text:
    Hynson & Hynson against Taylor & Cotheal.
    Appeal from Independence Circuit Court:

    A writ of attachment cannot issue upon a declaration in case for damages sustained by the malicious prosecution of a suit; with a count in Trover.

    An action on the case is not founded on any indebtedness: but on the mere justice and conscience of the plaintiff’s right to recover.
    No exception can be taken to the affidavit, in a suit by attachment, until the defendant appears and pleads, fie cannot proceed by motion. No particular plea is specified — that must depend on the nature of the defence or objection.
    But it must be such a plea as'will properly present the question on which the defendant relies; whether it be the validity of the proceedings or the right of action — and issuable.
    Unless the Legislature, by express enactment, authorize a plea to be dispensed with» it cannot be done by the Courts.
    The appellants filed their declaration, affidavit and bond, and caused a writ of attachment to be issued, against the appellees as lion-residents. The declaration complained of Taylor & Cotheal “of a plea of tresspass on the casef> Two counts allege as cause of action that Taylor & Cotheal had, without any reasonable or probable cause of action, maliciously caused their goods and chattels to be attached, and the third count was in Trover. The writ was only executed by summoning the garnishees.
    At the return term of the writ, an order of publication was made.
    At the next term Taylor & Cotheal by attorney, moved the Court, that the writ and proceedings be quashed absolutely, or their common appearance be accepted, the attachment, dissolved, garnishees discharged, and that the cause proceed as other suits at law, or be quashed and dismissed. The Court dissolved the attachment, and discharged the garnishees; and took that part of the motion as to dismissal of the suit under advisement. At the next term the writ of attachment was quashed, and the suit dismissed.
    Pike and Borden, for plaintiffs in error:
    But one question is presented in this case. This question has been settled in this Court upon iu.ll examination., in the case of Jones &
      Others vs. Buzzard and Herndon, where it was shown that the writ would lie in an action on the case for damages. We consider it needless therefore to discuss it here, or again to refer to authority.
    In any event, after appearance, though the writ was quashed, yet final judgment could not go against the plaintiffs. And on this point, if not on the other, the judgment will be found erroneous. When the attachment was dissolved by the first order, the common appearance of the defendants was entered and accepted: after that they could not object to the writ.
    Fowler, Contra:

    The 4th and 5th section, title Practice at Law inthe new code title attachment, p. 115, sec. ■ 2, require that “suits commenced by attachment against the property of any person, shall be brought in the' county in which such property may be found.” Can such a suit be instituted in a county, where no property of defendant is to be found ? Or, if instituted, on return of process showing that no property was there found, ought it not to be dismissed ? An attachment is a proceeding in rem., and where there is a failure to seize the thing itself, is there not an end to the proceeding 1 Will a Court, because a plaintiff makes a false clamor, and sues out process in rem, and finds nothing to act upon, allow him on such failure to proceed against the person, and obtain a final judgment, where the law would not have permitted him to do it, without his false allegations and assumption thatproperly was within the jurisdiction of the Court ? To countenance and give final effect to such a procedure, it is contended, would go far beyond any legitimate construction heretofore put upon remedial statutes even, to which class this Court-in the case of Jones & others v. Buzzard and Herndon, have assigned our acts upon the subject of attachment. If we are right in this position, thejudgment below against the plaintiffs, was right on this ground alone. Simply summoning a third.person as garnishee, without any showing whatever either before or after the emanation of the writ, that he was indebted to the defendants, or had property of theirs in possession, could not place the case in a better situation for’the plaintiffs.
    Further, the acts of our Legislature, and in this too they have gone as far perhaps as any other Legislative body, give no countenance whatever, even by the most remote implication, to the issuance of a writ of attachment in an action founded on a tort; but by intendment, and the letter of the Statute, confine such proceedings to actions ex contractu, on cases properly made out as directed thereby.

      See new code p. p. 115, 116. In section the first, it is declared that “the creditor may proceed against” “absent or absconding debtors.” In section 2 “the creditor shall file iri the office of the Clerk of the Circuit Court of the county where the property may be found &c.” “against his debtor” &c. In section 3, “the creditor shall” &c. file an affidavit &c. that defendant “is justly indebted" &c. Section 5, “the creditor” shall file bond &c., “conditioned that he will prove his debt or demand” &c. Thus keeping up throughout, the distinct principle, that the process of attachment must be confined to actions éss contractu.

    And if the Statute be remedial, and to be construed liberally, can such construction be extended beyond the obvious and clear meaning of the Legislature ? It is believed not. And would it not be a strained construction indeed, far beyond any rules known to the law, to say that that body which is legally presumed to be wise, meant by the terms “debtor” “creditor” “debt” “justly indebted,” not what is generally -understood thereby, but meant “trespasser” “tortfeasor,” “trespass,” “assault and battery,” malicious prosecution ?”

    It is true, that by virtue of the 29th section of the act last referred to, in a proper case, a doubt might arise whether a defendant attached would not be required to appear and plead, before the attachment could be dissolved. But could it thereby have been intended, that if a wri.t should issue in a case wholly unwarranted by law, or in which the proceeding itself was void, that non-residents should be compelled to appear and answer the action — plead to the declaration —and be bound by a judgment inpersonam, in such unathorized procedure 1 The motion then of the defendants, however inartificially it may appear upon the record, was made in apt time and manner, and was properly sustained, as the defendants respectfully urge upon the Court. Admit, for the sake of argument only, that the writ on its face appears valid; that the affidavit is in due form and substance, although it does not conform to the language of the Statute; yet when we look to the declaration, the statement, which is the foundation of the action, required by the statute to be filed', and find it in utter violation of the law giving the remedy, not for a debt, nor for damages for breach of contract, nor for acause of action ex quasi contractu', but for a tort, a malicious prosecution of a civil suit, does it not vitiate the whole proceeding, and render it illegal and void from the beginning ? Shall a. plaintiff by framing ingeniously an affidavit, be permitted by a court of justice, to seek redress for an alleged wrong in a mode unauthorized by law, and which by his declaration clearly appears ?
    The case of Jones & others vs. Buzzard & others relied upon by the appellants, upon examination will bo found to have no bearing whatever upon this case, except as to the class of Statutes to which our laws of attachment belong.
    It is further respectfully suggested and submitted to the reflections of the bench, whether at the present day an action for the malicious prosecution of a civil suit can be sustained, even where personal service can be made upon defendants. Has not such action or mode of redress become obsolete, and at this day without legal countenance ? It is believed to have been so decided in the case of Fletcher vs. Ellis, in the late Superior Court of the Territory of Arkansas.
   Dickinson, J.,

delivered the opinion of the Court:

The proceedings by attachment against absent and absconding debtors is a remedy given by Statute (Rev. Code 115), in a particular class of cases, without which 'the debt might be lost, and being in derogation of the common law, must be strictly pursued. No latitude can be given calculated to enlarge the remedy by extending it to cases not embraced by the language adopted by the Legislature, fixing the character of the demand upon which suit may be instituted by attachment. To avail himself of the privilege, the plaintiff must not only file a declaration containing a true statement of the nature of his demand, but an affidavit that the defendant is justly indebted to Him. He is also required to file at the same time a bond with sufficient security conditioned that he will prove his debt .or demand on a trial at law, or that “he will pay such damages as shall be adjudged against him.” It is only upon all these requisites being complied with, that the writ issues, upon which so much of the defendant’s goods and chattels, lands and tenements, credits and effects, is attached, “as shall be sufficient to secure the debt as sworn to, with interest and costs.”

The declaration here is in case for damages claimed to have been sustained by the plaintiffs in error, in the malicious prosecution of a suit previously instituted in Louisiana by the defendants in error against one of the plaintiffs and one John Ringgold. Thére is also a count in Trover. There is however no allegation of actual indebtedness, nor of a breach of contract as between these parties.

■ It is an established rule of law, “that all acts in pari materia are to be taken together, as if they were one law.” 6 Bac. Abr. 382. Throughout the whole of the statutory provisions regulating the mode of proceeding by attachment, we find the words “creditor,” “debtor,” and’ “debt,” showing clearly that the relative character of creditor and debtor must have existed at the time: and that the remedy is confined exclusively to action's ex contractu : and that by no reasonable construction can it be made to apply to torts. If in this instance, the plaintiff in error could proceed by attachment, might not a party do so in detinue, trespass vi et armis, or in any form of action ex delicto ? We can see no limit, if this construction is once allowed: It would be in contradiction to all the adjudications upon Statutes similar to our own. An^action on the case is not founded upon any, indebtedness, but upon the mere justice and conscience of the plaintiffs right to recover. 1 Ch. 487; Bird vs. Randall, 3 Burr. 1353 ; 1 Wil. 45 ; 2 Saund. 155, n. 4 ; 8 J. R. 453. It is in the nature of a bill in equity, and in general whatever will in equity and in conscience, preclude the plaintiff’s right of recovery, may be given in evidence in case under the general issue.

This case is clearly one, in which proceedings are not authorized by attachment. The case of Jones and others vs. Buzzard and Herndon, does not, we apprehend, conflict with this opinion. That case differs widely from the one now before us, and was founded upon an act of the late Territorial government, and was presented upon a peculiar state of pleadings- On the contrary, as far as applicable, it sustains us in the views entertained in this case.

The sufficiency of the exceptions to the affidavit will not be determined: They were not taken in accordance with the statute, (sec. 29 Attachment Rev. Stat.) which require, that the party shall appear and plead, before he can except. The defendants, it is true, say they do appear; but they omit to plead, and elect to proceed by motion, which is unauthorized. No particular plea is named or required; that must depend upon the nature of the defence or objection. But it roust be such a plea, as will properly present the question, upon which the defendants rely; whether it be the validity of the proceedings, or the right of action. It must be a plea upon which an issue can be taken, either in law for the adjudication of the Court, or of fact for the determination of a jury; and, if necessary, en,ablethe revising tribunal to pass upon the judgment of the Circuit Court. Unless the Legislature, by special enactment, authorizes a plea to be dispensed with, the Courts have no right to do so, but must require the established rules of pleading to be observed. A contrary course most frequently obstructs the course of justice, and throws around a-case, so much doubt and confusion, as often causes a sacrifice of rights? and brings unmerited reproach upon the profession.

Judgment reversed, and case remanded.


source: Caselaw Access Project

author: Dickinson, J.,

license: Public Domain

text:
    Rutherford and Others against The State Bank.
    Error to Independence Circuit Court.

    Where the transcript shows no judicial seal to the original writ, and the Court below refused to quash the writ, the Supreme Court cannot presume, in favor of the Court below, that there was such seal to the original.
    The presumption in favor of the Court below attaches only where the record affirmatively shows that the Court had acquired jurisdiction over the person of the defendant in the manner prescribed by law.
    And where there was no such seal, and judgment was entered 'against two of the defendants by default, and against the third on demurrer, it will be reversed as to all.
    ‘Debt. The original writ, as transcribed, has no judicial seal. The defendant moved to quash it, without specifying any reason. Motion overruled, and he demurred. Demurrer overruled. Judgment against him on the demurrer, and against the others by default.
    Byers, for plaintiffs in error:
    It is contended that the writ was illegal, because it had no judicial seal, and that it imposed no legal duty on the defendants to obey its mandate; and that the appearance of Thomas McG. Rutherford, and demurring to the declaration, cannot cure this defect as to the other plaintiffs in error, against whom judgment was rendered by default. This question we think well settled in the case of Woolford vs. Dugan, 2 Ark. Rep., 131.
    Hempstead & Johnson, Contra :

    It is assigned, as error, that the writ of summons issued from the Court below was illegal, and imposed no legal duty upon tho defendants to appear: that it was void, for want of “seal judicial.” The transcript in this case shows a writ of summons, in due form of law, issued, served, and returned, but shows no seal of Court attached. The copy of the seal would be the seal itself. Is it the practice, in certifying transcripts of records to the Supreme Court, also to attach the seals of the Court to the .copy of the various writs issued from the Court below? or is it not a matter to be shown from the pleadings in the Court below, if the writ be without a seal? If it be necessary that the proceedings in the Court below shall show the defect, the assignment of it here'is idle.
    The certified transcript shows, that a defendant below “ appeared and filed his motion to. quash the writ; whereupon, the Court, after hearing argument, &c.,- and being fully advised, overruled the motion.”
    . No copy of this motion is contained, nor does the ground upon which it is made, appear in the transcript.
    We may then conclude, the motion to.:quash was made upon any other ground, as soon as for want of a seal. We may conclude it was made because the seal of Court was merely impressed upon the paper, without wax; or for any other slight and imaginary cause. And since the Court below overruled the motion to quash, it is but justice to that Court, that we should presume no such vital defect as the want of the judicial seal to the writ of summons giving the Court jurisdiction- of the parties, to have existed.
   Dickinson, J.,

delivered the opinion of the Court:

The case of Gilbreath vs. Kuykendall, 1 Ark. Rep., 50, decides the question as to the writ. It was there held, that if the process is void, a defendant is under no legal obligation to appear and answer to the action, and cannot be .considered in default for failing so to do. The statute imperatively declares, that all writs shall be sealed with the judicial seal of the Court. See ch. 2, p. 159, Rev. Stat. Ark. It is admitted by the counsel on both sides, that the transcript does not show any seal; and although we assent to the general rule, that we are bound to presume in favor of the Court below, yet that presumption only attaches when it is affirmatively shown by the record, that the Court has acquired jurisdiction over the person of the defendant in the manner prescribed by law. As well might we presume that a writ was signed by the Clerk, when his name is wholly omitted, as that a seal was affixed, when there is no evidence of it in the record; for the one is generally as necessary as the other. So we might with the same justice presume that the Sheriff had legally executed the process, because he had so stated, without showing the time and manner. This would be carrying the doctrine of presumption to an extent unknown to the common law, and which no Court would sanction. There can be no judgment, unless there is first a valid writ, and legal service of it, unless the party, by a voluntary appearance, waives his right thereto.

We can easily conceive how the word seal, or something purporting that there had been one, might in a. transcript be substituted in loco sigilli. Against two of the plaintiffs in error, viz: Allen and Thomas H. Flippin, judgment was taken by default. They have, therefore, a right to avail themselves of any irregularities in the proceedings against them. The other assignment of error it is unnecessary to notice, as we consider the writ void.

Judgment reversed, and case remanded, to be proceeded in at the next regular term of the Court below, as if the defendants were regularly served with process returnable thereto.


author: Dickinson J.,

text:
    Robert Frail, Ex Parte.
    A "writ of error does not lie from the Supreme Court to the Corporation Court of the City of Little Rock.
    This was an application for a writ of error to the Corporation Court of the city of Liüle Rock, to bring up to this Court the proceedings upon a conviction for an affray, wherein Frail was fined twenty dollars, and committed until fine and costs should be 'paid.
    Gilchrist and Evans, for the motion:
    Writs of error are writs of right, and, at common law, lie upon all judgments of any Court of record. See Comyn Dig., title Plea, 3 B. 7, and references there cited.
    Error lies upon all judgments of any Judge or Court of record, which acts according to the course of the common law, though newly created by statute. Com. Dig., title Plea, 3 B. 7; 1 Mass. Rep., 387 — 89; 2 Mass. Rep., 445; 11 Mass. Rep., 416; 1 Salk., 263; and.J. Rep., 337.
    The Corporation Court of the city of Little Rock is a Court of Record. Statute of 1835, page 55, sec. 6; Statute 1837-8, page 65; Statute 1840, page 42. And it acts according to the course of the common law. See Statutes and City Ordinances.
    The jurisdiction over assaults and batteries, &c., committed within the corporate limits of the city of Little Rock, was, by statute, (1840, page-42,) taken from the Circuit Court, and, under the Constitution, Art. 6, Sec. 1, vested in the Corporation Court. Or if the Legislature should have failed in conferring jurisdiction over criminal charges, by attempting to dispense with the necessity of indictment or presentment, still error will lie. Error lies upon a judgment void, as being out of the jurisdiction of an' inferior Court. Com. Dig., title Plea, 3 B. 7; 1 Ral., 744.
    “ Writs of error shall issue of course out of the Supreme Court, on final judgment in criminal matters.” Revised Statutes, 314, sec. 214. It is believed'that this principle is applicable to all “inferior Courts”' having jurisdiction of criminal matters.”
    The power to issue writs of error is conferred upon the Supreme Court by the Constitution. See Constitution, Art. 6, sec. 2. And the the Supreme Court needs no legislative aid, to carry into execution this power; (State vs. Ashley et ah, 1 Ark. Rep., 513);. where this Court issued a writ of quo warranto, in the absence of legislative provisions. And in the case of Rutherford, vs. State Bank, decided at the present term of this Court, that one of the Supreme Judges could issue a writ of error. The power to issue writs of error being conferred upon the Supreme Court by the Constitution, it is clear the Legislature cannot take from it that power, either directly or .by implication. It follows, therefore, that the right of appeal, secured to the aggrieved party in the Corporation Court, does not by implication deny him the- right to apply for his writ of error to the Supreme Court. Savage vs. Gulliver, 4 Mass. Rep., 178.
   Dickinson J.,

delivered the opinion of the Court:

. The question in this case is, whether a writ of error will lie in the matter before us?

That writs of error issue, as of course, to the Circuit Courts, is not controverted. But can they issue to the Corporation Court of the city of Little Rock? If not, how is the superintending authority of the Supreme Court to be exercised in restraining and correcting the irregularities of that and other inferior Courts?

The question is, to our minds, of easy solution. By the 3d section of chapter 43 Rev. Stat. Ark., the Circuit Court is specially invested with jurisdiction to “hear, try, and determine appeals from all judgments and orders- of the Probate Court and justices of the peace, in all cases not expressly prohibited by law;” and shall have a superintending-control over them; and the Constitution gives the Circuit Court “power to issue all the necessary writs to carry into effect their general and specific powers.” So the act establishing the Corporation Court also gives an appeal to the Circuit Court. From the judgement of the latter, a writ of error lies to this Court; thus securing the right of appeal to the party complaining, and ultimate revision by this Court. In examining the various provisions of the Constitution, and the several laws defining the powers and duties of the different tribunals, it will be found that competent means are provided, by which all private rights may b.e pursued, and private injuries redressed-;--and that the utmost harmony pervades our whole system of jurisprudence. There is no class of cases unprovided for: -on the-contrary, the laws are adapted to every occasion that may arise — to every circumstance that may occur; and substantial justice may be speedily administered to all. If a party feels himself aggrieved by one tribunal, he -may, if he avails himself of the facilities offered to him, step by step, and in regular gradation, in general ascend from the most inferior to the superior Court, until at last he reaches the highest point of authority and law. By this means, individual rights are secured, the errors of the one Court rectified by the other, and our whole judicial system preserved entire and unbroken.

A construction such as is contended for, instead of affording protection and benefit,, would be oppressive from its expense, and injurious by its delay. The mode of proceeding before Corporation Courts and justices of the peace, is summary. The ordinary forms of pleading are not observed nqr required. Men of law learning do not usually preside in the adjudication of cases, and errors and irregularities in their proceedings will therefore be of frequent occurrence; to remedy which, appeals are allowed to the Circuit Court, within some definite period, of which the party complaining must avail himself in time, .or bear the consequences of his negligence or inattention. It would, in our opinion, not only be unsound policy, but contrary to existing rules and usages of law, to extend writs of error to Courts of summary jurisdiction. If they ought to be more extensively applied than they now are, we have a Legislature always ready and able to afford every requisite remedy; and this we presume will be admitted to be,the proper mode, if it is deemed advisable to enlarge the powers of this Court, so as to embrace cases coming direct from qorporation courts or justices of the peace.

But we cannot believe that it was ever designed, hither by the framers of our Constitution, or by our legislators, that this Court should be oppressed with questions of law which might arise before every justice of the peace or corporation court, by allowing them to be brought up direct on writs of error. The evils resulting from such a construction have been foreseen, and wisely provided for, by restricting the use of such writs to final judgments of the Circuit Court. Were appeals or writs of error allowed to bring up cases direct from the most inferior Courts, it is easy to imagine the mischiefs that would ensue. The man of moderate means, the diffident suitor, and the lover of quiet, will yield to the presumptuous and overbearing; and the rights of the poor will frequently be crushed by his more wealthy opponent. The spirit of litigation would be engendered, strengthened, and diffused, and the usefulness of this Court in a great measure destroyed, by crowding its docket with cases in many instances without a shadow of law or justice to sustain them, to the annoyance of meretorious litigants, and the exclusion of its legitimate business.

The opinion of this Court on the application of John C. Slattery, to be discharged on'habeas corpus from the judgment of the Corporation Court of Little Rock, for using obscene language, is considered applicable to this case, as neither that offence, nor the one for which this applicant was convicted, is provided for or made punishable by any statute of this State. .

The writ of error must be refused.


text:
    Hays et al. against Lasater et al.
    Error to Johnson Circuit Court.

    All the Covenantees must join in a suit upon the Covenant, if living, though one of them did not sign or seal it, unless there is some legal ground for omitting him, as death, refusal to join, and the like.
    And if such legal ground exist, it must he shown as an excuse for not joining him, or the declaration will, be bad on demurrer.
    The allegation that the parties made their covenant, without alleging that they sealed it, is not sufficient, although the covenant is set out in hose verba, including the words “witness our hands and seals.” '
    The word “covenant” or “agreement” does not import a sealed instrument,, as does the word “deed,” “indenture,” or “writing obligatory.”.
    This was an action of covenant. The declaration -alleges that Lasater, Clark and Thomas, the defendants, on the 5th of June, 1838, made their covenant with the plaintiffs; which covenant is there set out verbatim, and is to this effect: It is stated to be articles of agreement made between Joseph Stewart and the defendants, in Johnson county, Commissioners and Trustees for the county, of the one part, and the plaintiffs and one John James, carpenters, of the other part. By it the plaintiffs and James covenanted with Stewart and the defendants, “Commissioners and trustees for the county aforesaid, and their successors in office,” that the plaintiffs and James would within sixteen months build and -finish a court house and two offices, in a workman-like manner, &c., according to the advertisement for letting out said buildings, with a certain exception. In consideration whereof Stewart and the defendants did “for themselves as commissioners and trustees for the county aforesaid, and their successors in office,” covenant with the plaintiffs and James, their executors, &c. well and truly to pay or cause to be paid to the plaintiffs and James, their executors, &c. $¡4,999, $1,000 in hand paid, $1,000 on the firstof March then next, and the residue when the building should be finished according to the advertisement: For the performance of which covenants, each party bound themselves, their heirs &c. and successors in office, in a penalty of $9,998. The instrument is signed and sealed by the defendants, the plaintiffs and five other persons.
    After setting out this covenant the declaration averred' that the plaintiffs built and erected a court house in accordance with the terms of the advertisement, in due accordance with the contract, and set out as breaches the non-payment of each particular portion of the sum agreed to be paid them, and the non-payment of the penalty.
    To this declaration, a demurrer was sustained, and, the plaintiffs refusing to amend, judgment went upon the demurrer.
    Linton, for plaintiffs in error:
    The word covenant is a technical expression, and imports a writing under seal; much more where the deed is set out ad literatim. See 1 Chitty page 350, Van Sanivoord and another vs. Sanford, 12 Johns. Rep. 197; Warren vs. Lynch, 3 Johns. Rep. 239.
    The 5th cause of demurrer is that the declaration shows that there should have been another person made co-plaintiff: It is admitted to be cause of demurrer, if the fact exist, but it is asserted that the fact does not exist: It is true the covenant mentions another person, but he never sealed the instrument. Who was the covenant made with? It speaks for itself — with the persons of the first and second part, who signed and sealed the covenant. The naming of a third person who did not execute said covenant, could not vitiate that which was good. 6th and last is thought to be without any foundation — certainty to a common intent is all that is required; utile per inutile, non vitialur.

    Pike, Contra:

    The covenant purports to be made between Joseph Stewart, Lasa-ter, Clark and Thomas, of one part, and John James and the plaintiffs, of the other; the plaintiffs and James jointly covenant that they will erect the buildings; — Stewart and the defendants covenant with James and the plaintiffs to pay the plaintiffs and James the price— and finally, the penalty purports to be fixed by the plaintiffs and James as well as by the defendants and Stewart. Has James such an interest that he should have been a party plaintiff ? Beyond a doubt he has.

      In general the action on a contract, whether express or implied, by parol, under seal or of record, must be brought in the name of the party in whom the legal interest in such contract is vested. 1 Ch. PI. 2: If a bond is made to A. to pay him ora third person a sum of money for the benefit of B., A must sue on it, and the third person can neither sue for, nor release the demand. 1 Ch. PI. 4; Sanford vs. Sanford, 2 Day 559; Gilby vs. Copley, 3 Lev. 138; Offley vs. Ward, 1 Lev. 235; Schack vs. Anthony, 1 M. &. S. 575.
    When a contract is made with several, if their legal interest was joint, they must all, if living, join in the suit, though the contract be in terms joint and several — and one of the parties may lawfully use the name of the other in the proceedings without his consent. Eccle-ston ¿¡¡-wife vs. Clipshazu, 1 Saund. 153 — and if it appear on the face’ of the declaration that the suit is brought by one of several with whom the contract was made, the defendant may demurr. 1 Saund. 153, n. I; Slingsby’s case, 5 Co. 18 b.; Leglise vs. Champante, 2 Sir. 820 ; Vernon vs. Jeffreys, 2 Sir. 1146 ; Hill vs. Tucker, 1 Taunt. 7; 1 Tjd. Raym. 380; Anderson vs. Marlindale, 1 East. 497; Scott vs. Godwin, 1 Bos. & Pul. 67; Baker vs. Sewell, 6 Mass. 460; Converse vs. Symmes, 10 Mass. 379; Ziele & Becker, vs. Campbell’s Ex’trs. 2 J. Cas. 382.
    In covenant it is a general principle that no other than one who is a party to the deed can sue on it, as. the right of suit is constituted by the deed. Metcalfe vs. Rycroft, 6 M. & S'. 77. In general all joint covenantees who may sue, must join; and even if persons who were parties to the deed; but did not sign or seal it, be omitted, it is fatal, no averment of their refusal to execute the deed being made. Pelrie vs. Bury, 3 B. & C. 353; for, if a covenant be made with three persons, and although two of them did not seal the deed, yet it is not, in law, converted into a covenant with one; per Holroyd J. 3 B. & C. 356; So two covenantees must join, though one has no beneficial interest; one of two or more joint covenantees therefore, cannot sue alone; and the omission to join the other party, if he is not averred to be dead, is good on demurrer. Scott vs. Godwin, 1 B. & P. 73; Jell vs. Douglas, 4 B. & A. 374. '
   Dickinson, J.,

delivered the opinion of the Court:

It is laid down in 1 Chitty’s Pleading, 11, that “when a covenant is made with two or more parties, to pay them money for themselves or for the use of another, it is not correct to use the name of one only of the covenantees, although the others have omitted to execute the deed,” and that when joint covenantees may join they must do so. (3 B. & C. 353.) If there is any legal ground for omitting the name of one of the covenantees as a plaintiff, as his death, refusal to join &c. it is necessary to show such excuse for his non-joinder, otherwise the omission is fatal. 2 Str. 1146; 1 Ch. 497; 1 Saund. 153; n. 1. The covenant is clearly joint; James is made a party to it, upon its face, and no legal excuse is given for not making him a co-plaintiff.

It cannot be contended that the suit was in the name of those only by whom the instrument was sealed; for the declaration does not aver that it is sealed by any, either of the plaintiffs or defendants. It is true, they declare that defendants did covenant, but not that they covenanted by deed, or that the instrument was sealed, unless the setting it out at length in the declaration be sufficient; that it is not, all the authorities concur. The case of Van Santvoord & another vs. Sanford 12 J. R. 197, is directly in point; there, as in this instance, the agreement was set out in hcec verba concluding with “witness our hands and seals,” and even there the Court would not intend that the writing was sealed. The same principle was decided in the case of Le Page vs. McCrea, 1 Wend. R. 166; also in the case of Macomb vs. Thompson, 14 J. R. 207. The Courts say, that in the absence of the words, “indenture,” “deed,” or “writing obligatory,” all of which import that the instrument was sealed, there must be an express averment that it was sealed; and that the word “covenant” or “agreement” does not import it as sealed. There is a distinction between covenants in deed and covenants in law, and to show that it is the former an express averment is necessary. See also Cro. Eliz. 751; 3 Ld. Raym. 537; 8 Com. dig. Fait. (A. 2) Plead. 2 W. 9, 14. See also Cabel vs. Vaughan, 1 Saund. 291, note 1, where all the cases are accurately collected.

As the case is presented by the record, the omission to state that the covenant was by deed, or some words purporting it to be sealed, as well as the non joinder of James without any legal excuse for such omission, are both certainly fatal on demurrer. The judgment of the Circuit Court must be affirmed with costs.


author: Rengo, C. J.,

text:
    The State against Carey A. Harris.

      On Quo Warranto.
    The law imposes on the defendant, in a case of quo warranto, the burden of showing euch grant or authority as invests him with the legal right to the franchise in. question, unless he disclaims. '
    No person can become President of the Real Estate Bank, unless he be a member of the Directory of the Principal Bank, and of the Central Board ; nor a member of the Central Board, unless he is a Director or President of one of the Boards of the Bank; nor such Director or President, unless he is a stockholder; nor a stockholder, (during the first four years of the charter,) unless he is a citizen of this State, owning ieal estate in this State, except in the case of partners, where, one of the partners is a citizen, and owns not less than one-third of the land mortgaged to .secure the stock.
    Where a person, therefore, is called on by quo warranto to show by what right he exercises the franchise of President of the Bank, he is bound to show, in order to establish a valid legal title to the franchise, the acceptance of the charter by the corporators; that he is a citizen of the State; that he is the owner of real estate situate in the State; that he is legally a holder of capital stock in the Bank; that he is one of the Directory of the Principal Bank; that he is a member of the Central Board: aiid that he is President of the Central Board.
    As to citizenship, a simple averment is sufficient. But to show that he is the owner of real estate, he must describe the real estate, show that it is in this State, and how he derives title to it, exhibiting the 'grants, patents, deeds, records, &c., by which it is acquired.
    To show that he is a stockholder, he must show that there was a legally constituted Board of Managers, as provided by the charter; that such Board received, from the superintendents named in the charter, the subscription books, title papers, and documents, and made out a schedule, as directed by the charter; that 11,250 shares of stock appeared to the Managers to have been subscribed for, and the mortgages intended to secure them perfected to their satisfaction, and that the Managers thereupon awarded to him, or the person from whom he derives title to his stock, a certain amount of stock.
    If not an original subscriber, he must further show how he has acquired title to the stock so awarded, and exhibit the title-deeds or records by which he derives title, or show some legal excuse for not producing them.
    If he claims to have been elected a Director of the Principal Bank by the stockholders, he must exhibit so much of the ordinances and acts of the Central Board, appointing the time and place of holding’such election, and every other oidinance relating to such election, as is necessary to show that the election was legally held; and the notice given of such election; and show, by proper averments, that it was held agreeably to law and the ordinances and regulations of the Central Board; and that he received a majority of the legal votes given, and was legally qualified and in. ducted into office.
    If the election was by the Directors, to supply a vacancy, he must show that there was, at the time of election, a Board of Directors competent to elect,’ of which the place of a member had become and was vacant at the time of his election, either by death, resignation, absence from the United States, non-acceptance, refusal to qualify, or removal from office; and, in the latter case, the order, resolution, or sentence by which hb was removed; his election to fill such vacancy, and his qualification and induction into office'

      If he claimed by virtue of an appointment by the Governor, he must show the appoint, ment; and if it was made to supply a vacancy, show how the vacancy arose.
    He must also show that there was a Board of Directors for the Principal Bank, com¿ petent to transact business, and that he was elected by such Board a member of the Central Board. He must then show that there was a Central Board, legally constituted, and acting as such, and that he was, by the Central Board, elected President of the Central'Board.
    All these facts must be pleaded in legal form, and with reasonable certainty.
    The Board of Managers possessed a special authority only, particularly defined, and expressly limited; and, therefore, any person claiming a right which could only be acquired through or by their acts or proceedings, must show that the matter was within their cognizance, and that they acted in pursuance of the authority with which they were clothed.
    The Board of Managers, when legally constituted and organized, possessed the exclusive right of determining, in the first instance, upon the sufficiency of the security offered by the subscribers for stock, and the amount of stock each had secured and was entitled’ to.
    Consequently, their decision is to be held as determining, •prima facie, the sufficiéncy of the security, and the right of each subscriber to the stock awarded him, as well as the amount rightfully held.
    And such subscribers as were finally determined by the Board of Managers to be entitled to stock, became ipso facto stockholders.
    It is therefore sufficient for the original stockholder to show his citizenship, ownership of real estate, the appointment and organization of the Board of Managers, his subscription for stock within the time limited by the charter, and that the Managers received the subscription books, &c., and made a schedule, and determined that he was entitled to a certain amount of stock.
    If he has been divested of his stock, the State must show it by replication.
    And in order to show his right to the office of President, he need not show that the several members of the different Boards, by election by which he derives title:, were either citizens of the State, or stockholders, or Directors dejure, but only that in each instance there was a Board, acting under color of a legal right, and in every respect legally competent to make the election.
    If there was any incapacity, disqualification, or want of qualification in the Boards, the State must show it.
    The law presumes those who act in such capacities, under color of right, as possessed of every requisite qualification, and that their acts are authorized and valid, until the contrary appears.
    It is also necessary, in order to show an acceptance of the charter, after stating the award of stock, and notice thereof given by the Board of Managers, to show the election of Directories and of a Central Board, and the organization of the Bank by the election of Presidents.
    If a vacancy in the office of Director, to fill which the defendant was elected, is stated to have been caused by the Directory refusing to admit to his seat a person elected Director, because there had been no legal transfer of stock made to him, the defendant cannot also set up in his plea that such person was not a citizen of the State; the Board not having adjudicated as to that matter when they decided on his claims to a seat, nor taken that as a ground for refusing him his seat.
    Where an ordinance of the Central Board’ required all transfers to be entered on the transfer book of the proper office, before an assignee of stock could become a stock. . holder, such ordinance could not be disregarded by the local Boards. If no transfer book had been provided, no person became a stockholder by any transfer.
    If, after judgment of ouster, the defendant still continues to exercise the office, under any title obtained before judgment, he will be attached for contempt.
    A writ of quo warranto issued against Carey A. Harris, requiring him to show by what warrant he exercised the office of President of the Real Estate Bank. The defendant first filed one plea, to which a demurrer was’sustained; and he then filed three pleas, tu each of which the State demurred. The objections to the pleas will be understood from the decision of the Court. The demurrers were argued by- ■

    Ashley, for the State:
    Fowler, Contra:

   Rengo, C. J.,

delivered the opinion of the Court:

This is a writ of quo warranto, requiring the defendant to show by what warrant he exercises the office of President of the Real Estate' Bank of the State of Arkansas. The defendant appeared to the action, and filed a plea, setting forth the authority by virtue of which he claims the right to exercise said franchise; which, on demurrer thereto, was adjudged insufficient, and leave granted the defendant to answer over; whereupon, he filed three separate pleas to the action, each purporting to show a distinct authority for his exercising said office. To these pleas the plaintiff filed a demurrer, assigning therein specially numerous and various causes of demurrer. The defendant joined in the demurrer; and the legal questions arising thereupon being argued by counsel, as well on behalf of the plaintiff as the defendant, were submitted to the Court, and are thus presented for our consideration and decision.

It will be remembered that the writ of quo warranto, which the State may issue at will and of right, is emphatically a demand made by the sovereign upon some individual, to show by what right he exercises some franchise appertaining to the former, which, according to the constitution and laws of the land, he cannot legally exercise, except by virtue of some grant or authority from the sovereign; and that in such case, the law imposes upon the defendant the burden of showing such grantor authority as invests him with the legal right to such franchise. And therefore the defendant, in answering such demand of the Stale, unless he disclaim all right to the franchise in question, and deny that he has assumed its exercise, must show such facts as, if true, completely invest him with the legal title to it; otherwise, the law considers him a usurper, and denounces judgment against him, leaving the franchise to be held by the State, or such other person as may have a valid legal title thereto,-derived by or from some grant or authority from the State.

Do the facts contained in the pleadings under consideration, show the defendant invested with the legal right to hold, enjoy, and exercise the franchise of President of the Real Estate Bank of the State of Arkansas?

The-charter of said Bank restricts the right of holding the capital stock thereof to citizens of the State of Arkansas, owning real estate situate therein, during the period of four years from the date of the charter, which was approved on the 26th day of October, 1836, except in the case of partners, where one of the partners is a citizen of this State, and owns not less than one-third of the property taken as security for the stock based thereupon. (Sec. 13, 20).

The right of becoming a Director is restricted to such persons as are stockholders; and the right of becoming a member of the Central Board of Directors, is limited to those who are members of the different Boards of Directors of said Bank; and again, the right to become President of the Bank, is further restricted to the three Directors who are members of the Board of Directors, of the Principal Band, and also of the Central Board of Directors of said Bank.

The defendant, therefore, to establish a valid legal title to the franchise in question, is bound to show:

First, The acceptance of the charter by the corporators;

Secondly, That he is a citizen of this State;

Thirdly, That, he is the owner of real estate situate in this State;

Fourthly, That he is legally a holder of capital stock of said. Bank:

Fifthly, That he is a Director of the Board of Directors of the Principal Bank;

Sixthly, That he is a member of the Central Board of Directors of said Bank; and

Seventhly, That he is President of said Central Board.

As regards citizenship, the simple averment in the plea, that the defendant is a citizen of this State will be sufficient. But to show that he is the owner of real estate situated in this State, inasmuch as that fact must depend upon a grant from the United States, or some grant or concession confirmed by their authority, and the defendant whether he be the grantee, or confirmee,' or derives his title thereto by direct conveyance from the grantee or confirmee ; or by and through other intermediate conveyances, or by descent, devise, or other legal transfer, can only establish his title by exhibiting the deeds, or records by which it is acquired; all of which the law presumes to be in his possession; consequently as he has their legal custody, and is presumed to know the facts^ by which he can, establish his title to the estate, better than his adversary, he must, according to the well settled principles of pleading, by appropriate averments in his pleading, describe the real estate owned by him, show that it is situate in this State, and how he derives title thereto, so that the Court may see and determine- whether or not he is the legal owner thereof, and if necessary to the attainment of justice, that an issue may be formed thereupon as to that,fact. In this respect, the defendant’s pleading is defective and insufficient. '

According to the provisions of the charter, capital stock of the Bank could be acquired originally by citizens of this State only, (except in cases embraced by the proviso to the 20th section of the charter) who subscribed therefor, at one of the places named in the 4th section and within the time prescribed by said 4th section of the charter; who were in good faith owners and possessors of land situate within this State, which land or a part thereof was in cultivation, or on which the subscriber then- resided and had his homestead-, with the intention ofextending the cultivation and-improvement thereof as required by the 15th section of the charter; and caused the same to be appraised according to the requisitions of the 6th section, and secured the stock so subscribed for, by mortgages of such land, and by bends executed to the Bank in conformity with the provisions of the 15th section of the charter, perfected to the satisfaction of the managers, appointed and acting according to the directions and prescriptions contained in the 5th section. Upon such securities being approved by the managers as sufficient, and- the amount of stock to which each subscriber was entitled, being by them ascertained arid adjusted, in the manner prescribed by said 5th section of the charter, and a schedule made by said managers, as required by the section last mentioned, every subscriber, whose security was so approved and whose subscription had been so adjusted, according to the obvious design and meaning of the provisions of the 5th and 7th sections of the charter, is to be considered the holder, of so much of the capital stock of said bank, as appears to have been thus secured and awarded to him, and entitled to all the benefits accruing therefrom, and subject to all the responsibilities incident thereto, until he voluntarily parts with his stock, or is legally divested of it in some manner authorized by law. It follows therefore that the defendant, according to the principles before stated, is bound to show by appropriate averments in his pleading in response to the demand of the State, that there was a board of managers as contemplated by the 5th section of the charter; that such board was legally constituted in pursuance of, and according to the provisions in said 5th section contained; that said managers received from the superintendents named in the 4th section of the charter, the books of subscription together with the titles and other documents accompanying the same, and made out a schedule therefrom as directed by said 5th section: That eleven thousand two hundred and fifty shares of the capital stock of said bank, appeared to said managers to have been subscribed for, and that all mortgages intended to secure the same had been perfected to their satisfaction, and that said managers thereupon awarded to him, or (according to the fact) to the person from whom he derives his title to the stock, (if he is not a subscriber therefor) a certain amount of the capital stock of said bank, and in the latter case, show further how he.has acquired title to the stock, so awarded to another ; and exhibit the title deeds, or records, by and through which he derives title to the stock in question, or show some legal excuse for their non-production, so that it may appear to the Court, that .he is the legal holder of the stock, and that the same has been awarded, and if transferred,. that it has been legally transferred to him in the manner prescribed by the charter and according to the provisions of law.

If the defendant claims to have been elected a director of the bank, of the board of directors for the principal bank at Little Rock by the stockholders themselves, he must show the ordinance of the central board of directors appointing the time and place for holding such election, and the notice thereof, as well as every other ordinance or act of the, central board relating to such election; that is, he must exhibit so much of the ordinances and acts of the central board as are necessary to show that such election was legally held, and by proper averments show that it was held agreeably to law, and in conformity with, and in pursuance of the ordinances and regulations of the central board, and that he received a majority of the legal votes given at such election, and was thereupon legally qualified and inducted into said office. But if he claims the office by virtue of an election, by the board of directors, to supply a vacancy therein,he must show that there was at the time of his election a board of directors competent to elect, of which some prior incumbent of the office was a member and whose place had become and was vacated, and continued vacant at the time of his election by the board, either by his death, resignation or absence from the United States, non-acceptance, refusal to qualify, or removal from office, and in the latter case, the order, resolution or sentence, Toy virtue of which he was removed, must be shown, and he must also further show his election to fill such vacancy, and his subsequent legal qualification and induction into said office. If he claims the office by virtue of an appointment by the Governor, he must in like manner show the appointment; and if it be to supply a vacancy, show how the vacancy arose.

The defendant must also show that there was a board of directors, for the principal bank at Little Rock, for the transaction of business competent thereto, and that he was selected by such board a member of the central board of directors; and then show that there was a central board of directors, constituted according to the provisions of the charter, and acting as such, and that he was by such central board, elected President of the central board of directors.

All of these facts the defendant is bound to show because his title to the office in question depends upon their existence. And they, like all other facts pleaded, must be set forth in legal form and with reasonable certainty, so as to show in the defendant, prima facie, the legal title to the franchise in question, and form the basis of an issue, if the attorney for the State shall deem it proper to controvert the truth of the facts as pleaded, or admitting their truth, to show other matter in avoidance, or which estops the defendant from claiming title to the office.

That we may not be misunderstood as to the view which we have taken of the subject before us, we deem it proper to add, that we consider the managers whose appointment is authorized and required by the 5th section of the charter, as possessing a special authority only, particularly defined and expressly limited, and therefore, any person, claiming a right which could only be acquired through or by their acts or proceedings, must show that the matter was within their cognizance, and that they acted in pursuance of the authority with which they were clothed: That the board of managers, when legally constituted and organized, possessed the exclusive right of determining in the first instance, upon the sufficiency of the. security offered by the subscribers for stock, and also the amount of stock each subscriber had secured and was entitled to according to the rules prescribed in the 5th section of the charter: consequently their decision as to the sufficiency of the security and the amount of stock to which those who subscribed therefor, during the period limited for subscriptions, upon the first opening of the books of subscription, were severally entitled, must be considered as determining prima facie, the right of each subscriber to share or not share the capital stock of said bank, as well as the amount which those who appeared to them entitled to share the stock, had respectively secured to their satisfaction, and thereby acquired the right to hold. And, in our opinion, such of the subscribers as by the final determination of the board of managers were admitted to be entitled to stock, became ipso facto stockholders, and were thereupon respectively entitled to all the rights, privileges and immunities conferred by the charter upon the stockholders in said bank. And therefore in pleading to show his legal right to stock, such original subscriber is only bound to show that he was a citizen of this State, (or is embraced by the proviso to the 20th section of the charter) and the owner of lands situate therein: That a board of managers was appointed and organized, according to the provisions of the 5th section of the charter; that such board received the books of subscription, title deeds, mortgages and bonds from the superintendents named in the 4th section of the charter, and made a schedule as directed in the 5th section thereof, and determined that he was entitled to a certain amount of the capital stock of said bank, with proper averments, showing that his subscription for stock was made within the time limited by the charter: These facts are sufficient in law to create a legal title to stock, and notwithstanding the holder thereof may be divested of his right, it is not necessary for him to show it, but the State, if she wishes to take advantage of it, must show the fact by way of replication to the defendant’s pleading. We do not however deem it necessary to express any opinion as to the grounds upon which, or the mode of proceeding by which, a stockholder may be divested of his stock, as that question is not legitimately presented by the pleadings before us.

We also think it proper to state that the defendant, in order to show a legal right to exercise the office of President of the Bank, needs not show that the several members of the different boards of directors, by and through whose election or selection, he derives title to the office, were either citizens of the State, or stockholders, or directors de jure, as the law presumes those who act in that capacity under color of right, as possessed of every requisite qualification, and that their acts are authorized and valid until the contrary appears; and therefore, in this respect, his pleading will be sufficient, if it shows in each instance a board of directors acting under color of legal right, and in every other respect legally competent to make such election or selection, as the case may be, leaving their incapacity, disqualification or want of qualification, if any exists, to be shown by the State in avoidance of the right so shown by the defendant. The defendant however, as to the facts necessary to be stated as well as the mode of stating them stands precisely in the attitude of every other suitor in Court; and therefore he is only bound to show in the first instance such facts as, if true, confer upon him a legal right to exercise the franchise in question. But like other suitors, he is bound to show, by his pleading, all deeds, ordinances, records and written documents, without which he could not acquire or possess the legal right to hold or exercise the franchise; and if he fails to do so, without showing some valid excuse for not doing it, his pleading must fox this cause be deemed insufficient.

The defendant then offered an amended plea. The State, upon written exceptions objected to its being filed; and the exceptions were argued by

Ashley and E. L. Johnson-, for the State:

Pike, Contra:

After consideration the Court held, that the plea was bad, in not proceeding, after stating the award of stock, to show notice thereof given by the board of managers, the election of directories and of a central board, and the organization of the bank by the election of President.

And they further held it bad, because it set up the fact that Collins who had been elected a director, and his seat refused him, and Harris elected'to fill the vacancy, was not a citizen of the State; a matter as to which the boards had not adjudicated, when they decided on his claims to his seat; and not taken by them as one of the grounds for refusing him his seat.

And because it stated that the transfers from the original stockholders and others, whose assignee Harris was, were not entered upon a transfer book; for it was held, that the ordinance of the central board was peremptory, and could not be disregarded by the local boards ; and that if no transfer book had’ been provided, no person had become a stockholder by any transfer which had taken place; and that a transfer book must be opened, and the transfer entered on it, before the transferees could become stockholders.

This explanation of the views which we entertain in regard to the legal requisites of the defendant’s pleading in the case before us, and of the principles upon which some of our conclusions arc based, we think sufficiently explicit to prevent any misconception thereof, and therefore we deem it unnecessary to say more on the subject.

The rule as to prolixity in pleading does not dispense with the statement in a concise and legal manner of such facts as are indispensable to show a legal right to the thing demanded, or a valid legal defence against the right claimed, or demand made by the plaintiff, nor can any pleading containing nothing more be legally objected to on account of its length-

From this exposition of the law it will be perceived at once, that no one of the pleas of the defendant contains all of the facts essential to show a legal right in the defendant to exercise the franchise of President of the Neal Estate Bank of the State of Arkansas; and therefore the demurrer thereto is well taken, and must be sustained.

They therefore refused leave to file the plea: whereupon the defendant declined offering any further defence, and judgment of ouster, was entered accordingly.

And at a subsequent day of the term, the State showing by affidavit of her attorney, and it appearing on examination of the Cashier of the bank that the defendant was still acting as President of the bank, under an election held before judgment of ouster pronounced, the Court ordered a rule to go against him, to show cause why he should not be attached for contempt for exercising the office under such warrant after judgment of ouster pronounced ;' but refused to compel him to give security that he would not exercise the office in future.


text:
    Humphries and Shoemaker against Goulding.
    Error to Pulaski Circuit Court.

    Where A. Covenants to give B. a piece of ground, and the privilege of the house on it, for him and his wife to use, in attending to their affairs and those of A., and, in consideration of the use and occupation of the house and lot, B. covenants to keep the house in good order-, and have the cooking and washing of A. done; A. to find three-fourths of the provision, and B. one-fourth; the covenants are dependent and concurrent, the consideration continuing from day to day, so long as B. should fulfil his stipulations.
    In a suit by B. on this covenant, a breach, that he performed his covenants so long as A. would permit or suffer him to perform; and that A. did not nor would give him the ground, is wider than the contract, and therefore bad.
    By such a breach, B. claims the land as an absolute gift, whereas A. was only to give him the conditional use and occupation for a certain time.
    And if the breach further avers that he was disseized and dispossessed by A., this is inconsistent with a previous averment of non-compliance by A., to wit: that “A would not give him the ground, nor the privilege of the houseand so is bad for repugnance.
    Moreover, a special averment of request by B. to be put in possession of the house and ground, was necessary.
    Covenant, bj Goulding. The instrument- on which the suit was founded, was in substance as follows: “Articles of agreement, áte. We, Humphries and Shoemaker, agree to give Goulding a certain piece of ground, and the privilege of the house, for him and his wife, for use, in attending to their affairs and ours.” The ground was then described, and stated to be about two acres. “ I, the said Goulding, for and in consideration of the above named privileges, do agree to have the house kept in good order, the cooking and washing done for the said Humphries and Shoemaker, in good time and good order. He, the said Humphries, is to furnish the three-fourths of the provisions we live on until the first day of January, 1841. I, the said Goulding, agree to furnish the one-fourth, until the time above named.”
    The declaration stated the covenant almost in its words, and averred that Goulding had always kept the covenant on his part, as far as they would suffer him to perform them; and alleged, as breaches, that they would not give him the tract or lot of ground, though he was always ready and willing to receive it; nor would they give him the privilege of the house for the use of him and his wife, nor furnish any provision, although he offered to keep the house in good order, and to have the cooking and washing done for them in good time and good order, and to furnish one-fourth of the provisions: that they refused to let him perform his covenants,-but, with force and arms, entered into and dis-seized and dispossessed him of the house and ground, after he had done and performed a great deal of work and labor about the ground.
    The defendants craved oyer, and demurred to the declaration, for variance as to the name of Goulding. The demurrer was overruled, and they pleaded six pleas. The plaintiff demurred to all. The demurrer was overruled as to the first, and sustained as to the others. Issue was joined on the first, and the case tried by a jury. Verdict and judgment for the plaintiff, one hundred and fifty dollars.
    The case was'argued, on points not involved in the decision, by—
    Hempstead & Johnson, for plaintiffs in error:
    Blackburn, Contra:

   Dickinson, J.,

delivered the opinion of the Court:

This action is instituted upon an agreement to give Goulding the use of a certain lot of ground, also of a house, which he, together with his wife, was to have the privilege of oócupying in common with Hum-phries and Shoemaker, until the first day of January, 1841. In consideration of the privilege of using the ground and occupying the house, Goulding was to keep it in good order, and haye the cooking and washing of Humphries and Shoemaker also done in good order and in good time. They were to find three-fourths of the provisions; Goulding the remaining fourth. The agreement is vaguely drawn, but the intent.of the parties is easily collected. The contract was dependent and concurrent, the consideration continuing from day to day, so long as Goulding should continue to fulfil his stipulations: whenever he failed in any part of (he consideration, he was no longer entitled' to the enjoyment of any of the privileges for which he cove-nan ted. The plaintiff, in his declaration, avers performance of his covenants, so far as the defendants would permit or suffer him to perform; assigning, as a breach, that “the defendants, or either of them, did not nor would give unto him the said tract or lot of ground in the indenture specified, although he was ready and willing to receive the same; nor did nor would they or either of them give him the privilege of the house, for the use of him, said Goulding, and his wife; nor did either of them, the said Humphries and Shoemaker, furnish three-fourths of the provisions,, or any.part or parcel;” with an averment that “he, said Goulding, was ready and offered to keep and fulfil his part of the covenant, but the said Humphries and Shoemaker refused to let or suffer him so to do;” and “that they, with force and arms, entered into and disseized and dispossessed him of the said house and lot, after he, the said Goulding, had done and performed a great deal of work and labor in and about the lot of ground, after the making of the indenture or deed, and before the institution of this suit.”

The defendants below pleaded six pleas. To the first, covenants performed, there was an issue: verdict and judgment thereon for the plaintiff. To the other five pleas, a demurrer was sustained. The plaintiffs in error contend, that the first fault in pleading is in the declaration, and that if the pleas are bad, they are good enough for a bad declaration. As judgment must be given upon the whole record, it becomes necessary to ascertain first if the declaration is defective in substance; for if so, it cannot be aided by the plea to which there was issue. We have already given what we deem the proper construction of the contract, so far as the intent and motives of the parties can be gathered from its stipulations and language.

It is an established rule, that, in covenant, all things must be pleaded according to their legal effect, particularly where, as in this instance, it would, by a literal construction of the words used, operate as an instrument of a wholly different character, and convey a very different estate from what the parties obviously intended from its whole tenor. In all such cases, a mistake in stating its legal effect, or extending the breach so as to give it a different meaning, is fatal on demurrer. The averment in the declaration is, that the “ said defendants, or either of them, did not nor would, after the making of the said indenture or deed, give unto the said Goulding the said tract or parcel of land;” thereby claiming it as an absolute gift, whereas they are only to give him the conditional use and occupation for a certain specified time. Here the breach is larger and more extensive than the contract, and consequently varies from it. The averment in the breach, that he was disseized and dispossessed, with force and arms, of the house and ground, is inconsistent with the previous averment of non-compliance by Humphries and Shoemaker, and being a material allegation, is defective for its repugnancy. It is also uncertain as to time, whether the disseizin was before or after the first day of January, 1841. The contract was clearly executory. The first act was to be done by Humphries and Shoemaker, in delivering possession of the ground and the privilege of the house. There is no day specified for its commencement, and there could be no liability until there is a refusal to comply with its stipulations. There is no averment of a special request by Goulding, of Humphries and Shoemaker, for the possession and use of the ground and house, which is necessary, before a complete right of action can appear in the declaration.

We are of opinion that the declaration is defective in substance. Judgment reversed, and case remanded, with leave for the plaintiff to amend his declaration, if he shall desire it; and for other proceedings.


author: Ringo, C. J.,

text:
    The State against Lemuel D. Evans.

      On Quo Warranto.

    The object and effect of a writ of quo warranto are either to oust the defendant of the franchise exercised, if he fails to show in himself a complete legal right to its exercise ; or, if the franchise has been once legally granted, and afterwards forfeited, to seize it into the hands of the State.
    But no precedent can be found where it was ever issued for the purpose of restricting or preventing any one legally possessed of a public office or franchise, from exercising any right, authority; or privilege, incident thereto; or claimed by virtue thereof.
    The writ cannot be used to prohibit or restrain a public officer, or person -exercising a public franchise, from doing any particular act or thing, the right of doing which is claimed by virtue of his office or franchise, and constitutes but a portion of the rights, powers, and privileges incident thereto.
    Consequently, where a Special Judge is commissioned to try certain cases, particularly mentioned, the writ will not lie to inquire into his authority to try only one or more of those cases, but only to oust him of the office altogether.
    A writ of quo warranto issued, commanding the defendant to show “ by what warrant he claims to exercise, and exercises, the office of Judge, in a certain cause pending in our Circuit Court in and for said county of Pulaski, wherein William E. Woodruff is appellant, and Eliza B. Howell, administratrix de bonis non of the estate of William C. Howell, deceased, is appellee, being an appeal upon exceptions from our Court of- Probate in and for the said county of Pulaski; and also in a certain other cause pending in our said Circuit Court, on the Chancery side thereof, wherein Ann I. Crittenden is complainant, and William E. Woodruff is defendant, being a petition for dower; and proceeds to sit upon the trial of said causes, and to hear, adjudicate, and determine the same; it being represented to us that such claim of authority, act, and proceeding of the said Evans are wholly illegal, unauthorized by, and contrary to, law, and that there was not, nor is there, any legal or constitutional'disqualification existing in the Honorable John J. Clendenin, the Judge of our fifth judicial circuit, whereof the said county of Pulaski is one, why he should not sit upon the trial of said causes, and hear, determine, and adjudicate the same.” To the form of the writ, no objection was made by the defendant, who appeared and pleaded that the Judge of. the fifth judicial circuit of' this State had, on the 4th day of June, 1841, officially certified to the Governor sundry causes then pending for adjudication in the Circuit Court of Pulaski county, in said circuit, on the trial whereof he was disqualified to preside: and that' the cases mentioned were of the number certified, and that the ground of disqualification to preside in the cases mentioned, as certified by said Judge, was his connection by affinity to one of the parties to the proceedings; and that the Governor on the 10th day of June, 1841, by commission in writing, under his hand and the great seal of State, of which commission pro-fert was made, duly appointed and commissioned him “special Judge of the Circuit Court of the fifth judicial circuit of Arkansas, to try and decide the causes in said State’s writ of quo warranto mentioned', together with sundry other causes' so certified as aforesaid, at the adjourned term of said Circuit Court (then) to be holden on the second Monday in June of the present year, at the Court house in the city of Little Rock in the county of Pulaski.” That he took the proper oaths of office on the 14th day of June, 1841, which were duly endorsed on the commission and certified; and that he,-on the same day, by virtue of the warrant aforesaid, entered upon the discharge of the duties of said office and continued in the exercise and discharge thereof until the final adjournment of said term, on the 29th> day of the same month, when his said commission expired, as lawfully he might.
    The replication of the State admitted the facts set forth in the plea, and stated, by way of avoidance, that the wife of William E. Wood-ruff, who was a party to each of the suits mentioned in the writ, and the wife of the Judge by whom the cases were certified to the Governor, were first cousins, and in that degree related by consanguinity, and that there was no other relationship whatever between them, and that said Woodruff and Clendenin were not, in any wise, related to each other l>y consanguinity, and that there existed no other relationship between them, by affinity, than that produced by their respective intermarriage with persons who were first cousins by consanguinity as aforesaid; that Judge Clendenin had never been of counsel, or interested in either of the cases, mentioned in the writ, and that the sole cause of his certifying them to the Governor, was the supposed relationship by affinity within the fourth degree, between him and said Woodruff; and that by reason thereof, and for no other cause whatever, the defendant was appointed special judge.
    To this replication the defendant filed a demurrer, assigning special causes of demurrer, upon which issue was joined by the State.
    Ashley and Watkins, for the State:
    It would seem that the only question arising on the demurrer in this case, is, whether the Court will vacate the commission of a Special Judge, as to some of the cases set out in his commission, without vacating the whole commission. It is not the object of the State, on this writ, to vacate the entire commission of the defendant as Special Judge.
    The appointment of a Special Judge being in derogation of the authority of the regular Judge, who, in the absence of any showing to the contrary, is presumed by law to be qualified to try all causes in his circuit, all the circumstances requisite to that appointment must not only exist, but they must be apparent on the face of his commission. The certificate of the Court or Judge, in the first instance, to the Governor, should specify the particular cause, or causes, if there be more than one, and the reason of the disqualification in each case. And the commission of the Special Judge, based upon such certificate, should set forth the particular cause or causes which he is thereby empowered to try and determine. In this view of the matter, we apprehend that the commission of a Special Judge may well be void as to one or more particular causes specified in it, and good as to the others.
    Suppose a particular cause is improperly certified by the regular Judge, under a mistake of law or fact, as that he was related to one of the parties, or was interested in the suit, or bad been of counsel, when in point of fact he had not been of counsel, o.r was mistaken in point of fact as to the other causes of disqualification: a commission, based upon such certificate, is duly issued to a Special Judge, to try that cause: clearly, a quo warranto is the only and the proper mode of inquiring into his authority to try that particular case; and we see no good reason why it should be otherwise, because his commission embraces certain other causes, in which the validity of his appointment, and his right to sit are not.questioned. We regard it as the same thing as if a separate commission had issued as to each particular cause certified; because there' exists no reason why the Governor should specially commission the same man or men of law knowledge in all the cases. He might commission a different individual to try the different causes, though, from motives of policy or economy, he probably would not do so, unless a reason existed.
    Gilchrist, Contra:

   Ringo, C. J.,

delivered the opinion of the Court:

The pleadings, although they are in some respects rather uncertain and informal, are believed to be substantially good, if the facts disclosed are such as in law authorize the writ, or enable the State to require the defendant to show his warrantor authority to preside upon the trial of and adjudicate the cases therein mentioned. The first question, therefore, to be determined, is, whether the action or legal remedy for the wrong supposed to have been committed, has not been' misconceived? It must, we think, be conceded, that the common law regards the proceeding by writ of quo warranto as the most appropriate remedy for the King, by which he may at pleasure require any subject exercising a public franchise or authority which he cannot legally exercise without some grant or authority from the crown, to show by what warrant or authority he exercises it, and thereupon demand and have a judicial trial and determination of the legal right of the defendant to exercise such office or franchise; and that; by analogy, the State here may in like cases have the same remedy. But here, as in England, the object and effect of the proceeding must be either tq oust the parly defendant of the franchise, if he fails to show ia himself a complete legal right to its exercise, derived from or under the authority of the State, or, if the franchise has been once legally granted, and has been forfeited by the defendant or those through whom' he derives title to it, to seize it into the hands of the State. But it is believed that no precedent can be found, where this writ was ever issued for the purpose of restricting or preventing any one legally possessed of a public office or franchise, from exercising any right, authority, or privilege incident thereto, or claimed by virtue thereof. It is a legal proceeding, authorized exclusively for the purpose of investigating and determining, by judicial authority, the legal right to a public office or franchise, but is not nor ever was authorized by the common law to be used as the.legal instrument of means of prohibiting or restraining a public officer, or person exercising a public franchise from the doing of any particular act or thing, the right of doing which was claimed by virtue of .such office or franchise, and constituted a portion only or an integral part of the rights, powers, and privileges incident thereto. For example, although it is the appropriate legal proceeding to oust or remove from office, by judicial authority, a person who is ineligible to the office pf Judge of the Circuit Court, or who has not been legally elected, appointed, commissioned, or qualified to hold such office, yet if the office be held by a person eligible thereto, who has been legally elected, or appointed, commissioned, and qualified to hold it, he cannot by such proceeding be legally prohibited or prevented from taking cognizance of and adjudicating any suit or proceeding instituted and pending for adjudication in any Court which he is by law authorized to hold, although such Court may not legally possess jurisdiction of the matter, or authority to adjudicate and determine the controversy. So, if the commission be special, to hold plea of and adjudicate and determine certain cases particularly mentioned and described, a portion only of which he can legally adjudicate and determine, and he assumes jurisdiction over all of the cases so mentioned and described, notwithstanding the want of legal authority in him to adjudicate and determine a part of them, he cannot be legally restrained or prohibited therefrom as to Jthe cases only which he has no legal right to take cognizance of, try, and decide, by any proceeding upon a writ of quo warranto; because, the object and effect of the proceeding in such case would not be to oust or divest him of the office itself, but only to prohibit him from exercising a power incident to the office in regard to a particular case; thus conceding to the defendant the legal title to the office, and denying only his legal right to exercise it over a particular case, or in reference to some particular matter or subject, which is not and never was the legitimate office or object of such writ, or the proceedings thereupon authorized b/ law.

The defendant shows that the Judge of the fifth judicial circuit, embracing the county of Pulaski, had officially certified to the Governor the fact of his disqualification to preside on the trial of sundry cases then pending in the Circuit Court of said county, which were specially designated, and among which were the cases mentioned in the writ; and that-the Governor thereupon appointed and commissioned specially the defendant, for the trial and determination of the cases so certified, , which were also specially enumerated in his commission, including with others the cases mentioned in the writ; and these facts are not controverted by the State, but are, by her replication, admitted to be true. The defendant therefore, from aught that appears in the pleadings before us, is eligible to, and legally possessed of the office of Judge of the Circuit Court, and notwithstanding his office and authority are limited to the trial and determination of the cases specified in his commission, he was unquestionably invested with legal authority to hold the Circuit Court in which such cases were pending, for their trial and determination, and in reference thereto, was clothed with all the powers appertaining to said Court, and was by law to preside therein pending their trial and determination, unless prevented by some legal remedy applicable to the case, and interposed, prosecuted or presented by the parties themselves, instead of the State, if in fact he had no legal jurisdiction of, or right to try and determine a portion only of the cases mentioned in his commission.

The writ before us does not require the defendant to show by what warrant he exercises the office or franchise of Judge of the Circuit Court in and for the county of Pulaski, but simply demands of him to show by what authority he exercises said office in respect to the two cases therein mentioned, being a part only of the cases'he was commissioned specially to try. Nor does the replication question his legal right to the office itself, but simply denies the disqualification of the regular Judge of the fifth judicial Circuit, to adjudicate the cases mentioned in the writ, thus-attempting, as it were, to divide the office, and to consider it as a distinct office depending upon a separate warrant in reference to each case, which the judge is commissioned specially to try and determine, contrary to the fact, as well as every principle of law and justice. This principle, if admitted to be true, might subject the officer to the vexation and expense of exhibiting his authority in every case pending for his adjudication, and a judgment in one case would be no bar to the demand made of him in another, nor could any judgment of ouster from office, or other legal judgment, that we are aware of, be pronounced against him in such case.

And therefore we are of the opinion that the legal remedy for the wrong, if any has been committed by the supposed unauthorized and illegal certification, to the Governor by the regular judge of the Circuit Court of Pulaski county, of the cases mentioned in the writ, has in this proceeding against the defendant been misconceived. And for this reason the demurrer to the replication must be sustained.


text:
    Byrd against Cummins.
    ERROR to Pulaski Circuit Court.

    In a declaiation upon'the following instrument; “Received April 11, 1839, of R. C. Byrd by credit of my accounts and by cash in hand paid $350, which I bind myself jo refund to said Byrd or cause to be placed to his credit on a judgment when obtained against him, as security for C. D. in favor &c.,” a special request to refund or place to the credit of A. B. is necessary.
    And this, though the declaration avers that Byrd has had judgment in his favor in the suit, and though the declaration contains the common averment, “although often requested.”
    The money was Held, on such a contract, to be refunded on request, or appropriated to payment of the judgment. 'It was for Byrd to determine whether he would wait for the happening of the contingency, or require the money to be refunded, which he might have done at once.
    Although the defendant has no right to oyer, yet if he demands and the plaintiff grants it, the defendant is entitled to take the whole instrument as part of the declaration.
    This was an action of assumpsit. Byrd complained that Cummins, having brought suit, as attorney for Sarah Chandler, in Pulaski Circuit Court, against Byrd as security for Alexander W. Cotton, together with John H. Cocke as security for Cotton, in an action of debt on a bail bond, became indebted to Byrd by credit allowed him on his accounts with Byrd, and by cash, in the sum of $350, made a certain writing, dated-April 11, 1832, and thereby acknowledged to have received of Byrd the sum of $350 by credit on accounts and cash, and bound himself to'refund to Byrd, or cause to be placed to his credit on the judgment, when the same should be obtained in the suit aforesaid, the said sum of $350. The declaration then stated, that Byrd obtained judgment in the Circuit Court against Said Sarah Chandler, who sued her writ of error, and at the July Term, 1S38, of the Supreme Court the judgment was affirmed : So that Cummins became liable to- repay the money &c., but has not paid, though often requested &c.
    No proferí was made of the writing mentioned.
    The defendant craved oyer of the writing mentioned in the declaration, which the record states was granted by filing the original. At the next term Cummins demurred for a supposed variance between “said supposed writing filed on oyer,” and the declaration. The writing was not set out in, or copied into, the demurrer, or any other pleading. But the clerk copied in the record a paper in the following words: “Rec’d April 11,1832, of Richard C. Byrd, by credit of my accounts, and by cash in hand paid, the sum of three hundred and fifty dollars, and which I bind myself to refund to said Byrd, or cause to be placed to his credit, on a judgment, when obtained, against him as security for A. W. Cotton, in favor of Sarah Chandler. Wm. Cummins, attorney for SaraK Chandler.” And on the margin of this paper on the transcript the clerk endorsed, “Cummins receipt filed Nov. 16, 1840.”
    The Court sustained the demurrer.
    Argued, upon points not involved in the decision, by
    Pike, for plaintiff in error:
    "W. and E. Cummins, Contra :

   Dickinson, J.,

delivered the opinion of the Court:

The declaration is in assumpsit, and upon this a writing, “Rec’d April 11, 1832, of Richard C. Byrd, by credit of my accounts and by cash in hand paid, the sum of three hundred and fifty dollars, and which I bind myself to refund to said Byrd, or cause to be placed to his credit on a judgment when obtained against him as security for A. W. Cotton, in favor of Sarah Chandler. Wm. Cummins, attorney for Sarah Chandler.”

Cummins held the money subject to the order of Byrd, to be refunded to him if he demanded it, or appropriated to the payment of the judgment if obtained against him. It was for Byrd to determine whether he would wait for the happening of the contingency, or require it to be refunded to him; the latter he could have done at once. But until it shall appear that Cummins was requested to refund the amount received, or place it to Byrd’s credit, no right of action 6an accrue.

There is no averment in the declaration of a special request by Byrd of Cummins; such request is the gist of the action) and must be averred before any complete right of action can appear from the declaration. Com. Dig. Plead. C. 69, 73; 1 Saund. 33; 1 Str. 88; 5 T. R. 409; Com. Dig. Condition 10, 11. The general averment “ although often requested so to do,” being matter of form and not traversable, is not sufficient when actual request is necessary to be stated.

The' argument, that the defendant below could not avail himself of the oyer given, is untenable. It was granted by the plaintiff, and the defendant is entitled to take the whole instrument as part of the plaintiff's pleading. Doug. 476; 6 Com. Dig. 199. Whether there was a variance or not, between the instrument as set out on oyer and the declaration, is wholly immaterial in the decision of the case, as the omission of the averment of special request is fatal on demurrer.

The judgment of the Circuit Court must be affirmed with costs.