text:
    Ruddell vs. Childress et al.
    1. Srnni’Y: ftiatutory remedy for indemnity.

    The provisions of section 6094 of Gantt’s Digest, were not in conflict with section 14, Article i, of the Constitution of 1868, restricting imprisonment for debt to cases of fraud in contracting the debt. Proceedings thereunder are not to arrest a debtor for debt, but to obtain indemnity for the surety against the debt, or liability upon which he is bound, before it is due.
    2. 8.VJÍH: Suveiinn on execidiii'K1 bond.

    Under the provisions of section 5694 of Gantt’s Digest, the sureties of an executor who has converted the assets into money and choses in action, and refuses to pay the same over under an order of the Probate Court, and is about to remove from the State, without leaving means to indemnify the sureties, may have him arrested and restrained from departing from the State until he executes a bond, with good security, to indemnify his sureties against liability.
    APPEAL from Independence Circuit Court.
    Hon. Charles Minor, Special Judge.

      Gallagher & Newton, and Cochill, for appellant.

      Goody, contra.

   Walker, J.:

This suit was brought by Childress and others, securities upon the executor’s bond of Ruddell, to compel him to indemnify plaintiffs as such securities against loss, and to prevent him from removing his person or property out of the State, without first giving such indemnity.

As the main questions of law presented for our consideration arise upon the demurrer to the complaint, and to the sufficiency of the affidavit, it may be best to state the substance of each.

Plaintiffs, Robert A. Childress, Samuel Blair and Leah L. Mayfield, administratrix of Uriah Mayfield, deceased, state that, on the 29th of April, 1867, the will of John Ruddell was probated in the Independence Probate Court. That defendant John L. Ruddell and Mary Ruddell were named as executors of the will; Mary Ruddell relinquished her executorship, and defendant assumed the sole executorship of the will, and entered into bond in the sum of $30,000, with plaintiffs, and one Willin Iiollen, who does not join in the suit, as his sureties. That on the 29th June, of that year, the defendant filed an inventory of said estate, charging himself with $18,132, after which, in 1871, he filed his account current, by which he stood charged with $17,179.94; on the 28th December, 1871, upon further settlement, he was charged with $6,171.09, as a balance remaining in his hands, and for which sum plaintiffs are responsible, and liable to pay as his securities; that on the 7th of July, 1871, an order was made by the Probate Court of Independence County, requiring defendant to give an additional bond for the faithful performance of said trust within ten days, which he failed to do; that his letters testamentary were revoked, and defendant ordered to settle, aud pay over the estate so remaiuing in his hands. That afterwards, in June, 1872, plaintiff Robert A. Childress was, by said Probate Court, appointed administrator do bonis non, with the will annexed, of said estate; that after such appointment, he demanded of defendant the entire' assets of said estate, and an account of the same, which defendant refused. Aver that they are responsible as such securities for the same; charge and believe that defendaut procured them to go upon his said bond with the fraudulent intent and purpose of cheating, injuring and defrauding them out of a large amount of money, and that the course and conduct of the defendant, in the management and settlement of the estate; has fully confirmed this belief of his fraudulent intent in procuring them to sign the bond as securities; that he made false and fraudulent statements in order to procure their signatures, and has since managed said estate, and allowed claims against the estate which should not have been allowed, to-wit: The claim of William Byers for $5,427.10, which is-near the amount due upon defendant’s pretended settlement, which claim remains unpaid, and which plaintiffs believe it is intended to force them to pay.

That defendant .has sold the lands of the estate, and collected the assets thereof to the amount of about $20,000, which he now has under his control, and refuses to pay the claims of the estate, or to account for the same. That. defendant has fraudulently disposed of all of his property, and claims to be insolvent and irresponsible for any debts he may contract, when, in truth, as plaintiffs charge and believe, defendant has a large amount of money deposited so that he can get it, and leave the State at any time; and has stated that he would make a large amount out of said estate, and manage it so as to compel his securities to pay or lose a large sum; that he would leave with money enough to live on the balance of his days; that defendant is now making arrangements to leave the State of Arkansas, and go to parts unknown to plaintiffs, as they charge, to consummate defendant’s rascality and defraud plaintiffs, as he originally intended to do. Plaintiffs charge that their responsibility has been produced by the fraud of defendant; that defendant has in his possession, or in the possession of others for him, a large amount of money, and securities for money, and is about to depart from this State, and move his property therefrom, with a fraudulent intent, and without leaving property therein sufficient to satisfy any process of the court, after judgment, or any claim of plaintiffs arising out of their liability upon said bond.

In addition to the usual affidavit, verifying the allegations in the bill, it was accompanied with the following affidavit: The plaintiff, Robert A. Childress, states that the claim in this action against the defendant, John L. Ruddell, is to obtain indemnity against the debts and liabilities for which plaintiffs are bound, as securities for said Ruddell. That it is a just claim, and that the liability therefor was fraudulently contracted by the defendant, and that he believes they ought to recover thereon indemnity against the said debts or liability in the sum of $30,000, and that the defendant has money, or securities, or evidences of debt in the possession of himself and others for his use, and is about to depart from this State without leaving property therein sufficient to satisfy plaintiffs’ clai.m.”

Upon the. filing of the complaint and affidavit, an order was made by the clerk to arrest the defendant, which was executed.

Several motions and rulings were had; an answer filed and subsequently withdrawn. A demurrer was filed to the bill as amended, which fully presents the question of its legal sufficiency, and a motion to vacate the order of arrest, which presents the question as to the sufficiency of the affidavit.

First — Is the complaint sufficient? Does it present a state of case to bring it within the provisions of the Constitution and of the statute. By sec. 14, Article 1, of the Constitution of 1868, “no person shall be imprisoned for debt in this State; but it shall not prevent the general assembly from providing for imprisonment, or holding to bail, persons charged with fraud in contracting said debt.”

The legislative enactment is, Gantt’s Dig., Ch. 8, sec. 265, “A defendant in a civil action can be arrested and held to bail only upon the condition and in the manner prescribed in this chapter. Sec. 266. An order for the arrest of the defendant shall be made by the clerk of the court in which the action is-brought, at its commencement, or at any time before judgment, when theye is filed in his office an affidavit of the plaintiff showing in all cases of arrest, the nature of the plaintiff’s claim or debt, and charging the defendant with fraud in contracting the same. That it is just, and the amount or value which the affidavit believes the plaintiff ought to recover; and that affiant believes, either that the defendant is about to depart from this State, and, with the intent to defraud his creditors, has concealed or removed from this State his property, or so much thereof that the process of the court after judgment cannot be executed, or that the defendant has money, or securities for money, or evidences of debt, in the possession of himself, or of others for his use, and is about to depart from this State without leaving property therein sufficient to satisfy the plaintiff’s claim.”

Sec. 5694, Gantt’s Digest: A surety may maintain an action against his principal to obtain indemnity against the debt or liability for which he is bound, before it is due, whenever any of the grounds exist upon which, by the provisions of Chs. 8 and 9, an order may be made for arrest and bail, or for attachment.

Sec. 5695 : In such action the,surety may obtain any of the provisional remedies allowed, and upon the grounds, and in the manner prescribed by law (the provisions referred to in these two sections are those above referred to in secs. 265 and 266.)

It is under the provisions of sec. 5694 that this proceeding is had by the plaintiffs as sureties of Ruddell, not for a debt, or a debt due, but for a liability for which they are bound, and the reference to secs. 265 and 266 is to point out the mode of procedure ; in legal effect to add this provision of law, for the benfit of securities who may be liable to pay on account of their securityship to those enumerated in secs. 265 and 266, as fully as if it had been therein inserted as an additional ground for arrest.

Thus we have the pleading and the law under which the right of action is claimed, and the question is, do the pleadings set forth a cause of action under the provisions of the law.

That defendant was the executor of the estate of John Ruddell; that he executed bond with plaintiffs as securities, took into his possession a large estate, and at the last settlement stood charged with the sum of $6,171.09, which remained as assets in his hands ; that an order of court was made vacating his letters, removing him from his trust, appointing an administrator de bonis non to receive the assets in his hands; that he refused to obey the order; still holds the estate; has made way with his property; put it out of the reach of process of the law; has no property which can be reached by process of law; has converted the estate into money, or choses in action, and holds them or has placed them where he can reach them, and is preparing to remove from the State with his money and effects without leaving means to indemnify plaintiffs against loss as such securities, are all facts distinctly and positively stated in the complaint. In áddition to these, are averments of fraud and an intention of the defendant to defraud plaintiffs, but the facts which constitute the fraud in the execution or making the contract, as securities, are not given, while such as relate to’ the management of the trust, and fixing a liability upon the plaintiffs, his securities, to pay a large sum of money as such securities, are fully stated.

If the allegation of fraud in the contracting the debt had been material, it would certainly have been insufficient; the plaintiff should have shown.in what the fraud consists — facts conducing' to show fraud — but from the view which we take of the case, no such allegation was necessary.

The action is not brought on a debt, or, properly speaking, more than a contingent liability to pay upon a breach of the conditions of the bond of their principal.

It is, in its nature, a bill for a writ of ne exeat to restrain the principal debtor from leaving the State, and taking with him his estate, until he has released his securities from liability, or performed the conditions of his bond.

This is a statute remedy, given by sec. 5694, Gantt’s Digest. Appellant’s counsel insist that this section is unconstitutional, and is in violation of sec. 14, Ch. 1, of the Constitution of 1868. This section prohibits the legislature from passing laws imprisoning a person for debt, unless there has been fraud in contracting it. To this extent, and for this purpose, it is a prohibition upon legislation, but no further; upon all other subjects the legislative power for this purpose is unlimited. But for constitutional restrictions, the power to legislate is unlimited.

In the State v. Ashley, 1 Ark., 279, this court held, that the State legislature could exercise all power that is not expressly or impliedly prohibited by the Constitution.

For all other purposes except .imprisonment' for debt, the power to legislate is as full as if no such prohibition had been made. Sec. 5694 is, therefore, not in conflict with 14th section of the Constitution; it is not a proceeding to arrest a debtor for debt, but to obtain indemnity against a liability for which they, as securities, are bound, on a bond which is not due, the conditions not performed.

The draftsman who prepared the affidavit and complaint seems to have supposed that because secs. 5694 and 5695 referred to secs. 265 and 266, for the manner of proceeding, that it was expected or intended that the forms prescribed in proceedings against a party upon an' allegation of fraud in contracting the debt, should be followed, and has attempted to do so. Biit certainly this was necessary only so far as to make out his case under the 5694th section.

The allegations of fraud in contracting the debt was, therefore, unnecessary, and may be treated as surplusage; the material statements, both in the affidavit and complaint, are in accordance with the statute, and amply sufficient.

The. facts were all, by the demurrer, admitted to be true, and were, by the weight of the evidence, proven to be true, and, we think, entitled the plaintiff to the relief asked.

No answer, or other defense to the merits of the case, was interposed. The court, upon allegations confessed, and the proof introduced, found the allegations to be true; fixed' the amount of the indemnity to be given by defendant at $6,000.

Decreed that indemnity be given plaintiffs in that amount, with good security, conditioned that the defendant, as executor, shall pay over and account for all of the assets of said estate that may have come to his hands as such executor, and will protect plaintiffs, and save them from liability because of such security-ship, and that bond for that purpose may be taken by the clerk of the court, until which time execution is had upon the body of defendant, and for costs.

Under the state of case presented, we think this decree proper.

Finding no error in the judgment and decree, the same is in all things affirmed.


source: Caselaw Access Project

author: Walker, J. :

license: Public Domain

text:
    Stewart vs. Davis.
    1. Sunday Contract: By livery stable keeper.

    A contract by a livery stable keeper to hire a horse on Sunday, for purposes of business or pleasure, is void; otherwise, if it is for purposes of charity or necessity, etc.
    2. Bailment:
    Although a contract made for the hire of a horse on Sunday is void, the hirer wall be liable in tort for any injury accruing to the horse from misuse or carelessness, and will be held to the highest degree of care.
    3. --.
    One who hires a horse for a definite time, and continues to use him after the time has expired, is liable for any injury that may accrue to the horse.
    APPEAL from Pulaski Circuit Court.
    Hon. J. J. Clendenin, Circuit Judge.

      Clark & Williams, for appellant.

      Dodge & Johnson, contra.

   Walker, J. :

This is an action brought by Davis, to recover the value of a horse hired by him to Stewart.

The pleadings and the evidence present the following state of facts.

Davis, a livery stable keeper In the city of Little Rock, on the 8th of June, 1873 (the day being Sunday), at the instance of Stewart, hired to him a horse to ride to one Steele’s, about fifteen miles, and Stewart executed the following receipt:

a Little Rock, June 8th, 1873.
Received of W. S. Davis one sorrel horse, to be returned in good order this evening, for which I hold myself responsible.
[Signed] - “ Baylor R. Stewart.”

Stewart rode the horse to Steele’s, stayed there that night, and on the next day, rode the horse deer hunting, and that evening, on his return to Little Rook, the horse was taken sick, was returned to Davis in that condition, and so'on after died. Davis demanded the value of the horse, which Stewart refused to pay, and Davis brought suit for the value of the horse.

The answer of Stewart admits the hiring of the horse, raises no question as to the validity of the contract, admits that the horse was not returned until Monday; says that the signing the receipt and the promise to return the house the same day, was, according to custom, not expected to be complied with strictly, but the borrower was at liberty to extend the time for returning the horse by paying an additional compensation: admits riding the horse in the deer hunt; denies-all mistreatment; avers the horse was used in moderation, and properly fed and cared for.

The proof is that the horse was sound and in health when delivered to Stewart, was not subject to sickness, and that he was returned in a dying condition, with a disease which could only have been produced by improper feeding, drink or use.

Stewart proyed by a witness that the horse was properly fed, and not rode immoderately in the deer chase.

When the horse was returned, Stewart requested Davis’ agent to do all he could for him, and he (defendant) would make it all right.”

The witnesses estimated the value of the'horse at from $100 to $250.

The jury found a verdict for plaintiff for $200.

Defendant moved for a new trial, which was overruled, and he appealed.

The first question presented for our consideration, is the validity of the contract of hire.

It was held by this court, in the case of Tucker v. West and Mack, 29 Ark., 386, that a note executed for a balance due for land on Sunday, was such labor as is prohibited under the statute, and that the note was void! The opinion was- delivered after a careful examination of authorities, and may be considered as settling the question, so far as notes executed in ordinary business transactions are concerned.

But the contract was made, in this instance, with a livery stable keeper, for the hire of a horse. He is licensed to keep accommodations, to take care of and feed horses, and, when called upon, to furnish transportation to travelers, and others who may apply. Like the hotel keeper, he keeps open doors, and is at all times, from necessity, required (to some extent) to furnish accommodations to those who call on him. Besides the transient travel, he is expected to furnish carriages and horses to the inhabitants of a crowded city, where but few private conveyances are kept.

It is necessary and proper that both he and the hotel keeper should, as far as they can, abstain on Sunday from all employment not strictly necessary in the discharge of their duties, respectively. For livery a stable keeper to furnish a carriage to ride to church, to attend a burial, to visit the sick, or to give exercise to an invalid, or even necessary recreation for health, can scarcely be considered prohibited labor; certainly it is not considered such, if taken in a private carriage, and there would seem to be no good reason for holding it such when taken in a hired carriage, and, if not, the contract to hire cannot be considered more prohibited “labor” than the use of the carriage hired.

' Whether the call is made for a conveyance to be used for purposes of necessity, comfort or' charity, or for purposes of ordinary business or pleasure, must be determined by the livery stable keeper from information and inquiry as to the use to be made of the conveyance, and necessarily imposes the.necessity of discriminating between such as are, or not, within the meaning and spirit of the exceptions. We find such distinctions taken in several cases which commend themselves as being proper.

Thus, in the case of Burrell v. Smith, 2 Miles, 402, a contract made with a livery stable keeper on Sunday, for the hire of a horse to be used for purposes of pleasure was held to be void. In Whelden v. Chapell, 8 R. I., 230, a livery stable keeper, in the ordinary course of his business, hired a horse on Sunday for a. purpose not of necessity or charity. The contract was held to, be void.

In Gregg v. Wyman, 4 Cush., 322, a horse was hired on Sunday and injured, the defense was, that the hiring was for a trip of pleasure, the contract was held to be void.

In each of the above cases the fact that the hiring was for a trip of pleasure is referred to as settling the question that the contract was. void. And this is more clearly shown in the case of Logan v. Matthews, 6 Penn. S. R., 417, in. which the contract for hire was made on Sunday, by a son, to be used in visiting his father. Coulter, J., when commenting upon an instruction given to the jury in the court below, said: “There is nothing in the second error assigned, the. visit to his father by the defendant was in discharge of a filial duty, which nothing in the law hinders or forbids.-’

The horse was hired to ride to Tom Steele’s place fifteen miles distant, it is in proof that the defendant led a hound dog off with him, and on the next day that he went deer driving. It is not improbable that a hunt was the real purpose of his visit; in fact, a trip of pleasure, clearly not coming within the exceptions of the statute, and was void. Suppose, however, that Stuart had hired the horse to visit his father, who was sick, and upon so stating to Davis he had hired to him the horse, we cannot believe that such hiring would have been prohibited labor under the statute.

This may serve to illustrate the rule which we think the authorities sustain, which is, that for purposes of pleasure, or for ordinary business, or travel, a contract of hire, if made on Sunday, should be held as void, if otherwise, valid.

The business of livery stable keeper, like that of a hotel keeper, is a matter of necessary accommodation to the public, the rules applicable to the one, are in many respects also applicable to the other. As a daily business they keep open doors for,public accommodation, one affords shelter and food for the traveler, and others who may call; the other shelter and food for the traveler’s and the citizen’s horse, this service is required at all times, including the Sabbath. The hotel keeper hires or lets his rooms; the livery man his horses and carriages'; both are expected in their respective spheres to meet a public necessity. Should it become necessary on the Sabbath to afford such accommodation, it becomes a question of fact whether the service is a necessary and proper service, or otherwise; both of them should so conduct their business, as far as may be, to lessen the toil of the Sabbath, and to bring it within proper limits — such as are indispensably necessary in their respective calling, not for purposes of amusement, for these are not necessary to comfort, or charity, but such as are necessary for comfort. ,,

The hire of the horse by Stewart was, no doubt, a hire for a business trip, or the pleasure of the chase — possibly both. It was such employment as Davis should not have engaged in on that day, and we must hold'the contract void; no action could be sustained upon it.

This disposes of the case so far as the contract and the rights of the parties under it are concerned.

The action in this case is, however, not founded upon the contract, but upon the wrongful conversion of the horse by misuse and abuse.

The complaint is drawn in the Code form, and presents a cause of action in rather a confused manner.

' Deference is made in the pleadings to the contract of hire, but most clearly the action is not upon the contract, but for the loss and destruction of property bailed.

It is alleged that the property came into the possession of defendant for hire, but whether for hire or as a loan is of no importance.

The misuse, or destruction of the property, was a conversion for which the owner might maintain an action, irrespective of the contract.

The case of Frost & Plumb is directly in point, and is reported in 13 American Law Register, 537, as well as that of Hall v. Gochran, 107 Mass., 251.

In the latter case the defendant hired a horse and sleigh on Sunday to drive to North Adams for pleasure (the purpose of hire was known to the hirer), after reaching North Adams, defendant drove to Clarksburg, and on his way back the horse and sleigh were injured.

When considering theliability of the defendant and the proper form, of action, Gray, J., said: “It appears to be clear upon principle 'and authority that an action of tort for the conversion of the horse and sleigh, by driving beyond the place agreed upon in the illegal contract of hiring, is not founded on the contract, and we think it equally clear that the contract need not be shown by the plaintiff, and forms no part of his cause of action.”

In the case of Frost v. Plumb, the action was trover for the recovery of the value of a horse, hired on Sunday to be driven from Waterbury to Southington, but which was driven ten miles further, from the effects of which the horse died. ■ It was objected by the defendant that the contract to hire was made on Sunday and was void, and that the action could not be maintained.

When considering this objection, Carpenter, J., said: “We understand the rule to be this: The plaintiff cannot recover whenever it is necessary for him to prove, as a part of his cause of action, his own illegal contract, or other illegal transactions, but if he can show a complete cause of action without being obliged to prove his own illegal act, although such illegal act may incidentally appear and may be important, even as explanatory of other facts in the case, he may recover.

■ “It is sufficient if his cause of action is not essentially founded upon something which is illegal; if it is, whatever may be the form of action he cannot recover. It was only necessary for the plaintiff to prove his own title to the property, and a conversion by the defendant. The destruction of the horse was a conversion, and proof that the injury which caused his death accrued whilst being.driven without the consent of the owner, shows a complete cause of action, without any reference to an illegal contract. The illegal hiring may, or not, appear ; if it does, it simply explains the defendant’s possession, and proves that it' was by the owner’s permission, at least for a certain purpose. It may give the defendant an opportunity to injure the horse, but it does not cause the injury; nor does it contribute to it, in such a sense as to make the plaintiff a party to the wrongful act.

“Before the defendant can avail himself of it as a defense, it becomes necessary for him to prove the illegal contract to which he is a party, and his own illegal conduct in traveling on the Sabbath;' but he can no more avail himself of that as a defense, than the plaintiff can as a cause of action. Either party whose success depends upon his proving his own violation of law, must fail.”

In the case of Gregg v. Wyman, 4 Cush., 322, the facts were that defendant hired a horse on Sunday to go to a certain place, but extended his ride beyond it; in consequence of the drive the horse died; the defense was that the contract made on Sunday was not binding upon him.

The court held, that no recovery could be had upon the contract ; yet, if the horse was hired to go to a particular place, and was driven further, or to a different place, by reason of which the plaintiff’s horse was injured and died, plaintiff could recover.

In the case of Homer v. Thwing, 3 Pick., 492, a minor hired a horse to drive to Punch Bowl, but drove to Fresh Pond. The horse was returned injured. Plaintiff sued in trover; defendant pleaded his infancy ; the court commented upon the fact that the horse was driven to a different place from that agreed upon.

■ Morton, J., said : But in the case at bar, the driving of the horse beyond that to which defendant had permission to go, was a conversion, and trover the proper remedy.

In the case of Wheelock v. Wheelwright, 5 Mass., 103, Parsons, Ch. J., said: The defendant, by riding the horse beyond the place to which he had liberty to go, is amenable in trover; unauthorized use of the horse was a conversion.

These decisions meet our approval, and in principle have a direct application to the case under consideration.

The action is brought under the Code form of pleading, and sets out the whole transaction, and is substantially an action for damages for the abuse and misuse of a horse received by the defendant as a bailee without hire. There was no valid contract for- hire, and no reference to it need have been made, or if made, was not the basis of the action, but might be used to show how and upon what terms' the horse came to the possession of. the defendant; terms fixed and understood, though not binding, as a contract, and not to be varied by custom as to the time or terms of use.

The possession was, in its nature, a gratuitous loan, a use without compensation, and imposed a stricter-observance of the terms of use than a bailment for a compensation to the party hiring.

Story, in his work on Bailments, says: “The rights of borrower are strictly confined to the use actually or impliedly agreed upon; the borrower, by any excess, will make himself responsible if the property is destroyed.” Sees. 227-232.

It is a conceded fact in the case under consideration, that the time of use was prolonged, and the rise on Monday different from that understood and agreed.upon by the parties. It was during this prolonged and changed use that the horse was taken sick, from the effects of which he died; such continued and varied use from that agreed upon was a conversion, and fixed the liability of the defendant for all the consequences which followed.

In the several instructions given by the court, an undue importance seems to have been given to the terms, and obligatory force of the agreement; it was treated as a valid contract, one binding upon the parties; in fact, that the said suit was brought upon the contract; to this extent the court was in error.

The suit was not founded upon the contract, but upon a wrongful use and conversion of property; it was a suit for damages for the conversion of the horse, and when the instructions given are applied to the case made by the pleadings and the evidence, they are substantially correct.

The second instruction asked by plaintiff, and given by the court, contains the substance of the several instructions, which is as follows:

“If the jury find that the defendant hired said horse as stated by plaintiff, for use during one day, and that he retained the same for the period of two days without plaintiff’s consent, and upon the second day, said horse contracted a disease, or sickness, from which he died, they will find for plaintiff.”

We think this instruction correct, and all the more so because there was no contract for hire.

The first instruction limits the time of the return to the day agreed upon, but as there was no question but that the horse was kept two days, and that it was on the evening of the second day that he became sick, it could not have influenced the finding of the jury.

The third was like the second, with the difference that it referred to the change of use to deer hunting.

The fourth instruction had relation to the burden of proof, and had no material bearing upon the case as made by the evidence.

The fifth was overruled, and not made ground of error, and the sixth is like the second, which we have held was properly given.

The first, second and third instructions asked by defendant, and refused by the court, relate to bailment for hire under -contract, and were properly refused, from the view which we have already taken of the case.

The fourth instruction is as follows: “ If the jury believe the -defendant took such care as a prudent man would of his own property, then he is not liable, except for hire.”

This instruction was properly overruled, not being a contract for hire, more than ordinary care was required, and, moreover, the continued use of the horse, and the different use made of him from that agreed upon, fixed the liability of defendant; it was, in effect, a warranty against injury.

The defendant’s fifth instruction is as follows :

“ If the written contract given in evidence was made on Sunday, the jury will disregard the contract entirely, and find as upon an implied contract for the use of the horse for such time as he was used, not on Sunday.

This instruction was properly overruled, because, as we have held, it is not every contract for hire made by a livery stable keeper that is void ; and that part of the instruction which limits recovery for the hire of the horse to one day is palpably erroneous.

.The verdict is well sustained by the evidence, and the motion for a new trial properly overruled.

Let the judgment be affirmed.


author: English, Ch. J.:

text:
    Surginer, adm’r, vs. Paddock et al.
    1. Ejectment: Pleading, ete.

    Under the provisions of the act of March 5th, 1875, regulating the practice in actions of ejectment, it is not necessary for the parties to copy their deeds in the pleadings; it is sufficient to state the substance of the deeds relied, on and file copies as exhibits. ■*

      2. --; Title requisite to maintain.

    The purchaser of lands from the United States, who obtains a patent certificate, does not acquire the legal title; but he may, under our statute, maintain qjectment thereon.
    3. Practice.
    The failure of an administrator, suing in his representative capacity, to file his letters, or a copy thereof, should be reached by a rule on him to produce the letters, or a copy, and is no cause of demurrer.
    4. Donation: Setting anide, notiee, etc.

    If the donee of land forfeited to the State for taxes fail to pay for the improvements thereon, as provided by sec. 3905 Gantt’s Digest, he is not entitled to notice of an application by the owner of the improvement to set aside the donation and purchase the land; but the deed of the auditor to the owner of the improvement will not be conclusive against the donee.
    5. --.
    The law requires the donee from the State to pay for improvements, whether they were made before or after the forfeiture of the land.
    6. --.
    If the owner of an improvement on land forfeited to the State for taxes, and subsequently donated, dies, his administrator is entitled to be paid by the donee for the improvements; and, upon failure of the donee to pay for the same, may purchase the land in his representative capacity for the benefit of the creditors and heirs.
    APPEAL from Benton Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.

      Watson and Rose, for appellant.

      Clark & Williams, and J. JD. Walker, contra.

   English, Ch. J.:

Ejectment by Wiley A. Surginer, administrator of William Harrison, deceased, against Samuel F. Paddock, Mary B. Paddock and Z. P. Snider, determined in the Benton Circuit Court.

The complaint alleged, in substance :

That William Harrison, in the year 1875, entered, at the United States land office at Fayetteville, the south half of the southeast quarter of section 1, and the north half of the northeast quarter of section 12, township 17 north, range 34 west, 160 acres, situated in Benton County, for which he paid $1.25 per acre, and obtained a certificate of entry from the receiver of public moneys.

That Harrison, in his lifetime, received no patent for the lands, and that his certificate of entry w;as lost or destroyed, and could not be produced ; but plaintiff files a certificate of the register of the land office, etc., showing that said lands were entered at the time, place and price aforesaid, by said Harrison.

That Harrison entered into possession of said lands under the purchase aforesaid, and made valuable and lasting improvements thereon.

That about the 25th of November, 1874, Harrison died intestate in the county of Benton, and on the 3d of April, 1875, letters of administration upon his estate were duly granted to plaintiff by the Probate Court of said county (which are herewith filed and marked exhibit B) after he had given bond as required by law, and plaintiff is now administering said estate.

That in the year 1870, said lands were forfeited to the State for the non-payment of the taxes for that year ; and thereafter, on the 28th of October, 1873, were donated, under the laws of the State, then in force, to defendant Mary B. Paddock, and she and her husband, defendant Samuel P. Paddock, immediately took possession of said land under the donation deed, and now hold possession of said land under the deed of the auditor of the State, known as a donation deed.

That on the 26th day of November, 1875, plaintiff applied to the auditor of the State, in the manner provided by law, to have the deed made by the Auditor to said Mary B. Paddock set aside, and canceled, and held for nought; and that said lands be sold to plaintiff, as administrator of the estate of said Harrison, for the benefit of said estate. That at the time of making said application to purchase and redeem said lands for the benefit of said estate, said estate was largely indebted, and without said lands as assets, would be insolvent. That on said day, the auditor did set aside, cancel and hold for nought the deed so made to said Mary B. Paddock, and sell and convey to plaintiff, by deed duly executed in the manner provided by law, the said lands, which deed is in words and figures, as follows, to-wit:

The State of Arkansas, to all to whom these presents shall come, greeting: Know ye, that in pursuance of law, the following described land, situated in the county of Benton, in the State of Arkansas, which had been forfeited to the State for nonpayment of taxes, viz : South half of southeast quarter section 1, and the north half of the northeast quarter section 12, township 17 north, range 34 west, was offered at public auction by the auditor of the State of Arkansas, in September, 1873, and not sold for want of bidders, and Mary B. Paddock having applied to the Commissioner of State Lands to donate said land, and being by him furnished with a certificate, showing that the same was subject to donation, said tract of land was, on the 28th day of October, 1873, donated to the said Mary B. Paddock, by deed of that date. And whereas, it has been made to appear by the affidavit of W. A. Surginer, administrator, lhat the estate of William Harrison, deceased, owned an improvement on said land at the time it was donated to said Mary B. Paddock ; and that she had not paid, or tendered to him, as such administrator, or any one for him, double the value of such improvement, within the time prescribed by law, and the time for making such payment and for filing the receipt as evidence thereof having elapsed; and whereas, the said W. A. Surginer, as administrator of estate of Wm. Harrison, having applied to the Commissioner of State Lands and the auditor to purchase said lands, and being by them furnished with a certificate of purchase, showing that the sum of $65.22, the taxes, penalty and costs now due on said land has been paid into the State treasury, in accordance with law: Now, therefore, I, ¥m. E. Miller, as auditor of the State of Arkansas, for and in consideration of the premises, do, by these presents, grant and convey unto the said above named applicant, W. A. Surginer, as administrator of the estate of ¥m. Harrison, deceased, his heirs and assigns forever, all right, title, interest, claim and estate of the former owner in and to the above described land, and also all the right, title, interest and claim of the State of Arkansas thereto, to have and to hold the same as now held or owned by the said State, unto the said grantee, and to his assigns forever, as administrator aforesaid. In testimony whereof, I, ¥m. E. Miller, as auditor of State of Arkansas, hereunto set my hand, and affix the seal of said office, at the city of Little Eock, this 26th day of November, A, L. 1875.
'“W. E. Miller,
[l. s.] “Auditor of State, etc.”

Which deed was duly acknowledged, etc., and certificate of acknowledgment appended.

Plaintiff further alleges that said Samuel F. Paddock is the husband of defendant Mary B. Paddock, and that they, and defendant Z. P. Snider, entered into possession of said lands on the 1st day of January, 1876, and unlawfully withhold the same from plaintiff as the administrator of the estate of said William Harrison, deceased, who Avas on the said day, and now is the legal owner of said lands, and lawfully entitled to the possession thereof.

That said Snider holds possession of said lands as tenant of said Mary B. Paddock and Samuel F. Paddock.

Damages laid, and prayer for final judgment, etc.

Snider demurred to the complaint on numerous grounds, the court sustained the demurrer, and plaintiff declining to amend, final judgment was rendered in favor of defendant, and plaintiff appealed to this court.

The complaint- is an attempt to comply with the provisions of the act of March 5th, 1875, which requires the plaintiff in actions for the recovery of land (except forcible entry and unlawful detainer), to set forth in his complaint all deeds, and other written evidences of title, on which he relies for the maintenance of his suit, and file copies of the same, as far as they can be obtained, as exhibits therewith, and state such facts as shall show a prima faoie title in himself to the land in controversy; and the defendant, in his answer, shall plead in the same manner, etc. Acts of 1874-5, p. 229.

It surely cannot be necessary for the plaintiff to copy his title deeds in his complaint, and also file with it copies as exhibits, for this would be a needless incumbrance of the record. It must be sufficient to state the substance of deeds, etc-., relied on in the complaint, and file with it copies as exhibits, as far as they can be obtained.

Under the former practice in ejectment, the pai’ties did not produce or disclose their title deeds until offered in evidence on the trial, and surprises not unfrequently occurred by the production of deeds, etc., not anticipated, and which the party against whom they were produced had had no opportunity to examine.

One of the objects of the statute was to require the plaintiff, on filing his complaint, and the defendant, on interposing his answer, to disclose their respective titles, and exhibit copies for mutual examination, etc., to prevent surprises on the trial, etc.

First — The first cause of demurrer to the complaint is, that it appears from its face that the legal title to the lands was not in Harrison, but in the United States.

This is true. The complaint shows that Harrison purchased the lands of the government, paid for them, and obtained a patent certificate, but that he had not received the patent. The naked legal title, upon this showing, remained in the United States, and the equitable title was in Harrison, and, upon such title, he, or his administrator, could, under our statute, maintain ejectment cgainst one in possession of the lands without a better title. Gantt’s Digest, sec. 2254.

Second cause of demurrer — That it does not appear from the face of the complaint, that plaintiff had any evidence that Harrison purchased the lands of the United States.-

The entry and issuance of the certificate of purchase are alleged, and the loss or destruction of the certificate averred as an excuse for not filing a copy as an exhibit, which was sufficient uuder the above act of March 5th, 1875. The complaint, however, makes the certificate of the register that the entry had been made by Harrison an exhibit, which was a prima facie showing of the entry, in connection with the averment of the issuance and loss of the certificate of purchase.

Third cause of demurrer — That the complaint avers that Harrison entered upon the lands under his purchase from the United States, and made valuable and lasting improvements thereon, but does not show in what such improvements consisted, the extent and character thereof.

The character and extent of the improvements might become the subject of inquiry on the trial, under the ad quod damnum laid in the complaint, but the plaintiff, in .making out a prima facie showing of his title to the lands in the complaint, was under no necessity to allege the character and extent of the improvements, for they were not an element of his title to the lands.

Fourth cause of demurrer — That plaintiff does not make proferí of his letters of administration, or file a copy thereof with his complaint.

The grant of the letters is sufficiently averred (5 Ark., 385 ; 6 id., 404), and the complainant professes to file them as exhibit B.

The grant being ayerred, the failure to file the letters, or a copy, was no cause of demurrer. The court, by rule, would compel the production of the letters, or the filing of a copy, on motion of defendants.

Fifth cause of demurrer — In substance, that the complaint does not aver that plaintiff filed with the auditor an affidavit, showing that the estate of Harrison owned an improvement on the lands at the time they were donated to Mrs. Paddock, and that she had not paid or tendered to plaintiff, as his administrator, double the value of such improvements, etc.

The complaint alleges that plaintiff made the application to redeem the lands in.the manner prescribed by law; and the auditor’s deed, set out in the complaint, recites the making of the affidavit required by the statute. Gantt’s Digest, see. 3905.

Thus the complaint made a prima facie showing of title to the lands in the plaintiff as administrator of Harrison, which was all that he was required to do under the act of March 5th, 1875.

Sixth cause of demurrer — That the complaint avers no notice to Mrs. Paddock of the application of the plaintiff to the auditor to set aside her donation deed, and permit him to redeem the lands.

This is true, nor does the auditor’s deed recite any notice to her, nor does the statute require any to be given.

The statute provides that:

It shall be the duty of every person who has obtained a donation to a tract of improved land, within three months from the date of the deed, to pay to the owner of such improvement double the value thereof, and to take from such person his receipt' for the amount of money so paid, which .receipt shall, within thirty days thereafter, be filed with the auditor ; and should any such improvement not be paid for by the donee, and the receipt showing such payment shall not be filed with the auditor within the time prescribed, such donee shall forfeit all right to the land ; and the owner of such improvement, upon filing with the auditor his affidavit, stating that he owned an improvement on the land at the time it was donated, and that the donee has not paid or tendered to him double the value of such improvement, if the time allowed for making such payment, and filing the receipt as evidence thereof, shall have elapsed, shall be allowed to purchase said land, including his improvement, by paying all arrearages of taxes which may be charged thereon, in the same manner as if the land had never been donated; and the auditor shall execute to such purchaser a de.ed for the same, which shall have the same validity, force and effect, and be evidence of title, as other deeds executed by the auditor for lands sold for taxes.” Gantt’s Digest, sec. 3905.

It might have been more consistent with the principles of justice for the legislature to provide for the auditor to give notice to the donee before acting upon the application of the owner of the improvement to purchase the land, but this was not done ; and it might be well for the auditor to give such notice as a matter of fair practice under the act; but this is not required by the law. The donee takes the land as a gift from the State, and upon such terms and conditions, and under such regulations as the legislature has thought proper to prescribe.

The deed, however, of the owner of the improvement, made upon an ex parte application and affidavit, is only prima facie evidence of a valid right, and not conclusive against the donee. If the applicant (make a false affidavit — if, in fact, he has no improvement on the land, or the. donee has paid or tendered to him double the value thereof, within the time prescribed by the act — this may be shown by the donee in the courts, to defeat the deed, and re-establish the title of the donee. Lacefield v. Stell, 21 Ark., 437.

Seventh cause of demurrer: That the complaint alleges that the estate of Harrison owned an improvement on the lands at the time they were donated to Mrs. Paddock, but does not show whether the improvement was made before or after the lands were forfeited to the State for taxes.

It seems, from the complaint, that Harrison lived several years after the lands were forfeited to the State, but we do not see that it is material whether he made the improvement before or after the forfeiture. If he made it before the forfeiture, the improvement passed to the State with the lands, and as between him and the State, both the lands and the improvement belonged to the State, and were subject to her disposal according to her pleasure. So if the improvement was made by Harrison on the lands after the forfeiture, and before the State donated the lands to Mrs. Paddock, the improvement belonged to the State, being made upon her lands.

The legislature, representing the sovereign owner of the lands forfeited for the non-payment of taxes, can provide for the redemption, sale or donation of such lands as it may please. If it chooses, as a matter of grace, to treat a person who has made an improvement upon lands, before or after forfeiture, as, in a sense, the owner of such improvement, who can gainsay it ? If it is the pleasure of the legislature to give the land to a person on condition that the donee shall, within a prescribed time, pay or tender to such owner of an improvement double the value thereof, and the donee accepts the gift on such conditions, what right has he to complain? None, we think.

The only other cause of demurrer assigned that need be noticed, is, that appellant, as administrator of Harrison, had no right, upon the failure of Mrs. Paddock to pay for the improvement, to purchase the lands of the State, by paying all arrearage of taxes charged thereon, as p'rovided by the statute.

Had Mrs. Paddock thought proper to pay for the improvement within the period prescribed by the statute, no doubt but that appellant would have had the right, as the administrator of Plarrison, to accept the money, and execute’ to her the proper receipt to file with the auditor. No doubt, also, but that a tender of the money to him would have been good.

It would have been but the exercise of a power by an administrator, similar to the collection of a debt due to the estate represented by him, and the giving an acquittance therefor.

So, on her failure to pay for the improvement, we can see no good reason why the appellant, as the legal representative of Harrison’s estate, might not make and file with the auditor the affidavit of non-payment; and purchase the lands, with the improvement thereon, by paying the arrearages of taxes charged on the lands, and take the deed to himself, in his fiduciary character, and hold the same in trust for the benefit of the creditors and heirs of Harrison.

It is but a mode provided by law for the redemptien of lands forfeited to the State for the non-payment of taxes.

Lands being assets in the hands of an administrator, under our statute, for the payment of debts, it is his duty to pay the taxes on them, and if he finds it to be to the advantage of the estate, he may, no doubt, redeem them from tax sales and forfeitures, in any of the modes prescribed by law.

The judgment is reversed, and the cause remanded, with instructions to the court below to overrule the demurrer to the complaint, with leave to the appellees to answer if they desire so to do.


author: Walker, J.:

text:
    Williamson vs. Furbush, adm’r, etc.
    1. Resulting Trust:
    An executrix recovered judgment on a debt due the estate, under which land was sold and bought by her, and the amount bid credited on the judgment: Held, it became, equitably, the preperty of the estate, and subject to the debts thereof.
    2. Administration, etc.:
    Any competent resident of this State, preferring those who have an it terest in the estate, may, under our statute, be appointed administrator; or the sheriff of the county in which the estate may be found, may, as public administrator, assume such trust; but until he assumes the duty of administering, or is directed by the court to do so, the sheriff does not become the administrator of a particular estate, and cannot be required to allow, or reject, a claim against it.
    8.---: JPt'oceeding to subject property to debts, ete.

    A creditor of an estate cannot proceed to remove incumbrances from the property thereof, and subject it to the payment of his debt, until he has first presented it to the administrator, and had it allowed and classed.
    4.--: Disposition of assets on settlement of ancillary administration.

    When an ancillary administration is closed, the residue of the assets ' should be transmitted to the administrator of the domicil, for final settlement and distribution, and not exhausted in the payment of foreign debts.
    APPEAL from Lee Circuit Court in Chancery.
    Hon. J. N. Cypert, Circuit Judge.

      Adams, for appellant.
   Walker, J.:

The suit was brought in equity, to subject certain lands in Lee County to the payment of a debt held by Williamson against the estate of John F. Mills.

A demurrer to the bill was sustained in the court below, and plaintiff appealed.

The sufficiency of the bill is the sole question presented.

The facts are, in substance, that John F. Mills and plaintiffs were citizens of the State of Tennessee ; Mills died in Tennessee ; left a will which was probated ; Caledonia Mills, his widow, was the executrix and sole devisee of Mills; that there was personalty more than sufficient to pay the debts of the testator ; that plaintiff held a note against the estate which was never presented for payment in Tennessee; that a debt due Mills’ estate in Arkansas was prosecuted by the executrix to judgment, in her name as executrix, and the lands claimed to be subject to plaintiff’s debt, were purchased by the executrix; that the deed to the land was made to the executrix, but paid for out of the debt so recovered; that she is dead, and that by will she devised this estate to defendants, Sale and Lanier. That there is no personal estate in Arkansas, and no administration on Mills’ estate in Arkansas. That Sale and Lanier are non-residents, and defendant Furbush is sheriff an ex offieio public administrator; that the claim was probated, and presented to Furbush as public administrator, who refused to pay.

The prayer of the bill is to establish the claim and subject the land to sale for its payment.

There appears to be no good reason why this debt was not collected out of the estate administered upon in Tennessee, the domicil of the testator, for there is said to have been sufficient estate there for that purpose. It seems, however, that the presentation of the claim was delayed upon an assurance that limitation would not be plead as a bar.

The debt in Arkansas seems to have been collected by the execution.

The property sold for $10,000, and the lands bought by the executrix, and paid for, by crediting the judgment with the amount bid for it, was equitably the property of the estate-; so held in the case of Osborn et al. v. Graham et al., 30 Ark., 66.

Conceding the lands to be liable for the plaintiff’s debt, the question is, was a suit in chancery the proper action to enforce the collection of the claim, or should there not have been an ancillary administration in Arkansas to subject the property of the testator situate in this State to the payment of this debt; certainly if the testator was indebted in this State, an administration here would have been proper and necessary.

• It is no objection to suing out administration here that our statute forbids that non-residents should assume the duties of administration ; any competent resident, prefering those who, from relationship or otherwise, have an interest in the estate, may be appointed administrator; or, under the provisions of statute, secs. 216 and 217, Ch. 2, Gantt’s Digest, the sheriff of the county in which the estate may be found, may, as public administrator, assume such trust. The general power to act as public administrator may be assumed by the officer taking the property into possession, if necessary, to prevent waste, or upon order of the Probate Court directing him to do so; but such seems not to have been done in this instance. Until the officer has taken upon himself the duties of administering upon a particular estate, or until directed by the court to assume such trust, he is not in fact the administrator of any particular estate, and is not required to allow or reject claims presented to him as such officer.

It was, therefore, in this ‘instance, no such presentation for allowance or rejection as is contemplated by law, but if in fact otherwise, and Furbush was public administrator of Mills’ estate, and if, as alleged, he did refuse to allow the claim of plaintiff, his proper remedy would have been to present it to the Probate Court -for allowance, as provided in sec. 112, Ch. 1, Gantt’s Digest; so that, in fact, his statute remedy was complete. Until plaintiff’s claim is allowed and classed, he is not in position to proceed to set aside incumbrances upon the estate, if there be such, and to subject it to the payment of his debt.

It will be seen, too, that this is a foreign debt, one contracted at the testator’s domicil, in which administration had been granted, and it is questionable whether, if ancillary administration was had in Arkansas, a foreign claim could be presented here, and the assets of the estate exhausted to pay it, to the prejudice of the rights of creditors in Arkansas.

This question was first presented, and considered by this court, in the case of Clark v. Holt, 16 Ark., 257, in which it was held that the personal estate of the deceased is to be disposed of by the law of the domicil, and if he has effects in a foreign jurisdiction, and administration be granted upon his estate, it is merely ancillary to the administration of the domicil, so far as regards the collection of the effects and the proper disposition of them ; but, subservient to the rights of creditors and distributees residing in the country where the ancillary administration is granted.

In a later case, Du Val v. Marshall, 30 Ark., 231, in which ancillary administration was had in Arkansas, and in which it was not known that any debts existed in Arkansas except to pay costs of administration, the court said : “The question is not to be determined by the extent of the local! indebtedness of the intestate, but whether, in any case, the administrator at the domicil can dispose of, or withdraw, the assets in the hands of the ancillary administrator, until the administration is settled, and the debts paid, and we are clearly of opinion that he cannot.”

The plaintiff says that the personal estate in Tennessee is amply sufficient to pay his debt, and if such is the case, there is no apparent reason why he should not enforce his claim there. But suppose such was not the case ; that there were many claimants whose debts greatly exceeded the assets in Tennessee, and that in Arkansas there was an estate largely more than necessary to pay the debts here, and upon settlement there was a balance on hand; it would certainly not be equitable to allow one creditor to bring his claim to Arkansas and take full satisfaction of his debt, leaving the debts of the other creditors unpaid, or, but partially paid.

We think the better rule is (and it is one sustained by author- . ity), that where the administration is closed by the ancillary administrator, the residue of the funds should, by an order of court upon requisition, be turned over to the administrator at the place of the domicil, to be held as part of the common assets for final settlement and distribution. Whether under peculiar circumstances, the estate might not be otherwise disposed of, we need not now determine; but certainly there is no such case now before us as will uphold such exception.

If, indeed, plaintiffs have a valid claim, one which can be allowed and collected out of the estate in Arkansas, his remedy is complete under the provisions of our statute.

The demurrer to the bill was properly sustained.

Let the judgment be affirmed.


text:
    Gaff vs. Holland, sheriff.
    Cost: Sheriff’s commission.

    Under the provisions of the act of February 25th, 1875, regulating costs, the sheriff is not entitled to commissions for collecting, where the judgment is compromised and settled after the levy of an execution.
    APPEAL from Chicot Circuit Court.
    Hon. T. F. Sorrels, Circuit Judge.

      Reynolds, for appellant.
   Walker, J.:

This case came before the Circuit Court 'of Chicot County upon an agreed statement of f%cts as to the proper fees due the sheriff for commissions.

The facts agreed upon and submitted to the court were that an execution in favor of Gaff against one Warner, for $4,789, was placed in the hands of Holland, as sheriff, to be collected. The execution was issued and placed in the hands of the sheriff, on the 22d April, 1875, and levied upon lands 12th of May, and advertised for sale June 14th, 1875; 160 acres of the land was claimed and scheduled as a homestead, and supersedeas awarded staying its sale ; defendant, under the belief that he could make but a small amount of his debt out of the residue of the land, divided his debt into several payments, gave day for payment, and directed the sheriff to return the execution not satisfied. The lands, omitting the homestead, were, in 1874, assessed at $3,130; that all of the fees, including those for levying and advertising the land, had been paid, leaving the claim of commissions the sole question to be determined by the court, under the agreed statement of facts.

The court found that the plaintiff was entitled to $47.54 for commissions, and rendered a judgment for that amount. Defendant appealed.

The question as to commissions, and the amount due, must be determined by the statute then in force.

The services for which commission is claimed were rendered in May and June, 1875.

At that time the act of February 25th, 1875, was in force; see pages 179 and 180, which provides, that sheriffs shall be allowed fees for- receiving and paying money on execution or process, when lands or goods have been taken in custody, advertised or sold, one per cent.; and all that part of the section providing that in no event shall the sheriff be deprived of his commission by settlement or compromise of the parties, is repealed.

It is contended for appellant that, as that part of sec. 2847, Gantt’s Digest, which allows commission, was repealed, it was intended by the legislature, that the sheriff should receive no commission whatever, when the debt is compromised, or settled without a sale of property.

The act of 1868, found in Gantt’s Digest, sec. 2847, in force when the act of February, 1875, was passed, provides, that the sheriffs shall receive for commissions for receiving and paying money on execution or process, when lands or goods have been taken in custody, advertised or sold, two per cent.; and in no event shall he be deprived of such commission after an execution has gone into his hands, by any settlement or compromise of the parties.

The act of February, 1875, sec. 53, page 189, provides, that for receiving and paying money on execution or process when land or goods have been taken in custody advertised or sold, one per cent.; and all that part of the section, providing that in no event shall the sheriff be deprived of his commission by settlement or compromise of the parties, is repealed.

It will be seen, that up to the explanatory clause in the latter part of the act of 1868, the language of the two acts are the same, with the exception, that the former allowed two per cent., the latter one per cent, for commission.

And unless the legislature of 1868, had supposed it necessary to enact the latter clause in order to give two per cent., whether the debt was collected or not, there would certainly have been no such clause inserted, and it would be a fair presumption when the legislature reduced the commission from two to one per cent., that they did not intend to allow commission when the debt was compromised or settled, without collection by sale of the property levied upon, or they would not have repealed the clause which allowed commission where the debt was compromised or settled without a sale of property.

We think this the proper construction to be given to the act, and that upon the state of facts ■ agreed upon the sheriff was not entitled to commission.

Under this construction of the act, we must hold that the court erred in finding that the sheriff was entitled to commission, and in rendering jndgment against1 the defendant for the same.

Let the judgment be reversed and set aside, and the cause remanded, with instructions to the court below to dismiss the same.


author: - Walker, J.:

text:
    Clark and Wife vs. Anthony and Wife.
    1. Fbaudulent Conveyance:
    To entitle a creditor to set a conveyance by the debtor aside as fraudulent, he must show an unsatisfied judgment upon a cause of action that accrued prior to the conveyance, the issuance of process and inability to find property out oi which to make the debt; and that the defendant, being possessed of prdperty out of which it might have been satisfied, altogether, or in part, conveyed the same for the purpose of defrauding his creditors.
    2. Judgment: Conclusiveness.

    In a proceeding by a judgment creditor to set aside a fraudulent conveyance by the judgment debtor, the judgment is only prima facie evidence of the validity of the debt, as against the grantee in the alleged fraudulent conveyance; but the failure of the defendant to plead the statute of limitations, or matter in abatement, is a waiver of those defenses, and the grantee cannot avail himself of them,
    APEAL from Lonoke Circuit Court in Chancery.
    Hon. Sam. W. Williams, .Special Judge.

      Brown for appellant.

      Clark & Williams, contra.

   - Walker, J.:

Clark and wife filed a bill in equity against Anthony and wife, to set aside a deed executed by Anthony to his wife, upon the ground that the deed was fraudulent, to declare a lien upon the lands so conveyed, to subject part of them to the payment of a judgment in their favor against Anthony, which, upon return of execution, remained unsatisfied for want of property out of which to make the debt.

It is alleged that plaintiff, Esther Clark, befoi’e her marriage with Clark, was married to Henry Gregg, that a child was born of the marriage; that Gregg made a will by which his estate of every description was bequeathed to plaintiff Esther, and her child, with a provision that if the child died, the whole estate should vest in her; that the child did die, and that she became, under the will, the sole owner of the estate.

That with other estate there was a note executed by Anthony to her deceased husband for the sum of $153, with ten per cent, interest, which was due and unpaid at the death of her husband, Gregg. That after the death of Gregg, she was married to plaintiff Clark, after which plaintiffs brought suit upon the note against Anthony, that he was personally served with notice, failed to defend, and that judgment was rendered against him for the sum of $153 debt, and $293 damages; that execution was issued upon the judgment, and placed in the hands of the constable to be executed, and that the constable returned the same unsatisfied; that a transcript of the judgment was filed in the office of the clerk of Lonoke county for the purpose of creating a lien upon the real estate of the defendant situate in that county, that the defendant owned land in said county, and that a lien was thereby created upon it. A certified copy of the will, the judgment and execution, with its return, are filed as exhibits.

Plaintiffs further allege that after the execution of the note^ and his liability to pay had accrued, the said Phillip L. Anthony for the purpose of hindering, delaying and defrauding his creditors, and to prevent them from collecting their debts, did, on the 18th April, 1874, execute and deliver to his wife, Lew Ann Anthony, (his co-defendant) a deed of conveyance by which he pretended to convey to her his entire estate, consisting of lands situate in Lonoke, Prairie, Pulaski, Jefferson and Desha counties, leaving neither real or personal estate subject to execution, out of which to satisfy their judgment; all of which was done to defraud plaintiffs, and hinder and prevent the collection of their debt, a copy of the deed is exhibited.

Anthony and wife are made defendants. The prayer of the bill is, that the. deed be set aside, a lien be declared upon the the lands in Lonoke county, and that so much thereof as may be necessary to pay the debt and costs be sold for that purpose.

The defendants appeared and filed a demurer to the bill upon the grounds that the facts set forth are not sufficient, and that the facts, as stated, show that plaintiffs have no cause of action ; the demurrer was sustained and leave given to amend by inserting a description of the land in Lonoke county; the amendment was made, and a general demurrer to the bill, as amended, was overruled.

The defendants declined to answer further, and a decree was rendered in favor of plaintiffs, declaring, a lien upon the lands and decreeing sale, from which defendants appealed.

The allegations being confessed by the demurrer, the only question presented is the sufficiency of the bill to entitle the plaintiffs to the relief decreed.

To entitle the plaintiffs to the relief prayed, it is necessary for them to show that they have a valid unsatisfied judgment, upon a cause of action which accrued before the conveyance of his property, that they have issued process upon their judgment, and have been unable to find property of the defendants, free from incumbrance, out of which to make the debt; that the defendant was possessed of property out of which the debt might, in part or in whole, be satisfied, that he has conveyed the property, with the intent and for the purpose of defrauding his creditors. Meux v. Anthony, 11 Ark., 411; Sale and Wife v. McLean et al., 29 Ark., 612.

The defendant does not controvert the correctness of these decisions, but contends that the judgment rendered, although prima facie sufficient to show an indebtedness, is not conclusive. This is true as regards the grantee in the deed of conveyance, a third party to the suit, but as between Phillip Anthony and plaintiffs, it is conclusive, and it is prima facie conclusive as to the defendant Lew Ann Anthony, unless, by answer, she controverts and shows it to be invalid. Miller v. Miller, 23 Maine, 22; 17 N. H., 549.

In 41 Me. N. H. 103, it was held that, as between the parties, the judgment is conclusive of indebtedness, but as between third persons it is not, and that the grantee in the conveyance alleged to be fraudulent, may show that in fact, there is no valid judgment. To the same effect is King v. Sharp, 26 Iowa, 283; Carter v. Bennett, 4 Florida, 283, and Warner & Co. v. Dorr and Wife, 576.

But in each of these cases the question was presented by answer denying the validity of the judgment, and not upon demurrer.

It is urged by defendants’ counsel that it affirmatively appears upon the face of the pleadings that the debt in this instance was barred by statute • of limitation, and that the suit on the note should have been brought- in the name of the administrator, not of the legatee. Admit this to be true, and still neither of these grounds reach the validity of the judgment; the first was matter in bar, the latter of abatement, defenses which the defendant Phillip Anthony might have interposed, but if waived by him at the trial, neither he nor any one else has a right to object.

If the plaintiffs show a cause of action within the jurisdiction of the justice, and jurisdiction of the person by service of process, he had power to render a valid judgment, which, when rendered, is conclusive between the parties to that suit, and fixed a liability upon the defendant to pay.

It is true that the grantee in the conveyance can contest the validity of the debt, or show that the plaintiffs have not put themselves in position to have satisfaction out of the property conveyed, but this they must do by showing that th e prima facie case in point of fact, is not true.

This the defendants have wholly failed to do.

The case made by the bill brings the case directly within the rule laid down in Meux v. Anthony, and approved in the late case of Sale and Wife v. McLean, above cited.

The court found the allegations to be true, and rendered a decree giving day for defendants to pay the judgment, interest and costs, and, on default thereof, that the lands in Lonoke County,- or so much of them as should be found necessary for that purpose, be sold to pay the same. In this there is no error.

Finding no error in the judgment and decree of the court, the same is affirmed.


text:
    McGehee vs. Carroll & Jones.
    Appeal:
    An appeal was granted by a justice of the peace, arid the transcript deposited by him with the clerk of the Circuit - Court; the appellant, who had executed a supersedeas bond, failed for more than thirty days to have the transcript filed, or the cause docketed: Held, it was in the discretion of the court to determine whether the appeal had been prosecuted with due diligence, and an order dismissing it would not be disturbed.

      APPEAL from Jefferson Circuit Court.
    Hon. J. A. Pittman, Circuit Judge.

      Martin, for appellant.

      Carroll & Jones, eontra.

   Walker, J.:

Carroll & Jones recovered judgment against McGehee before a justice of the peace, who took an appeal to the Circuit Court.

By sec. 2825, Ch. 32, Gantt’s Digest, the justice from whose judgment the appeal is taken, is required on or before the first day of the Circuit Court next after the appeal shall have been allowed, to file in the office of the clerk of such court a transcript of the records and papers in the case.

The Circuit Court next after the time when the appeal was taken, was the May term, 1876. It seems that the transcript was by the justice delivered to the clerk of said court, but neither filed or docketed. Some thirty days having elapsed after the commencement of the term, without the transcript having been filed, or case docketed for trial, the appellees caused the same to be filed and docketed, and moved the court to dismiss the appeal; the motion was resisted by the appellant’s counsel, who announced himself ready for trial; but the court sustained the motion, and dismissed the appeal.

The counsel for appellant moved to set aside the order dismising the appeal, upon the ground that he had done all that was required of him; and that he had a meritorious cause of action. The court overruled the motion, and defendant appealed. *

The defendant had entered into a recognizance to prosecute his appeal with due diligence to a decision.

It is true that it did not in the first instance devolve upon him to return the transcript; that was a duty required of the justice, and it appears that he did deposit the transcript with the clerk in due time; there his duty ended, and that of filing and docketing by the clerk commenced.

If it was the duty of the clerk to file the transcript and docket the case without compensation, and he failed to do so, in the' exercise of due diligence, the appellant should, by mandamus or other appropriate means, have compelled him to do so; or, if the payment of fees or other • duty devolved upon appellant he should have performed it; the duty to have the papers filed and the case docketed, or to render an excuse for having failed to do so, devolved upon the appellant. It was no answer to say that he had done all that he was required to do, or that he was not in fault; he should have stated the facts — have informed the court what he had done, so that the court might have had the facts, upon consideration of which to determine whether he had prosecuted his appeal with “due diligence.”

It was a matter of sound discretion with the court to determine whether the appeal had been prosecuted with due diligence, and, under tne state of case presented, we will not reverse the decision of the court overruling the motion of defendant to set aside the order dismissing the appeal.

Let the judgment be affirmed.


author: Harrison, J.:

text:
    Goyne vs. Ashley County.
    County Court: Allowance by.

    The County Court is expressly prohibited from allowing any greater sum against the county than is actually due, dollar for dollar.
    APPEAL from Ashley Circuit Court.
    Hon. T. F. Sorrells, Circuit Judge.

      McCain, for appellant.
   Harrison, J.:

The County Court of Ashley County, at its January term, 1875, made an allowance in favor of W. J. Goyne for $917, for keeping the poor of the county.

W. D. Moore, a citizen and tax payer of the county, appealed in behalf of the county, from the order making the allowance to the Circuit Court.

It was admitted and agreed, on the trial in the Circuit Court, that Goyne was, on the 17th of February, 1874, appointed by the board' of supervisors keeper of the poor house for the year ending January 1st, 1875, and that they agreed to pay him $15 per month in currency, or its equivalent, for each inmate or pauper; that the real amount due was $319, but that the county taxes were paid in county and State scrips, and the county had no money in the hands of its treasurer to pay demands against it, and its warrants were only worth about 334 cents in the dollar, and that the County Court allowed the sum of $917 to make the warrant equivalent to $319 in money.

The court, which tried the case without a jury, found the claimant only entitled to an allowance for $319.

He moved for a new trial, on the ground that the finding of the court was contrary to the agreed facts and the law of the case, which was refused, and he appealed.

The County Court is expressly prohibited from allowing any greater sum against the county than is actually due.

Sec. 601 Gantt’s Digest, is as follows: It shall be unlawful for any board of supervisors (now County Court) to allow any greater sum for any account, claim, demand or fee bill against the county than the amount actually due thereon, dollar for dollar, according to the legal or ordinary compensation for services rendered, materials furnished, salaries, or fees of officers, or to direct the issuance of county warrants upon such accounts, claims, demands or fee bills, for more than the actual amount so allowed, dollar for dollar.”

The judgment is affirmed.


text:
    Erb vs. Cole & Dow.
    1. Fraudulent Conveyance:
    The fact that a person selling his goods is at the time indebted, and does not intend to apply the money he receives for them to his debts, is not of itself sufficient to establish a fraudulent or dishonest purpose. A sale, to be void as to creditors, must be made with the intent to hinder, delay or defraud them, in which the purchaser must participate by purchasing with a view to abet the fraudulent design.
    2. --.
    Fraud must be proven; circumstances of mere suspicion, leading to no certain result, are not sufficient ground to establish it.
    3.--.
    It is incumben^ on a party who attacks a conveyance on the ground that it was made to defraud creditors, to show that if it had not been . made the goods would have been subject to seizure and sale upon execution.
    APPEAL from Pulaski Circuit Court.
    Hon. Sam. W. Williams, Special Judge.

      Ford, for appellant.

      Dooley, contra.

   Harrison, J.:

On the 11th of May, 1875, Cole & Dow brought suit against William Wolfson, and attached for their debt a small stock of goods in the possession of Mrs. H. Erb, who interpleaded— claiming the same under a purchase from the defendant. The jury, in the trial of the interplea, found the goods subject to the attachment, and Mrs. Erb filed a motion for a new trial, which was overruled, and, after judgment against her, appealed.

Mrs. Erb, in support of her interplea, testified that Woflson, who was her brother, had kept a small grocery store in Little Rock; that he was declared a lunatic and her husband, Seigfred Erb, appointed his guardian by the Probate Court; and he by its order took charge of the business, to which she, as clerk for her husband, attended free of charge, her husband being employed elsewhere; that previous to such appointment of her husband she was engaged in stamping, dress-making and teaching needle work, but after it they moved into the building where her brother’s business was carried on. Wolfson was sent to a lunatic asylum, but, having returned, he was, on the 15th of April, 187.5, declared by the Probate Court of sound mind; and that on the 17th of the same month, she, in good faith, purchased the goods from him, paying him $174.70 — their full value, therefor, with money she had earned by her own labor; and she had since conducted the business in her own name, but without any other ostensible change in it, and had given no notice of the purchase. She knew at and before the time of the purchase, she said, that Wolfson was indebted to the plaintiffs, and that it was his intention to go to Europe, having been so advised by his physician, and to use the money for which he sold the goods to defray his expenses, and that none of it would be paid to the plaintiffs. Wolfson left in a day or two after the sale, and had not returned. Other evidence to the same purport was adduced by her.

The only evidence offered by the plaintiffs, was: that Mrs. Erb, after Wolfson became insane, came to plaintiffs, and pleading poverty, with tears in her eyes, besought them to allow her husband to be appointed his guardian and carry on the business for him, promising that the proceeds of the business, after supporting him, should be applied to the payment of their debt.

The appellant objected to the following instruction to the jury:

“If the defendant sold the goods attached, to Mrs. Erb, the interpleader, he being at the time indebted to the plaintiffs, with intent to hinder, delay or defraud his creditors, and the inter-pleader, with full knowledge of such fraudulent intent, and with purpose of mind to aid and forward such fraudulent intent, to enable Wolfson to defraud plaintiffs or other creditors, bought the goods of defendant, then the transaction on her part is tainted with fraud, and she cannot hold the goods against the plaintiffs, or prior creditors of Wolfson, even though she paid Wolfson for them.”

' This instruction, as an abstract proposition of law, is unquestionably correct, but we are unable to see the slightest evidence in the case that Wolfson sold the goods with the object or purpose of avoiding the payment of his debt to the plaintiffs, or delaying or hindering them in the collection of it. The fact that a person selling his goods, is at the time indebted, and does not intend, to pay the money he receives for them to his creditor, is not a circumstance, sufficient of itself, from which fraud or a dishonest purpose may be inferred. A sale to be fraudulent as to creditors must be made with the intent to hinder, delay or defraud them, in which purpose the purchaser must participate by purchasing with the view and aim to aid and forward it. Dardenne v. Hardwick, 9 Ark., 482; Christian v. Greenwood, 23 Ark., 258; Galbreath & Co. v. Stewart and wife, 30 Ark., 417.

Fraud must be proven; circumstances of mere suspicion, leading to no certain results, says Judge Story, are not a sufficient ground to establish fraud. 1 Sto. Eq., sec. 190.

So far from any design appearing on the part of Mrs. Erb to aid the defendant to defraud, hinder, or delay his creditors, no such design on his part appears, but his sole object in the sale seems to have been to obtain the means of going to Europe in search of health.

A fraudulent intent will never be imputed to an act that may have as well occurred from a good as a bad motive. Dardenne & Hardwick, supra.

As the plaintiffs attacked the sale, as made to hinder, delay or defraud the creditors of the defendant, it was incumbent on them to show that if it had not been made, the goods would have been subject to seizure and sale upon execution, for if not they could not have been defrauded or injured. Hempstead v. Johnson, 18 Ark., 123; Clinton v. Estes, 20 Ark., 216.

He was entitled, when the debt sued on was contracted, to hold personal property to the value of $2,000 exempt from execution, and if he had no other property, and there was no evidence that he had, the goods were exempt from execution.

The judgment of the court below is reversed, and the cause remanded that a new trial may be had.


text:
    Tomlinson vs. Greenfield.
    1. Judicial Cognizance:
    The courts will take judicial notice of the seasons, and of .the course of agriculture.
    2. ' Mortgage on unplanted crop.

    A mortgage on an unplanted crop, executed prior to the act of February 11th, 1875, was void at law.
    3. Landlobd’s Lien: Is prior to mortgage on the crop.

    The lien of the landlord is paramount to a mortgage executed by the tenant ■ on the crop.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Carroll & Jones, for appellant.

      Bell, contra.

   Harrison, J.:

This was a suit commenced before a justice of the peace, by Tomlinson against Robinson, to enforce a landlord’s lien for rent of land in 1875.

The attachment was levied on three bales of cotton grown on the demised premises that year.

Greenfield interpleaded, and upon a trial of the right of property, obtained a verdict. Tomlinson appealed to the Circuit Court, where the verdict was again, upon the trial between them, in favor of Greenfield. Tomlinson, having moved for a new trial and failed to get it, then appealed to this court.

Greenfield was permitted, against the objection of the plaintiff, to read to the jury a mortgage, from Robinson to him, upon the crop to be raised on the land the same year, executed on the 12th and recorded on the 29th of January, 1875, under' which he claimed the cotton.

Admitting the mortgage to be read to the jury as evidence of Greenfield’s title to the cotton, was an error of the court, for which its judgment must be reversed.

It was said by this court, in Floyd v. Rides, 14 Ark., 286, that it will take judicial notice of the seasons, and of the general course of agriculture; and, in that case, the court took notice of the fact that a crop of corn could not have been matured on the 10th of August so as to be severed from the soil; and we will take like notice, that at neither the date of the execution, nor the recording of the mortgage, was the crop upon which it was intended to operate planted or in being. 1 Green Ev., sec. 5.

It is well settled, we think, that as the law was, previous to the act of February 11th, 1875, making valid mortgages on crops to be planted, and when the mortgage in this case was executed, there could be no legal transfer, present or prospective, of property not in existence; and that a mortgage . of such was without effect at law. In Apperson & Co. v. W. E. & C. L. Moore, 30 Ark., 66, which was a suit in equity on the mortgage of a future crop, Chief Justice English said : <e Had this been an action at law by Apperson & Co., or by the trustee in the deed, for four bales of cotton, or their value, the decision of the court below would have been correct; the action could not have been main-, tained ; because that which has no actual or potential existence, is not the subject of a grant, nor can a man sell or mortgage a thing which he does not own.” Comstock v. Scales, 7 Wis., 159 ; Lingles v. Phelps, 20 ib., 398; Mowry v. White, 21 ib., 521; Cudworth v. Scott, 41 N. H., 456; Otis v. Sill, 8 Barb., 102; Seymour v. Canandaigua and Niagara Falls R. R. Co., 25 ib., 286; Maulden, Montague & Co. v. Armistead, ex’r, et al., 18 Ala., 500; Hob., 132.

But though, the crop had been planted at the time the mortgage was executed, and the legal title had passed to Greenfield, Tomlinson’s lien as landlord was paramount to it, and he could not hold the cotton aginst it. Gantt’s Digest, sec. 4098; Sevier, adm’r, v. Shaw, Barbour & Co., 15 Ark., 417.

The judgment of the court below is reversed, and the cause remanded to it, with instructions to grant the appellant a new trial.


author: English, Ch. J. :

text:
    McDearman vs. McClure.
    1. Chancery Jurisdiction: In action for contribution between tenants in common.

    Where one tenant in common, on the refusal of the other to join him, makes necessary repairs for the benefit and preservation of the joint property, he may maintain a bill in equity against his co-tenant for eontribut'on.
    2. Practice : Verification of pleading.

    The reply to a counter claim must be verified.

      APPEAL from Independence Circuit Court in Chancery.
    Hon. Charles Minor, Special Judge.

      Gallagher & Newton, for appellant.
   English, Ch. J. :

This suit was commenced on the law side of the Independence •Circuit Court, by Moses McClure against ¥m. W. McDearman, in April, 1869, and, after demurrer interposed to the complaint, was, upon the application of the plaintiff, transferred to the equity docket, and the complaint amended so as to make it a bill by one tenant in common against his co-tenant for partition of a sawmill and lot of leased ground on which it stood,' and for contribution for repairs, etc.

During the progress of the cause, McDearman sold his undivided third of -the property in dispute to McClure, and, by agreement of parties, the litigation was continued as to the claim of McClure for repairs. McClure claimed that he had made repairs upon the mill of the value of $634.75, and sought to charge McDearman with one-third of that sum.

Upon the pleadings and voluminous depositions the court, upon the final hearing, found that McClure, who owned two-thirds of the mill and ground lease, had done repairs upon the mill, etc., necessary to preserve it from waste and destruction, of the value of $336.50, and rendered a decree against McDearman for $112.16, being one-third of that amount.

During the progress of the suit, McDearman, by an amendment to his answer, set up a cross claim for the rent of the mill, which the court did not allow upon the hearing.

He appealed from the final decree to this court.

First — As to the claim for repairs:

The mill was at Ramsey’s Ferry, on White River, near Bates-ville.

On, and for some time before the 3d of August, 3867, appellant owned an undivided third of-the mill and ground lease, and ¥m. "W. Ingrum owned the other two-thirds. On that day, by written contract, appellant leased to Ingrum, for twelve months from the 1st of August, 1867, his undivided third of the saw-mill, fixtures, privileges and ground lease, to be returned to him at the end of the year, with the entire property in all respects in. as good condition as at the date of the lease, the ordinary wear and tear from use of machinery, the acts of God, or unavoidable accidents only, excepted; and that Ingrum should, during the twelve months aforesaid, make all minor repairs required on the said mill, or any of the fixtures thereunto belonging, without charge or expense to said McDearman.”

On the 16th of January, 1868, Ingrum sold and conveyed his undivided two-thirds of the property to appellee, McClure.

In the pleadings, appellant affirmed and appellee denied that this sale included the lease of appellant to Ingrum. On this point the depositions are silent.'

After appellee purchased out Ingrum, he applied to appellant to join him in making repairs, which he declined to do, insisting that he was bound to make no repairs during Ingrum’s lease. Upon reflection, however, he concluded he would join appellee in making such repairs as they might agree upon. They were personally unfriendly, but willing to. converse on business. They met at the mill, examined its condition, but failed to agree upon the repairs necessary and proper to be made upon joint account. Appellee proceeded, after their failure to agree, to make all the repairs which he deemed necessary, and the evidence conduces to prove that they were of the value charged in his bill.

Erom the mass of conflicting testimony read upon the hearing, the court below seems to have allowed such portions of appellee’s account for repairs as were deemed necessary to preserve the common property from waste and destruction, and to have disallowed charges for such repairs as should have been made by Ingrum under his lease.

At the common law, if there are two tenants in common, or joint tenants of a house or mill, and it should fall into decay, and the one is willing to repair and the other is not, he that is willing to repair shall have a writ de reparatione faciendo, for owners are bound, pro bono publico to maintain houses and mills, which are for the habitation and use of man. Coke.

This writ was not employed to obtain contribution for repairs previously made, but to compel a co-tenant to make, under the order and direction of the court, such repairs as are adjudged to be proper.

This old writ is not in use in America.

Whether, when one-tenant in common makes necessary repairs for the benefit or preservation of the joint property, on the refusal of the co-tenant to join him .and share in the expense, he may maintain an action at law for contribution, it is not necessary to decide in this case.

But that the party making the repairs has a remedy for contribution by bill in equity for partition, there is no doubt. Freeman on Co-tenancy and Partition, sec. 261; Story Equity Jurisprudence (12 ed.), secs. 1234-1236; 4 Kent. Com., 369-70; Calvert v. Aldrich, 90 Mass., 74; Converse v. Ferre et al., 12 Mass., 325; Denman v. Prince, 40 Barb., 215; Haven et al. v. Mehlgarton, 19 Ill., 92; Mumford v. Brown, 6 Cowan, 475; Kidder v. Bixford, 16 Vermont, 169; Drennan, adm’r, et al. v. Walker et al., 21 Ark., 557; Jones v. Jones, 23 Ark., 212.

On this branch of the case, we are not disposed to disturb the finding of the chancellor upon the mass of conflicting evidence before him.

Second— A.s to the counter claim:

Appellant’s counter claim was, that appellee kept and used the whole mill for thirty days after the 1st of August, 1868, when Ingrum’s lease expired, and that appellant’s interest during that time was worth $70, or some other sum. That he sued appellee on his claim before a justice of the peace, and obtained judgment for $45, and that, on appeal to the Circuit Court by appellee, the court held that the subject of the action was not cognizable at law, but in equity, and dismissed the cause.

At the hearing of this suit, appellee was permitted to lile a reply to the counter claim without verification, against the objection of appellant.

The reply may be filed on or before the calling of the cause for trial. Gantt’s Digest, sec. 4583. And must be verified by-affidavit. Id. 4591.

The court should have required the appellee to verify his reply.

But passing over this error, and treating the counter elaim as at issue, we think it was as well proven for a sum to be stated presently, as was the sum allowed appellee for repairs.

One witness deposed that appellee continued to run the mil'1 until the last days of August, 1868 ; that he ran the mill about eighteen days after Ingrum’s lease expired.

Another witness swore that a saw-mill ought to be run about twenty days in a month, and ought to be worth $7.50 per day. That appellee ran the mill, after Ingrum’s lease expired, a short time, perhaps not a month, and may be more.

Taking eighteen days as the probable time that appellee appropriated the whole mill to his own use, after the 1st ©f August, 1868, and $7.50 per day to be its value, the product is $135, one-third of which is $45, and this sum, we think., should have been allowed by the chancellor as a credit upon the amount found to be due from appellant to appellee for repairs.

The decree must be so modified here as to allow appellee $67.16, instead off$112.16, the amount allowed by the chancellor, and the costs of this court must be equally divided between the parties, and the litigation closed.