author: Mr. Justice Faieohild

text:
    Taylor et al. vs. Moore.
    On a plea of failure of consideration, setting forth that on the sale of tho prop, crty for which the note in suit was given, tho plaintiff had represented it to be sound, eto, and'alleging that such representations were false and fraudulent, the main fact in issue is, that the representations were made as alleged, and were false and fraudulent; and if the defendant fail to prove the representations, the court may well exclude all evidence as to the soundness, etc., of the property, as being irrelovant to the issue.

      Appeal from Prairie Ci/rcmt Qowrt.

    I-Ion. JohN J. ClisndeNIN, Circuit Judge.
    Gatewood and MaetiN, for the appellant.
    GaelaNd & Eatoolph, and Williams, for appellee.
   Mr. Justice Faieohild

delivered the opinion of the court.

Charles D. Taylor and John A. Frith, as C. D. Taylor & Co., made their note to J. Watson, or bearer, which was assigned to Moore,' who sued upon it in the Prairie Circuit Court. The defendants pleaded a failure of consideration, the plea stating that the note was given to Watson in part consideration of a wharf boat, bought of him by the defendants, upon Watson’s representations that the boat was good and sound, and adapted to the use for which the defendants wished to use it, Watson knowing what that use was to be; that such representations were false and fraudulent ; that the boat was in a leaky and sinking condition when bought, and sank shortly after being brought to Des Arc, and was worthless to defendants.

Taking it for granted that an issue was made upon the plea, which the record does not show, and that the plea is good, which we doubt, it was entirely unsupported by any evidence that Watson made any false representations about the boat, or that he is any way liable to the charge of crafty or fraudulent dealing, charged upon him in the plea. All the evidence introduced by the defendants to prove the leaky and sinking condition of the boat while at Des Arc, that it did fill with water, despite the attempts made to keep it afloat, and was lost to the defendants; and that the boat leaked while at Helena, where it was when Watson owned it, was irrelevant to the main fact of the plea, which was, that these facts were contrary to representations made by Watson, and that they were falsely and fraudulently made. It must have been upon this ground that the Circuit Court excluded all the evidence of the defendant, and we cannot say that in doing so it erred. The right of the court to pass upon the competency of testimony is equal to that of the jury to determine its weight when submitted to them. The defendants had the privilege of introducing the testimony, subject to the condition of connecting it with proof of such representations by Watson, as the plea charged him to have made, as they might prove the several parts of their plea in the order that suited them. But when their testimony was closed, and no proof was given that Watson had made any representations of the goodness and soundness of the boat, of his knowledge of the use to which the defendants wished to put it, and of its adaptation to that use, the testimony was liable to be stricken out, as not supporting the plea of failure of consideration, and as being irrelevant to any issiie formed in the case. If it did not establish the plea of failure of consideration, it was not, of course, admissible under the general issue, for the consideration of the note sued on, could only be impeached upon plea supported by affidavit. We do not pretendió say, that there was, or was not, a plea of the general issue in the case, the transcript leaving it in doubt.

Perceiving no error in the judgment of the Circuit Court, which was for the plaintiff upon the note according to its face, and from which the defendants appealed, it is affirmed.


source: Caselaw Access Project

author: Mr. Justice Fairchild

license: Public Domain

text:
    Berry vs. Barnes et al.
    Although in an action for goods sold and delivered to a third person for the defendant, the evidence may be taken as tending to establish an agenoy in the third person to buy the goods for the defendant, bo as properly to have submitted the matter to the jury, an instruction which assumes, in the absence of all proof of the fact, that there was evidenoe whence the jury might infer that the ' agent oould buy the goods on credit, is erroneous.
    A mere agenoy to buy goods does not imply such on agency ns authorizes a purchase on credit; and where a speoial agent is employed in a single transaction, those dooling with him must look to his authority, or abide the consequences.

      Appeal from Drena Cvrcuit Court.

    Hon. John C. Murray, Circuit Judge.
    Hutchinson, for the appellant.
    Harrison, for the appellee.
   Mr. Justice Fairchild

delivered the opinion of the Court.

The appellant and Allen M. Scott executed the following writing: • •

“These articles of agreement, made this 11th day of Sep- “ tember, A. D., 1857, between James D. Berry, of the “ county of Drew, in the State of Arkansas, of the one part, “ and Allen M. Scott, of the county and State aforesaid, of the “ other part, witnesses : that whereas, the said party of the first “ part is anxious and willing to set up and establish himself in “ the business and trade of book merchant, in the town of “ Monticello, and agrees to furnish all the capital, and become “ responsible for all the legitimate liabilities of the concern “ when established; and whereas, the said second party, in “ consideration of the advantage and convenience such an “ establishment in said town will afford him as principal of the “ male and female schools established at that place, is willing and consents that said business shall be carried on and con- “ ducted under his name, the said first party being responsible to him for any and all liabilities that may accrue on account “ thereof; and it is expressly agreed and understood between “ said parties, that nothing connected with said concern shall “ in any wise be or become liable for any indebtedness of the “ either party, and that said second party shall have no interest “ in the profits which may accrue from the concern. In testi- “ mony whereof, the said parties have hereunto put their names “ and seals.
“ J. D. BEERY, (seal.)
“ A. M. SCOTT, (seal.)
“ Attest:
J. S. WINTER.”

This agreement, with statements of Berry, that he was going into the business of selling books in Monticello, and that Scott had gone to New York, and would buy the books, make up the evidence on which the appellees wish to hold Berry liable for a bill of books that Scott bought, and for which he gave a note signed A. M. Scott & Co., representing that the company consisted of himself and of Berry.

The appellees sued Berry in an action of assumpsit, with one count upon the note, and another for goods sold and delivered, in which a verdict was given for the defendant upon the first count, and for the plaintiffs upon the second count. Judgment was rendered on this verdict against Berry, and he has appealed therefrom, and contends that the judgment is erroneous, because the Circuit Court did not exclude certain testimony to which he objected, because the verdict is against law and evidence, and because the court gave illegal instructions for the plaintiffs, and refused legal instructions which he asked to be given. These objections were made the grounds for a ¡motion for a new trial, which the court would not grant, to which Berry excepted, and ■ the legality of the judgment depends upon the goodness of these objections.

The verdict being for the defendant on the first count, the liability of Berry upon the note is not under condideration. Berry is not to be considered as a partner of Scott, or a member of any firm of A. M. Scott & Oo.; but the appellees sprung the question in the court below that Scott bought books of them to the amount of the note for Berry, and that Berry is liable to them for the price of the books upon the common count for goods sold and delivered.

Although the evidence contained in the writing and in the statements of Berry, to which we have referred, may be taken as 'tending to establish an agency - in Scott to buy books for Berry, so as to have properly submitted the matter to the-jury, the first, third, fourth and sixth instructions of the ■ plaintiffs assumed that there was evidence in the case whence the jury might find that Scott could buy the books upon credit, and that Berry would be accountable on the credit extended by the plaintiffs. If there had been any such evidence, the instructions would have been free from objection. But nothing in the case shows that Scott had authority to pledge the credit of Berry for books. The books were never taken by Berry, were applied by Scott to his own use: hence there was no proof to charge Berry with the books on an implied authority tor their purchase, resulting from his appropriation of them. Conceding that the jury had evidence before them on which they found Scott to be the agent of Berry, the agency did not authorize Scott to purchase the books' upon Berry’s credit. The law that,,upon this subject, is familiarly applied to the relation of master and servant, is applicable to the relation of principal and agent, and among many other authorities may be found in Dunlap’s Paley’s Agency, pages 161-167.

Scott, if any agent at all, was a particular agent obly, specially employed in the single transaction of buying the bill of books sued on, and the appellees should have ascertained his authority to bind his principal by a purchase upon credit, or abide the consequences. Smith on Mer. Law. 173.

But the fact is, as shown by the evidence, that the relation of a separate agency was not attributed to Scott when the books were sold. The appelleés supposed that they were dealing with the firm of A. M. Scott & Co., but upon the trial, it turning out that there was no such firm, the ingenuity of their counsel shifted the responsibility of Berry upon him as the principal of an agent who represented himself as a partner, and as such, having the right to bind Berry, his alleged partner.

The first, third,1'fourth and sixth instructions of the plaintiffs were not applicable to the case, pot being connected with any evidence, and should.have been refused.

The fifth instruction is subject to the same objection as those already considered, besides being so worded as to lead the minds of the jury to view facts that were applicable to the first count only, as showing Berry’s liability upon the second count of the declaration.

We perceive no error in the ruling of the Circuit Court relative to the defendant’s instructions. The instruction it substituted for the third was more favorable to the defendant than the one he asked: the modification of the second instruction was proper, considering the evidence not to establish a partnership, but tending to prove an agency: and the fourth instruction only applied to Berry’s liability as a partner of Scott, which the jury found in favor of the defendant.

The New York testimony was irrelevant till the authority of Scott to bind Berry by a purchase upon credit had been proven. That hot having been done, it should have been excluded on the defendant’s motion.

For giving the erroneous instructions, and for not excluding the illegal evidence, the Circuit Court should have granted anew trial, and its judgment is reversed, with instructions to set the case for trial again, when the principles of'this opinion must be applied.


text:
    Haralson vs. Walker et. al.
    In an action on a bond to deliver a negro or pay the value, on a specified contingency, a plea that, before the happening of the contingency, the negro died, is a good answer to the declaration.

      Appeal from Prairie Circuit Court.

    Hon. John 0. Olendenin, Circuit Judge.
    Williams, for the appellant.
    The second plea was clearly good. Haralson’s bond did not bind him to deliver the negro, if dead. The act of God or the public enemies always did excuse the performance of a covenant, if it thereby became impossible. Ch. on Con. 635; Shep. Touch. 173, 382; The People vs. Manning, 8 Orneen, 297; 4 Picfc. 101; 19 John. Pep. 44.
    Martin for the appellee.
   Mr. Justice Fairchild

delivered the opinion of the court.

The plaintiffs, appellees here, and Haralson, the appellant, had demands against John W. Walton, and for their satisfaction had, in some way not shown, got control of a negro girl, Violet, and Haralson took her into possession. Violet was, however, claimed by Cynthia Sloan, who was asserting the claim by suit in the circuit court of Marshall county, Mississippi, when Haralson entered into an obligation to the plaintiffs, that if judgment should be obtained for the taking of Violet, he would surrender her to the proper officers, to be applied to its payment, or would pay on the judgment the value of Violet.

The plaintiffs brought an action of debt upon the bond, alleging that Cynthia Sloan had obtained judgment in the suit, that Haralson had not surrendered Yiolet, nor paid her value according to the conditions of his bond.

Haralson interposed five pleas; the first was demurred to and the record does not disclose any action of the court upon the demurrer : the third was a plea of nil debet, which afterwards seems to have been substituted by a plea of payment put in as a fourth plea, about which pleas nothing was done by the court, while the fifth plea was one of set off, which was also allowed to sleep on the files of the case.

• No question is presented to us by the record but upon the second plea, which the court struck from the files. It averred that Yiolet, before judgment was rendered in the suit of Cynthia Sloan, died. We do not know why this plea should have been met with a motion to strike it out. The record does not show the grounds of the motion, and we conceive the plea to have been a good answer to the declaration: and it did not require a suppoi’ting affidavit.

Haralson’s obligation was to surrender Yiolet to the judgment of Cynthia Sloan, or to pay her value on the judgment. He had then an election, at the rendition of the judgment, according to his bond, but by the act of God that election was taken away when the judgment was rendered, and therefore his obligation to pay Violet’s value, as well as to surrender her, was discharged. Croke Eliz. 396,399; Co. lib. 206, a; Shep. Touch. 173, 382; Bac. Abr., Conditions R. p. 335, by Bouvier; Ch. on Contracts, (9 Am. ed.) 743.

For this error the judgment of the Circuit Court is reversed.


text:
    Henry Adr. vs. Fine.
    No demand is necessary before the commencement of a suit in Replevin, where the defendant has treated the property as his own and exercised acts of ownership over it. (17 Ark. 172-4.)
    Where a contract of sale of property is made by a person who lacks the capacity to make a valid contract, it is not necessary, to avoid the sale, that it be rescinded by the payment or tender of payment of the consideration paid by the purchaser.
    All the contracts of a lunatic are not held to be void, or even voidable — contracts for necessaries, etc., having been held to be binding.
    in an action by the administrator of an insane person, to recover property sold by him, the vendee having introduced testimony as to the consideration paid, it was competent for the plaintiff, in connection with proof of the vendor’s incapacity, and the defendant’s knowledge of it, to prove that the value of the property was greater than the priee given, and that the full consideration had not been paid.

      Error to Washington Circuit Court.
    Hon. John M. Wilson, Circuit Judge.
    Jordan for the plaintiff.
   Mr. Justice Fairchild

delivered the opinion of the court.

On the 15th of January, 1856, John Brandon executed a bill of sale of a negro boy, Joseph, for the expressed consideration of'seven hundred dollars, and in March, 1858, the possession was in Fine, according to the title, when Henry, as the administrator of Brandon, brought this suit, in which, by writ of replevin he acquired possession of the boy. It was proved that Fine claimed, and had treated the boy as his own property, and that Henry had demanded the boy of Fine in the month in which the suit was brought, but the demand was not proven to have been made before the commencement of the suit. This was doubtless the reason of Henry’s fourth instruction, that no demand was necessary, if Fine exercised acts oí ownership over the boy. The court refused this instruction, and gave a contrary one at the request of Fine, which wfas his fifth instruction. These rulings of the court are in direct opposition to the law as settled by several decisions of this court, and were erroneous. McNeill vs. Arnold, 17 Ark. 172-174.

The supposed insanity of Brandon, when he made the bill of sale, is the basis of the action, and to its establishment and disproof the efforts of the parties were mainly directed upon the trial. The testimony upon this point seems from the bill of exceptions, to have been perspicuous, both from the clearness with which the acts of Brandon, evincing his state of mind, are detailed, and from the opportunities and ability of the witnesses for giving intelligent opinions of his capacity. And although evidence was adduced on both sides, that showing the incapacity of Brandon to make a contract understandingly is so preponderant that the verdict, which the defendant obtained, can be attributed only to the instructions which the court gave on his motion. All of the instructions asked by the plaintiff, except the fourth, above mentioned, were given by the court, and with the exception of the fifth, would have assisted the jury in coming to a correct conclusion.

The first, second and third instructions of the defendant assume that though Brandon lacked the capacity to make a valid contract, his sale of the negro to Fine is good, unless the contract had been rescinded by the payment, or tender to him of the consideration he paid for the negro. These instructions were wrong. But in so saying, it is not necessary for us to decide, and we. do not hold, that all the contracts of a lunatic are void or even voidable. For contracts for necessaries, for the support of himself and his family, for medical attention, for legal services upon the question of lunacy, for goods suitable to his rank and condition in life, though not necessaries, have been held to be binding upon him; but those were contracts that were implied from the necessity or reasonableness of having the goods or laborío be paid for; were not express contracts or contracts under seal. Bagster vs. Portsmouth, 7 Dowl. Ryland, 614; 5 B. & C. 170., La Rae vs. Gilkyson, 4 Penn. State Rep. 376; Hallett vs. Oakes, 1 Cush. 299; Chitty on Contracts, (9 Am. ed.) 136.

And there are authorities that deny, in general terms, that all the contracts of an insane person are void; while others endeavor to class all as voidable, except such as may be implied for the payment of necessaries, and as may be included in the class of cases above cited. Beals vs. See, 10 Penn. State R. 61; Fitzgerald vs. Reed, 9 S. & M. 102. But in Bagster vs. Portsmouth, a leading case upon this subject, in which the hire oí carriages was ordered to be paid.for, that had been used by a lunatic, the use of them being suitable to his rank and condition, Littledale J., expressly said that a deed, bond or other specialty would be without doubt avoided if executed by a party who was non compos mentis. • In Hallett vs. Oakes, another of the cases above cited, and in which a defendant was held liable on an implied contract lor the professional assistance of a lawyer upon the subject of lunacy, Shaw, 0. J., said, that, “ mental capacity is undoubtedly necessary to the validity of an express contract, which derives its force from the mutual agreement of the parties.”

In a well considered case, reviewing the principal authorities, it was held that the contracts of an insane personare voidable, although the other contracting party was not aware of the disability. That case resembled this, in being an action to recover a note that had been pledged, but was unlike it in the important fact, that the defendant did not know of, ^d had nd reason to suspect the plaintiff’s insanity. Seaver vs. Phelps, 11 Pick, 304. And in a very^late case in the same court, the precise question under consideration here was decided adversely to the defendant’s instructions, that land convey,ed by an insane person could be recovered without making any restitution of the consideration, before the bringing of the suit. Gibson vs. Loper, 6 Gray, 279. And the court in that case, as we in this, declined to enter into the question whether the grantee of the deed that had been avoided, could recover back the price paid for the land. Upon a bill filed in chancery for the rescisión of a contract made by an insane person, the benefits of the contract might have to be compensated by putting the party in the situation he had before the contract was made. Fitzgerald vs. Reed, 9 S. & M., 103; Loomis vs. Spencer, 2 Paige, 159.

All the authorities say and imply that whenever any contract, save for necessaries, is enforceable against a lunatic, the other party must be ignorant of the disability. In addition to what will be found in the foregoing citations, see Chitty on Contracts 139; 1 Parsons on Contracts 312; Story on Contracts s. 42. This principle was not, as it could not be, embodied in the defendant’s instructions.

The defendant, after proving the execution of the bill of sale by a subscribing witness, also proved by him in what the consideration consisted, namely, two hundred dollars in cash paid to Brandon, and five hundred and fifty dollars which the defendant had advanced for Brandon, in payment of a debt he owed to Pettigru. To rebut this, the plaintiff offered to prove that the defendant never made any such advance for Brandon, that that Brandon never owed Pettigru that, or any sum, and that the negro was worth more than the nominal price made up of both sorts of considerations proved by the witness pf the defendant. The court refused to allow this testimony to be given to the jury, and, in doing so, erred. In connection with the proof of Brandon’s incapacity, and Fine’s knowledge of it, the value of the negro was material to be considered with the price to be paid t^Fine, and Brandon’s indebtedness to Pettigru was a matter which the plaintiff might well deny, and disprove, if he could.

For the errors of the circuit court, in excluding this evidence, in refusing to give the fourth instruction of the plaintiff, and in giving the first, second, third and fifth instructions of the defendant, the judgment rendered in his favor is reversed on the writ of error prosecuted thereto by the plaintiff, and the case is remanded that the parties may have the benefit of a legal judgment.,


text:
    Whatley vs. Strong.
    On a bill for the spocific performance of ftjcfatract, the contract must be clearly aud unequivocally established befor». n < ourt. of equity will decree its specific performance. In this case, the testimony leaving it in doubt what the interest of the complainant was to be in the lands in reference to which the contract is alleged — that interest being uncertain, indefinable, unascertainable — the bill is dismissed.

      Appeal from Columbia Circuit Court in Chancery.

    Hon. James K. Young, Special Judge.
    Carleton and Garland ffc Randolph, for appellant.
    Gallagher, for appeilet .
   Mr. Justice Fairchild

dec red the opinion of the Court.

By a bill preferred on d hanceiy side of the circuit court of Columbia, county, Wtcn-w complained of Whatley, that he would not perform a c<o- , • which had been made between them in Not ember, IfíñP. . <be effect that Whatley should furnish Strong land wurru';.;; >-•. be located by Strong, on lands in Arkansas, as he i ^ . k best, but in the name of Whatley, and that each party should have an equal interest in the lands located. The bill charged that Whatley furnished to Strong, upon two different occasions, forty-nine land warrants, which Strong had located upon certain enumerated lands in Columbia county, in the name of Whatley, who had asserted a claim to their exclusive ownership in denial of Strong’s right and interest to one-half the lands under the agreement, of which the bill prayed a specific performance.

The answer denies the agreement, alleges that the claim of the bill is barred by a settlement made between the parties, in which Strong charged, and was paid, for his services in locating the lands according to his own estimate of them, and demurs to the bill. It admits that Whatley furnished the land warrants, and that Strong located them as stated in the bill, with two unimportant modifications, but insisted that Strong, in locating them in the name of Whatley, located them for Whatley alone, and while in hiS employment as overseer, and in the charge of his business in Arkansas, Whatley being himself at the times of the locating, in Georgia, where he then resided.

Other matters are asserted in the bill as ancillary to, or explanatory of its main feature, as above depicted, and especially as to Whatley’s giving his sister, Strong’s wife, a quarter section, or three quarter sections of land; but this, and that part of the case touching the state of accounts between the parties, as affected by Strong’s use of Whatley’s negroes, by his working and incurring expenses upon his lands, by living from their proceeds, and by the settlement stated in the answer, and exhibited with it, need not be considered until it is ascertained whether any agreement was made between the parties on which to support a decree for specifie performance. If this be answered in the affirmative, it may then be the subject of enquiry ’whether the agreement, that is taken to be established, be such as chancery will specifically perform, and if not illegal by the statute of frauds, whether it so commends itself to the discretion of a court of equity as to procure its enforcement, and also, whether, if not enforced, as asked by the bill, the bill will be retained for an award of compensation to Strong for his location of the lands.

William J. Strong-, a witness for the plaintiff, and his son, proves the contract as set forth in the bill, though his deposition and the bill do not agree upon the time when the agreement was made; the bill charging that it was made in November» 1852, and that it was repeated over at Alfred Harrell’s in Chambers county, Alabama, after they had traveled one hundred and twenty-five miles in going on their way to Arkansas; while the witness deposes that the agreement was first made at the house of Harrell, or that he did not know of any previous contract between the parties. But, subject to this discrepancy, the bill and the deposition of William J. Strong relate one and the same narrative. The witness stated that when the agreement was made, himself, the parties, Alfred Harrell, and Mrs. Harrel were in the room.

Alfred Harrell states that Whatley gave land warrants to Strong to take to Arkansas and to locate, that Whatley agreed to buy other warrants and send them to Strong, to be located for Whatley; that he did not recollect that he heard Whatley say positively what interest Strong was to have in the lands located by him, but that he was to have an interest, and that Whatley said it would be worth more to him than any other arrangement he could make. And in a subsequent part of his deposition, Harrell said that there was no specific agreement, or contract, as to what Strong was to receive, entered into by the parties in his presence, but that it appeared to be left to Whatley’s honor to do what was right.

Mrs. Mahala Harrel, wife of Alfred Harrell, deposed that upon Mrs. Strong being reluctant to go further towards Arkansas, Whatley proposed to her, in the presence of the witness and of the plaintiff, if she would go to Arkansas, to give her a half section of land, in addition to an interest which he was to give her husband in lands to be located in Arkansas by him, with warrants to. be furnished by Whatley; and that he said it would be greatly for their interest, and would enable them to settle their children comfortably. The witness understood that a contract or agreement had been made between Strong and Whatley about Whatley’s furnishing Strong with land warrants to be located fey him, that was likely to be broken up by Mrs. Strong’s unwillingness to go to Arkansas, but she said she did not know what the contract was.

The witness, Lee, said, in his deposition, that Whatley told him that Strong’s interest in the lands he had entered would make him easy the rest of his life.

Elizabeth M. Huey, a daughter of the plaintiff, says, that at Alfred Harrell’s Whatley told the plaintiff that if he would go on to Arkansas, he would be furnished writh land warrants to buy lands, and he would give him half of the lands for laying the warrants, and that before they left Harrell’s, Whatley gave her father a number of land warrants.

This is all the testimony in support of the agreement.

In favor of Whatley’s denial of the agreement alleged, all of the witnesses on both .-ides say that Strong uniformly spoke of the warrants and locations, and lands, as belonging to Whatley: no claim or assertion of any interest in them is shown to have been made by Strong; letters of Strong are produced, in which the labor and trouble of the location are mentioned as performed and incurs ed tor Whatley, and the lands located mentioned as his property. Exhibits A and B, of the answer, in the handwriting of Strong, contain charges for laying land warrants; and WiUhijn A. Whalley, a son of the defendant, says that Strong the lands as the overseer and agent of Whatley; that the lend warrants at Harrell's were handed to himself to locate, but that when he reached Arkansas he was sick, and got Strong to lo< . them; that he was much of the time at Strong’s when St/.-.sog was' attending to the business of his father in Ark'ufi; yg and never heard him claim any interest in the land till the no/nrfic'ncement of this suit, and that he had often heard Strong »¡o, that he made the locations for past favors receivs*:!. of Wty'áy.

The depositions of Alfred Harrell, Mahala Harrell, William J. Strong, and Elizabeth Huey, evidently attempt to detail the same conveisation. William J. Strong treats it as the original agreement between Strong a*nd Whatley, and as a positive undertaking on the part of the latter to allow Strong an undivided half interest in the lands to be located for their location: while Mahala Harrell refers to the conversation as an acknowledgment by Whatley, that Strong was to have some interest in the lands to be located in Arkansas. She did not know, or did not state what that interest was, and it is not to be inferred that it was this interest solely that was to enable Strong and wife to settle their children comfortably. The removal to Arkansas, with all its consequences, was to have this effect, from which - Whatley urged Mrs. Strong that it would be greatly for the interest of her family to persist in the design of going on to Arkansas, rather than to turn towards Texas, which Mrs. Strong wished to do, when Whatley, her brother, declined to accompany Strong’s family, and his son, to Arkansas. Allred Harrell, to whom, with Strong, the conversation was directed, states particularly that no specific agreement was entered into between the parties, in his presence, fixing or recognizing the amount of the lands that Strong was to have of the locations to be made by him with Whatley’s warrants, but that it was some interest, which Whatley represented would be worth more to Strong than any other arrangement he could make, but .hat what it should be, seemed to be left to the honor of Whatley. Elizabeth Huey simply refers to a promise she heard Whatley make to Strong at Harrell’s, that the latter should have one-half of the lands for laying the warrants.

Upon the most favorable construction that can be put on this testimony, it is left in doubt what the interest of Strong was to be in the lands which he should locate. Harrell and hie wife are the more credible witnesses, from their disinterested position, and we think the better conclusion, from the testimony of these four witnesses, and from that of Lee, is, that Strong’s interest in the lands he located in Whatley’s name with his land warrants, is an uncertain, indefinable, unascertainable interest. And considering that the burden of proof rested upon Strong, we hold that the issue made by the bill and answer, as to the extent of Strong’s interest, is not maintained for Strong, even by his own testimony. Yet if we were inclined to the contrary opinion, and could say that the evidence of the son and daughter of Strong defined the interest which the evidence of Harrell and his wife, and of Lee, left in uncertainty, the agreement of the bill could only be hesitatingly declared, it could not possibly be held to be established in the clear and unequivocal way, in which a contract must be proved before a court of equity will decree its specific performance. The principle applicable to cases of this kind, is so elementary that a reference to authorities for its support is unnecessary, and would be inappropriate, and we, therefore-, merely allude to Baker vs. Hollobaugh, 15 Ark. 322, and to McNeill vs. Jones, 24 Ark. 281, in recognition of the doctrine.

When the whole testimony, that of the defendant, with what has been remarked upon, is taken into view, we cannot have any doubt but that Strong, the plaintiff, has failed to presen such a case as entitles him to the relief he seeks, by an apportionment of the lands, mentioned in the bill, between himself and the defendant. If, owing to his own careless method of doing business, or to an indiscreet reliance upon Whatley’s honor, he has lost an interest he supposed to be valuable, the courts cannot dispense with the rules of law which require all suitors to maintain their suits in order to', obtain the relief to which their pleadings, if proven to be facts, would entitle them. But we, by no means, express any opinion that the merits of this case incline to the one side or the other, - >!* that the plaintiff is precluded from relief by the harsh operation of a legal principle. We have attentively examined the three hundred pages of testimony embodied in the case, and are satisfied with the result of our examination.

Waiving the legality of a decree for compensation to Strong for locating the lands, which would be included in the prayer for general relief, if in the case at all, we need only say that for the mere labor of locating the lands, Strong seems to have been allowed in the settlement, what the proof would give him> what he claimed to be a compensation.

The conclusion above .announced, makes it unnecessary to examine the other points in the case.

The decree of the court below is reversed, the bill of the plaintiff, the appellee, must be dismissed.


author: Mr. Chief Justice English

text:
    Jones vs. McLain.
    The land of a resident tax-payer not being subject to sale for non-payment of taxes, if sufficient personal property can be found by the collector whereon to make distress for the taxes, the recital in the collector’s deed to the purchaser of a resident’s land sold for non-payment of taxes, that the tax-payer failed to pay on demand, and “not knowing of any personal property” whereon to levy, he • proceeded to levy on, and advertise the land for sale, is not a direct and satisfactory mode of reciting that sufficient personal property of the delinquent could not be found. But, in this case, if the recital is sufficient to put upon the tax-payer the burthen of proving that he had sufficient personal property, that fact is fully proved, and the decree canceling the tax deed affirmed.

      Appeal from Pulaski Chancery Court.

    Hon. H. F. Fairchild, Chancellor.

      Garland & Randolph, for appellant.
    The court cannot consider the testimony pf Giles and Still-well as of any effect. They were the deputies of the sheriff, and it is attempted to contradict the deed of the sheriff -by their testimony. It seems that the testimony of the sheriff is not competent for this purpose. Biscoe el al. vs. Coulter et al., 18 Ark. 423. And if the sheriff is not a competent witness to contradict the recitals of his deed, the same principle would exclude the deputy, when he has performed the official act.
    The recital in the collector’s deed is just as certain as if the sheriff had said,. “ and not being able to find any personal ■property,” etc. The sheriff was required to diligently endeavor and use all lawful means to collect the taxes of McLain {sec. 61, chap. 148, Gould's Dig.), and, in case of his failure to pay them, was required to levy upon his personal property, if he could find any liable to be taken, and, if he could not find anyj then to levy on and sell his lands {sec. 107, lb.) Every officer is entitled to the benefit of the presumption that he has performed his duty, and it must be inferred for the collector’s deed that after exhausting all the means in his power, of acquiring a knowledge, the sheriff did not know of any personal property of McLain: it cannot be inferred that he made no effort to acquire a knowledge of McLain’s personal'property. We contend that the recital contains a literal and substantial statement of all the facts necessary to authorize a sale of the land by the sheriff. The mere fact of a party having personal property, cannot avoid a sale of his real estate for non-payment of taxes. Such a doctrine would destroy public confidence in the validity of the sales of residents’ lands. So, proof that McLain had personal property would not avoid the sale, unless it was also in proof that the property was in the county, at the time of the demand of payment, and that the sheriff was aware of the fact.
    Gallagher and Knight, for the appellee.
    The deed was only evidence of the legality and regularity of the sale until the contrary be made to appear, {Eng. Dig., p. 885, sec. 92,) and the contrary was made to appear by good and sufficient showing, that the sale was illegal and irregular.' Furthermore, the deed itself evidenced the illegality and irregularity of the sale, by showing that the lands were sold because the officer did not know of any personal property of appellee, out of which to make the taxes, instead of showing that no such property could be found. In this view, the sale and deed were void; and Jones acquired no title. Moore vs. Brown, 11 How. U. S. 425; Merrick df Fenno vs. Hutt, 15 Ark. 339; Patrick vs. Davis, lb. 363.
    The deed does not recite that no personal property of McLain could be found; and it is shown in evidence that he had abundance of personalty, out of which the taxes could have been made if the collector had performed the requirement of the statute.
   Mr. Chief Justice English

delivered the opinion of the Court.

The lands in controversy were assessed by Danley, the sheriff and assessor of Pulaski county, for the year 1857, as the property of Allen McLain, sold for the taxes, etc., charged upon them, in April, 1858, and purchased by Alexander D. Jones^ who obtained the collector’s deed, and filed a bill for confirmation of his title.

In his answer to the bill McLain made one objection to the regularity of the sale, which the chancellor held to be sustained by the proof, and fatal to the tax title, and we think his decision, upon that point, was correct; and that other objections of minor importance, discussed by counsel, need not be noticed.

■ The collector in his deed recites that McLain failed to pay the taxes on demand, etc., " and not knowing of any personal property of the said McLain, and he wholly failing to show to the collector any personal property whereon to levy and make distress for the same,” etc., the collector proceeded to levy upon and advertise the lands for sale, etc.

McLain was a resident of Pulaski county at the time of the assessment and sale, and had been for twenty years before.

Although the taxes constitute a lien upon the land of the resident, as well as upon the land of the non-resident taxpayer, yet the land of the delinquent resident is not subject to sale for the taxes charged upon it, “ if sufficient personal property belonging to him, liable to be taken, whereon to levy and make distress for the payment of such taxes, can be found. Gould's Dig., chap. 148, secs. 106, 107; Merrick & Fenno vs. Hutt, 15 Ark. 340; Kinsworthy et al. vs. Mitchell & wife, 21 Ark. 154.

The recital in the deed of the collector — “ not knowing of any personal property, etc., — -is not a direct'and satisfactory mode of reciting that sufficient personal property of the delinquent could not be found, but for the purposes of this case, the recital in jhe deed may be treated as sufficient to put upon McLain the burthen of proving that he had, at the time the lands were levied upon, a sufficient amount of personal property, liable to be taken by the collector, and within his reach upon such reasonable diligence as the law imposes upon him, to satisfy the taxes charged upon the lands, as the answer of McLain, in effect, alleges.

The taxes assessed upon the lands for the year 1857, amounted to $26 62.

For the same year, and it appears in the same list with his lands, McLain gave in for assessment, ten head of horses and mares, over two years old, valued at $500; and one hundred head of neat cattle, over two years old, valued at $800. This personal property stood assessed to him, upon the tax book in the hands of the collector, at the time the lands were levied on and sold.

J. D. Little testified, in substance, as follows: I am well acquainted with Allen McLain, and have known him since 1849. He was then, and still is, a citizen of Pulaski county. He is the owner of about one hundred head of cattle, and claims about twenty head of horses, and fifty head of hogs. The cat-tie are worth $7 per head, or $700, and the horses $50 ahead. I have lived in two miles of him since the fall of 1852. Since that time he has had the amount of property stated above, etc.

Elias Cohe testified that he lived about a mile from McLain, and had known him for twenty-five years. That he owned personal property to the amount of some three or four thousand dollars: and was the owner of that much personal property in the first of the year 1858, etc.

George W. Hardy, testified: I have known Allen McLain ever since 1853. He has resided in Pulaski county since that time. I have been frequently at his house, and from what I saw, am warranted in the belief thathe was worth from $1,500 to $2,000 of personal property, at any timé since I have known him, and in the year 1858, etc.

Other witnesses corroborate the above, to the extent that McLain was the owner of personal property consisting of horses, cattle, hogs, etc., of value far exceeding the amount of taxes charged upon his lands for the year 1857.

The argument of counsel, that the witnesses do not state that the personal property referred to by them, was in Pulaski county, and within the reach of the collector, is not entitled to very grave consideration.

When the witnesses state that they had known McLain for many years, that he resided in Pulaski county, that they lived near him, had frequently been at his house, and that he had so many horses, cattle, hogs, etc., the inference is very plain that they meant that the property referred to by them was in his possession, and at his place of residence.

' Nor is there any testimony conducing to prove that the horses, etc., of McLain were running in the range, as supposed by counsel, and not to be found by the collector, and that on that account he resorted to a sale of the lands, etc.

On the contrary, Josiah M. Giles, one of the deputies of the collector, testifies that he was the only deputy that collected the taxes of 1857, in Campbell township, where McLain resided.' That he made no effort to obtain from him personal property in satisfaction of his taxes, nor did Danley, or any of his deputies do so within the knowledge of witness. That from his knowledge of McLain’s condition, he thought he was able, and had plenty of personal property to pay his taxes. He generally gave in a good many horses and cattle in his assessment list. Witness was at his house once during collecting time, to serve writs, but had no recollection of calling on him for his taxes.

The truth of the whole matter, as it appears from the depositions, is, that McLain deposited money with Hutt, his merchant, and instructed him to pay his State and county taxes7 but not to pay his road tax. The deputy of the collector called on Hutt for payment, and he tendered the amount of the State and county taxes, but refused to pay the road tax. as directed by McLain; and the deputy declined to'receive any portion of the taxes, unless the whole, including the road tax, was paid. Whereupon, the collector proceeded to advertise and sell the lands assessed in the name of McLain, without going to his residence, or sending a deputy, to levy upon personal property, or to see if any could be found.

We think, upon the pleadings and evidence, the decree of the Chancellor dismissing the bill, and canceling the tax deed of appellant, was right, and the decree must be affirmed.

Mr. Justice Fairchild did not sit in this case.


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    Fairhurst vs. Lewis.
    The denial in an answer of facts alleged in the bill, which are not within the personal knowledge of the defendant, must be treated as a matter of pleading, putting in issue merely the allegations, which may be proved by one witness.
    It is well settled that a father has the right to permit the son, during minority, to labor for himself and appropriate his wages according to his own inclinations.
    "Where property is purchased for the son, with his money, and upon an agreement that the deed is to be made to him, and the deed is executed to the father by mistake, he holds the legal title in trust for his son, and his conveyance of the property to the son cannot be held as fraudulent.

      Appeal from Pulaski Chancery Court.

    Hon. H. F. Fairchild, Chancellor.
    Fowler & Stillwell, for appellants.
    Jonathan Lewis, the father, was not a competent witness for the appellee. He was in possession of the property in controversjr, and the effect oí his evidence was to enable him to retain the possession and use of the property. Gresly's Eq. Ev. 353, 354, 358; 2 Cowp. R. 621; 1 Hill (JV. F.) Rep. 100. Another effect was to release him from liability for rents accruing pend-the suit.
    Without the testimony of Jonathan Lewis there was not sufficient proof of the allegations of the bill. And it must be borne in mind that the contest is not between the parties to the mistake, but between one of them and a creditor, and a court of equity will not interfere to correct an alleged mistake in the latter case, unless the proof of it be full, and the relief asked for clearly shown. 1 Bro. Ch. R. 342; 6 Vesey 333; 9 Gill's Rep. 430; 2 John. Ch. R. 632; 1 Story Eq. Dec. 169.

      Appellee being a minor, his father was entitled to the proceeds of his labor, and although invested in land, in his own name, it is still subject to the claims of his father’s creditors. Wright’s Ohio Rep. 751; 2 Kent’s Com. 162-3; Freeman’s Ck. Rep. 434.
    Waticins & Gallagher, for appellee.
   Mr. Chief Justice English

delivered the opinion of the Court.

Goodrich and Boardman were the joint owners of fractional lots No. 2 and 3, in Block No. 1, of Pope’s .Addition to the city of Little Rock, east of the Quapaw line. Goodrich died, leaving Boardman, who resided in New York, his executor.

On the 8th of December, 1854, Boardman conveyed the lots to Jonathan J^ewis, who had occupied a house upon the lots for some ten years before.

On the 15th May, 1855, Jonathan Lewis conveyed the lots to his son, John Lewis, the appellee, but continued to occupy the house upon them. ■

On the 2d of May, 1855, Jane Fairhurst, the appellant, commenced an action of trespass against Jonathan Lewis for an assault and battery, alleged to have been committed by him upon her; and on the 14th of July, 1855,recovered a judgment against him for $1,000 damages. She sued out an execution upon the judgment, the lots were levied upon, sold, purchased by her at a nominal sum, and a deed executed to her by the sheriff. She afterwards brought an action of ejectment against Jonathan Lewis for possession of the lots, and obtained judgment; and to prevent her from causing a writ of possession to be executed, and to establish his own title to the lots, John Lewis filed the bill in this case.

The substance of the case made by the bill is, that Jonathan Lewis was, and had been for many years, a cripple, was poor, had a large family, and was barely able to support them.

The complainant, John, who was about twenty-one years of age when the bill was filed, had been permitted by his father, for some ten years before, to go out and labor for himself, and appropriate his wages according to his own inclinations. That be had found employment as a cabin boy, steward, and finally as an engineer upon steamboats running upon the Arkansas and White rivers, supported himself, contributed occasionally to the maintainance of his father’s family, by gifts to his mother, and laid up some money from his wages.

That his father, after the death of Goodrich, learning that the lots in controversy were for sale, having lived upon them for some years, and being desirous to secure them as a home, corresponded with Boardman oí New York, in relation to the price of them, and on learning the sum demanded, expressed himself as being totally unable to purchase them.

Finally, in the fall of 1855, complainant learning that an agent of Boardman had come to Little Rock, and was offering the lots for sale at the sum of $400, he determined to make an effort to purchase them himself, to take the deed in his own name, but to permit his father and mother to occupy the premises as a home during their lives. Accordingly he borrowed $150 from his uncle in -St. Louis, which, together with the money he had saved from his wages, made up the sum of $400. This sum he sent to his father to purchase the lots in his name, the purchase was accordingly made, with the distinct understanding that the deed was to be made to him, and the money was to be deposited with Mr. Wait, of Little Rock, until thé deed was executed.

The money was accordingly deposited, and subsequently the deed was executed by Boardman, forwarded to Mr. Wait, and delivered by him to Jonathan Lewis.

But Boardman, by mistake, made the deed to Jonathan Lewis instead of the complainant, John, either from the fact that he confounded their names, or from the fact that Jonathan Lewis had corresponded with him on the subject, and negotiated the purchase with his agent.

Afterwards, when complainant came to Little Rock, and was shown the deed, he expressed surprise and dissatisfaction at its beiug made to bis father; when his father told him, chat rather than send the deed back to Boardman, he would execute a deed to him for the lots himself. This promise of his father was satisfactory, but owing to inattention and the absence of complainant, the execution of the deed was neglected until the following spring; when complainant returning home, and learning that Mrs. Fairhurst had instituted suit against his father for an assault and battery, became uneasy about the safety of the lots, and procured his father to execute to him the conveyance of the 15th May, 1855, which, with the deed from Boardman to his father, was put upon record.

The bill distinctly and positively alleges that the whole of the purchase money was furnished by complainant, that the lots were purchased for him, and the deed was to be made to him, but, by mistake of Boardman, was executed to his father.

These allegations are controverted by the answer of Mrs. Fairhurst; and, on the contrary, she alleges that the purchase money was furnished and paid by Jonathan Lewis, who bought the lots for himself, and took the deed from Boardman in his own name,'and for his own use; and that afterwards, and after she,had commenced suit against him for damages, he made a voluntary and fraudulent conveyance of the lots to his son, John, for the purpose of defeating the satisfaction of any judgment she might recover against him in the pending action.

The denial'of the answer that John Lewis furnished the purchase money, that the lots were purchased for him, that the deed was to be made to him, and that by mistake it was executed to his father, must be treated as a matter of pleading, putting in issue merely the allegations of the hill, as these facts were not within appellant’s personal knowledge, and she could only answer, as she did, upon information and belief.

The material allegations of the bill are clearly proven by one witness, and he is supported by two others, in some of the important facts stated by him.

That the father had the right to permit his son, during bis minority, to labor for himself, and appropriate his wages according to his own inclinations, is well settled.

The lots having been purchased for the son, with his money, and upon an agreement that the deed was to be made to him, and the deed having been executed to the father by mistake, he held the legal title in trust for his son, and when he after-wards conveyed the property to his son, he did only what he was bound in equity to do, and what the son could have compelled him to do, by bill, had he refused, regardless of the pending suit of Mrs. Fairhurst against him for damages.

The fact that the son, when he furnished the money to purchase the lots, intended to permit his father and mother to occupy the premises as a home, during their lives, was commendable in him, and does not militate against his right to have the mistake in the execution of the deed corrected, and his title to the property established.

The deeree of the chancellor must be affirmed.

Mr. Justice Fairchild did not sit in this case.


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    Freeman et al. vs. Peay, Rec’r.
    A mortgage, like any other deed, to be valid and operative, must not only be signed and sealed, but it must be delivered by the maker', and accepted oy the mortgagee, oa- some one legally acting for him.

      Appeal from Pulaski Chancery Court.

    Hon. H. F. Fairchild, Chancellor.
    Garland & Randolph, for appellants.
    The records read in evidence, and the deposition of Davies, who was a trustee of the Bank, and one of the committee to consummate this matter with Ware, show that instead of accepting the mortgage, the Bank rejected it, because of the incumbrance created by the deed of trust in favor of Ware’s creditors under which Davies and Johnson now act. Then, if the mortgage was not accepted by the Bank, she has no rights under it. An acceptance of the mortgage was indispensable to complete the contract. 2 Hilliard on Mortgages 278; Dale vs. Bodman, 3 Metcalf 139; Jackson vs-. Phipps, 12 Johnson Rep. 418.
   Mr. Chief Justice English

delivered the opinion of the court.

The only question to be decided in this case is, whether the mortgage, which Peay, as receiver of the assets of the Real Estate Bank, seeks, by his cross-bill, to foreclose, for the payment of a stock note male by Ware, the mortgagor, was delivered by him, and accepted by the bank.

A mortgage, like any other deed, to be valid and operative, must not only be signed and sealed, but it must be delivered by the maker, and accepted by the mortgagee, or some one legally acting for him. 2 Hiliard on Mort. 278; Jackson vs. Phipps, 12 John R. 421; Jackson ex. dem. McCrea vs. Dunlap, 114; John. Cas. 114; Dole vs. Rodman, et al. 3 Metc. R. 142; Sheppard’s Touchstone, 57.

It is alleged in the cross-bill that the mortgage was delivered, accepted, proven and recorded; but Ware, in his answer, in response to the allegation, and to a special interrogatory put to him by Peajq positively states that it was not accepted by the bank, but on the contrary, was absolutely rejected; and Anthony H. Davies, who was a director in the branch of the bank at Columbia, where the transaction occurred, and whose deposition was the only one read upon the hearing, most emphatically sustains the answer of Ware as to the refusal of the bank to accept the mortgage.

Abner Johnson was the owner of 300 shares of the capital stock of the bank, had executed his stock bond for $30,000, secured by mortgage, and, it seems, the bank, upon faith thereof, had discounted his stock note for $15,000. He agreed to transfer to Ware, who desired to become a stock-holder,. 100 shares of his stock. It appears that, on application to the board of directors, the following order was made, 30th March, 1840.

“ Ordered by the board that the transfer of one hundred shares of Abner Johnson’s stock be made to Thomas Ware, and the notary is hereby authorized to prepare all the acts necessary to carry the same into execution.”

The cashier of the bank was the notary, and it seems that in pursuance of the above order, Ware, on the 1st of April, 1840, executed a stock bond for $10,000, a mortgage upon 633 acres of land, known as the Ware place, on Old River lake, in Chicot county; and Davies states that in anticipation of the completion of the transfer of stock, etc., Ware’s stock note for $5,000 was discounted. • But the board of directors, as above shown, rejected the mortgage, on the ground that the lands were encumbered; Johnson was not released from any of his stock, and Ware failed to become a stock-holder. The bank made an effort, after the rejection of the mortgage, to secure the stock note and other debts of Ware, by deed of trust, but failed. The mortgage remained in the bank until after the "deed of assignment to trustees, and finally, on the 2d of May, 1843, the attorney of the trustees procured the attesting witnesses to go before the recorder of the'county, and prove the subscribing of the mortgage by Ware, and caused it to be registered, without the knowledge or consent of Ware.

• The bank, or its cashier, acted hastily, or incautiously in discounting Ware’s note before a satisfactory mortgage was executed by him and accepted by the board of directors.

Ware, however, denies most positively, in his-answer, that he ever received of the bank one dollar on the note; on the contrary, he states that the amount for which he gave the note was to be credited on Abner Johnson’s stock note; and there are some facts in the record that favor the truth of his answer in this respect.

On the same day (3d March, 1840,) that the order was made for the notary to prepare the necessary papers for the transfer of 100 shares of Johnson’s stock to Ware, it appears that the board also passed the following resolution:

Resolved. That the cashier be, and he is hereby authorized to open the stock credit account of Thomas Ware for five thousand dollars, on account of the one hundred shares of stock purchased from Abner Johnson, and that he be hereby authorized to substitute his stock note in lieu of five thousand dollars of said Johnson’s stock note, and that said Johnson be authorized to withdraw his former stock note, and substitute a new one for ten thousand dollars, being the sum due.”

If Ware made his note for $5,000, under this resolution, it is. hardly probable that the bank was guilty of the gross error of giving Johnson credit for that amount, and at the same time advancing to Ware the amount of the note, in its bills, less the usual discount, etc.

Moreover, Ware’s note was made in April, 1840, but was dated back to 26th October, 1839, to correspond, it seems, with the date of Johnson’s stock note; which favors the conclusion that it was to be substituted for so much of his note; for if the note had been discounted, it is but reasonable that it would have been dated on the day the money was advanced to Ware upon it.

If this be the correct version of the matter, the bank was under no legal necessity of suffering any loss by the transaction; because if Johnson was credited with the amount of Ware’s note in anticipation that the agreement between them for the transfer of stock would be perfected by the execution of the necessary securities, and the completion of the agreement failed, by reason of the rejection of the mortgage made by Ware, Johnson was not entitled to a credit for the amount of Ware’s note, and remained legally indebted to the bank as before.

But be this as it may, we have seen that the mortgage never became operative for want of complete execution, and this lit the only material point to be decided in the cause.

On the 4th of May, 1843, Ware, (having given up all idea of becoming a stockholder in the bank, as he alleges,) executed a deed of trust upon the lands in controversy, for the benefit of his creditors. The lands were sold 14th April, 185G, by a commissioner, under a decree foreclosing the deed of trust, and purchased by Lane, who sold them to Goodloe, and he transferred them to Freeman, who filed the original bill in this case. At the time the bill was filed, Davies, one of the trustees in the deed of trust, held in his hands $5,000, part of the sum brought by the lands under the commissioner’s sale. The court below decreed that the mortgage was a valid security for Ware’s stock note, and paramount to the deed of trust: and that unless Freeman paid the amount due the bank, on the note, by a day named, the lands should be sold, etc., and by way of indemnity to Freeman, decreed to him the $5,000 in the. hands of Davies.

The decree must be reversed, and a decree entered here, and certified to the court below, dismissing the cross-bill, and enjoining the receiver of the bank from further proceedings to enforce the mortgage on account of Ware’s stock note, and Davies will be permitted to pay over the money in his hands to such of the beneficiaries in the trust deed, as may be rightfully entitled to it.

Mr. Justice Fa[rchild did not sit in this case.


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    Stone et al. vs. Stillwell ex. et al.
    Where property or money belonging to an intestate in his life time, comes to the hands of his administrator, and he holds it as such at the time of making his final settlement, and yet fails to charge himself with, or account for it; the settlement is fraudulent, according to the principles settled in Ringgold vs. Stone, et al- -(20 Ark. 526.)
    The final settlement of an administrator, when approved and confirmed by the Probate Court, is binding and conclusive upon the distributees until successfully impeached by bill in chancery, for fraud in the settlement: and if the distributees file such bill, it must charge the fraud and state the facts constituting the fraud; and the burthen of proving it as alleged, is upon the complainants when denied by answer.
    But the fraud charged being the failing to account for money and property recovered by a decree, which the administrator, in his answer, alleges that he had purchased of the intestate in his lifetime, upon proof by the complainants that the suit was brought by the intestate in his life time, alleging title in himself, that the decree was obtained before his death, in his favor, and that the defendant became his administrator, made himself a-party to thg decree as such, and as such recovered the fruits of the decree in favor of his intestate — in such ease, the onus probandi is shifted, and it is incumbent on the defendant to prove the purchase as alleged in his answer.
    It is true that the verbal declarations of a party are not the most reliable evidence, and should be received with caution; but in this case the verbal declarations were accompanied by written admissions and other circumstances conducing to prove the purchase as alleged in the answer. •
    Where depositions are taken upon interragatories, under an order of court, it is sufficient, if, after stating the names of the parties and the court in which the suit is pending, in the caption, that the commission direct the evidence to be taken in the '• above mentioned suit:” so, if a copy of the interrogatories accompany the commission and the originals remain on file; so also, if, from the certificate of the officer before whom the depositions were taken, it appears that he meant to certify that the depositions were reduced to writing in his presence, though there be a clerical mistake in the certificate. - <

      Appeal from Independence Circuit Court in Chancery.

      Hon. William C. Bevens, Circuit Judge.
    Rose, for the appellant.
    The original interrogatories were not attached to the commission as required by sec. 11, chap. 55, Dig., p. 437; and the copy attached is one that the clerk had no right to make out, the original not being an office paper; so the copy is a nullity.
    Neither did the certificate of the-justice of the peace state that the deposition .was reduced to writing in his presence, as required by sec. 13, chap. 55, Dig. For this the deposition should, undoubtedly, have been suppressed, as held in Hammond vs. Freeman, 4 Eng. 62.
    The effect of a judgment, or rather decree, of the Probate Court in confirmation of an administrator’s settlement has been duly considered by this court in the case of Ringgold vs, Stone, in the last volume of our Reports, and on that point nothing need be said.
    In the court below, it was insisted for the defense that the entire answer of Fowler is responsive to the bill, and that before the plaintiffs could recover they would have to disprove the answer by two witnesses, or by one with corroborating circumstances.
    The office of an answer is well understood; and no where has it been more fully discussed or more satisfactorily settled than by this court in the cases of Wheat vs. Moss, 16 Ark. 251, et set/,; Roberts vs. Totten, 13 Ark. 613; Whiting vs. Beebe, 7 Eng. 588; Biscoe vs. Coulter, 18 Ark. 435, 436.
    What this court says, in substance, is this: That an answer in chancery may sometimes perform the double office of pleading and evidence. -That wherever an answer is responsive to the charges of the bill, and when it states matters within the knowledge of the defendant, it is evidence, and shall be taken as true. But the answer is never evidence for the defendant when, after confessing the charges in the bill, it goes on to state matters in avoidance, to state what the plaintiff did not call on the defendant to state, and what the plaintiff did not want him to state.
    The bill charges that the defendant, Fowler, received certain property as administrator of Rufus Stone, deceased; the answer admits this to be so, but seeks to avoid the force of this admission by setting up the purchase. This would seem to be a clear case of confession and avoidance. Lott's Gilb. Ev. (Dublin Ed. 1795,) 52; 7 Vesey 404; Payne vs. Coles, 1 Munf. R. 395.
    Principle and authority combine to overthrow the position taken by appellees. And if the law is in favor of the appellants in this case, on that point, they had nothing to prove; but the whole burden of proof lay on the defendant, Fowler. And if it were admitted that the evidence shows a transfer of the slave and decree to Fowler, it is submitted that there is nowhere a single syllable of testimony going to show that the transaction was fair, that the consideration was' adequate, and the purchase equitable. t

    Yerbal admissions are the weakest kind of evidence ever admitted in courts of justice — they awaken a suspicion rather than convince the mind. When made in casual conversation, too little importance can hardly be given to them. Prater vs. Frazier, 6 Eng. 249.
    Besides, in this case we find a motive in Stone to attribute title, to Fowler. The answer shows that the former was in debt; the evidence shows that he was harassed by executions and seeking relief from his financial diflicultie.s.
    Moreover, the answer contains intrinsic evidence of the weakness of the defence. It cannot but be considered a strange thing that such a contract should be made, and that the attorney, knowing with what a jealous eye such contracts are looked upon, should have obtained no memorandum in writing of the transaction during Stone’s life — and Stone lived long after— and should' have no witness to prove the contract. The contract is not even proved to have ever been made. There is nowhere a syllable of proof to sustain the contract made in the answer. If made, it was between a client and attorney, where the attorney had a complete and most unusual ascendency over •the client] and, therefore, the contract should not only have been proved clearly, but it must be shown by the attorney, according to the authorities, that the contract was perfectly fair, adequate and equitable.

    Stillwell & Woodiiuff, contra.
    When in any case (and particularly in a case ljke this, where the complainant seeks to set aside a solemn judgment,) the ground relied upon for relief is fraud, the particular act of fraud, misrepresentation or concealment, and the manner of its perpetration must be pointed out. 7 How. U. S. Rep. 828; 7 J, C. R. 77; Story’s Eq. PL, sec. 800; 13 Ark. 616; 14 lb. 125; 20 lb. 537. In this case, there is only a general charge that the settlement was fraudulent and untrue — no averment that the negro or his hire was the property of Stone in his life time, or that Fowler made any misrepresentation or concealment.
    The defendant averred, and the evidence proved, that, at the time of his death, Stone had not the slightest interest in the nubject matter of the decree against Fulsom. The facts set up in defence did not occur after Fowler became administrator, or after the death; consequently they do not go to discharge him from liability admitted or proved, but show that there never was any liability. The answer of Fowler — he being compelled to answer and disclose the whole matter — and every fact stated in explanation must be taken as true, unless overturned by evidence. 16 Ark. 252; 13 lb. 123; 18 lb. 591.
    The matter never could be re-examined in any other than an appellate court, except upon the specific averment, sworn to, of fraud in the settlement, and having utterly failed to prove any fraud, and all the forms of law having been complied with, notice given and admitted and proved by the record, the the judgment of the Probate Court, confirming the settlement, is conclusive upon the plaintiffs. 14 8m, Mar. 98; 8 Ark. 270: 16 lb. 480: 14 lb. 124.
   Mr. Chief Justice English

delivered the opinion of the court.

This was a bill to impeach the final settlement of Absalom Fowler, as administrator of Rufus Stone, deceased, determined in the Independence Circuit Court.

The complainants were Jefferson Stone, in his own right, and as administrator of his deceased brother Solon, and as guardian of his minor brother Rufus, who were the sons and heirs at law of Rufus Stone, deceased.

The defendants were Fowler and Joseph H. Egner and Morgan Magness, the sureties of Fowler in his administration bond1.

The bill was dismissed for want of equity, the complainants appealed, and after the case was brought here, the death of Fowler was suggested, and Joseph Stillwell, his executor, substituted, etc.

The material allegations of the bill are, that Rufus Stone died intestate, 10th March, 1853. On the 26th of the same month Fowler bécame his administrator; and in April following, filed an inventory, in the Probate Court of Independence county, from which his letters were issued, stating that no assets had come to his hands, and there were none within his certain knowledge, except an old and diseased negro man, npt worth the expense of appraising.

That on the 1st of October, 1856, Fowler filed his account current for final settlement, in which he stated that nothing had come into his possession' as administrator, except the old and valueless negro referred to in the inventory; and that the estate was indebted to him in the sum of $2 ¿0, expended by him for letters, etc. Which account, after publication, was confirmed by the Probate Court, and Fowler discharged.

That but one demand had been allowed and classed against the estate; and that waS in favor of Wm. H. Stone for $200.

That it was not true, as stated in the settlement, that nothing came to the hands of Fowler, as administrator; but, on the contrary, that Rufus Stone, in his life time, commenced a suit against Isaac Folsom, in the Circuit Court of Jackson county} or a negro man named Ben, and for his hire for a number of years, in which suit, Fowier was the attorney of Stone; and after his death, the cause was revived and prosecuted in the name of Fowler, as his administrator. That on the final termination of the suit, Fowler, as such administrator, obtained a decree against Folsom for the negro, and for $1,675 00 hire; and that he afterwards obtained possession of the slave, and collected the hire, etc., but had failed to account therefor in his settlement. And'the bill alleges that in this, the inventory and settlement were false and fraudulent, etc., praying that Fowler and his sureties be compelled to account for and pay over the slave, the money collected on the decree, subsequent hire, etc., after deducting the $2 50, expended by Fowler for letters, etc., and that the same be appropriated first to the payment of the demand allowed in favor of "Win. H. Stone, and the remainder to complainants.

Egner and Magness demurred to the bill, on the grounds that if they were liable at all, the remedy against them was an action at law on the administration bond, and that they could not properly be joined with Fowler in a suit in chancery; but the demurrer was not disposed of until the hearing.

Fowler answered the bill. The answer, in substance, denies, in the most positive and direct terms, that any assets whatever, came to his hands as administrator of Stone, and particularly that the negro Ben, and his hire collected by him under the decree against Folsom, were assets.

On the contrary, he alleges that, at the time Stone employed him to bring suit for Ben (in the year 1848,) he was largely indebted to him for house rent, professional services, small sums of money advanced, balance upon a judgment transferred to him by one Calvert; and that he had control of another judgment against Stone in favor of one Stewart, etc., etc., the particulars of which are stated, and an account thereof exhibited. That Stone employed him upon an express agreement, that he was to have a fee of $500 for prosecuting the suit to its final termination, and was to take and appropriate Ben and his hire, if recovered, first to the payment of the fee, then to the liquidation of his other demands against Stone, and the balance, if any, to apply as a credit upon the Stewart judgment; and that under this agreement, he brought and prosecuted the suit, in the name of Stone, but for his own benefit.

That he obtained a final decree against Folsom, in the Jackson Circuit Court, 21st November, 1851, for Ben and his hire ; after which, and as of that date, he had a settlement with Stone, in which it was agreed that Stone’s entire indebtedness to him, including the fee of $500, was $2,510,.and he'was to credit Stone with $1,100 for Ben, that being the value fixed upon him by the decree, and $1,675, the amount of hire recovered, making an aggregate of $2,775, which extinguished Stone’s indebtedness to him, . and left a balance in Stone’s favor of $265, which was to be applied as a credit, upon the Stewart judgment, as originally agreed upon between them before the suit was commenced. That he was to take the decree and its fruits absolutely, and at his own risk — the risk of getting possession of Ben, and of the solvency of Folsom.

That there was pending between them at the time, however, a negotiation about an exchange of some lands, and it was understood that if it was perfected, the settlement was to be recast, but the exchange was never consummated.

That Stone died in November, 1852, (and not in March, 1853, as alleged in the bill,) and Folsom having appealed from the decree to the Supreme Court, Fowler, for the purpose of availing himself of the fruits of the decree, became his administrator, prosecuted the case in the Supreme Court, the decree was affirmed, and he afterwards obtained possession of the negro, Ben, and collected' the hire decreed, nominally as administrator of Stone, but for his own benefit, and that they were not recovered as assets, etc.

He denies that there was any fraud in his inventory or settlement, and pleads the judgment of the Probate Court in bar, etc.

It is insisted by the executor of Fowler that the allegations of fraud are general, and not specific, and that the bill is, therefore, fatally defective. But tbis is a misapprehension of the character of the allegations. The bill has the merit of being short and pointed, and is therefore creditable to the counsel who drafted it; but the facts upon which the charge of fraud- in the settlement is based, are distinctly and specifically stated. It is alleged that the negro Ben, and his hire, recovered in the suit against Folsom, were the effects of Stone, and came into the hands of Fowler as assets, and that in making his final settlement, he failed to charge himself with either, falsely stating that nothing had come into his possession : and in this, the fraud is alleged to have consisted. If Ben and the decree for his hire belonged to Stone at the time of his death, they constituted, it seems, his entire estate; and if Fowler recovered them as his administrator, and held them as such at the timé he made his final settlement, and yet failed to charge himself with them, or account for them, the settlement was fraudulent, according to the principles settled in Ringgold vs. Stone et al., 20 Ark. 526.

There is one feature of the case favorable to Fowler, which the bill fails to notice :'

It appears, as alleged in the answer and proven, that shortly after the death of Stone, he addressed a letter to his oldest son, Solon, informing him that he had purchased the decree against Folsom, of his father, in his lifetime, how he had paid for it, and that an administration was necessary to enable him to prosecute the suit, on the appeal of Folsom, in the Supreme Court, to obtain the benefit of the decree; and requesting him, or his mother, to take put letters; and stating that if they declined, he would do so himself. ITe also caused a written notice to be served on Folsom, informing him that he had purchased the decree, etc.; and when he filed his account, in the Probate Court, for final settlement, several years after he had administered, he stated, in a note at the foot of the account, that he had purchased the decree for Ben, and his hire, of Stone, during his lifetime, and fully paid him therefor, and that the proceeds thereof, were his own private property; and that his name, as administrator, was used in enforcing the decree as a matter of form only.

Thus it appears that Fowler’s claim to the decree was made known to the family of his intestate shortly after his death, to the probate c'ourt, and to any person who thought proper to look into the matter, when he filed his account in the clerk’s office for settlement; and the attention of the public was invited to it by the advertisement required by the statute. If there was any concealment, or imposition upon the probate court, it certainly did not consist in any failure of Fowler to inform the court, or to make public the fact that t^iere was such a decree, and that he had availed himself of its fruits.

The counsel have discussed, at length, the effect to be given to the answer of Fowler: for the appellants, it is insisted that so much of the answer as sets up Fowler’s purchase of the fruits of the suit against Folsom, is not responsive to the allegations of the bill, but new affirmative matter, to be proven by him; while the appellee contends that it is responsive, and must be taken as true, unless it. is disproven by the testimony of two witnesses, or of one, with strong corroborating circumstances.

The counsel for appellants cites, as in point, the case of Beckwith vs. Butler, 1 Washington’s Va. Rep. 224, in which the President of the court said :

The answer of a defendant, in chancery, is not evidence, where it asserts a right affirmatively, in opposition to the plaintiff’s demand. In 4uch case, he is as much bound to establish it by different testimony, as the plaintiff is to sustain his bill. The appellant, who is the heir at law, and executor of his father, swears in his answer, that the father, in his lifetime, gave him Tayloe’s bond, the amount of which forms the great bulk of the personal estate sought to be distributed. It would be monstrous, indeed, if an executor, when called upon to account, were permitted to swear himself into a title of his testator’s estate.”

That was a bill praying for a distribution of the personal estate of Sir Marmaduke Beckwith, and to set aside a deed made by Mm to. his son, Jonathan, for fourteen slaves, upon a suggestion of fraud in the obtaining of it, and for a division of them amongst the representatives. His son, who was' executor, in his answer, denied the alleged fraud in obtaining a deed, etc., and stated that there was little other estate, except a debt due from Col. Tayloe, which his father gave him, in his lifetime, as a compensation for his having consented to the sale of a large English estate, which would have descended to him.

The allegation in the answer, respecting the gift of Tayloe’s bond, was not supported by testimony;- and, upon that feature, of the case the President of the Court made the remarks above copied.

That case, it may be remarked, is distinguishable from the one now before us, in this: That was simply a bill against-an executor for distribution of the personal estate of his testator; and in his answer he stated that his father had given him part of the estate during his life, etc. The allegation of the gift was clearly affirmative matter, as held by the court.

In this case, Fowler’s final settlement account had been approved and confirmed by the solemn judgment of a court of competent jurisdiction, which is binding and conclusive upon the distributees until successfully impeached by bill in chancery for fraud in the settlement. Such is the provision of the statute. G. Dig., chap. 4, sec. 129. The appellants were required to charge the fraud in their bill, and to state the facts constituting the fraud; and the burthen of proving the fraud, as alleged, was upon them, when denied by the answer.

We think, however, without undertaking to determine the-precise effect to be given to so much of the answer of Fowler as sets up his purchase of the fruits of the suit against Folsom, that when the appellants made it , appear that the suit for Ben and his hire was brought in the name of Stone, during his lifetime, alleging his title to the- negro: that a decree was obtained before his death, in his favor; that Fowler became his administrator, made himself a party to the decree as such, and as such recovered the negro, and hire, decreed to his intestate, the onus probancU was shifted, and it was incumbent on him to prove that he purchased of Stone the fruits of the decree, in his lifetime, as alleged in his ariswer.

Declarations of Stone, to several witnesses, and expressions in his letters to Fowler, proven and read upon the hearing of the cause, tend strongly to establish the truth of the answer.

Richard Searoy testified, that some time in the year 1851, or 1852, after the suit against Folsom had been decided in the Jackson Circuit Court, Stone employed James Cason and Thomas Collard, to go to Walnut Camp, in Poinsett county, to get the negro Ben, in controversy in the suit. Witness assisted him in employing the young men, and Stone told him that he wanted the negro boy for Col. Fowler, and intended to send him over to the Colonel as soon as he got him.

Jesse SeaRcy testified, that after the rendering of the decree, in the. Jackson Circuit Court, in the suit between Stone and Folsom, Stone called upon him, in the presence of Fowler, to witness the tact that he had sold to Fowler the negro, Ben, referred to in the decree, stating at the same time, that tlie boy was to go as part payment of his indebtedness to Fowler. Witness heard him say frequently, both before and after this, that he was indebted to Fowler. lie also heard him say, on several occasions, that he wished Fowler to have the full benefit of the whole decree — that he wished him to have all the proceeds of it, as in payment, or part payment of his indebtedness to him.

W. W. TuNstall testified that during the lifetime of Stone, he had ‘conversations with him- about the suit between him and Folsom, .and the decree he had recovered against him, in the Jackson Circuit Court, for the negro, Ben, and his hire; in which conversations Stone told witness he had given up the decree and suit to Fowler. That he owed him, and had given the decree up to him, or the control of the decree.

Fowler resided at Little Rock, and Stone at Batesville.

The final decree against Folsom, in the Jackson Circuit Court, was not rendered until 21st November, 1851, but an interlocutory decree was made 24th May, 1851, establishing Stone’s right to the negro, Ben, and awarding him- process to obtain possion of the boy, and David W. Lowe, of Independence county, was appointed a special master to take and report an account of hire, etc.

In a letter from Stone to Fowler, dated Batesville, October 11th, 1851, after referring to the taking of depositions before the master, and complaining of Lowe’s tardiness, etc., he says: “As soon as Judge Lowe makes the decision, I will go and get the boy, Ben, and then fetch, or send him to you. If you should need money so hadly that it will not suit to keep him until you can test his qualities, you had better sell him for what he will fetch. He is young, stout, and likely, and. will sell for a fair price, independent of his mechanical qualifications,” etc.

In another letter of Stone to Fowler, dated Batesville, 29th November, 1851, he says : “Ben has not- as yet come in, but I am told he will soon be given up, and I think there is but little doubt of it. And I will send him to you the first opportunity.”

It is true, as insisted by the counsel for appellants, that the verbal declarations of a party, are, by no means, the most reliable evidence, and should be received with caution, and the importance to be attached to them depends much upon the circumstances under which the declarations are made, and. the accuracy of the memory of witnesses, who undertake to repeat them. But the written admissions of a party áre entitled to more weight.

The importance to be attached to the declarations and admissions of Stone, as tending to maintain the truth of the material allegations of the answer, is enhanced by the testimony of a number of witnesses, conducing to prove that he was largely indebted to Fowler, as alleged by him.

It was fully proven, by attorneys, that Fowler rendered the professional services, for Stone, referred to in the account exhibited with the answer, and that the charges made therefor were usual and reasonable. He was the attorney of Stone for many years, and attended to quite a number of cases for him in the courts. He also paid costs for him in several cases.

It was also proven that Stone occupied a dwelling house belonging to Fowler, in Batesville, for six or eight years, the rent of which was worth from $150 to $200 per annum; and that $125 a year, the amount charged by. Fowler, was low rent. • <

There was some evidence tending to show that there was a balance due upon the judgment of Oalvert against-Stone, and that by an arrangement between the parties, it was to be paid to Fowler, as alleged in his answer.

It was also made to appear that Fowler was the attorney of Stewart, in a suit in which he obtained the judgment against Stone, referred to in the answer.

Such.proof of the indebtedness of Stone to Fowler, tends to strengthen the importance to be attached to the declarations and admissions of Stone, which conduce to prove that he made a transfer of Ben and his hire to Fowler, in payment of his indebtedness, as alleged in the answer.

There was one act of Stone — the execution by him of a power of-attorney to Watson, December 11th, 1851, authorizing him to collect the decree against Folsom, and appropriate the proceeds thereof in payment of debts recited to be due to himself and others — which is inconsistent with all of his other declarations and admissions proven upon the hearing, and unless it may be accounted for on the supposition that the power of attorney was executed pending the negotiation between him and Fowler for an exchange of lands, and in view of some expected modification of the terms of their agreement, in relation to the proceeds of the decree, it must be concluded that, for the time being, he faltered in his determination to adhere, in good faith, to his agreement with Fowler.

Nor, have we overlooked an expression in a letter to Fowler to Stone, of 4th Decembei*, 1851, in relation to the exchange of lands, which appears, to militate against the truth of that portion of his answer, in which he is understood to state that he and Stone had, in the preceding month of November, come to a settlement and agreement in regard to the amount of Stone’s indebtedness to him, etc. But an instance rarely occurs, in a contested case, in which the court is able to reconcile the entire pleadings and evidence with the conclusion reached. Minor inconsistencies must yield to the general tendency of the proof to establish a particular hypothesis, and the decision must rest with the preponderance of the evidence.

Our conclusion is, that the weight of evidence is decidedly in favor of the truth of the material allegations of the answer.

We have examined the grounds on which the appellants moved to suppress the deposition of Tunstall, and concluded that they were unsubstantial, and that the court below was not in error in overruling the motion to suppress.

The 1st objection is, that the commission was not entitled of any suit, etc.

The deposition was taken upon interrogatories, under an order of the court. It appears from the transcript before us, that, in issuing the commission, the clerk first stated the names of the parties, and the court in which the suit was pending, in the caption ; then copied the order of court: and then followed the commission, in which the officer, to whom it was directed, was required to examine Tunstall as a witness “m the above-mentioned suit? upon the annexed interrogatories.

The 2d objection is that a copy of the interrogatories was annexed to the commission, and not the originals.

Fowler applied to the court for an order to take the depositions of Tunstall and Waring, upon interrogatories to be propounded to both witnesses. The record states that the counsel of the opposing parties examined the interrogatories, made no objections to them, and filed no cross interrogatories, whereupon the court made an order for á commission to issue to take the deposition of each of the witnesses, and that a' copy of the interrogatories be annexed to each commission.

If the statute (Dig. ch. 55, see. 11,) contemplates that the original interrogatories should be annexed to the commission, or if such be the practice, we do not see how the appellants could possibly have been prejudiced by the clerk’s permitting the originals to remain on file, and annexing a copy to the commission, as directed by the order of court. There is no pretence that the copy was imperfect, or differed in any respect from the original interrogatories examined and acquiesced in by the counsel for the appellants.

•The 3d objection is, that the certificate of the justice of the peace, before whom the deposition was taken, does not state that it was reduced to writing in his presence, as required by the statute.

The justice states in his certificate, “That the examination, responses and statements of said deponent was reduced to writing in my, and by the said deponent sworn to and subscribed in my presence, at the time and place aforesaid,” etc.

It is manifest that the want of the word “presence” after the word “ my” where it first occurs in the certificate, was a mere clerical omission by the justice; and taking the whole certificate together, it is evident that he meant to certify that the deposition was reduced to writing in his presence.

The question in regard to the reading of letters of Stone, etc., in evidence upon the hearing, which were not made exhibits to the answer, but proven by depositions taken upon notice, was decided in Trapnall adx. vs. Byrd’s ad., 22 Ark., 10.

To recur again to the merits of the .cause, we have found nothing in the record to make the impression that Fowler, in making the agreement with Stone to transfer to him the fruits of the suit against Folsom, for Ben and his hire, abused the confidential relation existing between them as attorney and client, or that the agreement was unreasonable or unfair, considering the indebtedness of Stone to Fowler, and the services to be performed by him in-that suit.

The decree of the court below, dismissing the bill, must be affirmed.

Mr. Justice Fairchild did not sit in this case.