author: Turner, J.: •

text:
    Holland vs. Clark.
    Promissory Note: Accrual of right of action; Statute of limitations.

    Upon demand and refusal of payment of a promissory note on the last day of grace, a right of action accrues at once to the holder, and the statute of limitations begins to run from that date; but if there is no demand, the cause of action does not accrue until the succeeding day.
    APPEAL from Pulaski Circuit Court.
    • Hon. J. ~W. Martin, Circuit Judge.

      Bishop, for appellant.

      Yonley & Whipple, contra.

   Turner, J.: •

On the 19th day of October, 1876, the appellee .George W. Clark, plaintiff in the court below, commenced his action against Samuel H. Holland, William S. Oliver and John McClure, defendants in the court below, on a certain promissory note, which is in the words and figures following :

“$200' . Little Rock, Ark., September 16th, 1871.

Thirty days after date I promise to pay to the order of W. S» Oliver and John McClure, the sum of two hundred dollars value received, negotiable and payable without defalcation or discount, at the banking house of Stoddard, Bro. & Co., at Little Rock, Ark., with interest from date at the rate of 3 per cent, per month until paid. Signed, Samuel H. Holland.”

That said payees duly endorsed and delivered said note to the appellee. That thereafter on the 19th day of October, 1871, said defendants Oliver and McClure duly waived notice of demand and protest, and made an endorsement thereof on said note, of which the following is a copy, to-wit:

“We hereby waive notice and demand of protest this 19 th day of October, 1871. Signed, John McClure,

W. S. Oliver.”

At the April Term, 1877, of the Circuit Court the appellant Holland filed his answer to said complaint, containing four separate paragraphs, of which the first, second and third were withdrawn, leaving the defense to rest upon the fourth, which is as follows: “And for a further answer to the said complaint, the said defendant Holland avers that this action now pending upon the said promissory note was not commenced against him the said Holland within five years after the cause of action thereon accrued against him the said defendant Holland. Wherefore the said defendant Holland prays to be dismissed with his costs and for all proper relief.”

At a subsequent day of said term of the court, this cause by consent was submitted to the court upon the following agreed statement of facts, to-wit:

“ It is hereby agreed and understood, by and between the parties hereto, for the purpose of this case, that the note sued on herein was giveu on the 16th day of September, 1871, and was-payable in 30 days from date in bank with grace, and that the last day of grace was the 19th day of October, 1871, that this suit was commenced on the 19th day of October, 1876, by the filing of the complaint in the clerk’s office of the proper county, and by causing a summons to issue in due form of law against-all the defendants to this action upon said complaint.”

“June 26th, 1877. Yonley & Whipple,

Att’ys for Plaintiff.

Rice & Bishop,

Att’ys for defendant Holland.”

And on the 27th day of June, 1877, at the same term of the court, this cause came- on to be tried by the court, sitting as a jury, upon the said agreed state of facts. Whereupon the court-found that the defendants are indebted to the plaintiff in the sum of $614 for his debt and damages, and accordingly proceeded to render judgment against said defendants, S. H. Holland, W.. S. Oliver and John McClure, for the said sum of $614 for his debt and damages, with interest thereon from date of judgment until paid, at 10 per cent, per annum, and also all his costs, etc..

To which decision of the court the defendant Holland excepted, and filed his bill of exceptions setting out the agreed statement-of facts, the trial and judgment of the court.

The pleadings and facts agreed Tipon in this cause present a single question of law for our decision, that is: Was the appellee’s action barred by the statute of limitations at the time suit was instituted ?

The note sued upon was dated the 16th day of September, 1871, was due thirty days after date, and payable to the order of W. S. Oliver and John McClure at the banking-house of Stoddard, Bro. & Co., at Little Rock, Ark. Said note was after-wards endorsed and delivered by the payers Oliver and McClure to the appellee.

The statute relied upon as a bar, provides that: “Actions on promissory notes and other instruments in writing shall be commenced within five years after the cause of action shall accrue, and not afterwards.” Gantt’s Dig., sec. 4125.

This suit was commenced on the 19th day of October, 1876, and our first inquiry is, when did the cause of action accrue ?

According to the Law Merchant the note was due on the last day of grace, that is, on the 19th day of October, 1871, and if so, was the appellee authorized by law to commence his action on that day ? On this point the rulings of the courts are by no means uniform.

In the case of Osborn v. Moncure et al., 3 Wend., 170, which was a suit by the payee against the maker of a promissory note, instituted on the third day of grace, payment having previously been regularly demanded and refused.

The court, by Sutherland, Judge, said: “ The only question in this case is whether the suit was prematurely commenced. It is admitted that the writ was served before three o’clock, p. m., of the third day of grace, payment having previously been regularly demanded and refused. * * * * The demand upon the maker should be made on the third day of grace, and within a reasonable time before the expiration of the day, and if he then refuses payment, the holder has done all that is incumbent upon him to do, and may treat it as a dishonered bill, so far as immediately to give notice to the endorser, but still I apprehend the maker has the whole of the day to pay in, if he think proper to seek the holder. It is undoubtedly true in relation to other contracts, that the party has until the last instant of the day to make payment, and I perceive no reason for making negotiable paper an exception to the general rule.”

In the case of Smith v. Aylesworth, 40 Barb., 104, the Supreme Court of New York re-affirms the decision of the court in the-case of Osborn v. Moncure.

This was also a suit on a promissory note, which matured on the 6th day of October, 1861. The 6th day of October being-Sunday, the note became due on the 5th. The note was payable at the Monroe County Bank, which closes each day at 3 o’clock, p. m. Payment -was demanded and refused at 3 o’clock, p. m., of the 5th of October, and on the same day suit was commenced on the note.

Held by the court that the action was prematurely brought. That the maker of a promissory note has the whole of the last day of grace in which to pay it, and if it be payable at a bank, an action commenced against the maker on the last day of grace, though it be after banking hours at such bank, will be prematurely brought and the plaintiff should be nonsuited.

In the case of Walter v. Kirk et al., 14 Ill., 55. Held by the-court, Chief Justice Treat delivering the opinion, that a note-assigned on the day it was made payable is assigned before it is. due. The maker has the whole of that day to make payment. An action cannot be brought on the note until the day after it becomes due.

In the ease of Wilcombe v. Dodge et al., 3 Cal., 260, which was. a suit on a promissory note brought on the last day of grace, it was held that the suit was brought prematurely.

. But in the case of Greeley et al. v. Thurston, 4 Greenl., top page 414, which was a suit on a promissory note commenced on the last day of grace, it was held that bills of exchange and negotiable notes should be paid on demand, if it be made at a reasonable hour on the day they fall due, and if not then paid, the-¡acceptor or maker map be sued on that day. To this decision the editor appends a note: “Rut if no demand of payment is «made on the day of maturity, an action commenced on that day is premature, and the plaintiff must become nonsuit.”

This seems to be the rule also ixi Massachusetts, where suit «may be commenced on promissory notes and bills of exchange on «the third day of grace, after demand and refusal of payment.

See Staples v. Franklin Bank, 1 Metc. (Mass.), 43, where it is Iheld that the maker of a -promissory note is bound to pay it upon -demand made at any reasonable hour of the last day of grace, ¡and may be sued on that day, if he fail to pay on such demand.

And Story, in his work on Promissory Notes, p. 267, states the law on this question in’ the following language: “Rut the Ibetter opinion, which is sustained by the current of authorities, «undoubtedly is, that ah action may be commenced against the «maker at any reasonable time on the third day of grace after demand on him.”

In the case of Coleman v. Ewing, 4 Humph., 241, which was -a suit commenced on a promissory note, on the last day of grace «after protest and notice, the court held that the contract of the «maker of negotiable paper is broken by a refusal or neglect to ¡pay. on the last day of grace within reasonable time after demand made, and the holder has a light of action on the same day.

In Wilson v. Williman, 1 Nott & McCord’s Rep., 440, the Constitutional Court of South Carolina made a similar decision, ■holding that the payee of a promissory note can commence an action against the maker on the third day of grace. See also the case of McKenzie, Cadow & Co. v. R. & S. Durant, 9 Rich., 61, in which case it was also held that an action may be commenced <on a promissory note on the third day of grace. This is also the rule in New Hampshire. See Dennie & Walker, 7 N. H., 201.

It will thus be seen that while the authorities are contradictory, the current of decisions is to the effect that the holder of a promissory note or bill of exchange may sue the maker or acceptor on the third day of grace, after demand and refusal, or neglect to pay.

These decisions rest upon the ground that the contract is broken and the paper dishonored by a refusal or failure to pay upon demand within business hours on the third day of grace. So far as the liability of the maker of the note or acceptor, of the bill is concerned, a demand is unnecessary, but demand, and notice are necessary to fix the liability of endorsers.

Although no demand on the day of grace can affect in any way the liability of the maker or acceptor, yet we hold that such demand is necessary to enable the holder to'commence suit on the third day of grace, and that if no such demand is made, the maker or acceptor has the whole of that day to make payment, and that in such case the cause of action does not accrue to the holder until the succeeding day.

The note in suit was given on the 16th day of September, 1871, and was due thirty days after date. On the 19th day of October, 1871, it being the last day of grace, W. S. Oliver and John McClure, the payees and' endorsers of the note, waived in. writing, the necessity of demand, protest and notice, which fixed their liability as endorsers.

It does not appear that any demand was made on the appellant Samuel H. Holland, so as to put him in default. At any rate no .such demand was averred in the answer, or otherwise shown, and we must presume that no such demand was made, and conse-■quently that the right of action did not accrue to the appellee on that day, and that an action on said note, commenced on that day, would have been premature and could not Have been maintained.

It follows that the succeeding 'day (20th October, 1871,) was the earliest day on which a suit could have been maintained by the holder against the maker of the note.

This action was commenced on the 19th day of October, 1876, and within five years from the time the cause of action accrued, and is therefore not barred by the statute of limitation.

Judgment of the court below affirmed.


source: Caselaw Access Project

author: Turner, J.:

license: Public Domain

text:
    Pat Bradley vs. The State.
    1. Rape.
    Torcéis an essential element of the crime of rape; it must be committed forcibly and against the will of the female upon whom it is committed.
    2. Burglary with intent to commit rape: Indictment.

    In an indictment for a burglarious entry, with the intent to commit a rape, etc., it is unnecessary to allege an assault. (For form of the indictment, see Op.)
    APPEAL from Bradley Circuit Court.
    Hon. Theodoric F. Sorrells, Circuit Judge.

      Compton, for appellant.

      Henderson, Attorney General, contra.

   Turner, J.:

At the March Term, 1878, of the Circuit Court of Bradley County, Pat Bradley, a negro, was indicted for burglary.

The indictment is-in the following words and figures:

State of Arkansas against Pat Bradley.

j- Indictment for Burglary.

Bradley County Circuit Court, March Term, A. D. 1878.

The grand jury of Bradley County, in the name and by the authority of the State of Arkansas, accuse Pat. Bradley of the crime of burglary committed as follows, to-wit:

The said Pat. Bradley, in the county aforesaid, on or about 11 o’clock of the night time of the 14th day of July, A'.JD. 1877, did unlawfully, feloniously and burglariously enter the dwelling house of one E. D. Sled, with the intent to commit a felony, to-wit: an assault with intent to commit rape in and upon the body of one Mary J. Sled, a female, the wife of the said E. D. Sled, with intent feloniously to ravish and carnally know the said Mary J. Sled, forcibly and against her will, contrary to the statutes in such cases made and provided and - against the peace and dignity of the State of Arkansas. J. C. Barrow,

Prosecuting Attorney.

The defendant was arraigned, pleaded not guilty, tried and found guilty, and his punishment assessed at imprisonment in the State Penitentiary for three years, whereupon counsel moved the court to set aside the verdict of the jury and grant him a new trial for the following causes :

First — Because the verdict of the jury was contrary to law.

Second — Because the verdict of the jury was contrary to evidence.

Third — Because the verdict of the jury was contrary to the instructions of the court.

Fourth — Because the court refused to give the second instruction asked for by the defendant.

Fifth — Because the court refused to give the third instruction asked for by the defendant. •

The motion for a new trial was overruled, defendant excepted and took an appeal to this court.

This is an indictment for burglary, an offense defined at common law to be: “A breaking and entering the mansion house of another in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not.”- 1 Sus. on Crimes, 785; 3 Inst., 63; 1 Hale, 540; 4 Black. Com., 224.

Our statute, however, has modified and changed the common law in some material and important particulars. According to our statutory definition, “Burglary is the unlawfully entering a house, tenement, or other building, boat, vessel or watercraft in the night time with the intent to commit a felony.” See Gantt’s Dig., 1346, 1347, 1348.

The burglary charged against the defendant, was that on or about 11 o’clock at night of the 14th July, A. D. 1877, he unlawfully, feloniously and burglariously entered the dwelling house of one E. D. Sled, with the intent to commit a felony, to-wit, an assault with intent to commit a rape on the body of Mary J. Sled, a female, the wife of the said E. D. Sled, etc.

The first question presented for our consideration is, did the law and the evidence warrant the finding of the jury? To enable us to determine this question aright, we will briefly review the evidence as set forth in the bill of exceptions, which is in substance as follows:

Mary J. Sled, the prosecutrix, after identifying the defendant, said, “between the hours of 10 and 11 o’clock in the night time on the 14th day of July, 1877, some one came into my room and awoke me by taking hold of my arm and turning me upon my back, pulled up my clothes, put his arm under my neck, got on top of me, pressed upon my thighs/with the other hand he was trying to accomplish his purpose of which I cannot decently speak; with an intention to carry out his design. I then asked who are you ? He answered, it is me. I then passed my hand over the back of his head and found it was a negro. I then said get out of the bed whoever you are, and he answered in a whisper, hush. He used force after I said get away. My husband E. D. Sled, was lying in three feet of the bed at the time, I ' then called to my husband and told him some negro was in, and to get up and shoot him. Then he ran out. He was barefooted. My husband ran out of the door with his gun and fired in the direction of the gate. It was a dark, but starlight, night. The weather was very warm, and all the doors were open. I did not know who it was that night, but the next -morning he came up and confessed to my husband and me that it was him, and begged us not to prosecute him, which we refused to do.”

E. D. Sled, husband of the prosecutrix, said, “on the night of the 14th of July, 1877, at about 10 or 11 o’clock at night. I was wakened by my wife calling me, saying there is some one in-the room. I then jumped up, seized my gun, went out of the door and shot my gun in the direction of the gate. I did not know who it was in my house that night-, but the next morning Pat. Bradley came to my house and confessed that it was he who was in my house the night before, and begged me not to prosecute him, which I refused to do.”

This was all the evidence given in the case.

Whereupon the defendant moved the court to instruct the jury as follows:

First — Burglary is the unlawfully entering a house, tenement or other building in the night time, with the intent to commit a felony.

Second — Eape is the carnal knowledge of a female forcibly and against her will.

Third — An assault with intent to commit rape is an attempt to have carnal knowledge of a female forcibly and against her will.

Fourth — In the crime of an assault with intent to commit a rape, force is of the very essence of the offense, and unless in this case the jury believe from the evidence that the defendant, " Pat. Bradley, entered the house of E. D. Sled, with the in'tention and the design to assault Mrs. M. J. Sled, with the intent to have carnal knowledge of the person of the said Mrs. M. J. Sled,, forcibly and against her will, they will acquit the defendant.

Fifth — If the jury believe from the evidence, that the said! Pat. Bradley entered the house of the said E. D. Sled with the intention of having carnal knowledge of' Mrs. M. J. Sled, with her consent, and did not intend to do so without her consent, they will acquit the defendant.

Sixth — If the jury believe from the evidence that the defendant, Pat. Bradley, did enter the house of E. D. Sled, at the time as charged in the indictment, they are then to determine as to the design and intention of defendant in making the entry, from all the circumstances attending the transaction as proven in evidence, and that unless they believe from the evidence that the defendant went into the house of E. D. Sled with the design and intention of making an assault with intent to have carnal knowledge of Mrs. M. J. Sled forcibly and against her will, they will acquit the defendant.

Seventh — It matters not how the defendant, Pat. Bradley, entered the house of E. D. Sled, unless he did so with the intent of making an assault with the intent to have carnal knowledge of the person of Mrs. M. J. Sled, whether she was willing or not, the jury must acquit.

Eighth — If the jury believe from the evidence that the defendant entered the house of E. D. Sled at the time as charged! in the indictment with the intent to have carnal intercourse with Mrs. M. J. Sled, while she was asleep, they will acquit.

Ninth — If the jury believe from the evidence that the defendant, Pat. Bradley, did enter the house of E. I). Sled at the time as stated in the indictment with the intent to impose himself upon Mrs. M. J. Sled by inducing her to believe he was her husband, and thus have carnal knowledge of her person, he is not guilty and must be acquitted.

Tenth — Before the defendant, Pat. Bradley, can be convicted as charged in the indictment, the jury must believe from the evidence that he intended to make an assault, with the intent to gratify his passion upon the person of Mrs. M. J. Sled at all events, and notwithstanding any resistance upon her part.

Eleventh — Before the' defendant, Pat. Bradley, can be convicted as charged, the State must prove every material allegation in the indictment.

Twelfth — If the jury have a reasonable doubt that the defendant, Pat. Bradley, entered the house of E. D. Sled, at the time as stated in the indictment, with the intent to make an assault for the purpose of having carnal knowledge of the person of Mrs. M. J. Sled, forcibly and against her will, and at all events, they will acquit.

The court gave the first, third, fourth, fifth, sixth, seventh, ■eighth, tenth, eleventh and twelfth instructions, but refused to give the second and ninth.

The second instruction might have been well given, as it was ■simply the legal definition of rape, but as it is substantially embraced in the third instruction, the defendant cannot complain ■of the failure to give the second.

The ninth instruction was properly refused, because it implies a state of facts not warranted by the evidence, and this is true of the fifth and eighth, there being no proof in the cause, justifying such instructions.

The instructions given and those refused were all asked for by the defendant, who excepted to the ruling of the court, only in refusing the second and ninth asked for.

The ninth, as we have stated, was rightly refused, while the ■second might have been given without benefit to the defendant, or injury to the prosecution.

The instructions, taken altogether, were highly favorable to the defendant, and he certainly has no cause to complain of the refusal of the court to gi've the second and ninth.

The indictment charges the defendant with burglary, in unlawfully, feloniously and burglariously entering the dwelling house of E. D. Sled, on the night of the 14th July, 1877, with the intent to commit a felony, to-wit: an assault with intent to commit á rape on the body of Mary J. Sled, more particularly set forth in the indictment.

Rape is defined to be the carnal knowledge of a female forcibly against her will. See Gantt’s Dig., sec. 1300; 3 Inst., 64; 4 Black. Com., 210.

The essence of the crime is that it must be done forcibly and against the will of the female upon whom it is committed.

It is often a matter of great difficulty in trials for rape, and of assaults with intent to commit rape, to determine whether the act complained of was done with or without force, and whether with or without the consent of the party complaining, and this arises from the peculiar character and surroundings of the offense charged.

Force is an essential element in the crime of rape. The term is general, and in its application the quantum of force is not to be taken into consideration, provided the act be consummated against the will of the female.

The English and American books on criminal law abound in numerous cases for this offense, in which the courts have generally adhered rigorously, if not literally, to the ancient definition of the crime, thus enabling many an offender to escape the penalties for rape, whose moral if not real guilt was sufficiently apparent.

The courts have thought it better to stand by the landmarks of a past age and observe the precedents that have come down to us from our ancestors, rather than to embark in the hazardous experiment of judicial legislation, although it might tend to conform the law on this subject to the spirit and temper of the age in which we live.

The Supreme Court of Arkansas has followed closely the decisions in England and of other States of the Union on this subject, which is clearly shown by a reference to the case of Joe Sullivant, 8 Ark. (3 Eng.), 400. Charles v. The State, 6 Eng., 389; Pleasant v. The State, 8 .Eng., 360. These were all indictments against slaves for assault with intent to commit rape on white females.

The late Chief Justice Watkins who delivered the opinion of court in the latter case said : The better authority would seem to be, that if the man accomplished his purpose by fraud, as when the woman supposed he was her husband, or obtained possession of her person by surprise, without intending to use force, it is not rape, because one of the essential ingredients of the offense is wanting;* so when force is used, but the assailant desists upon resistance being made by the woman, and not because of an interruption, it could not be said that his intention was to commit rape. We are bound to declare that this is the law applicable to negroes; but whether there should not be an amendment, so as to punish as a distinct offense, and more severely than it can be under existing laws,'the carnal knowledge of a white woman by a slave, or the attempt of it by fraud and without force, or the attempt without consummation in consequence of her resistance, is in our opinion worthy of the serious consideration of the legislature.”

At the time this opinion was delivered, a negro was punished capitally for an attempt to commit rape on a white woman, while a white man for the same offense, was punished by imprisonment in the penitentiary, not less than three, nor more than twenty years.

The Chief Justice was evidently impressed with the necessity of an amendment of the law, but from the relation then existing between the races and the peculiarity of the law then in force, which gave rise to those cases, the suggested amendment of the law was intended to apply only to the servile race among us. But the law enunciated by the court in the case of Pleasant v. The State, as governing the crime of rape, was then and is now applicable alike to both races, and believing that an amendment of the law in the particulars enumerated is a matter worthy of the serious consideration of the legislature, we repeat and adapt the suggestion of the court in that case.

The counsel for the defendant insists that the indictment is fatally defective, because in alleging the felony which the accused intended to commit on entering the house, it does not charge that the assault on Mrs. Sled was made “ feloniously, etc.,” and because the indictment should have charged that the accused “ feloniously, etc;,” made the assault, as well as that the intent was feloniously, etc.,” to ravish and carnally know her forcibly and against her will. And we are referred to Milan v. The State, 24 Ark., 346, in support of this argument.

It will be observed that this is an indictment for burglary and not for rape, or an attempt to commit rape.

The gravamen of the offense charged was that Pat. Bradley, unlawfully, feloniously and burglariously entered the dwelling-house of E. I). Sled in the night time, with intent to commit a felony, to-wit: rape on the body of M. J. Sled, a female.

The indictment is awkwardly drawn, but is believed to be substantially good; the burglary is described with sufficient certainty. It would have been sufficient to have charged the defendant with entering the house of E. I). Sled in the night time, with intent to commit a felony, to-wit: rape on the body of Mrs. Mary J. Sled; without alleging an assault with intent to commit rape upon the body of Mary J. Sled with intent feloniously to ravish and carnally know her forcibly and against her will, which latter averments may well be rejected as surplusage.

The case of Milan v. The State was unlike this. That was an indictment under our statute which provides that “Whosoever - shall feloniously, wilfully and of his malice aforethought, assault any person with intent to murder, kill, rob or commit rape, etc.,” “ their counsellors, aiders and abettors, shall on conviction thereof be iraprisioned in the jail and penitentiary house not less than three nor more than twenty-one years.” The indictment charged : “ That a colered man, named Milan, on, etc., at, etc., with force and arms in and upon one Haywood Branch then and there being in the peace of. God and the State, did make an assault, with intent to kill, and him the said Haywood Branch, then and there, feloniously, wilfully and of malice aforethought, did with a certain pistol, etc.”

By our statute this offense was a felony, and as at common law it was necessary to charge all felonies with having been feloniously committed, so in case of a felony created by statute, it is equally necessary £o charge the offense with having been committed with felonious intent; and the fatal defect of the indictment in that case was that it did not charge the defendant in the language of the statute with having feloniously, wilfully and of his malice aforethought, made the assault, as well as that the intent was feloniously, wilfully and of his malice aforethought to kill.

We are not disposed to interfere with the ruling of this court in that case; but remark again that this is not an indictment for rape, nor is it an indictment under our statute, which declares that “whosoever shall feloniously, wilfully and with malice aforethought, assault any person with intent to commit rape, etc.” If it were an indictment under this latter statute, it would be analogous to the ease of Milan v. The State, and the reasoning and decision of the court in that ease would apply to this. But, as before stated, the indictment here is for burglary, and the felony charged was rape upon the person of Mary J. Sled, and if this is distinctly alleged in the indictment, and we think it is, with sufficient certainty, we must hold the indictment good, although the felony charged is not described in the indictment with the technical accuracy that would be required in an indictment for an attempt to commit rape.

The next question to be decided, is as to the sufficiency of the evidence to warrant the verdict of ,he jury.

Does the proof show that the defendant entered the house of E. D. Sled, in the night time, with intent to commit rape on the body of Mary J. Sled ?

The testimony of Mary J. Sled, the prosecutrix, and of her husband, E. D. Sled, and confession of the defendant, which vie will not repeat here, tended strongly in the opinion of the court, to prove that the defendant entered the house of E. D. Sled with intent to commit rape on the person of Mary J. Sled, and was sufficient to warrant the jury in finding the defendant guilty, wherefore let the judgment of the Circuit Court be affirmed.


author: Harrison, J.:

text:
    Hendricks vs. Keesee et al.
    Action, Right op: Against heir at law.

    No action at law can be maintained against the heir to whom assets have descended, upon the contract of the ancestor. Equity alone has jurisdiction in such cases.
    APPEAL from Saline Circuit Court.
    Hon. Jabez M. Smith, Circuit Judge.

      Gallagher & Newton, for appellant.

      John Fletcher, contra.

   Harrison, J.:

This was an action at law by Andrew Hendricks against James P. Keesee, Isaac N. Keesee, and Priscilla Owen and her husband, George "W. Owen.

The complaint, which was very loosely drawn and wanting in certainty and definiteness, averred:

That the plaintiff, in the year 1856, purchased from George Keesee, the father of the defendants James P. Keesee, Isaac N. Keesee, and Priscilla Owen, a tract of land of 274J acres in Saline County, for which he paid him seven hundred dollars in cash, and gave him his note for five hundred dollars, bearing ten per cent, interest from date until paid, and Keesee executed to him a bond to convey the land to him by deed, with the usual covenants of seisin and warranty of title, and he immediately entered unto possession under his purchase.

That he afterwards paid the note, and Keesee on the 27th day of February, 1862, executed to him a deed for the land, in which he covenanted that he was seised in fee thereof, and that he would warrant and defend the title.

That Keesee died intestate in the year 1864, seised and possessed of real and personal property of the amount of ten thousand dollars, and leaving him surviving his said children, James P., Isaac N. and Priscilla, the said Priscilla having since intermarried with the defendant George TY. Owen, and other children, or their descendants unknown to the plaintiff, his heirs at law.

That administration was had upon his estate, and the same had been fully administered and distributed, and the administrator discharged, and partition had been made of his real estate between the said heirs.

That the title to forty acres of the said tract of land, the north half of Lot One of the southwest quarter of section nineteen,, township two south, range fifteen west, was, when Keesee made. the deed of conveyance, in the United States, and'he was at no time afterwards seised thereof, and that the' same had been entered within twelve months preceeding the commencement of jthe suit by one Simon Jones as a homestead, and who had entered thereon and evicted the plaintiff.

That when Keesee executed the deed of conveyance, the plaintiff had no knowledge that he had no title to the said forty acres, and he did not learn o f the fact until after the same had been entered by Jones.

And that said covenants had been broken, and by reason of said breaches of covenant he had sustained damages to the sum of one thousand dollars ; for which he prayed judgment.

The defendants demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and rendered judgment for the defendants.

The plaintiff appealed.

That a suit may be maintained in equity against an heir to whom assets have descended, or who has received a distributive shai’e of the estate, upon a cause of action, which has arisen upon his ancestor’s contract after the administration has been closed, has been decided-by this court in several cases. Williams v. Ewing & Fanning, 31 Ark., 229 ; Walker v. Byers, 14 Ark., 246; Bennett v. Dawson, 15 Ark., 412 ; Bennett v. Dawson, 18 Ark., 334.

It has, however, never been held in this State, that an action of law might -be brought against the heir; and it is clear to our mind, that, as the statute makes real estate, as well as personal, assets in the hands of the executor or administrator for the payment of all debts, there is here no privity of contract between the ancestoi-s and the heir, as at common law, where the heir was specially named in the covenant or bond, and the remedy in such a case is alone in equity.

The right to sue the heirs necessarily depends, as the cases we-have cited show, upon the fact, that the cause of action arose by the happening of ■ a contingency after the administration was closed. If it existed at the death of the testator or intestate, or before the expiration of the two years in which the claims may be exhibited against the estate, whether matured or not, it must be presented as a demand against the estate, unless it came into-being so shortly before the time for such presentation expired, that it was not possible to present it, in Avhich case equity Avould no doubt afford relief. Bennett v. Dawson, 15 Ark., 412.

As the title to the forty acres was in the United States, Keesee’scovenant of seisin was broken as soon as it Avas made, and the plaintiff might have brought action against him for the breach immediately. Pate v. Mitchell, 23 Ark., 590; Bird v. Smith, 8 Ark., 368; Ross v. Turner, 7 Ark., 132; Logan v. Moulder, 1 Ark., 313; Rawle on Cov. for Tit., 298.

And as there was no seisin there Avas nothing on which the-covenant of title could operate, nothing passed by the deed; there Avas nothing to defend, and there could be no eviction. Hacker v. Storen, 8 Green., 288; Slater v. Rawsen, 1 Met. (Mass.), 450; Rawle on Cov. for Tit., 255.

The demurrer was rightly sustained, and the judgment is-affirmed.


author: PlNDALL, SP. J.:

text:
    Kupferle et al. vs. Merchants National Bank.
    1. Judgment by Default: Setting aside, etc.

    On motion to set aside a judgment by default, accompanied by answer» setting up good defenses, the sworn applications of the defendants showed that they believed their defenses were being made by attorneys representing other defendants in the c$use;the record entries in the early stages of the cause show that the attorneys appeared for the defendants generally; held good cause for setting aside the judgment during the term at which it was rendered.

      2.--: Misprision; setting aside, ete.

    Where a cause is set for trial on a particular day, and before the day a judgment by default is entered, it pnay, under the provisions of secs. 3596-7, Gantt’s Big., beset aside on motion filed before or during the first three days of the succeeding term of the court.
    APPEAL from Pulashi Circuit Court.
    Hon. J. J. Clendenin, Circuit Judge.

      Whipple and Rose, for appellants.

      Benjamin & Barnes, contra.

   PlNDALL, SP. J.:

The Merchants National Bank at Little Rock, commenced its suit 27th May, 1873, against appellants and six others, to enforce the collection of a note executed July 1st, 1872, by O. S. Dillon •to Thos. M. Bowen, and endorsed by Bowen and nine others, including the appellants.

Summons dated on said 27th May, 1873, returnable to the first day of the June Term, 1873, of the Pulaski Circuit Court, was served on ten of the eleven parties. One of the defendants, ~W. J. Hynes, is not mentioned in the return. The return is not •dated, nor is there any filing noted on the writ.

. On February 10th, 1874, the plaintiff suggested the disqualification of Hon. John Whytock, to try the cause, he being one of the parties defendant, a special judge was elected, qualified and took the bench, and the cause was by consent of parties, set for hearing on the 13th of March.

The order recites, “thereupon comes the plaintiff by attorneys, Messes. Benjamin & Barnes, and come the said defendants by Messrs. Gallagher & Newton, their attorneys.”

Nothing seems to have been done on the 13th, but on the 19th March, 1874, it is recited “come the parties by attorneys and by •consent the cause is set for hearing 27th March, 1874.

March 25th, 1874, John Whytock, T. D. W. Yonley and John D. Adams, by their attorneys filed answers.

An entry on' March 27th, 1874, is; “come said plaintiff by Messrs. Benjamin & Barnes, her attorneys, and come the defendants, by Messrs. Gallagher & Newton, their attorneys, and by consent the cause is set for hearing on Wednesday the 1st day of April, 1874,”

An entry of March 30th, 1874, is “comes the plaintiff by Messrs. Benjamin & Barnes, her attorneys and Orin S. Dillon, Thos. M. Bowen, Patrick Eaieigh, Wm. J. Hynes, Nicholas Kupferle, Henry T. Gibb, Thomas Lafferty and Francis M. Crisman, eight of the defendants herein come not, and wholly make default,” judgment by default is taken : The cause was continued until the next term, as to Whytock, Adams and Yonley.

April 2nd, 1874, Patrick Eaieigh, moved to set aside the default, on account of surprise, and for leave to answer.

The grounds of his motion were:

First — That he supposed his name was included in the number of those for whom a defense had been put in.

Second — That the cause was set for trial 27th March, that the business of the court was behind, and that the docket for 27th March had not yet been reached, April 1st, and the default was taken several days before the cause was reached on the regular call.

Third — That the default was taken before the action stood for trial.

Fourth — That he had a valid defense to the action in this, that he was an endorser without consideration, on the note sued upon, and that notice of protest and dishonor had not been given him as required by law.

This motion was sworn to, on 1st April, 1874.

April 9th, 1874, Gibbs and Crisman filed their separate motions to set aside default and for leave to answer, upon same grounds of surprise, accompanied by separate answers, showing same defense. Crisman, as an additional ground shows, that at the time of the service of the summons on him, he was lying ill Avith the small-pox; as soon as he recovered, he made enquiry about the suit and he Avas informed by his co-defendants, that the suit was being defended.

April 11th, 1874, The defendants, Thomas Lafferty and Nicholas Kupferle, filed separate motions and ansAvers, making similar excuses, and shoAving same defenses.

On June 18th, 1875, these motions wore argued and submitted to the court.

June 29th, 1875, the motions Avere overruled and the defendants, Kupferle, Lafferty, Gibb, Raleigh and Crisman, excepted, and have aj>pealed to this court.

The answers tendered Avith the motions show a good defense to the action if true, and they were regularly sworn to.

Is there any excuse shoAvn for the omission to file them in time? The movers all SAvear they believed their defenses Avere being made by the attorneys representing their co-defendants, this if true seems to be a reasonable excuse, and the record entries show, that in the preliminary stages of the case, the attorneys did appear, for “the defendants” generally, no separate appearance is shown until the answers of Whytock, Yonley and Adams were filed, March 25th, 1874; previous to this time the entries must be construed to include the defendants who had been summoned. Neal v. Singleton, 26 Ark., 494.

We think those motions show sufficient reason why said default should have been set aside, and if they had been called up at that term they would have been sustained.

The court had the power to set aside the judgment at a subsequent term, for the cause stated in said motions — misprision of the clerk in entering judgment before the action stood for trial, Dig. 3596 ; and this power could have been invoked by motion filed in the first three days of the succeeding term. Dig., 3597.

These motions were filed at the same term at which the default was taken, and remained undisposed of until the determination of the cause. The only effect of this was to dispense with the reasonable notice required by the statute.

Was the delay in calling up the motions such as that the appellants should be denied the right to defend the suit.

The motions were filed before a special judge, not on the bench, or present in court at all times, but only when required for the purposes of the suit. It is the experience of most lawyers, that this inconvenience alone frequently begets delay without fault on the part of either party.

A few days after the motions were filed the political disturbances occurred at the Capitol which deranged the business of the court and practically suspended its functions, and the motions were necessarily continued until the first term after the re-organization of the court. This delay was not caused by the defendants, and does not evidence a want of diligence on their part; ■ their motions were filed in apt time, and we think there was no delay attributable to these appellants which should deprive them of their right to plead their defenses to this suit.

We think it probable that the Circuit Court overruled the motions upon the ground that it had no power over its judgments after the adjournment of the court, which was the well settled rule previous to the Code Practice, but which has been changed by that practice, in cases mentioned in secs. 3596-7-8, and that one of the grounds of the motion bring them within those sections.

Whatever may have been the effect of the former orders setting the case for trial, they were all rescinded by the order of the 27th March, and at the time^the defaults were taken, the action stood for trial on the first day of April, and the judgments were taken before that day, and in this the Code differs from Du Valcourt v. Bergman, heretofore decided by this court: in which it was held, that the grounds for a new trial then presented did not fall within the Code provisions.

The cause will be reversed with instructions to set aside the judgment by default, as to these five appellants, permit them to file their answers, and proceed with the cause in accordance with law.

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


author: English, Ch. J.:

text:
    James Bradley vs. State.
    1. Misdemeanor: Former prosecution, etc.

    Tiie filing of an affidavit before a justice of the peace, and issuance of a warrant of arrest for assault and battery, is no bar to an indictment in the Circuit Court for the same offense, where it appears that the defendant was not found and there was no further proceedings under the warrant issued by the justice.
    2. Former Conviction: On offender’s confession.

    A conviction of assault and battery before a justice of the peace on the confession or information of the offender, is no bar to an indictment for the same offense.
    8.--: Plea of; when bad.

      A plea of former conviction which does not verify the alleged conviction by the record, is bad on demurrer.
    4. Misdemeanor: Trial of by the court.

    Under the provisions of sec. 1875, Gantt’s Dig., the court may, by consent» try a misdemeanor.

      ERROR to Benton Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.

      Henderson, Attorney General, for the State.
   English, Ch. J.:

At the April Term, 1877, of the Circuit Court of Benton County, James H. Bradley, the plaintiff in error, was indicted for an assault and battery upon W. A. Plotner. The offense is alleged to have been committed on the 17th January, 1877.

The defendant pleaded what is called in the record a plea to the jurisdiction of the court, to which the State demurred, and the court sustained the demurrer. Whereupon the cause was submitted to the court, sitting as a jury, and upon the evidence, the court found the defendant guilty, and fined him $10. He filed motions for new trial and in arrest of judgment, which were overruled, and he took a bill of exceptions. Judgment was rendered against him for the fine and costs, and he brought ■error.

Under the present, practice there is no assignment of errors ; no brief has been filed for plaintiff, and we do not really know upon what particular ground a reversal of the judgment is hoped for.

What is termed in the record a plea of jurisdiction, is an attempt to plead two defenses, first, a former prosecution for the same offense pending before a justice of the peace, and seeond, a former conviction of the same offense before a justice of the peace.

The first plea alleges, in substance, that on the 25th day of January, 1877, and before the indictment in this case was found, the State instituted proceedings against the defendant for the identical offense alleged in the indictment in this cause, before one Samuel Box, a' justice of the peace of Hico Township in Benton County, upon the affidavit and written complaint of one Conrad Plotner, then and there filed in behalf of the State, against defendant, charging that he had assaulted the party alleged in the indictment to have been assaulted by the name of W. A. Plotner; upon which affidavit said justice of the peace issued his warrant for the arrest of defendant to answer said 'charge. That said prosecution before said justice of the peace had never been dismissed or otherwise disposed of, but was still pending, etc.-

A copy of the record entries of the justice of the peace in said cause is filed with- and made part of the plea, and it is alleged that the prosecution before the justice was for the same offense alleged against defendant in the indictment.

The transcript of the docket entries of the justice of the peace filed with the plea, shows that on the 25th of January, 1877, Conrad Plotner made affidavit before Samuel Box, a justice of the peace of Hico Township, Benton County, charging that James H. Bradley did on the 23d day of January, 1877, in said county, commit an assault upon W. A. Plotner, minor son of affiant, with an unlawful weapon (a certain stick); and that a warrant was issued by the justice for the arrest of the accused, directed to the constable of the township, returnable fprthwith ; and that on the 25th of the same month, the constable returned the writ not executed, because said Bradley could not be found. The transcript shows no further prosecution before the justice of the peace.

Sec. 11, art. vii., of the Constitution provides that: The Circuit Court shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which .may not be vested in some other court provided for by this Constitution.”

Sec. 40, of the same article provides that justices of the peace shall have such jurisdiction of misdemeanors as is now or maybe prescribed by law.”

The fifth clause of sec. 1642 of Gantt’s Digest, provides that: <e In criminal causes, the jurisdiction of justices of the peace shall extend to all matters less than felony, for final determination and judgment; Provided, that Circuit Courts shall have jurisdiction concurrent with justices’ courts in all such cases.”

In a case of concurrent jurisdiction in different tribunals, the one first exercising jurisdiction rightfully acquires the control, to the exclusion of the other. 1 Wharton Cr. L. (6th Ed.), 541; Burdett v. The State, 9 Texas, 43.

But in this case, the affidavit was made before the justice óf the peace and the warrant for the arrest of the plaintiff in error issued on the 25th of January, 1877, and on the same day the warrant was returned by the constable not found. The justice ■of the peace acquired no jurisdiction of the person of the defendant for want of service, and no alias writ was issued. There appears to have been no further prosecution of the case before the justice of the peace. The indictment was found in the Circuit Court at the April Term following, when no doubt the prosecution before the justice had been abandoned, and was not pending.

The court did not err in sustaining the demurrer to this plea.

The second plea alleges, “ that on or about the-■ day of February, 1877, defendant appeared in pérson before one John Comer, an acting and duly qualified justice of the peace of said Township of Hico, Benton County, and entered his plea of guilty for the same offense alleged in the indictment of this •cause; upon which plea said justice rendered judgment against him in favor of said State for the sum of five dollars fine, and cost, which fine and cost was by this defendant paid to the proper officer; wherefore he prays judgment.”

The plea does not verify the alleged former conviction by any record, and was bad on demurrer. Atkins v. State, 16 Ark., 568 Wilson v. State, Ib., 610; Johnson v. State, 29 Ark., 34; 1 Wharton, 541.

A justices’ court is not strictly a court of record, but the docket entries, etc., of the justice are quasi records.

Moreover, to render the plea of former conviction availing, the court must not only have jurisdiction, but the proceedings must be regular. Thus, a conviction of breach of the peace before a magistrate, on the confession or information of the offender himself, is no bar to an indictment by the grand jury for the same offense. 1 Wharton Cr. L., 541.

In Commonwealth v. Alderman, 4 Mass., 478, the defendant being arraigned on an indictment for an assault and battery, and being inquired of by the clerk, •whether he was guilty or not guilty, said that he was guilty, but added that he had himself informed a justice of the peace of the county of his offense, by whom he had been sentenced to pay a fine.'

“ The court directed the clerk to enter a plea of guilty alone, observing that it had heretofore been solemnly determined that a conviction of a breach of the peace before a magistrate, on the confession or information of the offender himself, was no bar to an indictment by a grand jury for the same offense.”

We think this good law. It would be an evil practice to permit a man who has committed an assault and battery upon another, to go to a magistrate, tell his own story, and hand him $5 as an atonement for the offense.

The grounds of the motion for a new trial were, that the court-sustained the demurrer to defendant’s plea to the jurisdiction, and required him to plead to the indictment; and that the verdict of the court, sitting as a jury, was contrary to law and evidence.

The sustaining of the demurrer to the plea was not properly assigned as cause for a new trial. The pleas, the demurrer, and judgment of tlie court upon it, were matters of record, and preceded the trial. "VVe have seen, however, that the court did not err in sustaining the demurrer to the pleas.

Whether the court found contrary to the evidence or not, we do not know, as the plaintiff in error failed to set out the evidence introduced on the trial in his bill of exceptions.

The cause assigned in the motion for arrest of judgment, is that the court overruled the plea to the jurisdiction. We have ábove decided that the plea was bad.

Before the adoption of the Criminal Code, though the defendant might be willing to waive his right to trial by jury, there was no statute authorizing the court to try a criminal case. Wilson v. State, 16 Ark., 601; Bond v. State, 17 Ib., 290; Oliver v. State, 17 Ib., 510; Cooper v. State, 21 Ib., 228; Cason v. State, 22 Ib., 214.

But by sec. 1857, Gantt’s Dig., in all cases of misdemeanors the parties may by consent, waive a jury, and submit the law and facts to the court, etc.-

Affirmed.


text:
    Lester vs. The State.
    1. Evidence: Confession during intoxication.

    A confession made by a person in a state of intoxication should not, for” that reason, be rejected, but ho should be permitted to prove his condition at the time.
    2. Lakceny:
    Under an indictment for grand larceny it is not necessary to trace the stolen goods to the defendant’s possession; if he was present aiding and abetting in the larceny he is guilty.

      ERROR to Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Pearce, for plaintiff in error.

      Henderson, Attorney General, contra.

   English, Ch. J.:

Daniel Lester, Jackson Taylor and Frank Holmes were jointly indicted in the Circuit Court of Jefferson County for grand larceny. They were charged with stealing, 11th July, 1877, one pair of black pants of the value of $5, one pair of grey pants of the value of $5, and one pair of brown corded pants of the value of $5, of the goods and chattels of Gabe Meyer.

They severed, Lester was tried on the plea of not guilty, convicted, sentenced to the Penitentiary for one year, and brought error.

The evidence introduced on the trial, questions of law reserved, etc., are set out in a bill of exceptions taken .upon the overruling of a motion for a new trial.

Robert Lee, the first witness introduced by the State, testified in substance that he lived at Rob Roy, on Gabe Meyer’s place. That one Sunday night, in June, 1877, after he had returned from church, Jackson Taylor came to his house, and wanted him to go to Gabe Meyer’s store at Rob Roy. He told him he would not go, and Taylor went away. He waited about an hour, and then he went down to the store, where he found defendant Lester standing by the well, about forty yards from the store, holding four shot guns in his arms, and by his side was a sack of clothing. There was a brown suit and one black suit, and a grey suit of clothes. One suit was kerseymere, worth $15; one was worth $18. There was also a linen suit, one pair of brown jeans pants, and one pair of black cloth pants, worth $5. These were goods that witness had seen in Gabe Meyer’s store, and knew they were his goods. There was a light burning in the store at the back window, and Jackson Taylor and Frank Holmes were in the store. They asked Lester if he did not want more goods, and Lester said he had all he could carry off. Lester wanted witness to take a suit of clothes, but he refused. He stayed there about half an hour. Lester showed him a piece of iron bent up at the end, and said that it was what they pried open the window with. Witness left, and started for home, but Lester overtook him, and had the sack of clothes with him. Witness saw the clothes at his house next morning. About three or four weeks after this, witness was arrested on a charge of breaking into the store. He had on a pair of pants that he got from Frank Holmes. He then told Thad. Phillips about Lester, Taylor and Holmes breaking into the store. Never told anybody of it until after he was charged with it. Bought the pants of Holmes; thought they were stolen with the rest, but Holmes said he bought them of Eosenbury, a clerk in the store.

Thad. Phillips, clerk for Meyer, testified that the store was broken open on a Sunday night in June, 1877; found next morning that the'window had been broken open, etc. Hid not miss any goods at the time. Some time after heard that Lester, Taylor and Plolmes had goods belonging to the store. Found a pair of pants on witness Lee, and charged him with breaking into the the store, and then he told on the parties indicted, and they were arrested. “When I had Lester under arrest (witness said) taking him over to the justice’s office, he said he Avas engaged in taking the goods, and Avas willing to pay for taking all he had. We found none of the goods, said to have been stolen, on Lester, or on his premises. We found one pair of pants on Bob Lee, two pairs of pants on Holmes, and a shirt on Taylor; thought they were the property of Meyer; they were like goods in his store. Lester did not say what things he took; did not say he took any of the things described in the indictment; he merely said he and the others took the goods.”

“Defendant offered to prove by this witness that at the time the alleged confession was made, he was in such a state of intoxication as to be irresponsible for anything he said, and not in his right mind.”

Objected to by the State, and objection sustained by the court.

Joseph Robinson, a witness for defendant, after testifying as to other matters not material to be stated, said he saAv Lester, Taylor and Holmes on the day of their arrest.

For defense: “What Avas the condition of Lester, as to being intoxicated, and being in a rational condition of mind Avhen under arrest, and in charge of Thad. Phillips ?”

Objected to on the part of the State, and objection sustained by the court.

First — The refusal of the court to permit plaintiff in error to prove that he Avas intoxicated when he made the confession proven by Avitness Thad. Phillips, AA'as assigned as cause for a new trial.

In Rex v. Spilsburg, Ferrall et al., 7 Carrington & Payne, 187, the prisoners AA'ere indicted for the wilfull murder of Joseph Johnson. It appeared that the prisoner Ferrall had made a statement to a constable, in Avhose custody he was, but tnat he was drunk at the time, and it Avas imputed that the constable had given him liquor to cause him to do so. Ludlow, Serjt., objected that Avhat a prisoner said under snch circumstances was not receivable in evidence.

Coleridge, J.: “I am of opinion that a statement being made by a prisoner Avhen he Avas drunk is not therefore inadmissible as evidence against him; and that, to render a confession inadmissible, it must either be obtained by hope or fear. This is matter of observation for me, upon the weight that ought to-attach to this statement when it is considered by the jury.”

The statement was received. See also 1 Greenleaf Ev., sec. 229.

In Jefferds v. The People, 5 Parker’s Crim. Rep., 547, the Recorder said : “I have been asked to say to you (the jury) substantially, that confessions, made by a man when drunk, are not entitled to be received. That, in my opinion, is not good law. I have never, in all my reading, found a case which would countenance the doctrine that a confession, made when a man was drunk, was not entitled to be received as evidence. * * * *' Where a man voluntarily, .whether sober or drunk, makes a confession or admission, etc., the confession is entitled to be received in evidence, and the only question for the jury is, as to the weight to be given to it, and that is more or less affected by the state of the mind of the party making it, and the probability of the truth of the confession.”

A man drunk may, and no doubt often does, let out the truth, but he make statements which are the mere vageries of a disordered mind.

If the plaintiff in error was intoxicated at the time he made the confession to witness Phillips, though the confession was admissible in evidence, the court should have permitted him to-prove his condition at the time, which the jury might have taken into consideration in determining what weight they would attach to his confession.

Second — The court, at the instance of the State, instructed the j^7:

I. “If you believe from the evidence that the defendant,. Daniel Lester, did either by himself or in connection with others,, steal, take and carry away the property of Gabe Meyer of the-value of two dollars, as alleged in the indictment, they will find him guilty of grand larceny, and assess his punishment in the State Penitentiary for a term of not less than one nor more than five years.

II. “The admissions of the defendant are entitled to the same •weight as other evidence.”

The Act approved 23d January, 1875 (Acts of 1874-5, p. 112), provides that: “Whoever shall be guilty of larceny, when the value of the property stolen exceeds the sum of two dollars, upon conviction thereof, shall be punished by imprisonment in the Penitentiary not less than one nor more than five years, and when .the value of the property stolen does not exceed the sum of two dollars, by imprisonment in the county jail not more than one year, and by fine not exceeding three hundred dollars.”

The court below no doubt very well understood the difference between grand and petit larceny, under this statute, but inadvertently used the words “of the value of two dollars,” omitting the word, exceeding.

The admissions or confessions of a party are entitled to more or less weight accordirig to the circumstances under which they are made. The rule on the subject is to be found in any text book on evidence.

Had the court below permitted plaintiff in error to prove that he wTas intoxicated when he made the confession to Phillips, it might or might not have detracted from its weight with the jury.

Third — The court gave all of the instructions moved for plaintiff in error, but the fifth, which was as follows:

“The property alleged to have been stolen must be clearly identified as the property described in the indictment; that it was the property of Gabe Meyer, and was stolen by the defendant, and the property must be traced to the possession of the defendant, and.unless the jury find these facts proven clearly, beyond a reasonable doubt, they must acquit the defendant.”

If plaintiff in error was present, aiding and abetting, when Taylor and Holmes entered the store, he was guilty of the larceny, whether any of the stolen goods were traced to his possession or not.

The court properly refused to .give the instruction as framed..

"Whether the jury could have convicted plaintiff error in upon the testimony of Robert Lee alone, who seems to have rested under suspicion of being connected -with the theft, we do not know. No doubt the confession of plaintiff, as proven by Thad. Phillips, had weight with the jury in making up their verdict.. How far the weight of the confession might have been lessened,, in the minds of the jurors, had it been proven that he was more or less drunk when the confession was made, is matter of conjecture. We cannot undertake to affirm that the prisoner was. not prejudiced by the exclusion of the proposed evidence as to his condition at the time the confession was made. We therefore think it better and safer to reverse the judgment and remand the cause for a new trial. '


text:
    Brugman et al. vs. McGuire et al.
    1. Partnership.
    A person who permits himself to be held out as a partner is liable as such,, whether in fact a partner or not.
    2. Payment: By note.

    The giving of a promissory note in settlement of an account, does not operate as an absolute payment, unless the parties expressly or impliedly agree to treat it as such.
    3. Parties: Joinder.

    Where several persons are sued as upon a joint contract, but the proof! shows that only a part of them contracted, the plaintiff may recover against those who are in fact liable.

      4. Joinder oe Actions: In personam and in rem.

    A plaintiff proceeding in rem for the enforcement of a mechanic’s Hen may also count upon the personal liability of the defendant, and recover in personam, though he may fail in establishing the alleged lien.
    •5. Attachment: Judgment against sureties in discharging bond.

    Under the provisions of the Act of November 10th, 1875, a plaintiff in attachment may recover judgment against the sureties in a discharging bond upon the trial of the main cause.
    APPEAL from Pulashi Circuit Court.
    Hon. T. C. Peek, Special Judge.

      Dodge & Johnson, for appellant.

      Rose, Kimball, and Clarh & Williams, contra.

   Harrison, J.:

• This was a suit brought by John McGuire & Bro. against Peter Brugman, Phillip E. Brugman and Dick Brugman, as partners under the name of Peter Brugman & Sons, to recover the sum of $570 on an account for work done and materials furmished by them as machinists upon and for a steam grist mill, •and to enforce a mechanic’s lien therefor.

The defendants filed separate answers, after which the action ■was dismissed as to Dick Brugman.

The answers of Peter Brugman and Phillip E. Brugman were .substantially alike and may be taken as one.

They denied that any such firm as Peter Brugman & Sons had -ever existed; that they have been partners or jointly interested •in the mill, or that Peter Brugman had any interest in the same, ■or any work had been done or materials furnished for him by the plaintiffs, and they denied that either of them owed the debt .sued for, but averred that the work was done and materials furnished at the instance and for Phillip E. Brugman alone; and that the debt for the same was paid on the 19th day of June, 1874, by Peter Brugman making and delivering to the plaintiffs .his two promissory notes, each for $285, payable with 10 per ■cent, interest from date, respectively, in four and six months, which the plaintiffs accepted in payment and discharge of the debt; and they further averred that the mill sought to be charged with the lien was upon the land of Isabella T. Brugman, the wife of said Peter Brugman, and which was her separate property, and the said Phillip E. Brugman, when the work was done and materials furnished, had but a lease thereof, for one year, and which had expired before the suit was brought, and they disclaimed any interest in the mill.

After the suit was commenced, garnishments were sued out against the Life Insurance Company of North America, and the Citizens’ Insurance Company of New Jersey, and an indebtedness to Peter Brugman of $871.50 was admitted by the former company, and an indebtedness to Phillip E. Brugman of $712 by the latter company; whereupon the bond of Phillip E.Brugman, with J. E. Geyer and "VY. Roland as sureties, for the dissolution of the attachment was filed, and the same was discharged.

The jury returned a verdict for the plaintiffs for $623.86, the •debt and damages, but fonnd against the lien.

The defendants moved for a new trial; their motion was overruled and judgment for the amount of the verdict was rendered against them and their sureties. The defendants appealed.

The evidence was as follows :

For the plaintiffs:

William McGuire, one'of the plaintiffs, and their bookkeeper, testified to the' correctness of the charges in the account filed with the complaint. The dealings he said were with his brother •and co-plaintiff, and he did not know of his personal knowledge ■on whose orders the work was done and materials furnished, but he saw both Peter and Phillip E. Brugman frequently at their

'William Green testified: That sometime in the spring of 1874, he was asked by Peter Brugman if he knew of an engine and boiler for sale, and he told him where he could buy them. Shortly afterwards Phillip E. Brugman called upon him, and they went to the place, and Philip E. Brugman bought them and employed the witness to haul them to the plaintiff’s shop to be repaired, which he did, and after they were repaired, he, at the instance of Philip E. Brugman, hauled them to the mill, on what he supposed was Dr. Peter Brugman’s place. He did not see Dr. Brugman when he hauled the engine and boiler to the mill, and Philip E. Brugman seemed to have the entire control of the mill.

Mr. Hughes testified that he was in 1874 sent by the plaintiff, in whose employment he was, to Brugman’s mill to repair the machinery. The repairs were made under the directions of Philip E. Brugman, and he did not see Dr. Brugman there.

John McGuire, the other plaintiff, testified:

That both Dr. Peter Brugman and Philip E. Brugman applied to him to do the work and furnish the materials, each, at several and different times, and sometimes one and sometimes the other made payments to him on the account, and he supposed them to be partners in the mill. The job was to be paid for when finished ,• and, when it was done, he called upon Dr. Brugman and presented the account, which was made out against Philip E. Brugman. He told the witness he was out of money, and could, not then pay it. Sometime afterwards he presented the account to him again, when he offered to give the notes. He said to the witness: “I want to give you my notes for that account to keep your brother from dunning me on it. I would rather have the seven years’ itch than to have him after me. Let me give you my notes, so that I can tell him it is settled, and he told the wit- . ness they could be used in bank and money raised on them.

Witness consented to take the notes, two, each for $285, bearing 10 per cent, interest and at four and six months, but at the time told him, they would not release any one from the debt, and would still hold their mechanic’s lien on the mill for it. The notes were accordingly given, and he indorsed on the account a receipt in full of it.. That notes were not taken in payment and discharge of the debt, and they afterwards filed their account of the work and materials to secure their lien. That after the notes fell due, he presented them for payment, which was refused, and that neither they nor the account had ever been paid.

The account and the affidavit thereto attached filed in the office of the Circuit Clerk to secure the mechanic’s-lien, which was made out against “Peter Brugman' & Son,” was then read, and the plaintiff’s produced and offered to surrender to the defendants the notes.

And for the defendants:

The defendant, Philip E. Brugman, testified : That there had been no such firm as “Peter Brugman & Sonsthat the work was done and the materials furnished upon orders given by himself in person and sometimes by his father Dr. Peter Brugman, and that neither Dr. Brugman nor Dick Brugman had any interest in the mill or machinery, and the engine, boiler and machinery was his, the witness’ sole and individual property: that the land on which the mill stood belonged to his mother, Mrs. Isabella T. Brugman, from whom he rented the land and mill, and his lease of the same had expired. That sometimes he made the plaintiffs payments on the account in person, and sometimes sent them money by his father. That he directed them to make the account out against himself individually, which was done, and he requested his father to settle it, which his father did by giving the notes mentioned in his answer, and taking the receipt indorsed upon the account. He considered his debt to the plaintiffs paid by his father’s notes, and did not owe them anything.

The mill building, he said, was erected by Dr. Brugman and cost him about $1600. Since the suit had been pending, the mill and machinery had been destroyed by fire, and he, the wit--, ness, had received on account of insurance on the building, machinery, stock of goods and cotton, $2200, of which he paid Dr*. Brugman on account of his assumption of the debt to the plaintiffs, and other matters, $1600.

That he knew of no property his father owned, out of which the notes could be paid, and he was, when he paid him the insurance money so far as he knew, insolvent.

And Peter Brugman testified: That no partnership ever existed between him and his son Philip E. Brugman, and that the engine and boiler was purchased by Philip E. Brugman alone and for his own use, and that he had never employed the plaintiffs to repair the engine and boiler or to do any work for himself, and they had never furnished him any materials, and that the work was done for, and the materials furnished to Philip E. Brugman alone.

That the land on which the mill was situated was the separate property of his wife, and was rented by her to Philip E. Brugman, who put the engine and boiler in the mill at his own expense, and owned the entire machinery.

He paid the plaintiffs some money on the account, all of which was his own, but did not intend when the account was being made to become liable therefor.

Pie said that being dunned upon the account, by John McGuire, he told him he had no money, but offered to give him the notes mentioned in his answer, which he consented to accept, and they were accordingly executed, and a receipt was indorsed by* McGuire on the account. He had no recollection of McGuire saying lie would retain tlie mechanic’s lien, and considered the notes as payment and satisfaction of the account, and that by giving the notes, he alone, Avhich Avas his intention, became liable for the debt.

The receipt Avas read, which was as folloAvs :

“Received payment by notes of Peter Brugman, at four and six months, in full of account to date.

John McGuire & Bro.

June 19th, 1874.”

And the defendants then read a deed of conveyance from Frank T. Vaughan and Myra Vaughan his wife, to Isabella T. Brugman, for the land mentioned in the complaint on Avhich the mill Avas situated, but which did not convey the same to her as her separate property.

The following instructions given for the plaintiffs were excepted to by the defendants:

First — It was not necessary to entitle the plaintiffs to recover, to prove that the defendants Avere partners or jointly interested in the mill, but if their acts and conduct Avas such as to induce the plaintiffs to believe them to be partners or jointly interested, and, under that impression and belief so created, the work was done and the materials furnished, both were liable to the plaintiffs. therefor, although Peter Brugman was not, and Philip E. Brugman was alone interested in having the work done and materials furnished, and the same was for his sole use and benefit.

Second — But if they engaged in the enterprise of- building a mill to be OAvned and jointly run by them for their mutual benefit and profit, that constituted them partners as to all matters connected with the' building and running of the mill, and they Avould be jointly liable for materials furnished and work done, in the carrying out of that common object.

Third — That the debt for which the notes were given was not paid and extinguished by the notes of Peter Brugman unless it was the intention and understanding of the parties at the time the same were given, that they were in payment and discharge of it and so received.

“It is undoubted law,” says Judge Parsons in his work on partnership, “that one held out as a partner with his own consent is liable as such whether he be a partner in fact or not.” Par. on Part., 87, 123; Sto. on Part., sec. 64; Humphries v. McGraw, 5 Ark., 61; Olmstead v. Hill, 2 Ib., 346.

The first two instructions were clearly unobjectionable. The third was equally so.

“The giving of his bill of exchange, promissory note, or other negotiable security, by the debtor, only operates as a conditional payment, unless the parties expressly or impliedly agree to consider it as an absolute payment.” Sto. on Con., sec. 979 ; Carlton v. Buckner, 28 Ark., 66; Costar v. Davies, 8 Ark., 213; Sheehy v. Mandeville, 6 Cranch, 264.

But it is contended by the appellants that as the action was upon an alleged joint contract of theirs and Dick Brugman, and there was no evidence whatever tending to prove that Dick Brugman was a party to the contract, the verdict was not sustained by the evidence.

The statute explicitly says: “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” Gantt’s Dig., sec. 4701.

We think the plain reasoning of this section is to allow, where several persons are made defendants as upon a joint contract, but the proof shows that only some of them contracted, the plaintiff to recover against those who were in fact liable. Zink v. Attenburg, 18 How. Pr., 108; Witherhead v. Allen, 28 Barb., 661; Claflin v. Butterly, 2 Abb., 446; Brumskill v. James, 1 Ker., 294.

It is also objected, that the action could not be in rem and also in personam, and, as the plaintiffs failed in the proof of the lien, there could be no judgment for the debt against the defendants personally.

But it is expi’essly provided that “in an action on a mortgage or lien, the judgment may be rendered for the sale of the property, and for the recovery of the debt against the defendants personally.” Gantt’s Dig., sec. 4707, and in sec. 4550 it is provided, also, that several causes of action, which belong to •certain classes named, may be united in the salme complaint, where each affects all the parties to the action, may be brought in the same county and be prosecuted by the same kind of proceedings, of which classes, claims arising out of contracts express or implied, is first mentioned, and sec. 4553 says all objections to the misjoinder of causes of action shall be deemed waived, if not taken by the defendant before he makes his defense.

The complaint, besides setting out the facts in relation to the mechanic’s lien, also alleged such as constituted a cause of action against the defendants personally for their debt, and prayed a personal judgment. White v. Chaffin, m. s. Op.; Arkansas Central R. R. Co. v. McKay, 30 Ark., 682.

In the case of White v. Chaffin, which was a case very similar to the present, there was a judgment in rem and also a personal judgment for the debt. The judgment in rem condemned more land than is allowed by the statute. The personal judgment was affirmed, and that in rem held erroneous only as to the quantity of land ordered to be sold for the satisfaction of the debt.

A remaining objection is that judgment was rendered against ¡the sureties in the bond for the discharge of the .attachment. ■Such judgment against the sureties is expressly authorized and directed by the Act of November 10th, 1875, amendatory of the attachment laws.

Finding no error the judgment of the court below is affirmed.