Blunts should have the privilege, on the return of W- W. Blunt from Maryland, or until the said first day of April, of buying the entire interest of Williams, by paying on or before the 15th of June, in addition to the said sum of $3000, the sum of four thousand dollars.

The declaration substantially sets forth the facts, and alleges that the defendants elected to take the entire interest in the plantation, according to the terms of the contract. It' further alleges general performance'of the contract on the part of the plaintiff, breaches of the same by the defendants, and non-payment of either the sum of $3000 or the $4000.

To this declaration, the defendants filed a plea setting up that they had complied with the conditions of the contract by executing a due bill for $1000, and their note for $4000, payable on or before the 15th of June, 1866. A general demurrer seems to have been interposed to this plea, and the demurrer was sustained. The defendants thereupon filed ai amended plea, alleging a payment of $2000, the execution of their due bill for $100.0, their note for $4000, and the giving ly the plaintiff of his receipt in full satisfaction of all his interest in the plantation. This last plea also sets forth a subsequent contract, executed in lieu of the former. A demurrer to tie amended pi ea was interposed and overruled. A trial was hai, and a verdict reudered for the defendants. This was aftcwards set aside, a new trial ordered and at the October term >f the Circuit Court, a jury being called, the plaintiff obtainel judgment for the amount of $5420.

The defendants moved in arrest of judgment: Eirst, Because the declaration showed no breach ; that it appeared upon its face that, as a court of law, the court had no jurisdiction, and that the court erred in sustaining the demurrer.

The motions in arrest, and for a new trial, were overruled, and exceptions taken.

Upon the trial, the .defendants asked certain instructions, which the court refused to give, and to which refusal the defendants excepted.

The first question presented is, was the demurrer to the first plea.properly sustained?. There is no averment in the plea that the duo bill and note were accepted by the plaintiff' as a payment or satisfaction of his claim. The plea was a bad one, and the demurrer to it properly sustained : 5 T. R. 280, 1 Taunt 428; Drake vs. Mitchell, 3 East 251.

Certain instructions were presented to the court, which were refused, and exceptions taken, but as they were not incorporated in the motion for a new trial, as required by the ruling of this • court, they cannot be considered: Nevill vs. Hancock, 15 Ark. 511; Moss vs. Smith, 19 Ark. 683; Graham vs. Roark, 23 Ark. 19.

The objection that a resort should have been had to a court of equity, is not a sound one. Granting that the parties were partners, the contract in question did not involve a consideration of partnership accounts. A partner may sue a co-partner 011 an express agreement, and an action of covenant may be maintained by one partner against bis co-partner: 1 Parson’s Con. 164 (5th Ed.), Collyer on Part.; Glover vs. Tuck, 24 Wend. 152.

Tlie averments in tlie declarations are not, perhaps, so clear and specific as the rule of good pleading requires, but we think the cause of action is so set forth as to be understood. We also think the breaches sufficiently stated, no special demurrer to them having been interposed.

The defendants objected to the deposition of the witness It. N. Williams, but failed to point out the grounds of objection. A general objection to a deposition is not sufficient to reach an irregularity, and will not be considered as extending to formal defects: Blackburn vs. Morton, 18 Ark. 384.

The defendants, likewise, excepted to the ruling of the Circuit Court, refusing to- permit the witness, Sliegog, to detail statements of the transaction made to this witness by one of the defendants, when the plaintiff was not present. Wo think this evidence was properly excluded.

The judgment of the Circuit Court is affirmed.

IIarrison, J., being disqualified, did not sit in this case.

IIon. John Wiiytock, Special J.


author: Harrington,- Special J.

text:
    BRITT et al v. HAMILTON & CO.
    APPEAL PROM LITTLE RIVER COUNTY.
    'Hon. E. J.. Searle, Circuit Judge.'

      Garland $• Nash, for Appellants.

      Gallagher, Newton $ Hempstead, for Appellees.
   Harrington,- Special J.

This case was appealed, in the court below, on the 12th day of February, 1869, but the appellants have never perfected their appeal by filing a copy of the record in this court.

' The appellees now file a transcript of the proceedings in the case, and ask that it be dismissed.

' The appeal is dismissed.

Searle, J., did not sit in this case, being disqualified.

Hon. S. R. Harrington, Special J.


author: Harrington, Special J.

text:
    CARLLEE v. CARLTON et al.
    Confederate Money — -Megal consideration. — A promise or contract, the consideration of which, in whole or in part, is based upon Confederate money, is void.
    APPEAL FROM MONROE CIRCUIT COURT.
    TIon. John E. Bennett, Circuit Judge.

      Watkins $ Bose and Wassell ‡ Moore for Appellant.

      Clark 8¡ Williams, for Appellee.
   Harrington, Special J.

This was a hill for the specific performance of a contract for the conveyance of land, determined in the Monroe County Circuit- Court.

The material facts in the case, as they .appear from the record, are: That in August, 1864, one C. ~W. Richardson and wife sold to C. C. May a certain tract of land in Monroe county, Arkansas, containing three hundred and twenty acres, for the sum of three thousand .seven hundred dollars, acknowledging payment in full, and giving a bond in the sum of seven thousand four hundred dollars to execute a deed whenever called on so to do.

Sometime after, and before such deed had been executed, Richardson died, and the bond for the deed having been assigned by May to Charlotte C. CarlLee, the appellant, she brought her suit against Robert C. Carlton, as administrator, and others, as heirs, of said Richardson, to compel the making of a deed according to the terms .of said bond.

The appellees demurred to the bill of complaint; setting up that upon the face of the bill it appeared that the consideration, upon which the contract in said bill set forth was based, had not been paid, nor any part thereof, and for other good cause, etc.

The court sustained the demurrer, the appellant excepted, and the case is here upon appeal.

The bond for title, upon which this action is brought, after citing the obligation, the sale and description of the land,.proceeds as follows,to wit: “Now the said C. W. Richardson and P. P. Richardson, his wife, acknowledge that they' have received. of C. C. May thirty-seven hundred dollars in eleven notes of the Confederate States, for $100 each,, drawing two cents per day; eight hundred and seventy-seven dollars'in Missouri State money, and the balance in Confederate money, $1460 50, making in all, interest, etc., thirty-seven hundred dollars, the full amount C. C. May was to pay for said lands.”

Hoes this constitute a consideration requiring or admitting the enforcement of a contract based upon it ?

This court has repeatedly held that contracts made in consideration of Confederate money were void: 25 Ark. 246-274; 26 Ark. 1-36-160-446.

Rut the counsel for appellant urge that the phrase, or language, “Missouri State money,” must be construed to mean “coin of the United. States,” and that therefore the contract does show a valuable and. lawful consideration; while the counsel for appellees claim that the currency actually paid and referred to in the bond as “Missouri State money,” was a Confederate issue, and is subject to the same rule as Confederate money.

In the absence of all proof, we will not attempt to say what was actually paid and designated “Missouri State money,” nor, indeed, is it material in determining the question before the court, what'it was that was thus paid and designated.

The language used in the bond shows that the contracting parties did not consider themselves contracting in the lawful currency of the natjon. They have dropped that familiar and important phrase, “lawful money of the United States,” and say “bound unto the said C. C. May in the sum of seven thousand and four hundred dollars, current money of the State of Arkansas,” and acknowledge payment for the land in Confederate and Missouri State money, in the full sum to be paid, of which sum twenty-eight hundred and twenty-three dollars were paid in Confederate money.

It is eViclent that the parties considered this Confederate money a valuable consideration in the contract, and it cannot, therefore, be claimed that the appellant had made such payment, adequate and in full, as to entitle her to the specific performance sought in the bill, even were the eight hundred and seventy-seven dollars, designated Missouri State money, admitted to have been coin of the United States. •

Beside, the courts refuse to enforce contracts based upon Confederate money, not because of its being an inadequate consideration, but because of its being an illegal consideration, and the law holds a promise void if any part of the consideration be illegal, to the same extent as though the. entire consideration were illegal: Parsons on Contracts, 456; 6 Dana 91; 11 Wheat, 258; 26 Vt. 184. And the consideration in this case having been mainly Confederate money, and illegal, the contract was void, and the demurrer was properly sustained.

Bennet, J., did not sit in this case.

Hon. S. R. Harrington, Special J.


text:
    UNDERWOOD et al. v. WHITE.

      Mandamus — What petitioner must show. — The petitioner, seeking mandamus, must show a clear legal right to the subject matter of his petition; and the 'writ will not he issued to admit a person to office while another is in under color of title.
    APPEAL PROM PHILLIPS CIRCUIT COURT.
    IIon. John E. Bennett, Circuit Judge.

    . Palmer $ Sanders, for Appellants.
    The court erred in granting the writ of mandamus, because: . First. The Board of Equalization bad and exercised a legal discretion.

      “Mandamus will not lie where an inferior tribunal, having a discretion, has exercised it.” Fx parte Barrett, 2 Coto. 458; Fx parte Nelson, 1 Coto. 417; Gray vs. Bridge, 11 Pick. 189; Fx parte Bailey, % Cow. 479; Fx parte Benson, 7 Cow. 363; Lamar vs. Marshal, 21 Ala. 722; People vs. Judge of Wayne Co.. Court, 1 Maine, 359; The State vs Washington Co. 2 Chand. 247; Begina, vs. Justices of Derbyshire, 14 Fng. Law and Fq., 428; Williamson Fx parte, 8 Ark. 424; Gunn vs. County of Pulaski 3 Ark. 427; Brem^ vs Arkansas County, 9 Ark., 240; Notes to Kentucky Code. Sec. 526.

      Second. Petitioner’s rights, as claimed, were hot clear and legal.

      “Mandamus will only lie where a party has clear legal rights, and no other specific remedy.” Napier vs. Poe, 12 Geo., 170; Swann vs. Work, 24 Mis., 439; Bailroad Co. vs. Clinton, 1 Ohio State B. .77; State vs. the Justices of Moore, 2 Iredell, 430; State vs. the Justices, Dudley Geo., 37; Going vs. Mills, 1 Ark., 11; Fx parte Jones, 1 Ala,.,. 15; Spraggins vs. County Court of Humphries, Cooke, 160 ; People vs. Corporation of Brooklyn, 1 Wend., 318; Marbury vs. Madison, 1 Crunch, 137.

      Third. Petitioner had a specific remedy, "clearly pointed out by chapter 12, of title S of the Code of Practice.

      “Mandamus will not lie where there is another specific remedy for the party complaining.” Justices vs. Munday, 2 Leigh. 175; State vs. Dunn, Minor, 46; State vs. Holliday, 3 Halst. 205; Commissioners vs. Lynch, 2 McCord, 170; Boyce vs. Bussell, 2 C'ozo.,'444; Ex parte Nelson, 1 lb., 417; People vs. Brooklyn, 1 Wend., 318; State vs. Bruce, Const. Bep., 165,175;
    ' Morris vs. Mechanics, 10 Johns, 484; Board of Commissioners vs. Hicks, 2 Carter, 527; Williamson Ex parte. 8 Ark, 424; Cheat-ham ex piarte, 6 Ark., 437; Goheen vs. Meyers, 18 B. Mon. 426.

      Fourth. The rights of a person not before the court were affected. .
    “If it appear that the rights of persons not before the court will be effected, a writ of mandamus will not be issued.” Commissioner of Land Office vs. Smith, 5 Texas, 471.

      Garland Sf Nash, for Appellee.
    It is submitted: That the law of July 23,1868, was a general law on the subject of filling vacancies, where, under the new Constitution, the old officers went out before the time for which they were elected expired, and that it repealed the former laws providing therefor. Sedgwick Construe., 41,121; Pulaski Co. vs. Doioer, 10 Ark. 589.
    There was no vested right in Robinson to this office. 9 Ark. 270; 23 Missouri, (2 Jones) 22; Conner vs. Mayor, 1 Selden, 285; 4 Elliott’s Debates, page 150, 2d part, 1st edition; B. M. Charlton Bep. 400-5; 3 Kent, 362,1st edition; 7 Hill, 81; 2 Denio, 272.
    The appellee only asked to have the oath of office administered.
    To compel the administration of an oath'to a party holding office, by mandamus, has been done almost from time immemorial. 6 Bacon Abridgement, page 500 (mandamus) C; The People vs. The Board, etc., 26 N. T., Beps. 316; Harwood vs. Marshall, 9 Indiana, 83; Benton vs. Wilson, 4 Texas, 400; Gh'eene vs. the African, etc., Society, 1 Serg. § Bawles, 254; Douglass. Beps. 158; 2 Binney, 441-8; 5 lb., 486; 2 Serg

      Rawles, 141; 10 Barr Reps., 357; 15 Penn, 251; State vs. Common Council, 9 Wisconsin, 254; Moses on Mandamus, page, 149-151; Tapping on Mandamus, page 172-76-86. ■
   Harrington, Special J.

The appellee, as assessor of Phillips county, brought his action in the Phillips County Circuit Court, by petition for mandamus, to compel the appellants, Samuel J. Clark, county clerk, Frank Trunky, county surveyor’, and Q. K. Underwood, county judge, as piembers of the Board of Equalization of real property for said county, to allow him to be sworn and qualified as a member thereof, and to sit and act with, and as a member of such board.

The court granted the order prayed for; the appellants excepted to the judgment, and appealed to this court. • The law constitutes the county clerk, county assessor, county surveyor and county judge a board for the equalization of real property of their county: Sec. 66, Act Approved April 8, 1869.

If, therefore, the appellee were the assessor of Phillips county, he was clearly entitled to the privileges sought by his petition ; and if his title to the office were undisputed, the proceedings in the court were proper.

But the petition of the appellee discloses the fact that one II. B. Robinson also claimed to be assessor of said county, and the record in the case shows that he was then performing the duties of said office, and was in possession of the same, at least, under color of right.

The right, therefore, to sit as a member of the board of equalization, is altogether subordinate; the main question being title to the office of assessor; this being established, the right to sit and act as a member of the board of equalization of real property, would follow as a matter of course.

The practice is well settled, that the petitioner seeking mandamus, must show a clear legal right to the subject matter of his petition; that a conflict of title to office being presented, cannot be determined by mandamus; the proper office of this writ being to enforce the performance of a duty, and not to establish legal rights; that it will not be issued to admit a person to an office while another is in under color of right. See Fitch vs. McDiamid, 26 Ark., 482, and the authorities there cited.

The facts of record, in the-case, do not bring the appellee within the rule; the mandamus, therefore, was improvidently and'erroneously awarded; the judgment will he reversed, and the cause remanded with instruction to dismiss the-petition.

Bennett, J. did not sit in this case.

IIon. S. R. Harrington, Special Justice.


author: Gregg, J.

text:
    CASSELBERRY et al v. FLETCHER et al.
    Swamp and Overflowed Lands. — 0. resided on the lands and had done so more than twenty-five years; he took a contract to levee the lands and performed the work. H. went to the Swamp Land Office and entered the lands; two days after this, O. entered the same lands, as part pay for the levee he had contracted to construct.across the lands; a contest was had before the land agent, a patent issued to H. and none to O. Held, on bill by O. to enjoin suit in ejectment by H.: That under Section 13, of the Act of January 6, and Section 4, Act of January-W, 1851, the equitable title of O. was superior to the prior legal title of H. and a perpetual injunction would be awarded.
    APPEAL FROM MISSISSIPPI CIRCUIT COURT.
    Hon. John E. Bennett, Circuit Judge.

      Adams, Dixon § Pike, for Appellants.
    The land in controversy in this suit was, and is admitted to be included in the Act of Congress, 28th September 1850..
    Other provisions of the Act provide for the location, report and confirmation of said lands, and patents therefor to the' State, and especially by Section 2.of said Act of Congress it is provided, “and on that patent the fee simple to said lands shall vest in the State of Arkansas, subject to disposal of the Legislature thereof: Provided, however, that the proceeds of said lands, whether from sale or direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.”
    By Section 4, of the Act of the General Assembly of the State of Arkansas, passed and approved on the 6th of January, 1851, it is provided, “That the payment for making said levees and drains shall be made in the lands reclaimed, or in the proceeds of the sales thereof, at the price previously fixed upon said lands by the commissioners,” and by the thirteenth section of the same Act,’ it is, among other things, provided, “that all persons * * * * who shall reside on, or who shall have improved the same (that is any of said lands so granted), shall have the exclusive right of purchase thereof, to the extent of their claims, for the period of twelve months from and after the date of the patents issued by the United- States to this State, at the price previously fixed upon the same, not to exceed one dollar and twenty-five cents per acre;” and by Section 4 of the Act of said General Assembly, of date the lltlx day of January, 1851, it is also provided:
    “That any person owing lands on the banks of any river, in any swamp and overflowed land district, shall have the preference of taking the contract to levy such lands; Provided, he takes the contract at the lowest bid, and such person so contracting, shall have the preference to take in pay for executing his contract aiiy lands, swamp or overflowed, lying in the rear or adjacent-to his own lands.”

    These are the provisions of the statutory law applicable to this cause, and upon which, under the facts and the general principles of equity, it must be determined.
    It is perfectly manifest that the whole scope and purpose of till these legal provisions are, and were, to secure the reclamation of the swamp and,overflowed lands of the State, to protect and save to the citizens their estate, and homes, and the benefits arising from the proposed work, and thereby to enlist them 'in the more hearty and efficient prosecution of the labor of erecting the levees.
    In the first place, the lands were to be reclaimed. Next, the compensation for the necessary labor should be made with the lands themselves. Next, those actually residing and ' having their homes upon the lands, should ‘ have the exclusive right to purchase the same for the space of twelve months after the date of the patents from the -United States to this State therefor. And lastly, that lands adjacent to private lands should be saved to their owner, if he should take the work at the lowest bid.
    The court will take judicial cognizance of the fact that the ■ lands in controversy in this suit were not patented by the United States to this State prior to the 27th day of September, 1858; such patents- for the lands in the township and range in which these lands lie bearing dates respectively the 27th day of September and the 10th day of November, 1858. .
    JYe therefore, and we think justly, contend that complainants are entitled to the relief asked, and the provisions of both the thirteenth section of the Act of the 6th January, 1851, and of fourth section of the Act of 11th January, 1851, the proof, under both, as we think, being ample .and conclusive.

      John G. Palmer, for Appellees.
    The first point upon which appellees rely is, that the rights of the parties having been settled by the swamp land agent, his decision cannot be attacked except upon an allegation, sustained by proof of -fraud. By section 41, chapter 101 of the Digest, the swamp land agents were vested with full authority and jurisdiction to settle and adjudicate contested pre-emptions, and no authority is given to any tribunal to revise their decisions. The authority of a Court of Chancery _ to interfere in cases of this sort, is confined to clear equity jurisdiction. .
    The bill in this case charges fraud. The injunction ivas granted on this allegation, and complainants are entitled to no relief unless fraud is proved — the answer especially denying fraud. Borden et al vs. State, 11 Ark, 547; Wynn vs. Morris et ais. 16 Ark., 414; Lytle et als. vs. the State, 17 Ark., 608; Melver vs. Williams, 24 Ark.. 33; Paty vs. Harrell, 24, Ark, 40 ; Schaervs. Gliston, 24 Ark., 137; Branch vs. Mitchell,, 24 Ark, 149.
    It is well settled that when the matter adjudicated is by a court of peculiar and exclusive jurisdiction, and where no appeal is allowed, or revising power given by law, such adjudication is final and conclusive upon all other courts and' persons, until - successfully impeached upon the charge of fraud. Lessee of Rhode vs. Selin, 4 Wash. C. G. Rep., 721; Voorhees vs. U. S. Bank, 10 Pet., 478; United States vs. Arredondo, 6 Pet., 729; Wilcox vs. Jackson, 13 Pet., 511; Borden et al. vs. State, 11 Ark, 547; Foley vs. Harrison, 11 Howard U. S. R., 448; McGee vs. Wright, 16 III, 557.
   Gregg, J.

On the 5th of May, 1868, the appellants filed their bill in equity, in the Mississippi Circuit Court, in which they allege that, in 1838, one ITowe proved up a pre-emption to the southwest quarter of section 3, in township 15, north of range 13 east, under the act of Congress of 1833, and that the same, iu 1843, by transfer and assignment, came into the hands of Isaac S. Casselberry, the father of complainants; that the same was never offered for sale by the United States government, and in 1850 it' was granted to the State of Arkansas as swamp and overflowed lands; that said Isaac S. and family have, ever since, had actual and continuous possession of said lands, and that under the act of the Legislature of 1851, they, or the said Isaac S., had a preference right to purchase said land, and pay for the same in levee work, and that he took, and caused to he completed, a levee contract on said lands-; that said Isaac S. died in 1852; that in June, 1852, said complainant, as administrator, proved up a preemption right, in the proper swamp land office, and on the 28th of March, 1853, purchased said lands and paid in levee work then done, and procured a certificate. That Elliott Hickman, the father of the appellees, well knowing the rights of the complainants, in collusion with or fraud upon the land officers, and in fraud of the rights of the complainants, entered said lands, and procured a deed therefor; and that he, at the November term, 1868, of the Circuit Court of that county, brought an action of ejectment against the complainants. They prayed for. an injunction perpetually restraining all proceedings in ejectment; that the heirs of Elliott Hickman be divested of title, and that title be vested in complainants, as the widow and heirs of said Isaac S. Casselberry, and for geueral relief. Sarah Hickman, Francis Fletcher 'and Juda Murphy answered and denied that Howe ever proved up •a pre-emption right, or that any was transferred, but avered that a pre-emption right was proved up by one Baker, and afterwards, in 1839, assigned to Elliott Hickman. They admit the possession of Casselberry, and that the lands were granted to the State as alleged, the representative character of the complainants, and the death of the said Isaac S., but ■deny that the complainant, Martin Casselberry, as such administrator, ever proved up a pre-emption under State laws.

They aver that they do not know of his levy contract, and ask that he be held to proof, etc. They aver that Elliott Ilickman proved up a pre-emption under State laws, and -entered the land long before Casselberry, and that upon a full and fair trial before the'State Swamp Land Agent, at Helena, .a certificate of entry was granted to him and refused to said Casselberry, and that a deed therefor was duly granted to him by the Governor of the State.

Depositions were taken and certificates procured by tlie appellants to show the performance of the levee- contract, and, the application to purchase the lands in such work, and that the lands were taken in part payment for such levee work within a few days after Hickman’s purchase. The appellees took no depositions.

The record entry, preceding the decree, states, “ That it is agreed that Elliott Hickman’s entry is the oldest by at least two days, and that all questions as to pre-emption, either by authority of the United States or the State of Arkansas, are withdrawn and not to be considered, except as to the claims of the complainants under section 4 of the act of January 11, 1851, and the exclusive right of purchase secured by section 13 of the act of the 6th of January, 1851, to persons other than those claiming benefits of pre-emption under acts of Congress.”

By the admissions of the parties, in the pleadings, by 'the evidence and admissions stated upon the record, the case may be stated thus : Casselberry resided on the lands, and -had done so more than twenty-five years; he, through his son, Martin, took a contract to levee the lands, and performed the work.'

Elliott Hickman went to the swamp land office and entered the land; two days after this Casselberry went and entered the same lands as part pay for the levee he had contracted to construct across the laud; a contest was had before the land agent; a patent issued to Hickman and none to Casselberry..

Complainants claim that their rights under section 13 of the act of January 6, and section 4, act of January 11, 1851, are superior to those of appellees.

Appellees claim that said acts conferred no rights or privileges upon Casselberry over other citizens, and that Hickman complied with all the necessary requirements of the swamp land laws, and obtained the patent, and that "his entry was prior in time and should prevail.

It is insisted by the appellees that the appellants acquired no preference under tlie 1th section of tlie act of the 11th of January, 1851, because there was no sufficient title in them, or their ancestor, in the front lands upon the bank of the river ; that the levee was made upon the lands in controversy, and not on adjacent lands in front as required by the statute, etc.

It is very clear that the general policy of the land laws, both national and State, has been and is to favor the actual settler; to prefer those who, with their families, push forward to clear up the forests. Such being the general policy of the government, a court of equity, where the language of the statute will justify, should so construe it as to carry out that public policy.

These lands being granted to the State, the object was to reclaim them by the necessary levees and drains, and in addition to the favor due the occupant, it may well have been, supposed that the actual settlers’ personal interest would secure more faithful work than would likely be had at the hands of one whose pay was his only interest,' as to results. With such objects in view, we can see no reasonable intent to exclude one, the title to whose possession might be acquired and the lands protected by such work; and we think it not unreasonable to hold that the man who owned the possessory right and had the occupancy and control of the lands tobe reclaimed, was within the intent and meaning of the act'referred to, and an equitable and liberal construction of the act in favor of those evidently intended to be benefitted by it, embraces the lands occupied, as well those more remote from the levee; and Martin Casselberry being the administrator and an heir of Isaac S., certainly had a right to complete the purchase in behalf of the representatives of the said Isaac deceased.

By section 13 of the act of January 6,1851, it is' provided “ that all persons * * * * who shall reside on or who shall have improved such lands, shall have the exclusive right to purchase thereof, to the extent of their claims, for a period of twelve months from and after the date of tlie patents issued by the United States, at the price fixed upon the same,” etc.

It is insisted, however, that this section was modified and limited by the act of the 12th of January, 1853. That -is true, but under the latter act the settler had the same - right of pre-emption, only he was liable to lose the same if he did not make his entry or prove up his pre-emption before the day fixed by the land agent for the public sale of the lands:

In this case, many years of continuous and uninterrupted possession of the lands, is alleged in the complainants and admitted by the defendants; showing clearly a right of preemption in Casselberry, and that right certainly entitled him to this preference, if not forfeited by his act or negligence.

This occupation and all facts necessary to vest jn Casselberry a right of pre-emption, being admitted in the pleadings or shown in evidence, those disputing that right should have shown wherein it had lapsed or been forfeited.

In the case of Hempstead v. Underhills Heirs, 20 Ark., 351, the court said, “ Section 10 of this act” (the act of the 12th of January, 1853) “declares that every head of a family who may hereafter settle upon or who is now a settler upon any of the undisposed of swamp lands and ovcrñoioed lands, shall have a pre-emption right thereto, in exclusion of all persons whatsoever up io the day of such sale, and shall have a right to enter any of the legal subdivisions as above recited, * * * * * but if such settler fail to make such entry before the day set apart for such sale then the right of entry shall be lost, and the lands offered for sale to the highest bidder,” etc.

In a subsequent paragraph of the same case, this court-said : “ Moreover, neither the petition nor the mandamus nor the response states the time at which the appellant received the maps and plats at his office, or the day upon which he made his first public safe, under the act of the 12th of January, 1853, consequently we have nothing before us from which we can determine with any legal certainty, nor had the court below, that the entries of Fitzgerald and Norwood were not made, before the day of sale, and within tlie period limited by tlie statute in question.”

In the case now before us, without referring to'the confirmatory historic fact of sale, the record presents neither averment or proof, tending to show that these lands had been offered for sale before the entry made by Casselberry, and as the admissions and testimony show satisfactorily his occupancy of the lands, his agreement and completion of the levee contract, and his entry of the land in payment for the work done under such contract, it seems to create in his favor equities, not to be defeated by a legal title, that can only claim priority in time.

In the case of Branch vs. Mitchell, 24 Ark., 447, this court said: “ Under the act of the lltli of January, 1851, Mitchell had the right, in preference to all others, to take the contract in question, for levying in front of these lands * * * but according to the argument he must go on and complete the levees before ho could select any of the rear lands, and in the meantime, Jordan, or any other person might purchase these lands, as swamp lands, from the State, or buy them of the United States, and so defeat his pre-emption right altogether; that would make the right truly a visionary and unsubstantial thing. Either he could make the selection at any time, as the work progressed, and so prevent any sale of the same lands to others, or he could require the commissioners not to sell any of the rear lands which he might have a right to take in preferment to other persons.”

Further, they say, “No matter at what date he selected the lands, if he finished the work in whole or in part, and the commissioners approved of and received it, and the amount due for it -were enough to pay for the lands, they became his, and his title, if necessary, as against any intervening purchaser or claimant, would relate to the 11th of January, 1851, on which day the right of preference, in building the levee and taking these lands in payment, vested. And it is quite clear that having the right of pre-emption of the land, and having taken the contract to build the levee, and commenced the work, he could not be ousted of his right of pre-emption by a purchase made by any other person even from, the State, though he did not select the lands until after such purchase.”

If these rulings be correct, upon the whole record before us, the complainants ought to have recovered.

In our opinion' Casselberry had a preference right in the levee contract. The work was done and accepted for thedand, and that gave a paramount title, and the- swamp land department should have so decided.'

All are presumed to know the law. Hickman, knowing of Casselberry’s possession and claim of title, must therefore have known he had a preference right, and knowing of this right, it was a fraud on his part to attempt to enter these lands from-under the occupants, who were then completing payment for them, and courts of equity will not encourage such practices.

We hold that the equitable title of the appellants is superior to the prior, legal title of the appellees, and a decree according to the prayer of the bill will be rendered in this court.

Bennett, J., did not sit in this case.

IIon. J. It. Harrington, Spec-ud Judge.


text:
    McSTEA, VALUE & Co. v. MASON, Adm’r.

      Practice — Presumption in favor of judgment. — Where the record, on appeal, is so imperfect as not to show the facts or rulings upon which the finding of the court below was based, and no eifort is made by the party aggrieved to perfect it, the presumption will be in favor of the correctness- of the judgment.
    APPEAL FROM POPE CIRCUIT COURT.
    Hon. ~W. N. May, Circuit Judge.

      Garland & Nash, for Appellants.
    Although a record is not as full as it might he, yet if there is enough presented in and by it, to place this court in possession of the points involved, that is quite sufficient, and this court will proceed to consider and determine the case; Nichols vs. State Bank, 3 Yerger, Tenn., 107; Stamps vs. Bush, 7 How., Miss., 255; Jordan vs. Adams, 7 Ark., 348. The original note was brought on the record by the appellee’s motion, under a sufficient showing why the appellants did not get a certiorari to perfect the record, and the court will consider the note a part of the record. Rose’s Dig., p. 632. The endorsement on note shows it was presented and -filed within two years after the granting of letters. Brown vs. Merrick & Fenno, 16 Ark., 612, et seq., and cases cited; and the opening order in the transcript shows the case came on to be tried within two years after grant of letters — this does away with the plea of nónclaim. 16 Ark., sup.; 18 Ark., 334, and cases cited, 13 Ark., 276-9.

      Clark Williams, for Appellee.
    The case is exactly within the case of Dillard vs. Barker et al. decided at the last term of this court, and the. case of Taylor vs. Spears, 8 Ark., 429.
    The court will not reverse the case upon a question of testimony so long as a material portion of the testimony is left out.
   Bennett, J.

The transcript in tlris case is very imperfect. As far as is shown, no effort has been made to perfect it. The cause is submitted on the papers as they are. From them it would seem that the appellants presented, at some term of the Probate Court of Pope county, a claim for classification and allowance against the estate of S. I). Lewis, deceased. The administrator, at the July term, 1867, of the Probate Court, pleaded the statute of nonclaim and payment. On these issues the Probate Court found for the appellee. The appellants appealed to the Circuit Court, and finding no error in the findings and judgment of the Probate Court, affirmed the judgment. From this judgment of affirmance the appellants again appealed to this court.

There is nothing in the record to show what was the date of the account, note or claim presented for allowance. Nor is there any evidence to prove the payment of it. We cannot determine whether the court erred in finding for the appellee on the plea of nonclaim or not, but the presumptions are in favor of the judgment. The rule is that the party complaining must place the facts or rulings before us, by which they may have been aggrieved, otherwise the proceedings and judgment must be upheld as valid.

There is enough in this record to show a judgment has been rendered, and until the contrary is made to appear, it must be presumed that the evidence warranted its rendition.

Judgment affirmed.


text:
    PHILIP TRIMBLE v. THE STATE.

      Appeals — Pi'actiee on. — Where no error appears upon the face of the record, and. no exceptions taken, motion for a new trial, or in arrest, in the court below, the judgment will be affirmed.
    APPEAL PROM DREW CIRCUIT' COURT.
    IIon. Henry B. Morse, Circuit Judge.

      Montgomery, Attorney General, for Appellee.
   Bennett, J.

This was an indictment for exhibiting a gam- . bling device known and called Keno.” The appellant was trie'd and found guilty. Judgment ivas pronounced, from Avhich an appeal Avas granted.

The record shows no exceptions were taken during the trial. No motion for a new trial, or in arrest of judgment, was made. All the proceedings appear to be regular and in accordance with law. The indictment is good,, and charges a public offense with sufficient certainty. __ •

Judgment affirmed.