text:
    White v. Cannada.
    In ail action by tlio assignee against the assignor of a writing obligatory, it is necessary to aver demand of the maker, and notice'to the assignor of iion-xiaymont; and the omission of such averment is fatal on error, though a demurrer filed to the declaration failed to sxiocify such defect, or xioint it out as a ground of demurrer.
    It is error to render judgment for a greater amount of damages than is laid in the declaration.

      Error to Jefferson Circuit Court.

    lion. Wm. M. Harrison, Circuit Judge.
    Watkins & Nose, for the plaintiff in error.
    The judgment is erroneous, because there is no averment in the declaration of demand and notice. Sevier v. Holliday, 2 Ark., 512; Ruddel §• McGuire v. Wcdker, 7 Ark., 46%; Anderson v. Yell, 15 Ark., 14; Gould’s Dig., pp. 158,159. Even if the defendant’s default admitted all the facts alleged in the declaration, yet as that failed to aver any demand, or notice, it shows no cause of action whatever against defendant, nor any legal right in the plaintiff to recover. Johnson v. Pierce, 12 Ark., 599; Hunt v. Eurton, 18 Ark., 189.

    G-arland & Nash, for defendant.
    It is true that an indorser is entitled to notice of presentment and non-payment; yet it is not required that the declaration should aver it; it can be made to appear by proofit is but a question of diligence; and as the declaration avers the nonpayment by the maker, and states, “ of all which the defendants had notice,” it satisfied every rule of pleading. All questions as to the notice would then arise upon -the proof, as in the cases of Ruddell, et al., v. Wcdker, 2 Eng., 457; Jones v. Robinson, 3 Eng., 484; Ellis v. Dunham, 14 Ark., 127.

      The defendant, by craving oyer, waived all objections to the declaration that were not disclosed by the granting of oyer. Taylor v. .Coolidge, 1.7 Ark., 459; 5 Ark., 662. Not having urged this objection in his demurrer, the defendant is deemed' to have waived it, and- it will be considered by this court as cured by operation of the statute of jeofails and amendments, Dig.,pp. 862-3-1/.

    The verdict and the judgment remedied the defect, if any .existed. It is merely an erroneous statement of a claim, not such a statement as exhibits no claim. Rushton v. Aspinall, Doug., 679-84 ; Knight v. Sharp, 24 Ark., 602; Bartlett v. Crozin, 17 John., 458; Chaffer v. Sangston, 10 Watts Penn. Rep. 265.

   Compton, J.

This was an action of debt by the assignee against the assignor of a writing obligatory. The defendant craved oyer, and demurred to the declaration, for variance between the writing declared on and that which was 'read on error. The demurrer was sustained; the plaintiff amended his declaration, and the defendant saying nothing further, final judgment was rendered in favor of the plaintiff for four hundred dollars debt, and the further sum of one hundred and ninety-five dollars damages, with cost of suit; to reverse which the defendant brought error.

The declaration, as amended — omitting the commencement, which is in the usual form — is as follows :; “ For that, on the 6th day of April, 1859, one John T. Trigg, who is not sued herein, by his writing obligatory, sealed with his seal and now to the court here shown, promised, two (2) years after the said date, to pay to the said defendant, or to his order, four hundred dollars ($400) for value received, with the interest thereon, at the rate of six per cent, per annum, from said 6th day of April,- A. D. 1859, until paid; and the said defendant then assigned and delivered the said writing obligatory to the said plaintiff — which said assignment is here to the court shown— of all which the said defendant had due notice. Yet the defendant has not paid the said sum of money and interest, or any part thereof, nor has the said John T. Trigg done so, but the same now remains wholly unpaid 'and due the plaintiff, to his damage of one hundred dollars.”

It is insisted that the declaration discloses no right of action against the plaintiff in error ; because he is sued on his contract as assignor, and the declaration contains no averment of demand and notice. This objection is well taken. It was decided by this court, in Anderson v. Yell, 15 Ark., 9, that, in a ease like this, demand and notice must be averred, and that an omission to do so is fatal, even after verdict. We have been referred to no adjudication, nor have we met with any, in which it has been ruled otherwise. There is certainly nothing decided in Roselle v. Pennington & Jay, 24, Ark., 277, and Holleville v. Patrick, 14 Ark., 208, which militates against the decision in Anderson v. Yell, supra. In the last named cases, it was held to be unnecessary to aver in the declaration the precise time when payment was demanded, or. notice of non-payment given; and that where time is stated in such case, under a scilicet, the plaintiff will not be confined, upon the introduction of proof, to the precise dates alleged; but it was not decided, nor even intimated, that the plaintiff may prove demand and notice without a corresponding averment in the declaration, under which to let in the evidence. So to hold would be to disregard an elementary rule of pleading.

It has been argued, for the defendant in error, that conceding the declaration to have been defective, for want of the averment in question, yet, as the demurrer failed to specify such defect, or point it out as ground of demurrer, the declaration must be regarded as having been amended in that particular, by operation of our statute modifying the common law practice in such cases. The leading case bearing upon this point is Davies v. Gibson, 2 Ark., 115, in which the court, after quoting the provisions of the statute, (Gould’s Dig., chap. 133, secs. 61, 62,) and commenting on their general object and design, lays down, in substance, the following general rule: The party demurring is required to express specially, in his demurrer, the particular defect or imperfection which vitiates the pleading, and is not permitted to express any matter which is only cause of special demurrer at common law, while it is enjoined upon the court to amend any defect or imperfection not so stated; and when the pleading, so amended, shows sufficient matter to enable the court to give judgment according to the right of the cause, judgment must be given regardless of any defect or imperfection in the pleading. The court then proceeds to use this language : “ But the general rule, as prescribed by the statute, in order to carry into complete effect the paramount object and design of the law, as before stated — as well as to prevent it from depriving parties of their legal rights, instead of assisting them in the investigation to ascertain them — must be understood with this exception, that the court cannot amend as to matters of fact, which are not in any manner stated by the parties; because it is a universal maxim 'that the lai# never requires of any person an impossibility, and the court can not by possibility know what facts do or do not exist; and therefore, when the facts stated can not, under any form of stating them, be made to exhibit a legal cause of action, or ground of defense, the pleading can not be maintained, notwithstanding this particular defect is not specially expressed in the demurrer ; and the court, in enforcing the law, by proceeding to give judgment, according as the very right of the cause and matter in law shall appear, is bound to decide the matter against the party whose pleading-is so defective, because he does not show any legal right to the thing in demand.” This rule, as well as the exception which qualifies it, has been repeatedly recognized by this court. Roach v. Scoggin, 2 Ark., 130; Pitcher v. Morrison, 4 Ark., 75; Brooks v. Palmer, id., 160; Outlaw v. Yell, 5 Ark., 468; Gordon v. State, 11 Ark., (6 Eng.,) 14; Biscoe v. Sneed, id., 107; Bradley v. Hume, 18 Ark., 286; and the only difficulty that can now arise in any case is as to its application. In Pitcher v. Morri son, supra, it was decided tliat the plaintifi' was entitled to judgment, notwithstanding his declaration was defective. The action was debt on a promissory note for $169 with interest at ten per cent, per annum. The breach assigned in the declaration negatived the payment of the debt, but was silent as to the interest. A demurrer to the declaration was sustained, and, on appeal to this court, it was held that, although the breach assigned was defective, yet, as no objection to the breach was specially assigned in the demurrer, the court was bound to disregard or amend it,- and that inasmuch as the declaration showed a legal right in the appellant to recover of the appellee the debt, without the conventional interest mentioned in the contract, the demurrer ought to have been overruled. On the other hand, in Gordon v. State, supra, the exception to the general ride ivas applied. The suit was on an administrator’s bond, and the breach assigned showed that the plaintiff’s claim against the estate of the intestate had been allowed and classed; but omitted to show, as it should have done, that the probate court had ordered it to be paid, and that, afterwards, the plaintiff' had demanded payment of the administrator and it had been refused. A demurrer to the declaration was overruled, and on writ of error, the judgment was held erroneous. This court said: “ In no possible form of stating the facts disclosed in the declaration, can any right of action be shown in the plaintiff below; and therefore, although these imperfections were not specially expressed in the demurrer, they are without the circle of the influence of our statute regulating demurrers, as that has been uniformly expounded by this court.” To the same effect are the cases of Outlaw v. Yell, and Bradley v. Hume, supra.

As has been seen, in the case now before us, no cause of action against the plaintiff’ in error, is shown in the declaration, nor can the facts therein alleged be, in any way, -so stated as to do so. The consequence is, that, in the light of the authorities .above referred to, the defect in the declaration, though not specially expressed as a cause of demurrer, is not cured by operation of the statute; but remains, and is fatal on error. The words, “ of all which the said defendant has had due notice,” used in the declaration, were manifestly employed by the pleader as referring to the preceding allegations, which are the execution of the instruments sued on, and its assignment to the defendant in error, and can not by any stretch of intendment be made to- relate to a demand of payment upon Trigg and refusal by him to pay, when no such matters are averred, or attempted to be averred, in the declaration.

There was also error in rendering judgment for a greater amount of damages than is laid in the declaration.

Judgment reversed, and the cause remanded, with leave to the defendant in error to amend his declaration, if he shall desire to do so.


source: Caselaw Access Project

author: Compton, J.

license: Public Domain

text:
    Morton, et al., v. State, use Seckendorff.
    The declaration on an executor’s bond for a legacy is fatally defective unless it alleges an order of the probate court to pay the legacy and a refusal by the executor.

      Held: That the suit in this' case could not be considered as based on the 191st section of the administrative statute, as it does not seek a recovery for the benefit of all persons' interested in the .estate, nor is the capacity in which the plaintiff sues averred.

      Error to Desha Circuit Court.

    Hon. Vm. M. Harrison, Circuit Judge.
   Compton, J.

This was a suit in the name of the State for the use of Ernestine Yon Seckendorff, against the principal and sureties in the bond of an executor.

The plaintiff assigned, in her declaration, four breaches of the condition of the bond; and the defendants failing to appear, judgment by default tras entered against them. ’ A jury was then ordered to inquire into the truth of the breaches, and assess the plaintiff’s damages, who found for the defendants • on the first breach, and for the plaintiff on the second, third and fourth breaches, and assessed her damages at $3,800; for which judgment was rendered, and the defendants brought error.

The judgment of the court below can not be sustained. The declaration, though evidently framed with a view to section 191, chap. 4, Gould’s Dig., does not 'seek a recovery for the benefit of all persons interested in the estate, as under that section it should do, for the alleged waste and mismanagement of the estate, but proceeds, in the individual right of the plaintiff' below, for the recovery of the value of a legacy for her sole benefit; which, it is alleged, was bequeathed to her by the testator, and by the executor converted to his own use, making the value of the legacy the measure of the damages claimed. Treating the action as founded on the refusal of the executor to pay the plaintiff below her legacy, the declaration is fatally defective; because it is nowhere averred that the probate court ordered him to pay it. Without such order, and refusal by the executor to obey it, on demand, there was no right of action on his bond. If the suit could be regarded — and we think it can not — as based on the 191st section of the statute, the declaration is equally defective; because, if for no other reason, the capacity in which the plaintiff below sues, whether as legatee, distributee, creditor, or other person interested in the estate, is not averred, such persons only being entitled to sue under this section of the statute. These views are in accordance with the decisions of this court in State, use of Wallace, v. Ritter, 9 Ark., (4 Eng.,) 244; Porter v. State, use, &c., id., 226; and Gordon v. State, use, &c., 11 Ark., (6 Eng.,) 12, where the questions here involved are fully discussed and settled.

Judgment reversed, and cause remanded, with leave.to the plaintiff' in the court below to amend her declaration.


text:
    McDaniel v. Hanauer, et al.

    The statement in the record, that the jury was duly elected, impaneled and sworn to try the issue, is, substantially, that they were sworn according to law.

      Appeal from Laiorence Circuit Court.

    lion. L. L. Mack, Circuit Judge.
    Watkins & Nose, for appellant.
    G arland & Nash, for appellees.
   Compton, J.

This case is submitted to the consideration of the court on the single question as to whether the jury were well sworn.

The record states that the jury “ was duly elected, impaneled, and sworn to try the Issue joined in this case.” This was sufficient. The word “ duly,” which means properly, regularly, indicates the manner of the swearing; and the additional words “to try the issue joined in this case,” merely indicate 'The purpose for which the oath was administered, the meaning of all which is, substantially, that the jury was sworn according to law.

Judgment affirmed.


author: Clendenin, J.

text:
    Ayliff v. Hardy's Executors.
    Where, from the evidence, the damages assessed by the jury are excessive, and the verdict as a whole without proof to support it, this court will award a new trial. 17 Ark., 449<

      Appeal from Clark Circuit Court.

    Hon. E. J. Searle, Circuit Judge.
    Garland & Nash, for appellant.
    Witherspoon, for appellees.
   Clendenin, J.

On the 11th of August, 1858, the appellees commenced their action in assumpsit against the appellant, laying their damages at SI,000. The appellant filed his plea of non-assumpsit, and two special pleas of the statute of limitations, upon which issues were made up, and the ease submitted to a jury for trial, who found a verdict for the plaintiffs, assessing their damages at 8890. The appellant filed his motion for a new trial, assigning his causes, and the motion being overruled, he filed his bill of exception, and appealed to this court.

The only cpiostion we deem necessary to consider is, as to the action of the circuit court in overruling the motion for a new trial upon the reasons assigned: 1st, that the verdict was contrary to the evidence; and, 2d, that the damages are excessive. The hill of particulars filed by the plaintiffs, as the basis of their claim, is as follows:

Messrs. Peay & Ayliff,

1855. To Estate II. K. Hardy, I)r.

January 14. To keeping stage stand up to January 10,1855, from October, 1854, $192 00

Feeding one extra horse, 6 Ó0

February 20. 199 bushels of corn, 199 00

700 pounds fodder bo’t of Singleton, 14 00

1 hand attending horses 10 days, 5 00

Hauling fodder, - 2 00

April 1. 65 bushels corn, - 65 00

May 22. Keeping and attending horses, 3 00

Fodder bo’t of Osborn, - 5 00

“ 25. 36 bushels corn, - 36 00

“ 28. Paid T. Freeman for hauling, 8 00

July 1. “ T. H. Kingsbury for hay, 59 50

October 1. 26 bushels corn, -. 26 00

2176 pounds fodder, 21 75

Board of driver 1 year, - 96 00

$738 26

1854. Contra.

October 1. By cash paid Hardy, $50 00

1855.

Jan. 1. u u a a 100 00

March 15. Bo’t draft on Moreland, - 71 94

June 28. T. B. Sloan, fare, - 7 00

Ayliff’s note on H. S., - 50 00

Withersiioon, stage fare, 125 00

403 94

$334 32

Deduct for error, - 34 32

$300 00

Interest-on balance from Jan. 1,1856, 90 00

Ain’t due Jan. 1, 1861, - $390 00

The proof to sustain the action was: First, that of J. B, Hawkins, who testified that in the month of June, 1855, he went to live with IT. K. Hardy, and in his employ ;■ that he lived at the place from said month of-June until the month of September or October, 1855, and “ during that time three stage horses were continually kept there by Mr. Hardy, or his representatives, which horses were at the place when I went there, and sometimes, when I was there, extra stage horses would be brought there and fed. I think these horses (which were welL fed) would each eat one-half bushel of corn and nine bundles of fodder per day, making for the three one and a half bushels of •corn and twenty-seven bundles of fodder consumed daily. Corn, at that time, was worth one dollar a bushel, and fodder was worth two dollars per hundred bundles. There was, also, hay fed to horses during that time. I have seen during that time defendant, Ayliff, at the place, but never talked to him any thing about the transaction or business there; never saw Mr. J. C. Peay. I know nothing of-any other items of the bill of particulars.”

The plaintiff also introduced the following letter, after proving that it was in the handwriting of defendant, Ayliff:

“Little Bock, December 2*1,1854.

“H. K. Hardy, Esq.:

Dear Sir: We received yours in regard to feeding our horses. You say you will lose money. We do not want you to lose any thing by accommodating us. I thought I would have been down before now, but I can not come now until the first of January. Keep our horses until I come down, which •will be about the 5th or 6th of January, and then we will make some arrangements. ******

“PEAY & AYLIFF.”

Which was all the evidence introduced in the case, as we learn from the bill of particulars.

Now, from this testimony, were the jury justified in finding ■a verdict for $390? We are very clearly of the opinion that they were not. Conceding that the jury might, from the letter of Ayliff, have found that the horses fed by Hardy were the property of Ayliff, and that there was an implied assumpsit that he would pay for feeding them, there is not in the letter any such admission of indebtedness as would do away with the necessity of other proof to prove the items of the account.

The witness, Hawkins, proves but two items of the account— corn and fodder; and giving to his testimony the most liberal construction, he proves that one hundred and eighty bushels of corn, and thirty-two hundred bundles of fodder were furnished, the aggregate value of which, according to his testimony, is two hundred and forty-four dollars. And, from the testimony, we think the jury could not properly have found in excess of that amount.

We think that the damages are excessive, and that the verdict, as a whole, is without proof to support it; and recognizing the rule, as laid down by this court in Wallace v. Brown, 17 Ark., 449, and preceding cases, we hold that the circuit court erred in overruling the motion for a new trial.

Judgment reversed.


text:
    Thorn and wife v. Ingram, ad.

    A widow lias no riglit of dower in lands purchased and occupied by her husband, for which a deed of conveyance was executed and delivered in the life-time of the husband, where the purchase money remains unpaid, as against the equitable lien of the vendor.
    The 5th section of chapter 60, Title “Dower,” Digest of Arkansas, does not qualify, but substantially asserts the principle that the widow is not entitled to dower against the equitable lien of her husband’s vendor.
    Upon a sale of the lands of an intestate by his administrator, the execution and acknowledgment of a deed, with its delivery, are sufficient to convoy the title, where the clause of conveyance ad testatum describe the grantor as administrator, though the signature and acknowledgment omit the description.

      The salo of an intestate’s land by the administrator, made raider the order of tlio probate court, and reported to and confirmed by it, conveys the title, though the proceedings be irregular. 13 -Arle., 177; 10 Arle., 490.

    This court will consider no objections to a decree affecting the interest of Xiarties .who have not taken an axrpeal.
    On a bill against an administrator, to enforce a vendor’s lien for the xiurcliase money, the decree for the unpaid xmrehase money should be against him in his representative caxiacity, not in his individual character.

      Appeal from Jefferson Circuit Court in Chancery.

    lion. War. M. Harrison, Circuit Judge.
    Bell & Carleton, for the appellants.
    The 5th section of chapter 60,Dig., under the head of “Dower,” was intended to give the wife dower in all lands the husband may die seized and possessed of, except lands purchased during coverture and that were mortgaged for the purchase money; for it was, at the time that section was passed, well settled, that a wife could not take dower as against a lien for the purchase money. Mackieth v. Simmons, White $ Tudor’s head. Cas. in Equity, 247;

    As the bill shows that Scott and George Bayne got an absolute deed for the lands, this equitable lien can not, on their death, be enforced against the creditors of their estate. Bayley v. G-rccnlicf, 7 Wheat, 46, 50.

    Clark, Williams & Martin, also for appellants.
    The first objection wo make is, that the decree is against the defendants below, for the amount of the purchase money. It is clear that no decree could be entered, except for the sale of the lands, and against Thorn, as administrator.

    It is clear that the proceedings in the probate court, to obtain an order of sale of the lands, were irregular; and that the administrator, on making the sale, did not comply with the order of the court.

      No title passed to the purchaser because the deed, as exhibited, was not executed and acknowledged by the administrator, as such — the execution, "&c., being in his individual character.
    The bill fails to allege any authentication of the claim against the estate of Thorn’s intestate. Secs. 107-8, eh. 4i Dig.; l.!¡. Ark., 337; 31 id., 519.

   Clendenin, J.

This was a bill in equity, brought by the appellee, against' the appellant and the heirs of Gr. W. and Scott Bayne, to enforce a vendor’s lien.

We le,arn from the record in this case, that, prior to the year 1859, T. F. Ingrain was the owner of lands in Jefferson county; that he died intestate, and that administration of his estate was granted to B. F. Ingram, who, in the course of his administration, applied to and obtained from the probate court an order to sell the lands of his intestate; that, in pursuance of the order, he sold 720 acres of the land to Gr. W. and Scott Bayne, for the sum of $6,000, who paid $2,000 in cash, and executed their two promissory notes for $2,000 each, payable at one and two years, with 10 per cent, interest; that the administrator then executed and delivered a deed to the purchasers, and reported his- proceedings to the probate court, where they were approved; that the said Gr. W. and S. Bayne and the said B. F. Ingrain then died, and that Alexander H. Ingram, the complainant in the bill, was appointed administrator de bonis non of T. F. Ingram ; that, at the time of the purchase of the lands, Gr. W. and Scott Bayne took possession of them, and continued in possession until their death, and that the widow of Gr. W. Bayne, and his children, continued in posses? si on until the intermarriage of the widow with B. II. Thorn,, the administrator de bonis non of Gr. W. and Scott Bayne, and that the said Thom and wife, and children of G-. W. Bayne,: are still in possession ; that the complainant, as administrator, &e., ibund tlio said notes, with' other effects of his intestate, and that they have never been paid, nor was any other security taken, and that he has an equitable lien on the lands for the payment of the notes. The proper exhibits are referred to, and attached to the bill.

.Richard Thorn, in his own right, and as administrator of G. ~W. and Scott Bayne, Elizabeth Thorn, and the children of G. W. Bayne, and the non-resident heirs of Scott Bayne, are made defendants to the bill, and are served with process.

Thorn and wife answer the bill, and admit the purchase of the land, as charged, by G. ~W. and S. Bayne; the execution of the notes for the unpaid part of the purchase money; that Thorn is the administrator de bonis von of G. W. and Scott Bayne, and that G. AV\ and Scott Bayne died in possession of the lands; that Elizabeth Thorn, now the wife of .Roland Thorn, was the widow of G. W. Bayne, and as such was entitled to dower in all lands of which said G. ~W. Bayne died seized and possessed. They deny the right of complainant to enforce an equitable lien for the unpaid purchase money on said lands, to the exclusion of the dower right of Mrs. Thorn, and demur to the bill for wrant of equity upon its face, and because the complainant endeavors to obtain a decree for the sale of the said lands to the exclusion of the dower right of the said Elizabeth Thorn. .

A guardian, ad litem, was regularly appointed for the minor heirs of G. W. Bayne, who filed his answer. The non-resident defendants, heirs of Scott Bayiie, interposed no defense. Replications were filed to the answers, and the cause set for hearing. At the hearing upon the bill, answers, replications and exhibits, the court rendered a decree for the complainant, pro ronfesso, against the non-resident defendants, and against the other defendants, finding the amount due and giving judgment against “the defendants” for the amount of the notes and interest and costs, and that unless by a day named in the decree, the amount found due was paid, the lands should be sold; and a special cominission was appointed to sell the lands for cash, to pay the amount decreed, and to hold the remainder for use of defendants, subject to the order of the court. .From this decree, Thorn and wife appealed.

The first question presented for our consideration by the answer and demurrer, and by the assignment of errors, is, has the widow a right of dower in lands purchased and occupied by her husband, for which a deed of conveyance has been executed and delivered, -whore the’purchase money remains unpaid?

It is now the well settled law that the vendor of land has in equity a lien for the purchase money, not only against the vendee himself and his heirs and other privies in estate, but also against all subsequent purchasers having notice that the purchase money remains unpaid, though there is no special agreement that there shall be a lien upon the land for the purchase money, and notwithstanding the vendor conveys the land by deed, and takes the note or bond of the vendee for the purchase money, 14 Ark., 634; 18 Ark., 142.

Section 1, chapter 60, Title, “Dower,” Digest of Arkansas, declares that a widow shall he endowed of a third part of the land whereof her husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.” According to the statements of the bill in this case, the husband’s estate in the land was subject to the equitable lion of the vendor, for the unpaid purchase money, and he did not have such an estate of inheritance in the land as would entitle the widow to dower. The land was subject to the lien of the vendor -while in the hands of the purchaser, his heirs and other privies, and although a deed was executed and delivered, and the husband was the personal owner of the land, yet he was not, so far as the vendor was concerned, the substantial owner; because, until the land was paid for, there was an existing equity to which the land was subject, and while that equity continued, the widow could not bo endowed. The lien of the vendor is a kind of equitable mortgage, inherent in the contract of sale, and qualifying tlie ownership of the vendee, whether that ownership be legal or merely equitable. It is paramount to the right of the vendee, and of all succeeding to his interests, in the whole or in part, by operation of law. In equity, the vendee is not the owner, adversely to the lion of the vendor, but is treated as a trustee for him, until payment of the purchase money.

In a ease, upon a point similar to the one now before us, the court of appeals of Virginia, say: “A wife’s right of dower is an emanation from the ownership of her husband, and subject to all its qualifications — though not to his alienations or incumbrances during the coverture, -without her consent, declared in the mode proscribed by law. Her right is dependent upon his, as existing at the inception of the coverture, oras acquired by him during its continuance. If' ho mortgage his land before marriage, her claim to dower is subordinate to the mortgage, and, if that lie foreclosed, is completely divested. So if she unite with the requisite solemnity in his mortgage, made after the marriage, the effect of a foreclosure is the same. If, during the coverture, he purchase mortgaged land, her title, like his, is subject to the incumbrance, and the foreclosure of it destroys both. The result is the same -where an incumbrance is created by the very act of purchasing; for if the purchase money be unpaid, and not secured, an equitable mortgage is embodied in the transaction itself, and if that be foreclosed by a sale of the property, under the decree of a court of equity, the wife’s right of dower is completely extinguished.” 2 Robinson’s Va. Rep., 405. See, also, 1 Devereux, 195; 2 Bland, 242; 3 Paige, 513; 1 B. Monroe, 257.

It is urged by the appellants’ counsel that, admitting the law to be as -we hold it, yet by virtue of the 5th section, chapter CO, Title, “Dower,” Digest of Ark., the widow’s right to dower in the land, in this case referred to, is asserted and enforced by the statute. Wo can not agree to the construction given by the counsel, and think that the section of the law referred to, so far from qualifying the knv as we have decided it, substantially asserts the same principle. The section of the law referred to, is: “ Where a husband shall purchase land during coverture, and shall mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands, as against the mortgagee, or those claiming under him, although she shall not have united in such mortgage; but she shall be entitled to dower as against all other persons.”

It is urged by the counsel for the appellants, that the deed referred to in the bill, and exhibited with it, conveyed no estate, because,'1 it is not signed or acknowledged by the grantor in his representative character as administrator. The averment in the bill is that: “ The said Benjamin F. Ingram, as administrator, as aforesaid, executed and delivered to the said G-. W. and Scott Bayne, a fee simple deed to the above described lands.” The deed exhibited, after the proper recitals, says: “ Therefore, I, Benjamin F. Ingram, as the administrator of the estate of Thomas F. Ingram, deceased, do hereby convey,” &e., and the attestation is: “In testimony, I, Benjamin F. Ingram, as the administrator of T. F. Ingram, deceased, have hereunto set my hand and seal,” &c., and is signed, “ B. F. Ingram, [seal.]”

This execution and acknowledgment of the deed, with its delivery, we think, was sufficient to convey, and did convey, the title to the land to the purchasers.

Another objection urged to the decree is, that the sale of the land made by the administrator did not agree with the order of the probate court. This objection we do not consider as affecting the decree. The order of sale was made by the probate court, and after the sale it was reported and confirmed. This court has heretofore decided that the sale of the real estate of a deceased jDerson, made under the order of the probate court, conveys a legal title, though the proceedings may have been irregular, such court having competent jurisdiction of the subject-matter. Bennett, et al., v. Owens, et al., 13 Ark., 177; Jacoway v. Sturdy, 19 Ark., 499.

Again, it is argued for the appellants, that the court below erred in granting a decree against the infant defendants upon the bill, answers and exhibits, without other proof to sustain rhe allegations of the bill. -This objection we cannot consider, as the defendants, whom the decree in that respect affects, are not before us, no appeal having been taken by their guardian, ad litem, who was no doubt satisfied with the decree. Ringgold v. Stone, et al., 20 Ark., 225.

Another objection taken against the decree, is, that the judgment for the amount of the notes and interest, given for the land, is against “the defendants.” This objection, we think, is well taken. The judgment in the decree for the amount of the notes and interest, clearly, should not be against Roland II. Thorn, in his individual character, or against the infant heirs of Geo. ~W. Bayne, or the heirs of Scott Bayne,' all of whom are defendants to the bill, but should have been rendered against Roland II. Thorn, in his representative character as administrator A; bonis non of G. W. and Scott Bayne, in which character he is made a defendant. And, for this error, so much of the decree as renders judgment against the defendants for the amount of the notes and interest, must be reversed, and a decree must bo rendered in this court against Roland H. Thorn, as administrator de bonis non of the estate of G. ~W. and Scott Bayne, in favor of the complainant, for the amount of the notes and interest, and will be certified to the circuit court; and the residue of the decree in this case will be affirmed. The costs of the appeal in this court will be adjudged against the appellee, and the costs of the case in the court below will be against the appellants, and the circuit court in chancery will proceed to take such steps as will be necessary to carry this decree into effect.


author: Walker, C. J.

text:
    Coons v. Throckmorton.
    The recital in the record that constructive notice to a non-resident defendant in chancery has been given by publication is sufficient, since the act of February 17, 1859, though 'evidence of such publication has not been filed. But in such case it must affirmatively appear that an affidavit of the non-residence of the defendant was filed, or the publication will not affect such defendant with notice.

      Appeal from Phillips Circuit Court in Chancer//.

    Hon. James M. Hanks, Circuit Judge.
    English & Wilsiiire, for the appellant.
    The decree should be reversed, because the appellant was not served with process actual or constructive. No subpoena was issued against him; nor was there airy affidavit filed stating that he was a non-resident of the State; and without such affidavit, neither the clerk nor court could make an order of publication, (Gould’sDig., ch. £8, sec. 18; Saffold v. Saffold, et al., 11¡. Eng., 408), and a publication made without affidavit is not legal notice to the defendant.
    Even if the order of publication had been made upon proper affidavit, there is no evidence of record that it was ever published according to law. Prodie, etal., v. Skelton, 6 Eng., 1£0.

    Watkins & Rose, for appellee.
    The record recites that Coons was duly notified of the pend-ency of the suit. This, under the act of February 17, 1859, is sufficient for this court; See Pose’s Dig., p. 139, sec. 88. .

   Walker, C. J.

The only question presented for our consideration is, as to the sufficiency of the constructive notice attempted to be given io the appellant Coons, against'whom a decree was rendered upon the state of case made by the bill, for want of answer or defense by him.

Although there are several other defendants to the bill, it is evident that he was the principal party defendant in interest. In the bill he is alleged to bo a resident of the State of Alabama- The solicitors for the complainant made an affidavit setting forth that several of the defendants, naming them, were non-residents; but the defendant,Coons, was not named as one of them. Upon this affidavit, the clerk," in vacation, made an order, reciting that it appeared, from an affidavit appended to the bill, that defendant Coons, and other defendants, were non-residents, and notice bo given by publication, &c. No subpoena was taken out against Coons, nor was he served with process to appear; so that, if in fact Coons was a non-resident, there is no evidence of it apparent upon the record, except the statement in the bill that he resided in the State of Alabama.

The only evidence that the order was published as required by law, is the statement upon the record that the defendant Coons, with the other defendants, “ although duly notified of flic pendency of this suit by publication, as required by law, failed to appear,” &c. No order of publication is found upon the record before us; nor is there any evidence that publication was made, unless the record statement bo taken as such.

The rule, as laid down in Brodie v. Skelton, 11, Ark., 129, and repeatedly since approved, is, that where a decree is taken upon constructive notice, the court shall see that all the requirements of the statute, whereby the defendant is deemed in law to be affected with notice, have been substantially complied with. Under this rule it was held, in Brodie v. Skelton, that it was not sufficient that the record state that publication had been made according to law, but the evidence of that fact must appear upon the record. But, by statute passed since those decisions were made, the recitals in the record that constructive notice has boon given, are made evidence of such fact. Acts. approved, February 17, 1859. The objection to the sufficiency of the notice upon this ground, therefore, is not well taken; but this statute does not, in our opinion, cure the objection that the order of publication against the appellant, Coons, was made without the affidavit required by law. The statute, sec. 13, ch. 88, Dig., provides : “ If any complainant, or some person for him, shall file with the bill or petition' an affidavit that part or all of the defendants are non-residents of the State, the court, or clerk thereof in vacation, shall make an order,” &c. In this instance, it affirmatively appears of record that ím affidavit that the defendant, Coons, was a non-resident, was filed. Iiis name is not mentioned with others in the affidavit. No process was sued out against him, and, therefore, for aught that appears, he may all the while have been a resident of the State.

In accordance with the rule' laid down in our previous decisions, we must hold the constructive notice, in this case, insufficient to affect the defendant with notice, and that it was error to take the bill as confessed and proceed to final decree against him without notice. For which error, the decree of the Phillips circuit court, sitting in chancery, is reversed,.and the cause remanded, with leave to the appellant to appear and offer such defense as he might have done under the rules of practice in chancery proceedings at the return term of process, after due service upon the defendant, and for further proceedings therein, according to the rules and practice in such cases, and the rights of the parties.


text:
    Lewis and wife v. Moore.
    The declaration, in a suit by tlie husband and wife, must distinctly disclose tlie interest of tlie wife in tlie subject-matter of tlie suit.

      Appeal from Gravford Circvif Court.

    II011. Thomas Boles, Circuit Judge.
    Jesse Turner, for appellant.
   Walker, C. J.

This is an action of replevin, brought by Lewis and wife against Moore. The title or interest which the wife had in the property in suit, if any, is -nowhere disclosed. It is simply alleged in the declaration that the plaintiffs delivered the property to the defendant, to he by him, thereafter, re-delivered to them, which defendant refused to do, to their damage, &e.

A demurrer was sustained to the declaration, because it disclosed no separate interest or estate of the wife in the property. This, we think, should have been shown; because, in the absence of such interest in the wife, she should not have been made a party to the action. It is only when the wife is the meritorious cause of action, or has an interest in or title to the property, that she should he joined with her husband in the suit; and in such case the declaration must distinctly disclose her interest, and show in what respect she had an interest in or is the meritorious cause of action. 1 Chitty Pl., p. 30; Saunders’ Pl. and Ev., vol. 2, p. 770. The declaration, in this case, makes no such disclosure, but is, in all respects, such as would be proper if the plaintiffs had been joint owners of the property. The demurrer was, therefore, properly sustained.

Judgment affirmed.


text:
    Jacks v. Phillips County.
    A party contracting with the county court to make a plat of the county, marking thereon the unassessed land subject to taxation, and receive as compensation a portion of the taxes thereby collected, is not entitled to any compensation until he shall have performed his part of the contract, and money shall have been collected for taxes on the lands thus brought upon the' tax book.

      Appeal from Phillips Circuit Court.

    Hon. James M. Hanks, Circuit Judge.
    Iíanly, for the appellant.
    s The county court has power to enter into the contract, and the appellant to compensation for his services.
   Walker, C. J.

The appellant, Jacks, made a written proposition to the county court of Phillips comity, in which he proposed to 'plat the county, and mark upon the plats the lands assessed, and thereby find the lands not assessed, for half the amount of taxes collected upon the lands thus placed upon the hooks, which was accepted by the court. At a subsequent term of said court, Jacks reported to the court that there were 126,986^%-acres of land not on the assessment books, but that 2,400 acres of this amount were lands improperly described; in addition to which were a few tracts which belonged to the United States, and to the State of Arkansas; that on some of the tracts no tax had been paid for years, a list of which, with computations of interest, he would furnish before the books were ready for the collector. This is the record statement; hut the report itself, showing what particular tracts had liccn unassessed,if any, does not appear. Upon consideration of which report, it was ordered that Jacks proceed to complete such assessment, to give notice to all persons whose lands had not been assessed, to assess them by a given day, and that he prepare a list of all-such lands, for the inspection of all persons concerned.

At the April term, 1867, Jacks presented his account to the county court, as follows:

The county of Phillips,

1867. In account with Thomas Jacks.

May 1. To compensation for service in making out list of lands, not assessed by the assessor, under the order of the county court of this county, at the April term, 1866, - $2,284 26

In addition to the written proposal of Jacks and the orders of court, which wo have stated in substance, Jacks also offered in evidence a list of lands headed: “List of lands on which taxes have been paid — taxes assessed in the name of unknown persons,” followed by a list of lands, and opposite each tract a sum of money, which, in view of the statement in the caption, we suppose to represent the amount of taxes paid on each tract, amounting, by computation, to the sum of $13,398-^,• and certified, as follows:

“ I, Thomas M. Oldham, collector for the county of Phillips, in the State of Arkansas, do certify that the above .is a correct abstract from the tax book of 1866, now in my hands as collector.

••(liven under my hand, this 14th day of May, A. D. 1867.

“ T. M. OLDHAM, Collector of P. CP

Which was all the evidence adduced.

The court rejected the claim, and rendered judgment against -lacks for the cost, to which he excepted, and appealed to the circuit court.

The circuit court, in accordance with the practice laid down in Carnall v. Crawford County, 11 Ark., 695, proceeded to inspect the record sent from the county court, and finding no error in the proceedings and judgment, affirmed it, with costs; from which judgment Jacks has appealed to this court.

The proposal made by Jacks to the county court, and which was accepted, was, that Jacks was to receive for his services one-half of the money collected off of the lands which he might ascertain to have been omitted in the late assessment of the county taxes ; and this right-to compensation depended upon the performance of his contract, by ascertaining the omitted lands and bringing them upon the assessor’s list, and that money had been received in payment of taxes on the lands so ascertained and assessed. Then, and not until then, would he have a right to claim of the county one-half, of the money collected ; because his contract was conditional, and his right to compensation depended upon his performance of his contract, and the collection of the money.

According to his report, as stated upon the county court record, there were 126,936T3/g- acres of land, ascertained by him to have been unassessod, less 2,400 irregularly assessed. No plats were made out, nor unassessed lands returned, so far as appears from the evidence. It appears from the order of court-, at that term, that the services of Jacks were incomplete, and he was ordered to complete such assessment, and perform other duties, none of which were ever performed, so far as was shown to the court.

The list of lands upon which taxes were certified by the collector to have been paid, are not shown to be the unassessed lands, ascertained to be such, and brought upon the assessment list by the appellant, Jacks. Until his contract with the court was performed, and it was made to appear that money was collected upon the lands so brought upon the assessment list, the appellant had no claim whatever to compensation from the county. The claim for services was, therefore, properly rejected by the county court, and the judgment of the circuit court, affirming that of the county court, was correct.

Affirmed.


author: Walker, G J.

text:
    Peters v. Hobbs.
    Due diligence is, in all oases, required of the holder of a note, in making demand of payment at the time and place of j>ayment, and in giving notice to the indorser of non-payment, in order to fix an unqualified liability upon him ; but what constitutes due diligence depends upon the circumstances attending each particular case.
    The existence of war, and the military occupation of the country where the parties live and where a note is payable, whereby there was “a virtual interruption and obstruction of the ordinary regulations of trade,” hindering the holder from presenting a note for payment, is a sufficient excuse for failure to do so during all the time such hindering cause exists; and so, where, after due search and inquiry, the maker cannot be found; and if the same cause prevents the party from giving notice to the indorser, he is excused.
    "When the causes which excuse presentment, demand and notice cease to exist, the duty, on the part of the holder of the note, with all due diligence, to make presentment, immediately arises ; and if he fail to do so, and on non-payment, to give notice, the indorser is.discharged.
    Whether the circumstances, which excuse presentment of a note for payment, existed, and when they ceased to exist, are questions of fact to be ascertained by the jury from the evidence.
    The protest of a note is evidence under the x>lea of non-assumpsit and issue ; and the certificate of the notary that he had mailed notice to the indorser is prima facie evidence of the facts stated.
    Where the indorser specifies his place of residence in conjunction with his indorsement, the notice of protest may be directed to that place, and it devolves upon him to show that he did not reside there, or that was not his post office.
    Under the general issue to the i>lea of non-assumpsit, proof of demand and notice at a time subsequent to the day of payment maybe made, though the allegation in the declaration is, that on the day of payment “ search and inquiry were made,” and the parties could not be found — the real question being one of due diligence, and time being immaterial.

      Error to Phillips Circuit Court.

    Hon. James M. Hanks, Circuit Judge.
    Watkins & Nose, for plaintiff ;n error..
    The liability of the indorser in this case depends on two things, having been rightly done — demand of payment, and notice of non-payment. Holder must use due diligence, for the indorser is only responsible after default by the maker. 3 John. Cas., 76; 3 Caine, §44- Merely because the bank — the place where the note was payable' — had removed, with its assets, was no -reason why the demand should not have been made long before it was, and notice of non-payment thereupon given. Demand should be made at the time note is due ; if demand cannot be made, notice should be given then. 1 McCord, 339. Though the bank, or shop, be shut, presentment there, or to the parties personally, must still be made. 1 Parsons on C.y 335, and n. [/<:.] Indorsers are discharged by a neglect to demand payment at the specified place, lb., 337, note (v); Story on Prom. Notes, sec. 330, n. 1; Edwards on B., 483, 489,490. Though the bank is discontinued, the demand must be made there. See Edwards on Bills, 498. And if the rule be relaxed as to demand, notice must be given. Parsons on Con., 336; Story on Prom. Notes, sec. 503, sec. 353.

    The memorandum by the notary, that notice of protest had been given was not an official act, so as to give it the dignity of evidence. 9 N. II., 558; Grould’s Big., 807, sec. 9. JThe contents of this notice should have been proved by parol. IS John., 407. Nor was it shown that the notice was directed to the post office of the indorser, or any post office. Story on Prom. Notes, sec. 341 to 347.

    Even if the holder were excused from presentment and demand, at the time the note fell due, there can be no good reason why they were not made on the 13th June, 1865, and notice immediately given to the indorser; for on that day the insurrection was declared to be suppressed, and commercial intercourse was restored.
    The declaration alleges an attempt to present the note on the right day, and failure, and on that day notice to Peters. On the trial it was attempted to prove a demand and notice át a day long after. Though it is not necessary to aver the precise day of demand and notice, (3 Conn., 478,) the question here is whether, oil this averment of failure to make a demand for the canses stated, proof will he lot in of presentment and demand at any other day subsequent.
    The question of diligence (when the' facts are not disputed) is a question for the court. 6 Mete., 290; 3 Shej)., 263; 6 8. <f-M., 255; 6 Kng., 504; 14 -Ark., 336; and it is submitted that the evidence in this cause does not show due diligence either in making the demand or giving notice.
    Garland & Nash, for the defendant.
    The evidence clearly shows that in consequence of war existing when the note fell due, there ivas a virtual interruption or obstruction of trade between the place where the note was made payable and the residence of the defendant; and it is equally clear, from the authorities, that in such case the plaintiff was excused, from making presentment and demand and giving notice, from, payment. Story on Prom. Notes, 205, et. scq., 237, 257, 264; Kent, 66; 4 Mass., 46; 4 Serg. P., 480; 1 Watts Serg., 126, and authorities cited.

   Walker, G J.

Ilobbs brought his action of assumpsit against John 33. Cobb, maker, and George 33. Peters, payee and indorsor of a promissory note, payable at the branch bank of the Planters’ 33ank, at Memphis, Tennessee, on the 16th day of January, 1863. The note was indorsed “George 33. Peters, Walnut 33end, Ark.” A demurrer was sustained to the first count in the declaration, and upon the second count issue was taken upon the plea of non-assumpsit. A discontinuance was entered as to Cobb, the maker, who had not been served with process, and upon a trial before a jury, a verdict and judgment thereon -were rendered against Peters, the indorser, for the amount of the note and interest thereon.

The defendant, Peters, has brought the case before us by writ of error, and contends that he is discharged from his liability, its indorser, to pay the • note, by the neglect and omission of the plaintiff to demand payment of Cobb, the maker, and in default of payment to give him, as indorser, notice of such non-payment.

As a general rule, to charge the indorser, a demand of payment should be made of the maker, at the place where payment is to be made, on the day on which the note fell due, and if not paid, notice of non-payment given to the indorser without delay. Due diligence, it seems, is in all cases required of the holder, in this respect, in order to fix an unqualified liability upon the indorser. What constitutes due diligence depends upon the circumstances attending each particular case. The rule seems to be founded upon commercial convenience and necessity. Mr. Story says: “ The object in all such cases is to require reasonable diligence on the part of the holder, and that diligence must be measured by the general convenience of the commercial world, and the practicability to accomplish the end required, by ordinary skill, caution and effort. Due presentment .must be interpreted to mean, presented according to the custom of merchants, which, necessarily, implies an exception in favor of those unavoidable accidents which must prevent the party from doing it within the regular time. Story on Prom. Notes, 319.

Among the several causes which will excuse a failure to make presentation for payment at the time the note falls due, are “ the prevalence of political circumstances, which amount to a virtual interruption and obstruction of the ordinary negotiation of trade; the breaking out of war, and the military occupation of the country, where the parties live, or where the note is made payable, which suspends commercial intercourse, or the utter impracticability of finding the maker, or finding his place of residence.” Id.

'The plaintiff relies upon the existence of several of these causes as an excuse for having failed to present the note for payment when due, and there can be no doubt but that it is a sufficient excuse, when shown to exist, during all the time that such hindering cause exist; and to comply with the requirements of the law so soon as the hindering cause is removed, is due diligence. The excuse averred in the second count in the declaration, and upon which alone issue was taken, is set forth in the following language: “ And the said plaintiff avers that, afterwards, when the said promissory note became due and payable, according to the tenor and effect thereof, to wit: on the 19th day of January, 1863, diligent search and inquiry were made after the said branch of the Planters’ Bank of Tennessee, and after the said defendant, John B. Cobb, to wit: at Memphis aforesaid, and elsewhere to wit: at the county and State aforesaid, in order that the said promissory note might be presented and shown for payment thereof; but that the said branch of the Planters’ Bank, and the said John B. Cobb could not on such search and inquiry be found.”

To sustain this issue, the plaintiff gave the note declared upon and the assignment thereon in evidence, and also proved by the evidence of the cashier of the said branch bank, that lie, the witness, as cashier, left Memphis with the assets of the bank on the 28th day of May, 1862, and returned to Memphis with them in the month of September, 1865, and that said bank transacted no business during that time; and, also, by a witness, that he resided in Helena in January, 1863 ; that Helena was then held by the military forces of the Bnited States; that persons could not pass in or out of the lines, or ship goods without permits from military authorities; that witness was not in Memphis in January, 1868, but was there in December, 1862, and April, 1863; that Memphis was held by military authority just as Helena was; that the political condition of the country was such as amounted to a virtual suspension of the ordinary commercial transactions of the country; there was a mail carried between Memphis and Helena, but none along the river between those points; that boats could not land along the river between these points without permits. The plaintiff also offered in evidence against the objection of the defendant, the protest -made by a notary public, in the usual form and attestation, by which it appeared that he, as notary public, presented the note in suit at the old banking house of the branch Planters’ Bank, Memphis, and demanded payment thereof from D. A. Shepherd, cashier, and was answered that the said note would not be paid; that the said notary also made diligent search and inquiry for John B. Cobb, maker of said note, but could not find him, or any one who would pay said note. All of which was done at Memphis, on the 6th day of September, 1865, and that on the same day, he, as such notary public, directed a written notice of the instrument of protest to George B. Peters, at “ Walnut Bend, Arkansas,” and placed the same in the post office at Memphis, before the departure of any mail, postage paid. Upon this evidence, under the instructions of the court, the jury rendered their verdict in favor of the plaintiff.

In view of the state of case made by the evidence, we are satisfied that the holder of the note, the plaintiff, under the rules stated above, has shown sufficient excuse for not presenting the note for payment on the day it fell due, and thenceforward, during all the time in which, for any of the above enumerated causes, there was “a virtual interruption and obstruction of the ordinary negotiations of trade.”

But it is contended for the defendant that if, owing to the existing circumstances, the holder of the note should be excused for not having presented the note for payment when due, that, notwithstanding this, he should have given notice of non-payment to the indorsor.

It is true that due diligence is necessary, as well in giving notice to the indorser as in the presentment for payment, in order to fix upon the indorser a liability to pay the debt; and a failure to use due diligence, whether in the one or the other, would be as fatal to the recovery of the holder as against the indorser, as if neither of those prerequisites to his right of action had been complied with. But when the same causes which prevented the holder from presenting the note for payment, when it became due and payable, also exist to prevent bis giving notice of non-payment to the indorser, the holder is excused for having failed to do cither.

The case referred to, by the counsel for the plaintiff in error, to sustain the proposition assumed by them, (Executors of Price v. Young, 1 McCord, 309,) only supports their position to the extent that where there is an excuse which only relieves the holder of the note from the necessity of presenting it for pay - ment, but docs not extend also to the indorser, uotice must be given to the indorser, or he will be discharged from payment. In the ease of Executors Price v. Young, Bryor, the maker of the note, died before the note fell due, wherefore, presentment could not be made; but the indorser resided so near, that notice could have been given him in five hours. The court said: “ In some eases it is a question whether it is practicable to have given an earlier notice than that which is in proof, and this depends on the local situation of the parties, and the means of communication.”

But, in the case before us, so fan from an open communication, the same causes which prevented the presentation of the note for payment apply with equal force to the giving of notice of non-payment to the indorser, and the hindering cause extending alike to both, the holder is excused from the performance of either.

It is not contended for the defendant in the court below, that, conceding the causes which excused the plaintiff from presenting the note for payment when due, and from giving notice to the indorser of such non-payment, to have been sufficient at the time the note fell due, and so continued during the war, still there was a time from June until September, 1865, after peace was proclaimed, during which the plaintiff might and should, in the exercise of due 'diligence, have presented the note for payment, and if not paid, to have notified the indorser of the fact; and that, having failed to do so, the defendant, as indorser, is discharged from all liability to pay.

We have no doubt but that the plaintiff' was only excused from the necessity of presenting the note for payment at the branch bank at Memphis, when it fell clue, because of the hindering causes then existing, and which continue to be an excuse so long only as the cause of impediment existed: as, for instance, in case of the prevalence of cholera, or yellow fever, in a city or place of payment; during its prevalence, the holder of the note would not be required to peril his life, in order to make such presentment; but so soon as the epidemic had passed off, or so far subsided as no longer to endanger life, as the hindering cause had ceased, so, instantly, would arise a duty on the part of the holder, with all clue diligence, to make such presentment, and a failure to do so, and, if not paid, to give notice of such non-payment to the indorser, would as effectually discharge him from further liability to pay, as a failure to make presentment under ordinary circumstances would.

Whether such circumstances have intervened as will excuse the holder from presenting the note for payment at the time it fell clue, and wh%n they ceased to exist, are questions of fact to be ascertained from the evidence by the jury, as repeatedly held by the American courts. Jordan, use, v. Garnett, 3 Ala., 617; 15 Ala., 391; Laughlin v. Marshall, 19 Ill., 390.

The first instruction given by the court to the jury, at the instance of the plaintiff, the third instruction given at the instance of the defendant, and that given by the court upon its own motion, taken together, in substance, say to the'jury: If you find from the evidence that, at the day the note fell clue, a state of war existed, or that such political circumstances existed as amounted to a virtual interruption and obstruction of the ordinary negotiations of trade between Memphis and Walnut Bend, Arkansas, it is a sufficient excuse for not having presented the note at the time it fell due. And if you shall also find, ás soon after the removal of such cause as possible, such presentment and demand were made, such facts sustain the allegations in the second count, and they shall find accordingly, and, unless they so find, and the evidence agrees with the allegations in the second count, they must find for the defendant.

This is, in substance and effect, the instruction given by the court to the jury, which, when tested by the rules already announced as governing such cases, we think was properly given. Whether the facts, as disclosed in evidence, were sufficient to warrant the finding of the jury is another question, of which we will presently consider.

The first instruction asked by the defendant ivas properly refused. It would not have been proper in the court to instruct the jury that the plaintiff should prove that he made due pre sentment at Memphis on the day the note fell due, because, from the evidence, he was excused from doing so.

The second instruction asked by the defendant was also properly refused. The court had already given instruction as to what would excuse due presentment; but this instruction embraced these and every other cause enumerated by Story, in his ivork on Promissory Notes, many of which had no application to the case as made out in evidence, and were in this respect abstract and calculated to mislead .the jury. So far as it was applicable to the state of case, it was but a repetition of Avhat had already been given to the jury.

It is next objected that the circuit court erred in permitting the protest and notice to be given in evidence. No special cause of exception Avas pointed out. The protest and notice are in the usual form and mode of authentication. They were material and proper evidence under'the issue, and Ave perceive no objection to admitting the evidence to go to the jury. If objectionable, the objection should-have been pointed out, so that the plaintiff might have offered other evidence. Having failed to do this, even if there had been an objection which if pointed out would haA7e been sufficient to exclude the evidence, this court Avill not consider it. Blackburn v. Morton, et al., 18 Ark., 392.

The counsel insist that the notice, certified by the notary public to have been given, is insufficient. The statement of the notary is as folloAATs:

“ On the 6th day of September, 1865,1 directed a written notice of the above instrument of protest to Geo. B. Peters, Walnut Bend, Arkansas, and placed the same in the post office at Memphis, before the departure of any mail, postage paid.

“A. J. WHEELER, Notary Public, [seal.]”

To the sufficiency of this, counsel object, first, that the certificate of notice is not an official act of the notary, and therefore his certificate is not evidence. We think this objection is not well taken; first, because, if objectionable, the objection should have been taken in the court below. Had this been done, for aught that we can say, the plaintiff might have supplied other and ample evidence of notice; and second, because it is a part of the official duty of the notary public to give such notice, and of which his certificate is evidénce, prima facie, as expressly declared by statute passed February 25,1859.

It is' not objected by counsel that the notary does not certify that at Walnut Bend there was a post office, or the nearest post office to the defendant. Apart from the reason that this, like the other objection to the notice, was not pointed out in the court below, we do not think the objection well taken. “ Walnut Bend, Arkansas,” was the address given when the note was indorsed, and, in the absence of evidence to the contrary, we must presume that the defendant' continued to reside there. If such was not the case, or that was not the defendant’s post office, he should have shown it.

It is next objected that the evidence, if sufficient in other respects, was inadmissible under the second count of the declaration ; first, because proof of presentment and notice does not sustain the averment of an excuse for not having made such presentment; and secondly, that proof of demand and notice, on the 6th of September, 1865, does not sustain the allegation that search and inquiry was made for the bank and the maker of the note on the 19th of January, 1863.”

It is true that this evidence, at first view, would seem to vary materially from the allegation; but when we remember that, after all,the real question at issue is one of “ due diligence,” and that an excuse for not doing what the law would otherwise require to he done, is equivalent to having done so, the apparent objection is removed. The true question, as held by this court in Ex'r. of Ashley v. Gunton, 15 Ark., 415, is whether due diligence has been used by the holder, not whether he has given notice, or the indorser has received it. And the Supreme Court ->f the United States, in Decker v. Bealer, 10 Peters, 580, said: •' Where the holder or notary can not give the notice, or does not know where to direct it by mail, the inquiry is due diligence without notice.”

Thus considered, the averment in the declaration was, in effect, one of “ due diligence,” because inquiry and search were due diligence,” and whether the evidence was, that search had been ineffectually made to find the maker, or that duo presentment for payment had been made, with notice, due diligence would be proven. And so, too, with regard to time. The law required that the holder should present the note, when due, at the bank for payment; but if, owing to the existence of war, or other cause, the holder was excused from doing so, even for a series of years, if, after the obstruction is removed, he without unnecessary delay makes such presentment, and gives notice, it is, in legal effect, due diligence. The time laid in the declaration in such case is immaterial, because it matters not when the proof shows the act to have been done, provided it was done with due diligence. And so this court held, in Roselle v. Pennington and Jay, 24 Ark., 277, citing with approval Halleville v. Patrick, 14 Ark., 208. And in a ease much like the present, reported in 3 Cowen, 262, Williams v. Mathews, Woodward, J., said: “ The general principle is, that the holder must use due diligence, for the indorser is only responsible after a default on the part of the maker.”. The declaration was in the usual form, stating a demand on the maker, and a refusal to pay, and notice to the indorser. The court considered the precise question raised in this case, that is, if the maker, when the note falls due, cannot bo found, nor payment demanded of him personally, should not the declaration state this fact specially, instead of averring generally that the note was presented and payment refused. And it 'was held “ that evidence of due diligence in the holder to obtain payment, without an actual demand, will support the averment; and, under such a count, the plaintiff may give evidence of any diligence, which is deemed equivalent to actual presentation to the maker.” Thus, we think, it is clearly shown, as well upon principle as authority, that the court below did not err in permitting the evidence to go to the jury upon this issue.

The remaining question is as to the sufficiency of the evidence to warrant the verdict of the jury. There is certainly lacking much evidence, which, it seems, from its nature, the parties could, with proper diligence, have procured. Except the note upon which suit was brought, all of the evidence related to the question of diligence. The evidence abundantly shows that when the note fell due, both Helena and Memphis were in military occupation, and that, unless by military permission, all intercourse, trade and business were suspended,’ and that such was the condition of affairs for some time, but when it ceased is not shown. The jury could only take into consideration the facts in evidence before them; even matters of public history of passing national events could not be considered. Tliere was no total lack of evidence, however, upon this question. The jury have considered it in connection with the instructions given by the court, and have rendered their verdict, and under our oft-repeated decisions, where the question turns upon the weight of evidence, this court will not set aside the verdict and granea new trial. Hnder such circumstances, to do so would be to usurp the peculiar duty and office of the jury, and to sit in judgment upon the correctness of their conclusions from the evidence.

Judgment affirmed.


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    Robinson v. Meyer.
    It is within tlie sound discretion of the circuit court to permit a non-resident plaintiff to file a bond for cost pending a motion to dismiss for want of such bond.

      Error to Union Circuit Court.

    Hon. John T. Bearden, Circuit Judge.
    Carleton, for the plaintiff.
    Tlie filing of a bond for cost was a prerequisite to the institution of a suit by a non-resident. Sec. 1, eh. Ifi, Gould’s Dig.; 1 Ark., 21fi; 2 ib., 109; 10 ib., 169; 17 ib., SOS. The words of the statute are plain and unambiguous, that the non-resident shall file a bond for cost, and cannot be construed away. The cases heretofore decided by this court -were cases of amendments ; and it was ruled that it was in the discretion of the circuit court to permit amendments of defective process ; so, in Perkins v. Reagan, 11¡. Ark., 4-8, a defective bond for cost was permitted to be amended; but in that case the non-resident attempted to comply with the statute; in this, he lias entirely disregarded it.
   Compton, J.

The plaintiff’ below was a non-resident of the State, and omitted to file a bond for costs, as required by the statute; for which omission the defendant moved to dismiss the suit. Pending the motion of the defendant, the court permitted the plaintiff to file a bond for costs, and overruled the motion to dismiss ; to which the defendant excepted, and declining to make further defense, final judgment was rendered, and he brought error. Permission to file the bond for costs, under the circumstances, was matter within the sound discretion of the circuit court, and this court, adhering to former decisions, will not disturb the exercise1 of that discretion. Perkins v. Reagan, 14 Ark., 47; Campbell v. Garrett & Scudder, 24 Ark., 279.

Judgment affirmed.


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    Harris v. Flenniken, et al.

    Where an execution has been quashed on recognizance by the defendant, under the statute, the issuance of an alias execution and demand of the property liable to seizure under the first execution, by the officer, are conditions precedent to a right of action on the recognizance, and must be averred in the declaration.

      Appeal from Union Circuit Court.

    Hon. John T. Eearden, Circuit Judge.
    Askew, for the appellant.
    The breaches negative the performance of tlie conditions of the instrument in every particular. The condition itself shows that the execution therein recited never was lévied; and appellant insists that, upon the quashing of the supersedeas by the circuit court, his right of action was complete, without further action on his part; and it became the duty of the appellees to pay the debt, &c.
    Carleton, for the appellees.
    The declaration does not aver the issuance of an alias execution, nor a demand by the officer for the property. Sec. 82, ch. 08, Gould’s Pig. Clearly, the appellees had the privilege of discharging themselves, by surrendering their property in execution. Its issuance, and placing it in the hands of the officer, was a condition precedent, and without such averment, the declaration is fatally defective. 3 Arle., 307; ib., 34.7'; ib., 352.

   Compton, J.

This was an action of debt by J ohn G-. Harris, against William C. Flenniken, David G-. Flenniken, and James J. McElroy, as principals, and Josiah McElroy and Josiah M.M. Flenniken, as securities, in a recognizance for the quashal of an execution.

The recognizance and the condition thereof, as recited in the declaration, are such as the statute prescribes ; and the several breaches of the condition, assigned in the declaration, are substantially the same, and maybe stated as follows : That, at the April term, 1861, of the Union circuit court, the plaintiff recovered judgment against the said William C. Flenniken, David O. Flenniken and James J. McElroy, for the sum of $1,774^^, with interest and costs of suit; that, afterwards, on the loth of November, 1865, execution was issued on said judgment, and placed in the hands of the sheriff; -whereupon, on application of the said William C. Flenniken, David G-. Flenniken and James J. McElroy, the judge of said circuit court, on the 10th of March, 1866, made an order staying further proceedings on said execution, upon the applicants entering into the recognizance sued on, and directed the sheriff’ to make return of said execution accordingly; that afterwards, at the April term, 1867, the order staying said execution was by the court set aside and held for nought, and the plaintiff restored to all his rights as they existed prior to the granting of such stay; and that, notwithstanding the judgment of the court, setting aside said order, the said William 0. Flenniken, David G. Flenniken and James J. McElroy, defendants in said execution, did not, nor did either of them, pay to the plaintiff the sum of money recovered against them, as aforesaid, nor did they, or either of them, surrender in execution their property liable to be seized and. sold to satisfy said' execution, nor did the said Josiah McElroy and Josiah M. Ml Flenniken, their securities, do so for them, &c.

A demurrer to the declaration was sustained, on the ground that it Was not shown, in any of the breaches, that an alias execution was issued on the judgment recovered against the principal in the recognizance, and placed in ’ the hands of the proper officer, and that such officer demanded of the defendants the property subject to the execution, 'which had been returned unsatisfied, in consequence of the order staying the same.

The recognizance, as before remarked, .conforms, in all respects, to the statute (Gould’s Dig., ch. 68, sec. 82), which provides that the recognizance shall be conditioned, that, if the application to quash the execution be determined against the applicant, he will pay the debt, damages and costs recovered, or surrender in execution his property liable to be seized and sold under such execution, or that the securities wall do it for him; thus indicating two modes by which the recognizance may be discharged, and leaving it to the option of the parties bound by the recognizance to adopt either. It is not only the right of the parties, but may be also greatly to the advantage of the securities, that the property should be surrendered, rather than that the debt should be paid — especially where the value •of the property subject to the execution .is less than the amount •of the debt recovered; and yet, if the execution has been returned, and no alias issued, there could be no surrender of the property, in accordance with the terms of the recognizance, .and as contemplated by the statute. In such case; the issuance of an alias, and a demand by the officer in whose hands it is placed, are conditions precedent to a right of action on the recognizance, and must be averred in the declaration. Childers v. Foster, 3 Ark., 252. The decision of the court below was, therefore, correct, and the judgment is affirmed.


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    Harper v. The State.
    Or a trial for larcerny, tlie record states that the jury “were sworn and impaneled, and took their places in the jury box;” held, that the manner of swearing the jury was erroneous.

      Appeal from Sebastian Circuit Court.

    Hon. A. N. Hargrove, Circuit Judge.
   Clendenin, J.

Thomas Harper was indicted in the circuit court of Sebastian county for the crime of larceny; was tried by a jury and found guilty; he moved in arrest of judgment and for a new trial, and the .motion being overruled, he excepted to the opinion and judgment of the circuit court, and appealed.

The only question raised by the record in this case, is as to the manner of swearing the jury. The transcript of the record before ns says, the jury “were sworn and impaneled, and took their place in the jury box.” This manner of swearing a jury is clearly erroneous. This court, in the case of Patterson v. The State, 7 Ark., 59, have indicated the form of oath to be administered to juries in criminal cases, and that form should be complied with. In the case of Bell v. The State, 10 Ark., 540, this court also say: “The record shows that the jury were sworn only ‘to try the issue joined.’ This was irregular. They should also have been sworn 'to give a true verdict according to law and evidence. Had it been stated on the record that the jury were duly or regularly sworn, we would have presumed that the oath had been property administered.” See, also, the cases of Sanford v. The State, 11 Ark., 328, and Bivens v. The State, 11 Ark., 455.

For the error indicated in the manner of swearing the jury, in this ease, the case must be reversed and remanded to the circuit court, with directions to that court to grant the appellant a new trial.


author: Olendbnin, J.

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    Dougherty v. Edwards.
    The failure to entitle the declaration of the court, being only -ground of special demurrer at common law, is not cause of demurrer now.
    A declaration, though not drawn in accordance with the precedents, containing the necessary commencement, statement and breach, held sufficient.

      Appeal from Phillips Circuit Court.

    Hon. James M. Hanks, Circuit Judge.
    C. B. Moore and James C. Davis, for appellant.
    The declaration, or statement, shows who is plaintiff as plainly as the forms laid down in 1 Chit., 868; 8 Chit., 18 and 13, and in 5 Ark., 661. . The ancient forms and terms of pleading are not necessary, so that the facts plainly appear in the pleading. Gould’s Dig., ch. 113, sec. 60; 3 Chit., 1109-1111 and notes. Though brief and concise, the statement of the cause of action is amply sufficient. 3 Chit., sup.; see Roach v. Scogin, 8 Ark., 188; &nd Cravens, etal.,v. Milcham, 6 Ark., 815.

   Olendbnin, J.

This was an action of debt on a promissory note. The declaration is as follows:

“ State oe Arkansas, j gg

County of Phillips. Í

“John Dougherty demands of Charles A. Edwards money which he owes to and unjustly detains from him: For that on the 16th day of October, 1866, the defendant made his promissory note, now here to the court shown, and thereby promised, •seventy days after the date thereof, to pay to James 0. Ward, •or order, $520^0-, at the office of Gregory, Evans & Johnson, in Memphis, Tennessee; and the said Ward indorsed the said note, and delivered the said note, before any payment thereon, to the plaintiff, said indorsement being here to the court shown; whereby the defendant became liable to pay the said money to the plaintiff; yet he hath not paid thereof, to said plaintiff’s damages $550, and thereupon he brings his suit.”

To this declaration the defendant interposed a demurrer, assigning as special cause: 1st, said declaration is not entitled to the circuit court of Phillips county; 2d, said declaration charges that the defendant became liable to pay the said sum of money to the plaintiff, but does not show who is the plaintiff. The demurrer was sustained, and final judgment being rendered for the defendant, the plaintiff appealed.

The first cause assigned in the demurrer was only ground of special demurrer at common law, and nothing which was only cause of special demurrer at common law can now'be specially assigned as cause of demurrer. Stone v. Bennett, et al., 4 Ark., 73.

We cannot see the force of the second cause assigned. The declaration, although not drawn in accordance with the established forms and precedents, yet contains the necessary commencement to show who is the plaintiff, the statement to show the contract, and the breach to show the non-payment, and, containing these essentials, was a sufficient declaration; and the circuit court, in sustaining a demurrer to it, therefore erred ; and for that reason the judgment of that court is reversed.


author: Walker, Cl J.

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    Reagan v. Irvin.
    It is error to proceed to trial without a replication to the plea of set-off, and this, though the record states that the jury were sworn to “try the issues,” for there was none to the plea of set-off.

    The omission to file an attachment bond, as required by the statute, is matter in abatement, and is waived by appearance and plea to the merits.

      Appeal from Washington Circuit Court.

    Hon. William Story, Circuit Judge.
    Watkins & Rose, for appellant.
    No bond was filed in this case by the plaintiff, and for this reason the whole proceeding is unauthorized and without warrant of law. Didier v. Galloway, 8 Ark., 501; 5 Ark., 458. An attachment issued without the bond is absolutely void; 4 8. £ M., 683; and is not remedied by appearance and jileading to the action. 3 Hovoard (Miss.), 669; 8 B. Mon., 80.

    J. D. Walker, for appellant.
    The want of a replication to appellant’s plea of set-off is a defect that is fatal, and is not cured by verdict. McMechan v. Hoyt, 16 Ark., 808; Taylor, et al., v. Coolidge, 17 Ark., 456. This ease differs from Dorris v. Grace, 34 Ark., 836, in which there was an issue, though informal. ,
    Gregg, for appellee.
    The appellee submits that a formal replication to appellant’s plea of set-off is not necessary, if the record shows that a trial was had on that plea; and the record does show that the trial was had on more issues than one, whilst there were but two pleas.
   Walker, Cl J.

The appellee, Irvin, brought his action of assumpsit, by attachment, against Reagan, in the Washington circuit court. Reagan appeared and filed pleas of inm-assumpsit and set-off, to the first of which there was a joinder, but no replication was filed to the plea of set-off. The case was submitted to a jury, who, as the record states, wore sworn to “ try the issues joined,” &e. The jury rendered a verdict for plaintiff, upon which judgment was rendered against Reagan, who has appealed, and in this court contends that the jury could not have been sworn to try an issue upon the plea of set-off, because no issue had, in fact, been proved, and, consequently, none was before them for trial; and that the verdict and judgment were erroneous.

The question thus presented was considered and settled by this court, in Cole v. Wagner, 2 Ark., 154, and reaffirmed and approved in Stone v. Robinson, 9 Ark., 553; Taylor v. Coolidge, 17 Ark., 456; Williams v. Perkins, 21 Ark., 19; and Fesmire & Stone, ads., v. Brock, decided at the present term of this court; where, in an action of assumpsit, pleas of non-assumpsit and limitation were filed, and to which there was neither joinder nor replication, this court held that it was error to proceed to trial without a replication to the plea of limitation. \

Tbe ease before iis is a stronger case than any heretofore presented. If the omission had been as to the joinder to the plea of non-assumpsit, after verdict the error might be considered as cured; or even where a idea concludes with a verification, to which there is an informal joinder, as held in the case of Dorris v. Grace, 24 Ark., 326; if, upon the whole record, it appears that the informal issue was treated by the parties as sufficient, and under which they had the full benefit of their evidence, and that such evidence wholly failed to sustain the plea, and thereby showing that no injustice had been done the defendant, under the rule, as laid down in Sweeptzer v. Gaines, et al., 19 Ark., 96; and Tatum v. Tatum, id., 199; this court refused to disturb the verdict. The plea of set-off, filed in this case, was in the nature of a cross -action. In Robinson v. Mace, 16 Ark., 100, this court said the plea of “set-off contains a sort of new case, brought for the first time by the defendant against the plaintiff, * * * he not only undertakes to defend against a claim presented against him by the plaintiff, but he, also, in some instances, attempts to recover against him by producing an entirely new case, one which has no connection with the one sought to be enforced against him.” And in the case of Rotan v. Nichols, 22 Ark., 244, Mr. Justice Compton cites, with approval, Desha’s exrs. v. Robinson, 7 Ark., 228, and holds that the same strictness is required in a plea of set-off as in a declaration.

This plea of set-off', then, was, in effect, a declaration against the plaintiff', intended not only as an answer to the complaint or demand of the plaintiff' against him, but also the setting forth a cause of action against the plaintiff, upon which, if sustained by evidence, final judgment would be rendered, not only in a bar of recovery upon the case made in the plaintiff’s declaration, but also for judgment against the plaintiff, upon the cause of action set up in the defendant’s plea of set-off. It is evident, therefore, that it was as fatal to the plaintiff’s recovery to leave this plea unanswered as it would have been to the- defendant had he failed to make answer to the plaintiff’s declaration. In either ease, a cause of action stands unimpeached.

It is true, as contended for the appellee, that the record shows that the jury were sworn to try the issue; and if the verdict-had gone a step further, and shown that replications had been filed, the suggestion might have been entitled to consideration; but the record makes no such statement, nor is it contended that there is any omission in the record to state the facts fully. It was manifestly erroneous to submit the case to the jury without a replication to the plea of set-off Nothing is to be inferred in favor of the jury upon the issue, because there wras no issue. The evidence is not before us. The case stands upon tlie error apparent upon tlie face of tlie record, and is sucli as is not cured by our statute of amendments, under the most liberal construction we have given it.

The other assignment of error was, in its nature, matter in abatement, and, if taken in proper time, would have been good ; but ivas waived by the appearance of the defendant and his pleas to the merits of the action; but, after a plea to the merits, it is too late to object that no attachment bond had been filed, as required in such cases by statute.

But, for the first error, the judgment must be reversed, and the cause remanded, with leave to the plaintiff to demur or reply to the defendant’s plea.

Judgment reversed.


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    Berry v. Elliott.
    Tlie rule adhered to, that where there is a conflict in the evidence, and the evidence is sufficient to sustain the verdict, this court will not reverse the judgment of the circuit court refusing a new trial.
    A new trial will not be granted on account of newly discovered evidence, where such evidence is but cumulative and not likely to change the verdict.
    Judgment reversed where hearsay evidence was permitted to be given, though there was other legal evidence to the same point.

      Appeal from Independence Circuit Court.

    Hon. Richard II. Powell, Circuit Judge.
    Baxter, .Byers & Cox, for appellant.
    Watkins & Rose, for appellee.
   Walker, C. J.

Berry brought his action of replevin against Elliott for a horse. The case was submitted to a jury, upon the issue of non ccpit, and property in the defendant, who, after having heard the evidence, found a verdict for the defendant. The plaintiff moved the court for a new trial, which motion was overruled; exceptions were taken, and the case brought into this court by appeal.

The material grounds for a new trial are: first, that the jury found contrary to evidence; second, that the plaintiff, since the trial, had discovered important testimony, which he can upon a new trial obtain; and third, that the circuit court erred in permitting certain evidence to go to the jury over the objection of the plaintiff.

The first ground of objection is not well taken. Without recapitulating the evidence, it may suffice to say, the horse in controversy was, according to the testimony of six or eight witnesses, the same horse owned by the plaintiff and forcibly taken from him in the fall, or first of the winter, of 1863. On the other hand, it was as clearly proven, by nearly or quite as many witnesses, that the horse in controversy, in the year 1862 and-1863, was in the actual possession of and was the property of one Davis, who, in the fall of 1863, sold him to one Tucker, in whose possession he was when Tucker died, and that the same horse was .sold in 1864, at the administration sale of Tucker’s property, to the defendant, in whose possession he continued to remain until taken under the writ of replevin in this suit.

All the witnesses stand unimpeached, and are alike entitled to credit, as far as this court can know; and it is evident that the jury, who saw and heard them depose, are much better prepared to estimate the credit to be given to them than we could possibly be. In a case turning so much more upon the credit to be given the witnesses, from their demeanor and apparent intelligence, than from the facts deposed, in a conflict of evidence, the court would very rarely, if ever, reverse the decision of the circuit court, who, like the jury, could thus test the credit due to the witnesses, and who refused to grant a new trial. But, independent of this, there was clearly no lack of evidence to authorize the jury to find for the defendant. And when we consider, as no doubt the jury did, that, unless some five or six witnesses on the side of the defendant swore falsely, the horse in controversy was not in the possession of the piaintiff in 1862 and 1863 ; that both the plaintiff and one Davis, in the years 1862 and 1863, owned and were in the actual possession, each, of a black horse two years old — the one party living in Independence county, the other in Fulton county; that the horse of the plaintiff was taken from him in the fall or first of the winter 1863, and had not been heard of until (as the plaintiff supposes) he found him in the possession of the defendant, in the fall of 1866 ; that the horse owned by Davis in Fulton county was sold to Tucker, kept by him until his death, and, at the sale of his property, bought by the defendant, and been ever since in his possession, until taken in this suit — we repeat, when this is considered, we are not even prepared to say that the weight of the evidence was not with the defendant, but of this we need express no opinion ; it was for the jury to say whether, after the lapse of three years, the plaintiff’s witnesses were or not mistaken in supposing this to be the plaintiff’s horse, or whether the defendant’s witnesses swore falsely, when they stated that Davis, in 1862 and 1863, owned and was possessed of the horse which, it is proven, passed from him, by a regular chain of title, to the defendant, at Tucker’s sale, in 1861. In the exercise of their discretion, they have said that the horse in controversy was the defendant’s, and we will not disturb their verdict for the lack of evidence to support it.

It is next contended that the motion for a new trial should have been sustained, to let in newly discovered evidence. Conceding that the plaintiff has, in all other respects, brought himself within the rule, when the grounds for a new trial rest upon newly discovered evidence, still, up°n the ground that the facts, as disclosed in his affidavit, if proven, would not likely change the verdict of the jury, and upon the additional ground, that the fact stated to have been discovered since the trial is but cumulative, tlie verdict should not be set aside, as Held by this court in Burris v. Wise & Hind, 2 Ark., 33; Robins v. Fowler, id., 133.

The third ground for a new trial was well taken. It was error to permit the witness, “ Kiser,” to testify what he had heard Navis and Tucker say .with regard to the sale of the horse ; and, although there was .other evidence upon this point, we cannot know what influence this hearsay evidence had upon the minds of the jury. And for this error the judgment must be set aside and a new trial granted.