text:
    Janes et al. vs. Williams et al.
    I. Parties: Nmi-Joiucler.

    As a general rule, all persons interested in the subject of the action, must be joined as plaintiffs or defendants, or an excuse shown for the nonjoinder; where, however, the cause of the omission is otherwise apparent on the face of the complaint, no special averment is necessary.
    22. - : Sonne.

    In a proceeding involving the validity of a will, all persons named in it as legatees or devisees, are necessary parties.
    21. Pi.EAnixo: Parties.

    Where a bill for the settlement and distribution of an estate alleges that the deceas'd died intestate, but discloses the fact that a will was made and published and duly probated according to the laws of another State, the latter allegations will control the former, and the legatees and devisees under the will should be made parties.
    4. Wirm: Mreeution and proof of.

    A will, as to real estate, must be executed according to the ex rei sitae; under our statute, a will must be proven by two witnesses, or if one is-dead, insane, or his residence is unknown, the hand-writing of such witness, and of the testator, and such other circumstances as would be sufficient to prove the will on a trial at law, must bo proven.
    2).--: Authority of exeeut or, proof of execution, etc.

    Where the right of an executor to execute a will is questioned, it seems that the probate thereof, in the proper county, must be shown; but where a question arises as to the validity of a will not properly probated, the testimony of the subscribing witnesses, or other competent evidence, may be introduced to prove its execution.
    e>. Pabtjek:
    Letters testamentary were granted to A, by the Probate Court, and were subsequently revoked. Afterward a decree tvas rendered in a proceeding in equity, te re-instate him, under -which he again assumed control of the assets, but this proceeding was void: Ilelcl, in a proceeding to charge him with the assets, that- he should have been sued in his representative * capacity.

      7. Wnm: Probate.

    When a will has been admitted to probate in the proper county upon insuffj cient evidence, the parties interested in settng it aside, must pursue the remedy provided by the statute; however erroneous the order admitting it to probate may be, it is conclusive until corrected by a re-trial of the question of probate under the statute, and a bill in equity charging the parties acting under the will with the assets, cannot be maintained.
    APPEAL from Little, River County in Chancery.
    Hon. Thomas M. McCray, Special Judge. .

      Parsons, for appellants.

      A. B. Williams, for Jas. H. Williams.
   Walker, J.:

The plaintiffs filed their bill of complaint in the Little River-Circuit Court, for the final settlement and distribution of the estate of James W. Duckett, deceased.

The bill is filed in the name of themselves and all of the remaining heirs at law, on the father’s side, of James W. Duckett deceased, of Sevier County, who died in the State of South Carolina, on the 14th July, 1860.

It is alleged that Duckett, at the time of his death, owned a large estate in lands and pei-sonal property, situate in Sevier and other Counties in Arkansas, and a small amount of personal property in South Carolina, where he died. It is alleged that Duckett died without having made a will, but that certain parties claiming to be executors under a pretended will, had take® jrossession of the estate without authority of law, and others under claim of administering upon said estate, and had failed to render any account of it or to make settlement,

The defendants demurred to the bill for various causes, some of which were sustained and others over-ruled. The bill was a dismissed.

Both parties have appealed.

The sufficiency of the bill is presented for our consideration.

It is first objected, that all of the heirs of James W. Duckett are not made parties plaintiffs by name, nor is there any excuse offered for not having made them such.

Sixteen parties plaintiffs sue, in behalf of themselves and of the remaining heirs on the father’s side of James W. Duckett, deceased.

Defendants insist that this is not sufficient, but in order to bring the plaintiffs within the exception to the general rule, that all of the parties interested in the subject of the suit, must be named either as plaintiffs or defendants, or an excuse shown for having failed to do so.

This, as a general proposition, is true, but, where the facts appear upon the face'of the pleading, it is unnecessary to make any such special averment. Story says, “That in all cases governed by the exception, it seems proper to allege in the bill, (unless it is otherwise apparent upon its face) that the parties are too numerous to make it practicable, even if known, to prosecute the suit, if all are made parties.”

Under our code practice, Gantt’s Digest, sec. 4477 all parties united in interest, must be joined as plaintiffs or defendants. This section is qualified by sec. 4478, so as to dispense with the rule, in case there are many parties who have a common interest, or where they are so numerous as to make it difficult to bring them before the court within a reasonable time. In this case, we think the facts are sufficiently shown upon the face of the bill; and consequently are already brought to the knowledge of the court. It is alleged that Duckett died intestate, leaving neither wife, child, father, mother, brother, or sister, nor any descendants of either, nor any grandfather, or grandmother, nor any lineal or collateral descendants of a nearer degree than the grandfather’s brothers and sisters, and their descendants; but that at the time of Duckett’s death there were living of his kindred on the father’s side, Duckett’s father’s brothers and sisters, all of whom are named, as well' as most of their descendants, omitting the names of a few of them as being by name unknown.

All of them have a common interest, and they are very numerous.

In this respect the bill was sufficient, and the court erred in sustaining the demurrer for this cause.

It is next, objected that the legatees and devisees named in Duckett’s will, should have been made parties’ defendant.

If it appears from the allegations in the bill that Duckett made a will, and devised his estate, or part of it, to certain parties named in the will as legatees or devisees, and that tire validity of the will, or the disposition of the estate devised or bequeathed is involved in the suit, then all of them were necessary parties’ defendant.

If, in fact, Duckett made a valid will, then his estate must pass under it to the legatees and devisees to the exclusion of the plaintiffs.

And first, does the bill disclose the fact that Duckett made a will? Plaintiffs state that Williams produced to the Probate Court of Sevier County, at the October term thereof, 1860, an exemplified copy of what purported to be the will of Duckett, which bore the certificates of the Judge of the Court of Probate for Newberry District in South Carolina, and of the Ordinary of said court, all in due form as the law requires in the case of wills which have been proven in a foreign country, and showed that a paper writing purporting and alleged to be the last will and testament of James W. Duckett of South Carolina, had been presented for probate in said Court of Ordinary, and had been thereupon admitted to probate and probated.

And that the said John T. Duncan and James H. Williams, had been appointed executors of said will by said Court of Ordinary; copies of which are filed as part of the bill.

That said Probate Court of Sevier County thereupon admitted said exemplified copy of probate and record, as the will of a non-resident of the State, and ordered letters testamentary to be issued to Williams as executor of Duckett’s estate, and that such letters were issued to him.

It is further alleged that by the provision of the will, Duckett devised ■ one-half of his estate to his wife, Paulina Duckett. That he gave a legacy of $2,000 to each of the following.named persons: Elizabeth, wife of Samuel McCracken; Martha, wife of" James Hill; Elizabeth, wife' of Isaac Johnson; Amelia Williams; Pauline Beesley; Thomas R. Glasgow and Samuel Murrill; and a legacy of $5,000 to the Freeman University and the residue of his estate to James H. Williams, J. T. Duncan, Branch Duncan, and Thomas Duckett.

A copy of the will of Duckett is filed as an exhibit and made part of the bill.

It is also alleged that Pauline Duckett and Murrill died during the life time of the testator — the first without heirs; and as to Murrill, that the legacy lapsed at his death, and that Williams and Duncan acting under the will have paid off all of the legacies therein named, except that of Murrill, which lapsed as aforesaid, and that of Pauline Beesley, which remained in part unpaid.

These are the material allegations which relate to the question, as to whether the legatees and devisees named in the bill were proper parties ?

The allegation that Duckett died intestate, is not sustained by the facts disclosed. That Duckett made and published a will in South Carolina, which was duly probated according to the laws of that State, and that by the provisions of the will, the whole of the estate claimed by plaintiffs was disposed of, is clearly shown.

The copy of the will exhibited, contains all the necessary requirements of a will, was reduced to writing and signed and sealed by Duckett-. It was witnessed by three witnesses, one of whom deposed that he was present and saw Duckett sign and seal the will, as his last will and testament, that he with Smith and Newman, the other two subscribing witnesses, in the presence of testator and of each other, signed their names as witnesses to-the same, and -that he believes that said Duckett was of sound and disposing mind and memory at the time of signing said will. It will be seen that this is almost a literal compliance with the requirements of our statute (Gould’s Digest, sec. 4), the only omission being that the witness did not state that the witnesses subseeibed their names as such, at the instance of the testator, and with regard to which a question would arise whether, when the parties are all present, each witnessing the acts of the other; what, if any, formal request is necessary, or whether the situation and acts of the parties might not be sufficient, and a request implied; as if, for instance, an inquiry was made by the testator, or one in his presence, as to whether there were the necessary witnesses present, and it was announced that the witnesses, who subscribed the will were there, if no objection was made to them it might be well implied that the testator had given his consent.

In Rogers v. Diamonds, 13 Ark., 487, it was held unnecessary, in proving the execution of a will, for the. witness to state that he subscribed it in the presence of the testator, that the fact maybe implied from circumstances. But this is not an important inquiry in the present attitude of the evidence, because this is the only witness who deposed, and nothing was said as to the other witnesses, one of whom, if living and within reach of process, could have been sworn and examined. Our statute requires that the will shall, be proven by two witnesses, and sec. 35 provides that in all trials respecting the validity of wills, if any subscribing witness be deceased, or cannot be found, the oath of the witness taken at the time the will was probated, is admissible in evidence. Sec. 21 provides, that when one of the witnesses to a will shall be examined and the other witnesses are dead, insane, or their residence is unknown, then such proof shall be taken of the hand-writing of the testator, and of the witness dead, insane or absent, and of such other circumstances as would be sufficient to prove such will on a trial at common law.

In the case before us, no such additional proof was offered, and whatever may be the requisite evidence to establish a will under the laws of South Carolina, the proof was certainly not sufficient to establish a will for the devise of real estate in Arlcansas. In such case the will, to be effective, must be executed according to the lex rei sitae. Wharton Con. Laws, Ch. 9, sec. 645.

We are not called upon to decide a question of title under the will, or, as to what the effect of proof in South Carolina of the execution of the will, according to the laws of that State, would be upon the personalty in that State, or, indeed as to the personal property belonging to the testator in Arkansas. But the question is, as to the existence of a will — whether proven, or not. The question, as to the sufficiency of the proof to establish the will, may be raised upon an issue presented for that purpose, upon the trial of which, if not properly probated, the testimony of the subscribing witnesses, or other competent evidence may be admitted to prove the due execution of the will. In the case of Campbell v. Garvin, 5 Ark., 491, Garvin’s devisees claimed title to land for the recovery of- which they brought an action in ejectment. The will formed a necessary link in their chain of title; it had been improperly probated, so held by the court, but the subscribing witness was introduced over the objection of defendant. Upon appeal to this court, it .was held that such proof was admissible. Probating a will is but the perpetuating the evidence of a fact, by the judgment of the court; the same evidence which is required to establish the validity of the will in court, may, before a competent tribunal, be introduced to establish its validity elsewhere.

The complaint seems to have been framed under the impression, that because the will was not probated in Sevier County, where the land lay, that it was no valid will.

It is very true, that the will should be probated in the county in which the land is situated, or if there are lands in different counties in this State, in some one of them before letters testaméntary can be granted. But we apprehend that a devisee may assert title to the land devised, and if upon trial he proves the will to be valid, his recovery would be as certain as if the will was offered in evidence with a certificate of probate. It is not the less a will because not proven, any more than a deed is not such upon its delivery, and before it is acknowledged, or is proven. The will in this instance lacks none of the apparent requisites of a will, and needs only to be proven; and before the devisees can' acquire title to the property devised, it must be proven, by the subscribing witnesses to the will, or by such other competent evidence as is prescribed by law. If it is intended in this suit to raise a question as to the right to execute the will, then it would seem proper to make the necessary proof in the Probate Court of the county where the land lies, but if to recover the land devised, a suit in ejectment may be brought and the validity of the will established on the trial, by any competent evidence. Adams’ Equity, page 249.

Under the state of case presented, we are of opinion that the legatees and devisees were proper parties.

It may be true that some of the legatees have been paid; if so, they should have been made parties and the payment of the legacy alleged, a fact which they had a right to controvert; if not paid they had a direct interest in the estate; and because they were not made parties, the demurrer to the bill, for this cause, was properly sustained.

Williams and Duncan, the executors named in the will, are made defendants, but not in their representative capacity. It is assigned as cause if demurrer that they should have been sued in their representative capacity.

So far as Duncan is concerned, having never been appointed executor in Arkansas, and being an executor in another State, he had no power to act as such in this State. If he came to Arkansas and took and appropriated to his own use property which belonged to the estate of Duckett, as a trespasser he may be held accountable, he was certainly not responsible as executor, nor was he a necessary or proper party to this suit.

Williams stands in a different attitude. After the will, or a copy of it, was filed in the Sevier Probate Court, and was there probated; letters testamentai’y were granted to him, and during the time that the letters remained unrevoked, he is charged with having unlawfully and without authority taken cotton belonging to the estate into his possession, and appropriated it to his own use; without reference to proceedings had in the Probate Court of Sevier County, at the term at which the letters were granted, which were instituted to revoke the letters granted to him, and which were set aside. At a subsequent term of the court, March. 13, 1861, upon the petition of a party claiming to be interested in Duckett’s estate, the Probate Court vacated and set aside the letters testamentary granted to Williams at the .October term of the court, upon the alleged ground, that Williams was a nonresident of Arkansas, that his bond was insufficient, and that Duckett was, at the time of his death, domiciled in Arkansas. The action of the court seems to have been had under the provisions of the 35th section, Ch. 4, Gould’s Digest, and substantially in accordance with its provisions, from which time Williams ceased to be executor of said estate. But after that time, as it is alleged, by force of a decree of the Circuit Court of Little River County (a new county formed out of part of what was once Sevier County), "Williams took possession of said estate and still holds it, without having rendered any account of his management or disposition of the estate.

So far as relates to the proceedings in the Chancery Court, as disclosed by the bill, it appears that Williams had, in 1868, filed his bill in chancery against numerous parties named as heirs of the estate of Duckett on the mother’s side, (but in which the plaintiffs claimants, on the. father’s side were not made parties), and Reeder, Steel and Campbell. The cause came to a hearing at the April term of the court, 1872. Plaintiffs, upon leave of court, dismissed their suit as to all of the defendants except Reeder, Steel and Campbell; a decree pro oonfesso, was taken against Reeder, and the cause submitted to the court upon an agreed state of facts between plaintiff ' Williams and the defendants Steel and Campbell. We have no means of knowing what the issue was in this suit, other than that which appears by the decree, which was, that the letters of administration which had been granted to Briggs, Reeder and Campbell, by the Probate Court, should be set aside, that the letters testamentary granted to Williams, had been, and were then in" force, and were valid, that he take into his possession the estate of Duckett, and account to the Probate Court, and that the administration of Reeder, Briggs and Campbell be closed, and the securities be discharged from liability. Why Steel should have been made a party does not appear, and why Briggs, who was not made a party, should have been embraced in the decree, is wholly unexplained; be this as it may, or whether as between the plaintiff and the defendants, who seemed to have agreed to a certain state of facts, the decree may not bind them, it is certain as between the plaintiff, Williams, and 'the plaintiffs in the suit under consideration, it could have no effect whatever, and is in no respect binding upon them. So far as plaintiffs’ rights are concerned, it established no right in Williams, as executor, and in no respect lessened his responsibility to them, if, in fact, they should prove to be entitled to Duckett’s estate. Nor did it discharge Reeder, Briggs and Campbell, from liability to account for any act for which otherwise they would have been liable.

Holding as we must, that the letters testamentary granted to Williams had been revoked, and that by force of the decree of the Chancery Court he could acquire no valid authority to act as such,,, still as he acted part of the time under a valid appointment, and afterwards under an appointment which he may have supposed valid, and has had possession of the estate, he should have been so charged. The plaintiffs have studiously avoided recognizing Williams as executor, or as acting under a trust, but when all of the allegations are taken together, and when it is seen that the prayer of the bill is for an account of the property which has been so received by him, it was necessary and proper to have charged him as such. If such is not the case, it is difficult to conceive of auy grounds for equitable relief, and even when so considered, we are not prepared to decide that the plaintiff has made a case for equitable relief in his bill.

It is shown that Duckett was possessed of a large and valuable estate. That certain parties assuming to act under a will, have had charge of it for a time. That Reeder, Briggs and Campbell had, at different periods, been appointed administrators of the estate, that the estate has been also for a time in their hands, that no settlement has been made with the Probate Court, that there are debts that the personal property is not sufficient to pay, that most of the legacies have been paid. They deny the validity of the. will, and pray that the ownership to the property may be determined, that Williams who has had, and now has, the estate in his possession may be held to an account, and the estate divided.

Such is substantially the case made by the bill; in view of which, the question arises as to the equitable grounds presented in the bill. They must arise upon a state of facts which bring the case within some of the grounds for relief in equity — one in which adequate relief cannot be had in a court of law. The principles of equity, says Story, 1 Eq., 22, are as fixed and certain as the principles on which the courts of the common law proceed.

The primary and original object of the suit must be one clearly within the jurisdiction of the court, 1 Ark., 31, and not the less obligatory upon the parties or the court, because they are more liberal. Ib. 410.

If it was intended by the plaintiff to raise an issue of devastavit vel non in a court of law, his bill fails so to present his case.

The equity for administering the assets of a testator or intestate, does not authorize the Court of Chancery to try the validity of a will. The jurisdiction for that purpose, in regard to wills of personal estate, belongs to the . Ecclesiastical Courts, and in regard to the wills of real estate to the courts, of the common law, and our statute in observance of this rule requires, that at anj»- time within three years after the final decision of the Probate Court, the party interested in any will may, by bill in chancery, impeach the decision, and have a re-trial of the-question of pi’obate, and that either party shall be entitled to a jury. This provision, Gantt’s Digest,'sec. 5794, extends to all wills, whether for real or personal property.

This question of will or no will, is of paramount importance. If there is a will then the plaintiffs are not entitled to the property, and have no right either in a court of law or equity to hold defendants to account.

The order and judgment of the court to admit to record the will as probated, upon the copy of the will and the proof and orders certified from the Court of Ordinary of Newberry District, never was set aside, nor was there any attempt made to set it aside. The attack made upon the validity of the will, and its probate in Arkansas, is, evidently, based upon the assumption that it was not a will unless probated as such. That as Duckett resided in Sevier County, Arkansas, the will should be probated there to give it effect, and' particularly as the landed estate of Duckett lay in Sevier County in this State. Let us concede that such should have been done, and that the evidence produced before the Court of Probate was not sufficient to warrant the judgment and decision of the court, and that the proceedings were erroneous, yet, however erroneous the judgment of the court, it is binding upon all parties until reversed by a higher tribunal. Miller v. Barkeloo, 8 Ark., 318.

At common law, the probate of a will in the Ecclesiastical Court was conclusive as to its execution only so far as related to personal property.

Our statute, sec. 17, Ch. 180, Gould’s Digest, provides, that if the testator have a known place of residence in this State, his will shall be proven in the county in which he resided; if he have no known place of residence, and lands be devised, it shall be proven in the county in which the lands lie; and if he have no known place of residexrce, and there is no land devised, it shall be proven in the county in which the testator died; and if he died out of the State, in any county.

It will readily be perceived that, as the testator in this instance had a known domicil, and did devise land, it was necessary that the will should be proven in the county of Seviex’, where the laxxds lie, and which was also his place of residence, as alleged by plaintiffs. In the ease before us, there was an attempt to furnish what was assumed to be competent evidence, an authenticated copy of the will, the proof upon which it was established and probated in South Carolina, together with the statement that the testator's domicil was in South Carolina. This is all of the evidence; there was nothing to prove the contrary; it was presented for the consideration and judgment of a court of competent jurisdiction, and was held to be sufficient. We think the evidence not sufficient; certainly not to devise réal estate in Arkansas, but, until reversed and set aside, for which provision is made by statute, we do not feel at liberty to treat the judgment of the court as void.

In the case of Townsend v. Estate of Downer, 32 Ver., 216, when considering the effect to be given to a probated will, Aldis, J., said: “ The will, having been approved by the Probate Court, and nothing appearing to show that the court did not have jurisdiction, its jurisdiction will be sustained. It is presumed to have jurisdiction till the contrary appears. The objection to the certificate authenticating the probate of the will in New York should have been taken in the Probate Court. The decree of the Probate Court admitting the will to probate.here cannot be assailed in this collateral manner.”

The probate of a will by the statutory courts in England or the United States is conclusive evidence that the document is testamentary. Wigram on Wills, part 2, p. 9.

In the case of Jourdan v. Mier, 31 Missouri, 40, Napton, J., said: It is well settled that the probate of a will is a judicial proceeding. No particular form is prescribed by statute, in which the judgment of approval or probate shall be expressed.

>|< * * s¡s *

The judgment.of the clerk, or court, pronouncing a will to be legally proven or probated, is entirely distinct from the evidence upon which the judgment is pronounced. * * *

The objection to the admissions in evidence of the will of Joseph Jourdan were, that the proof upon which the probate was granted was insufficient.

“ The insufficiency of the proof is no objection to the admissibility of the record of probate. 'If the will is admitted by the clerk, or the court, upon insufficient proof, the law has provided a mode by which the validity of the will may be disputed and decided.”

This decision is decidedly in point. If the proof was insufficient to establish the will, the parties interested in setting it aside, had an adequate remedy afforded them by our statute, which provides (sec. 32, Ch. 180, Gould’s Digest), “That if any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, and by petition to the Circuit Court of the county in which such will was established or rejected, pray to have such will rejected (if previously established), or proven if previously rejected by the Court of Probate, it shall be the duty of the Circuit Court to direct an issue to try the validity of such will, which issue shall, in all cases, be tried by jury.”

The 34th section makes a saving to infants, married women, persons absent from the United States, or of unsound mind, a like period after such disabilities shall have been removed.

We have carefully considered this question; it is one which may have a most important bearing upon the final determination of the ease — and, after the most mature consideration, we are left the alternative of holding either that, however irregular the proceeding may have been in admitting the evidence adduced, or deciding it be sufficient to establish the will and admit it to record, as it was acted upon at the domicil of the testator, and in the county where most of the lands devised lay, the judgment and decision of the Court of Probate, probating the will and admitting it to record must stand until reversed or set aside, or to overturn the uniform series of decisions of this court for more than twenty years, and hold the orders and judgment of the Probate Court absolutely void.

The authorities and adjudicated cases to which we have referred, and in accordance with' our own decisions, we must hold that the will of James W. Duckett must be taken and held as a probated will, with all the rights which arise under it.

After a careful consideration of the bill, we have been unable to find such a state of case as will entitle the plaintiffs to relief. Whilst they very clearly state the claim which they set up as heirs of Duckett, they not only show that he had devised and bequeathed the estate which they claim, but that, by the judgment of a court of competent jurisdiction, the will has been probated and recorded in the proper county; and while it is also clearly shown that the judgment of the Court of Probate was formed and rendered upon insufficient evidence, their remedy was clear and ample to re-investigate and correct the error of the Probate Court. This they have neglected to do, although given ample time for that purpose by statute, and must abide the consequences. If the will is, in fact, invalid, if not susceptible of the required proof, they are sufferers from their own neglect; if, on the other hand, the will is valid, they have no interest in the estate. Let the decree of the court below be in all things affirmed.


source: Caselaw Access Project

author: Harrison, J. :

license: Public Domain

text:
    Thorn vs. Provence.
    1. Pbbsumptions: In favor of Circuit Court.

    Where, on appeal from a justice of the peaee, the original papers are lost) and the appellee appeared in the Circuit Court, it will be presumed, in reviewing the action of the court in overruling a motion to dismiss, that the appeal was properly taken; or, if there was any irregularity, that the appellee waived it.
    2. --: Same.

    This cause was transferred to the court below by change of venue from another county, and motion to dismiss because the record showed no petition for the change of venue, filed and overruled: Held, reviewing the action of the court below, that the Circuit Court, being a court of general jurisdiction, its judgments and orders are to be presumed valid unless shown to be erroneous.

      APPEAL from Craighead Circuit Court.
    Hon. David Nicholls, Special Judge.

      Rose, for appellant.

      J. M. Moore, for appellee.
   Harrison, J. :

This is an appeal from the Craighead Circuit Court.

The suit, which was on a promissory note, was commenced by the appellee before a justice of the peace of Greene County, and tried and determined by the justice on the 4th day of May, 1872. An appeal was taken by the plaintiff to the Circuit Court of said county, and, at the term, 1873, the venue, upon his application, was changed to the Circuit Court of Craighead County. The record having been lost by the destruction of the court house by fire before the copy of the orders in the case had been made out, and transmitted to the Craighead Circuit Court, at the October term, 1873, upon a suggestion of the loss, the order changing the venue, which, from anything that appears to the contrary, was the only order made in the case, was, by consent of parties, reinstated on the record, and a certified copy thereof was filed in the Craighead Circuit Court. ' In the order, so re-instated, the appearance of the parties is stated. With the copy of the order was also filed a copy of the justice’s transcript, which appears to have been filed in the Greene Circuit Court on the 1st day of October, 1873, and, no doubt, as a substitute for the original one.

At the March term, 1875, at the Craighead Circuit Court, the plaintiff was permitted, upon showing the loss of the note, to file a copy in substitution therefor. The defendant then moved to dismiss the appeal because no affidavit and bond had been filed with the justice. The motion was overruled, and he moved to dismiss the case from that court because the record showed no petition for the change of venue. This motion also was overruled, and the cause was then tried by a jury, which returned a verdict for the plaintiff for the sum named.

It appears, from the transcript before us, that the defendant filed a motion for a now trial, but no disposition seems to have been made of it, and it was not, by bill of exceptions, or.in any manner, brought upon the record.

The' only questions for our decision are those presented by exceptions reserved by the defendant to the overruling of his motions to dismiss the appeal, and to dismiss the cause from the Craighead Circuit Court.

At the time the appeal in this case was taken, section 828 of the Code was in force, and no affidavit or bond was required to-be filed with the justice. As provided by that section, appeals from justices of the peace were taken by producing to the clerk a certified copy of the judgment and amount of costs, and executing before him a bond that the appellant would perform the judgment that should be rendered upon the appeal; upon doing which the clerk issued an order to stay further proceedings, and to transmit to his office the original papers, and the appellee was to be summoned as in suits commenced before the Circuit Court-.

As the original papers were not transmitted to the Craighead Circuit Court, having been, most probably, burned in the fire which consumed the court house, and no steps, it seems, had been taken to replace them, we have no means of knowing what was done in taking the appeal, but, inasmuch as the defendant was in court when the order for the change of venue was made, and afterwards consented to the reinstatemement upon the record, we must presume it was regularly taken, or if anything was omitted to be done, the defendant waived it, or the court would not have assumed jurisdiction over the case.

The objection to the jurisdiction of the Craighead Circuit Court, because no petition for the change of venue appeared on file, we think also untenable.

When the order for the change of venue was made, though after the passage of the act of 24th April, 1873, by which they were repealed, sections 752-757 of the Code, providing for a change of venue in civil cases were still in force — ninety days from the end of the session, at which the repealing statute was passed, not having expired. Constitution 1868, Art. v, sec. 22.

Section 752 of the Code was as follows :

Any party to a civil action triable by a jury, may obtain an • order for a change of venue therein, by motion upon a petition, stating that he verily believes that he cannot obtain a fair and impartial trial in said action in the county in which the same is pending, on account of the undue influence of his adversary, or of the undue prejudice against the petitioner, or, his cause of action or defense in such county. The petition shall be signed by the party, and verified as pleadings are required to be verified, and shall be supported by the affidavit of one or more-attorneys of the petitioner, to the effect that affiant believes the statements of the petition are true.”

The order changing the venue contains this recital:

On this day come the parties to this action, and the plaintiff, by leave of the court, files his motion for a change of venue in this cause, properly verified, as required by law.”

Although there is in the order no express mention of a petition, yet its language is such, we may infer, that the motion referred to served the double purpose of petition and motion. It manifestly set forth the cause for the change of venue, or how could it have been verified as required by law? Be this, however, as it may, the Circuit Court, being a court of general and not of limited jurisdiction, its judgments and orders are to be presumed valid, unless shown to be erroneous.

The defendant, who was not only in court when the change of venue, was ordered, but also at the next term, consented to the re-instatement of the' order upon the record, made no effort after the case reached the Craighead Circuit Court to show that thé recital in the order was incorrect, or that no sufficient cause was shown to exist, and in the manner required by the statute for the change of venue. This he might easily have done, if such was the fact, by applying to have the papers that were in the case in the Greene Circuit Court, including the said notice, with its verifications, restored upon the record. Not having done so, there is nothing to show that the case was not transferred in accordance with law, and that the Craighead Circuit Court had not acquired rightful jurisdiction thereof.

The judgment of the court below is affirmed.


author: Engeish, Ch. J.:

text:
    Rogers vs. Brooks.
    X. Sureties on Appeal Bone: Jurisdiction over.

    Upon the affirmance of a decree for money by this court, the decree goes against the sureties in the appeal bond as of course, and, if omitted at the time, may afterward be entered mtne pro lime. The sureties are not entitled to notice before decree against them.
    2,--,. Practice when excessive judgment rendered against.

    The sureties in an appeal bond stipulated to pay any decree that might be rendered by this court against their principal, not to exceed the amount of the decree below. The bond recited the amount of the decree excessively, and was followed by the decree in this court: Ordered, that a remittitur he entered as of the date of the decree, and certified to the sheriff, in whose hands an execution has been placed, with directions to enter the amount remitted as a credit on the execution.
    PETITION to quash and recall an execution.

      Palmer and Pose, for the petition.
   Engeish, Ch. J.:

Under the statute, where a.decree for money, stayed by an appeal bond, is affirmed, a decree goes against the sureties in the appeal bond, as a matter of course.. If tbe clerk omits to enter the decree against the sureties at the time of entering the decree of affirmance against the appellant, it may afterwards be entered nune pro tune. The sureties, having made themselves parties to the suit by entering into the appeal bond, are not entitled to notice before decree against them. White v. Prigmore, 29 Ark., 208.

In this case there was a personal decree rendered against Rogers, on the cross claim of Brooks, for $1,356.45, fr.om which he appealed, and entered into a supersedeas bond, with sureties, in which the sureties obligated themselves to pay airy decree that might be rendered here against Rogers, not exceeding the amount of the decree of the court below, etc., but the bond erroneously recited the decree to be for $1,583.55.

A decree was rendered against Rogers here for $2,022.75, and a decree should have been rendered against his sureties in the appeal bond for $1,356.45, the actual amount of the decree below. But the clerk omitted then to enter the decree. Afterwards, at the next term, an order was made to enter the decree nune pro tune, and the clerk, following the erroneous recital in the appeal bond as to the amount of the decree below, entered the decree for $1,583.55, when it should have been for $1,356.45.

Hence there is an excess in the decree of $227.10.

A remittitur must be entered of record, as of the date of the decree against the sureties, for this sum, and certified to the sheriff of Phillips County, with directions to him to endorse the amount remitted as a credit upon the execution in his hands) as of the date of the decree.

There is nothing in the suggestion of the solicitor of the sureties, that their undertaking in the appeal bond was for Rogers, as administrator of his wife. Rogers, as administrator of his wife, recovered against Brooks, in the court below, a decree for the lands of the wife, which was all he claimed, as administrator, in the suit. From this part of the decree he took no appeal, but he appealed from the personal decree rendered against him for money, on the cross demand of Brooks, and it was on this appeal that the supersedeas bond was executed by the sureties. In this appeal, the estate of the wife was in no way involved. It was on the appeal of Brooks that the estate of the wife was involved.


author: English, Chj J.:

text:
    Harris vs. The State.
    1. Criminal Pbactice: Polling the jury.

    The objectin pollingthe jmry is. to ascertain if the verdict announced by the foreman is the verdict of all the jurors; and if there is any reason to doubt that all the jurors concur, it is competent for the court, of its own motion, to cause the jury to be polled.

      •2. ■ VEimiCT.
    Where the instructions do not appear in the transcript, and the court below refused to set the verdict aside, the presumption is that it was in accordance with the instructions.
    3.--; iSame.

    When the jury find the accused guilty, on circumstantial evidence, this court will not disturb the verdict, if there is any evidence to sustain it.
    APPEAL from Drew Circuit Court.
    Hon. T. F. Sorrells, Circuit Judge.

      Hughes, Attorney General, for the State.
   English, Chj J.:

The appellant, Henry Harris, was indicted, tried and found guilty of murder in the first degree, at the August term, 1876, of the Circuit Court of Drew County. He filed a motion for a new trial, which was overruled, and he took a bill of exceptions, setting out the evidence introduced on the trial. He was sentenced to be hung, and an appeal was allowed him by one of the judges of this court.

The third, fourth and fifth grounds assigned in the motion for a new trial may be considered together. They follow:

“ Third — Because the jury did not return a verdict for the degree of murder for which they found the defendant guilty.
“ Fourth — Because the jury were polled to ascertain the degree of murder.
Fifth — Because the verdict does not state the degree of murder for which the jury found the defendant guilty.”

So much of the record entry of the trial and verdict as relates to these assignments, is as follows:»

“ After hearing- all the evidence adduced, the argument of counsel and the charge of the court, the jury retired in charge of a sworn officer to consider of their verdict, and afterward returned into court the following verdict, viz.: We, the jury, find the defendant guilty-of murder in the first degree, as charged in the within indictment. E. V. Henderson, Foreman.’ ”

The same verdict appears to have been endorsed upon the indictment.-

It is manifest, from the transcript of the record before us, that there is no ftmndation in fact, for the third and fifth assignments.

As to the fourth, it appears from the bill of exceptions that, after the verdict, as above, was announced’in court, in the presence of the prisoner, the court, of its own' motion, polled the jury to ascertain if that was their verdict, and each one answered, it is.”

The object of polling the jury is to ascertain whether the verdict, rendered by the foreman in behalf, of himself and the rest, is really concurred in by the others. Colby Cr. L., 385; State v. John, 8 Iredell L., 339.

Sir Matthew Hale says : “ Now, touching the giving up of their verdict, if the jury say they are agreed, the court may examine them by the poll, and if, in truth, they are not agreed, they are finable. If the jurors, by mistake or partiality, give their verdict in court, yet they may rectify their verdict before it is recorded, or, by the advice of the court, go together again and consider better of it, and alter what they have delivered. But if the verdict be recorded, they cannot retract nor alter it.” 2 Hale’s Pleas of the Crown, 301.

In Watts v. Brains (on an appeal of the wife for the murder of her husband), Croke Elizabeth, 779, there is this report: “ The jury going from the bar, notwithstanding the evidence was pregnant against the defendant, eight of them agreed to find him not guilty ; but the other four withstood them, and would not find it but to be murder. On the next day morning, two of the four agreed with the eight, to find him not guilty, and afterwards the other two consented in this manner, that they should bring in and offer their verdict not guilty; and if the court disliked thereof, that then they all should change the verdict and find him guilty. Upon this agreement they came to the bar, and the foreman announced the verdict, that the defendant was not guilty. The court, much misliking thereof, being contrary to their direction, examined every one of them by the poll, whether that was his verdict, and ten of the first part of the pannel severally affirmed their verdict, that the defendant was not guilty; but the two last affirmed how they agreed, and discovered the whole manner of th'eir agreement; whereupon they were sent' back again, and returned and found the defendant guilty.”

By statute: “Upon a verdict being rendered, the jury may be polled at the instance of either party, which consists of the clerk or judge asking each juror if it is his verdict, and if one answers in the negative, the verdict cannot be received.” Gantt’s Digest, sec. 1967.

But this statute does not deprive the court of the authority to cause the jury to be polled if it has reason to doubt that all of the jurors have consented to the verdict announced by the foreman.

In this case, the appellant could not possibly have been prejudiced by the action of the court in causing the jury to be polled. The former had announced the verdict of guilty of murder in the first degree. It turned out, upon the polling, that all of the jurors agreed to this verdict. If any juror had answered in the negative, the verdict could not have been received, but the jury Avould have been sent out to consider further of their verdict.

The second assignment: “ Because the verdict is contrary to the instructions of the court.”

It appears from the bill of exceptions, that the court gave instructions asked by the State, and others moved for the prisoner, and charged the jury on the laAV applicable to the case, but the instructions and charge are not in the bill of exceptions, nor in the transcript before us. We have, therefore, no means of determining Avhether the verdict avus contrary to the instructions of the court or not. The presumption is, that the verdict Avas in accordance Avith the instructions 'of the court, as nothing contrary appears, and the court refused to set it aside on the motion for neAV trial.

The. first assignment: “ Because the verdict is contrary to the evidence.”

The appellant Avas charged Avith the murder of Adam Pippin. The indictment alleges, in the usual form, the time of the offense, 9th of August, 1876, the venue, Drew County, and the manner of the killing, by shooting Avith a double-barrel shot gun, loaded Avith poAvder, leaden balls, etc., etc.

The corpus delicti Avas proven by direct testimony.

It appears that Adam Pippin lived in a cabin'on the premises of William Nichols in DreAV County. On Wednesday night, of August the 9th, 1876, about eight or nine o’clock, while sitting in his house, he Avas shot Avith a gun, through a crack in the Avail, near the chimney, and instantly killed, in the presence of his wife and some of his children. The night was dark and rainy, but after supper he had kindled a light in the fire-place, and after playing awhile with a child, handed it to his wife, “ and turned himself in his chair to rest,” and while thus resting he was shot. The coroner found five balls in the left side of his head and face.

No witness saw who fired the gun. It was a secret, cowardly and brutal murder.

The jury found, from circumstances proven on the trial, that the appellant was the guilty agent of the crime, and the judge who presided at the trial, and heard all the evidence, refused to set aside the verdict.

There was some evidence of ill feeling between appellant and deceased. It seems that in January, 1876, appellant took the daughter of deceased, ran off with her, and brought her back in the following July, and was living with her at the house of Elias Nelson, in the neighborhood of her father, at the time he was murdered, but had not married her; and her father had, perhaps, forbidden him to come on his place.

It is probable that the jury found in this ill feeling between appellant and deceased a motive, on the part pf the former, for the commission of the crime.

It was proven that, a few days before Pippin was killed, appellant was in company of several persons, who were saying that one Rowlett intended to have Adam Pippin up at court for taking his corn, and turning stock on his wheat, when appellant said, “that Adam Pippin could not live until court; that he was too mean a man.”

The jury doubtless regarded this as a threat, and as an indication of malice, on the part of appellant, against Pippin.

It was proven that, on Tuesday morning, the day before the killing, appellant borrowed a double-barrel shot gun of Joseph Young, who lived not far from the house of Elias Nelson, where appellant lived. The gun was loaded and the locks rusty. On the same day, a witness was at the house of Elias Nelson, and helped appellant clean up the gun. Appellant said he was going a hunting, and asked for powder and buck shot to load the gun. Witness-told him that buck shot would not do to hunt squirrels, and appellant replied that he wanted to kill them. Witness let him have powder, but had no buck shot. He went hunting (another witness stated) about four o’clock of the evening of the same day, and returned about night, without killing anything. He remained at Nelson’s next day (Wednesday, 9th August) until half an hour to sundown, when he went out aloné with the gan, saying he was going hunting. Late on the same evening hv was seen, by another witness, with a gun on his shoulder, going in the direction of the place where Adam Pippin lived,, There was something in his appearance, or movements, that .¡.cade the witness feel a little frightened. About eight or nine o’clock of that night, a neighbor of Pippin’s heard a gun fire, a.-id, shortly after, two of Pippin’s children came for him, saying Heir father had been shot, etc. Appellant returned to the house Nelson, with the gun, about midnight. His clothes were wet. On being asked by the woman with whom he slept why his shirt was so wet, he said he had passed through a cornfield, and the dew had wet his shirt. Next morning (Thursday) about or a iiotle after daybreak, he got up, and took the gun home to Young. When he borrowed it, it was loaded up to four fingers, to use the language of Young, and when brought back, it had been fired off, cleaned up, and the locks greased. It was loaded when returned, but the loads measured only three fingers.

The house of a witness (Thomas Varnishee) was situated between that of Joseph Young and that of Elias Nelson, about a hundred yards from the latter, and a quarter of a mile from the former. A little after daylight, on Thursday morning (the morning after the killing) witness saw appellant pass his house, carrying home Young’s gun. After he passed, two men came riding by, and one of them stopped and told witness that Adam Pippin was dead; that some one shot him sitting in his house last night. After this man left, in a short time appellant came along, returning from Young’s, and told witness the same thing; and asked witness to tell Young, if anybody asked him when he (appellant) carried his double-barrel shot gun home, to tell them that he carried it home two days ago;” and told witness to say that he persuaded him (appellant) to stay all night (the night of the killing) with him, as he had something important to tell him next morning ; and that if anybody asked where he was, to say that he had gone to the Ouachita River hunting. Appellant did not, in fact, stay with witness the night of the killing.

This evidence, that appellant attempted to induce others to utter falsehoods in his behalf, in relation to the time when the gun was taken home, and the place where he stayed on the night of the killing, no doubt made an unfavorable impression on the ’minds of the jurors as to the innocence of the appellant.

The evidence indicates that, from the morning of the 10th of August (the day after the murder), the appellant attempted to conceal himself. He was found and arrested, a few days before the trial, in a house situated in a thicket, which the witness stated, to be a good place to hide in. When found, he was lying on the floor asleep, his head resting upon an open Bible. Pie had three pistols, an open knife, and a gun was standing in a corner of the house. His shoes were out near the woods, in the weeds..

His surroundings, when found and arrested, were not such as to make a favorable impression on the jury.

Other circumstances were in evidence which may have had some influence on the jury, but it is not deemed material to state them. We have stated, in substance, the striking features, as presented in the bill of exceptions.

Whether, upon the circumstances disclosed by all of the evidence, we would have found the appellant guilty had we been of the jury, we need not state. It was the province of the jury to weigh the facts and circumstances proven before them, and to pass upon the guilt or innocence of accused. They found him guilty, and we cannot affirm that there was no evidence to support the verdict.

The judgment must be affirmed, and the day fixed by the court below for the execution of appellant having transpired, the affirmance must be certified to the Governor, that he may fix another day for the execution of the sentence.


author: Walker, J.:

text:
    Marr vs. Lewis.
    1. Marshalling or Siscubities:
    When one creditor has a security upon two funds, anotL er having a security on one of them, may, if necessary to the protection of his security, compel the other to resort to the fund not embraced in it, if it can be done without prejudice to the other creditor, or injustice to the common debtor or third persons having interest in the fund.
    2. ---: Same.

    A held a mortgage on two tracts of land, B also' held a mortgage on one of the tracts; in a proceeding by A to foreclose, B sought to compel him to exhaust the tract not embraced in his mortgage first. The widow of the mortgagor, who was also a party, claimed a homestead in the latter tract: Held, that by reason of the widow’s equity, the securities should not be marshalled.
    3. Pleading: Gross-Bill.

    To entitle a defendant in equity to relief by reason of new affirmative matter set up in the answer, it should be made a cross-bil, and the parties to-be affected by the relief sought, should be made defendants.

      APPEAL from Drew Circuit Court in Chancery.
    Hon. T. F. Sorrells, Circuit Judge.

      A. W. Bishop, for appellant — L. Marr.

      Bose, for Caroline Marr.

      Me Cam, for Lewis.
   Walker, J.:

On the 9th January, 1871, Herbert Marr conveyed, by mortgage deed, several tracts of land to James M. Lewis, to secure the payment of $1,000; afterwards, 'on the 8th of November, 1871, he conveyed by mortgage deed part of the same lands to Lorinda Marr, to secure the payment of $2,000. On the 28th •of November, 1871, Herbert Marr married and settled upon the Northwest quarter of Section 34, with his family; he continued to reside upon the land with his family until 1873, at which time he died, leaving the defendant, Caroline Marr, and infant children upon the land. She was appointed administrator of Plerbert Marr’s estate. Lewis, to whom the first mortgage was given, filed his bill in the Drew Circuit Court against Lorinda Marr, to whom the second mortgage was executed; James F. Barron, her tenant, in possession; Caroline, the widow and administratrix; and the unknown heirs of Herbert Marr.

The defendant, Lorinda, answered, admitted the truth of the allegations in plaintiff’s bill; states that she has a mortgage on part of the land described in the mortgage executed to plaintiff, describes the land embraced in her mortgage, by legal subdivisions, and makes a copy of her deed an exhibit to her answer; states that the deed was given to secure the payment of $2,000, which is unpaid, and concludes her answer, or more properly, her statement of facts, as follows :

“ The premises considered, the defendant prays that her rights in the premises may be properly protected; that the securities herein may be marshalled by the court, that the defendant’s mortgage may be declared a. lien upon the land herein described subject to the rights of the plaintiff. That the plaintiff may be required first to exhaust his security on the land mentioned in the complaint, not embraced in the defendant’s mortgage;. that the equities of the several parties interested may be barred, and that the lands described in this answer may be sold to satisfy this defendant’s mortgage, after the payment of plaintiff’s demand.”

The defendant, Caroline Marr, also admitted the material allegations of the bill, and set up her right to the Northwest quarter of Section 34, which had been mortgaged to plaintiff, but not to the defendant, Lorinda: states that her husband before his mariage with defendant,.lived upon this tract with his mother, that the land was his, that he continued to reside upon it with his family until his death in 1873; that defendant is his , widow, resides upon and claims this quarter section as her j homestead.

The parties submitted an agreed statement of facts in regard to the homestead, to the following effect: That in January, 1871, Herbert Marr was unmarried, owned the land in controversy, but never lived upon it, had never kept house, lived with his mother and sisters, rented a house in Monticello, Drew County, in the summer of 1871, never resided upon the land in controversy until after his marriage.

The case was submitted to the court upon the pleadings, exhibits and this evidence. The application of the defendant, Lorinda, to marshal the assets was refused, and without refer- j ence to the homestead claim set up by defendant, Caroline,/ a decree was rendered in favor of plaintiff for his debt, with order of sale of the land.

The defendant, Lorinda Marr, has appealed to this court, her claim to marshal the assets was asserted upon the well established rule, that where one creditor has a security upon two funds of his debtor, and another creditor has security for his debt on only one of these funds, the latter has a right in equity to compel the former to resort to the other fund, if it is necessary for the satisfaction of both debts, but it is also a well established rule, that the right of the party having a claim upon both funds, is not thereby to be prejudiced ; and that the rule is to have no application when the effect of it would be to do injustice to the common debtor, or operate inequitably on the interests of others. Ayres v. Husted, 15 Conn., 504. A Court of Equity will never displace or impair one equity for the .purpose of asserting or upholding another.

In the case under consideration, the plaintiff had a mortgage lien upon the Northwest quarter of Section 34, the defendant, Lorinda Marr, had none, but she wished this tract first sold, in. order to protect her mortgage lien. It was upon this quarter section that the dwelling house and farm lately occupied by Herbert Marr was situated; the defendant, Caroline Marr, resided upon, and claimed it as her homestead; it is true that this tract was. encumbered by the plaintiff’s mortgage lien, but if the other property mortgaged to the plaintiff, should upon sale prove to be sufficient to pay the mortgage debt, then the homestead would have been unincumbered, and to have required this property to be first sold, would have deprived her of the benefit of her homestead claim, and for this reason.the application of Lorinda Marr to marshal the assets, so as first to expose this tract to sale should have been refused.

But if this objection had not existed, we think the defendant failed to bring the facts upon which she relied, properly before the court. The facts set forth in her answer, are not responsive to the allegations of the bill, but affirmative, and should have been set up in a cross-bill, or in her answer in the nature of a cross-bill: she sets up her subsequent mortgage, avers its validity, and that her debt remains unpaid, prays that the property be sold under her mortgage, subject to the rights of the plaintiff, - or if made by plaintiff, that be first sell the homestead property.

The administratrix of the estate of the mortgagor, and his heirs had a right to contest the validity of the deed, or to show that the debt had been paid, and for this purpose should have been made defendants in the cross-action.

The widow claiming a homestead was also a necessary party, because she had a right to contest the application of the second mortgagee to have the property so marshalled, as to subject her homestead in the first instance to sale; proper issues for this purpose could have only been formed on a cross-hill.

The defendant, Caroline, might upon the state of case made in her answer, if presented by cross-bill, have bad the property mortgaged to plaintiff so marshalled as to protect the homesteád tract from sale, unless it became absolutely necessary to do so for the payment of the mortgage debt, but as she failed to do this, no decree in her favor for such purpose was permissible.

Let the decree be affirmed.


text:
    Rickerstricker vs. The State.
    1. Evidence.
    Where a witness is rejected for incompotency, it is not necessary to set out what the party expected to prove by him.

      --- — ■: Same.

    The rule which excludes the husband or wife as witnesses, does not extend to persons who cohabit together as husband and wife without lawful marriage.

      APPEAL from Lincoln Circuit Court.
    Hon. John A. Williams, Circuit Judge.

      Rousseau, for appellant.

      IlugKes, Attorney General, for the State. .
   Harrison, J. :

The appellant, Lewis H. Rickerstricker, was convicted in the Lincoln Circuit Court, of the murder, in the first degree, of Louisa Johnson. He moved for a new trial, which was refused, and he was sentenced to be hanged.

On the trial, he offered as a witness Amanda Jones, who, being examined on the voir dire, stated that she and defendant had lived, together as husband and wife since 1867, and she had had children by him, but that they had never been married, and she had never acknowledged that she was his wife.

Objection to her competency was made on the part of the State, and the court refused to let her testify. What the defendant proposed to prove by her is not made to appear by his bill of exceptions.

To show in what manner he was prejudiced by the ruling of the court in the rejection of the witness, it was not necessary for the defendant to set out what he expected to prove by her.

A party introducing a witness, unless required by the court, is not bound to state in advance what facts he expects to prove by him; and when, without such requirement, the court excludes a witness in limine, its decision must be understood to have beer; made upon an objection to the witness himself, and not to the testimony he is expected to give. It is only where evidence is. ruled out on account of the matter that it is necessary to set out, in the statement of the case, what the party expected or offered to prove; and where a witness is rejected on the ground of incompetency, it must be presumed that the witness would have been rejected, no matter how material the evidence might have been. State v. Jim, 3 Jones, 348 ; Force v. Smith, 1 Dana, 151; Duffee v. Pennington, 1 Ala., 506.

Was, then, the witness incompetent?

The rule which excludes the husband or wife, except in a case of particular necessity, as when, for instance, the wife would otherwise be exposed, without remedy, to personal injury, from being a witness for or against the other, has never been extended to any other than lawful marriages, or, at least, to such as are innocent in the eye of the law. Where the cohabitation is of an immoral character, as in the case of a kept mistress, the parties are competent witnesses for and against each other. 1 Green, on Ev., sec. 339 ; 2 Stark, on Ev., 550; Balthews v. Galindo, 15 Eng. C. Law R., 88; State v. Samuel, 2 Dev. & Bat., 177.

Judge Ruffin, in delivering the opinion of the court in the case last cited, said: There have, indeed, been decisions at nisiprius, in which persons not actually married have not been allowed to give evidence for each other, because, in the very transaction under investigation, they had held themselves out as man and wife. But it has never been doubted that one was a competent witness against the other, unless a legal marriage existed ; and it now seems to be finally and properly settled that, in every case, whether the witness be called by the one side or the other, the test, and the only test of competency, is this — are they, in fact and in law, husband and wife ?”

The witness was clearly competent, and should have been admitted to testify; and, for the error in excluding her, the judgment of the court below is reversed and the cause remanded to it, with instructions to grant the defendant a new trial.


author: Harrison, J.:

text:
    Benjamin vs. Loughborough's Adm'r.
    1. Parties.
    In a proceeding against the trustee in a trust mortgage, affecting the subject matter of the trust, the cestui que trust should be made a party, and for a failure to do so, leave should be given the plaintiff: to amend, or the complaint should be dismissed without prejudice.
    2. Mortgage: Powers of sale, etle.

    A power of sale contained in a mortgage is not suspended by a resort to the process of garnishment on the part of the creditor.
    APPEAL from Pulaski Chancery Court.
    Hon. W. I. Warwick, Chancellor.

      Benjamin & Barnes, for appellant.

      Hose, for appellee.
   Harrison, J.:

On the 13th day of September, 1872, the appellant, Mason W. Benjamin, executed a deed of trust of certain lots in Little Rock to James M. Loughborough to secure the payment of a promissory nóte of $3,000, executed by him, at the same lime, to James H. Morley, payable on the 13th day of September, 1873.

The'deed empowered said Loughborough, in case the note was not paid at maturity, after giving notice in the manner therein prescribed, to sell the lots at jmblic auction, for cash, for the payment thereof.

The note not being paid, Jioughborough, on the 19th day of June, 1874, advertised the lots for sale on the 20th day of August thereafter. After the advertisement was made, Morley brought suit on the note in the Pulaski Circuit Court, and, by garnishment, attached a debt of equal or greater amount than the note, which the Cairo and Fulton Railroad Company owed Benjamin.

Benjamin brought this suit against Loughborough to enjoin the sale of the lots, upon the assumed ground that the attachment of the railroad company's debt to him was, until the same was discharged or disposed of, a satisfaction of the note, and suspended the power of the trustee to sell, and a preliminary injunction was granted by the chancellor.

The defendant filed a demurrer to the complaint, which the court sustained, and thereupon dismissed the complaint.

Since the appeal was taken Loughborough has died, and the cause has been revived here against Thomas Essex, his administrator.

The very obvious defect in the complaint, that Morley, the eestui que trust in the deed, and for whose benefit the sale was to be made, was not made a party, was not assigned as a cause of demurrer. Unless he was before the court, no decree, of course, could have been rendered affecting his rights; yet, if any ground for relief had been shown, the complaint should not have been, for that cause alone, absolutely dismissed, but leave been given the plaintiff to amend it by making him a defendant, or it should have been dismissed without prejudice to the bringing of another suit.

The only question for our consideration is as to the effect of the garnishment upon the right to sell under the deed of trust.

The appellant contends that the garnishment is analogous to a levy under an execution, and suspended all other remedies for the collection of the debt until that is disposed of. From the view we take of the case, we do not deem it necessary to determine whether such an analogy exists or not.

A deed of trust is virtually, if not strictly, a mortgage, and, in effect, the same as a mortgage with a power of sale. “A mortgage,” says Perry, “may be in the form of a deed of trust from the grantor to the grantee, providing that if the grantor shall not pay a certain sum of money at a certain time, the grantee may sell the estate in a certain manner; or do whatever other thing the deed of trust points out to be done.” 2 Perry on Trusts, sec. 602 b. The power of sale in pais in both cases, is substituted by the parties for the formal process of foreclosure in equity, which would otherwise be necessary to make the security effective.

A creditor who takes a mortgage to secure a debt, may sue at law to recover it,, and, at the same time, pursue his remedies under the mortgage. Fitzgerald v. Beebe, 7 Ark., 305.

Whilst the levy would suspend all other steps or proceedings upon the judgment for the collection of the debt, until that was disposed of, it is but an inchoate and contingent satisfaction, and no more beneficial to the mortgagee than would be the possession of the land recovered by him in an action of ejectment. The levy, as the law is now settled, neither gives any thing to the creditor, nor takes any thing from the debtor: but merely confers a right to sell. Whiting & Slark v. Beebe, 12 Ark., 421.

The remedies of a mortgagee being collateral and independent, neither is suspended or affected by any proceeding in pursuance of another that falls short of an entire and absolute satisfaction of the debt.

The decree of the court below is affirmed.


text:
    Carter vs. Burnham.
    A«.knoy:
    One who managed a farm for another, with authority to purchase mulos, implements and supplies for the farm, was noc thereby authorized to buy goods for the laborers on the farm; and his representations to that effect were not binding on his principal.
    APPEAL from Ashley Circuit Court.
    Hon. T. F. Sorrells, Circuit Judge.

      Moore and Murphy, for appellant.

      Carlton and Me Cain, contra.

   Harrison, J.:

This was a suit by Burnham, the appellee, against Carter, the appellant, to recover the price of goods and -merchandise furnished by appellee to Henderson Dean, Nathan Davis and other laborers on appellant’s plantation, at, as he alleged, the instance and request of the appellant.

The defendant, in his answer, denied that the goods were furnished at his instance and request.

The jury found for the plaintiff, the sum of $342.22 — the amount claimed in his complaint. The defendant moved for a lew trial, upon the ground that the verdict was not sustained by “he evidence; and his motion being overruled, he excepted, setting out the evidence, and appealed.

The evidence was as follows:

The plaintiff' testified. That the defendant, who resides in Georgia, was the owner of a plantation in Ashley County, of which J.-W. Segars, in the year 1872, was the superintendent and manager, and resided thereon; that Segars, whilst he was such superintendent and manager, representing himself as the defendant’s agent and authorized to make such contracts, applied to the plaintiff, who was a merchant, to furnish certain laborers or hands on the plantation with goods, and charge the same to the defendant, who, he said, would pay for them; that he told Segars, he would not credit the laborers, who were negroes, nor sell to him, except as Carter’s agent; but knowing that he was -¿he superintendent and manager of the plantation, and had purchased mules for it, and paid for the same, by drawing a draft¿ and also knowing him to be a gentleman; upon the faith of his representations, he sold, from time to time during said year, the said .laborers the goods mentioned in the bill of particulars, exhibited with his complaint, keeping, at Segars’ suggestion, each one’s account separate, but charging all to the defendant, and that Segars made another account with him for the defendant, for plantation supplies. That he called upon the defendant, at his plantation inthe'fall of 1873, for payment of the accounts. He paid that for plantation supplies; but refused to pay those for goods furnished the laborers, saying that Segars had no authority to make them; though he admitted, he had, to buy mules, farming implements and plantation supplies. Segars died in 1873, and Hawkins, who succeeded him in the management of the plantation, bought goods from him for the hands, and said he had authority from the defendant to do so.

H. C. Lawrence, the clerk of the plaintiff, testified, that the plaintiff refused to sell the goods, only on the defendant’s credit, and that Segars made another account with the plaintiff for the plantation which the defendant paid.

The deposition of the defendant was read. Pie deposed : that Segars was the superintendent and manager of the plantation in 1872, but had no authoritv from him to purchase gootls for the laborers or hands on the plantation, on the contrary, he liad expressly instructed him not to do so, and if he had done so, it wjv) without his knowledge or consent, and against his positive instructions, and he had never ratified such dealings'; that .such had been his instructions to his managers since 1867, and Lo hadnot since then ratified or paid such accounts. When L; employed Segars, he needed stock for the plantation, but there was none in the country for sale, so he directed him, when stock should be brought in, to purchase such as was needed, and to draw on his merchants in New Orleans for the pries-. Segars, afterwards in pursuance of such directions, purchased some mules for the plantation, and for the price drew a draft or. the defendant’s merchants, which was paid. By his contract with the laborers, he was to furnish them with provisions and coarse clothing, when informed they needed them; and he always sent to New Orleans for them. They were to have one-half the crops, and such advances were to be paid out of their shares.

John Stark, a witness for the defendant, testified: That he lived on the plantation in 1872, and was present when the defendant employed Segars, and heard him tell him, not to buy any goods for, the hands and have them charged to him; but to let him know what they needed, and he would, if he thought them necessary, order them from New Orleans.

J. P. Hawkins testified for defendant, that he lived on and superintended his plantation in 1873. 'When defendant employed him, he directed him to buy whatever was actually necessary for the plantation, if he was required to have it before he could advise with him, but specially instructed him, on no account, to buy goods for the hands, saying he preferred to furnish them what was necessary, and to be informed of their wants, when he would.order the goods from New Orleans.

Witness did, however, buy some goods for the hands, and had them charged to the defendant, some of which he bought from the plaintiff, knowing at the time he was violating his instructions and transcending his authority.

Henderson Dean testified for the defendant, that he was one of the hands on the plantation in 1872, and that he applied to Se-gars to get him some goods, but was told by him the only way he could get goods for him was for him to turn over his part of the cotton to the plaintiff, and that, in order to get the goods, he promised to do so. His account with the plaintiff was about $ 100. In the fall or winter he was at the plaintiff’s store, when the plaintiff complained that he had not turned over the cotton as he promised. He told the plaintiff that the cotton was at the gin ready for him, and he could go and get it. The plaintiff told him to turn it over to Segars, and he would take him for the debt. Witness went and got his cotton, three bales, and hauled it to Segars’ house and delivered it to him for the plaintiff. The cotton brought over $250, but Segars died, and he had never received any thing for his cotton.

Nathan Davis also testified for the defendant: That he was present and heard the plaintiff tell the last witness, Henderson Dean, to turn his cotton over to Segars, and that he would take him for the debt. Witness gave the plaintiff a mortgage on his mare for the debt he owed him. The plaintiff afterwards told him if he did not pay his account he would take the mare from him. Witness told him he had no money, and if he was so disposed he might take her, and he sent after and took her away.

The plaintiff then proved by J. W. Harris that he was the administrator of J. W. Segars, and that Segars shipped the cotton turned over to him by Henderson Dean for the plaintiff, with some other cotton, to his commission merchants, John Chaffe, Bro. & Son, in New Orleans. That he (witness) got the account of sale of the Dean cotton, the net proceeds of which were about $243, and on a settlement with Hawkins, the plaintiff’s agent, he paid the same over to him, and by his own testimony that the account for which Nathan Davis gave a mortgage on his mare was another and different one from that mentioned in the complaint.

We have been unable to discover any evidence in this case upon which the jury might have predicated the defendant’s liability. If, disregarding his positive denial in his deposition of any authority in Segars to make purchases of goods for the hands on the plantation, and the evidence of his explicit instructions against it, we find nothing in the evidence advanced by the plaintiff tending to prove such authority, nor the slightest proof of a subsequent ratification by him of Segars’ conduct. The fact that Segars was the manager of the defendant’s plantation, and authorized to purchase mules, farming implements and supplies for it, affords no ground for the inference, that he might also purchase goods for the hands employed on it. Such purchases as these latter were clearly beyond the scope of his employment, and his representations that he possessed such authority could not bind the defendant. 1 Par. on Con., 40, 47; Smith’s Merc. Law, 171; Brooks v. Perry, 23 Ark., 32.

If the proceeds of the cotton Henderson Dean turned over to Segars, to pay his account with the plaintiff, which Segars’ administrator paid over to Hawkins, the defendant’s agent, passed into the hands of the defendant, lie is liable to the plaintiff for the amount Dean owed him, and the same might, upon a proper amendment of the complaint, be recovered in this suit, but the receipt of such proceeds does not amount to a ratification of Se-gars’ conduct.

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


author: English, Ch. J.:

text:
    Clayton et al. vs. Martin.
    Injunction Bond:
    Courts of equity have no jurisdiction, upon the dissolution of an injunction, to render a judgment for damages against the sureties in the injunction bond.

      Certiorari to Chieot Circuit Court in Chancery.
    Hon. J. E. Robinson, Special Judge.

      Yonley and Whipple, for plaintiffs.
   English, Ch. J.:

In March, 1873, A. G. Martin í'ecovered a judgment in the Circuit- Court of Chicot County against the Mississippi, Ouachita and Red River Railroad Company, upon which, in July, 1874, an execution was issued to James W. Mason, the sheriff of that county, and by him levied on real and personal property of the corporation.

David B. Sickels, claiming to be trustee in a mortgage executed by the corporation to holders of its bonds, filed a bill on the chancery side of the Chicot Circuit Court against Martin, the plaintiff in the judgment, and Mason, the sheriff, to enjoin the sale of the property levied on.

A temporary injunction ivas granted by a circuit judge, upon the execution of a Code injunction bond by Powell Clayton and James Torrans as sureties of the plaintiff in the bill.

■' At the September term, 1874, á demurrer was sustained to the bill, the injunction dissolved, the bill dismissed, and a judgment rendered in favor of Martin, against Clayton and Torrans, the sureties in the injunction bond, for $942.87, being ten per cent, on the debt enjoined, and execution thereon awarded.

This judgment is before us on. return to a certiorari issued from this court, in April, 1876, on the petition of Clayton and Torrans.

There is no statute authorizing the Circuit Court in Chancery, to render a judgment against the sureties in an injunction bond for damages, on the dissolution of an injunction. The remedy is by an action at law upon the bond.

The judgment rendered in this case is void, because the court had no jurisdiction of the subject matter, and must be quashed. Bailey et al. v. Gibson et al., 29 Ark., 473.


text:
    Wells vs. Steele.
    1. Statutory Remedy.
    A statutory remedy, express or implied provision to that effect, does not exclude the remedy afforded by the common law, but is cumulative.
    2. --: Same..
    The right of action provided by statute on the bond of a ferry keeper does not preclude a resort to the common law action for negligence.
    3. ---: Jurisdiction of justices of the peace in damages.

    Under the existing Constitution, a justice of the peace has jurisdiction of an action for damage to personal property by negligence in the keeping of a ferry, when the amount is one hundred dollars or less.
    APPEAL from Pulaski Circuit Court.
    Hon. Sam. W. Williams, Special Judge.

      Farr and Kimball, for appellant.

      Terry, Terry & Vaughan, contra.

   English, Ch. J.:

Thomas W. Steele sued Claibourne C. Wells before a justice of the peace of Pulaski County, on 'a claim of $ 100 for damages done to his ambulance by the negligence of Wells, as the keeper of a public ferry on the Arkansas River. Steele obtained judgment before the justice for the sum claimed, and Wells appealed to the Circuit Court, where the case was tried by the court, sitting as a jury, and finding and judgment in favor of St.eele for |51.75, the amount paid by him for repairing the ambulance.

Wells filed a motion for a new trial, on the grounds that the finding was contrary to law and evidence, and that the court erred in refusing to make declarations of law moved in his behalf. The motion was overruled, and he took a bill of exceptions, and obtained the grant of an appeal by the clerk of this court. ,

The bill of exceptions sets out all of the evidence introduced on the trial, the finding of facts by the court, and the declarations of law asked and refused, but makes no reference whatever to the motion for a new trial; fails to make it part of the record, or to show that appellant excepted to the decision of the court overruling the motion.

The question, therefore, whether the court below erred in overruling the motion for a new trial is not before this court.

We have, however, looked into the transcript to see whether the justice of the peace had jurisdiction of the subject matter of the action.

The present Constitution gives justices of the peace jurisdiction “ in all matters of damages to personal property where the amount in controversy does not exceed the sum of $100.” Art. vii, sec. 40. ,

The claim of the appellee, as filed before the justice, was for $100 for damages to his ambulance while crossing, or attempting to cross, the Arkansas River, at appellant’s ferry, caused by the negligence of appellant in failing to keep the river bank in repair, etc.

In other words, the suit was in the nature of a common law action on the case against the keeper of a public ferry for damages caused by his negligence.

That, by the common law, such an action could be maintained there can be no doubt. Addison on the Law of Torts, 471; 2 Robinson’s Practice, 522; Miles v. James et al., 1 McCord, 158; Richards v. Fuqua’s adm’rs, 28 Miss., 792; Whitmore v. Bowman, 4 Green (Iowa), 148; Fisher v. Chisbee, 12 Ill., 345; Slimmer v. Merry, 23 Iowa, 90; Wilson v. Hamilton, 4 Ohio St., 722; Sanders v. Young et al., 1 Head. (Tenn.), 219; Harvey v. Rose, 26 Ark., 3.

On the trial in this case, there was evidence conducing to show that the river bank at an old cut where the appellant’s boat was landed to take on appellee’s ambulance, which was below the usual place of landing, was out of repair, a gully having been washed out by rain along one side and diagonally across the cut. Mrs. Steele, regarding the descent to the boat as unsafe, got out of tbe ambulance. The ferryman said to the driver (a colored man), “ come on,'” and the driver and horses hesitating, on account of the unsafe appeárance of the place of descent, the ferryman took hold of the reins of the horses and pulled them down to the h,oat, and the ambulance was thrown over, in descending,, and the top broken.

These facts show the nature of appellee’s cause of action.

The point was made in the court below, that the action should have been upon the bond of appellant, as the keeper of a public ferry, and we have considered this point in looking into the question of jurisdiction.

The statute provides that keepers of ferries shall give bonds, upon which suits may be maintained by persons damaged by their failure to comply with the condition of their bonds, etc. Gantt’s Digest, Ch. 60, secs. 2913, 2924, 2929. But the party injured is not obliged to resort to a suit on tne bond; the common law right of action against the keeper of a ferry for negligence was not taken away by the statute, but the remedy upon the bond, given by the statute, is cumulative. Brown v. Chapman, 6 Burr. R., 14-18; Sawyer v. Ballew, 4 Porter, 116; Wilson v. Outlaw, Ala. R., 367.

“Where a right originally exists at common law, and a statute is passed, giving a new remedy without any negative, express or implied, upon the old common law, the party has his election, either to sue at common law, or to proceed upon the statute, The statutory remedy is merely cumulative.” Sedgwick on Con. of Stat., 75; Drake on Attachments, sec. 151.

The bond with sureties is required by the statute of the keeper of a public ferry for the better security of the public against damages by his failure or neglect to discharge his duties; but a party damaged by his negligence is not obliged to sue upon the bond, but may resort, as in this case, to the common law remedy.

The judgment must be affirmed.