author: Harrison, J.

text:
    Watson vs. The State.
    1. Criminal Law : Compounding a felony.

    Compounding a felony is the offense of taking a reward for forbearing to prosecute a felony.
    2. —Bribery.

    Bribery is the taking or offering a reward to influence the official con. duct of a judge or other person concerned in the administration of justice.
    3. Criminal Procedure: The verdict must be responsive to the material allegations of the indictment.

    An information, in which the offense charged is called compounding a felony, but in which the facts stated constitute bribery, is, in reality, a charge of the latter offense; and a verdict finding the party guilty of the former offense is erroneous and should be set aside.
    4. —Defective warrant of arrest.

    The only purpose of the warrant of arrest is to bring the person charged with an offense before the officers issuing it, to be dealt with etc.; the object of stating the offense charged is ;to apprise the party for what he is arrested, and a defective statement will not affect the subsequent proceedings.
    5. — Criminal ¡jurisdiction of justices of the peace under the constitution of 1868.
    Under the constitution of 1868, justices of the peace, had concurrent jurisdiction of all criminal matters less than felony, and no written information or pleading was necessary.
    APPEAL from Pulaski Criminal Court.
    Hon. Charles P. Redmond, Circuit Judge.

      Benjamin & Barnes, for appellant.

      S. P. Hughes, Attorney General, contra.

   Harrison, J.

Orrin Watson was, upon the information of one Carter R. McClellan, arrested and brought before a justice of the peace in Pulaski county, on a charge of bribery.

The information, which was in writing, was as follows:

State oe Arkansas — County of PulasJci I, Carter R. McClellan, do solemnly swear that William Tall and - McHaney (whose Christian name is to affiant unknown) did, on or about the 13th day of March, 1873, in the county and state aforesaid, feloniously steal, take and carry away one cow worth thirty-five dollars, the property of Samuel Crawford, and that one Orrin Watson, who was then and there a duly qualified and acting justice of the peace in and for said county and state, upon affidavit being made before him, the said Watson, by the said Crawford, issued a warrant for the said Tall and McHaney, who were on said day brought before the said Watson, who, upon an examination of said charge, found that there was probable cause to believe that they had committed the crime with which they were charged ; and affiant further says, that the said Watson, then and there well knowing the said crime to have been committed, but contriving and intending unlawfully to prevent the due course of law and justice in that behalf, and to cause and procure the said Tall and the said McHaney for the felony aforesaid to escape with impunity, afterwards, to-wit, on the day and year aforesaid, in the county and state aforesaid, unlawfully and for wicked ■gain’s, sake, did compound the said felony with the said Tall and McHaney, and did then and there exact, take and receive and have of the said Tall and McHaney two horses, for and as a reward for compounding the said felony and desisting from all further prosecution against the said Tall and McHaney or either of them, for the felony aforesaid ; and that the said Orrin Watson, justice etc., as aforesaid, on the day and year aforesaid, in the county and state aforesaid, did thereupon desist, and from that time hitherto hath desisted from all further prosecution of the said Tall and McHaney for the felony aforesaid. Wherefore, affiant prays that the said Orrin Watson may be apprehended and dealt with according to law.

“C. R. McClellan.

“Sworn to and subscribed before me this 20th day of August, 1873. Thos. C. Peak, J. P.”

He was tried by a jury which found him guilty of compounding a felony, and assessed his punishment at three hundred dollars fine and three months’ imprisonment. He appealed to the criminal court of said county, where he was again found guilty of the same offense and the same punishment assessed, and having failed to obtain a new trial or an arrest of judgment, he appealed to this court.

Several exceptions to the ruling of the court were reserved by the defendant during the progress of the trial, which were made grounds of his motion for a new trial, but as the questions raised by them relate to the offense of compounding a felony, which was neither charged in the information, nor disclosed by the evidence, and therefore abstract and irrelevant, they need not be noticed.

Although, in the information, the offense is called compounding a felony, the facts alleged, and which the evidence upon the trial tended to prove, show the commission of, and constitute the crime of bribery; and that is the offense, really, with which the defendant is charged.

Compounding a felony is “the offense of taking a reward for forbearing to prosecute a felony. As where a party robbed takes his goods again, or other amends upon an agreement not to prosecute.” Burrill’s Law Dict. Blackstone says: “Of a nature somewhat similar to the two last” (taking a reward under pretense of helping the owner to his stolen goods, and receiving stolen goods, knowing them to be stolen) “ is the offense of theft bote, which is, where the party robbed not only knows the fellow, but also takes his goods again, or other amends upon agreement not to prosecute. This is frequently called compounding of felony, and formerly was held to make a man an accessary; but it is now punished only with fine and imprisonment.” 4 Black. Com., 133 ; 1 Russ. on Crimes, 131 ; 1 Hale P. C., 619; 1 Hawk. P. C., 476.

“Bribery * * is where a judge or other person concerned in the administration of justice takes any undue reward to influence his behavior in office.” 4 Black. Com., 139. And Bussell says: “ Bribery is the receiving or offering any undue reward by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to influence his behavior in office, and incline him to act contrary to the known rules of honesty and integrity.” 1 Russ. on Crimes, 154; 1 Hawk. P. C., 414.

The taking or the offering a reward to influence official conduct is a necessary ingredient in bribery, but without an averment of that kind, or proof of such fact, the accused, in a case like the present, may be convicted of malfeasance in office, which is an offense as well by common law as by statute. 1 Russ. on Crimes, 135; 4 Black. Com., 141; 1 Hawk. P. C., 413; Gantt’s Dig., 1995, 1998.

The punishment prescribed by the statute for compounding a felony is a flne of not less than three hundred dollars and imprisonment not less than three months. Gantt’s Dig., 1427; and for bribery and for malfeasance in office, a fine not exceeding two hundred and fifty dollars and imprisonment not exceeding one year, or by fine and imprisonment both; or such was the punishment for bribery when the offense here charged is alleged to have been committed, which was before the passage of the act of April 5, 1873, by which bribery is made a felony. The said act makes no change in the punishment for malfeasance in office.

It is then apparent that the verdict of the jury, finding the defendant guilty of compounding a felony, and assessing the fine at three hundred dollars, when the highest fine for bribery, as the law was when the offense is alleged to have been committed, was but two hundred and fifty dollars, was erroneous, and should' have been, on the defendant’s motion, set aside and a new trial ordered.

The defendant insists that the judgment should have been arrested for two reasons:

1. Because >the offense was not sufficiently set out in the warrant of arrest; and 2. Because the defendant could only be prosecuted by indictment for the offense, and the justice of the peace had, therefore, no jurisdiction of the case.

The only purpose of the warrant is to have the person charged with the commission of the offense arrested and brought before the justice, or other officer issuing it, to be dealt with according to law; and when that is done, it has performed its function, and has no operation whatever upon the subsequent proceedings. The object in naming or stating in it the offense charged is only that the person to be arrested may at the time be informed for what he is arrested ; but if it does not then sufficiently appear, it can have no such effect as releasing him when brought before the magistrate.

In prosecutions in justices’ courts, no written information or pleadings are required. Gantt’s Dig., 2039.

Jurisdiction in all criminal matters less than felony is expressly conferred on justices of the peace by sec. 20 of art. VII of the constitution of 1868.

Their jurisdiction is not, however, exclusive, and all misdemeanors may be prosecuted by indictment in the criminal court. Tucker, ex parte, 25 Ark., 567; Gantt’s Dig., 1639. And upon a conviction in the circuit court for any malfeasance in office, in addition to the other punishment, a judgment of removal from office is rendered.

There was, clearly, no want of jurisdiction in the justice of the peace before whom the prosecution was commenced; nor for that cause in the criminal court to’which the case was brought by appeal; but because the verdict was not warranted by law, and a new trial for that reason should have been had,, the judgment is reversed and the cause remanded to the circuit court of Pulaski county, to which the jurisdiction of the said criminal court has been transferred by law and now belongs, with the instruction to set aside • the said verdict and order a new trial, and for further proceedings.


source: Caselaw Access Project

license: Public Domain

text:
    Page vs. Sutton, Orlopp & Co.
    1. Appeal: From, a justice of the peace on judgment by default.

      An appeal cannot be granted from a judgment by default rendered by a justice of the peace, unless the defendant, within ten days after the judgment is rendered, make application to the justice to set it aside.
    2. Judgment by Default: When proper.

    When a defendant has appeared to the action but interposed no answer or defense, judgment by default may be rendered against him.
    APPEAL from Pulashi Circuit Court.
    Hon. John Whttook, Circuit Judge.

      Benjamin & Barnes, for appellant.
    Bose, contra.

   Harrison, J.

Sutton, Orlopp & Co. sued P. Cady and Henry Page, before a justice of the peace in Pulaski county, upon an account. The summons was served on Cady but not on Page; and at the return of the summons, judgment by default was taken against Cady and an alias summons issued against Page.

At the return of the alias summons, which was on the 10th day of July, 1873, Page appeared and applied for a> continuance of the case, which was granted; and on the 14th day of July, 1873, the time to which the same had been continued, he again appeared, and the case was, by consent of parties, postponed until the next day. On the next day, the 15th of July, Page failed to attend and judgment by default was rendered against him also.

On the 5th day of August following, Page, without having applied to have the judgment set aside, applied to the justice for an appeal, which the justice refused to allow; whereupon he applied to the judge of the circuit court for a rule on the justice to allow the appeal and to send up to that court a transcript of the proceedings, together with the papers in the case.

The justice in response to the rule returned and showed the foregoing facts; and upon consideration of the,sufficiency of the same, the court discharged the rule and dismissed the proceedings. From this order Page appealed. ■

The provisions of tbe statute regulating appeals from the judgments of justices of the peace are plain and explicit; that particularly relating to appeals from judgments by default, is as follows:

“ No appeal shall be taken from a judgment by default, unless within ten days after the rendering of such judgment, application shall have been made to the justice by the party aggrieved to set the same aside, and such application shall have been refused.” Gantt’s Digest, 3820.

The appellant, however, contends that having appeared at the return of the summons and obtained a continuance of the case, the judgment subsequently rendered was not a judgment by default. We are at a loss to see how that fact could, in the least, change or affect the case or the judgment to be rendered. The same consequence attended his failure to be present and contest the plaintiff’s demand on the last day, as would have followed such failure on the return day of the summons, had he not appeared and got a continuance of the case. His failure and neglect to defend the suit was an admission of his liability.

Burrill in his Law Dictionary gives this definition of default: “ Default. In practice, omission, neglect or failure. "When a defendant in an action at law omits to plead within the time allowed him for that purpose, or fails to appear on the trial, he is said to make default; and the judgment entered in the former case is technically called a judgment by default.”

Judgments by default, according to the common law practice, are either by non sum informatus, where, instead of entering a plea, the defendant’s attorney says he is not informed of any answer to be given to the action ; or, nil dicit, where it is rendered against the defendants for want of a plea.

A default may be after an appearance as well as before.

When no answer or defense is made to the action, no issue is formed between the parties, and there is no trial required to determine the defendant’s liabilities ; the only inquiry to be made is, as to the amount for which the judgment shall be rendered.

This, it was the duty of the justice to ascertain, and which he did in the same manner he would have done had the defendant not appeared,, on the return day of the summons. The appellant, not having complied with the statute by applying to have the judgment by default set aside, was not therefore entitled to an appeal therefrom; and his application to •the circuit court to compel the justice to allow the same was properly refused.

Judgment affirmed.


author: English, C. J.

text:
    Files vs. Harbison et al.
    1. Commissioner’s Sale -. Notice : Erroneous advertisement.

    A special execution was issued under a decree for the foreclosure of the vendor’s lien, in which the lands were correctly described, the commissioner to whom the execution was issued, returned that he had sold the lands described in the execution, and made a deed to thev purchaser in conformity to the return; through a clerical error the land was misdescribed in the advertisement, and the commissioner, without appearing to have known of the mistake, told a stranger to the proceeding, he would only sell the lands that were advertised; the purchaser was not a party to the process, nor shown to have had knowledge of the mistake: Held, that whether the commissioner’s conduct was influenced by fraud or mistake, the purchaser obtained a valid title.
    2. —How irregularity may be remedied.

    If the irregularity was prejudicial to those interested in the land, they had the right to apply to the court from which the execution issued, to have it set aside.
    3. — When the return cannot be contradicted.

    In such a case, the commissioner’s return cannot be contradicted after deed is executed.
    4. Evidence : Of bankruptcy, and sale by assignee.

    Where the bankruptcy of a party, and the sale and assignment by his assignee of a judgment in his favor are to be proved, a certified transcript of the adjudication, and the written assignment of the judgment, are the best evidence.
    APPEAL from Ashley Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      J. W. Van Gilder, for appellant.
   English, C. J.

Abner W. Files brought an action on the law side of the Ashley circuit court, against Jackson P. Harbison and Presley F. Harbison, for the northwest quarter of section eight, T. 17 S., R. 8 W., alleging in the complaint, title and right of possession in himself, and that defendants held possession of the land without right, etc.

The defendants filed an answer April 26, 1871, denying •each and all of the statements in the complaint.

On the 2d of May following, the defendants filed an amended answer, alleging in substance as follows:

That on the. 24th of February, 1868, one B. Tiner, then -sheriff of Ashley county, offered for sale the N. W. of N. W. ■of S. E. of sec. 8, T. 17, R. 8, and no other lands in said section, and not the N. W. of said section, under an execution in favor of D. L. Pippin v. Wm. Harbison.

That being in possession of the N. W. i of said section, and claiming title thereto, they made inquiry of the sheriff if he intended to sell any other lands than those mentioned in the advertisement, and he said he had only the right to sell such lands as were duly and regularly advertised, and he would sell no others. And defendants say that said N. W. i of said section 8 never was advertised, and was never sold by said sheriff, and that said plaintiff Files had notice of these facts.

That said N. W. ¿ of sec. 8 was never levied on under said fi. ja. in favor of said Pippin v. Wm. Harbison, and was never sold at said sheriff’s sale.

That said judgment in favor of Pippin v. Harbison remaining unexecuted, and said Pippin having gone into bankruptcy, the same passed to his assignee, who on the-day of-, 187 — exposed the same for sale at Hamburg, and defendants became the purchasers thereof, and the said assignee transferred and assigned the same to them.

And the lien of said judgment remaining in force, defendants caused an execution to be sued out on said judgment, and levied on said N. W. ¿ of sec. 8, which was purchased by them, and a certificate of purchase executed and delivered to them. And of this they put themselves on the country.

There was a de.murrer to the answer, which does not appear to have been disposed of.

At the October term, 1871, the cause appears on the chancery side of the court, but how it got there is not shown. It was continued by order of the court

At the May term, 1872, it appears again on the chancery side, the parties submitted their, evidence, and the court found the issue for the defendants, and rendered a judgment against the plaintiff for cost.

The plaintiff moved for a new trial, on the grounds:

1. That the finding of the court was contrary to the evidence.

2. That it was contrary to law.

3. That the court erred in declaring the law as asked by defendants.

The court overruled the motion for a new trial, and the plaintiff took a bill of exceptions and appealed.

The bill of exceptions shows that the cause was tried on the chancery side of the court, the judge presiding as a chancellor.

The appellant introduced J. J. Curry, the clerk of the court, who testified that the chancery record of the court containing the proceedings of the August term, 1867, had been burned, and produced the execution docket, showing the issuance and entry of a special ft. fa. on a decree in favor of Duncan L. Pippin against ¥m. Harbison.

Appellant then produced and read in evidence the original special fi. fa. in the case of Pippin v. Harbison, and the return thereon of Benjamin Tiner as commissioner appointed to sell the lands in said decree mentioned.

It bears date 20th January, 1868, is directed to Benjamin Tiner, commissioner, etc., and recites that on the 31st day of August, 1867, Duncan L. Pippin recovered a decree on the chancery side of the Ashley circuit court against Wm. Harbison, for $2,880 debt, $1,261.13 damages and for costs, etc., to secure which, lands were mortgaged, which are described, and among them, “ the N. W. 1 -4 and N. W. 1-4 of the S. E. 1-4, Sec. 8, T. 17 S., R. 8 W.” It further recites that it was decreed by said court that unless said sum of money should be paid on or before the 1st day of January, 1868, a special execution should issue against said lands; and that the debt had not been paid, etc.

It then commands the commissioner to sell the said lands, or so much thereof as might be necessary to satisfy the decree, etc., to the highest bidder, etc., at the court house door, etc., on, etc., and that he make return, etc., at the next term of the court, etc.

Tiner returned upon the writ, that after giving twenty days’ notice in the “Ashley County Times,” of the time and place of sale, he offered the lands described in the writ at public sale, at the court house, etc., on the 24th of February, 1868, and that the same were struck off to the appellant at the sum of $70, he being the highest bidder, etc.

Appellant also read in evidence the deed executed to him by Tiner, as commissioner, for the lands, which bears date the 3d of March, '1868. The deed recites the decree, the special execution, the advertisement, sale and purchase of the lands by appellant, describing them as described in the execution, and conveys them to appellant. It was acknowledged before a justice of the peace.

M. L. Hawkins, witness for appellant, testified that he was the attorney of Duncan L. Pippin, and obtained a judgment in his favor against Wm. Harbison, on the law side of the circuit court of Ashley county, for about the amount specified in the fi. fa., and after finding that Harbison had not sufficient personal property of which to make the debt, he filed a bill on the chancery side of the court to enforce the vendor’s lien on the lands described in the special fi.fa., obtained a decree against the lands, and that they were sold, and bought by appellant.

Appellant also proved that appellees were in possession of the land in controversy, the value of the rents, etc.

J". P. Harbison, one of the appellees, testified on the part of the defense, that on the day the lands were sold by Tiner, he went to him and asked him if he was going to sell any other lands in the case of Pippin v. Harbison, than those advertised by him in the “Ashley County Times.” That Tiner replied, as well, as witness could recollect, that he would not; that he was present at said sale, and only the numbers set forth in the paper referred to were read out — were read from the paper; that at the time of the sale, witness and his co-appellee had no interest in the land in controversy; that after the sale, Pippin went into bankruptcy, and at a sale made by his assignee, appellees purchased the judgment of Pippin against Harbison, caused an execution to be issued thereon, levied on the land in controversy, and witness became the purchaser thereof at the sale under the execution, and obtained a certificate of purchase of the officer making the sale.

G. W. Norman testified that appellee, J. P. Harbison, consulted with him before the sale made by Tiner, and showed him a copy of the “Ashley County Times,” containing a notice of sheriff’s sale, and he advised Harbison to go and see Tiner and get him to make a deed to such lands only, in this case, as were advertised. That at the request of Harbison, after the sale, he went with him to Tiner and so advised him, and Tiner said he would only make a deed to such lands as were advertised. Witness was not at the sale, and did not know whether any other lands were sold than those advertised or not. That he, as agent of John Wassell, assignee of Pippin, sold the judgment of Pippin against Wm. Harbison, and appellees purchased it; and afterwards an execution was issued on the judgment, the land in controversy levied on and sold, and bought by appellee, J. P. Harbison.

W. D. Moore testified that he was not certain whether he was present at the sale made by Tiner, but thought perhaps he was. Did not know whether, in making the sale, Tiner read the numbers of the lands sold from the newspaper or the execution, but thought his custom was to read numbers from the advertisement.

Appellees were then permitted to read in evidence, against the objections of appellant, from a copy of the “Ashley County Times,” Tiner’s advertisement of the sale under the special fi. fa., in which all of the lands were described as in the writ, except those in section 8, which were described thus: “N. W. of N. W. of S. E. of S. 8,” etc.

Appellees then introduced the execution issued upon a judgment recovered by Pippin against Harbison, on the law side of the court, and the return thereon. The execution bears date 30th November, 1870, is directed to W. M. Smith, constable of Carter Township, of Ashley county; recites a judgment recovered by Pippin for the use of J. P. Harbison, against Wm. Harbison, in the circuit court of Ashley county, on the 22d of September, 1869, for $4,091.13, debt and damages, etc., and commands the constable to levy the same of the goods and chattels, lands and tenements of Harbison, etc.

The return of the constable on the execution shows that he levied upon the tract of land in controversy (N. "W. i Sec. 8), and another tract; sold them on the 24th February, 1870, and that appellee, J. P. Harbison, purchased them.

Appellee also introduced a certificate of purchase made by. the constable to J. P. Harbison.

The above is the substance of all the evidence introduced by the parties.

On the motion of the appellees, and against the objection of the appellant, the court declared the law of the case to be as follows:

1. “That if Ben. Tiner, as sheriff or commissioner, executed to plaintiff a deed for the lands in controversy, without having advertised them or cried them for sale, the deed is void.

2. “If the defendants were in possession of the lands at the time of the sale, cultivating them, and previous to said sale demanded of commissioner what lands he would sell, and being informed that he would sell only those in the newspaper advertisement, and that those only were offered for sale, said deed of plaintiff is void as to defendants.

3. “ If said advertisement was not made of said lands, or if said lands were not actually sold on the 24th of February, 1868; and if on the — day of —, 1869, the plaintiff, Pippin, having bankrupted, and the said judgment of Pippin v. Harbison was assigned and sold and bought by defendant, and that they afterwards had the same [the lands] sold and a certificate of purchase made to them, and if said Files never had his deed recorded, that the same was never notice to defendants, a,nd the decree must be for them.”

I. No motion appears to have been made in the court below to transfer the cause from the law to the chancery side of the court, nor is there any order in the transcript making the transfer, or for the trial of an equitable issue.

Some such order was perhaps made, in an attempt to follow a provision of the code (Gantt’s Dig., sec. 4465), which the clerk may have omitted to enter, or copy in the transcript, as the cause was tried on the chancery side of the court without objection of the parties.

What should be the proper practice, under the provision of the code referred to, we shall not attempt to settle in this case, as the question has not been presented. (See Bosley v. Mattingly, 14 B. Mon., 91.)

It is remarkable, however, that after the cause was placed on the chancery side of the court, it was tried without a change of pleadings, and in all respects as it would have been if it had remained on the law side of the court, except there was no jury, and the court made no special finding of facts. The trial was upon the issue made by the complaint and answer; the answer was without exhibits or prayer; the parties introduced all their oral and written evidence; the court was asked to make declarations of law, as if instructing a jury; there was a finding of the issue for the appellees, and simply a judgment against the appellant for costs, a motion for a new trial overruled, and bill of exceptions.

If this was proper practice on the equity side of the court, under the code, the cause had as well remained on the law side.

II. Proceeding to dispose of the case on its merits, we will consider the objections made on the trial to the title of the appellant.

It appears that Pippin obtained a decree against Wm. Harbison to enforce a vendor’s lien upon lands for purchase money, and among the lands commanded to be sold to satisfy the decree, was the northwest quarter of section eight, etc., which is the subject of this action. A special execution was issued to Tiner, who was appointed a commissioner, by the decree, to sell the lands, and who was also sheriff of Ashley county at the time.

He returned upon the writ that he had advertised and sold the lands, as directed by the writ, and that appellant purchased them. He also executed to appellant a deed to the lands.

In the writ and in the deed, the lands appear to have been correctly designated by their proper numbers.

Those in section eight were described as the N. "W". 1-4 and N. W. 1-4 of the S. E. 1-4, etc., making, two hundred acres, or the whole of the northwest quarter and a fourth of the southeast quarter of the section.

In the advertisement, by a mistake of the printer, perhaps, the lands in section eight were described as tbe N. W. of N, W. of S. E., etc. Thus, by the substitution of “of” for “ and,” between the numbers of the first and second tract, the northwest quarter was omitted, and only ten acres, or a fourth of a fourth of the southeast quarter advertised.

It was not proven that the officer making the sale knew of this mistake in the advertisement when the sale was made. One of the appellees asked him if he intended to sell any lands except such as were advertised, and he replied that he would not; but there was no proof that his attention was called to the mistake in the advertisement of the lands in question. But if it be assumed that he knew that the lands were imperfectly advertised, and that he acted fraudulently in the matter, there is no proof that the appellant, who was not a party in the process, had any knowledge.of such mistake or fraud. He stands in the attitude of an innocent purchaser, and obtained a valid title to the land, notwithstanding any such irregularities on the part of the officer making the sale. Newton v. State Bank, 14 Ark., 12; Newton's Heirs et al. v. State Bank, 22 id., 26; Byers & McDonald v. Fowler et al., 12 id., 218; Ringo v. Patterson, 15 id., 209.

If the mistake in the advertisement, or other irregularities, caused an unfair or injurious sale of the lands, parties interested in the lands had the right to apply to the court from which the execution issued, to have the sale set aside. State Bank v. Noland, 13 Ark., 300.

At the time of the sale, appellees had no title to the lands. One of them attempted to acquire title afterwards.

Appellees made an effort to prove that the commissioner did not sell the tract of land in controversy at all, but this was a mere attempt to contradict the return of the officer, which was not permissible. See cases cited above.

TTT. As the judgment will have to be reversed, and the cause remanded for further proceedings, there are some irregularities in the defense made by the appellees, which it may be proper to notice.

The answer alleges that both of the appellees purchased the land in controversy at execution sale, and recieved a certificate of purchase. The return of the constable upon the execution shows that J. P. Harbison made the purchase; and the certificate of purchase introduced in evidence, was made to him. Appellee, Presley E. Harbison, made no attempt to show any title in himself.

The bankruptcy of Pippin, the sale of the judgment in his favor against Wm. Harbison, its purchase by appellees, and its assignment to them by Pippin’s assignee, were proven by parol. ■ If these were material facts to be proven, an authenticated transcript of.the adjudication in the bankrupt court, and the written assignment of the judgment by the assignee would have been the better evidence.

The execution under which J. P. Harbison claims to have purchased the land was directed to a constable and- the sale was made by him, and there was no recital in the writ, or other showing that the offices of sheriff and coroner were vacant, or that they were disqualified to execute the process. Gantt’s Dig., secs. 814-15; Thompson v. Bromage, 14 Ark., 59.

The execution recites that the judgment was recovered by Pippin for the use of J. P. Harbison. Whether this is a correct recital or not does not appear, as the judgment, was not introduced in evidence. If he was in fact a party to the judgment and execution, he, perhaps, would be held to have had notice of irregularities in the process; but how far such irregularities would affect his purchase under the process, we need not now decide:

' IV. In the 3d declaration of law made by the court below, there are several distinct propositions, or matters embraced, the last of which.is, “that if said Files never had his-deed recorded, the same was never notice to defendants, and the decree must be for them.” The appellee, Presley E. Harbison, made no attempt to show title to the land in controversy in himself, and how the failure of appellant to have his deed to the land recorded could affect any right of his, is not perceived.

Appellee, J. P. Harbison, would not necessarily be an inno■cent purchaser without notice, because of the failure of appellant to record his deed before he purchased, if such was the fact, for he might have had actual notice of appellant’s title before he purchased.

There was no allegation in the answer of appellees that appellant had failed to record his deed, and that appellee, J. P. Harbison, was a bona fide purchaser without notice, etc.

This matter was not put in issue by the pleadings, and there ■was but little or no evidence on the subject, and inasmuch as the case has to be sent down for further proceedings, we deem it better, on the meager facts before us, to leave the question with these observations.

The judgment or decree, if it may be so termed, must be ■reversed, and the cause remanded for such further proceedings as the parties may see proper to take in accordance with law, :and not inconsistent with this opinion.


text:
    Turner vs. Tapscott, Adm’r.
    1. Appeal : When second appeal allowed.

    A party who has taken an appeal without supersedeas, and failed to perfect it within the time required by law, may take another appeal at any time within the period during which appeals are allowed.
    2. —Practice on second appeal.

    In such cases it is the better, but not the necessary practice, to have the first appeal docketed and dismissed before taking a second appeal.
    APPEAL from White Circuit Court.
    Motion by appellee to dismiss appeal.

      J. M. Moore, for the appellant.
    — McRae, contra.

   Harrison, J.

An appeal was taken in this case in the court below, without supersedeas, on the 27th day of February, 1873; but no transcript was filed here .until the 27th day of February, 1874, when the appellant applied to and obtained from the clerk of this court another appeal, and thereupon filed the transcript.

The appellee has moved to dismiss the appeal thus taken before the clerk, and insists in support of his motion that the appellant having failed to file the transcript of the record within ninety days after his appeal in the court below was taken, he lost the right to file it afterwards, and also to any appeal in the case. Conceding that after the expiration of ninety days the appellant may not, unless for good cause shown, file the transcript, the question presented is: . Has a party who has once taken an appeal and failed to perfect it by filing the transcript in proper time, or the same has for any cause been dismissed, the right to take another appeal at any time within the period in which appeals are allowed? In Yell v. Outlaw, 14 Ark., 414, the court decided that after an appeal had been taken and submitted, and afterwards dismissed by the appellant, he might have a writ of error in the same case.

We think it difficult to find a distinction in principle, or a difference in effect upon the rights of the parties, between a second appeal and a writ of error taken after an appeal has been taken, and for any cause dismissed or abandoned.

The same object is attained or sought, whether the cause is brought here by appeal or writ of error, and the same consequences follow the affirmation or - reversal of the judgment. Pope v. Latham, 1 Ark., 66. In the case just referred to, a distinction was made between the cases where the judgment was not superseded and those where it was; and the court say: “ If the successful party in the court below is not hindered by the appeal from having execution, no good reason is perceived why the appellant may not dismiss his appeal at any time before the final adjudication of it, with like effect as if he had brought the cause here for revision, by writ of error without supersedeas.”

In addition to the reason there given for the distinction, we will remark that the court below has no power over the supersedeas, whether the appeal has reached here or not, and that it is subject to the jurisdiction and control of this court alone. The view we have here indicated is in accordance with the settled practice in the supreme court of the United States, which allows a party to take a second appeal within five years from the date of the rendition of the judgment, when the first has not been legally prosecuted, or been dismissed. Yeaten v. Lenox, 8 Pet., 123; United States v. Curry, 6 How., 106 ; Virginia v. West, 19 How., 182; Costia v. United States, 3 Wall., 46; United States v. Gomez, id., 752.

But whilst we hold that the appellant, notwithstanding he took an appeal in the court below, but failed to perfect it by filing the transcript in time, still has a subsisting right to an appeal, and therefore refuse to dismiss that now pending, we think tbe better practice, where the appeal which does not have the effect to supersede the judgment or decree is for any cause not prosecuted, to be for the appellant to make application to the court to have the case docketed, and then ask to have the same dismissed before applying for a second appeal.

The motion to dismiss the appeal is overruled.


author: Williams, Sp. J.

text:
    Rice and wife vs. Reed.
    Writ of Error: Pending appeal with supersedeas.

    When an appeal has been granted to this court, with supersedeas, a writ of error will not lie until the appeal has been dismissed.
    ERROR to Phillips Circuit Court.
    Motion by defendant in error to' dismiss.

      U M. Rose, for plaintiff in error.

      English & Ford, contra.

   Williams, Sp. J.

The plaintiff sued out of this court a writ of error in this case.

Defendant has pleaded, in abatement of the writ, that plaintiff, during the same term in the court below, at which the judgment was rendered, had prayed an appeal to this court, which the court below granted; and that plaintiff had filed in said court a supersedeas bond, whereby the execution of the judgment was stayed until the determination of said appeal; and while said appeal was pending and undetermined, and the execution of the judgment stayed and superseded as aforesaid, sued out the writ of error, etc. To this plea, plaintiff in error demurred.

It has been well settled in this court that where an appeal has been taken in the court below, and dismissed by this court without a hearing upon the merits, that a writ of error would lie, and under the said practice an appeal might be granted by the clerk of this court.

We decide at this term that where such an appeal is taken, and not perfected by filing the transcript in this court within the time prescribed by law (ninety days) after the same is taken, that an appeal may be granted by the clerk of this court, where there was no supersedeas bond given.

In the case of Clay, Adm'r, v. Notrebe's Ex'rs, 6 Eng., 631, Clay appealed to this court, and the affidavit and supersedeas bond were filed in the court below, and the appeal was then granted and the judgment superseded. He afterwards took out a writ of error to the same judgment from this court, and brought the case here by writ of error. Notrebe’s executors pleaded, as has been done here, in abatement of the writ, the pending of the appeal, setting up the facts of its having been granted, and the supersedeas, etc.

Judge Scott, delivering the opinion of the court, put great stress upon what he deemed to be the fact, that the appeal was not pending here, an issue that was really immaterial; and under what we consider a misapprehension of the law, it was ruled that the writ of error in that case should be sustained.

Afterward, in the case of Yell, as Gov., v. Outlaw, 14 Ark., 415, Chief Justice Watkins, in delivering the opinion of this court, says: In Clay v. Notrebe, 6 Eng., 631, this court went so far as to refuse to abate a writ of error upon a plea that an appeal had been taken in the court below with stay of execution in the same cause. Though the decision then turned upon the issue made by the pleading, whether the appeal had been in fact pending in this court, the judge delivering this opinion is constrained to think it was an immaterial issue, because where there has been a supersedeas, the option of the appellant to abandon his appeal and bring error is inconsistent with the right of the appellee, under the statute, to have an affirmance of the judgment, unless the appeal is diligently prosecuted; besides, upon appeals taken in the circuit court, the' stay of execution does not depend upon the opinion of any court or judge who, in his discretion, may think there is probable ground of error, but the suspension is demandable at the pleasure of the appellant upon the sole consideration of his ability to furnish satisfactory security.”

This statement professes to be nothing but the individual opinion of the judge delivering the opinion, and is dicta in that case. But if the statute, under which those decisions were made, caused hesitancy in giving assent on the part of the judge of the experience of the chief justice, who delivered the opinion in Yell v. Outlaw, how much more should we hesitate when we administer the law not only under a rule which authorizes the same steps to affirm on the part of the appellee, alluded to by the chief justice in the above quotations, but we have also a statute now which gives to the appellee the right to file the transcript with like effect as though the same were filed by appellant (sec. 863, Civil Code), and the limitation of ninety days provided by sec. 862, within which appellant is required to file the transcript, does not apply to appellee. It would not comport very well with judicial regularity to have the same cause pending here on appeal, or on application of appellee for its affirmance, or final hearing on appeal and for judgment on the bond, and also on writ of error sued out at the instance and in behalf of another party. We hold that whenever a supersedeas bond has been filed, and the judgment of the court has been in fact superseded, no writ of error lies, nor can an appeal be granted in this court until the appeal is dismissed, thereby disposing of the right of appellee to invoke the aid of this court, and leaving him to pursue bis legal remedies, such as they may be, against the security in tbe appeal bond. In so far as the case of Clay, Adm’r, v. Notrebe's Ex'rs, 6 Eng., 637, conflicts .with the views herein expressed, if there be a conflict, the same is overruled.

Finding the plea in abatement sufficient in law, tbe demurrer is, overruled, plaintiff in error can reply and put tbe facts in issue, and on failure to do so, tbe writ will be dismissed.

Hon. E. H. English, 0. J., did not sit in this ease.


text:
    Hanks vs. Harris.
    1. Assignment: Of decree, effect of.

    Where one joint owner of a decree executes an instrument transferring to a third person a part of his interest therein, the legal title and right to control the decree is not thereby changed, nor does the assignee become a partner in the decree.
    2. Payment : By assignment of decree.

    Where such an assignment is intended as a mode of payment for property purchased by the assignor, its legal effect is to create a security, and the assignor’s liability is not thereby extinguished.
    8. Guaranty : In the assignment of a decree.

    By guarantying payment to the assignee of the sum transferred, the assignor in legal effect warranted that he had a valid decree which, with good faith and reasonable diligence on the part of the assignee, would be effectual to the payment of the assignor’s indebtedness.

      i. Pleading: Amendment: When presumed.

    When the covenant sued on is set out in the complaint, this court will not consider a defect in the assignment of breaches where no objection was made to the introduction of testimony in the court below on that ground, but if the proof shows a breach, will regard the complaint as having been amended to correspond with it.

      5. Verdict: Where general finding sufficient.

    Where the bill of exceptions shows a fact to have been proven, this court will not reverse because a general verdict and judgment failed to state specifically that the fact was found.
    6. Contracts : When the courts will not relieve against.

    If the terms of his contract render a party liable for a result produced by the war, the courts cannot relieve against it.
    7. Vis Major: Failure to issue process during the war excused.

    Parties will not be held responsible for a failure to issue process on a ' decree during the time the courts were closed by the war; and the courts will take judicial notice of that period.
    APPEAL from Phillips Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.
    Garland, English and Tappan é Hornor, for appellant.

      Charles W. Ada?ns, contra.

   Williams, Sp. J.

This was an action of covenant brought in accordance with the common law forms prevalent before the adoption of the Code, on the 10th of July, 1867, upon the following agreement, to wit: This article of agreement and transfer, made and entered into this fourteenth (14) day of November, A. D. 1861, by and between James M. Hanks and Martha J. Harris, both of the county of Phillips and state of Arkansas, witnesseth, that for and in consideration that the said Martha J. Harris has sold, and by her deed of this date, conveyed unto the said James M. Hanks the following described lots, lying and being situated in the city of Helena, county of Phillips, and state of Arkansas [here follows a description of the lots], and has also sold and delivered to said Hanks divers articles of household and kitchen furniture, and delivered to him the possession of said lots and premises for the sum and price of three thousand, nine hundred dollars, the said James M. Hanks doth hereby most fully, amply, and entirely-assign, transfer and make over unto the said Martha J. Harris, and to her heirs and legal representatives, three thousand, nine hundred dollars of his interest in a certain decree recovered by Charles W. Adams and the said James M. Hanks, partners as attorneys at law, in the circuit court of Chicot county, in the state of Arkansas, on the chancery side thereof, on the sixteenth day of October, A. D. 1861, in a certain cause then in said court pending, in which said Adams and Hanks, as . partners as aforesaid, were complainants, and the mayor and oouncil of the city of Helena, and John Anderson Craig, and Joshua M. Craig were defendants, and which decree in said court was recovered and obtained by said Adams and Hanks against the said John Anderson Craig and Joshua M. Craig, two of said defendants, for the sum of twelve thousand, seven hundred and sixty-one dollars and seventeen cents, and interest thereon, from the rendition of said decree until paid, at the rate of six per centum per annum; and this assignment and transfer shall, as to every particular, have and be construed to have full effect as if made and executed upon the day of the rendition of said decree, and the interest upon said portion of, or interest in said decree shall also carry with it the proper proportion of the interest as aforesaid, from the rendition of said decree until paid, and the said James M. Hanks doth hereby covenant, promise and agree to and with the said Martha J. Harris, her heirs and legal representatives; that he is justly and legally entitled to the one full third part of said decree, by virtue of the partnership aforesaid, and doth guaranty the payment to her out of the same, the said sum of three thousand, nine hundred dollars, and interest as aforesaid; and the said James M. Hanks doth further hereby promise, covenant and agree to and with the said Martha J. Harris and her heirs, that he has in no wise incumbered or assigned or transferred his said interest in said decree, and that his heirs nor legal representatives shall, and that he will not, at any future time, in any wise incumber, assign or tranfer (or seek to do so) his said interest in said decree, or to the said sum of three thousand, nine hundred dollars and interest as aforesaid ; and neither he or his legal representatives will or shall, at any time, seek to defeat, or in any way delay the payment to her or her legal representatives of the same, or any part thereof. And that all proper and legal proceedings may be used for the collection and payment to her of the same, free from any let or hindrance from him or his legal representatives, subject only to the right and interests of the said Charles "W. Adams, as partner as aforesaid, whose interest in said decree is two-thii’ds thereof, and when necessary make and execute any further or proper transfer or assurance which may be legally or equitably sufficient fully to secure to the said Martha J. Harris and her legal representatives, the full and unimpaired right to collect and receive, out of the said decree, the said sum of three thousand, nine hundred dollars and interest as aforesaid. In testimony, etc.

This covenant was signed and sealed by Hanks, and was dated November 14, 1861.

It thus seems that this transfer occurred in November, after the decree was rendered in October.

It has been contended here for Mrs. Harris, that the decree, having been rendered during the war, was void. On the other hand, the attorneys of Hanks contend that the recital in the agreement evidently should have been 1860, and not 1861, because the decree is not in the record, and the evidence shows that the original compromise decree in the Junius Oraig Will Case was rendered in April, 1860; and the testimony of Pike, as well as the final decree on the review of this compromise decree, shows that the bill to annul and recall the decree was filed in 1860, therefore, this must be a misrecital.

In the first place, the carefully drawn agreement, prepared two days short of one month after the decree was stated to have been rendered, is too near the time of execution to have reasonably escaped attention.

There is enough in the record to show, that in a litigation in Chicot county, the will and estate of Junius W. Craig was involved; that in April, 1860, there was had a compromise, in which, what was called the compromise decree was rendered, by which the Craigs became bound to pay the city of Helena $150,000; that this decree of Adams and Hanks was rendered, as recited in the covenant, in a suit against Helena and the Craigs; and it otherwise appears that the suit was to enforce Adams and Hanks’ lien against the fund due Helena, as attorneys of Helena in the Craig Will Case. It would take a little time, after the compromise decree was rendered in 1860, to get up a lawsuit and ripen it into a decree in chancery. We therefore find nothing in the record to sustain the assertion that the recital of the agreement, that the decree was rendered on the 16th of October, 1861, is false; on the •contrary, we find much in the record tending to the inference that it is true for what it is worth. He who would contradict his own solemn recitals should bring more than an argument in a brief of counsel in this court to contradict it, ■especially, when he has testified in the cause and failed to ■correct it.

We had as well here construe the significance of this covenant, and the scope of the duties, liabilities, rights and responsibilities of the parties, as far as material to the decision of the question involved. Adams and Hanks were partners and joint owners of this decree, Adams having two-thirds, Hanks one-third. Hanks, by this covenant, acknowledges himself Mrs. Harris’ debtor for value. He attempts to carve out, and transfer to her, as a mode of payment, $3,900; thus leaving the legal title to the whole decree as it stood, in Hanks and Adams, for the transfer only gave Mrs. Harris an equitable right. Adams thus had in this decree about $8,280 and some cents, Mrs. Harris an equitable right to $3,900, and Hanks still retained about $380. The transfer did not make Mrs. Harris a partner with Adams and Hanks in the decree, or change the legal right to the control of it, jointly or severally, for their own interest; and while Mrs. Harris was bound in good faith and diligence on her part to secure the collection of the decree, if there was a decree, yet, if Hanks had seen proper to have interfered, she would have had no remedy at law, except for breach of covenant; and could not have invoked the jurisdiction of equity, except upon showing, by reason of Hanks’ insolvency, or like facts, her remedy at law was inadequate, unless, perhaps in this case, the covenant might be so construed as to make Hanks a trustee for her; otherwise, she would have been without equitable relief.

For if there is no trust or peculiar equity in the fund, or other circumstances authorizing the interposition of equity, she would have beeji left to her remedy at law. Story’s Eq., secs. ■718-738.

"We cite this to show how completely this was a matter of legal indebtedness on the part of Hanks, and how little his covenants really changed his legal obligation to pay the purchase money for the property he bought, which was his own debt, and for which he was personally liable. Hanks, by this covenant, guarantied the payment of this decree. He thereby warranted that he had a decree, valid, legal and binding, against the Craigs, and that this decree, with good faith and reasonable diligence on the part of Mrs. Harris, would be effectual to the payment of the debt of Hanks to her. This guaranty was not conditional, but absolute as a warranty of title and payment.

Hanks pleaded general performance. Mrs. Harris, at the May term, 1869, filed a supplement to her complaint, alleging, for further breach of the covenant, that the decree in the covenant specified had been by the decree of the Chicot circuit court, at the October term, 1866, annulled, set aside and held for naught, and said Craigs therefrom discharged, and nothing had been paid plaintiff except $260.67, on the 15th of February, 1866. Hanks answered this, setting up, that he was not a party to this suit, nor entered his appearance. That before the annulling decree was rendered, Adams, as the attorney of the plaintiff, compromised and compounded the original decree with Joshua M. Craig, and agreed to-accept for plaintiff, in satisfaction of her interest in the decree,. $3,800; and that, in confirmation thereof, she received various sums, amounting to $1,029.67, and part of it after the annulling decree was entered,

At the November term, 1870, plaintiff filed a second supplement to her complaint, in which she alleges, in substance, that after making of the covenant, John A. Craig, one of the defendants in the original decree, died, and an administrator was appointed, etc.; and that Adams and Hanks, nor either of them, procured the decree to be allowed against his estate; that since the commencement of this suit, and on the 29th of February, 1868, Joshua M. Craig, upon his own application, was adjudged a bankrupt, and on the 5th of May was discharged.

Hanks answers this supplement, and admits that the decree-was not presented for allowance against the estate of John A. Craig, but states that the sole reason why it was not presented was, that on the 2d of February, 1866, Adams, who was acting for himself and as agent for- Mrs. Harris, inclosed in a letter to him a transcript of the decree, sworn to, and requested him to present it to the administrator of John A. Craig for allowance, but on tbe next day, wrote defendant that he had compromised the decree with Joshua M. Craig, and not to present the claim for allowance. Admits Joshua M. Craig’s bankruptcy, but avers that before he filed his petition, Adams, acting for himself and as agent for plaintiff, and without authority from defendant, compromised the decree with said Craig, and took in settlement among others a note to himself for the use of plaintiff, which was not presented against the estate of Craig in bankruptcy, because Adams, acting for plaintiff, agreed with Craig that in consideration he (Craig) would pay the debt after discharge, he (Adams) would not prove the claim or oppose his discharge; that Adams brought suit on this note in the Chicot circuit court, and it was settled and paid. Upon these pleadings with the original declaration, the cause was tried. **

Hanks argues here, that we cannot take into account the ultimate insolvency of Craig, which is abundantly proved, because there is no such breach specifically assigned. We have not looked to see whether the specific breaches assigned are broad enough, as no objection was made in the court below to the introduction of testimony on this ground ; if it had been done, the pleadings might have been amended to conform to the truth. We shall not stop to consider it here, for the first time, where the covenant is fully set out, if the proof shows a breach. We will regard that as being done which the law permitted — the amendment of the allegations to correspond with the proof.

It is also argued that the fact of ultimate insolvency cannot be considered, because the court does not specifically find the fact. When, as in this case, the bill of exceptions shows a fact to be proven, we will not reverse the general verdict and judgment of the court below, because it failed to state specifically that the fact was found. Hanks contends further, that Craig’s insolvency was the result of the war, for which he was not responsible. To this it is sufficient to say that Mrs. Harris is not responsible for it either, and parties who contract must take the results and bear the losses it brought as they may fall, and we cannot warp the contracts of parties so as to relieve them of its consequences.

It is argued, further, that Joshua M. Craig’s insolvency did not exist at the date of the contract in 1861, and that Mrs. Harris should have collected it while he was solvent. It is too well settled now to need argument, that the courts being closed during the war, no process could be issued or required, and the effects of the war have been carried to the extent in special cases of excusing demand and notice of nonpayment of bills and notes, so as to charge ordinary indorsers. The court will judicially know that from 1861, the date of this covenant, until 1866, Mrs. Harris could not have enforced this decree, if it had been ever so valid. In 1866, Joshua M. Craig is proven to be hopelessly insolvent, and ultimately is declared and discharged as a bankrupt, although the bankruptcy could not of itself in this case be regarded as a cause of action, having occurred after suit brought at law. A purely supplemental faet will not constitute or perfect a cause of action brought as this was, if prematurely brought; yet, Hanks having answered it without objection, and admitted the evidence without exception, we will regard it here, to the extent to which it was admissible, under the original pleading in connection with the other evidence, to prove insolvency and its ultimately hopeless results, whereby it was rendered utterly impossible ever to collect the decree by legal coercion.

Under his covenant, it was the duty of Hanks to have probated the decree against the estate of John A. Craig, and against the bankrupt estate of Joshua M. Craig, or to have furnished a copy properly sworn to Mrs. Harris, to enable her to do so. For she, as the equitable owner, could not have proven part of a decree, when the legal title as well as the principal interest was in others. This duty was required of Hanks by the terms of his guaranty, and especially by the very last clause in his covenant.

Hanks’ answer shows that he contributed to the loss, if any, by failure to probate the decree against the estate of John Anderson Craig.. He admits the decree was sent to him, sworn to by Adams, for the purpose of presentation to the administrator ; but states that he did not present it, because Adams wrote him that he had compromised the decree with Joshua Mr Craig. This answer of Hanks tends to establish three facts:

1. That he was willing to entrust the entire matter to Adams — -judging him by his acts — who was a part owner of the decree, with whom, Hanks states in his testimony, the matter of winding up their old business was left.

2. That Hanks had early knowledge of the compromise and acquiesced in it by silence and actions.

3. That he is directly responsible for the loss of the decree against John Anderson Craig’s estate, if indeed the decree was valid against it.

It is contended by Hanks that Adams’ compromise was had in behalf of himself, and as agent for Mrs. Harris. The proof tending to sustain this, if any, is slight; upon this the witness Adams, who acted in the matter, swears positively that he was acting to protect -his own interest, which, was the greater, and incidentally for Mrs. Harris, simply as a friend, and without any authority or subsequent ratification by her. But conceding all that -is claimed for the effect of what is called Adams’ novation of the contract, what does it amount to ? The evidence of Mangum and Adams; and even Hanks’ own statement excusing his inattention to the matter, on the ■ground that he did not consider himself bound by his agreement, further than to see that he did not hinder Mrs. Harris in the collecting of it, and that he did not specially object to the compromise for that reason, and that Adams, with his permission and tacit consent, attended to the winding up of all •the affairs of their old partnership, and his answer, all tend strongly to prove that Hanks was bound by Adams’ acts as fully as Mrs. Harris was.

In so far as the verdict of the court may depend upon these facts, we shall not disturb it, because there may be some evidence in Hanks’ statement of opposite tendency ;• we would not disturb it even if the weight of evidence in our judgment were the other way.

The proof is convincing that but for Adams’ extraordinary exertions in his own behalf; and Pike’s personal influence over his client Craig, added in furtherance of Adams’ effort, not one dollar would have been collected for himself or Mrs. Harris. But by this extraordinary exertion, Adams saved several hundred dollars, which were paid Mrs. Harris on the covenant of Hanks, and for which he got credit on the trial.

To say that these acts so performed by Adams, under Hanks’ eye, and without a word of remonstrance or objection, until all is lost except the little Adams saved from the wreck, ■shall be called a novation of the contract, to Hanks’ prejudice, and be all visited upon the head of Mrs. Harris, it seems to us would be a mockery of that justice which we are here to administer. To such a conclusion we cannot give our ■assent. Hanks, in his deposition, in attempting to show that he did not approve of the compromise, closes with this sentence: “The truth is, my remaining interest in the decree, after my assignment to plaintiff of $3,900, was so small I thought nothing of it, and felt that I had no more to do with it.” This sentence may contain the keynote to Hanks’ whole conduct, but if that be even true, and we give bim the fullest credit for sincerity, we cannot excuse him for a misconstruction of his covenant, nor can we visit upon Mrs. Harris an ultimate loss, which the proof shows that no diligence could have prevented, and which Hanks does not pretend to claim could have been prevented. He tries to explain what he understood the covenant to mean- — -which was, that he sold Mrs. Harris chances of collecting $3,900, for her property. The covenant is not doubtful, and explains itself, and we are bound by its terms in our construction of it, as Hanks is in his duty to his creditor. Our construction of it is given on its face alone, and no parol evidence can be heard to explain or modify it. As a further proof of Adams’ power over the old partnership business, Hanks says in his deposition: “ I have never regarded the partnership as existing since the war, and turned all the books and papers over to Adams.” This turning over would have been very useless if it had not involved the power to act in reference to the matters “ turned.” We have construed Hanks’ covenant as warranting, the existence and legal validity of the decree, in which he assigns, equitably, a part interest, and was a covenanting guaranty. The compromise decree in the Craig Will Case is not before us. Pike, whose testimony in that regard was admitted without objection, testifies that it was rendered in April, 1860, in a cause in which said Sandford C. Eaulkner and wife and others were complainants, and the executors of the will of Junius W. Craig and his heirs and the city of Helena and others, legatees, were defendants. That after the compromise decree, Joshua M. Craig, who had become liable to the city of Helena, and to Edward J. Wright, for a large amount, and given his and John A. Craig’s notes for the same, had cause to think that the decree was a nullity and in such shape that if he paid the money which he had assumed, he would obtain no title to the property. Pike gave him his opinion to that effect, and he employed Pike to file a bill to “ recall and cancel the decree.” The bill was filed for that purpose to the April term, 1861, making Helena a defendant, also Charles W. Adams, who was the attorney of Helena in the original suit and drew the decree, and had received for his fee one or more of the notes given under the decree by Joshua M. Craig and John A. Craig, to the city of Helena. This suit slumbered on the records until the close of the war, when John A. Craig having died, Pike filed a supplemental bill in behalf of Joshua M. This suit resulting in a decree annulling the former compromise decree of April, 1860, for the benefit and behalf of Joshua M. Craig and the estate of John A. Craig. The decree is in the record in this cause and is far reaching and full, the defendants being the heirs and legatees of Junius W. Craig, Emma J. Wright as executrix and William P. Halliday as executor of his will, the city of Helena, Charles W. Adams and others. Hanks was not a party. The decree pronounces the notes given to the city of Helena, upon which Adams and Hanks’ decree was founded, without consideration, null and void, and annulled the compromise decree with all its dependents and incidents, and the verdicts and judgments at law based thereon, etc., and that the same be taken “and held as though never made,” and the city of Helena and all other defendants and persons claiming under them were perpetually enjoined from in any manner availing themselves thereof, in any suit, proceeding or controversy or matter whatsoever.”

Hanks claims that he is not bound by this decree, because he is not a party. Conceding this, which we do not, still Adams was bound. No process could have been issued without throwing him in contempt of thé court, and although Hanks’ counsel contends here that Mrs. Harris might have issued an ex■ecution on the decree for her $3,900, we do not suppose they were serious in this, for even if an execution could have been issued as they claim for a part, it still must have been in the name of Adams and Hanks. So the decree was practically dead.

In a review of authorities in the case of Harrison v. Trader and wife, ante, p. 85, we showed that on bills to cancel decrees like this, the matter was regarded as lis pendens, from the beginning of the original suit, and all intermediate purchasers with notice were fully affected and bound by the decree, which was finally annulled. If this were not the rule, all that it would be necessary to avoid would be an adverse shifting of title. The following authorities fully sustain us in holding Hanks bound by the decree, if not as a privy in fact, under the city of Helena, at least as a purchaser pendente lite. Earl v. Couch, 3 Metc., 450; Clay v. Marshall's Heirs, 4 Dana (Ky.), 95; Debrell v. Foxworthy, 9 B. Mon., 228 ; 2 Dana (Ky.), 406; Story’s Eq. Pl., sec. 156.

It would be difficult for us to say that Hanks, who was one of the attorneys in the original suit, and whose firm, the proof shows, drew the answer of the city, is not affected with notice of the source of his title when in the case of Earle v. Couch, above cited, the supreme court of Kentucky held that a relative of such attorney, who bought from him, was affected. We therefore hold, that the annulling decree destroyed the original decree with all its incidents and related back, in its effects, if not to the beginning, at least, to the commencement of the suit and review in April, 1861. Therefore Hanks’ covenant was legally false when made in November 1861, reciting a decree in October 1861, and was broken at once and there was a right of action. Logan v. Moulder, 1 Ark., 322.

Hanks’ covenant was that he had a valid decree. His decree was an incident of, and dependent upon the original compromise decree. The effect of the decree in favor of Adams and Hanks was to subrogate them pro tanto to the rights of the city of Helena, against the Craigs in the compromise decree. That decree being annulled, of course, swept Hanks’ incidental decretal offshoot with it, and left him standing simply a debtor to Mrs. Harris, upon a sealed covenant and guaranty.

But if we are mistaken in this, still it is evident, that the decree is not of continued effect, and could not result in ultimate payment, which is a sufficient breach of the covenant to sustain the verdict and judgment, if Hanks failed to pay when such facts transpired.

In the crompromise made at Memphis, in February 1866 between Adams and Joshua M. Craig, which Hanks claims as a novation of the contract which '.released him, it appears that Adams, after the war, and the legal solvency of Craig became ■doubtful, and his inability to pay the whole decree became manifest, had gotten Craig to agree to pay $8,800 — of this he paid $800 in cash, one-third of which was paid to Mrs Harris, and for the balance, had taken notes, due at different periods, to himself for his own use, amounting with his two-thirds of the last payment to $ 5,000; and had taken one of the notes payable to himself, for the use of Mrs. Harris, for a sum which with her one-third of the last payment equalled $3,800 — , which latter sum Adams, not having the covenant before him, thought was tbe real amount due Mrs. Harris. Craig after-wards made some payments to Adams, one-third of which was placed to Hanks’ credit on his covenant with Mrs Harris.

Although Hanks says his conversation with Mangum must have referred to another matter, we are strongly impressed, that it was of this compromise, that Mangum testifies that Ha nks said: “We were more fortunate than Hanly in getting our fee in the Craig Will Case; we secured a part of our fee by compromise.” It is of this Adams testifies, when he says Hanks, in Ms interview with him shortly afterwards and while Craig was at Memphis, and the compromise could have been undone and recalled, unequivocally approved it. It was of this Adams-wrote to Hanks, which the latter gives as his reason for not presenting the claim to the administrator of John A. Craig.

It is proven by Adams, also, that Mrs Harris never saw the note he took for her use in the compromise, and when he paid her the $267, the third of the $800 cash, she received it, but said she did not want to do any thing which would release Hanks. The proof tends to show that the compromise was-entered into by Craig, through Pike’s influence over him; that after the bankruptcy, some of the compromise notes, amounting to the greater part of the debt, remained unpaid. Through Pike’s influence and Adams’ exertions, a new promise was gotten, on which Adams sued in the Chicot circuit court and got judgment, after Craig’s bankruptcy, but realized nothing out of it. The testimony tends to prove, that Joshua M. Craig’s bankrupt estate was worthless, and would not have paid the expenses of establishing the compromise notes against it.

Adams owns that he acted for the firm in the original compromise as he did in other matters ; that he had collected and paid his part of other fees to Hanks. Finally, realizing nothing on his judgment against Craig, he accepted from him, in full discharge, a deed for a piece of land in Chicot county of uncertain value. This land was incumbered with taxes anda lien due Carlton. Adams has never received anything on it. Adams offered to share this land with Hanks, and asked him to divide the expenses and to help pay the claims off. Hanks refused and testifies himself, that Adams asked him if he renounced it; he replied “Yes.” Adams then told him to remember this. As this occurred after the breach of Hanks' covenant, when Mrs. Harris had a complete right of action against him, and while this suit was pending, it is difficult to say how the private transactions of Adams and Hanks could take it away or impair her rights, unless Hanks can bring home to her some act which has injured him, or show that she has realized money for which he is entitled to credit. Even then, this suit having been commenced of right, he must pay cost. Mrs. Harris is in no way a party to this land transaction. Adams, who alone could .really fully know, swears he was acting for himself, and to secure his own interest.

As Hanks interposes no claim and introduces no proof of value, it would not be considered as an accord and satisfaction, and in the light of a novation, we have already discarded that, for the original liability was Hanks.’ The assignment of the decree was a security or mode of procuring payment, and nothing but bad faith or gross negligence on Mrs. Harris’ part could excuse him.

There were a number of propositions of law asked on the part of each party ; some were given and some refused. Appellant made this action the ground of exception during the progress of the trial, and the court having rendered a verdict against him, he moved the court for a new trial, making this action of the court special grounds. This motion was overruled. There were seven causes assigned in the motion, but as we have fully reviewed the case, we shall not take the declarations of law or the ground assigned for new trial specially into consideration. "We are satisfied that the court acted under no serious misapprehension of the law governing the case, and on the whole record before us, the same verdict and judgment should be rendered again, if we should grant a new trial for abstract or immaterial errors. The court below therefore properly overruled appellant’s motion for a new trial.

Let the judgment be affirmed.

Hon. E. H. English, C. J., did not sit in this case.


text:
    Murphy et al. vs. Harbison.
    íj Taxes: Ju/risdiction of county court to levy school tax.

    The county court is required to levy such taxes for school purposes as are voted by the electors of the district for which the tax is levied, or recommended by the trustee; and in the absence of such vote or recommendation, is without jurisdiction to levy a school tax.
    %— The rate of for school districts unlimited.

    The common school act of 1868 contained no limitation upon the amount of taxes that might be voted by the electors of the school districts, of levied by the county court, for school purposes.
    3. Injunction : Denied when there is a legal remedy.

    Where it appeared that there was an adequate remedy at law, and no facts were alleged to bring the case within any of the established heads of equity jurisdiction, a demurrer was properly sustained to a bill for an injunction.
    4. Statute : Effect of on a prior ruling of the circuit court.

    After the injunction had been’denied in the court below, the legislature passed an act authorizing them to be granted in such cases. Held, not to affect the ruling in this case.
    APPEAL from Ashley Circuit Court.
    Hon. H. B. Morse, Circuit Judge.

      Van Gilder, for appellant.
   English, C. J.

This was a bill to enjoin the collection of a district school tax.

The bill was' filed by Joseph T. Murphy for himself and other tax payers of school district No. 20, against Jackson P. Harbison, tax collector of Ashley county.

The bill alleges, in substance, that on the 14th of August, 1870, J. F. Harville, trustee of said school district, filed in the office of the clerk of the county court of Ashley county, what purported to be an estimate of the necessary expenses of maintaining a public school in said district for three months, during the year 187 -; a certified copy of which report is made an exhibit to the bill.

That said report showed on its face that it was an estimate of expenses incurred in 1869, making the sum of $459.80; that there was added to this the sum of $459.80, as an estimate for the year 1870, both amounting to $919.60; that at a special term of the county court of said county on the 9 th of September, 1870, the court ordered a tax of five per cent, to be levied on the taxable property of said school district No. 20, to raise said sum of $919.60; that plaintiff was an inhabitant of the district and the owner of taxable property, real and personal, in the district, of the assessed value of $2,015.00; that his school tax, levied at the rate of five per cent, would amount to $100.75 ; that the said tax was illegal, unjust and oppressive; that the defendant Harbison was the tax collector for Ashley county, and was about to collect said tax of five per cent, so levied upon the taxable property of said school district, and would proceed to enforce the collection thereof if not restrained; that plaintiff was otherwise remediless in the premises, and that unless defendant was restrained from collecting said tax, great and irreparable injury would be done to plaintiff and other tax payers of said school district. Prayer for a temporary restraining order, etc., and that on final hearing, it be made perpetual.

A transcript from the record of the county court of Ashley county was made an exhibit to the bill, from which it appears that on the 20th of August, 1870, J. E. Harville, trustee of school district No. 20, addressed a written report to the court, in which he estimated the necessary expenses of maintaining the public schools of said district for three months during the year ending September 30, 1869, at $459.80, and a like amount for the year ending September 30, 1870, and asking the court to levy a tax upon the taxable property of the district sufficient to raise that amount.

The transcript also shows that at a special term of the county court, held September 9,1870, the following order was made.

“ School District No. 20 : Ordered by the court, that five per cent, be, and is hereby, levied upon the taxable property of school district number twenty, for school purposes.”

The bill was filed on January 23, 1871, and a temporary restraining order made by the.probate judge.

At the April term, 1871, of the circuit court, the defendant filed a demurrer to the bill, which was sustained at the October term following, and the bill dismissed for want of equity, and the plaintiff appealed.'

I. The common school act of July 23, 1868 (Acts of 1868, p. 163), which was in force when the tax in question was levied, makes, in substance, the following provisions:

That each county shall be divided into school districts, for the purpose of establishing and maintaining schools, etc. Sec. 13.

That each school district shall be a body corporate, by the name and style of School District No. —, etc., and as such may contract, etc., sue, etc., and hold title to lands and other property, etc. Secs. 14, 15.

That the electors of each organized school district shall annually, on the third Saturday of December, hold a public meeting, to be designated the annual school meeting. Sec. 18.

That the electors of any school district, when lawfully assembled in a district school meeting, with not less than five electors present, shall have power, by a majority of the votes cast at such meeting, etc.

Fourth. To elect a trustee, etc.

Seventh. To determine what amount of' money shall be raised by tax on tbe taxable property of the district, sufficient, •with the public school revenues apportioned to the district, to ■defray the expenses of a school for three months, or for any .greater time they may determine to have a school taught during the year. Sec. 20.

That all taxes voted for school purposes, by any school ■district, shall be levied by the county court at the same time ■county taxes are levied, and collected in the same manner, at the same time, and by the same person, as county taxes are ■collected, etc. Sec. 21.

That the trustee (of each district) shall submit to the district, at the annual meeting, an estimate of the expenses of the district for that year, including the expenses of a school for the term of three months, etc. Sec. 31.

■ That in case the district, at the annual meeting, fail to provide for a school to be taught at least three months during that year, and to provide for fuel, etc., etc., the trustee shall immediately forward to the county clerk an est mate of the necessary expenses for a school of three months, etc., etc.; and a tax for the amount of such estimate shall be levied in the district by the county court, at the same time that county taxes are levied, etc. Sec. 32.

Erom these provisions of the act, it will be seen that the ■county court had power to levy taxes voted for school purposes by the electors of any school district. Sec. 21.

Or in case the electors, at their annual meeting, fail to provide for a school, etc., then, on the report of the trustee, the county court had power to levy the requisite amount on the property of the district, etc. Sec. 32.

In the transcript of the record of the county court, made an •exhibit to the bill, the facts necessary to give the county ■court jurisdiction to levy the tax in question are not shown.

If the electors failed to make provisions for a school, the trustee should have reported that fact with his estimate of the requisite amount, and the county court could have made the levy. County Court of Union County v. Robinson, Trustee, 27 Ark., 116.

On'the face of the record before USj the county court had no jurisdiction to levy the five per cent, tax complained of, and it might have been quashed by the circuit court on certiorari.

II. We have carefully examined the provisions of the act of July 28, 1868, to see if the county court could, in any case, levy a school district tax of five per cent. Such a tax for a single purpose, if not for all public purposes, being enormous, but we find in the act no limitation as to the maximum amount that might have been voted by the electors (though but five attended the school meeting), or levied by the county court.

By sec. 146 of the act of March 25, 1871, the county courts were authorized to levy for school purposes, in any district (other than cities and towns, etc.), such rate as might be determined upon by the qualified electors of. the district, etc., not to exceed five mills on the dollar, but this act had not been passed when the tax in question was levied.

Sec. 47, art. V, Const, of 1868, provides that the general assembly shall not • have power to authorize any municipal corporation to pass any laws contrary to the general laws of the state, or to levy any tax on real or personal property to a greater extent than two per centum of the assessed value of the same. See also sec. 49, same article.

Whether the words “ municipal corporation,” as they occur in this section, were used in a restricted sense, and apply only to incorporated cities, etc., or in a more general sense, and embrace incorporated school districts, such as were provided for by the act of July 23,1868, we need not decide in this case. See 2 Bouv. L. D., Munic. Corp.; Dillon Munic. Corp., sec. 9, etc.; Angel & Ames on Corp., sec. 24; The Inhabitants of 4th School District, 13 Mass., 192.

III. Tbe bill sought to enjoin the collection of the tax on the ground merely that it was illegally levied by the county court. True, there is a general averment in the bill that the appellant was otherwise remediless, but it appears of record that it was a single tax, levied for one specific purpose — to maintain a district school — that the county court which made the levy had not such facts before it as to give it jurisdiction to make the levy ■; and it is manifest that the circuit court, on certiorari, could have quashed the whole levy. The appellant having a plain and simple remedy in a court of law, and averring in his bill no such facts as to bring the case within any of the established subjects of equity jurisdiction, the court below, according to the decision of this court in Floyd v. Gilbreath et al., 27 Ark., 676, properly sustained a demurrer to the bill.

There was a dissenting opinion in that case, but we are not disposed to review the decision in the case now before us, because an act was passed shortly after the decision was made which was intended, perhaps, to settle the mooted question of jurisdiction. It provides that: “The judge of the circuit court may grant injunctions and restraining orders in all cases of illegal or unauthorized taxes and assessments by county, city or other local tribunals, boards or officers.” Gantt’s Dig., p. 650, sec. 3451.

But the statute having been passed after the decision in the court below, in this case, the decree must be affirmed.