author: Mr. Justice .Faikohild

text:
    Danley and Johnson, ex parte.
    Upon the adoption and ratification of a constitution by tho people of a territory, or of a new constitution by tho people of a state, as the fundamental law, no person can exercise any official function in the executive, legislative or judicial departments, otherwise than is provided for by such constitution: and if no provision is made therein for the continuance of existing officers, they cease to be such.
    It is not a question for judicial determination, or for that peculiarly, to hold that a proposed constitution has been ratified or adopted as the fundamental law— that being the exercise of a political power, which the judicial department alone is not competent to declare other than as a matter of political history or cognizance: but as a matter of political cognizanee this court knows that it exists by virtue of the constitution adopted by the convention of tho people of this state,, on the 1st June, 1861, and must take notice that all the departments of the government are acting solely under the authority of this constitution.
    The constitution adopted on the 1st June, 1861, being, then, the constitution of this state, and the governor, at that time, being continued as governor, by force of the constitution, only until the next general election, to be held on tho first Monday of October next, it is the duty of tho sheriff to advertise an election for governor according to law; and the mandamus should hove been granted.

      Petition for Mandamus to lion. J. J. Clendenin.

    GaelaND & RaNdoupii, for petitioners.
   Mr. Justice .Faikohild

delivered the opinion of the court.

At the general election of 1860, a governor of this state was elected, whose terin of office, under the constitution then in force, would have continued till 1864. But Christopher C. Danley and Richard II. Johnson, residents and voters of Pulaski' county, supposing that the constitution adopted by the state convention on the 1st of Juno, 1861, required the election of a governor on the first Monday of October, 1862, and ascertaining from Thomas Fletcher, sheriff of the county, that he would not advertise such an election unless compelled thereto by legal authority, applied to the judge of the circuit court of Pulaski county for a mandamus against the sheriff, commanding him to make such advertisement. Upon the avowal of the sheriff not to give public notice, by proclamation, throughout the county, that a governor of the state was to be elected, the petition should have been sustained if the new constitution so abridged the term of office of the governor that was elected in 1860, as to require a governor to be elected at the general election of 1862. The circuit judge did not, however, think it clear that this was the effect of the constitution of 1st June, 1861, and refused to grant the práyer of the petitioners, whence the subject has been properly referred to this court: and it is here to be ascertained and decláred whether the governor that was elected in 1860, and to continue such till 1864, is, bofore the expiration of his original term of office, liable to be succeeded by a governor that may be elected on the first Monday of October, 1862.

The question pending is to be decided solely upon view of the terms and meaning of the new constitution, for beyond that, and unsupported by it, no person can be governor, or exercise any official function in the executive, legislative or judicial departments of state authority, if that constitution be the fundamental law of the state. And that this constitution is the foundation and cause of the exercise of all authority, cannot be denied by a court that is created by the constitution, and is continued by its permission. We may decide upon the legality of acts, and pronounce upon the validity of laws, the test being whether the act or the enactment is conformable to the constitution: we may declare what is the meaning of the constitution, according to the fair and legal rules of construction, where the meaning is not so obvious as to preclude an attempt at construction; but a constitution is not to be declared by a court to be valid or invalid for the reason that it is the beginning of authority, and is itself the standard by which offices, privileges and rights are to be exercised and determined. This may be plainer by supposing the new constitution to be the origin of our existence as a state. In that case it Avould be evident that no one could fill the office of governor without being made so under and in accordance with the provisions of the constitution, for without the constitution there could be no governor. So, when the former constitution was displaced oy the existing one, the latter became the source and measure of all offices, and of their- extent and continuance, as if there had been no .state government prior to the constitution of 1861. For this reason it was provided in the old constitution that “ all officers, civil and military, now holding commissions under authority of the United States, or of the territory of Arkansas, shall continue to hold and exercise their respective offices until they shall be superseded under the authority of tho state.” So, the new constitution provides that “ all officers, civil and military, now holding commissions under the authority of this stale, shall continue to hold and exercise their respective offices until they shall be superseded under the authority of this, state, in pursuance of the provisions of this constitution, or the ordinances passed by this convention.” Without the first provision the United States and territorial officers could not have held and exercised their offices after the adoption of the constitution of 1836: nor could the officers of the state, at the date of the adoption, by tho state,' of tho constitution of 1861, have been held to be officers under tho constitution without the provision above quoted, that continued their offices and authority. When tho constitution of 1861 becamo the constitution of the state, the governor elected under the constitution of 1836, ceased to be such by virtue of. his election in 1860, but must have since remained governor by virtue of some clause in the constitution that continued his office and authority till they should be suspended under tho authority of the state, in pursuance of the provisions of the constitution, or of the ordinances of the convention. Tho governor will, then, continue to bo governor so long as the constitution of 1861 authorizes him to hold and exercise his office,' and no longer, if that constitution be tho constitution of the state. This latter condition, and the duration of the authority of the governor under the constitution of 1861, remain to be considered.

It is not a question for judicial determination, or for that peculiarly, to hold a proposed constitution to be a ratified, an adopted constitution, the existing fundamental law. If this court were sitting under the constitution of 1836, and the question was whether the constitution of 1861, proposed by the convention, had been ratified by thé state and adopted as its constitution, and the decision should affirm the validity of the new constitution, the decision would be made by a tribunal not authorized to exercise judicial authority: for, upon the principle of the decision, no pretended court would be a court .unless constituted by, and acting under, the new constitution. So, if this court bo a court pi’ovided by the constitution of 1861, it cannot entertain tho question, as one of judicial enquiry, whether that constitution be the constitution in force, for, unless it be so, this court is not a judicial tribunal, and cannot decide any question of constitutional, statutory; or common law. It rnust follow that tho recognition of tho fundamental law of a state is an exercise of political power which the judicial department alone is not competent to create nor to declare, other than as a matter of political history or cognizance. But as a matter of political cognizance we know that this court is acting as a tribunal created by tho constitution of 1861, that its members have sworn to support it as the constitution of tho state: and as a matter of political information we must take notice that all the departments of tho state government have been and are acting solely under tho authority of this constitution: and no question can be made bu,t that it is tho ratified constitution of tho state, and adopted aa such, by its sovereign power.

The constitution proposed by the convention, from its adoption by that body on the 1st of Juno, 1861, being then tho constitution of this state, and tho governor, at that time, being continued as governor only by force of tho constitution, and as long as it provides, we have only to ascertain, from tho constitution, the term of continuance. No provision is made in the new constitution for the continuance in office of tho governor for the term for which lie was elected. In this particular the constitution deals differently with him than with some other officers of the state. For by the 7th section of article VI. of the constitution, it is provided that tho first appointment of judges of the supreme court, shall he. made at the session of the general assembly noxt before the expiration of the terms of the j udges then in office. The 9th section of the same article directs that the first election of clerks of tho circuit court shall be held at the general election next before the expiration of the commissions of the present incumbents. The same provision is made concerning presiding judges of the county court by the 12th section of the same article. "Respecting justices of the peace, the 16th section of tho same article holds this unmistakable language: “ The first election for justices of tho peace under this constitution shall take place at the next general election, and those in office at this time shall continúe in office until their successors arc elected and qualified.” So, by tho two following sections it is declared that: “The constables now in office shall continue until their terms expire, and the first election under this constitution shall he held at the next general election,” and “ the qualified voters of eacli county shall elect one sheriff, one coroner, one treasurer, and one county surveyor, for the terra of two years, at the election next before the terms of those now in office expire.”

Why special recognition was thus made of these existing terms of office, and provision made for their continuance to specific times, while the office of governor, the offices of secretary of state, of auditor and treasurer, and perhaps of other offices, should be passed by without mention, must remain a matter of speculation. Though private interest and feeling might excite curiosity, an enquiry would not likely be of public interest, and is not a subject for judicial investigation. But it is evident that the convention realized the distinction, for the 5th section of the schedule is: “The next general election for officers of this state, under this constitution, not otherwise herein provided for, shall be held on the first Monday of October, A. D. 1862, in the manner now prescribed by law.”

The governor is an officer of the state under the constitution of 1861, whose election was not otherwise jnwided ior than that it should be had on the 1st Monday of October, 1862, and it is the duty of the sheriffs of the several counties to advertise such election according to law. Sufficient ground was shown in the petition to the judge "of the circuit court of Pulaski county to require him to compel the sheriff of that county to make the advertisement, and a mandamus will be issued by this court to the circuit judge, commanding him to grant the prayer of the petitioners.


source: Caselaw Access Project

author: Mr. Chief Justice

license: Public Domain

text:
    Delony vs. Delony et al. Ex’rs.
    Deed of gift of slaves to B, to be hold for the me of the grantor during life, then for tho support of B and his children during his life, and upon his decease to belong to such child or children as survivod him ; and if’no child or children survived him, then to the plaintiff. B died leaving a child surviving him: Meld, that the property vested absolutely in such child at the moment of the death of B.
    Deed of gift of slaves and other personal property to M, to be held for the use of the grantor during life, and if at tho decease of M, she should have no child or children surviving her, then all tho property to belong to the plaintiff. M died without issue surviving her: Meld that upon the death of M tho property vestod in the plaintiff, the limitation over not being upon an indefinite failure of issue.
    Where it is shown by competent proof that the attesting witness to an instrument of writing is out of the jurisdiction of tho court, or dead, the hand-writing of tho mater may be proved — tho attesting witness having subscribed his name by making his mark, which it is presumed cannot bo proved or identified, like the hand-wri ting of an attesting witness. But where a witness meroly states that ho had hoard that the attesting witness had gone to another state, and had since heard that he was dead, this is not sufficient to admit secondary evidence of the execution of the instrument.

      Appeal from, Sevier Oweuib Oouvt.

    IIon. Len. B. Gkeen, Circuit Judge.
    Gakland & Kandolcti for appellant.
    Jennings, Watkins and Knigiit for appellees.
   Mr. Chief Justice

English delivered the opinion of the Court.

On the trial of this cause in the court below, the plaintiff, Alchymy Delony, introduced in evidence, without objection, the following deeds, under which he claimed the two slaves in controversy, Joe and Jack:

let Deed — •“ Be it known that 1, Ann Delony, of Madison county, Alabama, influenced by parental affection for my son and grandchildren herein named, do give to my son, Henry E. Blount and his personal representatives or legal successor, my negro boy Joe, about seven or eight years old, as and for a slave for life, yet on the uses following: First, that durin g my life, he shall permit me to enjoy the services or hire of said boy as I may direct for my own subsistence and support, or so much thereof .as I may deeim needful: Secondly, that at my decease he hold the said slave for the support and education of his daughter and such other child or children as may be born to him and his own support during his life: Thirdly, that at his decease then the said slave is to belong to said Maria Ann, his daughter, and such other child or children to be to him born and who shall survive him: Fourthly, if at his decease there be no child or grandchild or children of his surviving, then the said slave is to belong. •to my grandchild Alleomy Delony, son of Lewis H. Delony. Witness my hand'and seal, this 15th day of March, 1834.”

■ 2d Deed — “Be it known that I, Ann Delony, of Franklin county, Alabama, influenced by the affection that I have for my grandchildren herein named, do give to my granddaughter, Maria Ann, (wife of William E. Bross) and her bodily heirs or children my negro man Joe, about twenty-six years of age, aud also my negro man Jack aged about thirty years, also all my household and kitchen furniture, and whatever else of personal or real property I may have at the time of my death, yet on the rises following: first, that during my life I am to be permitted to enjoy the services or hire and use of all the above-mentioned property as I may direct, for my own subsistence and support, or as much thereof as I may deem needful: and secondly, if at the decease of my said granddaughter, Maria Ann, (wife of William E. Bross) she should have no child or children surviving her, then all of the aforementioned property to belong to my grandchild Alleomy Delony, son oí Lewis II. Delony. Witness my hand and seal this 21st day of October, 1852.”

It was proven that Mrs. Ann Delony, the maker of the deeds, remained in possession of tbe slaves until the time oí her death, 4th November, 1854; after which her son, Edward B. W. Delo-ny, against whom this suit was commenced, obtained possession of them. lie died while this cause was pending in the court, and his executors were substituted as defendants.

It was also proven that Iienry R. Blount died about the year 1852, leaving him surviving his only child, Maria Ann, dud that she died without issue 16th July, 1856.

The court below, in refusing instructions moved by the plaintiff, and in giving others proposed by the defendants, involving the construction of the two deeds, misapplied the rule established in Moody vs. Walker, 3 Ark. 146, and approved and followed in Watkins vs. Quarles and wife, 23 Ark. 192, that a limitation over upon an indefinite failure of issue is void.

By the terms of the first deed, Maria Ann, who was living at the time of the death of her father, Iienry R. Blount, took the slave Joe absolutely. The contingency upon which the plaintiff, Alcliymy Delony, was to have the negro, never happened, according to the proof. He was tb take the slave, under the fourth provision of the deed, not upon an indefinite failure of Blount’s issue, but if at the time of his death there was no child or grandchild of his surviving. But his child, Maria Ann, was at that time living, and at the moment of his death the property vested absolutely in her, by the terms of the deed.

The counsel for the plaintiff, (appellant here,) insists, in argument,- that the first deed had become inoperative at the execution of the second, but no such question is presented, by the record, to be determined by us. Both deeds were introduced by the plaintiff ; and the first instruction moved for him covered both deeds. If the second instruction was framed with the intention of having-the court to declare that Mrs. Ann Delony, by remaining in possession of the slave, Joe, for many years after the execution of the first deed, re-acquired title to him, by lapse of time, the court properly refused it, because her possession was consistent with the provisions of the deed, as by it she retained the use of the slave for her life. Bat we suppose that such was not the design of the instruction, as it covers both slaves. The instruction was perhaps intended to counteract the effect of an instrument which the defendants were, permitted to introduce, against the objection of the plaintiff, which will be noticed below.

The language of the second deed, second provision, is, that “if at the decease of my said granddaughter Maria Aud, etc., she should have no child or childi’en surviving hor, then all of the aforesaid property to belong to my grandchild Al'komy Delony, etc.”

Here the limitation over to the plaintiff' was not upon an indefinite failure of the issue of Maria Ann, that is, upon the failure, or dying out of her issue at any future period of time, however remote, but he was most clearly to have the property if she had no child surviving her at the time of her death. See Slaughter vs. Slaughter, 23 Ark. 356; Robinson vs. Bishop, Id. 375. And it was proven that she left no child.

On the trial, the defendants offered in evidence the following instrument.

“I do not lay any claim.'to Rachel, Jack and Joe, only when .Rachel and Cate were sold by James II. Harrison, deputy sheriff', they were sold to pay my debts: Charles Malone bought them at my sale, and when E. B. W. Delony bought the said negroes back from Malone, he Malone made said E. B. W. Delony agree that 1 should keep them in possession as long as I lived, and at my death said negroes are to return to E. B. W. Delony or his heirs. May 15th, 1828.

ANN DELONY. [Seal.,]

hie

DANIEL N MORGAN. ”

mark.

To prove the execution of the instrument, defendants introduced Wm. II. Turner, who was asked if he knew where Daniel Morgan, the attesting witness, was ? and he said that he did not know of his own knowledge, but had heard that he went to North Carolina several years ago, and had since heard tlfht he was dead. Whereupon he was permitted by the court, to state, against the objection of ’the plaintiff, that he was acquainted with the handwriting of Mrs. Ann Delony, and that the signature to the instrument was in her hand-writing. Upon this proof of its execution, the defendants wore permitted to read the instrument in evidence, against the objection of the plaintiff.

It was not sufficiently proven that the attesting witness was out of the jurisdiction of the court, or that he was dead, to admit secondary evidence of the execution of the instrument. Turner liad heard that ho went to North Carolina; and he had after-wards heard that he was dead. But how, or of whom he heard this, ho does not state. It is not shown that any diligence was used to ascertain where the witness was, or whether he was in i'act dead or living. No inquiry appears to have been made for him at his residence, or at any other place. It does not appear that his relations, or other persons, supposed to have knowledge of him, were applied to for information. See 1 Greenlf. Ev., sec. 574.

Had it been shown by competent proof that the attesting witness was out of the jurisdiction of the court, or dead, the instrument might have been admitted upon proof of the signature of the maker; for the attesting witness being an illiterate person, as it may be inferred,•> and having subscribed his name by making his mark — -a simple cross mark — it is not to be presumed that his mark could bo proven or identified like the hand-writing of an attesting witness. 1 Stark, Ev., (Notes by Shars.) 519; Carrier vs. Hampton, 11 Iredell, 311; Woodman vs. Segar, 25 Maine, 92 ; Valentine vs. Piper, 22 Pick., 90; Morgan vs. Curtinius, 4 McLean, 368.

The appellant, for the errors above indicated, should have been granted a new trial.

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


author: Mr. Chief Justice ENGLisn

text:
    Berry vs. Lathrop & Williams.
    The declarations and representations of one person, that another was his partner in the purchase of goods, are not admissible to charge the latter, unless tliero be a sufficient foundation laid for the admission of such declarations. (Berry vs. Barnes et al. 23 Ark.,411.)

      Appeal from Drew Circuit Courrt.

    Hon. Jora 0. Murray Circuit Judge.
    HutCiiinsoN, for appellant.
    HaReisoN, for appellees.
   Mr. Chief Justice ENGLisn

delivered the opinion oí the Court.

Lathrop & Williams, merchants and partners, brought assump-sit against James D. Berry, in the Drew circuit court.

There were two counts in the declaration : the first upon a note which the count alleged to have been made by the defendant Berry and one Allen M. Scott, as merchants and partners in trade, by their firm name and style of A. M. Scott & Co. The second count was for goods, wares, and merchandise, alleged to have been sold by the plaintiffs to the defendant and Scott.

' The case was tried upon issue to the plea of non assumpsit, sworn to, and a verdict in favor oí the plaintiffs upon the first count, for the amount of the note, and in favor of ,the defendant on the second count. A motion for a new trial wa3 overruled, and the defendant excepted and appealed.

The evidence in this case was not materially different from the evidence in Berry vs. Barnes et al., 23 Ark., 411, and the principles of law applied to that case govern this.

■ There was really no competent proof that Berry was a partner of Scott, or that Scott was authorized to purchase goods upon the credit of Berry, or to bind him as a partner, or otherwise, by note.

The court erred in admitting in evidence, so much of the depositions of Snedeker and Burr as related to the declarations and representations made by Scott, in their presence, to the effect that Berry was his partner, there having been no sufficient foundation laid for the admission of Scott’s declarations to charge Berry.

It is not deemed material to decide any other question'presented by the record.

The judgment must bo reversed, and the cause remanded with instructions to the court below to grant the appellant a.new trial


author: Mr. Justice Compton,

text:
    Cowser vs. Tatum.
    A note payable to A. B. or Bearer, and endorsed in writing by tlio payoe to a third person, may pass by delivery, and the bolder may sue the makor in his own ñamo as such.

      Appeal f rom Union Cvreuit Court.

    lion. LeN B. Green, Circuit Judge.
    Garland & Eandolpit, for appellant.
   Mr. Justice Compton,

delivered the opinion of the court.

This suit was brought by Tatum, the holder, against Cowser, the maker of a promissory note, payable to James Grambles or hearer, and transferred by endorsement in writing to William J. Locke.

It is insisted for Cowser, that although the note was transferable by delivery merely, and might have so passed to Locke, yet,-having been transferred to him by indorsement, it could not after-wards pass by delivery to Tatum so as to enable him to. sue in his own name. To this proposition we do not assent. It is the better opinion, both upon principle and by authority, that where p note, as in this case, is originally payable to bearer, and is indorsed, the holder may, as against the maker, declare upon it as bearer, or as indorsee, at his election. (Story on Prom. Notes (4th ed.,) sec. 132; and if, as bearer, he' may sue the maker, no good reason is perceived why he may not, as bearer, transfer the note by delivery. The indorsement of such a note does not destroy its negotiability by delivery. The holder may, at his option, act either as indorsee, or as bearer, in suing the maker, or in transferring the note to a subsequent holder.

The principle in Block vs. Walker, 2 Ark. 4, has no application to this case. There, the instrument sued on was not a promissory note payable to bearer, but was a common money bond, which, under our statute, was transferable by assignment only.


author: Mr. Justice Compton

text:
    Watkins vs. Martin.
    Where a party has recovered a judgment and received the amount of it from the defendant, ho will not be permitted to revorse the judgment on error.

      Motion to quash Writ of Error.

    Stillwell & Woodruff, for plaintiff.
    'WilliaMS & MARTIN, for defendant.
   Mr. Justice Compton

delivered the opinion of the Court.

The plaintiff in error seeks to reverse a judgment which ho recovered against the defendant in the court below, for $1,140, residue of debt, with damages and costs: and the defendant pleads in bar that the plaintiff caused an execution to issue on tlie judgment, which was afterwards, and before the issuance of the writ of error, fully paid off and satisfied.

It is insisted, on demurrer that the matters alleged in the plea, are not sufficient to bar the writ. We think they are. Where a party has recovered a judgment, and received the amount of it from the defendant, he will not be permitted to reverse the judgment on error. Laughlin vs. Peebles, 1 Penn. (Penrose & Watts,) 114. The counsel for the plaintiff has referred us to Barthelemy vs. The People, 2 Hill, (N. Y.) 248, but there is nothing decided in that case which conflicts with the view taken in this. There the judgment was against the parties seeking the reversal. They had been sentenced to confinement in the penitentiary, and it was insisted that the sentence of the court was satisfied, because it appeared on the face of the record that the term of confinement had elapsed. To this objection the court said there were two answers: first, they were not only sentenced to confinement, but each was also fined, and it was not apparent on the record that the fine of either had been paid: and second, the payment or satisfaction of an erroneous judgment against a party could never be allowed as a bar to a writ of error, even in a case where no restitution could follow as a legal consequence, and the reason given by the court is, that such a judgment against the party “is an inj ury per se, from which the law will intend he is, or will be damnified by its continuing against him unreversed.” In the case before us the judgment is not only satisfied, but it is also in favor of the party seeking the reversal.

The demurrer is overruled.


text:
    Clayton vs. State use, etc.
    Whether nil officer will be permitted, in all casos, to amend his return on a writ of execution, after proceedings against him for false return or negligence, it is unnecessary to decide in this case: because the proceedings had been quashed before the motion to amend was filed: and the attitude of the parties, then, was as though none had been commenced.
    No very definite rule can be laid down as governing amendments,in all cases; but an officer should always be permitted, in furthoraneo of justice, to amend his return on an execution, according to the facts, unless, by the allowance of the amendment, manifest injustice would be-dong,
    Where the return upon a writ of execution showed a levy upon slaves, and a delivery bond taken and forfeited, the sheriff is permitted to amend by striking out the return and inserting rvulla bona.

      Error to Monroe Circuit Court.

    Hon. Earl C. Bronaugh, Circuit Judge.
    Clayton, for plaintiff.
    Gabland & Randolph, for defendant.
   Mr. Justice Compton,

delivered tbe opinion of the court.

The writ of error in this case is prosecuted to reverse a judgment of the circuit court refusing to permit the sheriff of. Desha county to amend his return on an execution.

The execution was issued on the 30th July, 1859, and returned to March term, 1860. The return shows that it was levied ou two slaves, and that a delivery bond was taken and forfeited. At the return term, the delivery bond was quashed, on motion of the principal in the bond; and afterwards, at March term, 1861, the plaintiff in the execution, having giving previous notice, moved for summary judgment against the sheriff and two of the sureties in his official bond, under the provisions of Ch. 97, of Gould’s Digest. At the same term of the court, the proceedings for judgment were quashed for irregularity; and thereupon, the sheriff suggesting that the return on the execution was made under a ' mistake of the facts, moved for leave to amend it by striking out that which was made, and inserting in lieu thereof, “no property of the within named defendants to be found in my county,” which the court refused. After the motion to amend, and before it was determined, the plaintiff in the execution served one of the sureties in the sheriff’s official bond with notice, that at September term, 1861, he would again move for judgment.

Amendments are within the sound discretion of the court, and though there arc cases where it has been held, in some of the sister states, that the exercise of this discretion will not be reviewed on error, the practice with us has been otherwise. Thompson vs. Bremage, 14 Ark., 59; Thompson vs. McHenry, 18 Ark., 537; McLarren vs. Thurmond, 3 Eng., 313.

But it is insisted, on the authority of Brinkley vs. Mooney, 4 Eng. 445, and Mullens vs. Johnson, 3 Humph., 396, that an officer will not be permitted to amend his return after proceedings against him for false return, or negligence in the execution of the writ. 'Whether this is so, or not, in all cases, we need not enquire. It is sufficient to say that the case before us does not come within the rule laid down in the cases cited. True, there had been proceedings against the sheriff' for negligence in executing the process, but they had been quashed — leaving nothing pending at the time the motion to amend was made. After the quashal, the attitude of the parties toward each other was as though no proceedings had been commenced; and the fact that pending the motion to amend, the plaintiff in the execution gave notice that the proceedings would be renewed at the succeeding term of the court, does not affect the case.

It is also insisted that the amendment should not be allowed, because it goes to the extent of striking out the whole return, and making, in its stead, a totally different one. We have been referred to no authority that supports this proposition: and we can preceive no good reason for such a restriction on the privilege to amend. In Smith vs. Daniel, 3 Murph., 128, decided by the supreme court of North Carolina, the return showed a levy and sale, and the court permitted the sheriff to amend, by striking out the return, and inserting in lieu of it, one of nulla bona. A similar amendment was allowed in the subsequent case of Dickinson vs. Lippett, 5 Iredell, 560. And in Brinkley vs. Mooney, 4 Eng., 445, this court said: “ The sheriff will always be allowed to amend his return (before suit brought for a false return) so as to make'it conform to the truth of the case, for the correctness of which he is responsible.” Here, the rule would seem to be too broadly stated. Cases may occur where the amendment would be disallowed, though no proceedings lor false return had been instituted, as for instance, in Miller et al. vs. Shackleford, 4 Dana, 264. Indeed, no very definite rule can be laid down, as governing all cases — the most that can be said is, that, in furtherance of justice, an officer should always be permitted to amend his return, according to the facts, unless, by the allowance of the amendment, manifest injustice would be done.

As regards the propriety of the amendment in the case under consideration, we think there can be no serious question. In a proceeding for negligence — and the plaintiff in the execution has evinced a disposition to take steps in'that direction — the return, as made, could be used against the sheriff to fix his liability under the statute, for the amount of the execution; and to disallow, under such circumstances, an amendment that would protect him, would be unjust. On the other hand, we do not see how the plaintiff in the execution can be prejudiced by the amendment, because, if the return, as amended, should be false, he will in that case, have his remedy against the sheriff.

Let the judgment be reversed and the cause remanded to the court below with instruction to allow the sheriff to amend his return.


text:
    Harvill and Wife vs. Holloway, ad.
    A widow is entitled to dower in the undivided estate of her deceased husband, held by him and others as tenants in common — and so if the estate be a^p¿nt ten aney, as held in Menifee vs. Menifee, 3 Mng., 60. .¿f"' ,

      Appeal from Ashley Circuit Court.

    Hon. John C. Mukkay, Circuit Judge.
    Waddell, for the appellant.
   Mr. Justice Compton

delivered the opinion of the

In this case Robert C. Harvill and Mary M., his wife, filed their petition in the probate court of Ashley county for assignment of dower to the said Mary M., in the estate of her former husband, Berlin V. Holloway, deceased, who, at the time of his death, was a minor, and whose estate consisted of the one-fourth part of certain property belonging to himself and his three brothers, and which remained undivided in the possession of James L. Holloway, their guardian.

The probate court decided that Mrs. Holloway was not entitled to dower, upon the ground that the property had not been divided, and the share of Berlin Y. set apart to him in severalty. On appeal, the circuit court affirmed the judgment of the probate court, and in doing so erred. Berlin Y. and his brothers were tenants in common; and at common law the widow is dowable of an estate held by her husband and others as tenants in common. Co. Lit., book 1, chap. 5, secs. 44, 45, title, Dower. Even if Berlin V. had held as joint tenant with his brothers — and he did not — still, under our statutory provisions, the widow would be dowable, as held by this court in Menifee's adm’rs vs. Menifee et al., 3 Eng., 50.

The judgment must be reversed, and the cause remanded to the circuit court, with instructions to reverse the judgment of the probate court, and try the case de novo.


author: Mr. Justice ComptoN

text:
    Scarborough vs. State use, etc.
    The failure of an executor or administrator to present bis account, annually, for settlement in the probate court, as prescribed by the statute, is a breach of tho condition of his bond, for which any person interested in tho estate may maintain an action: but by no rule of construction can it be held, that the statute fixes tho measure of damages at tho entire value of the estate in the hands of tho executor or administrator.
    A porson interested in tho estate may recover suoh damages as he has sustained by the failure of tho administrator to malee his settlement. If no special damage is alleged and proven, he cun then recover only nominal damages.

      Error to Chicot Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Garland & Randolph, aud Stillwell & Woodruff, for plaintiffs.
   Mr. Justice ComptoN

delivered the opinion of the court.

This was an action of debt for the use of the distributees of William Scarborough, deceased, on an administration bond.

At the trial in the court below it was proven that the administrators filed in the probate court, on, the 29th day of January, 1857, their account current for settlement, which, after being continued as prescribed by law, was confirmed by the court, showing a balance in their hands of $2,843.33 3-4; and that up to the time of the trial — a period of four years — no other settle ment had been made. Upon these facts, the circuit judge instructed the jury that if they believed from the evidence that the administrators did not make annual settlements of their administration, they must find for the plaintiff the amount of the estate shown to be in their hands. This instruction was erroneous. By sec. 122, chap. 4, Gould’s Dig., it is made the duty of every executor or administrator, at the first term of the probate court, after one year from the date of bis letters, and at the corresponding term of the court every year thereafter, to present to said court an account current, in which lie shall charge himself with the whole amount of the estate, and credit himself with all sums of money lawfully expended in settling the same; and though an omission to discharge this duty is a breach of the condition of his bond, for which, under sections 139 and 191, of the same chapter of the Digest, any person interested in the estate may maintain an action, only such damage as may have been sustained by reason of tho failure to settle, at the stated periods prescribed by law, can be recovered. We know no rule of construction that would warrant us in holding that the statute, above referred to, fixes the measure of damages at the value of the entire estate ascertained to be in the hands of the executor or administrator. If no specific amount of damage is shown to have been sustained, the party injured is entitled to nominal damage only. There was no breach assigned in the declaration, alleging mismanagement and waste of the estate; but if there had been, and the jury had found the breach true, the value of so much only of the estate as was mismanaged and wasted, could have been recovered.

The instruction moved in behalf of the defendants, had no application to the case made upon the pleadings and evidence, and was, therefore, properly refused.

For the error indicated, the judgment must be reversed, and the cause remanded for further proceedings.


author: Mr. Chief Justice English

text:
    Whitney vs. Peay, Rec’r, et al.
    The state issued her bonds for the use of the Real Estate Bank, the bonds being prohibited by law from being sold for less than the par value thereof: the agents of the bank hypothecated or pledged them to the North American Trust and Banking Company for less than their par value, and the money advanced upon them was appropriated by the bank: the company transferred them, for an advance upon the amount for which they were pledged, to Holford & Co.: afterwards, in a proceeding against the company for insolvency, the debt due from the bank to the company for the money advanced on the bonds, was sold: by the receiver in chancery, under the direction of the court, to the complainant: the bonds were in the possession of Holford <fc Co., under the transfer to them, and they were charged with their estimated value in the settlement of their claims against the company. Held:.

    1. That, under adjudications entitled to respect, the disposition of the bonds at less than their par value, might bo declared illegal and void; but as the bank appropriated to its use the money advanced upon them, it is but just to conclude that she in bound in equity and good conscience to repay the money, with interest, upon a re-delivery of the bonds.
    2. Hypothecation, which is a term of the civil law, is that kind of pledge in which the possession of the thing pledged remains with the debtor, and in this respect, is distinguished from pigmis, in which possession Í3 delivered to the creditor or pawnee; and so the contract in this case was a pledge, and if valid in equity, the company held the bonds in pledge for the repayment of the money advanced, and the bank is entitled to have the bonds re-delivered on payment of the debt.
    3. A pawnee may sell or assign all his interest in the pawn — in which case the pawnee’s lien cannot bo separated either from the possession of the goods or the debt, and passes with the possession .to the assignee; and so when the North American Trust and Banking Company transferred the bonds to Holford & Co. in pledge, the debt due the company from the bank passed by the transfer, and could not be sold as the debt of the company.

      Appeal from Ptilasld Chcmcery Court.

    lion. H. F. Faikohild, Chancellor.
    Watkins & Gallagher, for appellant.

      The ground- relied on for the appellant in this case is, that although it might be true that by the hypothecation of the 500 Keal Estate Bank bonds by the North American Trust and Banking Company, to Holford, he became subrogated in equity to any claim of the Trust Company against the Beal Estate Bank, for moneys advanced upon them in the first instance ; yet Holford was a party to the suit brought in New York for marshaling and administering the assets of the Trust Company, among its various creditors, and was bound by any decree and order made during the progress of the cause. He appeared and proved his claims, including those 500 Beal Estate Bank bonds, and got his dividend. The court there set aside as a fraudulent preference, a conveyance made to him by the Trust Company of various assets, including the claim of the Trust Company against the Beal Estate Bank for this $125,000, advanced in order to secure Holford for the advances he had made to the Trust Company on these same bonds. So that Holford stands on this record in the attitude of getting his pro rata of the proceeds ot the sale of that claim to Whitney, and yet claiming that he is entitled to the entire fund.
    Hempstead, and Gabland & Bandolpjt, for appellees.
   Mr. Chief Justice English

delivered the opinion of the court.

On the 1st of January, 1810, the state issued to the Beal Estate Bank, in pursuance of its charter, 500 bonds for $1000 each, bearing interest, etc., to be sold at par, for the purpose of procuring banking capital, etc.

On the Ytli of September, 1840, the cashier of the bank, witli the approval of two of the bond commissioners, entered into a contract with the North American Trust and Banking Company, of New York, by which that company agreed to loan to the Beal Estate Bank $250,000, upon a pledge or hypothecation of the bonds above referred to, which sum was to be advanced by installments..and. repaid at stipulated periods, with interest, etc.

. In pursuance of this contract the bonds were delivered to the North American Trust and Banking Company, and it is admitted that the Neal Estate Bank received, through its agents, and Appropriated to its use, the sum of $121,33(3.59. No further sum was advanced.

About the 1st of December, 1840, the North American Trust and Banking Company pledged the same bonds to James Hol-ford & Co., bankers of London, for a loan of $325,000. After-wards, Holford became the solo owner of the debt, and holder of the bonds so pledged, by transfer from his partner.

Afterwards, upon a bill filed in the chancery court of New York, by Ceorge Manning Tracy, a stockholder and creditor, against Thomas G. Talmage, president of the North American Trust and Banking Company, alleging its insolvency, etc., it was placed in liquidation ; and .David Leavitt was appointed by the court, a receiver in chancery, to settle its a/fairs.

Pending the administration of the trust, James Holford prayed the court, by petition, that the receiver might be ordered to unite with him in a reference, pursuant to the statute of New York, of six claims presented by him against the banking company; and the claims' were accordingly referred to three referees, appointed by the court (two counsellors at law and one merchant,) with instructions to ascertain and report, in case they found any thing due from the company upon the claims, what collateral securities had been legally assigned for the security of the sums so found due from the company, and the value thereof; and that the referees deduct from the amount so found due. to Holford, the ascertained value of all such collateral securities.

The referees, after a protracted and laborious investigation, reported that the company was indebted to the American administrators of Holford, (he having died pending the investigation,) upon the six claims referred to them, for principal and interest, to 1st October, 1857, in the sum of $895,896.42.

Included in this sum was the amount advanced by Holford to the company, upon the pledge of the 500 Arkansas bonds.

The referees further reported that certain collateral securities, particularly described by them, had been legally assigned by the company 'to Holford, to secure tlie payment of the sum found due to his estate, as above; the aggregate value thereof was ascertained to be $456,200 (the separate value of each collateral security being ascertained and stated,) which being deducted from the sum found to be due to his administrators from the company, left a balance in their favor of $439,696.42.

Among the collateral securities reported by tire referees as having been legally assigned to Ilolford, by the company, were the 500 Arkansas bonds, for $1000 each, -which they ascertained to be of the actual value of $425,000, on the 1st October, 1857.

The report of the referees was approved and confirmed by the court, and a decree entered in favor of Holford’s administrators for the balance found to be duo them upon their claims, after deducting the reported value of the collateral securities, to be paid by the receiver out of the assets of the company. And it was further decreed “ that the value of the said collateral securities having been duly ascertained and credited upon their said claim, pursuant to the directions contained in the order of reference, the administrators, etc., have become, and are the. legal owners of, and legally and equitably possessed of, and well entitled, as such administrators, to all and singular the following bonds, notes, stock, etc., etc., being the collateral securities in said report particularly mentioned and described, that is to say, 500 bonds of the state of Arkansas, numbered, etc., etc., issued to the Neal Estate Bank, etc., for $1000 each,” etc., etc.

In the meantime Benjamin D. Whitney made a proposition to David Leavitt, the receiver in chancery, etc., to give $2,500, for the debt of the Eeal Estate Bank to the North American Trust and Banking Company, for moneys advanced by the latter to the former, under the agreement of, 7th Sept. 1840, above stated-The proposition of Whitney was reported to the court superintending the administration of the trust, and the court directed the receiver to accept the proposition, and to assign the debt to Whitney upon his paying therefor the sum proposed. A written assignment was accordingly made by the receiver.

Afterwards, Whitney filed a bill in the Pulaski chancery ■court, against Peay, as receiver in chancery of the assets of the Real Estate Bank, and the English executors and American administrators of Holford, accompanied by voluminous exhibits, alleging and showing the facts above stated, praying a decree against the receiver for the amount of the debt, with interest, assigned to him as above, to be paid out of the assets of the bank; and that the administrators, etc., of Holford be required to assert and litigate their claim, etc., to the 500 Arkansas bonds, etc., and that they be compelled to produce and surrender them for cancellation, etc.

Hpon the answer of Peay, containing a demurrer to the bill, and a demurrer interposed for the representatives of Holfox-d, the bill was dismissed, and Whitney appealed to this court.

The 9th section of the charter of the Beal Estate Bank, prohibiting the sale of the bonds of the state at less than the par value thereof, it might be held, upon adjudications entitled to respect, that the disposition made of the 500 bonds, in question, by the agents of the bank, to the North American Trust and Banking Company, was a transaction illegal and void. See The State of Illinois vs. Delafield, 8 Paige, 527 — affirmed in Delafield vs. The State of Illinois, 2 Hill, 160; 26 Wend., 209, 221. But the bank having thought proper to receive and appropriate to its use the money advanced to its agents by the New York banking company, upon a pledge of the bonds, it is but just and reasonable to conclude that the bank thereby became bound in equity and good conscience to repay the money so advanced to it, with interest, upon a re-delivery of the bonds.

To this extent the bank appears to have admitted its liability, by its deed of assignment, in designating the order in which its debts were to be paid, by the trustees, out of its assets, thus:— “ Sixth, in paying the principal of the bonds of the state aforesaid, the same being all the bonds of said state ever issued to said bank, except 500 bonds which were hypothecated to the North American Trust and Banking Company, a corporation in the city of New York: and by said North American Trust and Banking Company, illegally and in violation of their faith, sold or pledged to Holford & Co., of London: And Seventh, in paying the amount which was actually received by said bank on the hypothecation of said last mentioned bonds; but upon the contingency, and only in the event that said last mentioned five hundred bonds can be procured and delivered up to said trustees, upon the payment of said sum so actually received, with interest and exchange, or of whatever other amount may be legally due on said last mentioned bonds.”

The contract between the agents of the Beal Estate Bank and the North American Trust and Banking Company, was not, strictly speaking, an hypothecation. Hypothecation is a term of the civil law, and is that kind of pledge in which the possession of the thing pledged remains with the debtor, the obligation resting in mere contract without delivery: and in this respect distinguished from pignus, in which possession is delivered to the creditor or pawnee. Burr. L. Dic.; Story on Bail., sec. 288.

The contract may be properly termed a pledge, which is defined by Sir William JoNes to be a bailment of goods by a debtor to his creditor, to be kept till the debt is discharged. And by Lord Holt thus: “ When goods or chattels are delivered to another as pawn, to be security for money borrowed of him by the bailor, this is called in Latin vadium, and in English a pawn or pledge.” In the Homan law, says Story, it is called pignus. Negotiable instruments, choses in action, etc., may, by the common law, be delivered in pledge. Story on Bail., sec. 286-290.

Assuming the contract between the Beal Estate Bank and the North American Trust and Banking Company, to have been in equity, a valid one, the company held the bonds in pledge for the repayment of the money advanced to the bank; and the bank was entitled to have the bonds re-delivered to it on payment of the debt.

After the North American Trust and Banking Company transferred the bonds in pledge to Holford & Co., for a larger sum of money than it had advanced to the Beal Estate Bank on the faith of the bonds, did the company still continue to be the owner of the debt due from the Neal Estate Bank, so that it could be sold by the receiver of the company, after it was placed in liquidation, to Whitney, and vest in him a right to collect the debt?

The pawnee may sell or assign all his interest in the pawn. If he transfer the pledge to his own creditor, the latter may hold the pledge, until the debt of the original owner is discharged. Story on Bail., secs. 324, 327.

The general rule is, that lions at law on personal property exist only in cases where the party entitled to them has the possession of the goods : and if he once part with the possession, after the lien attaches, the lien is gone. Being in the nature of a security resting on property for the payment of a debt, the pledgee’s lien cannot be separated either from the possession of the goods, or from the debt; it is collateral to the debt, and it must accompany the possession. His interest may be transferred: it will pass at his death to his personal representatives, or ho may, it seems, assign over his interest in the pawn so that the assignee will take his rights and responsibilities under the contract of pledge. Edwards on Bail., 210; Jarvis vs. Rogers, 15 Mass., 408; Curtis et al. vs. Leavitt, 1 Smith (New York) R., 103.

It follows that when the North American Trust and Banking Company transferred the Arkansas bonds to Ilolford & Co., in pledge, the debt due to the company from the Neal Estate Bank, resting upon and adhering to the bonds — the pledge — passed also to Ilolford & Co., by the transfer.

After the transfer was made, the North American Trust and Banking Company could not have compelled the Neal Estate Bank to pay to it the money advanced upon faith of the bonds, because the company had parted with the bonds, and was not in a condition to surrender them to the Neal Estate Bank, on payment, as by the terms of the contract of pledge it was obliged to do.

In what better condition does Whitney stand, who purchased the debt of the receiver of the company, in liquidation % Did he purchase a greater right than the company had % Wo think not.

After the bonds were transferred in pledge to Ilolford & Co., the Heal Estate Bank had a right to redeem them by paying to them the money advanced to the bank by the North American Trust and Banking Company, with interest, unless indeed Ilolford & Co., had a right to claim a larger sum by virtue of circum" stances connected with the transfer of the bonds to them, which placed them in the attitude of innocent holders, entitled to pro. tection, which is not a question for us to decide in this case.

But the appellant, Whitney, who seems to -have been an adventurer in purchasing the debt due from the Beal Estate Bank, and who purchased it for a trifling sum compared to tlie magnitude of the debt and interest, would, if the prayer of liis bill was granted, compel the representatives of Ilolford to surrender the bonds to the receiver of the Beal Estate Bank, and receive nothing, while he would receive .the full amount duo from the bank, though the very court which ordered his proposition to purchase the debt to bo accepted, had charged Holford’s administrators with the market value of the bonds, and decreed that they had been legally transferred to him, and that his administrators were well entitled to hold them, etc.: and this decree was made after the deed of assignment referred to in the bill, and supposed by appellant’s counsel to cut some figure in the case, had been set aside for fraud.

The decree of the court below .must bo affirmed.

Mr. Justice Eaiechild did not sit in this case.


author: Mr Justice Compton

text:
    Clark et al, vs. Barnett.
    C sold to P one lialf of a parcol of land and mill, for a certain amoumt, part in cash and part on credit, and executed a bond for title on payment of the residue ; afterward P agreed to re-convcy his interest to C on certain terms, a part of which was performed; and C remained in possession of the property as sole owner: subsequently P conveyed al! his interest in the property to the complainant, who filed a bill for specific performance of- the first contract; and the heirs of C, who had died, filed a cross bill for specific performance of the second contract.

      Held: 1st. That the circuit court erred in vesting title to one half of the land and mill in the complainant, under the first contract, regardless of the second and its part performance.
    2d. That the complainants had no right to a decree cancelling the bond for title without showing a full performance of the second contract.
    It is the settled practice in this court not to disturb the decree of the court below for errors committed against a party who does not appeal from the decree. (14 Ark, 125 ; 20, ib., 626.)

      Appeal from Independence Circuit Court.

    Hon. W. C. Bevens, Circuit Judge.
    Fairchild for the appellants.
    Byers and Stillwell and 'Woodruff for appellee.
   Mr Justice Compton

delivered the opinion of the court.

On the 21st day of August, 1846, James Clark, who was then the owner of certain saw and grist mills, and nine acres of land adjacent thereto, known as the “mill tract,” agreed to sell an undivided half of the same to Thomas S. Palmer for $493.74. At the request of Clark, Palmer paid $100.00 of this sum to John Ringgold, and made his promissory note to Clark for $393.74-, the residue; whereupon Clark executed to Palmer his written obligation, commonly called a title bond, in which he bound himself to convey the premises, upon payment of the remainder of the purchase money. Under this contract Palmer went into possession, and worked the mills jointly with Clark until the 27th January, 1847, when, having become dissatisfied with the business, he entered into another contract with Clark by which, in consideration that Clark would surrender the note of $393.74, refund the $100.00 paid to Einggold, pay a certain note "Willis Brewer held against Mm, and collect and pay over to him one-half the net profits arising from the mills, while they were run on joint account, he bound himself to rcconvey his interest in the mills to Clark. Alter the making of this latter contract, Palmer ceased to participate in the management of the mills. Clark alone remained in possession and conducted the business on his own account, and for his own use. On the 24th December, 1851, Palmer conveyed his interest to John Barnett, or, as both parties admit upon the record, substituted Barnett to all his rights, whatever they might be, growing out of the transactions in relation to the mills. Clark died in 1849, and on the 5th December, 1852, «Barnett, as the assignee of Palmer, filed his bill in chancery against the heirs and executors of Clark, for specific performance of the contract of 21st August, 1846. The bill alleges full performance of the contract by Palmer, but does not mention, or in any way refer to to the subsequent contract of 27th January, 1847, under which Palmer bound himself to re-convey the premises. The heirs and executors of Clark answered the bill, resisting the relief sought, and also filed their cross bill against Barnett and Palmer, setting up the contract of 27th January, 1847, alleging a performance of it by Clark, and praying that the title bond of 21st August, 1846, might be canceled and their title quieted.

In addition to the facts already stated, it was clearly proven that Clark had surrendered to Palmer the note of $393.74, had refunded the $100.00 paid to Einggold, with the exception of $5.00, and had been left in exclusive possession of the mills, as part performance of the contract of 27th January, 1847.

On the final hearing, the circuit judge, sitting in chancery, dismissed tbo cross bill, and decreed for the complainant in the original bill, vesting him with title to an undivided half of the mills, and the nine acres of land, as specific performance oí the contract of 21st August, 1846, regardless of the contract of 27th January, 1847, and of its part performance by Clark. IIow, or on what ground the judge in the court below reached his conclusion, wo are not informed. In view of the facts of the case— and as to them there is no room for doubt or controversy- — -the decree cannot be sustained upon any established principle of law or equity — it is palpably erroneous. Palmer having received back from Clark the entire consideration, lacking the $5.00, above referred to, which he was to pay tor the premises, the effect of the decree, leaving out of view the rights of Clark’s heirs under the contract of 27th January, 1847, was to divest their title for the sum of $5.00, when they were to have $493.74, according to the terms of the contract upon which the decree oí divestiture was founded.

The .evidence, however, fails to show full payment of the several sums due from Clark to Palmer, under the contract of 27th January 1847, to the unpaid balance of which — being $5.00 of the $100.00 paid Ping-gold, the amount of the note to Brewer, and one-lialf the net profits of the mill's while they were worked on joint account — the complainant in the original bill is entitled; and until payment thereof by the heirs of Clark they cannot have the relief prayed for in the cross bill. The amount, however, of this unpaid balance cannot be ascertained upon the evidence before this court, it not sufficiently appearing what sum was due on the note to Brewer, nor what wore the profits of the mills.

Whether the witnesses, Andrew J. Clark and George J. Hodges were competent or not, it is immaterial to enquire. If the court erred in permitting their depositions to be x-ead, the error was against the complainant in the original bill, who did not appeal; and it is the settled practice in this court not to disturb the decree of the court below for errors committed against a party wlio does not appeal from the decree. Stone vs. Ringgold, 20 Ark., 526; Dooley vs. Dooley, 14 Ark., 125.

Let the decree be reversed* and the cause be remanded with instructions, to the court below, to ascertain, by reference to tho master, the amount of the unpaid balance due to the complainant in the original bill, as indicated in this opinion, and on payment being made to him of the sum so ascertained, to decree for tho complainants in the cross bill, in accordance with its prayer, and dismiss tho original bill.

Mr. Justice Faieciiild did not sit in this case.


author: Mr. Justice Faieoiiild

text:
    McIvor vs. Williams.
    Whore there aro two pre-emption claimants of tho same tract of swamp land, and one of thorn is allowed a pre-emption right by the land agent and obtains the legal tillo, no fraudulent or illegal conduct on his part in obtaining the title can prejudice the other unless the right of the latter was prior in time and superior in equity; and so, in deciding upon the rights of parties in such ease, it is the province of the court simply to determine whether, ®n account of fraud in the one obtaining the legal title perpetrated against the other, the latter was prevented from obtaining tho title, which was equitably due to him, without regard to the soundness of the pre-emption claim of the successful party.
    To entitle a party to a pre-emption of public land, his improvement must exist at the time of the application, under the law, to make the entry — if an improvement once made be destroyed, it cannot be considered as such.
    It would seem to be a perversion of terms to call land improved so as to entitle a party to a pre-emption, where tho whole existing improvement was an acre of ground deadened some four years and so grown up with vines aud bushes that it would be as much trouble to prepare it for cultivation as if it were enliroly wild land.

      Appeal from Prairie Circuit Court in Chancery.

    Hon. John J. Clwndenin Circuit Judge.

      Hempstead for the appellant.
    Williams & Martin lor appellee.
   Mr. Justice Faieoiiild

delivered the opinion of the Court.

Mclvor was permitted by the state land agent, by virtue of an alleged pre-emption right, to purchase the south-east quarter of section thirty-one, in township one south, range eight west. To divest the legal title thus obtained by Mclvor, Williams filed a bill on the chancery side of the Prairie circuit court, on the ground that, having an improvement on the land, lie was entitled to be a preferred purchaser under the pre-emption act of 16th January, 1855, upon making proof to the land agent of his right, and offering to pay for the land within sixty days from its advertisement of sale by the land agent. The bill also makes charges concerning the right under which Mclvor claimed, and was allowed to purchase the land; but it is well conceded in the argument for Williams, that, as Mclvor has the legal title, any fraudulent or illegal course taken by him to obtain his title cannot have prejudiced Williams, unless the right of the latter was prior in time and superior in equity.

It is not insisted for Mclvor that his pre-emption right was a very meritorious one, although claimed to be better, than that of Williams, and as good as pre-emptions generally have been, that have been allowed as good by the proper authorities. We might iully accord with the estimate that counsel on both sides seem to entertain for Mclvor’s pre-emption, if this court were a tribunal for deciding, in the first instance, upon the validity of pre-emp-tions or for sitting as a court of review upon the acts of officers to whom this duty is committed; but our province in this case if only to affirm the docree of the circuit court sitting in chancery, if, on account of fraud in Mclvor perpetrated against Williams, the latter, was prevented from obtaining the title which was equitably due to him; or, without regard to the conduct of Mclvor, or the soundness of his pre-emption claim, reverse the decree and dismiss the bill, because the claim of Williams is not founded upon equity.

The right of Williams is founded upon an improvement made by Haines, in 1855, and upon one which Haines bought of Graeie about the same time. Grade’s improvement consisted of what the witnesses call a shanty, made by fixing posts in the ground, with pickets of nine or ten feet in length, and in the vicinity ol the shanty from one to'three trees were deadened. The shanty was thrown down in 1855 or 1856 by a tree falling upon it, and this was the end of the Graeie improvement. It need not be taken into consideration.

The improvement of Haines was made by deadening a piece of ground and piling the' brush cut from it around the place where it was cut, but not so as to protect it as a rail fence would do, and stirring the ground and planting it in poach seeds. Dis-iriukes supposed that the ground deadened and stirred for cultivation, was in extent three or four acres. Smither says that in February, 1855, he assisted Haines to deaden and partly enclose about a quarter of an acre, and that after Haines sold the improvement to Williams, some two or three, acres were deadened for Williams. Mills was one of the witnesses to establish the pre-emption right of Williams, and, in his affidavit before the land agent, he had described the improvement as a deadening of several acres, but in his deposition taken in this case, he would not swear that the deadening amounted to one acre; but his judgment was that it was more than one acre, that it might be more than two acres, that he supposed it was between one and five acres. Britton estimates the improvement made in 1855, to have been the deadening of about an acre, and says that when lie last saw it, in 1857, it was not enlarged. Morris, who^ with another person, measured the deadening, found it to exteijd something over an acre of ground. Brantley estimates the 'deadening to be about an acre, and he and Gray, who assisted in making the improvement, depose that no addition had been made to it, up to October, 1859. Haines, in his deposition, stated that there was cleared a quarter of an acre, and that there were deadened, as he thought, about four acres.

Haines sold his improvement to "W illiams in the fall of 1855, and also agreed to deaden twenty-five acres upon the quarter-section, but failed to do so, and for his failure, was obliged to account to "Williams for the amount agreed upon as the price for such deadening.

It thus appears that the improvement upon which Williams bases his pre-emption right is the deadening of the trees on something over an acre of ground of the quarter-section of land in controversy, that this deadening was made in 1855, and it is further shown in proof that when Williams made his claim before the land agent, the ground once cut upon had so grown over with vines and bushes that it was as difficult to prepare it for cultivation as if no work had ever been done upon it; although the deadening would cause tho production of a better crop on the first year’s cultivation.

From the time of his purchase of the improvement from Haines, in the fall of 1855, Williams continued to claim it till it was offered for sale by the land agent, and his claim seems to have been generally known and respected by those who lived in tho vicinity of the land.

Such being tho claim of Williams, as shown by the testimony, two main objections are made against its allowance as an equity to prevail over the legal title, that the claim of Haines was personal to himself, and could not be transferíed to Williams, to give him any right, and that the alleged improvement of Haines was not an improvement upon which a pre-emption right can be supported.

If the improvement made by Haines had been such as it-was stated to be in the bill, or if Williams, through his contract with Haines, had made such improvement as he wished to have made, no objection to the amount of the improvement could have been properly made. Tho improvement upon which Williams wished to obtain his preference to enter the land must be considered as it was in March, 1859, when he would have had its benefit in the entry; and the whole existing improvement was of an acre of ground that had been deadened in 1855, but had so grown up with vines and bushes that it would be as much trouble to prepare it for cultivation, as if it were entirely wild land. This acre of land would yield better the first year for having been deadened and been cleared of brush, yet it would seem to be a perversion of terms to call the land improved, so as to withdraw it from the competition of a public sale, by giving it to a preferred purchaser, at a minimum price, as a recompense for labor or cost thereon bestowed.

Haines agreed to deaden land for Williams at seventy-five cents for the acre. Then, allowing to Williams the full value of his alleged improvement, it cannot have been, originally, worth more than one dollar, adjuging the worth by the cost. The Grade improvement was destroyed by a tree falling upon the hut in 1855 or 1856, and cannot be considered as any part of the improvement of Williams.

Such an improvement cannot be of the kind within the contemplation of the legislature, as fit to confer valuable rights upon its owner; and we are of opinion that it did not confer any strength or validity to the claim Williams extended over the land from 1855 to 1859.

Whether this claim would or not bear a comparison with the ■ improvement of Mclvor, allowed to be such by the state authorities, whether it was not as good as many, or most of the improvements upon which pre-emption rights have been based, and have been granted, and whether it was considered good .by the land agent, and would have been respected by an appropriation of the land to it for the lowest price, but for the entry of Mclvor, are not questions for us to decide,-and are eertaintly not matters to influence our opinion. Then, without regard to the merit of Mclvor’s claim, through which he obtained the legal title to the land in controversy, it is sufficient for the court to know that ho had the legal title, and that Williams has not shown any equitable right to interfere therewith.

The decree of the Prairie circuit court sitting in chancery, which divested the title of Mclvor, and vested tho right and title to the land in Williams, is reversed, and tho bill of Williams is dismissed —tho decree to be entered in this court.


author: Mr. Justice Fairoiiild

text:
    Wright vs. Green.
    Wliero the owner of land, in making a doadoning upon it, to increase its market valuó and throw it sooner into market, extends the deadening over his lino upon tho public land, without any design of set-tlomont upon or improvement of it, especially if the improvement is of little amount and value, ho is not entitled, under the act of 16th January, 1856, to bo a preferred purchaser of the land.

      Appeal from Pulaski Chancery Court.

    Hon. Uriah M. Rose, Chancellor.
    Watkins and Knight, for appellant.
    Garland & Randolph-, for appellee.
   Mr. Justice Fairoiiild

delivered the opinion of the court.

Joshua F. Green, being the owner of tho east half of section twenty-eight, in township one south, of range eleven west, procured Webb, the county surveyor, to lay off two hundred acres, so as to include the north-east quarter of the section, to direct his laborers where to make a deadening, which Green wished to have made, for the purpose of increasing the value and saleableness of a large tract of land which included the half section mentioned.

■ Beginning at the half mile corner on tho line between sections twenty-one and twenty-eight, Webb traced an open line between the north-east and the north-west quarters of section twenty-eight; and the deadening for Green was made by this line. Green did not own, nor assert any claim to the north-west quarter of section twenty-eight, nor was Webb instructed, nor did ho intend to obtrude his line upon that piece of land. It is, however, contended by Mrs. Green, the plaintiff and appellee in this case, that following up the line traced by Webb, Green caused a strip oí deadening to be made along the eastern side of the north-west quarter of the section, narrow at first, but continually widening, so that about an acre of ground was deadened west of the correct line of Green’s land.

This would be sufficiently established by the testimony of Mrs. Green’s witnesses, Worthen and Starbuck, were it not that two other surveyors, Langtree and Martin, were unable to find the deadening upon the north-west quarter section. However the fact may bo, and whatever favorable consequences might result to Mrs. Green from a deadening west of the open line, she has failed in showing its existence. For two witnesses against two, all of equal expertness so far as the court knows, are not sufficient to maintain the cause of a plaintiff. And if the testimony of Webb be taken into account, the preponderance of proof is against the plaintiff.

But if we were to hold it certain that the deadening alleged by the plaintiff had been made, made, as it was, to increase the market value of Green’s land, and to throw it sooner into market, without any design of settlement upon, or improvement of the north-west quarter, and especially being an improvement of so little amount and value, we should not hold it an improvement under the act of 16th January, 1855, that would give to Green, or his representatives, a right to a preferred purchase of the land.

Upon both these points the chancellor was of a different opinion from that herein given, and he accordingly divested the legal title from Wright, who had obtained it from the state, holding him as a trustee for Green.

For these errors, without regard to the qualities of Wright’s pre-emptiou, the docreo is reversed, and the plaintiff’s bill dismissed.


author: Mr. Justice Fairchild

text:
    Paty vs Harrell.
    The court can exorcise no jurisdiction in review of the acts of swamp laud agents in pre-emption eases : but if a person makes use of an official act to perpetrate a fraud upon another, ho shall be deprived of any benefit that has thereby nc- . crued to him to another’s prejudice.
    Attaching equal credibility to the statements of the witnesses on both sides, the whole testimony does not preponderate in favor of the plaintiff. In such case better is the condition of the defendant, and his legal title having been acquired without fraud upon the plaintiff, must prevail.

      Appeal from Pulashi Gha/ncery Court.

    lion. Ueiaii M. Nose, Chancellor. •
    Garland & RaNdolph, for appellant.
   Mr. Justice Fairchild

delivered the opinion of the court.

Within sixty days previous to the public sale of swamp lands made by the land agent for the Little Rock land district, in May, 1859, both of the parties to this suit produced proofs of a pre-emption right to the north-east quarter of the south-east quarter of section thirty-one, in township two south, of range one west, and each claimed the right to be the preferred purchaser thereof; hut as Paty first applied he was the successful -claimant, has become invested with the legal title to the land.

Mrs. Harrell, the plaintiff below and appellee here, conceiving her claim to the land to be paramount to that of Paty, filed a hill in the court below, to have the title divested from Paty and decreed to be in herself, in which effort she was successful, and Paty has appealed from the decree rendered against him.

According to the testimony in the case, which is ample upon both sides, Mrs. Harrell did procure an improvement to bo made upon the land in controversy : but upon this, the question arises, whether Paty obtained his title fraudulently and to the injury of Mrs. Harrell. If it were permissible to difierent parties, having improvements upon the same tract of land, to prosecute their respective claims^ every claimant would have the right to prosecute his own claim with all the diligence he could exert, and with all the skill at his command: and his success would not give his adversaries any right to question his title, if he had not acted unfairly towards their pretensions. In such a case as the one before the court, the affidavit required by the law, that there was no other improvement on the land sought for than the one presented by the affiant, would seem to exclude the idea of there being two improvements of sufficient merit to justify the claims of different persons to one piece of land; but it does not appertain to either of the parties to make this objection for each one of them has made the affidavit, and each one has adduced abundant proof of their respective claims, and of their respective improvements.

This court has often held, in this class of cases, generally upon the official acts of swamp land agents and officers, that it can exercise no jurisdiction in their review. But if a person makes use of an official act to perpetrate a fraud upon another person, he shall be deprived of any benefit that has thereby accrued to himself to another’s prejudice. This is the only ground upon which courts of chancery can interfere with the legal rights that are contested in these conflicting pre-emption cases.

The present controversy has existed between the plaintiff and the persons under whom the defendant claims, from the time she first attempted to improve the land in question. For when John M. Harrell first essayed an improvement for the plaintiff, he was encountered by Sanders, who forbid him to improve upon the quarter section of land that included the forty acre tract in,dispute, as Sanders claimed the land. Thenceforward, Sanders, Ramsey, and the defendant, persisted in making the same claim till it was recognizad as valid by the land agent in his preferred sale of the land to the defendant. Nor is there any fraud apparent in putting forth this claim, unless it result from converting an insufficient improvement into a pre-emption right.

The cases of McIvor vs. Williams, and of Wright vs. Green, decided at the present term, contain instances of alleged improvements that we held insufficient to attack legal titles, that were complained of as resting upon bad improvements. But in this case, the plaintiff has, by allegation and proof, made a good case so far as concerns the quality of her own improvement, and it may then be insisted with more plausibility that the character of the defendant’s improvement shall be taken into consideration, that its comparative insignificance, and beginning after the existence of her own improvement, may impress upon it a fraudulent character, when urged against her better and prior claim.

It is, however, unnecessary to consider this point until it shall be determined that the case of the plaintiff shall be found to stand good against the opposing testimony of the defendant.

The plaintiff claims that her right is prior to the claim of Sanders, and to the establishment of this point her evidence seems to be directed. But the defendant has met this claim with opposing evidence.

Sanders testifies that he claimed the land in controversy in July, 1856, and that, shortly after this, John M. Harrell came on to the land to make an improvement upon it for the plaintiff, when he, Sanders, notified Harrell that the land was his from purchase, and forbid Harrell from cutting upon it, and that Harrell replied, that he had not known that the land belonged to Sanders, and that he would not touch it again. Sharp gives Harrell’s reply as being that he did not wish to interfere with the right of any one.

Sanders is positive that Harrell made no improvement in 1856, and Iig never knew that she had any claim upon the land. Iiis knowledge extends to July, 1858, when he sold his right to this land, with others, to Ramsey.

Sharp says that in 1856, John M. Harrell had come to the neighborhood of the land to make improvements, and enter land for himself and for his mother, the plaintiff ; that when Sanders-forbid him from improving on the land in controversy, Harrell asked for some one to show him a corner so that he could run his line correctly without interfering with the rights of any one, and that Sanders showed him a corner and gave him a start on a line. Sharp also stated that Harrell made an improvement on land adjoining that in controversy.

Rice deposed that in November, 1857, he moved down to the neighborhood, where the parties to the suit now live, that he leased lands from Harrell, but not the piece of land in suit, but that in improving upon Mrs. Harrell’s land, he ran over on the land in controversy by mistake, and that he so told John M. Harrell. He says, also, that in November, 1857, there was no improvement on the land except one that he understood was made by the defendant.

Williams contradicts the testimony of John M. Harrell in some important particulars, but gives no date to the beginning of the improvement of Sanders, further than to say, that eighteen months before testifying, in July, 1859, there was a turnip patch on the land belonging to Sanders. He shows a continuous claim of the land from the first of January, 1858, by Sanders, Ramsey and the defendant, as a pre-emption right.

Morrison goes further back than' Sanders, or the answer of the defendant, in showing an improvement on the land in question, in 1855, and says that no work had been done on the land up to 1858, but what had been' done by Lewis, Sanders, Ramsey and the defendant. Lewis was the one from whom Sanders bought his claim to the land.

Ramsey testifies that the only improvement made by Mrs. Harrell on the land was made by Rice, and this could not have been made before the last of 1857.

According to the testimony of the defendant, Mrs. Harrell clearly had no improvement upon the land till after the turnip patch of Sanders had been-cleared, enclosed and planted. This is contrary to the case proven by Mrs. Harrell. Attaching equal credibility to the statements of all of the witnesses, Mrs. Harrell’s case is neutralized by that of tiie defendant. She is the plaintiff; the whole testimony does not preponderate in her favor ; it makes, at best, for her but a balanced case, and that is not enough. In such a state of things, better is the condition of the defendant. When to this consideration is added that of the defendant having the legal title, and that, as is seems to us, ho has obtained this without fraud upon the plaintiff, we are satisfied that Mrs. Harrell ought not to have the benefit of the decree given her by the court below, and it is accordingly reversed, and her bill is dismissed.


author: Mr. Chief Justice English,

text:
    Mary vs. The State.
    The burning necessary to constitute arson of a house at common law, must be an actual burning of the whole or some part of the house; but it is not necessary that any part of the honse should be wholly consumed; and our statute (Gould’s Dig. p. 338,) does not materially chango the common law definition of the offence: And so, an indictment merely charging that the defendant set fire to the house is fatally defective as an indictment for arson.
    An indictment charging that the defendant set fire to the house, with intent to injure the owner, is defective under section 7, p. 339, Cfould’s Dig. It should charge that the defendant set fire to the house with intent to burn it.
    Where a person attempts to burn a house by setting fire to it, but fails to accomplish such a burning as constitutes arson, he is guilty of a misdemeanor.

      Appeal from Pulaski Circuit Court,
    Hon. John J. Clendenin, Circuit Judge,

      GaelaND & KaNdolph, for appellant.
    Jordan, Attorney General, contra.
   Mr. Chief Justice English,

delivered the opinion of the court.

The appellant, Mary, was indicted for arson, in the Pulaski circuit court, as follows :

“ The grand jurors, etc., etc., present that Mary, a colored woman, slave for life, the property of Nancy Rider, late of etc., on the 18th day of November, A. D. 1861, at etc., with force and arms, feloniously, wilfully and maliciously, did set fire to a certain dwelling house of William Murray, there situate, with intent thereby then and there to injure the said William Murray, contrary to the form of the statute,” etc., etc.

She was tried upon the plea of not guilty, convicted, and sentenced to receive five hundred lashes.

Her counsel moved in arrest of judgment upon the grounds, 1st. That the indictment charged her with no offence, etc.; 2d. That the name of no person was indorsed on the indictment as prosecutor, etc.; and 3d. That there was no averment in the indictment, that her mistress had refused to compound the offence with the injured party, etc.

The motion in arrest was overruled and she appealed.

1. It is insisted that the indictment is fatally defective as an indictment for arson, because it fails to allege that the house was burned.

Arson, ab ardendo, (as it stood at common law; and independently of the provisions of acts of parliament,) is the malicious and wilful burning of the house, or out-house of another man.

The burning necessary to constitute arson of a house at common law must be an actual burning of the whole, or some part of the house. Neither a bare intention, nor even an attempt to burn a house by actually setting fire to it, will amount to the offence, if no part of it be burned: but it is not necessary that any part of the house should be wholly consumed, or that the fire should have any continuance; and the offence will be complete, though the fire be put out, or go out of itself. 4 Black. Com. 220-3; 4 Steph. Com. 141-3 ; 2 Russ. Cr. 548.

Hence, the words, mcendit et combussit were necessary, in the days of law-latin, to all indictments for arson, lb. And in the precedents founded upon the common law, and not upon statutory definitions, the words set fire to and burn, etc., are used. 3 Greenl. Ev. sec. 51; Whart. Prec. (389.)

Our statute (Gould’s Digest, p. 338) makes it arson to burn buildings, etc., which by the common law were not the subjects of arson, but does not otherwise materially change the common law definition of the offence. Thus :

Sec. 1. Arson is the wilful and malicious burning the house, or other tenements of another person.

Sec. 2. Every person who shall wilfully and maliciously bum,' or cause to be bwrned, any dwelling house, or other house

bough not herein specially named, shall be deemed guilty of cw, ->on.

Sec. 3. If any person shall wilfully and maliciously burn, or cause to be burned any state-house, court-house, prison, church, bridge, or any other public building, although not specially named, such person shall be deemed guilty of arson.

Sec. 4. If any person shall wilfully and maliciously burn or cause to be burned any steamboat, or other vessel, or any water craft whatever, etc., he shall be deemed guilty of arson.'

Sec. 5. If any person shall wilfully set fire to his own building or other property, with the intent to burn the property of any other person, and the property or building of any other person shall thereby be burned, such person shall be deemed guilty of arson. /

It may be seen that in each of these sections burning is a material element of the offence; and we think that an indictment founded upon any one of them should aver that the property was burned; and this conclusion is sustained by adjudications entitled to much respect. Cochrane vs. The State, 6 Maryland Rep. 404; Howell vs. Commonwealth, 5 Grattan Rep. 664.

But, as above shown, to sustain the allegation of bwming, it is not necessary to prove, upon the trial, that any part of the house, much less the entire building, was wholly consumed.

Tire indictment before us, though it follows a precedent to be found in 2 Arch. Cr. Prac. & Plead., 7 Ed. by Waterman, p. 710, is, we think, materially defective in not alleging that the house was burned. The precedent referred to was doubtless framed upon the English statutes.

It has been said that the words “ set tire to ” mean the same as to burn, (1 Bishop Cr. L. sec. 189; 2 East. P. C. 1020,) but it lias been adjudicated to the contrary, (6 Maryland, 405; 5 Gratt. 670,) and it is safest to follow the common law precedents.

Where a person attempts to burn a house, etc., by setting fire to it, but fails to accomplish such a burning as constitutes arson, he is guilty, by the 7th section of our statute, as well as by the common law, of a high misdemeanor. The 7th section pro is that: If any person shall set fire to any building or tenement of another with intent to burn the same, although such house or tenement may not be burned, he shall be deemed guilty of a misdemeanor, and on conviction shall be fined, etc.

The indictment before us was manifestly not framed upon this section, for the endorsement upon the indictment and the record entries, show that the prosecution was for arson. But if it was framed upon the 7th section, it is materially defective, because it charges that the appellant s'et fire to the house with intent to injure the owner, when it should have charged, in the language of the statute, an intent to burn the house. Gabe, etc. vs. The State, 1 Eng. 519.

2 & 3. The second and third grounds of the motion in arrest of the judgment are based upon the assumption that the appellant ' is indicted for a misdemeanor; and her counsel insist that arson> when committed by a slave, is not a felony.

Prior to the act of 18th Dec. 1848, Gould's Dig.p. 383-4, we had no statute defining felony, and the courts had to look to the common law to ascertain what offences were to be treated as of the degree or grade of felony, and what were to be regarded as misdemeanors.

By the common law, felony is an offence which occasions a total forfeiture of either lands or goods, or both, to which capital or other punishment may be superadded, according to the degree of guilt. Bouv. Dic.

In- this state there never was any forfeiture, as a consequence of conviction of any crime, the bill of rights prohibiting it: yet the term, fetony, was used in the statutes, and in criminal proceedings, before the passage of the act of 18th Dec. 1848, defining it, as denoting a grade or class of crime.

But it is argued by the counsel for appellant, that the term felony, as defined by the common law, cannot, with propriety, be applied to any offence committed by a slave, because a slave is legally incapable of owning property.

But this objection is obviated, when it is borne in mind that the term felony was used in this state, before the act defining it, as denoting a grade or class of crimes, and not as indicating the character of punishment attached to them.

Thus, it was provided by the Devised Statutes of 1838, p. 281-2, that: “ In all trespasses and offences, less than felony, committed by a slave, on the person or property of another person, the master may compound with the injured person, and punish his own slave, without the intervention of ahy legal trial or proceeding,” etc.

And again: “In all cases of felony, the slave committing the same shall be tried in the same court, and the same rules of evidence observed, as in cases of white persons committing the life offence; excepting that slaves may be witnesses for and against slaves.”

The act of 18th Dec. 1848, declares that: “The term “felony f as used in the laws of the state of Arkansas, is defined to be any crime, or offence, which, by the laws are punishable, either capitally, or by imprisonment in the penitentiary, or when any portion of the punishment inflicted shall be imprisonment in the penitentiary.”

Slaves were expressly excepted out of the penitentiary code (Gould’s Dig. p. 385, sec. 7,) and were not, at the time the act defining felony was passed, and are not now, subject to imprisonment in the penitentiary for any offence. Hence, it is insisted by the counsel for the appellant, that arson by a slave, not being punished capitally, is not a felony, but a misdemeanor.

It is probable that the legislature, in passing the act defining felony, had not slaves in their minds, and did not intend to embrace' crimes committed by them in the definition. But if it must be concluded that they did, from the scope of the language employed, we think the proper construction of the act is, that it determines the offences that are to be'treated as felonies, in criminal proceedings, without regard to the exemption of a particular class of persons from the character of punishment which is made generally the criterion of felony. Thus arson is a felony within the definition, because persons generally committing the offence are punishable by imprisonment in the penitentiary; and the class or grade of the offence being thus established, a slave committing arson, must be prosecuted as for a feloiiy; though he is not to be punished by imprisonment in the penitentiary.

Thus, in support of the reasonableness of this construction, arson was classed as a felony at common law, because it was punishable generally by a forfeiture of the property of the criminal, but it was nevertheless a felony in persons destitute of property, and who could not be subjected to forfeiture as a punishment, but were punishable otherwise.

The consequence of a different construction of the defining act than that above indicated, would be to authorize the master to compound offences committed by his slave other than such as are punished capitally, which might not, in many instances, answer the ends of public justice, for there are but few offences punishable with death, under our criminal code.

But the indictment being materially defective in the matter above indicated, the judgment must be reversed, and the cause remanded with instructions to the court below to sustain the motion in arrest of judgment, and hold the appellant subject to answer another indictment.


text:
    Brandenburg et al. vs. State, use of Monroe county.
    The county court acts judicially in adjusting the accounts of an internal improvement commissioner, and haB no power to set aside its judgment after the lapse of the term.

      Error to Monroe Circuit Court.

    Hon. George W. Beasley, Circuit Judge.
    Stillwell & Woodruff, for plaintiff.
    Garland &’Randolph, for defendant.
   Mr. Justice Compton

delivered the opinion of the court.

The account of Brandenburg, one of the plaintiffs in error, as internaL-improvement commissioner, was audited* in the county court of Monroe county, at October term, 1854, and the amount due from him to the county, for and on account of the internal improvement fund, ascertained to be $1,836.05. At a subsequent term of the same court, held in January, 1855, the settlement made at October term was, for error alleged, set aside, and the account of Bradenburg re-audited, showing a balance against him of $1,551.31, which he was ordered to pay over, but failing to do so, suit was brought on his official bond, and the only breach assigned in the declaration, is his failure to pay this latter sum.

As a defence to the action, it was pleaded in bar by Brandenburg and his sureties, who were defendants below, that after the expiration of the term of the county court, held in October, 1854, the court had no power to set aside the settlement made at that term, and make another between the parties concerning the same subject matter; and that, consequently, the action of the court at January term, 1855, was coram nonjudice and void, imposing no obligation whatever on Bradenburg to pay over, the sum then found against him. This was a good defence. In the adjustment of Brandenburg’s account, the county court acted judicially, and certainly had no power to set aside its judgment after the lapse of the term at which it was rendered. Reiff et al. vs. Conner, 5 Eng., 241; Cossit vs. Biscoe, 7 Eng., 95; Brooks vs. Hanauer, 22 Ark., 174.

The circuit court erred, therefore, in sustaining the demurrer to the sixth plea oí the defendants, for which the judgment must be reversed, and the cause remanded for further proceedings.