source: Caselaw Access Project

author: WlLSHIRE, 0. J.

license: Public Domain

text:
    Scott v. Cantrell.

      Vendors — Wtien Haile for taxes. — A. plea or answer by the maker of a note; giren in part consideration for the purchase of lands, that indorsee of the note, knew at the time of the indorsement that there was a controversy between the vendor and vendee (the maker and indorser), concerning who should pay the taxes on the lands so sold — should aver such a character of contract between the vendor and vendee, as would entitle the vendee to a deed with covenants of general warranty or a bond to that effect.

      Appeal from Pulaski Circuit Court.

    Hon. John "Whytock, Circuit Judge.

      Watkins $ Rose, for appellant.

      Clark Sf Williams, for appellee.
   WlLSHIRE, 0. J.

The appellee, William A. Cantrell, brought suit against Charles G-. Scott and Noah H. Badgett, on a note, bearing date May 30, 1868, payable on the first day of September, 1869, for the sum of $2,280, with interest at ten per cent, per annum until paid. The appellant was sued as maker, and Badgett as the indorser of the note to Cantrell.

The appellant answered separately, and averred substantially as follows : That the note in suit was executed by him to his co-defendant, Badgett, in part consideration for the purchase, by him of Badgett, of certain real estate in the city of Little Rock, known as the “Eowler property;” that said Badgett was» at the date of the purchase, and for more than six months theretofore, the owner of said property; that when he purchased said property from Badgett, there was, by law, chargeable thereon, the State, county and city taxes, in and for the year 1868; that he applied to said Badgett and requested him to pay the same, which Badgett refused, and that the appellant, in order to prevent the advertisement and sale of said property, paid said taxes, amounting to the sum of $887 40; and that the appellee, when he became the owner or holder of the note, did so with notice of the dispute or controversy their and previously thereto pending between the appellant and Badgett, as to whose duty or obligation it was to pay said taxes.

A demurrer t.o the answer being sustained, Scott appealed.

We are of opinion that the demurrer was properly sustained.. The answer of Scott states generally that he purchased the-property, for the payment of which, in part, the note in suit was given. There is no averment in the answer that Badgett made Scott a deed of any kind, and for aught that appears in the transcript of the record before us, Badgett may have made to Scott a quit claim deed, and that the note was made by Scott, in consideration of such a deed. If the contract of purchase between Scott and Badgett was of such a character as to entitle Scott to a deed with covenants of general warranty, or if Badgett had executed such a bond to him, so as to embrace, covenants that follow the land, the answer should show it,

Holding, as we do, it is unnecessary to discuss the question raised by the passage of the act approved July 23,1868, relating to the assessment and collection of taxes for that year.

Judgment affirmed.


author: G-regg, J.

text:
    Hughes v. Watt.
    Sheriee’s Deed. — To constitute a good and valid deed under an execution sale, there must be a valid judgment, a sufficient execution and levy, advertisement and sale.
    A sheriff’s deed, though prima faeie evidence of the facts recited, yet a party may put the recitals in issue and go behind the deed to show their falsity, and where their falsity is shown, being public records, it effects the sufficiency of the deed and all concerned with notice.
    Homestead. — Plea of homestead is a good defense to a possessory action, as against title acquired under execution.

      Appeal from Ashley Circuit Court.

    Hon. Henry B. Morse, Circuit-Judge.

      Gallagher, Newton and JHempstéetd, for appellant.
    ¥e submit that where a ft. fa. has been levied on particular lands and afterwards a ven. ex. is issued, the sheriff can neither levy on or sell any other property than that on which they?. fa. is levied. Whiting $ Clark v. Beebe, 18 Ark. f88; Keith v. Wilson, 3 Mete. (.Ky.) 801; Kenno v. Coulter, U¡, Ark. 38; Smith v. Hughes, 8^ III. 870; Holmes v. Melndoe, 80 Wis. 657. A homestead is not subject to sale under execution. Gould’s Dig. ■chap. 68, see. 89. In ejectment, a party must establish his title from its own strength and not by the weakness of his adversary’s. Oavert v. Irwin, 3 Serg. f B. 883; 10 Johns. 339; 11 lb.

      504; 10 Barb. 454; 3 N. H. 35; 34- lb. 148; 4 Greene (Iowa) 45; Tyler on Ejectment, 72.

      J. W. Van Gilder, for appellee.
    The answer is intended for an answer at law, and attempts to set np several grounds of defense, none of which are so pleaded as to amount to a defense.
    It attempts, - first, to contradict the recitals in the sheriff’s deed. This cannot be done at law. State Bank v. Noland, 13 Ark. 299. Newton v. State Bank, 14 Ark. 13.

   G-regg, J.

The appellee brought his complaint at law in the Ashley circuit court, against the appellant, for the south-east quarter of section 19, township 16 south, range 4 west.

The complaint was in the usual form under the Code.

The appellant appeared and filed an answer containing three paragraphs, setting up, in substance:

First. That he has possession, and a right of possession, and denies appellee’s title.

Second. He avers that a judgment, on a delivery bond, was had against himself and others; that an execution sued out thereon and levied upon the east half of the northeast quarter, and the north-east quarter of the north-west quarter of section 7, township 19, range 6, and returned without sale; that a ven. ex. was issued for the sale of said lands; and that upon such ven. ex. and without any levy, the sheriff proceeded to sell the said south-east quarter of section 19, township 16, south range 4 west; that the same was bid off by John X>. Haynes, the plaintiff in the execution, and afterward by collusion between the sheriff, Haynes and the appellee, the lands were deeded by the sheriff to the appellee, without payment of any consideration,* and that the said deed fraudulently recited that the original execution had been levied upon the lands sold, etc.

Third. That he is residing upon the land and that it is his liomestead.

The appellee demurred to the answer, and the court sustained the demurrer to the second and third paragraphs.

The appellant then answered by, in the language of the record, consolidating the first and second paragraphs. Whereupon the court sustained the demurrer to the' entire answer. The appellant rested; final judgment was rendered in favor of the appellee, on his complaint, from which this appeal is prosecuted.

The only question is the sufficiency of the answer.

The whole proceeding is under the Code; no specific form need be followed, nor technical words used, and the language, taken in its common acceptation, it appears to us, the first paragraph showed the right of possession to be in the appellant, and that the appellee did not have title. If so, it certainly was a defense to the action.

The second paragraph sets up that the appellee was attempting to recover upon a sheriff’s deed, which was regular upon its face, but which had been executed by collusion, and without consideration; that it recited that the lands in controversy had been duly levied upon, when, in point of'fact, other and different lands had been levied upon; and that no levy whatever had been made upon the lands in controversy.

To constitute a good and valid deed, under an execution sale, there must be a valid judgment, a sufficient execution and levy, advertisement and sale; and although our statute, section 65, chapter 68, Gould’s Digest, provides that a sheriff’s' deed shall be prima facie evidence of the facts recited in it, it by no means follows that a party litigant may not put those facts in issue, and go behind the deed to show their falsity; and if the court show such recitals to be false, it certainly affects the sufficiency of the deed, and such being public records, affect all concerned with notice; hence it becomes the duty of those purchasing to see that the records give authority for making •the sale, and upon these grounds, it appears to us the second plea was good.

The third paragraph or plea avers that the applicant was in the possession of the land, and that it is his homestead. We are -of opinion that this plea, in general terms, sufficiently shows that, if true, the land cannot be taken in execution, and is a good defense to a possessory action.

It follows that the judgment of the circuit court was erroneous, and it is reversed, and the cause remanded with instructions to overrule the demurrer and proceed according to law.


author: Gregg, J.

text:
    Lipscomb v. Grace.
    Deliveey Bond — Judgment.—When an execution is sued out upon a judgment, duly levied upon property, a formal bond taken for its delivery and duly returned forfeited, the former judgment is merged and extinguished , and a statutory judgment springs into existence upon the forfeiture of the forthcoming bond.
    Bankbttpt. — It is competent for a surety, before he has made payment, to prove up his contingent liability, on an application for a discharge in bankruptcy, and if he does not so prove up he is barred, by the certificate of discharge, from further action against the bankrupt.

      Appeal from Jefferson Circuit Court.

    HoN. H. B. Moese, Circuit Judge.
    English, Gantt English, and Snyder §• Mallory, for appellant.
    It is well settled, by a series of decisions of this court, that where an execution is issued upon a judgment, levied on personal property, a delivery bond taken, and returned forfeited, a new statutory judgment thereupon springs into existence, which merges and extinguishes the original judgment. Frazier v. McQueen et al.; 20 Ark. 68, and cases cited; Douglas etal. v. Twombly, 25 Ark,., 124-, and cases cited.
    The fact that Grace did not sign the delivery bond, did not prevent the delivery bond judgment from extinguishing the original judgment. By failing to move to quash the delivery bond, at the return term, for want of the signature of Grace, the plaintiff, in the execution, impliedly accepted the bond, and the statutory judgment thereon as completely extinguished the original judgment as if Grace had signed the bond. Field v. Morse Hand, 1 Smedes Mar., 84-6; Coffee v. Planters’ Bank, 11 ib., 458; King v. Terry, 6 How, Miss. JR., 518; Head et al., Beaty 5, ib. 480, and cases cited.
    The original judgment of Busby, the delivery bond judg- ■ ment, and the judgment of Pricker, were all obtained before the date of Lipscomb’s petition for discharge in bankruptcy, the debts were provable under the bankrupt act, and he was absolutely and forever discharged from all liabilities upon the debts by his final discharge, which related back to the date of the petition. Bankrupt act, March 2, 1867, secs. 84, 85, 67, 78; Brightly, Annotated Bankrupt Law, pp. 4h ¥>■> 69.

    Not only the judgment creditors had the right to probate the debts against Lipscomb’s estate in bankraptcy, but Grace, as surety, had the right to probate any one of them that he was legally bound as surety for. Bk. act, secs. 88, 68: Bright. An. Bk., pp. Iff, 59-

    That the act does not fall short of effectually and forever discharging the principal debtor because the surety remains bound, is manifest, not only from the sections above cited, but is put beyond controversy by the language of see. 78, Bright. n. Bk. L.,pp. 69, 70, thus: “No discharge granted under this act shall release, discharge or effect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, endorser, surety, or otherwise.”

      Garland Nash, for appellee.
    These were valid and existing judgments against Grace, as surety for Lipscomb, and when he paid them, an implied contract was at once formed, that Lipscomb would pay him, and Grace had his remedy, under our Code, by motion.
    When Grace paid the debt, his right against Lipscomb was established. 0 Bouv. Institutes, 75-6-7.

    And, as furnishing a full answer to the defense of bankruptcy, we need cite only Bayne v. Joyner, 6 Ark., 84-1.

   Gregg, J.

At the May term, 1870, of the Jefferson circuit court, the appellee filed a motion for a summary judgment against the appellant, alleging that, on the 15th day of December, 1859, he, as security, had paid off two several judgments rendered in said court, respectively, on the 2d of December, 1865, and the 30th of May, 1867, against the appellant and himself.

After service and return of the notice, the appellee moved the court for judgment for one .thousand and thirty-nine dollars and ten cents, the amount of the two judgments and interest thereon up to date.

The appellant appeared and resisted the motion. He filed his answer, containing four paragraphs. The first avers that the judgment of the 30th of May, 1867, fot two hundred dollars, interest, etc., was not the individual debt of appellant, but was on a joint bond of himself and appellee.

In the second paragraph he avers the other note, upon which judgment was had, was not an individual debt, but joint, and that, after judgment, execution issued thereon and was levied upon appellant’s property; a delivery bond, with E. Willis and Vital Aehard as his securities, was given and forfeited, and afterwards an execution issued, on the forfeited forthcoming bond, against him and his securities and the appellee, which, on motion of the appellee, was quashed, because the former judgment was merged, and appellant was. no party to the judgment on the forthcoming bond, and that appellee was under no obligations to pay off said judgment.

The third denies the payment of the judgments.

The fourth avers appellants discharge in bankruptcy, and, as a part thereof, files his certificate of discharge, by which, in the usual form, a discharge was granted him from all debts and claims which,under the bankrupt act, were provable against his estate, and which existed on the 21st of May, 1868.

A demurrer was interposed and overruled as to the first paragraph, and the parties then went to trial before the court, sitting as a jury.

The court found in favor of the motion, and rendered judgment against the appellant for $1,039 j1^, from which he appealed.

The various obligations, writs and bonds referred to in the pleadings, are set out in the record, but there is no bill of exceptions or agreement showing what the evidence was before the court.

The court declared three propositions of law. The first is unobj ectionable.

Secondly, the court declared the law to be “that as Grace, the appellee, did not sign the delivery bond, the giving of such bond and its forfeiture, which created a new judgment, did not release the appellee from the prior judgment, and as he was bound by it, he could satisfy it at time.”

Thirdly, that “the final discharge of a bankrupt dates back to the time of filing the petition in bankruptcy, and only releases the bankrupt from debts due at the time of filing the petition, and any security debt paid, after filing the petition or discharge, is a valid claim against the bankrupt.”

The court below seems to have misapprehended the law on both these propositions. It has been repeatedly held by this court that when an execution is sued out upon a.judgment, duly levied upon property, a formal bond taken for its delivery and duly returned forfeited, that it is a merger of the former judgment, that the former judgment is extinguished, and-a statutory judgment springs into existence upon the forfeiture of the forthcoming bond. Black v. Nettles, 25 Ark., 606; Douglas et al. v. Twombly, ib., 124; Frazier v. McQueen, 20 Ark., 68; Smiser v. Robinson, 16 Ark., 599; Cochran v. Jordan, ib.. 625; Phillips v. Wills, 14 Ark., 595; Biscoe v. Sandefur, 569; Ruddell v. McGruder, 11 Ark., 578; Reardon, ex parte, 9 Ark., 450.

Upon the third proposition of law, we aré aware that this court, in the case of Payne v. Joyner, 6, Ark., 241, held, under the bankrupt act of 1841, that a party discharged in bank" ruptcy was liable to a surety on a pre-existing debt, who paid it after the discharge in bankruptcy, but such has not been the uniform ruling, and, in fact, but few courts have so held.

The Supreme Court of Alabama held that a certified bank'rupt is discharged from all surety debts, though paid by the surety after the bankrupt obtains his discharge. Kyle & Gunter v. Bostick and Sherrod, 10 Ala. (N. S.), 589.

In the case of Crafts v. Mott, 5 Barb. (N. Y.), 311, the Supreme Court of New York, after announcing that many of the English decisions are not applicable in the United States, because their bankrupt acts are more restricted as to provable claims, say that the claim of a surety, before he has made payment, is a contingent liability, and may be proved up, upon an application for discharge in bankruptcy, and if a surety does not so prove his claim, he is barred by the certificate of discharge.

The rulings in Pennsylvania are direct, that a surety cannot recover against a principal, who has been discharged in bankruptcy, upon payment of an obligation for which the bankrupt was liable before his discharge. Fulwood v. Bushfield, 14 Pa., 390; Coke v. Lewis, 8 Barr., 493, and 2 Barr., 343.

Substantially the same ruling has been held in Tennessee. See Hardy v. Carter, 8 Hump., 153.

"We would add that we have seen no bankrupt act more comprehensive in its terms, requiring prospective, doubtful and contingent claims to be proved against the estate of a bankrupt, than is the act of 1867. And the Supreme Court of the United States, which is but the court of last resort in this class of cases, and which is the authoritative expjounder of the acts of Congress, in the case of Mace v. Wells, 7 How., 117, say: “Wells, as the security of Mace, became bound in two joint and several notes, both of which were due before the passage of the bankrupt law in August, 1841. In July, 1841, Wells paid one of these notes. Mace was discharged under the bankrupt law, on the 22d of March, 1843. In March, 1844, Wells paid the oth¿r note, and then sued Moore for the recovery of the money on both notes. The facts being submitted to the county court, judgment was entered for the pjlaintiff for the amount of the note last paid, which judgment was affirmed by the Supreme Court of the State. * * * By the fifth section of the bankrupt act, it is provided that ‘ all creditors, whose debts are not due and payable until a future day, all annuitants, holders of bottomry and respondentia bonds, holders of policies of insurance, sureties, indorsers, bail, or other persons having uncertain or contingent demands against such bankrupt, shall be permitted to come in and prove such debts or claims, under this act, and shall have a right, when their debts and claims become absolute, to have the same allowed them,’ etc. Wells, .as surety, was within this section, and might have proved his demand against the bankrupt. He had not p>aid the last note, but he was liable to pay it as surety, and that gave him a right to porove the claim, under the fifth section. And the fourth section declares ‘ that from all such demands the bankrupt shall be discharged.’”

This case being in point, the decision of the highest court of appeals, in such matters, should govern us, without reference to a former ruling of our own court.

Let the judgment be reversed, and the case remanded with instructions to proceed according to law, and not inconsistent with this opinion.


author: Storey, Special C. J.

text:
    Black, ad., v. Auditor of State.
    Mandamus. — Mandamus will lie to compel tlie heads of departments of State to perform a mere ministerial act imposed upon them by law, though not in those acts requiring the exercise by them of judgment and discretion.
    Petition to be Sworn to. — The practice is well settled, that a jurat is necessary to a petition for mandamus.

      Error to Pulaski Circuit Court.

    HoN. LibeRty Bartlett, Circuit Judge.

      E. H. English, for plaintiff in error.
    Jordan, Attorney General, defendant.
   Storey, Special C. J.

Cain petitioned the Pulaski circuit court for a mandamus against the State auditor, to compel him to pay the sum of $7,018, claimed to be due as his salary as judge of ijbe third judicial circuit, from the first day of July, 1861, to the fourth day of September, 1865. The petition was not verified, nor were any affidavits filed therewith.

The court refused the prayer of the petition, assigning as a reason that the proper remedy was by suit against the State.

Gould’s Digest, chapter 166, section 4, provides: “Hereafter, it shall not be lawful, arid it is hereby expressly forbidden, for any person or corporation to sue, or implead, or move against the State in chancery, or any officer, or person acting for or representing the State; and no suit or action shall be brought against said State, or officer or person acting for or representing the same, except at law.”

Section 5, which was passed two years later, provides that, “All persons having claims or demands against the State, on ^ny account whatever, shall institute suit therefor in the circuit court in and for the county óf Pulaski, and said court-shall proceed to take and hear all the testimony for and against the same, and shall certify the proof so taken, under the seal! of said court, to the next session of the General Assembly of this State after the taking of the same, together with its opinion in regard to the justness thereof; but said court shall not enter a judgment or decree in any case whatever against this State, upon the testimony so taken, or any other testimony whatever; but the testimony so taken, and the opinion of said court so taken and certified by said court, shall be submitted to the General Assembly of this State for such action as may be deemed necessary thereon.”

Conceding for the present that the amount claimed is justly due, is mandamus the proper remedy ?

, It is a well settled principle that mandamus will lie against the heads of department of the Federal and State governments, to compel them to perform a mere ministerial act imposed upon them by law, though not in those acts requiring the exercise by them of judgment and discretion. Ho the sections above quoted in any way affect the jurisdiction of the courts in issuing a mandamus ? We think not.

The salaries of the circuit judges are fixed by law; an appropriation has been made to pay these salaries; the ministerial duty of auditing the accounts and issuing his warrant, for-the amount, is all that remains to be done. If suit were brought against the State, under the sections above quoted, and an appropriation made by the Legislature, the same ministerial duty would remain to be performed. We are satisfied that on both principle and authority, mandamus will lie, and is the proper remedy, if the petitioner is in fact entitled to the amount claimed.

In Wisconsin, where their statute is substantially the same, the Supreme Court, by implication, at least, have held that mandamus would lie to compel the payment of an account, and have made a distinction between the judgment of an officer in a matter left to his discretion and his judgment, as to the extent of his discretion under the law, holding that the decision of an auditing officer is conclusive as to the amount of a claim which the law permits him to allow, but his decision as to whether the claim is, in its nature, within the statute is not so, but is reviewable on mandamus. Divine v. Harris, 8 Mon. (Ky.) 440; Kendall v. United States, 12 Peters, 526; Zowle v. Pierce, 2 Cal. 165; Danley v. Whitley, 14 Ark. 687; Hempstead v. Underhill, 20 Ark. 337; State v. Hastings, 10 Wis. 518; Citizens Bank of Steubenville v. Wright, 6 Ohio St. 318.

The next question that presents itself is the sufficiency of the petition, which, as we have before stated, was not verified, nor in any way sustained by affidavit. The practice appears to be well settled that a jurat is necessary, for otherwise the time of the court might be taken up with frivolous applications, or merely for the purpose of obtaining the opinion of the court on a supposed statement of facts. Tapping’s Mandamus, 285 and 292; Moses on Mandamus, 201-2-3 and 5; 1 Chitty’s General Practice, 706; 2 ib. 354.

The court therefore did not err in refusing the petition,

Judgment affirmed.


author:
Story, Special C. J. McClüRE, J.,
      G-reso, J.,

text:
    Pillow v. Brown & Childress, Ex. etc.

    Slave Contracts — Held: The clause in the State Constitution that “all contracts for the sale or purchase of slaves are null and void and ho court in this State shall take cognizance of any suit founded on such contracts,” etc., is in violation of the Federal Constitution.

      Interest — Suspension of. — When a debtor, without fault on his part, is prevented from paying the debt at and after maturity, through the act of the creditor or the law, interest should he abated during the time he is so prevented — and this, the debtor should show by affirmative proof.
    Contemporaneous Stipulations — Oonstruction of. — Where a transaction is evidenced by two papers, the connection between which is established by their contents, without any necessity of referring to other matter to connect them together, they will be taken as one entire agreement.
    Law op Nations. — During war, all intercouse is prohibited between enemies.
    Penalties Bemitted. — Where a person agrees to do an act, which is neither malum in se nor malum prohibitum, at the time of entering into the agreement, and is prevented from doing the act, by the law, it excuses him from all penalties that would otherwise arise from his omission.

      Trusts — When presumed. — Trusts are never presumed, unless clearly intended by the parties, except in cases, where a failure so to declare, would operate as a fraud upon one of the parties.

      Appeal from Phillips Circuit Court.

    IIon. James M. Hanks, Circuit Judge.

      Filloio, Garland §• Mash, for appellant.
    The main question involved, and raised for the decision of this court is, as to the validity of the notes and the powers of the courts to adjudicate the question — and it is submitted on behalf of the appellant, that slavery, as it is known to have existed in this and other States, was not recognized by the Constitution of the United States, and was not compatible with the spirit and purpose of that instrument. The 6th article of the Eederal Constitution renders all State Constitutions and laws, in conflict with it null and void — and article 5, of the amendments declare: “No person shall be deprived of life, liberty or property, without due process of law.” From this it is evident that the negro was a “person,” and so designated by the Constitution. As to the meaning of the words “without due process of law,” See Bouv. Law. Lee. vol. 1, p 512; Story’s Cons. Law, vol. 3, p. 264, 661; 18 Howard (XI. S.) 272. If legally free, all bonds, notes, etc., given to enslave him were void, under the United States Constitution.
    Pointer’s breach of covenant being occasioned by the law, he was released therefrom, and, in consequence, Pillow was released from his obligations to pay.
    The non-performance of a contract will always be excused where it is occasioned by the act of the law. GMtty on Contracts, pp. 74®, 743, and nóte; Lord Angilcia v. Church Warden of Bugeby, 6 Q. B., pp. 104,107; Chancy v. Overman, 1 Leven f Botts,p. 40%; American Jurist, October, 1833, art. 3, p. 251.

    So, also, if a man contract to do an act, in consideration that another contracted to do certain things on his part, which is then lawful, but afterwards becomes unlawful, or if it should turn out that the latter is unable to do what he engaged, the contract is at an end. Chitty on Contracts, p. (top) 476; Charter v. Lease, Ifth vol., pp. 298 and 231.

    If title to goods sold totally fails, contracts would not be binding and may be rescinded, even though the possession of the vendee be wholly undisturbed. First vol. Story on Conj tracts, page (top) 484J Second vol. Kent’s Com., sec. 39, pp. 472 and 4&9, note and authority; see, also, Wainright v. Bridges, 19 vol. La. B’s. 317.

    A vendor is bound to know that he possesses that which he proposes to sell; and even though the subject of the contract be known to both parties to be subject to a contingency, which may destroy it immediately, yet if the contingency has already happened, the contract will be void. 2d vol. U. S. Ligest, p. 288; Allen ft Hammon, 11 Peters, p. 63.

    Lord Chief Justice Abbot, in his work on Shipping (p. 596), lays down this principle: “ If an agreement be made to do an act, lawful at the time of such agreement, but afterwards, and before the performance of the act, the performance be rendered unlawful by the government of the country, the agreement is absolutely dissolved.” See, also, Abbot on Shipping, p. 597; 1 Jur. N. S.,p. 758; 8 M. $ Lee,p. 867; 3 O. L. B., p. 930; 3 B. $ P., p. 296; Evans v. Hutton, 4 Man. ¿f- Oran. These are all English cases. See 12 Mass., page 370; 15 Johns., p, 14; '16 Johns., p. 348; 2 Wash. G. C.,p. 312 — American cases.
    In regard to powers of the people of a State, assembled in convention, it may be well to see what has been decided by the Supreme Court of the United Statesa
    In the case of Livingston v. Moore, 7 Peters, 546, that court decreed “that the power of sovereignty existing in a republic resides in the people — not as individuals, but in their politic capacity; that the powers existing in every body politic, in forming a government, is distributed according to the will of the sovereignty,.and in the quantity it pleases, and imposes what cheeks it pléases upon the public functionaries.”
    In the case of The Bank of the United States v. Daniel, in 12 Peters, p. 33, and in 13 Peters, 520; Charles v. Virgina, 6 Wheaton, 414-; Craig v. Missouri, 4 Peters, 463; and in Ohio Life Lnsurance Company v. Debotts, 14 Bioward, 4®8, the Supreme Court held that the States of the Union were sovereign within their own limits, in all matters not surrendered in the Constitution to the Federal government.
    In the case of Dodge v. Worseley, 18 Howard, 349, the Supreme Court held “that the constitution is supreme over all departments of the government, and anything done, unauthorized by it, is unlawful.” '

      Pike, Adams Pike, English, Oantt f English, for appellees.
    As to the general right of recovery by the executors of Pointer, we respectfully submit to the consideration of the court the following cases, to wit:
    A partition of an intestate’s estate, consisting of land and slaves,' which was made and confirmed, without objections then taken, by the decree of a court of equity, in 1864, allowed only slaves to complainants, but no land. Held valid. S'laves did not become free, either de jure or de facto, by the emancipation _‘proclamation, in 1862. Pickett v. Wilkins, 13 Richards. S. (X Eq., 366.

    Emancipation is not a breach of covenant of warranty that slaves sold “are slaves for life,” and is not a defense to notes given for the purchase money. The warranty was of the stains of the slaves at the time of sale, not against a future act of government. Sana v. Armstrong, Sj Ga., 332. So of a warranty “to be slaves for life.” Bass v. Ware, ib. 386.

    A warranty on a sale of slaves, that they “are slaves for life,” is not broken by their subsequent emancipation. Neither did the ordinance of emancipation affect such previous sale, but the vendor can recover the whole purchase money. Bradford v. Jenkins, jl Miss., 328; Polk, Adr. v. Pledge, 5 Coldwell, 389; Newman v. Btear, 5 Coldwell, 390.

    Compulsory payment of a debt to a receiver, under requisition acts of the Confederate government, is no defense to a suit brought for the same since the war, nor was the running of interest on such debt suspended during the war. Shortridge v.. Macon, TI. S- circuit court, 1 Phillips N. C., 392. See, also,. Brown’s Executors v. Eawkins’ Executors, 3 Bush. Ky. Reports,. 558; Sughes v. lodd, 2 Duvall, 188.

   Story, Special C. J.

In September, 1865, Pointer filed his bill against Pillow and Coolidge, in which he alleged that, on the 28th day of December, 1860, he sold to Pillow eighty-five negroes, which Pillow took into possession, for the sum of one hundred and nine thousand two hundred and six dollars and twenty-five cents, to secure the payment of which sum Pillow executed his four writings obligatory, payable on the first days of Januay, 1862, 1863-64 and ’65, and on the same day executed, jointly with Mary E. Pillow, his wife, a mortgage in favor of Pointer upon two of his plantations, known as the “Defeat Cane” and “Lake” places, and forty-three of the slaves purchased of Pointer. Pointer further alleged that, on the 16th day of April, 1862, after the recording of the above mentioned mortgage, Pillow made a contract of sale with Henry P. Coolidge, whereby he sold to Coolidge his four plantations, known as ’“Defeat Cane,” “Lake,” “River,” and “Mound” places, together with all of his slaves, cotton and other personal property, for the sum of $575,000, which sum was payable in five equal installments, and for which Coolidge executed his five hills of exchange.

The contract recites that “ there is a mortgage on the Defeat Cane ’ and ‘ Lake ’ places, and about forty-three of the ■negroes, in favor of John Pointer, of Giles county, Tennessee, for the purchase money of eighty-five of the negroes, which is ■on record in Phillips county. This sale is made subject to this mortgage and all of said Pillow’s existing debts, which said Coolidge will pay out of the cotton crop now on hand, and subsequent crops, or out of the purchase money, and when so paid, the same will be credited to the purchase money due from said Coolidge, and allowed accordingly.” Pointer also alleged, that the property covered by the mortgage of Pillow and wife to him, was not sufficient to pay the debt due from Pillow to him, the property having greatly depreciated in value during the war, and prays that Coolidge may he declared to be a trustee charged with the payment of all of Pillow’s debts; that the stipulation of the 16th of April may be declared to be a lien in favor of the complainant, for the payment of the debt upon all of the property mentioned in the contract; that the defendants, or one of them, may be required to pay the debt; that the mortgage may be foreclosed, and the usual prayer for general relief.

Pillow filed his answer, in which he admits the purchase by him of eighty-five negroes from Pointer ; that he gave a mortgage, jointly with his wife, to secure the purchase money; that, a contract of sale of all his slave property, real estate, cotton on hand, etc., was made to Ooolidge, and that it was recorded; but he denied that there was any intent to sell the property, or to make Ooolidge a trustee for the benefit of his creditors, and alleged that it was intended to create in Ooolidge an agency simply for the management of Pillow’s property, and that there was no trust, either in fact or in law, created thereby, and in proof thereof, sets forth a duplicate of the stipulation of April 16, 1862, which contains the following additional provision: “This article of agreement witnesseth, that the said Pillow, or his heirs or legal representatives, may, at any time, purchase all said property so sold as aforesaid, by the re-delivery of said Coolidge’s bills which he has executed for said purchase money; and when the said bills are returned and delivered to said Ooolidge or his representatives, he obligates and binds himself, his heirs and legal representatives, to re-eonvey the same by deed or conveyance, cancelling the contract aforesaid; and Pillow hereby obligates himself, his heirs and legal representatives, neither to collect or demand the amount of said bills, or any part of them, and to return them lor the purpose of cancelling said contract; ” and the stipulation further provided that Ooolidge should not be responsible for the slaves, but that he was to have the general care of all Pillow’s property, and was to receive as “ reasonable compensation as would be proper for an agent.” Pillow further alleged that the duplicate of the contract of April 16, 1862, was made contemporaneous with the original, and supports this allegation by the testimony of a subscribing witness _ Pillow also alleged that Pointer covenanted that the negroes sold by him to Pillow were slaves for life, and that the title was good; that the slaves were all lost by emancipation, and that there was, therefore, a total failure of consideration for the notes; that notes given for slaves were for a consideration which was illegal, and were, therefore, void.

Pillow pleaded, at a later term of the court, that he was a Confederate officer from the beginning to the end of .the war; that Pointer resided in Giles county, Tennessee, before and during the war, and that that part of Tennessee was within the Federal lines from May, 1862, to the end of the war.

Coolidge filed an answer and cross-bill, in which he alleged that the contract of April 16, 1862, was not intended for a sale, but simply to create an agency in him for the management of Pillow’s property; alleged the contemporaneous execution of the- duplicate contract, with the additional provisions, as we have given them above, and prayed that said contract might be annulled, the bills re-delivered, and that if the court should hold that a trust had been created, it should attach to the lands described in said contract, and not upon the supposed debt due to Pillow from him.'

At the fall term, 1865, the death of Pointer was suggested, and suit was revived in the name of Brown & Childress, as •executors of Pointer, deceased. The chancellor decreed a foreclosure of the mortgage, with an abatement of interest during a part of the war, and that the two articles of April 16,1862, and five bills of exchange be- delivered up and cancelled. Both parties appealed. The questions for consideration are:

First. The power of the courts to adj udicate upon this class •of contracts.

Second. Did slavery exist simply by force of the positive laws of the States, having no power outside of the limits of the States, except so far as enforced by the Federal Constitution, being- recognized as purely a right of the State, and not protected by the Constitution of the United States, except on demand of the State, evidenced by existing laws, and therefore not within the provision of the Federal Constitution, prohibiting States from impairing the obligation of contracts ?

Third. Is Pillow entitled to an abatement of interest during the war ?

Fourth. The effect of the two articles of April 16, 1862.

The first and second questions have been passed upon by the court in Jacoway v. Denton, and later cases, and whatever may be the individual opinion of the special judge, it is proper, in the midst of ever recurring conflict of opinion, to a^dopt the rule of Stare cledsis.

A question of some difficulty is presented by the allegation in Pillow’s cross-bill, that Pointer resided, during the entire war, inside of the Federal lines, and that he, Pillow, was a-Confederate officer, residing inside of the Confederate lines,' and prays for abatement of interest for that period of time.

This question first arose in the United States shortly after the war of 1776, and it was held that on contracts made before the war, where the parties belong within the opposing forces, the debt was suspended, and that interest did not run unless the creditor enemy, either in person or by agent, placed it within the lawful power of the debtor to pay the debt.

This position was very ably vindicated by Mr. Jefferson, then secretary of State, in his celebrated reply to Mr. Hammond, the British minister plenipotentiary, and has been repeatedly confirmed by later decisions, made by the United States circuit courts and courts of the different States. In France, early in the seventeenth century, it was held that, during a war prescriptions did not run, and that impossibility of communication, caused by the war, excused a failure to protest a bill of exchange. The Supreme Court of the United States say that the time during which the courts in the lately rebellious States were closed to citizens of loyal States, is, in suits brought by them since the war, to be excluded from the computation of the time fixed by the statute of limitations within which suits may be brought. It is true that the learned judge in that case remarked, that unless the rule be so, then the citizens of a State may pay their debts by entering into an insurrection or rebellion against the government of the Union, if they are able to close the courts, and to successfully resist the laws until the bar of the statute becomes complete; and it is urged upon us here, that to refuse to allow interest, during the time the parties were separated by the opposing forces, is to punish Pointer for his loyalty, and to reward Pillow for having engaged in a rebellion against the Federal government. In reply to this, we must say that we do not consider tbe argument as sound that finds a person liable to the citizens of an opposing power, on account of tbe individual influence be may bave bad in determining tbe policy of his government, for such would be tbe result, if we should bold to tbe rule as "advocated by counsel. In other words, if there is any principle of law whereby debtors, who are separated from their creditors by opposing forces, are remitted from tbe payment of interest during that time, then it surely will not be insisted, that because Pillow was a Confederate officer, be is outside of that principle. Pillow was responsible to tbe Federal government, and not to her citizens, for bis course during tbe late rebellion. The Supreme Court of tbe United States, in a late decision, held that tbe rule that interest is not recoverable on debts between alien enemies, during a war between their respective countries, (if applicable under any circumstances to citizens of tbe States in rebellion and citizens of tbe States adhering to tbe national government,) does not apply where there is a known agent, appointed to receive tbe money, resident within tbe same jurisdiction as tbe debtor. Chief Justice Chase, in Shortlege v. Mason, held that interest should be allowed, but afterwards, in Bigler v. Waller, refused it. Tbe decisions are conflicting, being evidently based upon tbe apparent equities of tbe different cases, and it is difficult to discover any general principle running through all.

During war all intercourse between enemies are prohibited, and wherever tbe law forbids a party from doing an act, not malum, in se, nor, at tbe time of entering into tbe agreement to do tbe act, ?nalum prohibitum, it excuses him from all penalties arising from a failure to perform bis contract. This, we think, furnishes a just reason for tbe abatement of interest, during war, on debts due to tbe subjects of a belligerent power, from tbe time tbe party is entitled to make payment, which would only be at and after maturity, until tbe return of peace. Tbe principle is a general one and may be stated in these words: Whenever tbe debtor, without fault on his part, is prevented from paying the debt, at and after maturity, through the act of the creditor or the law, interest should be abated during the time he is so prevented. It is the duty of the debtor to seek his creditor and to pay his debt. He must show by affirmative proof that it was not through his neglect, accident or misfortune, the debt was not paid at maturity; that he was ready and willing to pay, but that through the act of the creditor or the law, he was prevented. Hoare v. Allen, 2 Dallas, 102; Bouvier Law, Dic. Int.,s. 12 and 18; Yeaton v. Berney, 3 Legal New. 82; Bigler v. Waller, Ib. 26; Conn. v. Penn, 1 Pet. c. c. 496; Ward v. Smith, 7 Wal. 452. Pillow has shown no effort to comply with the terms of this contract, and under the above rule is not entitled to an abatement of interest. Pointer prays that the recorded articles of April 16, 1862, may be held to be a conveyance, in trust, for the benefit of the creditors of Pillow, while both Pillow and Coolidge pray that the two articles may be construed together as one entire agreement— that said contract may be annulled and the bills ré-delivered.

It is well settled that “when a transaction is endorsed by two papers, the connection between which is established by their contents, without any necessity of referring to other matter to connect them together, they will be taken as one entire agreement.” Clearly, both of these articles are, under this rule of law, to be construed together. They both refer to the same subject matter — bear date on the same day — were evidently intended, by the contracting parties, to be construed together, and were undoubtedly made for the purpose alleged in the answer of Pillow and cross bill of Coolidge, viz: to create a secret agency in Coolidge for the management of Pillow’s estate. Trusts are either express or implied. Express trusts are those which are created by the direct and positive acts of the parties, by some writing, or deed, or will. Construing the two articles of April 16, 1862, together, it is evident that an express trust was not created. Implied trusts are those “which are deducible from the nature of the transaction, as a matter of clear intention, although not found in the words of the parties» or which are superinduced upon the transaction by operation of lato, as matter of equity, independent of the particular intention of the parties.” A trust is never presumed or implied, as intended by the parties, unless taking all of the circumstances together, that is the fair and reasonable interpretation of the acts and transactions, except it be forced upon the conscience o’f the party by operation of law, on account of some meditated fraud, imposition, notice of an adverse equity, or other cases of a •similar nature. We think a fair construction of the two articles will show that it was contrary to the intention of •either Pillow or Coolidge to create a trust, and the only serious question for us to pass upon, is, whether Pointer has been so misled and injured by the recording of the first article or stipulation of April 16, 1862, that to refuse to declare it created a trust in Coolidge for the payment of Pillow’s debts, would •operate as a fraud upon the rights of Pointer. We cannot discover, from a careful.examination of the bill, that he has been thus injured, and we know of no reason why the prayer of Coolidge should not be granted. Nick’s heirs et al. v. Rector, 4 Ark. 278; Story’s Eq. Jurisprudence, s. 980 and 1195.

It is therefore considered that the decree of the court below be set aside; that the mortgage be foreclosed and the property •sold — that the plaintiffs recover the amount of said notes and interest, and that the two stipulations of April 16,1862, and the five bills of exchange, given by Coolidge to Pillow, be delivered up and cancelled, and that a decree be entered in this court accordingly.

McClüRE, J.,

dissenting.

In the majority opinion four questions are presented and determined. Of the third and fourth I shall not speak. The first and second propositions, and the manner in which they are disposed of, by the majority, are among the things which have led to this dissent, and in order that they may be the more readily understood, I'shall insert them at length. They are as follows:

First. “The power of the courts to adjudicate upon this class of contracts.”

Second. “Did slavery exist simply by force of the positive law of the States, having no power outside of the limits of the State, except so far as enforced by the Federal Constitution, being recognized as purely a right of the State and not protected by the Constitution of the United States, except on demand of' the State, evidenced by existing laws, and therefore not within the provision of the Federal Constitution prohibiting a State from impairing the obligation of contracts?” ■ In disposing of these important questions, the majority of the court say: “The first and second questions have been passed upon by this court in Jackoway v. Denton, (25 Ark. 625,) and later cases, and whatever may be the individual opinion of the special judge, it is proper in the midst of ever recurring conflict of opinion, to adopt the rule of stare decises.”

It is true that a majority of the court held, in Jackoway v. Denton, (25 Ark. 625,) that section fourteen, of article 15 of the Constitution of this State, was in conflict with that clause of the Constitution of the United States, which declares “no State shall pass any law impairing the obligation of contracts.”

If the facts in this case were similar to those presented to the court in Jackoway v. Denton, (25 Ark. 625,) there might be some excuse for adopting what is called the rule of stare decises; but they are not; they are as different as night is from day; there is no similarity between the two cases, save that the consideration, for which the notes were given, was negro slaves. Jackoway and Denton were both citizens of the State of Arkansas, at the giving of the note and at the commencement of the suit, and while the court might well hold that a denial of the use of the courts of the State to citizens of the State, was an infringement upon the. contract, and an impairing of its obligation; it does not follow that citizens of other States can come into the courts of this State and use them to enforce contracts made in other States, the enforcement of which are forbidden in positive terms by our own Constitution.

The record in this case shows that the sole consideration of the contract, sought to be enforced, was for the purchase of slaves. It also shows that the contract was not made in the State of Arkansas but in the State of Tennessee.

The theory advanced by the majority in relation to contracts, is, that “the laws in existence when it is made are referred to in all contracts, and form a part of them.” Although a strict adherence to this doctrine would render our laws, for the enforcement of debts, somewhat similar to those of the Medes and Persians, unchangeable — we have yet to hear of a jurist, who has asserted that the laws of ArkansaS, and thirty-live other States of the Union, for the collection of debts, enter into every contract made and executed in the State of Tennessee, until the opinion was rendered in this case. In the case now under consideration, the majority have declared that the citizens of other States, at the time of making contracts, have a vested right to a remedy to enforce their contracts in the courts of every State of the Union, and that a denial of such a right, to the citizens of other States, would amount to an impairing of the obligation of the contract. Prom such a conclusion I must respectfully dissent.

I have stated that the record in this case shows that neither Pointer or Pillow were citizens of the State of Arkansas, at the time of the making of the contract; but, on the contrary, that they were both citizens of the State of Tennessee. Our Constitution declares that “no court of this State shall take cognizance of any suit founded on such contracts,” i. e. that no court of this State shall take any cognizance of any suit to enforce a contract, the consideration of which grew out of the purchase of slaves. The record in the case shows that the consideration which moved Pillow to the execution of the notes sued on, was for the purchase of negro slaves. In Jackoway v. Denton, ( 25 Ark. 625,) the majority of the court held (Jackoway and Denton both being citizens of the State of Ar-Kansas,) that a denial oí jurisdiction, in that instance, amounted to a denial of remedy, and therefore impaired the obligation, of what once was a valid contract. If it be admitted that the sovereign people had not the same power, when in convention assembled, to destroy the right of property in a note, the consideration of which was for the purchase of slaves, as to-destroy the right of property in slaves, I am* willing to admit that the closing of the doors of courts against slave contracts, impaired the contract, if it be true that the laws in existence at the time of its creation entered into its possessions and became a part thereof. But does it follow, either as a logical sequence, or a legal deduction, because the laws in Arkansas, at the time a contract is made, become a part thereof for its enforcement, that these same laws entered into and became a part and parcel of the contracts entered into in the State of Tennesse^? The majority of the court seem to be of opinion, and in fact many of the citizens of Tennessee agree with them on this point, that the people of Tennessee can make just such contracts as they choose, and that the people of Arkansas have no right to prohibit the use of her courts to enforce Tennessee contracts.

It may be a fault of my education, but I have ever been taught to believe that every State is perfectly competent, and has the exclusive right to prescribe remedies in its own judicial tribunals ; to. limit the time, as well as the mode of redress, and to deny their jurisdiction over cases which its own policy or judgment might discountenance; and I have also been taught to believe, from repeated adjudications, and the American text writers, as well as those of England, that the right of citizens of' one State or Kingdom, to sue in another, was not in fact, a matter of “right,” but a thing of comity.

Story, on the conflict of laws, (sec. 18,) says: “A State may regulate the manner and circumstances under which property, whether real or personal, or in action, shall be held, transmitted, bequeathed, transferred or enforced; the condition, capacity and state of all persons within it; the validity of contracts and other acts done within it; the resulting rights and duties growing out of these contracts and acts.” The State of Arkansas has undertaken to pass on the validity of slave contracts. Judge Story says that a State may not only do this, but it-may regulate the manner and circumstances under which property , whether real or personal, may be held. The majority of the court take issue with J udge Story, on this point, and deny the doctrine laid down by him; but candor compels me to say that his reasoning has carried stronger convictions to my mind,, in favor of his theory, than' the argument presented by the’ majority.

Continuing, J udge Story says: (sec. 242,) “Generally speaking, the validity of a contract is to be decided by the law of the place where it is made, unless it is to be performed in another country.” This contract (the payment of the money-mentioned in the notes) was to be performed in Tennessee, and I will admit that it was a legal and valid contract at the time-of its execution. The view I take of this matter is, not. whether it was a legal obligation then, or whether it is now. These questions are foreign to what I regard as the real issue. The question which presents itself to my mind is, can the courts of this State enforce contracts for the sale or purchase of slaves, made and to be performed in other States, when the Constitution of this State declares in plain and emphatic-terms that they shall not?

There is a well defined rule of construction, running through alhthe books of the profession, that every word, line and sentence, in a Constitution or law, should receive such construction as would place some meaning upon each word, line and sentence, rather than resort to a construction which would render words and whole lines and sentences nullities, or meaningless phrases. In Jackoway v. Denton, (25 Ark. 625,) the court declared that a recognition of the force and effect of section fourteen, of article fifteen, of the Constitution of this State, in that case, would be in conflict with that provision of' the Constitution of the United States, which declares that “no State shall pass any law impairing tbe obligation of contracts;” bnt is that true of this case? I think not; for the provision of the fourteenth section, of article fifteen, which declares that “no court, of this State, shall take cognizance of any suit founded on such (slave) contracts,” if given its full operation, force and effect, would not deprive Pointer of a remedy to enforce his contract with Pillow. It may well be argued that Jacko-way and Denton, both being citizens of Arkansas, were deprived of a court in which to enforce their contract, when the doors of the State court was closed against them; but this is not true as to Pointer and Pillow, and for this reason, the opinion in Jackoway v. Denton, (25 Ark. 625,) is not applicable to the state of facts existing in this case; nor can it, with any degree of fairness, be claimed that the rule of stare deeises is applicable to this case. My convictions are, that the people of this State not only have the right and power to prohibit the use of their courts to enforce the contracts made by citizens of other States, in other States; and that the language of our Constitution is broad enough in its terms to deny to citizens of other States the use of our courts to enforce slave contracts, I have no doubt. Entertaining these convictions, as I do, I have briefly referred to a few of the points which have led to my dissent.

The right of citizens of other States to sue in the courts of this State, is, as laid down by all law writers, a matter of comity, which the State may either extend or deny. Our State, in"my opinion, by the language employed in section fourteen, of article fifteen, has denied the use of the courts to the enforcement of slave contracts; and while I might be willing to assent to a decision where' its enforcement would come in conflict with that provision of the Constitution of the United. States, which prohibits a State from passing a law impairing the obligation of a contract, I am unwilling to extend it to a class of cases where neither the facts nor the surroundings of the case raises the point raised in Jackoway v. Denton.

G-reso, J.,

dissenting, says:

We concur in the conclusions of law, arrived at by the special judge in this case, but we do not concur in all the statements made, or propositions defined and argued.

Wilsiiire, C. J., being disqualified did not sit in this case.

IÍ0N. Wm. Story, Special C. J.


author: HáRrisoN, J. G-regg, J.,

text:
    Burgauer, Adm’r. v. Laird.

      Admihstrators — Authority of. — An administrator has no authority to sell the real property of his intestate, except in the manner prescribed by statute.

      Purchaser — Not Trespasser. — Although the sale is invalid and void, without an order of court for that purpose, yet the purchaser, having gone into possession by consent of the administrator, he is not a trespasser, or wrongfully in possession, and could not be subject to a suit, unless he refused to surrender upon demand.

      Appeal from Montgomery Circuit Court.

    JÍ0N. E. J. Searle, Circuit Judge.

      Watkins Hose, for appellant.
    Realty of intestate cannot be sold save by the intervention and under the authority of some court of competent jurisdiction; and the answer not averring anything of this kind, and merely alleging a parol purchase thereof from the agent of Burgauer, is clearly insufficient, and seems conclusive as to reversal, without further reference to other points.

      Garland Nash, for appellee.
    The only question arising in this case comes up on complaint, answer thereto and demurrer to the answer, and that question is: Is a purchase of land by parol, when a great portion of the purchase money is paid, and possession given, sufficient to protect the vendee, when, too, he has tendered the residue of the purchase money?
    "We think it is. Blakeney v. Ferguson, 8 Ark., 878; %0 lb., 552; if not, the plaintiff should offer to pay back the money. Davis v. Tarwater, 15 Ark., 286, and cases cited.
   HáRrisoN, J.

This was a suit, the proceedings in which were under the Code, by Emanuel Burgauer, as administrator of Moses Bur-gauer, deceased, against James J. Laird, for the recovery of a lot, or parcel of ground, in the town of Mt. Ida.

The defense set up in the answer was, that the plaintiff, by a parol agreement, had bargained and sold the lot to the defendant for five hundred dollars, in Montgomery county scrip, which had been paid to him, and he had put the defendant in possession of the premises. The plaintiff demurred to the answer, and assigned specially as causes of demurrer: 1. That it did not show that the lot had been legally sold. 2. That the sale, being by parol, was void by the statute of frauds.

The court overruled the demurrer, and, the plaintiff standing upon it, judgment was rendered against him, and he appealed.

It is clear, beyond all question, that the plaintiff had no authority to sell his intestate’s real estate without an order of court for that purpose, and except in the manner prescribed by the statute, but, although the sale to the defendant was invalid and void, having gone into the possession with the consent of the plaintiff, as a purchaser, he was not a trespasser or wrongfully in possession, and could not, therefore, in justice or reason, be subjected to a suit, unless he had refused to surrender it upon a demand or notice to quit. Fears v. Merrill, 9 Ark., 559; Jackson v. Bryant, 1 John., 322; Jackson et al. v. Wheeler, 6 ib., 272; Harley v. McCoy, 7 J. J. Marsh, 317; Right v. Beard, 13 East., 115. The demurrer was, therefore,, correctly overruled.

Judgment affirmed.

G-regg, J.,

dissenting, says:

The answer in this case sets up a defense, that the defendant purchased the property; took possession under the purchase; that he had paid the purchase price, and he prayed that his possession be quieted, and that the plaintiff be compelled to make title. It attempts to set up an equitable right to the fee-in the lots.

The complaint is in the usual form, under the Code, for the recovery of real property. It sets up the plaintiff's right, as such administrator, to the property and to the possession, and that the defendant is in possession, and withholds the same.

We agree with the majority of the court, that the plaintiff, as administrator, had no power to sell his intestate’s real property without complying with the statute, and having an order from a competent court, and that a purchase from him, as such administrator, without such order, conveyed no valid, legal or equitable title. The complaint follows the forms in the Code.

The answer admits the plaintiff’s title, but attempts to set up his own purchase, under which he went into possession, and prays to have title decreed him. This court says the facts he •states show no title in him. Then, it seems to us, the demurrer was well taken to the answer.

But the court says he went into possession under the plaintiff’s permission, and, therefore, the plaintiff should have demanded that he surrender possession. He does not deny a demand; he does not deny the plaintiff’s right to recover, upon the ground that be bad let bim peaceably into possession; and, if we presume, that presumption must be against tbe pleader that that demand was made. TJnder tbe general terms and short forms of our Code, it was not necessary that such demand, in words, should have been averred in tbe complaint; but if so, the court erred in not letting tbe demurrer relate back to the complaint, and bolding it bad, upon tbe well understood ruling that a bad answer is sufficient for a bad complaint. But, we repeat, tbe Code prescribed tbe form of tbe complaint, and only requires that the plaintiff aver bis right of property and possession. The defense here, as we conceive, rested upon tbe facts which tbe defendant averred gave bim title; that title being insufficient, we bold the demurrer should have been sustained.


author: WlLSHIRE, C. J. Judges CRESO and McCluRe,

text:
    Lee v. The State.
    CRIMINAL Law — Jeopaidy of life and limb. — Tlie principle that a person cannot be twice placed in jeopardy of life or limb for the same offense, and embraced in the Constitutions of most of the States and the Union, is borrowed from the common law, and the decisions are not uniform as to the time when the jeopardy attaches.
    Bill on Bights. — The provisions of the bill of rights, contained in the Constitution of this State, differ from those of most, if not all the other States. It was the intention of the framers of the present Constitution to place a limitation on the legislative branch of the government, and to inhibit it from enacting any law imposing penalties on persons who had once been acquitted by a jury, for the same offense; but this does not deprive the prisoner of his common law rights.
    'When Court may discharge Jury. — It is competent for the court, when the jury cannot agree, to discharge them and hold the accused for trial, on the same indictment, by another jury — as also, where a juror in course of the trial becomes so ill, or the prisoner becomes so sick, or in like cases of impossibility to proceed — but beyond this the authority of the court does not extend.
    What operates as an Acquittal. — Where the indictment is sufficient in form and substance, and the defendant is arraigned, pleads, and the jury is impaneled and sworn to try the issue, it is to be presumed that the defendant is demanding a speedy trial, and a dismissal of the indictment by the court, without the consent of the defendant, and holding him to answer another indictment for the same offense, operates as an acquittal.
    ¡Section 178, Code of Criminal Practice, does not authorize the court to dismiss a valid indictment, after arraignment, plea and impaneling of the jury, so as to hold the accused for trial on another indictment for the same offense.
    When Time not material. — In an indictment for murder, the time of committing the murder is not material, if it appear that it was committed before the finding of the indictment.
    Plea oe former Acquittal. — Where the defendant pleaded former acquittal and not guilty at the same time, the plea of former acquittal should be first tried, and if the plea be found against him, the judgment should be, that he answer the indictment.

      Appeal f/om Jefferson Circuit Court.

    TIoN. Hekry B. Morse, Circuit Judeje.

      Williams, Grawford $ Cameron, for appellant.
    The appellant submits tlie following:

      First. That the appellant was put in jeopardy of bis life by being put on bis trial on the merits in the former indictment in the same case; and that his trial under the indictment under which he was convicted, was putting him in jeopardy of his life twice, which Bhould not be done. Constitution of U. 8., 5th Amendment.

      Second. When the defendant pleads to the indictment, and a traverse jury is impaneled and sworn to try the cause, the jeopardy begins. Bishop on Crim. Laxo, 856; Commonwealth v> Tuck, 20th Pick., 856, 864; Clark v. State, 28d Miss., 861; The State v. McKee, 1st Bailey, 651; The State v. Blackwell, 9th Alabama, 79; Bindsay v. Commonwealth, 2d- Va. Cas., 845; Wo?--thamv. Commonwealth, 5th Rand., 669; CommonxoealtKv. Wheeler, 2d Mass., 172; U. S. v. Stoxoell, 2d Curt. C. G., 153, 170; The State v. Ihornton, 18 Ire., 256; The State v. Thompson, 3 Hawks , 618; Bex v. Bapee, 1st Craxof. §■ Din. G. C., 185; Bex v. Wader 1st Moody, 86; Newsom v. State, 2d Kelly, 60; Beynolds v. State, 8d Kelly, 58; Durham v. State, 9th Cfa., 806.

      Third. The jury being full* and sworn, jeopardy attaches, from the repetition of which the constitutional rule protects a defendant. Bishop Crim. Law, 858; State v. Bedmond, 17th Iowa, 829, 833; State v. Walker, 26th indiana, 346.

      Fourth. During the trial, the prosecuting attorney is not authorized to enter a nolle prosequi; or, if he enters it even with tlie consent of the judge, and if he withdraws a juryman and so stops a hearing, the legal effect is an acquittal. Bishop Crim. Daw, 858. See cases recited under second point? and also Klock v. People, 2d Parker, C. C., 676.

      Fifth. The defendant in such case is entitled to have a verdict of not guilty returned by the jury; but if this is not done, he may still claim his discharge, and he is not to be brought again in jeopardy for the same offense. Bishop Crim. Laxo, 858; U. S. v. Shoemaker, 3d McLean, 114; Mount v. The

      State, ljth Ohio, £95, Jieynolds v. The State, Jti Kelly, Parker v. The State, Plaekf., 5JO; People v. Barrett, £d Gaines, SOJ-, Commonwealth v. Tuck, £Oth Pick., SS6; Ward v. The State, Isi Humph., £58\ Grubble v. The State, £d Green, Iowa, 559.

    A defendant who lias been placed on bis trial, upon the merits, in a court of competent jurisdiction, has been put in legal jeopardy (by analogy,) State v. Cheek, 85th Ark., £06.

      Montgomery, Attorney General, for appellee.
    There is but one question presented to this court: "Was the prisoner placed in jeopardy of life and liberty twice for the same offense? We submit he was not. See Sutcliff v. The State. 18 Ohio, J09, J78; The People v. Osvoell, £8 Gal., J56; Shephard v. People, £5 H. Y, J06, J.18; Bake v. Pope, 7 Ala., 161; The State v. DeWitt, ITill (S. 0.), £8£; Penn v. Huffman, Addison, 1J0;, Commonwealth v. Mortimer, £ Va. Gases, 8£5\ Commonwealth v. Wade, 17 Pick., 895, J00; People v. Warren, 1st Parker, 888; Vaughan v. Commonwealth, 2 Va. Cases, £78.

   WlLSHIRE, C. J.

At the May term of the Jefferson (circuit court, Doctor T. Lee was indicted and tried for the murder of Ida Maria Dota, alias Ida Maria Lanfair, the indictment charging the murder to have been committed on the 22d day of September, 1869.

It appears from the transcript that the defendant plead not guilty, to which issue was joined, a jury impaneled, the witnesses sworn and put under the rule, and the cause stated to the jury by counsel, for both the defendant and the State. At this stage of the proceedings, the attorney for the State suggested to the court a variance between the date on which the murder was alleged in the indictment to have been committed and the date alleged in the original affidavit. Whereupon the court below dismissed the indictment, and referred the case to the grand jury, then in session, who found and presented to that court another indictment, charging Lee with the murder of the said Ida Maria Dota, alias Ida Maria Lanfair, on the 1st day of February, 1870.

Upon the second indictment the defendant was arraigned, and interposed two pleas: First, Former acquittal of the offense charged in the indictment by the judgment of that court; and, second, “That the State ought to be barred in this behalf, and ought not further to prosesute her said indictment against him, because he says that he has once before this time been put in jeopardy of his life for said offense, by being put upon trial in the circuit court of Jefferson county, at the present term thereof, on the 30th day of May, 1870, under an indictment, good in law, found by the grand jury of said county, at said term, in which said trial the jury was impaneled, the witnesses for the State and the defendant were sworn and put under the rule, the indictment read to the jury, and the case stated by both the counsel for the State and defendant, at which stage of the trial, without the consent of the defendant, the court set aside the indictment, discharged the jury, remanded the defendant to prison, and referred the case again to the grand jury, etc.

To the first plea the State took issue, and demurred to the second plea. The court below sustained the demurrer to the defendant's second plea; to which ruling of the court the defendant excepted.

The cause was tried and the defendant found guilty of murder in the first degree.

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

First. That the court erred in sustaining the demurrer to the defendant’s second plea.

Second. Instructions asked for by the State.

Third. That the court erred in refusing to give the first instruction asked for by the defendant.

Fourth. That the verdict is contrary to law and evidence.

The court below overruled the motion of the defendant for anew trial, and pronounced the sentence of death upon the defendant, from which he appealed.

The first question demanding attention is that raised by the first ground set up in the motion for a new trial, that the court below erred in sustaining the demurrer to the defendant’s second plea, which plea we have thought proper to copy into the statement of this case.

The principle involved in the provision of the Constitutions of most of the States of the Union, as well as that of the United States, that no person shall be subjected for the same offense to be twice put in jeopardy of life and limb, was borrowed from the common law; and, indeed, it has been much doubted whether those constitutional provisions amount to anything more than the common law doctrine involved in the plea of autrefois acquit, which plea is founded “upon the principle that no man shall be placed in peril of legal penalties, more than once, upon the same accusation.” Wharton, in his treatise on Criminal Law, p. 574, says that “at common law this doctrine means nothing more than that when there has been a final verdict, either of acquittal or conviction, on an adequate indictment, the defendant cannot a second time be placed in jeopardy for the particular offense; and, at the first glance, the constitutional provision appears nothing more than a solemn asseveration of the common law maxim.”

There seems to be a conflict in the authorities as to when the jeopardy attaches. Under the provisions of the Constitutions of some of the States, their courts hold that the jeopardy attaches from the moment, when the defendant, having pleaded to the indictment and a traverse jury is impaneled and sworn to-try the cause — in short, when the tribunal is complete in itself to try the cause, and the defendant properly befoi’e it, defending, having answered; while the courts of some other States incline to the opinion that the jeopardy of the Constitution begins only with a verdict rendered.

The provision of the Bill of Rights contained in the Constitution of this State, differs perhaps with that of most, if not all the other States. Section 9, of the Bill of Nights of our Constitution, provides that “no person, after having been once-acquitted by a verdict of jury, for the same offense shall be again put in jeopardy of life or liberty, but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had may, in its discretion, discharge the jury and commit or bail the accused for trial at the same or the next term of said court.”

It is evident to our minds that the language of our Constitution, above quoted, shows that it was the intention of the convention that framed and adopted that instrument, to place a limitation upon the legislative branch of the government;, that is, that no law should be enacted authorizing the imposition of penalties on persons who had once been acquitted by a jury for the same offense; but this does not deprive the prisoner of his common law right. It is quite as evident that the convention intended by the same clause, that in a criminal prosecution, if the jury disagreed, the court, in its discretion, might discharge them and hold the accused to be tried upon the same-indictment by another jury. In the latter case, the Constitution is but a declaration of what the law was held to be before.

Judge Cooley says that, “in considering State Constitutions, we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they' must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the .rights of the governed.” The learned judge quotes approvingly the language of the Hon. M. Bates, in Hamilton v. St. Louis county court, 15 Mo. 13, who said : “What is a Constitution, and what are its objects ? It is easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence of personal and political freedom;. it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for ■their protection in the enjoyment of the rights and powers ■which they possessed before the Constitution was made, it is ■but the frame-work of the political government, and necessarily based upon the pre-existing condition of laws, rights, .habits, and modes of thought. There is nothing primitive in it; it is all derived from a known source. It pre-supposes an •organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny. A written Constitution is, in every instance, a limitation upon the powers of government in the hands of agents, for there never was a written republican Constitution which delegated to functionaries all the latent powers which lie dormant in ■every nation, and are boundless in extent, and incapable of definition.” Cooley on Constitutional Law, 37.

The authority conferred upon the courts, in criminal prosecutions, by the provision of the Constitution referred to, to discharge the jury, etc., is confined to cases where the jury “is ■divided in opinion,” and cannot, we think, be construed to extend beyond that.

Upon examining the indictment first presented against the defendant, upon which he was arraigned and upon which he plead, and a jury was impaneled and sworn to try the issue, we find it sufficient in form and substance to have warranted .a conviction upon the proof introduced on the second trial. The statement in the indictment as to the time at which the •offense was committed, is not material. If an indictment for murder show that the murder was committed at some time prior to the time of finding the indictment, it is sufficient. Sections 128 and 130 Criminal Code.

Finding that the indictment upon which the defendant was first arraigned, and which the court below dismissed, was sufficient, the question recurs: can the court dismiss such an indictment, after the proceedings under it had progressed as far as in this ease, and the accused held to answer another indictment preferred against him for the same offense? Or, was he not entitled to a trial by the jury impaneled and sworn to try the issue on the former indictment?

The eighth section of the Bill of Rights, contained in our Constitution,guarantees to all persons accused of, and proceeded against, for crime, “a speedy and public trial by an impartial jury of the county or judicial district wherein the crime shall have been committed.”

This court, in Stewart v The State, 13 Ark., 720, Chief Justice Watkins delivering the opinion, in referring to the con•stitutional declaration of rights, announced the sound and wholesome doctrine that “this provision, and all those of a similar character, are declaratory of the sense of the people concerning great fundamental principles, designed as limitations upon the powers of the departments of government, in the enactment, the interpretation and the execution of the laws.” In that ease the defendant sought to be discharged upon the ground of the length of time intervening between his arrest and imprisonment and his application for a discharge, which was refused; but in that case the defendant contributed to the delay — -first, by taking a change of venue; second, upon his own motion obtaining a continuance, and third, by moving to quash the venire and set aside the panel of petit jurors, etc.

The learned Judge, in Stewart v. The State, further said: “That an accused is entitled to a speedy trial, is a proposition which no one- will question; but what is a speedy trial, and what consequence will follow, where a speedy trial is denied, are questions that have to be considered with reference to the existing law, and its practical operation, in the determination of individual rights.” This doctrine, applied to the law existing at the time of the arraignment of the defendant in this case, upon the indictment first preferred against Mm, did not authorize the dismissal "We find no law authorizing the dismissal of a valid indictment at that stage of the ^proceedings, nor does it appear by the transcript of the record before us, that any great or pressing necessity existed, to tbe end that justice might be done, or the law vindicated, by dismissing the indictment and discharging the jury.

It is true that the Code of Criminal Practice, section 178,, authorizes the dismissal, by the court, of indictments for any objection to their form or substance, taken on the trial, or for variance between the indictment and the proof, and that such dismissal shall not bar another prosecution for the same offense. Hut does that statute confer the power upon the court to dismiss a valid indictment, after the cause had progressed as-far as this case had, without the consent of the accused, and hold him for trial upon another indictment for the same offense?' Bishop, in his treatise on criminal law, volume 1, section 224,. says: “ The law delights in the life, liberty and happiness of the subject, and deems statutes which deprive him of these, or1 of his property, however necessary they may be, in a sense-odious.” It is a familiar principle of the law, that statutes,, and the same principle applies to Constitutions, are to be literally interpreted in favor of persons charged with crime. According to this rule of construction, it would seem that the-courts are confined in their power to dismiss an indictment, in a case like the one at bar, to formal or substantial defects, or' a variance between the indictment and the proof, and that such power does not extend to an indictment good in form and substance, as we have seen the indictment in this case was. Mr. Bishop, (see Crim. Law, vol. 1, sec. 864,) in discussing the-doctrine of former jeopardy, says: “ It must be borne in mind that the constitutknial provision under consideration is not the only impediment to the re-hearing of a criminal cause. It is,, indeed, the only one not removable by legislation; but when legislation has not interfered, and the question depends on common law principles, there may be various other absolute-bars to a further trial.”

In the case of Klock v. The People, Parker’s Crim, Rep., 676, decided by the Supreme Court of New York, the defendant was indicted and put upon trial for the crime of arson. During tbe trial, upon the motion of the prosecuting attorney, without the consent and against the objection of the accused, a juror was withdrawn and the jury discharged. At the ensuing term the district attorney again moved the trial of the indictment. The defendant set up, by way of plea, the foregoing facts, and, upon error, the court held that the accused was entitled to be discharged. The court, in that case, said: “ The true ground of the objection lies back of the Constitution, and is found in the principles which have been deemed •essential to the full and fair protection of individuals accused of crime, and to secure to them a speedy and impartial trial, and the best means of vindicating their innocence. The practice and the views of courts of criminal jurisdiction, upon questions somewhat analogous to that presented in this case, have passed through some modifications. Kent, J., in People v. Olcott, 2 J. C., 301, refers in detail to the earlier cases bearing upon the point; and, while his review of the cases shows distinctly the modifications and changes which have taken place in the practice of courts, it also% shows the great tenderness .and care manifested by the judges for the rights of the accused, and to secure to them every right essential to their defense, and an anxiety to protect them against any act or omission of the government, or the public prosecutor, which could injuriously affect them.”

It was held, in The State v. Walker, 26 Ind., 346, that when the accused, in a criminal prosecution is put upon trial, on a valid indictment, before a legal jury, and the jury is discharged by the court without good cause, and without the consent of the defendant, he has incurred the first peril, and the discharge of the jury is equivalent to a verdict of not guilty. So, also, in the case of The People v. Barrett and Ward, 2 Cains' Cases, 100 to 304, the Supreme Court of New York held that “where the jury were discharged against the consent of the defendants, (in a case of misdemeanor only), because the district attorney was not prepared with evidence to support the prosecution, such a discharge was equivalent to an acquittal, and the defendants could never be brought to trial again for the same offense.” See Commonwealth v. Cook et al., 6 S. and R, 777, and cases there cited; John Mounts v. The State of Ohio, 14 Ohio, 295, and cases there cited.

"We do uot wish to be understood as intimating that the court could not, in any other cases than those mentioned by statute, discharge the jury and hold the defendant for trial at another time and by another jury. Doubtless the court would have that power when a criminal cause has been submitted to the jury, and they have retired to consider of their verdict, and it is found to be impossible for them to agree, the court could discharge the jury and hold the accused for trial. So, also, if, during the progress of the trial, one of the jury should become so ill as to be unable to sit in the panel, or if the accused should become sick and unable to be present and proceed with the trial.

Bishop lays down the doctrine to be that, “ Whenever, after a trial has commenced, whether for misdemeanor or for felony,, the judge discovers any imperfection which will render a verdict against the defendant, either void or voidable by him, he may stop the trial, and what has been done will be no impediment in the way of any future proceedings. "Whenever, also, any thing appears showing plainly that a verdict .cannot be reached within the time assigned by law for the holding of the court, he may adjudge this fact to exist; and, on making the adjudication matter of record, stop the trial with the like result as before. But, without the adjudication, the stopping of the trial operates to .discharge the prisoner. In other words, when the record shows the defendant to have been in actual jeopardy, he is protected thereby from further peril for the same alleged offense. .But when it shows, also, in addition to this, something which disproves the peril, it does not show the-peril, whatever else it shows, and therefore it does not protect him.” Vol. 1, 873.

Entertaining the views above expressed, we think the true rule to' be that, whenever the accused has been arraigned, a jury impaneled and sworn, and the cause given them in charge, as was in this case, and there being no objection interposed by the accused to the indictment or the other proceedings, we will presume that he was demanding his constitutional right to a speedy and public trial, by an impartial jury of his country, etc., and the indictment being sufficient, as we have seen, and there appearing by the record to be no other reason for dismissing the indictment than insufficiency, the court would not deny the defendant the right to a speedy and impartial trial by dismissing the indictment. The dismissal of the indictment in this case, we think, under the circumstances, operated as an acquittal of the defendant. The Jefferson circuit court, therefore, erred in sustaining the demurrer to the defendant’s second plea.

There is another error disclosed by the record, which, though not objected to here by the appellant’s counsel, we deem it our duty to notice. The two pleas, of former acquittal, and not guilty, wore submitted to the jury at the same time. The former should have been first tried, and, if the verdict was against him; the judgment upon it would have been that he answer the indictment. In the case of Rex v. Roche, 1 Leach, 160, the court said: “ In pleas of abatement there are two issues, and they are always tried upon separate charges to the-jury. Besides, charging them with two issues at once would lead to the absurdity that, being charged with both, they would be obliged to find upon both; and yet, if the first finding was for the prisoner, they could not go to the second, because that finding would be a bar. They are distinct issues; and the jury must be separately charged with them.” Amer. Crim. Law, vol. 1, sec. 538; Hill v. The State, 2 Yerger, 248; The State v. Copeland, 2 Swan, 262.

The disposition we have made of the questions above dis cussed, are sufficient to determine this case, and we deem it unnecessary to notice the objections, to the ruling of the coufit below, in giving and refusing its instructions to the jury.

The judgment of the circuit court is, for the errors aforesaid, reversed and the cause remanded, with directions to overrule the demurrer to the defendant’s second plea, and to proceed.in the cause according to law, and not inconsistent with this opinion.

Judges CRESO and McCluRe,

dissenting, say :

■ We are of opinion that the weight of authority, both in England, and most of the American States, is that a citizen cannot be twice put in jeopardy of life or liberty for the same ofíense, and that, when a competent court is duly organized and a defendant has plead not guilty to a good indictment, and a jury has been empaneled to try the issue, jeopardy has then attached, and that nothing but his own consent, or unavoidable necessity can authorize a dismissal of the prosecution, or a discharge of the jury, and subject the accused to further prosecution for the same offense.

The question in this case is, whether or not the fundamental, law of the State, and the acts of the Legislature, can twice jeopardize the life or liberty of the citizen, or can fix the time at which jeopardy begins, and if either or both can be affected by the sovereign power of the State or by legislative action, has such change been made ?

We are not prepared to hold that even the entire sovereignty of the State has the power to subject her citizens to various trials for life or liberty, for one alleged offense, but may she not define when jeopardy begins, when a party has actually been put in peril of life or liberty, so as to free him from further answering to such charge ?

It will be seen by examining the many authorities referred’ to by the Chief Justice, that courts have not been uniform in their ruling as to when a defendant is in jeopardy.

We think the weight of the authority is as he stated it, but it is clear that there has heretofore been no definite and fixed rule prescribing the time when jeopardy attaches, and we are not prepared to say that there is any principle of higher law or natural right that prevents the sovereign people of a State, when in convention, from defining, within the bounds of reason and justice, when, and not till when, a citizen shall be considered in jeopardy. If so, have the people changed or modified the rule in this respect ?

The Constitution of 1836, section 11, article II., declared : “That in all criminal prosecutions the accused hath a right to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face; to have compulsory process for obtaining witnesses in his favor; and in prosecutions by indictment or presentment, a speedy public trial by an impartial jury of the county or district in which the crime shall have been committed; and shall not be compelled to give evidence against himself.” Section 12: “That no person shall for the same offense, be twice put in jeopardy of life or limb.”

But in the Constitution of 1868, the clauses in reference to the trial of persons for high crimes are, to some extent, changed. Section 9, Article I., is as follows: “No person shall be held to answer a criminal offense unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases of petit larceny, assault, assault and battery, affray, vagrancy, and such other minor cases as the General Assembly shall make cognizable by justices of the peace, or arising in the army or navy of the United States, or in the militia, when in actual service, in time of war or public danger; and no person, after having leen once acquitted by a jury, for the same affense shall again be put in jeopardy of life or liberty ; but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had may, in its discretion, discharge the jury, and commit or bail the accused for trial at the same or at the next term of said court; nor shall any person be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property without due process of law. All persons, before conviction, shall- be bailable by sufficient sureties, except for capital offenses — murder and treason — when the proof is evident or the presumption great; and the privilege of the writ of habeas corpus shall not he suspended unless when in cases of rebellion or invasion the public safety may require.”

In the Constitution of 1836, we find the declaration that an accused shall not be twice put in jeopardy of life, etc., leaving it solely to the courts to decide what is being in jeopardy, a term, as we have above stated, not well defined; some courts holding that at a certain stage of the proceedings jeopardy attaches, while others hold that it does not attach until further steps have been taken. The proposition as to whether or not a jury, duly empaneled, can be discharged, if so, when and under what circumstances they may be discharged, without the accused having a right to acquittal, are among the vexed questions that for so many years have perplexed the courts, and we think the language of this ninth section, of article one, of our new Constitution, compared with that of sections 11 and 12, article 2, of the old Constitution, shows that the minds of the people’s delegates, in convention, were directed to these difficulties, and that, while they attempted still to secure to an accused all the substantial rights afforded by a free and liberal government, they attempted to so define those important rights that guilty parties might not escape for want of a technical compliance with salutary and substantial provisions.

The old Constitution not only declared that in eases of criminal prosecution, the accused should be informed of the nature and cause of the accusation against him, but he should-have a copy thereof. It is a fact, well known to those of large experience, that many perplexing questions arose in practice as to the time and manner of furnishing such copy, as to whether that furnished was in all respects a perfect copy or was sufficient. The new Constitution attempts to avoid and does not require the copy, but leaves it to the courts to see-that the accused is properly advised as to the charges preferred against him, or for the Legislature to prescribe in what cases a copy shall be furnished. The new Constitution also omits that clause requiring all witnesses to meet the accused face to face.

Eut, upon the subject now before the court, the new Constitution does not declare, as did the old, that no one shall be twice put in jeopardy of life, etc., but declares that “no person, after haying been once acquitted by a jury, for the same offense, shall be again put in jeopardy of life or liberty.” And, as an evidence .that the convention was then attempting to define when that jeopardy, which would entitle a party to a verdict or a discharge, should attach, they, in the same section, say that the court in its discretion, may discharge the jury, if they differ in opinion, and the accused shall stand for further trial, etc.

It seems to us that the Constitutional Convention had power to define the time (consistent with right and the principles of republican government) when jeopardy does attach, and that a proper interpretation of the new Constitution is, that it does not attach until a verdict is had in the case.

The legislative department seems to have so interpreted this provision. In section 172, Criminal Code of Practice, it is enacted that: “There are but three kinds of pleas to an indictment: .First. A plea of guilty; Second. Hot guilty; Third. A former conviction or acquittal of the offense charged, which may be pleaded with or without the plea of not guilty.”

“Section 178 : The dismissal of the indictment by the court, on demurrer, except as provided in section 169, or for an objection to its form or substance, taken on the trial, or f<jr variance between the indictment and the proof, shall not bar another prosecution for the same offense.”

"We have seriously considered whether or not our strong inclination not to allow one, perhaps guilty of a henious crime, to go free, upon a mere error of the inferior court, without any finding or judgment upon the merits, may not have influenced our construction of these legislative acts, yet it does seem to us they were intended to define, and to some extent restrict the privileges of an accused; that they only prevent him from being discharged upon technical grounds, and that they are not inconsistent with common right and natural justice.

And, while we are conscious of the great importance of guarding individual rights and hedging in courts, wherever, from ignorance or prejudice, they are liable to overstep the bounds of justice, and the extreme delicacy in construing legislative acts in contravention of well established precedents, yet mature consideration impels us to say that, while we do not approve the action of the circuit court in discharging the jury, after the case had so far progressed, yet, under our late Constitution and statutes, there was no sufficient error to let this accused go hence with his crime unanswered, and that the sentence and judgment .of the court below ought to be affirmed.