author: Walker, J.:

text:
    Turner vs. Tapscott, adm'r.
    1. Set Off: Of expenses of prior administration against admin, d. 6. n.

    In an action by an administrator de bonis non against an attorney for money of the estate, collected during a prior administration, the defendant may set off a judgment of allowance in the Probate Court against the former administrator for professional services rendered the estate.
    2. Administration: Allowance of Attorneys’ commission for collecting, etc.

    Iu order to entitle an attorney to retain a commission out of moneys of an estate collected under the employment of the administrator, he must show that the Probate Court authorized the employment, or sanctioned it by the subsequent allowance of the claim. And where such services are necessary to prevent loss or waste, it is the duty of the Court to allow compensation.
    3. Demurrer: To an emswer containing several paragraphs.

    A general demurrer to an entire answer consisting of several paragraphs, each containing a separate defense should be overruled as to the whole answer if any paragraph presents a good defense.

      4. Practice: Amendment of Evidence.

    After the case was closed and submitted, the court permitted additional evidence, which had been omitted, to be introduced; Held that the matter was within the discretion of the court.

      APPEAL from White Circuit Court.
    Hon. John Whytock, Circuit Judge.

      J. M. Moore, for appellant.
    The second plea was simply one of set off and tender, and answered tne whole demand. The judgments were proper set offs, also the other debt mentioned. Higgs v. Warner, 14 Ark., 193; Burke’s adm’r, v. Stillwell ex’r, 23 Ark., 294; Belfour v. Haney, 8th Ark., 479.
    As to second cause of demurrer see Gould’s Digest, ch. 4, section 42.
    Debts accruing against the administrator after death of intestate need not be probated. Equitable defenses must be pleaded since the adoption of the code. See Title 1.
    The third paragraph sets up a debt and lien, which being confessed by demurrer is good. The third was a good and formal plea of tender.
    The court erred in reopéning the trial, after its finding, upon mere motion of plaintiff.

      Coody & McRae, for appellees.
    On the rule to sustain the finding as a verdict cited 25 Ark., 49; 26 Ark., 309; Rose’s Digest, p. 659, sec’s 45, 46; and specially as to findings 23rd Ark., 24; 27th Ark., 592; 2 Ark., 14; 5 Ark., 558.
    On the right of the administrator de bonis non to recover, Gould’s Digest, p. Ill, sec. 43 and 44. The first administrator cannot encumber the assets as against a successor. 2nd Williams on Ex’rs, p. 822; 14 Ark., 296 ; 10 Ark., 254; 19 ib., 676; 17 ib., 567; 45 N. Y., 306; 6 Ain. Rep., 90; Bowén v. Pallivan, 2 Rob., 385. There was no order of court for attorney’s services Gould’s Digest, p. 137, sec. 196; 27 Ark., 306 ; 15 Ark., 97.
    The attorney must come in as a general creditor. Waters v. Grace & Maury, 23 Ark., 118.

      The order of the Probate Court on the former executors was not in the nature of a judgment against the estate, but enforcible against them on their bond. Gould’s Digest, p. 129, sec. 146-7 ; 5 Ark., p. 473; see also Gould’s Digest, p. 128, sec. 43. The order was a nullity and void in a collateral proceeding. 8th Ark., 318. Only claims allowed against the estate, existing at the death, have the force of judgments;, others are- mere expenses of administration and credited on settlement. Gould’s Digest, p. 120, sec’s 97-148, p. 124, sec. 115 ; Walker as adm’r v. Byers, 14 Ark., 246.
    The set oif was not good for want of mutuality. 27 Ark., 478; 5 Ark., 54; 7 Ark., 331 and 523; 12 Ark., 378, 77; Waterman on Set off, p. 212, sec. 188, p. 389, sec. 556 ; 8 Watts, 74; 1 A. K. Marshall, 19;.6 Ala., 349; 1 Bailey, 599.
    Ojections to evidence must be by bill of exceptions. 21 Ark., 454; 22 Ark., 225. Setting out the evidence. 1 Ark., 437, also p. 20; 3 Ark., 451; 27 Ark., 374. The action of the court was a matter within its sound discretion. Code, secs. 649, 657; 27 Ark., 328; 10 Ark., 428; 19 Ark., 239.
    Appellee insists that this appeal must be dismissed, because it was taken before the clerk of this court on filing a transcript, when there had been an appeal granted by the court in session, and which was not perfected ' in the time allowed by law. In support of which he cited 27 Ark., 314, 348, 599; ib., 440, 599; 26 Ark., 474 415; 14 Ark., 422; 9 Ark., 129.
    See Code, secs. 859 and 867.
   Walker, J.:

Tapscott, as administrator de bonis non of the estate of Adam McPherson, brought his action of assumpsit against Turner for money collected by him, on debts due the estate of McPherson. To this action defendant pleaded non-assumpsit, set' off, payment and tender. Issue was taken upon the plea of non assumpsit, and a demurrer was sustained to the other pleas. The case was submitted to the court, sitting as a jury. The decision or finding was for the plaintiff', and judgment thereon. The defendant moved for a new trial, and assigned, amongst other grounds, that the court erred in sustaining the demurrer to his several pleas,, and in permitting additional evidence to be introduced after the case had been submitted to the court for its decision.

The sufficiency of the pleas or paragraphs of the answer, as termed by the Code practice, presents the only important question to be determined.

It appears that the notes placed in the hands of the defendant,, as an attorney, to collect, belonged to the estate of McPherson; that the defendant had rendered services as attorney for the estate, and that he and his partner in the practice of law had rendered other services, for which an account was presented, approved and allowed by the Probate Court, against the estate of McPherson, and the executors of the estate ordered to pay the same as part of the costs of the administration. It further appears that defendant had also rendered services as an attorney for the estate in making certain collections, for which he claimed a commission for collection. He also claims to have paid part of the money collected to the executors. But before a settlement took place between the executors and the defendant, they resigned their trust, leaving part of the money so collected still in the hands of the defendant, and the claims so allowed, and ordered to be paid, and the commissions for collections, unpaid.

The administrator de bonis non brings this suit for the money,, part of the unadministered estate in the hands of the defendant, and denies to the defendant the right to offset these allowances and fees against that much of the money in his hands belonging to the estate. And thus the question arises as to the validity of' this defense, conceding the facts to be as stated in the pleas^

It is contended, on the part of the appellees that the fees and allowances made to the defendant belonged to the first administration, and must be settled (if at all) under it, and that the administrator de bonis non has nothing to do with it. That he takes only the unadministered assets and settles, alone, the costs of his own administration.

Let us consider whether this is true, and if true, whether the administrator de bonis non can take the unadministered assets, and hold them free from the payment of the adjudged costs and expenses of a former administration.

That an administrator de bonis non, can only take into his hands and administer upon the remaining unadministered property and effects of the intestate or testator, is beyond question, because that which has been administered by the former administrator, must be held as finally disposed of, and cannot become the subject of readministration. The administrator de bonis non is but the successor in trust, of the former administrator, he takes up the trust just where it was left by his predecessor in trust, when laid _ down by him; whatever the first administrator could or should have done in further administration, but which was left undone, his successor in trust may do also.

Toller in his work on Executors 242 say, an administrator de bonis non has also the same interest in such of the effects as remain unadministered, as was vested in the executor or antecedent administrator!

Williams on Executors, vol. 2, p. 865, says : The administrator de bonis non becomes the only personal representative of the deceased, and with respect to the estate left unadministered by the former executor or administrator, he has the same power and authority as the original representative; for he succeeds to all the legal rights which belonged to the former executor or administrator, in his representative character.

By our statute, Gould’s Digest, ch. 4, sec. 42, it is provided that, if au executor or administrator shall die, resign, or his letters be revoked, an administrator de bonis non shall be appointed, “who shall perform the like duties, and incur the like liabilities as the former executor or administrator.” The case of Gentry v. Owen, 14 Ark., 396, referred to by counsel, is in harmony with the elementary works above cited and with our own statute.

The case of Underwood v. Milligan, adm’r, 10 Ark., 254; Burford v. Grimes adm’r, 17 Ark., 567, and Tiner, adm’r, v. Christian, adm’r, 27 Ark. 306, have been cited by counsel as authority to show that the executors of the estate of McPherson could not,, by contract for professional services, enlarge or increase the liabilities of the estate, and that the defendant should look to the executors in person, and not to the estate, for payment of the services rendered by him. These decisions are found upon examination (except the last named) to have but little application to the case under consideration. In the case of Underwood v. Milligan, a claim was presented to the Probate Court for allowance against the estate. The claim was for services rendered in taking care of cattle, in which the claimant seems to have had an interest. There was no evidence of a contract with the intestate, but it appears that the administrator promised that if the claimant would continue to take care of the cattle, he would allow his claim of $75.00 for doing so. Mr. Justice Scott, who delivered the opinion of the court, said that the proof of the agreement did not establish the account sought to be recovered of Milligan as administrator de bonis non, and that the claim was not a proper charge against the estate. In the case of Burford v. Grimes, adm’r, an account of medical services was presented to the Probate Court for services, part of which were to the family of intestate, and part for attendance on slaves the property of the estate. Chief Justice English, who delivered the opinion of the court, said, when the administrator finds it necessary to call in medical assistance he has the right, and it is his duty to do so, not only as a matter of humanity, but by way of preserving them as property of the estate, and it would be the duty of the Probate Court to allow the administrator the reasonable and necessary expenses so incurred, as part of the costs of administration. And referring to the case of Underwood v. Milligan, remarked, that as between the administrator and the physician it would be a personal contract.

The facts in this case present a fit example for the distinction taken by the court, between contracts for services which should be charged against an estate as costs of administration, and such as render the administrator liable. Such as are necessary for the protection and preservation of the estate, and do not come within the appropriate duties of the administrator, as such, are proper charges against the estate, and cannot be considered as enlarging the liabilities of the estate by contract. But such contracts as are made by the administrator not in relation to the estate, as in the case of Burford v. Grimes, where part of the services were rendered to members of the family of the deceased, but not to property of the estate, the services if rendered at the instance of the administrator must be paid by . him, not the estate; but when rendered for the protection and preservation of the slaves, it was a proper charge against the estate. The necessity for the services was urgent, and did not admit of delay until an order of court could be procured for that purpose. And upon like reasoning should the assistance of an attorney become necessary in order to protect the estate, or to prevent its loss or waste, as when replevin is necessary to regain possession of property, or where suit is brought against an estate, which requires that a defense should be interposed to prevent its loss, it would be the duty of the administrator, without an order authorizing him to do so, to employ counsel, and when the services are rendered for the benefit of the estate, the Probate Court upon proof, should allow the attorney’s fee as part of the necessary expenses of administering the estate. If fees under such circumstances are to be held as a personal charge upon the administrator, no counsel would be employed and the estate would be wasted.

The compensation allowed to the administrator for his services, are such as arise in the necessary discharge of the duties imposed upon him as a trustee, and for these he can not charge the estate for services rendered by another at his instance. It is certainly a part of his ordinary duty to collect the debts of the estate, if he can do so without suit, but he is not expected to perform the part either of lawyer or doctor, professional services rendered by them are not part of his trust duties. If an order of court has been made allowing the administrator to employ an attorney, the administrator may pay him, and present his receipt to the Probate Court as a voucher in settlement. But if it is absolutely necessary to employ counsel to sue, or to defend, and the fact is made to appear to the Probate Court, after the service is rendered, the court may in its sound discretion all )w the fees as part of the expenses of administration.

It is not alone in this respect that allowances should be made. Suppose the intestate should die leaving a crop of cotton or corn matured, but not gathered. It would certainly be the .duty of the administrator to have the cotton picked, and ginned, and the corn gathered and housed. These are not part of the trust ■duties for which the administrator is compensated by his per •centum on the amount administered. These services might, and, in some instances, would amount to more than the whole compensation allowed for administering the estate, and, unless allowed compensation for this service, the result would be that the crop would be lost.

In these, and all other cases, the question to be determined is,

First — Were the services rendered such as belonged or appertained to the ordinary duties of the administrator? If they were, then, if he employ another to do them for him, it is a personal charge upon himself, and not upon the estate; and,

Second — "Were the services in fact rendered, and were they necessary in order to protect and preserve the estate ? If they were, it is the duty of the Probate Court, upon proof that such was the case, to allow the claim as part of the expenses of the administration.

Our statute, which requires that attorney’s fees shall not be paid out of the assets of the estate, unless the services are rendered under an order of court, must be construed with reference to the evil intended to be remedied, and particularly refers to the collection of debts. Ch. 4, sec. 194, Gould’s Dig., provides that when, in the opinion of the court, it shall become necessary to employ an attorney he shall only receive the per centum for collecting therein declared. The 195th section, under like circumstances, allows the same fees for defending that are allowed for collecting, and the 196th section provides that such fees shall be allowed as expenses of administration, but that no attorney’s fees-shall be allowed any administrator, unless for the prosecution or the defending of suits under the direction of the court. These several. provisions were evidently intended to remedy a great evil which had grown into practice in this State, of allowing administrators and executors to employ attorneys to collect the debts due the estate, even when no suit was necessary for that purpose. It is a part of the ordinary duty of the executor or administrator to collect all of the debts which may be collected,, at least without suit, and it was to prevent this abuse of trust that the act was passed, as well as for all other services properly to be performed by the administrator in his trust capacity, and not to employ an attorney in any case unless necessary for the protection of the estate, to be determined by the Probate Court in advance of the employment, or, in cases of emergency, after-wards.

It has not escaped our observation, when looking over the evidence in this case, that the debtor offered to pay to the executor part of the money, now the subject of this suit, and for the collection of which a commission is claimed, and that the executor, instead of receiving the money! referred him to the defendant, who held the note for collection. Under such circumstances, if the executor chose to employ an attorney to make the collection, he should pay the expenses of the collection himself, and not charge the estate with its collection. But, as we have already said, when the collection could only be made by suit, in which the services of an attorney were necessary, in ox’der to collect the debt, we think the Probate Court, under a fair and liberal construction of the statute, whether a previous order had or not been made, axxthorizing the administrator • to employ counsel, would, in its sound discretion, be authorized to allow the claim for fees as a part of the necessary expenses of the administration ; and this conclusion is in harmony with the decision of this court in the case of Burford v. Grimes.

In the case of Tinor, adm’r., v. Christian, adm’r., it was held that, in order to charge the estate of an intestate with attorney’s fees, they should accrue under an order of court authorizing the administrator to employ an attorney.

By reference to the facts under which this decision was made, it does not conflict with the construction given by us to this statute. It does not appear in that case that it was shown to the court that a necessity existed for employing counsel. Axjd it will be seen that in all of the cases above cited, the contest arose before the Probate Court for an allowance for services rendered, and in determining which, the Probate Court exercised its discretion, so as to prevent an abuse of the trust, and at the same time to facilitate its due execution.

So far, however, as regards the amounts claimed as á set off in the first and second paragraphs of the defendant’s answer we apprehend this question cannot arise, because the claims for the services rendered have been established and alloAved by the Probate Court. It was a matter within its jurisdiction, and we must presume that ail of the requirements of the law Avere complied with. The orders of allowance must, therefore, stand, and cannot be collaterally inquired into in this suit.

As regards the third paragraph, which sets uj) a claim for commissions in the collection of the money for which the suit is brought, the state of case is different. It is expressly provided by the statute, that “no attorney’s fees shall be allowed by any executor or administrator, unless for the prosecuting or defending a suit under the direction of the court.” And it is not averred that they Avere rendered under an order of court, or that the question, as to the necessity for the services of an attorney, was, at any time, presented to the Probate Court, or decided by it, and, for the lack of such averment, the plea is bad.

In the further consideration of the question connected with the sufficiency of the ansAvers, it will perhaps be best to consider the structure of the several paragraphs and the scope of the objection taken to them.

The first paragraph, as amended, is as follows: “The said defendant says that on the 1.7th day of August, 1866, Avhile the said LeAvis S. Poe and William H. Bradshaw were the executors of the last will and testament of the said Adam McPherson, deceased, this defendant, by the consideration and judgment of the Probate Court of said County of White, duly given, did recover of and against them in their representative caj>acity, as such executors, the sum of $470.26, which was then and there, by said court, duly adjudged and allowed to the defendant for the professional services of him, as an attorney at law, before then rendered for said executors, in and about the business of said estate, of said deceased, and was by said court ordered to be paid out of the assets of said estate, as expenses of said administration ; which said judgment is still in full force, not satisfied, set aside or otherwise vacated •, that the assets of said estate, then in the hands of said executors, which have since then come to the hands of said plaintiffs, were and are, in amount and value, far more than sufficient to pay all costs and expenses then or since accrued, in the administration of said estate. And defendant asks to be allowed the amount of said judgment and interest-in estimating and ascertaining the amount due from him to said plaintiff, and for other proper relief.

Second — And for further answer, defendant says that on the 17th day of August, 1866, he and one "William G. Turner, who were then partners as attorneys at law, under the firm name of W. G. & B. D. Turner, did, in their said firm name, recover against the said Lewis S. Poe and William H. Bradshaw, in their representative capacity as executors of said deceased, by the judgment and order of the said Probate Court of White county, duly made and rendered, the sum of $93.70, which was then by said Probate Court duly adjudged and allowed to said W. G. & B. D. Turner for professsional services by them as such attorneys, before then rendered to and for said executors in and about the business of said estate of the said deceased, and was by the said court ordered to be paid by said executors out of the assets of said estate, as expenses of administration thereof, which said judgment and order is still in full force and wholly unsatisfied. And defendant say's that after said services were rendered, and before the recovery of said judgment, they dissolved their said partnership, and said W. G. Turner assigned and transferred all his right, title and interest in and to the assets, debts and demands due and owing to said partnership to defendant, B. D. Turner. But that said judgment was obtained in the name of said firm, because the legal title was in it, but that the real, sole and exclusive interest in said judgment belongs to defendant, to the entire exclusion of said W. G. Turner; and he further says that, at the time of said judgment, there were in the hand of said executors, and have since come to the hands of plaintiff, assets ■of said estate largely in excess, in amount and value, of all costs and expenses then or since accrued in the administration of said estate, and said defendant prays that he be allowed the amount of said judgment and interest thereon in estimating the amount due from him to said plaintiff and for other proper relief.

Third — Said defendant further states that said plaintiff is indebtéd to him in the further sum of $107 for services rendered in collecting the money now sued for by said plaintiff, and which is a lien thereon, and he asks that said sum be allowed him in estimating the amount due in this suit.

Fourth — Defendant further states that before the institution of this suit he paid the plaintiff the sum of $506 of said money sued for, and asks that said payment be allowed in estimating the amount due said plaintiff.

Fifth — Defendant further states that, before the institution of this suit, he tendered and offered to pay to said plaintiff the sum of.$243.46, the whole amount due from him to plaintiff, which was refused by the plaintiff, and the defendant has ever since then been ready and willing to pay the same to the plaintiff, and now here brings the same into court, and here tenders the same to the plaintiff.

These are the five pleas pleaded in bar of the plaintiff’s action.

The first and second paragraphs are substantially pleas of set-off, with the sole difference that ’one sets forth an allowance by the Probate Court for professional services rendered by the defendant, whilst the second paragraph sets out an allowance to defendant and his partner in the practice of law, and that his partner’s interest in the debt was assigned to him. The judgment of allowance were defendant’s; they were against the estate of McPherson, and ordered to be paid out of the assets of the estate. It is insisted that because they were rendered against the former executors of the estate, that they should have been settled by the executors before they resigned, and that the plaintiff, as administrator de bonis non, took the unadministered estate free from liability for such costs and expenses.

In order to test 'the correctness of this assumption, let us suppose that before the executors resigned their trust they had called upon the defendant, who held money belonging to the estate, for the money, and he had presented these claims, so allowed and ordered to be paid, and the executors had paid them in settlement out of the money in defendant’s hands, and taken from him a receipt for the payment of them. We think there could be no doubt but that such receipt would have been a good voucher in settlement with the court; it would have been a payment made in obedience to the order of court. It was a debt between the estate of McPherson and the defendant, each holding a demand against the other, and if these judgments of allowance were proper charges upon the assets of the estate of McPherson, in the hands of the executors, upon the appointment of a new trustee, the administrator de bonis non, who succeeded to all the rights to the unadmjnistered estate as fully as they existed in the hands of the executors, he took the assets of the estate unadministered, charged with the payment of the expenses of the administration; he was, in fact, but the successor in trust, and took the administration upon himself just where it was left by his predecessors in trust.

The paragraph was drawn with commendable accuracy, and bears the impress of something more than a mere Code practitioner. We think these paragraphs, or pleas of set off, good, and the demurrer to them should have been overruled.

The third paragraph is also a plea of set off for services rendered in collecting the money for the recovery of which suit is brought, but there has been no allowance of it by the Probate Court, nor is it averred that the services were rendered under an order of court, or that an allowance was subsequently made, and for want of this averment this paragraph was fatally defective.

The fourth paragraph was a plea of part payment, and the fifth is a plea of tender. The first went to part payment of the sum in controversy; the second a tender of all that was due. Both of them are well pleaded, and the demurrer to them should have been overruled. Whether they can or not be sustained in evidence is not for our consideration ; the demurrer admits the truth of them, and we, in passing upon their legal sufficiency, must consider them as true.

Having thus concluded the investigation of these several pleas upon their merits, there is a question of practice to be settled : When a demurrer is interposed to an answer which contains several paragraphs or pleas, each paragraph in a complaint stands in the place of a count in a common law declaration, and must contain within itself a cause of action. So any paragraph in an answer, like a common law plea, must contain a valid defense. We have seen that the answer in this case contained five paragraphs, or special pleas.

The demurrer is to the answer generally, to the whole answer, and not severally to each paragraph, or any one of them, and, consequently, if there is a good paragraph in the answer the demurrer must be overruled.

Newman, in his work on Pleading and Practice, page 660, says: "When the petition contains several paragraphs, each containing a separate cause of action, if the demurrer be general to the whole petition, and any one or more of the paragraphs show a good cause of action, the demurrer cannot be sustained, even if there be some of the paragraphs, or alleged causes of action which are insufficient. And if there are several defenses in the same answer, and the demurrer be'to the whole answer, it must be overruled if any one of the defenses be good, although others be insufficient.

In the case before us, the demurrer, in the first instance, was to the whole answer, and as several of the paragraphs were unquestionably good, the demurrer should have been overruled as to all of them; but after this leave was given the defendant to amend the first and second paragraphs of his answer, the amendment was made, and a joint demurrer was filed to them and sustained.

The third, fourth and fifth paragraphs were not amended, and defendant stood upon the first demurrer. We have seen that the third paragraph was demurrable, the fourth and fifth good. The demurrer being general, should have been overruled as to all of them.

The remaining question is as to the practice of suffering additional evidence to be given after the parties have closed the evidence and submitted the ease, but before -the court had rendered . its verdict. The evidence omitted was to prove a demand of payment before action brought. The Code practice is liberal with regard to amendments when the object is to obviate an omission, either in pleading or evidence, if amended or allowed, which would tend to facilitate the final disposition of the case upon its merits. The defendant could not have been surprised. A material fact had not been proven, and it was a matter of discretion with the ©ourt to allow its introduction or not, and, under the circumstances, we think there was no abuse of this discretionary power in permitting it Lo be introduced.

Because 'the court erred in sustaining the demurrer to the defendant’s answer, the judgment must be set aside and a new trial granted.


source: Caselaw Access Project

author: English, Ch. J.:

license: Public Domain

text:
    Benton vs. The State.
    1. Criminal Law: Instructions.

    As to circumstantial evidence, reasonable doubt, etc., see the opinion.
    2. -: Practice.

    It is in the discretion of the court to determine whether the jury shall take the instructions with them when they retire.
    3. -: Instruction.

    On a trial for murder in the first degree where there is nothing in the defense or evidence to indicate that the lower grades of homicide are involved, the judge need not define them in a general charge to the jury.
    4. Evidence: Competency.

    4. witness cannot be impeached by evidence tending to show that a third person was prejudiced against the accused, and had threatened to procure the witness to testify against him.
    5. Jurors: Challenge, etc.

    If, after the court has erroneously overruled the challenge of a juror for cause, the defendant elects to challenge him peremptorily, and the record shows that he did not exhaust his peremptory challenges, he cannot avail himself of the error. (As to disqualification by reason of bias, etc.,; see the opinion.)
    6. Criminal Law: Accused entitled to accompany the jury at a view.

    If, during the progress of a criminal trial, a view of the locality where the crime is alleged to have been committed is ordered by the court, the defendant must be permitted to aocompany the jury.
    APPEAL from Pulaski Circuit Court.
    Hon. John J. Clendenin, Circuit Judge.

      Terry, Terry & Vaughn, for appellant.
    Prisoner should have been present when his case was set for trial below. Bishop’s Crim. Pro., 265-9,270, and cases cited;
      Henry v. State, 33 Ala., 389; Hall v. State, 40 ib., 698-705 ; Kelly v. State, 3 Sm. and Mar., 518-28; Prim v. Com., 6 Harris, (Tenn.,) 103 ; Hamilton v. Com., 4 ib., 129; Hooker v. Com., 13 Grat., 763; 2d Leading Crim. Ca., 451, et seq.; Sneed v. State, 5 Ark., 431; Osburne v. State, 24 Ark., 635; Sioeeden v. State, 19 Ark., 205; as in ease of a motion for a new trial; 1 Bishop Crim. Pro., 277 and n.; 31 Maine, 592.
    The second instruction given on part of the State was calculated to mislead. Bertrand v. Byrd, 5 Ark., 651; Worthington v. Curd, 15 ib., 492; Armstead v. Brooks, 18 ib., 521.
    Jury should have been allowed to take instruction to their room on defendant’s request. See Hurley v. State, MSS. op., Dec. Term., 1874.
    Court should have given the whole law of homicide to the jury. Gantt’s Digest, sec. 1930; Stanton v. State, 13 Ark., 317; 3 Whar. Am. Crim. Law., sec. 3162, n. “a.”

    Robertson’s testimony erroneously excluded. 1 Greenlf. on Ev., 462, and cases cited; Newcombe v. State, 37 Miss., 383.
    The court erred in deciding--to be competent as a juror. 1 Bisli. Crim. Pro., 909-911; 3 Wharton, 3080; Stewart v. State, 13 Ark., 721 ; 13 Sm. and Mar., 500; Vermilyear’s case, 6 Cowan, N. Y., 562; 7 Cowan, 108; 1 Burr’s Trial, 370; Matheios’ ease, 4 Wend., 229.
    Defendant'should have had a list of the jurors a reasonable time before trial. Stewart v. State, 13 Ark., 735-6 — 7; Atkins v. The State, ib., '581; 1 Chitty Crim. Law, 517; 4 Blackstone, 351.
    The defendant should have been present when the jury viewed the premises. 3 Wharton’s Crim. Law, 3160; Const, of 1874, art. 2, sec. 10; State v. Bertin, 24 La. an. 46 ; Eastwood v. People, 3 Par. Crim. Rep., 25-52; Roscoe’s Crim. Ev., (6 Am. Ed.,) 29, note 1. And the preseuce of the judge at the view was indispensible. Bishop Crim. Law, vol. 1, sec. 1044. The right to be present could not be waived by defendant. Wilson v. State, 16 Ark., 601 — 610; Bond v. State, 17 ib., 290; Oliver v. State, ib., 508; Brown v. State, 11 Ind., 496. Certainly not by simple failure to object. Neweombe v. State, 37 Miss., 383; Douglas’ ease, 5 Wis., 820; Bivins v. State, 6 Eng., 455-7; Wilson v. State, supra; Sweeden v. State, supra; Com. v. Andrews, 3 Mass., 132; People v. MeKay, 18 Johnson, 215.
    See also Const. U. S., 6th article of amendments, and Basen v. State, 6 Eng., 481; 1 Bish. Crim. Pr., secs. 89, 92, 94.
    The qualifications of a juror cannot be changed by statute, or made matter of discretion in the judge. 1 vol. Bishop’s Crim. Procedure.
    In criminal cases an error in written instructions need not be excepted to, and made grounds • for a motion for a new trial, in order to be corrected on appeal. Civil and Criminal Codes compared.
    Error in decision as to a juror’s qualifications is not waived by peremptory challenge. 3 Gilman, 378 ; 2 Virginia Cases, 299. As to juror’s qualifications, see 4 Wend. N. Y., 242; andón conflicting instructions, 31 Ind., 480.
    It is not necessary to show that the defendant was injured by violation of a well-known principle of law, or the constitution. People v. Ransom, 7 N. Hamp., 287.
    Secs. 1927-28 of Gantt’s Digest are against a common law right, and must be strictly construed. Cooly’s Const. Lim., 74 et seq.; Veazie v. China, 50 Maine, 518; People v. Sehemerhorn, 19 Barb. 558; 21 Pick., 67; Rex v. Loehsdale, 1 Burr., 447. As to their constitutionality, see Murphy v. State, 24 Miss,, 590; Neweombe v. State, 37 ib., 383-397. They were repealed by the constitution of 1874. Schedule, sec 1, art. 19 ; Pulaski County v. Dower, 10 Ark., 589; State v. Walker, 23 ib., 304.

      A contradictory instruction will not cure one plainly and materially erroneous. 1 Whar. 3248; State v. MeClear, 5 Nev.,. 132; People v. Bocline, 1 Davis, 280; Ciernan v. State, 31 Ind.,. 480.
    Further, that the defendant cannot waive a constitutional right, see Werh v. State, 2 Ohio, 296; Caneean v. People, 18 N. Y., 128; Wilson v. State, 16 Ark., 601; Bond v. State, 17 ib., 290; Cooley’s Const. Lim., 319 and cases; Brown v. State, 11 Ind., 496.

      Hughes, Attorney General, for appellee.
    Jury only entitled to take to their room papers used as evidence, sec. 1492 G. D.
    The case did not require a charge of the whole law of homicide, and. it was not asked, Omission to charge, no ground of new trial, if the charges actually given were correct and applicable to the issue. Palmore v. State, MSS.; Waters v. Bristol, 26 Con., 348; Obey v. Chudsey, 7 Rhode Island, 224; see also People v. Gray, 5 Wend., 20.
    Error must be material and to the prejudice of defendant. (Baílelo v. State, 1 Green’s Law Report, crim., 607;) Harris v. State, ib., 601; Taff v. State, ib., 629.
    The action of the court in passing upon the fitness of a juror is matter of discretion, unless it be grossly abused. Crim. Code, sec. 1911, G. D.
    No list of jurors is required to be furnished prisoner or counsel. G. D., sec’s 3694 and 1895.
    In support of the view of the premises by the jury in the absence of prisoner, cited; G. D., sec. 1887; Cooley’s Const. Lim, 318; Sneed v. State, 5 Ark., 431; Cole v. State 10th, 318. The view of the ground was not in the nature of evidence and no part of the trial.

      The instructions taken all together were correct and liberal to defendant.
    Upon the points arising in this case the following additional authorities were cited by the State: Gantt’s Digest, sections 2130, 2144, 1100, 1970, 4553, 1978, 1979, 4693, 4694, 4699, 4688, 1987, 1968-69-70; Anderson v. State, 5 Ark., 445; Lyon v. -Evans, 10 Ark., 349; Boyd v. Tuóker, 3 Ark., 451; Telham V. State Bank, 4 Ark., 202Mills v. Jones & Heed, 27 Ark., 506; Patterson v. Graham, 23 Ark., 380; People v. Berdine, 1 Denio, N. Y; Hopkins v. Ohm., 3rd Bush., 1 Greenleaf, sec. 462.
   English, Ch. J.:

John Benton was tried on an indictment for murder, in the Pulaski Circuit Court, found guilty of murder in the first degree, by the jury, a motion for a new trial was overruled, and he was sentenced to suffer the penalty of death. An appeal was allowed by the Chief Justice, on account of probable errors appearing in the transcript of the record.

The nine causes assigned in the motion for a new trial will be disposed of in the order in which they appear in the motion.

First — That the defendant was not personally present when his case was set for trial, being then confined in the county jail. On this point the bill of exceptions shows nothing. The record entries show that the indictment was returned into court, by the grand jury, 13th April, 1875 ; on the 18th June following the cause was continued to the next term, on the application of the prisoner, after he had been furnished with a copy of the indictment, arraigned and pleaded not guilty. The first entry, at the next term, appearing in the transcript, bears date 25th October, 1875, and shows that the State was present by her Prosecuting Attorney, and the prisoner personally present in court, in charge of the Sheriff, and represented by four attorneys. And this case now coming on to be heard, and both parties announcing themselves ready for trial, the names of the jurors on the regular panel are placed in a box, etc., and the entry proceeds to show the making up of a jury.

There is nothing in this assignment.

Second — That the court erred in giving the second instruction asked for by the State, and against the objection of defendant.

The defendant was charged with the murder of Bob Steigall. The corpus delicti was proven, but the State attempted to establish, by circumstantial evidence, that the defendant committed the crime. The Prosecuting Attorney asked for two instructions. The counsel for the prisoner made no objection to the first, but objected to the second, and the objection was overruled and the instruction given. The two instructions are connected, and the second is better understood when read in connection with the first. They follow:

First — The court instructs the jury that in cases of circumstantial evidence, like the present, the law does not demand absolute mathematical or metaphysical certainty; but if all the circumstances established by the proof before them, taken together, convince their minds beyond a reasonable and rational doubt of the defendant’s guilt, they will be justified in finding ,a verdict against him.

Second — The doubt which will justify a verdict of acquittal is not every captious or far-fetched doubt, but must be a reasonable and rational doubt left upon the minds of the jury after a careful investigation of all the facts proven in the case, and if after such examination of such evidence, they can say as men, we verily believe, beyond a reasonable doubt, the defendant guilty as charged, and their hearts and consciences prove such decision, they will be justified in finding a verdict of guilty against the defendant.

The counsel for appellant have criticised the words, “can say as men,” as used in the second instruction. They urge that this instruction was calculated to mislead the jury, to indicate to them that they might form their conclusion, as to the guilt or innocense of the prisoner, as men and not as jurors acting under •oath. The counsel say that as men they might be convinced by hearing evidence, but as jurors they could not, etc.

The criticism is not warranted when the expression complained •of is considered in connection with the language which precedes and that which follows it.

The first instruction relates to the certainty which the law requires in cases of circumstantial evidence, and omitting tautological words, the jury were told, in substance, that the law did not demand absolute' or mathematical certainty, but if all the •circumstances in proof convinced their minds, beyond a reasonable doubt, of the defendant’s guilt, they might so declare.

The object of the second instruction was to explain'to the jury what was meant by a reasonable doubt. It was not to be captious or farfetched, but a doubt of prisoner’s guilt left upon the minds of the jury after a careful investigation of all the facts proven in the case, etc. Supposing them to be men of ordinary ■intelligence there was nothing in the instruction calculated to induce them to infer that they were at liberty to disregard their oaths as jurors, or to aot as men in the streets, not upon oath, in arriving at a conclusion as to the guilt or innocence of the ■defendant. See Burrill on Cir. Ev., 198-200.

The prosecuting attorney had as well.left the word “metaphysical” out of the first instruction. The law does not demand mathematical, but does require moral certainty of guilt, to warrant a conviction on circumstantial evidence. Metaphysical is not the equiyalent of mathematical.

Third — That the court erred in not allowing the jury, upon motion of defendant, to take with them to their consultation room the instructions given them on the part of the State and defendant.

The bill of exceptions is silent as to this assignment, but, if it be true, the court had the discretion to refuse or permit the jury to take with them the instructions on retiring to consider of their verdict, as held in James Hurley v. The State, 29 Ark., 17.

.Fourth — That the court erred in failing to read to the jury as part of its charge the whole law applicable to homicide, but confined itself in the charge to cases of murder in the first and second degrees.

It appears by the bill of exceptions that after the court had given the two instructions asked for the State, and nine drafted and moved for the prisoner, being all that were asked on his behalf, the court, of its own motion, gave a general charge to the jury, which is set out in the bill of exceptions.

The court, after stating the issue formed by the indictment and plea, gave, in the language of the statute, the definition of murder, malice expressed and implied, and the distinction between murder in the first and second degrees, said to the jury that the case turned upon circumstantial evidence, and explained to them the difference between direct and circumstantial evidence, etc. There is a paragraph in this general charge which will be more particularly noticed below.

No exception appears to have been taken to the charge at the time it was given, and the only objection made to it in the mo« tion for a new trial isthat.it did not go far enough; that the judge did not read to the jury the whole law applicable to homicide, but such only as applies to cases of murder in the first and second degrees. The objection implies the assertion that the judge should have gone further, and read to the jury the law applicable to voluntary and involuntary manslaughter, justifiable and excusable homicide, etc.

Section 23, art. 7, of the jmesent Constitution declares that “ Judges shall not charge juries with regard to matters of fact, but shall declare the law, and, in jury trials, shall reduce their charge to writing, on the request of either party.”

Section 1930, Gantt’s Digest, p. 421, which remains in force so far as not in conflict with the constitutional provision copied above, provides that “ when the evidence is concluded the court shall, on motion of either party, instruct the jury on the law applicable to the case, which shall always be given in writing.”

It is the province of the court to give in charge to the jury such principles of the law as it may deem applicable to the case. If a party desires other instructions he may move them, and the court will give, or refuse them, according to its judgment of their correctness or applicability. If refused, the party asking them may except to the opinion of the court. If objected to by the opposite party and given, he may except. So either party may except to the general charge of the court. If the charge be the enunciation of several distinct principles, either party may except to any one or more of them. If all are deemed objectionable, each and all of them may be excepted to. But the exception should not be general to a number of distinct enunciations, but specific. James Hurley v. State, 29 Ark., 17; McKenzie v. State, 26 Ark., 342; Cox v. State, 41 Texas, I.

But in this case, the objection to the general charge of the court is, that it should have gone further, and defined the lower grades of homicides.

The man named in the indictment and called by the witness Bob Steigall, was found on the morning 28th March, 1875, lying dead in a road near the northeast corner of a block of ground situated between the Federal cemetery and the Fourche, south of Little Rock, on which block the appellant resided. The deceased when found had a rope in his left hand and a bottle in his right. There were pistol balls in his head, and buckshot in his right side, above the nipple, etc. There seem to have been no indications about the body that there might have been a combat, but, on the contrary, the appearances were that the slayer had perpetrated a murder. There was no evidence conducing to prove that the deceased had been slain by another person in a sudden heat of passion or provocation, or by misadventure or in self-defense. The State attempted to connect the appellant with the crime by circumstantial evidence. The line of defense seems to have been, not that there were circumstances of mitigation, justification or excuse, but that the appellant was not the slayer; had no connection with the killing.

Such seems to be the character of the case from the evidence, as set out in the bill of exceptions.

It was the province of the judge who presided at the trial and heard the evidence to declare to the jury such principles of law as were deemed, in his judgment, applicable to the case, and we find nothing in the features of the case, as made by the evidence, that should have required the judge to go further in his general charge than he did, and declare the law applicable to the lower grades of homicide.

If, in the opinion of the counsel for the prisoner, there was any feature of the case which made an extension of the charge to the lower degrees of homicide necessary or proper, they had the right to ask it, and except to the opinion of the court if refused. But, as we have seen above, the court gave all of the instructions asked on behalf of the prisoner.

Fifth — That the verdict of the jury was against the law and evidence.

The verdict was responsive to the charge in the indictment, and in legal form. It was the province of the jury, not ours, to judge of the weight of the evidence. The counsel for appellant have not insisted that there was a total want of evidence to sustain any material allegation of the indictment.

Sixth — That the court erred in rejecting the testimony of Roger Robertson, witness offered by defendant, whose testimony would have tended to show the aniomts of Mary Jones, (witness for State,) and also would have tended to contradict her in some of her most material statements.

The statement in the bill of exceptions in relation to the introduction of Robertson, and as to what the prisoner offered to prove by him, is as follows:

Defendant’s attorneys offered to introduce Roger Robertson, to prove that in a conversation held by him with Mrs. Benton (defendant’s wife) at her front gate, in presence of Mary Joxres, after a lawsuit about certain property which the defendant had transferred to his lawyer contrary to her wishes, she said, when told that she could not testify, she would send Mary Jones to testify against him; the defendant offering at the same time to show that his wife was angered against him on accoxmt of the property that he had transferred, and had made threats about puttixig the rope around his neck. This evidence was offered to show the animus with which Mary Jones caxne upoixthe witness stand, and to impeach her credit by showing that she gave ixx her evidence under the direction of Mrs. Benton, who was her mother. Coux’t ovei’ruled the motion and defendant excepted.”

It seems that Mary Jones was the daughter of prisoner’s wife by a former husband. How old she was does not appear. In her examixiation in chief she spoke of the house o f the prisoner as her home. Stiegall was thex-e about 3 o’clock the afternooxx of the 27th of March. She saw hixn next morning, after he was found dead. On the night of the 27th, after dark, prisoner took his gun and went out. He had worn a pistol durixxg the day. In about a quarter of an hour after he left the house she heard the report of a gun and several pistol shots, at a short distance. Shortly after, prisoner returned to the house, set the gun down, went out, and she did not see him again until next morning about 8 o’clock. When she told him that Bob was dead, he said “heuph” (so spelled in the transcript). She told him where the body of Bob was lying. He went with her to the corner of the paling, but did not go up to where the body was. He fed his horses, got his breakfast, saddled his mule and rode off. Said he was going to hunt his colts. She did not see him any more. A more detailed statement of her testimony, on her examination in chief by the State, is deemed unnecessary here. •

On cross-examination, by the prisoner’s counsel, she went over the same matters, and made additional statements. The only statement made by her that appears to have any relevancy to the sixth assignment is as follows: My mother never told me to come here and testify in this case.” What questions were asked her by the counsel for the prisoner does not appear. Her statements merely are set out in the bill of exceptions.

In determining whether the court erred in excluding what the prisoner’s counsel proposed to prove by Robertson, we must look to the bill of exceptions to ascertain what evidence was in fact proposed, and not to the mere statement in the motion for a new trial. It is stated in the motion for a new trial that Robertson’s testimony would have tended to show the animus of Mary Jones. And also to contradict her in some of her most material statements.”

A witness may be discredited by disproving the facts stated by him by the testimony of other witnesses. 1 Greenleaf Ev., sec. 461. But it does not appear from the bill of exceptions that Robertson was offered to disprove the statement of Mary Jones that her mother had not told her to come there to testify, or to disprove any other fact stated by her.

The bill of exceptions first states what was proposed to be proved by Robertson, and then states the purpose for which this evidence was offered, to show the animus with which Mary Jones, came on the stand, and to impeach her credit by showing that she gave in her evidence under the direction of her mother.

The substance of the evidence offered is, that Mrs. Benton had fallen out with her husband, the prisoner, for transferring her property to his attorneys, had threatened to help hang him, and had said in the presence of Mary Jones, her daughter, that she would send her to testify against him. It does not appear that Mary Jones was asked whether she was offended at the prisoner for disposing of her mother’s property, or for other cause, but the propositian was to prove by the declarations of the mother that she was prejudiced, and leavé the jury to infer that the daughter shared in the prejudice of the mother, and thereby to discredit her.

If Mrs. Benton had been a competent witness, and put upon the stand to testify on behalf of the State, she could not, on cross examination, have been asked the general question, whether she was prejudiced against the prisoner, but she might perhaps have been asked if she had not fallen out with the prisoner for disposing of her property, and threatened him, and if she had answered in the affirmative, it might have lessened the value of her testimony with the jury; and if she had answered in the negative, she might have been contradicted by other witnesses. Cornelius v. State, 12 Ark., 800; Newcomb v. State, 37 Miss., 402. But what the prisoner proposed to prove by Robertson, was too remote, and was brought within none of the established modes of impeaching a witness.

Seventh — Because the court erred in deciding that Richard Fletcher was a competent juror, etc.

The bill of exceptions states that during the empanelling of the jury, Richard Fletcher was presentéd as a juror, and upon his voir dire stated “that he had had a conversation with George Counts, a witness on the part of the prosecution, concerning some material facts in regard to one barrel of the gun of the defendant being recently loaded, etc., and had read the report of the Coroner’s jury, and from these two things, he had formed an opinion as to the guilt or innocence of the defendant, and would require evidence to remove that opinion, though he would try to be governed by the evidence, and that he had not now any such opinion in the case as would prevent him from trying the case impartially and without prejudice to the substantial rights of the defendant.”

Whereupon the court ruled that he was a qualified juror; the defendant excepted; and challenged him peremptorily. When the jury was finally made up, the defendant had used only fourteen of his peremptory challenges, and had still six unused.

It appears from the record entries that six jurors were accepted from the regular panel, the names of the panel jurors having been placed in a box, and drawn code fashion; four were accepted from the first lot of talesmen brought in by the Sheriff, under order of the court, whose names were likewise put into- the box and drawn, and the remaining two were accepted from the second lot of talesmen brought in and drawn.

Whether the juror Fletcher belong to the regular panel, or to the first or second lot of talesmen, does not appear, nor does the •bill of exceptions or record entries show whether the prisoner used any peremptory challenge after challenging Fletcher.

By the statute in force before the adoption of the criminal code, it was good cause of challenge to a juror, that he had formed or delivered an opinion on the issue, or any material fact to be tried, but if it appeared that such opinion was founded on rumor, and not such as to bias or prejudice the mind of the juror, he might be sworn. Gould’s Digest, ch. 52, sec. 163. It was also provided that all challenges for cause might be tried by the court on the oath of the person challenged, or by triers on other evidence. Ib. sec. 164.

These provisions of the statute were continued in Stewart v. The State 13 Ark., 737, and Meyer v. The State, 19 Ark., 159.

In the latter case the court said: “When a juror admits that he has formed or expressed an opinion as^to the guilt or innocence of the prisoner, the law regards him as an unfit person to compose part of such impartial jury as the bill of rights secures to the accused, but the disqualification is removed, if he be able to state that such opinion is founded upon rumor in its proper sense, and is not such as to bias or prejudice his mind. This is the substance and effect of the decision in the Stewart case on this point.”

Under these decisions, Fletcher was not a qualified juror.

But the statute on which these decisions were made has been suspended by provisions of the criminal code which covers the whole subject of challenges. Gantt’s Digest, p. 419-20.

It may be supposed, though the bill of exceptions does not show it, that the prisoner challenged the juror for actual bias. Actual bias is the existence of such a state of mind on the part of the juror, in regard to the case or to either party, as satisfies the court in the exercise of a sound discretion, that he cannot try the case impartially, and without prejudice to the party challenging. Gantt’s Digest, sec. 1910.

The challenge was tried by the court, on examination of the juror under oath, and the court found the juror qualified. (Ib. sec. 1917-18.) The court, tinder the statute, sits in the- place of triers which are dispensed with.

The statement of the juror, as it appears in the bill of exceptions, is not consistent. He first states that he- had formed an opinion as to the guilt or innocence of the prisoner from conversing with a -witness, and reading the report of the coroner’s jury, and that it would require evidence to remove that opinion, though he would try to be governed by the evidence. Had he stopped here the court should have sustained the challenge, but he stated further, in effect, that he had not, at the time he was examined (“now ”), any such opinion in the case as would prevent him from trying the case impartially, and without prejudice to the substantial rights of the defendant.

This closing statement would seem to take the juror out of the disqualifying language of the statute.

Construing the statute in reference to the Bill of Eights, which secures to the accused a trial by an impartial jury, we think it would have been safer for the court, upon the whole statement of the juror, to have sustained the challenge, but we cannot undertake to say that the court, sitting in the place of triers, and hearing the whole statement of the juror, who was personally before the court, abused its discretion in overruling the challenge.

But suppose it be conceded that the court did err in overruling the challenge, and that the decision of the court is the subject of exception, notwithstanding the statute to the contrary (Gantt’s Digest, sec. 1978,), can the appellant avail himself of such error after having elected to get rid of the juror by challenging him peremptorily ?

In Stewart v. The State, 13 Ark., 742, the prisoner had to exhaust three peremptory challenges to correct errors of the court, and yet, because the record did not show that he had exhausted all his peremptory challenges before the jury was made up, it was held that he could not avail himself of the errors of the court.

In this case the bill of exceptions shows that the prisoner had six peremptory challenges unused when the jury was completed, and thereby renders the probability that he may have been prejudiced by the error of the court less than it was in Stewart’s case. Moreover, the bill of exceptions does not make it appear in this case that the prisoner had any occasion to use, or did, in fact, use any peremptory challenge after he challenged Fletcher off.

The counsel for appellant have insisted with much earnestness that the court should overrule Stewart v. The State, and have criticised with much ingenuity the logic of Chief Justice Watkins in the case.

The conclusion of the court in that case, on the point in question, is supported by the adjudications cited in the opinion, though there are some cases the other way. The point adjudicated has stood as a rule of criminal practice in this State ever since the ease was decided, a period of over twenty-two years, and we are not disposed to review it. «We will adhere to the conclusion of the court as the law, leaving the logic of the learned Chief Justice to rest upon his own reasoning as it appears in the opinion.

Eighth — Because there never was a certified list of the twenty-four jurors, or a copy of the venire forty-eight hours, or a reasonable time previous to the trial, served on defendant. That in fact he never had, nor did his counsel have, any such list until the morning of his 'tidal, and then after his case was called for trial.

This is a mere statement in a motion for a new trial. The bill of exceptions is silent on the subject.

The prisoner having, when the case was called, announced himself ready for trial, making no objection that he had not been furnished with a list of the jurors, and there being no affirmation showing, in the bill of exceptions, that a list had not been furnished him, the mere silence of the record on the subject was not cause for reversal when the statute requiring the list to be furnished was in force. Freel v. The State, 21 Ark., 226; Dawson v. The State, 29 Ark., 116.

Before the adoption of the Criminal Code a venire was issued in every criminal case for a number of jurors equal to the number of peremptory challenges, and twelve in addition thereto. In capital cases thirty-eight were summoned, the accused having twenty peremptory challenges and the State six, and a list was required to be served on the accused at least forty-eight hours before the trial, unless waived. Gould’s Digest, secs. 155-56, ch. 52.

These provisions of Gould’s Digest were not carried into Gantt’s Digest because, no doubt, they were believed to be repealed by the Criminal Code, which provides for a panel of trial jurors for the term, from which, in prosecutions for felonies, juries are to be made up by the addition of talesmen when required. See Gantt’s Digest, secs. 1895, 3673-74 — 77. The Code makes no provision for serving the accused, in any case, with a list of the term trial jurors, for the reason, perhaps, that when the panel jurors are summoned and the process returned the list is subject to inspection by all parties interested, or their counsel. Ib., sec. 3678, 3694.

Ninth — Because the visit to and view of the premises by the jury where the killing was alleged to have occurred was made by the jury without the presence of the defendant.

The trial commenced on the 25th October, and on the 27th the following entry was made, when the court was about to adjourn over until the next day: The court being of opinion that it is necessary that the jury should view the place where the offense is charged to have been committed herein, on motion of the prosecuting attorney, doth order that said jury be conducted in a body, in custody of the proper officer, to the place, and thereupon the court doth appoint T. A. Nathway deputy sheriff, who, in open court, is duly sworn to suffer no person to speak or communicate with the jury on any subject connected with the trial herein, or to do so himself) except the mere showing of the place to be viewed, which is to be done by Asa Richmond, one of the jurors, who, being familiar with the locality, is appointed for that purpose.”

The bill of exceptions states that during the taking of the testimony, and on the third day of the trial, when the order for view of the premises by the jury was made, “Asa Richmond, one of the jurors, having' stated that he was familiar with the premises, was appointed by the court to point out the place, of the alleged murder, the localities surrounding it,, and the situation of the premises of the defendant near which the body of deceased was found. And that neither did. the defendant, his attorneys, nor the attorney for the State, accompany the jury,, during their view. Neither did the judge, who presided at the trial of the cause, accompany the jury in their view, nor was there any other person (other than Asa Richmond one of the jurors) appointed by the court for the purpose of pointing out to the jury the place or places to be viewed by them.”

The statute provides that:

“When, in the opinion of the court, it is necessary that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which must be shown to them by the judge or a proper person appointed by the court for that purpose.
“Such officers must be sworn to suffer no person to speak or communicate with the jury on any subject connected with, the trial, nor do so themselves, except the mere showing of the place to be viewed, and return them into court without unnecessary delay, or at some specified time. Grantt’s Dig., secs. 1927, 1928.

In the case of Patrick Hurley v. The State, on appeal from the Circuit Court of Washington county, there is a record entry made at the June term of this court, 1871, showing that the judgment was reversed, and the cause remanded for a new trial because the appellant was not permitted to accompany the jury,, and be present when they viewed the place, etc., where the murder was charged to have been committed, etc. We are informed by the former Clerk of this court (Mr. Cox) that Justice Searle,. who delivered the opinion of the court, withdrew it for some purpose and never returned it, hence it was not recorded, or reported.

Brother Harrison was on the bench at the time, and concurred in the opinion that the judgment of the court below should be reversed because the prisoner was not permitted to be present at the view, which was one of the causes assigned for a new trial.

That, like this, was a case turning upon circumstantial evidence. On looking into the transcript we find that during the trial the following order was made:

“And, now, it being, in the opinion of the court, necessary that the jury should view the place in which the offense; named in the indictment herein, is charged to have been committed, it is ordered by the court that the jury be conducted in a body, in the custody of J. C. Hanna, a sworn bailiff' of the jury, herein, who is first duly sworn to suffer no person to speak or communicate with the said jury on any subject connected with the trial, nor do so himself, except the mere showing of the place to be viewed, and return them into court without unnecessary delay and the court appoints Albert Brodie to show the said jury the place where said offence is charged to have been committed, so also the late residence of the deceased, as well as of the accused ; who is first duly sworn as the law requires, and, after a special charge of the court to said bailiff, and to said jury in regard to conversing about the trial of said cause, as heretofore, the jury-retired to view the place aforesaid in charge of said bailiff.”

With the motion for a new trial was filed the affidavit of Albert Brodie, in which he stated that he was appointed and sworn by the court to go with the jury to the place of the alleged murder of John Schiner, and that he did go with the jury, and pointed out to them the place where John Morrow and defendant resided at the time of the alleged murder, and the house also where the said John Schiner resided at the time; and also the cemetery house where Thomas Bevens resided at the time, and the place where the deceased body lay; that the jury, in his presence and company, did visit the places aforesaid, and inspected said houses and the place where the body of deceased was found; and that defendant did not go with them, and was not present with the jury when they visited said places, and viewed the same, but was left with the Sheriff in the court room, when they went out to inspect and examine the places aforesaid.

The record is silent in that case, as in this, as to whether the prisoner asked permission to apcompany the jury, or was offered the privilege of doing so.

The record in the case shows that after the order for the view was made, the appellant was again remanded to the custody of the sheriff, and it is probable that he was in prison when the view was made by the jury.

The places, houses, etc., mentioned in the affidavit of Brodie, in Hurley’s case, were referred to by witnesses examined in court •on trial.

Mr. Wharton says: “The practice which obtains in civil •suits, of permitting the jury to visit the scene of the res gestae, is adopted in criminal issues, whenever such a visit appears to the •court important for the elucidation of the evidence. The visit, however, should be jealously guarded, so as to exclude interference by third parties, and should be made under sworn •officers. Such view may be granted after the judge has summed up the ease. But where only a part of the jury visited the premises, and this after the case was committed to the jury for their final deliberation, this was held ground for a new trial. The visit, also, must be made in the presence of the accused, who is entitled to have all evidence received by the jury taken in his presence." 3 Wharton Cr. L., 7 ed., sec. 3160, p. 151. See also State v. Berlin, 24 La., An. 46 ; Eastwood v. People, 3 Parker C. R., 25.

By the bill of rights (sec. 10) the accused must be confronted with the witnesses against him, but the statute authorizing a view does not contemplate or permit the examination of witnesses at the view. The jury is merely to be conducted to, and shown, the place to be viewed, and the view is made by the jurors to enable them the better to understand the testimony given by the witnesses in court. But though no witnesses are • examined at the view, yet the jurors, from their observation of the place and its surroundings, may receive a kind of evidence from mute things, which cannot be brought into court to confront the accused, and are in their nature incapable of cross-examination.

But in prosecutions for felony the defendant must be present during the trial. If he escape from custody after the trial has commenced, or, if on bail, shall absent himself during the trial, the trial may either be stopped, or progress to a verdict, at the discretion of the prosecuting attorney, but judgment shall not be rendered until the presence of the defendant is obtained. Gantt’s Digest, sec. 1887.

In Sneed v. State, 5 Ark., 432, the court, commenting on section 154, chapter 55, Revised Statutes, (then in force,) which provided that no indictment for felony should be tried unless the defendant was personally present during the trial, said that the statute was declaratory, and an affirmance of the common law, which would not allow any proceedings affecting life or liberty, to be had in the absence of the prisoner, and when any step was to be taken in the canse the prisoner was to be present personally, lest in so important a matter he should be prejudiced. This care of the law for his safety was extended through the whole trial, from his arraignment to his final conviction or acquittal.” See also Cole v. State, 10 Ark., 518; Sweeden v. State, 19 Ark., 209.

The view of the place where the crime is alleged to have been committed, by the jury, is part of the trial, and may be an important step in the trial, and the presence of the prisoner at the view, in a case involving life or liberty, that he may have an opportunity to observe the conduct of the jury^, and whatever occurs there^might be of the utmost consequence to him.

The judge who presides at the trial, and hears the evidence, must determine whether or not a view be necessary; and if, in the exercise of his discretion, he deems it necessary to order the. view to be made, it would be better and safer for him to accompany the jury, if convenient, to see that nothing improper occurs at the view. If not convenient, he may appoint a person to show the jury the place to be viewed, sworn as directed by the statute. If the jurors are familiar with the place, they may be conducted to it by a sworn bailiff in charge of them, and there could be no necessity for the appointment of another person to show them the place.

The accused should be permitted to be present at the view, and, if not on bail, should be in charge of one or more sworn officers, to prevent escape.

There is one paragraph in the general charge of the court to the jury, which we deem it proper to notice, though not objected to by the counsel of appellant when given, nor assigned as a cause for a new trial. It is as follows:

“This case is one turning upon circumstantial evidence, that .is to say, upon a chain of circumstances or facts proven, which point with certainty to the defendant as the person who committed the offense.”

The language here employed was unfortunate. It places the judge in the attitude of assuming that a chain of circumstances ■or facts had been proven in the case, which pointed with certainty to the defendant as the person who committed the offense. Such surely was not the intention of the judge, for in the next paragraph he told the jury that they were the exclusive judges of the facts proved, and that it was their province and duty to decide upon these facts.

The judge was explaining in his charge the difference between circumstantial and direct evidence, and, in the paragraph quoted, doubtless meant to say to the jury that this was a case turning on circumstantial evidence, and that in a case turning on such evidence, there must be proven a chain of circumstances or facts which point with certainty to the defendant as the person who •committed the offense, in order to warrant a conviction.

Had the paragraph in question been objected to by the counsel of the appellant, and the attention of the judge directed to the language employed, we are assured, from his long experience on the bench and his known fairness and impartiality as a judge, that he would have changed its phraseology.

Our opinion is that the motion for a new trial should have been sustained, because the appellant was not permitted to be present at the view, .and for this error the judgment must be reversed, and the cause remanded for a new trial.


text:
    Chrisman et al. vs. Rogers, adm’r.
    1. Demurrer.
    In an action on a bond the question as to whether it was the bond of the party sued, whose signature appears upon it, cannot be raised by demurrer.

      2. Attachment: Surety on discharging bond, Inability of.

    Where an attachment is discharged npon the execution of a bond by the defendant, who afterward appeals, with supersedeas, from a judgment rendered against him in the cause, and judgment is rendered in the appellate tribunal against him and the sureties on his appoal bond, the plaintiff ' has his election either to proceed by execution under the judgment against the defendant and the sureties on the appeal bond, or to sue the surety on the original discharging bond.
    3. Practice: As to reducing to writing the finding of the court.

    The provisions of the Constitution of 1868 and of the Civil Code, requiring a judge who tries an issue-of fact, to reduce his findings to writing, does not apply where the action was on a bond and judgment for plaintiff on. demurrer.
    APPEAL from White Circuit Court.
    Hon. John Whytock, Circuit Judge..

      Benjamin & Barnes for appellant.
    The judgment upon the appeal bond in the Circuit Court was an extinguishment of the bond given in the attachment before-the justice, and released all liens given by the judgment of the justice. See Briscoe v. Sandefur et al.r 14 Ark., 569 ; Phillips et al. v. Wills, Pease & Co., ib., 595; Dougherty v. McDonald, ib.. 597: Rector v. Harris, Norton & Go., 19 Ark., 265; Neele vJeter, 20 Ark., 98.
    The court should have reduced the finding to writing. Const.. of 1868, art. 11, sec. 7.
    The judgment is excessive. It should at most have been for judgment, interest and costs before the justice.

      J. M. Moore, for appellee.
    The liability of appellant on his bond in attachment accrued and became fixed by the judgment before the justice. It was not collateral, and remains positive until satisfied. The judgment was not reversed. Lincoln v. Beebe, 11 Ark., 700.
    Damages asked on affirmance here. Gantt’s Digest, sec. 1096-
    The justice had jurisdiction., as it was^a contract.. Cbnst. 1868, art. 7.
   Walker, J.:

Rogers, as administrator, brought suit by attachment against • Thomas J. Glasscock, before a justice of the peace, upon a noté, of $118.18. A writ of attachment issued, and was levied on the property of Glasscock, and personal service, was made upon Glasscock, who, for the purpose of dissolving the attachment and releasing his property, executed bond to the plaintiff, with Francis M. Chrisman, Robert I. Glasscock and William Hicks as sureties, in the penal sum of $332, conditioned that if the defend-* ant should answer the plaintiff’s demand, and pay and satisfy such judgment as should be rendered against him in this suit, the bond should be void.

At the hearing of the case before the justice, judgment was rendered in favor of the plaintiff, from which the defendant appealed to the Circuit Court, and entered into 'bond with security that he would prosecute his appeal to effect.

Upon the trial of the appeal in the Circuit Court, judgment was rendered against the plaintiff for costs, from which he appealed to the Supreme Court, where the judgment of the Circuit Court was reversed, and, upon a second trial in the Circuit Court, judgment was rendered in favor of the plaintiff against Glasscock and his securities in the appeal bond for his debt, interest and costs.

Without suing out execution, or having satisfaction of the judgment, the plaintiff has brought this action upon the bond given in the attachment suit against Glasscock and his securities on that bond.

The defendant filed a demurrer to the declaration, which was by the court overruled ; the defendant rested on this demurrer. Judgment was rendered. The court assessed damages and rendered final judgment for the amount assessed.

The defendant appealed.

No exceptions were taken, nor was there a motion for a new trial.

The sufficiency of the declaration presents the first question for our consideration.

The action was for debt upon a bond for $332, a sum over which the Circuit Court and justice of the peace have concurrent juridiction under the Constitution of 1868, and the ground of demurrer for this reason was not well taken.

The second cause assigned presents no ground of demurrer, because the bond sued upon imports validity upon its face, and the question as to whether it was or not the bond of the party could only be reached by plea.

The third ground of demurrer assumed that the rendition of the judgment against the securities upon the official bond operated as a discharge of the party to the attachment bond.

And, in support of this position, we are referred to several of our former decisions, which hold that a judgment upon a delivery bond operates as a discharge of. the original judgment. These decisions will be found to have been made under the provisions of the 2666th section Gantt’s Digest, which declares that stay bonds shall have the force and effect of a judgment, and becomes the substitution of a new judgment, with additional security, for the old one. But the judgment rendered in the Circuit Court in this case was under the 3839th section Gantt’s Digest, which declares that when, upon appeal, the judgment of the justice is affirmed, judgment shall be taken against the principal debtor and his securities on the appeal bond. It is true there is no averment in the declaration that an execution has been issued on fhis judgment, and returned no property found, but it is distinctly averred that nothing has been paid upon it, either by the principal debtor or his securities on the appeal bond, nor had it been paid by the principal or his securities in the attachment bond. True the plaintiff is entitled to but one satisfaction of his debt, but he avers that he has had none.

The defendants insist that plaintiff should pursue his remedy upon his judgment in the Circuit Court by execution. Our former decisions have settled the law to be different. In the case of Lincoln v. Beebe, 11 Ark., 697, it was held that the liability of the surety in the attachment bond attaches on the rendition of the judgment against the defendant in the attachment suit, and that they may be sued upon the bond without first issuing execution upon the judgment against the principal debtor.

There defendants bound themselves to pay off and satisfy such judgment as should be rendered against the defendant in the attachment suit.” The declaration set forth the whole of the proceedings to final judgment in favor of plaintiff and avers that such judgment has not been paid.

We think the plaintiff most clearly had his election of remedy, to sue out execution upon his judgment or to sue upon the attachment bond. The demurrer was properly overruled.

It is contended by counsel that it was error in the court below who assessed the damages in the case, to do so without having reduced to writing its finding upon the facts of the case, as required by the Constitution and Code practice.

Section 11, art. 7, of the Constitution ordains : “ That if the trial is by the court, the judge shall reduce to writing his finding upon the facts in the case,” and by the Code practice, sec. 365, it is provided that upon trials of questions of fact by the court, he shall state in writing the conclusions of fact found, separately from the conclusions of law.

These provisions of the Constitution and of the Code are clear, and beyond doubt require that they should be complied with. They required of the judge, who assumed to perform the duties of the jury, to weigh the evidence and state the conclusions of fact found by him; to reduce such finding to writing, together with his rulings of the law applicable to it. They presuppose the existence of an issue of fact, to be determined upon principles of law, as applicable to the state'of facts found. The finding is in the nature of a special verdict, by which, under the law applicable to them the court is enabled to render its decision. But in cases like the one before us, in which there is no issue of fact to be tried, when all the facts are admitted to be true by the demurrer of the defendant, which was overruled, and upon which he rested his case, they are to be considered as true to the full extent that they would upon a special verdict.

Judgment went for the plaintiff upon demurrer, the court had nothing to do but to assess the damages, with regard to which no-evidence was necessary. The suit was in debt upon a bond conditioned that if judgment in an attachment suit should be rendered against the defendant in that suit, he and his securities (these defendants), would pay the judgment, damages and costs. The amount of each is set forth, with an averment that this judgment was recovered in that action; all of this is admitted to be true and confessed by the pleading. Nothing was left for the court to do but to add these sums together, add to them the interest due and render judgment for the amount. There was not even a necessity in this case for calling a jury to assess the damages.

In the case of Witt et al. v. State, 14 Ark., 73, Judge Watkins, who delivered the opinion of the court, reviewed several of our former decisions, in which suits were 'brought on bonds conditioned for the performance of some act or duty other than the payment of money, and such afe were conditioned for the payment of money, and said, “where the condition is for the payment of money, and the amount to be paid is ascertained, or, is ascertainable, by computation,, from the face of the instrument,, the court may, on a judgment by default, or on demurrer, assess the damages without calling a jury to inquire into the truth of the breaches, and assess the damages.”

In the case of Blakely v. Marks, 15 Abbott, 454, it was held that on a money demand, when the amount and interest is admitted, and a special verdict establishes the defendant’s liability, an assessment of the amount of money by a jury is unnecessary.

In the case of Farrar v. Leyon, 19 Mo., 123, Mr. Justice Gamble, who delivered the opinion of the court, remarked that where there are no facts proven upon which a party relies to maintain the issue on his part, it is clear that the court can do no more than find the issue in its own terms in the affirmative or negative as it may be framed. When it becomes a question of law, whether the facts proven maintain the issue, then it would seem proper that the facts proven should be specially found. * * * “This finding of facts by the court when trying a cause is evidently required for the benefit of the parties litigating, and where there is really a dispute between them as to the facts found, it is but giving effect to the Code, to say that the court should in such cases find the facts upon which either party claims that the issue is maintained on his part.”

This view as to the object and the necessity of having the facts of the case, when submitted to the court, reduced to writing, meets our approval, it was for the benefit of parties litigant. When there is a contest between them as to the effect which the law gives to the facts found, and it is only in cases where there is an issue of facts to be found between the parties that it was intended by the framers of the Code Practice that this special finding of the facts should be reduced to writing, and when there is no such issue, no facts to be proven, then there is nothing upon which to have a special finding, and no necessity for stating the rulings of the court upon the questions of law that may arise, because, there are no facts which call them forth, or to which they can apply.

The language of the Code is that upon trials of questions of fact the court shall state its conclusions in writing, and at section 335 defines an issue of facts to be, such as arises upon a material allegation in the complaint, denied by the answer.

All the cases in which it is held that the judge shall reduce to writing his finding of the facts, are such as have been fonnd, and in regard to which evidence might be introduced.

We have two decisions of our own court, neither of which was decided upon a state of case like this.

In Apperson v. Stewart, 27 Ark., 619, the finding of facts was reduced to writing, and filed after trial, and it was held that this was a substantial compliance with Code.

In Simpson v. Simpson, 25 Ark., 458, it was held that the Code practice in this respect applied to suits at law, not in chancery.

In this case under consideration, so far as appears of record, the finding of the court was not reduced to writing, no issue was found, no evidence introduced to sustain it. The several decisions referred to by counsel in 11 Mo., 552, and 19 Mo., 122, 2 Cal., 474, as well as some others, will sustain the position assumed by them, that in all cases in which an issue of fact is submitted to the court sitting as a jury, the judge who presides, and hears the evidence, must reduce to writing his conclusions of fact, and also his ruling of the law applicable to the state of case, and that a failure or neglect to do so is error.

In cases where no issue is formed, as in case of judgment by default, or upon demurrer, the facts being confessed, there is no necessity for reducing to writing the facts found; indeed there is, under such state of case, no facts to find, and it is no ground of objection that such statement has not been made.

It is also contended by counsel that the damages were excessive. This may be true. The difference between the amount claimed in the declaration to be due, for debt, damages and costs, may be, and probably are for a few dollars less than the sum found to be due.

But, as no motion was made for a new trial, and no facts properly brought before us for consideration, such excess (if it in fact exists) we cannot consider.

Finding no error in the judgment of the court below, let the same in all things be affirmed.


author: Harrison, J..

text:
    Alexander vs. Pardue.
    1. Lien: Cannot be created by parol, unaccompanied by possession.

    In a proceeding by attachment to enforce a specific lien for supplies lurnished to raise a crop; held, the lien could not be created by a parol agreement unaccompanied by a transfer of possession.
    2. Demttrber: Irregularity in attachment no ground of.

    The failure of the plaintiff to file a bond, in a proceeding by attachment, is no ground of demurrer to the cause of action.
    APPEAL from Columbia Circuit Courts
    Hon. M. D. Kent, Circuit Judge.

      Smoote & Kelso and Dick Gantt, for appellants.
    ■ Appellant had a future interest in the product of the land, and was entitled to the attachment. Gantt’s Digest, sec. 441. The contract did not create a partnership. Christian v. Croaker, 25 Ark., 327.
    Demurrer not the proper way to object to want of bond.

      S. R. Cockrill, for appellee.
    Complainant shows no interest, or lien, in the property, asks no personal judgment. The proceeding in rem is the primary object, not ancillary. No prayer for relief. Newman’s PI. and Pr., 451. The bond was necessary to give jurisdiction. 2 Nash. PL and Pr., 844-5; Rose’s Digest, 68 (c); ib. 472, sec. 28 et seg. The affidavit is vicious and insufficient.
    There is no allegation of a debt due.
    Parties were partners, and suit did not lie between them. Allen v. Davis, 13 Ark., 28.
   Harrison, J..

Samuel Alexander sued Claiborne S. Pardue, before a Justice of the Peace, upon an account for $354.62, for goods, provisions, etc., setting out in a complaint filed with his account, verified by his affidavit, that he contracted with the defendant to let him have for cultivation in 1873, sixty acres of land, and to furnish him with stock and farming implements to cultivate the same; and also one thousand pounds of meat, one barrel of flour, a half barrel of molasses, and other supplies; and the defendant agreed to pay him as rent for the land, one half the products raised; and to pay him for the supplies, out of the other half of said products. That in accordance with the agreement he furnished the land, the stock and farming implements, and supplies to the value of $354.62, as stated in the account. That there remained to the defendant, after paying plaintiff one-half the crops raised for the rent, four bales of cotton and thirty-five bushels of corn. That said sum of $354.62 was justly due him and was a specific lien on said cotton and corn; that the defendant refused to pay the same out of said cotton and corn; and that he had reasonable cause to believe and did believe, that unless prevented by the court the said cotton and corn would be sold, concealed or removed from the State; and he prayed a specific attachment, etc.

The account and complaint or affidavit were filed on the 26th of December, 1873, and the justice issued an order of attachment against said property, returnable on the 19th of January, 1874, but which does not appear to have been served or returned. The parties appeared before the justice, on the 1st day of January, 1874, when the defendant demurred to the complaint or affidavit. The justice sustained the demurrer and dismissed the suit, whereupon the plaintiff appealed to the Circuit Court.

■ The defendant again in the Circuit Court demurred to the complaint or affidavit, in short upon the record; and the court sustained the demurrer and dismissed the suit. The plaintiff then appealed to this court.

To our mind it is very clear that the'plaintiff had no lien on the crops produced for the money due him for supplies.

A lien is defined to be “a right in one man to retain that which is in his possession belonging to another, until certain demands of him, the person in possession, are satisfied.” Story on Agency, sec. 352; 2 Steph. Com., 132; Houck on Lien, 1.

If it was *the meaning of the contract between the plaintiff and defendant, that the crops should be bound for the supplies, it does not appear that the plaintiff was in possession of the cotton and corn. No presumption of such possession can arise from the fact that the cotton and corn were raised on land belonging to him; for the defendant can be regarded in no other light than as a tenant, and his possession is exclusive of the plaintiffs. A lien cannot be created by a contract not in writing, unaccompanied with possession. Barnett v. Mason, 7 Ark., 253.

The statement in the complaint or affidavit, as we may call it, that the plaintiff had a lien on the cotton and corn for the payment of his account for supplies, if nothing else appeared, might perhaps have entitled him to the order of attachment; but all the facts stated must be considered; and we have just seen that such statement was a mere deduction, and not warranted by the facts.

Before an order for a specific 'attachment may be issued, the statute requires the plaintiff to execute a bond with security to the defendant to indemnify him against any damages that might be occasioned by it. Gantt’s Digest, sec’s 444, 445.

No such bond was given in this case, and that alone was a cause for a quashal of the attachment.

But though the attachment or proceeding against that specific property should have been quashed, that did not deprive the plaintiff of the right to proceed in his suit; and if he proved his demand have a personal judgment against the defendant. Ib., sec’s 459, 463; Childress v. Fowler, 9 Ark., 159.

The defendant for the reasons we have shown might with much propriety, have moved to quash, or set aside the order of attachment, but they offered no ground of demurrer to the complaint or demand. The account filed was a .sufficient statement of the plaintiff’s cause of action, which a failure to sustain the attachment, could not affect or impair.

The court below therefore erred in sustaining the defendant’s demurrer and dismissing the suit, and its judgment is reversed and the cause remanded to it with instructions to overrule the demurrer and proceed according to law.