text:
    Guynn et al. vs. McCauley et al.
    1. --: Jurisdiction of Probate Court over estate of minors.

    The Probate Court has no jurisdiction to authorize a father to sell the land of his minor child, until he is appointed guardian. The appointment of a guardian is the first step in the jurisdiction of the court, but is not complete until his bond as guardian is filed.
    2. Pleading: Denials, how made.

    A general denial of the allegations of a complaint, is not sufficient. Denials must be specific, of each material allegation, or of any Knowledge or information of the fact alleged, sufficient to form a belief of its truth.
    3. ---Statute of frauds.

    One cannot avail himseli of the statute of frauds, at the heariug, unless he has plead it.
    4. Specific Pekfokmance: Voluntary agreement.

    , Chancery will not decree specific performance of a mere voluntary agreement. But when a donee enters into possession and makes improvements on the iand, the money thus expended on the faith of the gift, is a consideration on which to ground a claim for specific performance.
    5. Sale by guardian; when complete.

    A sale by a guardian under an order of the Probate Court, is a judicial sale, and not complete until reported to and confirmed by the court.
    6. Limitations: Statute of.

    The statute of limitation of five years, applicable to judicial sales, saves to minors and persons of unsound mind the period of three years after the disability is removed.

      7. Tax Purchase: By one holding under color of title, when void.

    A party in possession of land under color of title, who receives the rents and profits, more than the taxes assessed upon it, permits it to he sold for the taxes, and to be purchased by his agent, and takes from him a transfer oí the certificate of purchase after he is, reimbursed by accruing ronts, and then procures the tax deed upon the certificate, for the purpose of strengthening his title, acquires no title by said purchase.
    APPEAL from White Circuit Court in Chancery.
    Hon. John Whytock, Circuit Judge.

      Pomeroy, for appellants.

      Turner and Moore, contra.

   English, Ch. J.:

This suit was commenced the 22d March, 1869, on the Chancery side of the Circuit Court of White County, by James A. McCauley and wife, Nannie A. (formerly Bond), and James R. Bond.

In the original bill, Andrew B. Guynn, who claimed title to the lots in the Town of Searcy, which are the subject of litigation, was made defendant.

By an amended bill, Pitchigrew T. Quarles and wife, Emily S., and Wm. G. Turner, representing (as alleged) the estate of James Walker, deceased, under whom plaintiffs claimed the lots, and Robert J. Rogers, a tenant of Guynn’s, were made defendants.

The object of the original bill was to set aside a sale of the lots made to Guynn by John W. Bond, as guardian of plaintiffs, James R. Bond and his sister, Mrs. McCauley, etc.

The amended bill was framed with the double purpose of setting aside the sale, and establishing the legal title to the lots in the plaintiffs as against the defendants representing the estate of James Walker, etc.

The canse was heard on the 6th of February, 1874, on the pleadings and evidence, and final decree rendered in favor of the plaintiffs in accordance with the prayer of the amended bill.

Guynn and his tenant, Rogers, obtained the allowance of an appeal from the decree, November 3d, 1874. None of the other defendants appealed.

It is probable that the judge of the court below (Whytock), treated the order of sale, procured, or attempted to be procured, by John W. Bond, as guardian, etc., from the Probate Court of White County, as null and void, because made during the civil war, inasmuch as the decree styles the court that made the decree “a Confederate Probate Court.”

It seems the order of sale was made 3d of March, 1863, when the war was flagrant, but the order was not on that account void. See Berry, adm’x. et al. v. Bellows, adm’r., 30 Ark., 198, where this subject was fully discussed.

I. We will first enquire whether the probate order of sale, and the conveyance to appellant, Guynn, made by the guardian under the order, can be treated as valid in this suit, and as vesting in Guynn any title to the lots in controversy.

The amended bill, after stating the facts relating to the title of plaintiffs, alleges, in substance, that about the 2d March, 1863, John W. Bond, the father of said James R. and Nannie A., filed a petition in the Probate Court of White County, praying to be appointed their guardian, and for authority to sell the lots in controversy — Lots Nos. 1, 2, 11 and 12, in Block 11, in the Town of Searcy. Whereupon it was ordered that said petition be granted.

That said petition was not verified by the affidavit of any one, and did not disclose any sufficient reason for such sale, nor was any reason shown by the testimony of any witness.

That said plaintiffs were then both over the age of fourteen years, but this fact -was not disclosed in the petition, and they had no notice of said proceedings, and no opportunity to oppose them, or to select their own guardian.

■ That no bond as guardian was ever-filed by said John W. Bond, no legal entry made of his appointment as such guardian, and that he was never legally appointed guardian, etc. ■

That said John W., without other authority than as above . shown, did, .on the 18th July, 1863, in pursuance of a contract entered into previous to said probate proceedings,- by deed of that date, convey, as such pretended guardian, said lots one and two (and others not in controversy), to one Nathaniel M. Mulhollan.

That afterwards, on the 5th of October, 1865, Mulhollan, by deed of release and quit claim of that date, reconveyed to said John W. all his right, title and claim to said lots, etc.

That on the 24th December, 1866, said John W. Bond, by deed of that date, conveyed all of the lots in controversy to defendant Guynn, who had ever since had possession of them by himself or tenants.

A transcript the proceedings in the Probate Court and copies of the above deeds, are made exhibits.

It is also alleged that John W. Bond sold the lots for Confed.erate money, and that none of the proceeds of sale ever came to the hands of plaintiffs, or to the hands of any person for them, either before or since their arrival at the age of majority.

That the sale of the lots made by their pretended guardian was never reported to the Probate Court, nor by it'approved.

The petition of John "W. Bond to be appointed guardian, etc., as it appears in the transcript exhibited with the bill, is addressed to the Hon. Milton Sanders, Judge of the Probate Court of White Countyand states in substance and effect, that in the year 1849, James Walker, late of said county, gave to the two children of said petitioner, Nannie A. and James R. Bond, Lots Nos. 1, 2, 11 and 12, in Block 11, in the Towm of Searcy; whereupon the petitioner made various and valuable improvements upon the lots. That in consequence of his leaving the Town of Searcy, and from the condition of the improvements alluded to, they would soon begin to decay, and ultimately become valueless. He therefore prays the Probate Judge to appoint him guardian for the said children, and give him, by an order of the- court, authority to. sell and dispose of said lots to the best interests of his said children. • ■

It seems the petition was filed 2d March, 1863, but it does not appear to have been sworn to.'

The order of the Probate Court made upon the petition, as it appears in the transcript exhibited with the bill, is as follows:

“John W. Bond, Guardian :

“Comes John W. Bond, guardian of Nannie A. and James R. Bond, and presents his jjetition to the court, which petition is in the words and figures as follows, to-wit(Here the petition is copied.)

“After a careful examination, and on due deliberation had in the premises, it is hereby ordered and decreed by the court that petition be granted said guardian.”

It .seems that this order was made on the 3d of March, 1863.

The deed from John W. Bond to Mulhollan dated 18th July, 1863, recites an order of the Probate Court authorizing him, as guardian of his minor children, Nannie A. and James R., to sell the lots therein described, and proceeds to convey to Mulhollan in his capacity as such guardian, for the consideration of $1000, Lots Nos. 1, 2, 3, 4, 5, 6, 7 and 8, in Block 11, Moore’s Addition to the Towm of Searcy.

The deed of Mulhollan back to Bond, dated 5th October, 1865, for the consideration of $1, remises, releases, etc., to Bond all the right, title, claims, etc., vested in Mulhollan by Bond’s deed of 18th July, 1863.

The deed of Bond to Guynn, dated 24th December, 1866, recites an order of the Probate Court, authorizing Bond, as guardian, etc., to sell Lots Nos. 1, 2,11 and 12, in Block 11, etc., as the property of his children and wards, Nannie A. and James R.; the sale and conveyance by Bond, as guardian, under the order of court, to Mulhollan, 18th July, 1863; the deed of release and quit claim made by Mulhollan to Bond, 5th October, 1865; and then Bond proceeds, in his own capacity as such guardian, to convey said lots to Guynn for the consideration of $1.

Guynn, in his answer, in effect, admits the application of Bond to be appointed guardian, etc., the order of the Probate Court made thereupon, etc., and that the transcript of the record, etc., exhibited with the bill, contains substantial copies of the petition, order, etc. He admits also the execution of the several deeds set out in the bill, and made exhibits.

He does not aver, nor is it in any way shown, that any other fact appears of record in the Probate Court in relation to the appointment of Bond as guardian, or the sale of the lots by him, than such as are shown in the transcript from the record exhibited with the bill.

Can the order of sale, and the sale and conveyances made under it, upon the facts disclosed in the record before us, be treated as valid in this proceeding?

By the Constitution in force at the time the order in question was made, it was provided that the Probate Court should have such jurisdiction in matters relating to the estates of deceased persons, executors, administrators and guardians, as might be prescribed by law, etc.

The statutes in force at the time the order was made in relation to the appointment, qualification, etc., of guardians for minors, are contained in Gould’s Digest, chap. 81.

The Probate Courts were empowered to appoint guardians for minors, etc., sec. 1.

See. 5 declares that: “The father shall be the natural guardian of his child, and shall have the care of his person and education, but-in no case shall he have the care and management of his estate, unless he be appointed by the court for that purpose, when he shall give bond and security in the same manner as other guardians.”

By sec. 10, every person appointed guardian, is required, at the term of the court at which he may be appointed, to enter into bond, with security, to his ward, in a penal sum to be determined by the court, and the condition of the bond is prescribed.

By section 11, the bond must be filed in the office of the cle.rk of the court, and a copy is made evidence.

By sec. 12, “ No entry of the appointment of a guardian shall be made, until bond and security be given, and the same be approved by the court.”

By sec. 28, “ No person shall have any right or authority over the property of a minor, unless he shall have been appointed by the court, etc.”

By act, 23d December, 1846, the Probate Courts were empowered to grant orders to guardians to sell real estate of their wards. This act is embraced in secs. 180 and 181, chap. 4, Gould’s Digest, p. 131.

■ “Sec. 180. The Probate Court shall have power, upon the proper affidavit being filed, as hereinafter provided for, to grant orders to executors, administrators and guardians, to sell any, or all real estate belonging to an estate not otherwise provided for.

“Sec. 181. The ■ executor, administrator or guardian, who may make application for the sale of real estate, shall first make affidavit that the said real estate cannot, under present circumstances, be available to the. estate, and that said estate will be benefitted by said sale, showing the reason why; and shall present the affidavit of some disinterested person of known good character, verifying the same fact set forth in his or their affidavit ; whereupon, the court may grant an ordei\ for the sale of said real estate, which sale shall be conducted as the court may direct, and upon terms approved by the court.”

The father of the minors had no right to sell their real estate until he was duly appointed their guardian, and obtained an order of the court authorizing him to make the sale.

The Probate Court had no jurisdiction to grant the father an order to sell the lots of his minor children, until he was duly appointed their guardian. The first step in the .actual jurisdiction of the court over the estate of the minors, was the appointment of their guardian. Sturdy and wife, et al. v. Jacoway, 19 Ark., 515. The appointment was not complete until the applicant entered into bond. The statute declares that no entry of the appointment of a guardian shall be made until bond and security be given, etc.

The transcript of the record of the Probate Court exhibited with the bill, shows that the father applied to be appointed guardian of his two minor children, etc., the petition is copied in the entry, and it is then stated that the petition was granted by the court. There is no indication in this record entry that the applicant gave any bond, nor is it otherwise shown. On the con-, trary, it is averred in the bill that he gave no bond, and this allegation is not specifically denied by the answer of defendant Guynn.

Under the Code practice every material allegation of the complaint not specifically controverted by the answer, is taken-to be true. 'Gantt’s Digest, sec. 4608.

It is true that in the beginning of the answer of Guynn, he- ■ states that he “denies each charge and allegation in said complaint contained, except as hereinafter specifically admitted, explained or qualified.”

The answer must contain a denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof, sufficient to form a belief. Gantt’s Digest, secs. 4569, 4608.

A material allegation in a pleading, is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient. Ib. sec. 469. A general denial of the allegations of the bill is not sufficient.

To prevent a material allegation of the bill from being taken as true, it must be specifically denied by the answer, or the defendant must state that he has not sufficient knowledge or information in regard to the fact alleged to form a belief as to whether it is true or not true. Newman Plead, and Prac., 509,. 515.

The next step required to empower the Probate Court to make an order authorizing the guardian to sell real estate of his ward, is for the guardian'to make and present the affidavit, and the supporting affidavit of some other person, as prescribed by the statute above copied.

There is no indication in the transcript of the record of the Probate Court made an exhibit to the bill, that any such affidavit, by the guardian or any other person, was presented with the application for the order of sale, and it seems that the petition, which is copied in the entry, was not sworn to.

Indeed it is inferable from the terms of the entry, that the court acted upon the petition alone, supported by no affidavit.

The bill alleges that the petition was not verified by the affidavit of any one, nor the testimony of any witness taken, and-these allegations are'not denied by the.answer of Guynn, otherwise than in the general mode above indicated.

When an application is made by a guardian for an order to sell the real’estate of his ward, and the affidavits required by the statute are presented, the court may grant an order for the sale, which sale is to be conducted as the court may direct, and upon terms approved by the court. Such is, in effect, the language of the statute.

In this case Bond presented his petition for the double purpose of being appointed guardian for his two minor children, and for an order to sell their real estate. And the court simply ordered that “the petition be granted,” making no directions whatever as to the manner or terms of sale.

The order was made, it seems, on the 3d of March, 1863. On the 18th July following, Bond sold and conveyed to Mulhollan two of said lots named in his petition, and others not named, for $1000, in Confederate money it is alleged and not denied.

On the 5th of October, 1865, Mulhollan reconveyed the lots to him, by quit claim deed; and on the 24th December, 186.6, more than three years after the Probate Court made the order of sale, he conveyed to Guynn the four lots named in the petition for $1.

It is alleged in the bill, and not denied in the answer of Guynn, otherwise than as above indicated, that the sale was not reported to the Probate Court, nor approved by it.

It is also alleged in the bill, and not directly denied by the answer, that appellees received none of the proceeds of the sale.

A sale made by a guardian, under an order of the Probate Court, is a judicial sale, and not complete until reported to and confirmed by the court. Rorer on Judicial Sales, p. 3-10, and cases cited.

In Sturdy and wife, et al. v. Jacoway, 19 Ark., 499, the leading case on the subject of sales of real estate under orders of the Probate Court, the substance of the ruling is, that the order of the Probate Court for the sale of the real estate of a deceased person, is a judgment in rem; and, being the judgment of a court of competent jurisdiction, upon a subject within the scope of its legitimate powers, imports a necessity for the sale, and cannot be attacked and held for naught collaterally upon the ground that the court erroneously exercised its powers; nor can the proceedings and sale, under such judgment or order, when reported to and confirmed by the Probate Court, be impeached collaterally; nor the title called in question for any omission in obtaining the order of sale, or other irregularity.

The case was ejectment by the heirs .of the deceased owner of the land against the purchaser at the administrator’s sale, made under order of the Probate Court, who relied upon the order of sale and the admistrator’s deed for title.

The sale seems to have been made under the statute above copied, and all of the material facts requisite to give the Probate Court actual jurisdiction over the land, and to make the order of sale, -were made to appear.

There was an administrator; he made application for the order of sale, by sworn petition supported by the affidavit of another person; the court ordered the sale, and directed its mode and terms, and the sale was reported to the court, and approved by it. There were errors in the proceedings, which might have been reviewed on appeal, etc., but they were not such as to make the sale void.

In Fleming v. Johnson et al., 26 Ark., 421, the ruling in Sturdy and wife et al. v. Jacoway, was followed.

That case involved the validity of a guardian’s sale made under an order of the Probate Court. The order was made under the same statute which we are considering. A subsequent guardian brought ejectment for the land against the person who purchased from the first guardian under the-order of sale. The court directed the guardian to sell at private sale, for not less than a sum fixed in the order. The sale was made, reported and confirmed by the court. There were errors in the proceedings, but this court held that the material jurisdictional facts appeared by the record of the Probate Court, that irregularities in the sale were cured by its confirmation, and that the sale Avas valid.

The appointment of the guardian Avho made the sale Avas questioned, but held to be legal; and the record entry of the order of sale'showed that he presented his petition for the order, verified by affidavit, etc. ' .

So in Montgomery and wife v. Johnson et al., 31 Ark., 74, the material jurisdictional facts appeared, and the sale Avas reported to and confirmed by the Probate Court.

In this case it appears that the guardian gave no bond, and hence he Avas not legally appointed.; that his petition for the order of sale Avas not verified by any affidavit; that the court gave no direction as to the mode or terms of sale; that he sold two of the lots described in his petition, and six others, not embraced in the petition, for $1000 in Confederate money; that all of these lots Avere aftenvards reconyeyed to him by quit claim deed, and that after the lapse of thre'e years from the date of the order of sale, he'conveyed the four lots embraced in the order to' appellant Guynn for a nominal sum ; that the sale was not reported to the Probate Court, nor confirmed by it, and that -his Avards received none of the proceeds of the sale.

Upon all these facts, taken together, Ave do not see how a Court of Chancery can treat the sale as valid, in a proceeding like this to set it aside.

II. Appellant Guynn, admits in his answer, that Bond, as guardian, etc., by deed bearing date 24th December, 1866, conveyed the lots in controversy to him, and that he took possession of them under and by virtue of said deed, and has since held possession of them by his tenant Rogers, and he pleads and relies upon the statute of limitations of five years'1 applicable to judicial sales.

Though the sale was not confirmed by the Probate Court, it is probable that an adverse holding under the deed of the guardian for the full period of limitation, might be a bar to the recovery of the lots. Gowan v. Jones, 10 Sm. and Mar., 164.

But the statute of five years applicable to judicial sales, (Gantt’s Digest, sec. 4116), saves to minor and persons of unsound mind the period of three years after such disability shall have been removed.

It is stated in the bill, that James R. Bond was not over one year and Nannie A. not over three years of age, in the year 1849, when James Walker gave them the lots in controversy, and there is in the transcript a written admission by the counsel of appellants that their ages are correctly stated in the bill.

Neither of them had been of age, therefore, as long as three years when the suit was commenced (March 22d, 1869), nor had five years transpired from the date of the deed under which Guynn took possession of the lots.

III. Guynn also sets up in his answer, and relies for title upon a tax sale and deed.

In his answer he states, in substance, that after he took possession of the lots in controversy, and after the claim of the plaintiffs had been spoken of, he, having become bankrupt, failed to pay the taxes assessed upon the lots ■ for the year 1868, and they were returned -by the Collector of White County delinquent ; and afterwards 'duly advertised by him for sale' for taxes' charged upon them for that year, and the penalty and costs, and were sold therefor on the 2d of August, 1869, and bid off by John A. Cole for the sum of $24.66, who paid his bid, and received from the Collector a certificate of purchase. That on the 15th of August, 1871, defendant becoming able to do so, purchased the lots of Cole for the sum of $50, and that Cole assigned to him, in consideration thereof, said certificate of purchase ; and that On the 19th of February, 1872, he presented the certificate to the Clerk of White County, and he executed to him a tax deed for the lots, Avhich is made an exhibit to his answer; Avhereby he claims to be the rightful OAvner of the lots, and entitled to the rents and profits thereof.

The tax deed recites that the lots Avere assessed in the name of Guynn for the year 1868, and sold upon his failure to pay the taxes, etc.

On this branch of the case two depositions were taken.

B. D. Turner deposed that he was present at the tax sale, and when Cole made his bid, he announced that he had bid for Guynn, and no one bid against him. That Avithin a year after the sale, he called on Cole, AA'ho was clerk of the county, and, as agent and attorney of plaintiffs, offered to redeem the lots, but Cole refused to permit the redemption, on the ground that plaintiffs had no such title as Avould authorize them to redeem, etc.

John A. Cole deposed that he Avas Guynn’s agent in the year 1869 ; and that he turned over the rents collected from the lots in controversy for that year to the attorneys of Guynn in payment of their fees. That at the time of the tax sale, he had no money of Guynn's in his hands, out of which to pay the taxes on the lots ; and bought the lots at the sale in his own name. That after the expiration of two years from the sale, still remaining the agent of Guynn, and having come into possession of money of his sufficient to reimburse himself for the taxes, he transferred to him on the 15th August, 1871, the certificate of purchase for the exact amount he had originally paid out for the lots; and on the 19th February, 1872, being county clerk, he executed to him a tax deed upon the certificate, and delivered the deed, after recording it, to his attorneys.

On cross-examination, he deposed that he had been Guymfis agent for renting the lots, and other property, collecting the rents, and paying his taxes ever since the year 1868. That about the beginning of the year 1869, he rented the lots for that year at $125; for the year 1870, at $100; for the 1871, at $150, and for the year 1872, at $150, but allowed $50 for repairs. Out of the rents he had paid the taxes, and about $80 for repairs on the premises. He transferred the certificate of purchase to Guy.nn, instead of marking the lots redeemed, for the purpose of strengthening his title, etc.

The lots were sold for taxes after this suit was commenced, but Guynn did not file his answer until after he obtained the tax deed.

He was, by his agent, in possession of the lots, under color of title, and receiving the rents and profits, which were more than sufficient to pay the taxes assessed upon the property. It is manifest that he permitted the lots to be sold for taxes, purchased by his agent, Cole, and obtained from him a transfer of' the certificate of purchase, after he had been re-imbursed, by the collection of rents, the money paid upon his bid, and procured from him the tax deed for the purpose of strengthening: his title to the lots. Under such circumstances, he acquired no' valid title to the lots by the tax deed. Pleasant et. al. v. Scott et al., 21 Ark., 370; Jacks v. Dyer et al., 31 Ib., 344: Frierson, ex’r, et al. v. Branch, ex’r., 30 Ib., 464; Pettus & Glenn v. Wallace et al., 29 Ib., 476.

IV. Appellant, Guynn, also relies upon the defense 'of innocent purchaser, etc.

In his answer he states that he purchased the lots in good faith for a valuable consideration, which was all paid, believing. that Bond and Mulhollan were legally authorized to sell and-convey the same, and without any knowledge or suspicion that the title to the lots was claimed to be imperfect, or of any illegality in the transaction, or any fraud upon the rights of plaintiffs, etc.

He avers that the re-conveyance by Mulhollan to Bond was without consideration, and made by the former for the purpose of avoiding the making.of a deed directly to him. That Mulhollan was in truth and in fact his vendor, and received the .purchase money of him for the lots.

In his deposition, he states that he purchased the property in controversy from Mulhollan in 1865, for which he paid him about $1500 in cotton then in Memphis; and at the time of said purchase, and until after the payment of the- whole of the purchase money, he had no notice of plaintiffs’ claim to said property. That when the conveyance was to be made, Mulhollan conveyed back to Bond, from whom he had purchased, and Bond executed a deed to him.

The deed of Bond to Mulhollan embraced but two of the lots in controversy, as we have above seen, and was made by him in ' his capacity as guardian.

So the deed of Bond to Guynn was made by the former in his capacity as guardian, for a nominal consideration and without warranty of title.

. - The rule caveat emptor applies to judicial sales. Guynn in accepting a deed from one claiming to sell and convey as guardian, was. obliged to enquire, and he had the means of ascertaining, by what authority he acted, and he took the' conveyance at his peril. Rorer on Judicial sales, sec. 450; Worthington adm’r. v. McRoberts et al., 9 Ala., 297; Bingham et al. v. Maxcy, 15 Ill., 295

V. The counsel for appellants submit that appellees must recover upon the strength of their own title, and that they have failed to show in themselves any such title as a Court of Equity will enforce.

In the amended bill, the title of the plaintiffs is stated in substance as follows:

About the year 1849, James Walker, since deceased, who was the owner in fee of the four lots in controversy, feeling greatly attached to plaintiffs, James R. and Nannie A., who were the children of his son-in-law John W. Bond, (whose former wife was a daughter of said James Walker) and regarding said plaintiffs in the light of his own grand children, in consideration of his love and affection for them, verbally gave them • said lots. At the time of said gift said plaintiffs were very young, James R. not over one year, and Nannie A. about three years of age. In pursuance and completion of said gift, said donor delivered said lots to them or to their father for them, and put them in possession thereof; and their father for them erected a valuable residence and other tenements and improvements thereon, and he and plaintiffs resided together on the lots from thence until about the month of January, 1856, when they 'let them to a tenant, and moved to another place, but continuously from the time of taking possession in 1849, to the 11th day of July 1863, they had actual possession of said lots, occupying them themselves, or by tenants.

James Walker died in January, 1852, having executed no deed to plaintiffs for the lots, leaving him surviving his widow, Mary Walker, a son, John M. Walker, a daughter, Mary Walker, who had intermarried with one Alexander Walker, and a grand ' daughter, Emily S. Walker, the daughter of his deceased son, Crawford Walker, as his only heirs and distributees; and'leaving also a will by which (with the exception of three tracts of land which he directed his executors to sell) he devised to his said widow his entire real estate during her life, and in the event of her death before the arrival of his son’John M. Walker to the age of twenty-one years, said real estate was to be equally divided, on his arrival to said age, between him and his said sister Mary Walker and her bodily heirs; and in the event of the death of said John M. Walker without bodily heirs, his entire'interest in said estate to descend to said Mary Walker and her bodily heirs.

The widow of the testator died before the death of John W. Walker, and he died without bodily heirs before attaining the age of twenty-one years. Afterwards Alexander Walker died, and his widow, Mary Walker, about December, 1856, intermarried with one Thomas Watkins; and afterwards, on the-day of-1857, they (Watkins and wife) to perfect said gift of James Walker, executed to said plaintiffs a deed for said lots. After this Mary Watkins died, leaving two children, Alexander Walker, a son by her former husband, and Mary I. Watkins, a daughter by Thomas Watkins. ■ Afterwards, on the -day of-1858, both of said children died, said Alexander dying first.

About.the-day of-1857 or 1858, said Emily S. Walker intermarried with Pichegru T. Quarles.

In the year 1854 or 1855, said Emily S. by her guardian instituted suit in the Circuit Court of White County, against Alexander Walker and his wife Mary Walker, for one half of' the’ personal and real estate of said James Walker, deceased, and upon their death, and the death of said children of said Mary, said controversy being still unsettled, and said Thomas Watkins claiming the interest which had descended to his said child Mary Jane, hé and said Quarles and wife agreed to compromise and did compromise said controversy as to the real estate, by joining in a conveyance, by which they conveyed to one William G. Turner in trust, all the real estate which was owned by and belonged to said James Walker, at the time of his death, to be, by said Trustee, sold and conveyed, to whomsoever said parties, Watkins and Quarles and wife, should in writing request,1 and the proceeds of such sale to be divided so as to give one half to said Watkins and the other half to said Quarles and wife.

That the legal title to the lots in controversy was in James Walker at the time of his death, and by the conveyance last above mentioned, was vested for at least the undivided half, if not for the whole of the lots, in said Turner, as trustee.

That said Emily S., while sole did not, nor have she and her husband since her marriage, executed any deed to plaintiffs for said lots, but refuse to do so, or to authorize said Turner so to do.

The bill then proceeds to state the application of John W. Bond to the Probate Court to be appointed gaurdian of the said plaintiffs, etc., the order of the court, and the conveyances made by him, etc., as above shown, and concludes with a prayer that the deed to Guynn be set aside and canceled, and that all the right, title and claim of the defendants, and each of them, in and to the lots be divested out of them, and vested in plaintiffs, and that they have possession, rents, etc.

Quarles and wife did not answer the bill.

William G. Turner answered, admitting the allegations of the bill to be true, stating that he had no interest in the lots except such as was vested in him as trustee, by virtue of the deed mentioned in the bill as executed to him by Watkins, Quarles and wife, and professing willingriess to release and convey any interest or title held by him to whomsoever the court might direct.

By the manner in which Guynn answered the allegations of the bill, as above indicated, he, in effect, admitted them be true, • and failing to plead the statute of frauds, he-could not avail himself of it as a defense át the hearing. Wynn v. Garland, 19 Ark., 34.

But had he pleaded the statute of frauds, it would have availed him nothing upon the facts alleged in the bill; for although a Court of Chancery will not decree the specific performance of a . mere -voluntary agreement, yet, where a donee enters into possession of land under a parol gift, and makes valuable improvement on the land on the faith of the gift it constitutes a consideration on which to ground a claim for specific performance. Kings heirs v. Thompson and wife, 9 Peters, 204; Haines et al v. Haines et al., 4 Maryland Ch., 133 ; Shepherd v. Berin et al., 9 Gill, 32.

We do not deem it necessary to decide whether Guynn having accepted a deed from Bond as guardian of appellees (James R. and Annie A.,) and gone into possession of the lots under it, could be heard to question their title or not.

It may be a hardship for Guynn to lose the lots after paying ■ Mnlhollan a fair price for them, but he should have required him to perfect his title, and make him a good deed before parting with his cotton. In permitting Mulhollan to quit-claim to Bond ■ and accejDting a deed from him as guardiain, without warranty, • he acted at his peril. He does not occupy the attitude of an innocent purchaser as-against appellees, as we have shown.

The decree is affirmed.


source: Caselaw Access Project

author: English, Ch. J.:

license: Public Domain

text:
    State of Arkansas vs. Kirkpatrick.
    1. Cjriminal Law: Perjury; Evidence of Affidavit.

    In prosecution for perjury, oral evidence of the false affidavit, is not admissable, where there is no showing that neither the original nor a certified ■ copy of it, can be produced.
    2. --: Jurisdiction; Quaslving Indictment.

    When the court sees it has no jurisdiction, it should quash the indictment of its own motion.
    3. --:
    Perjury is an offense against the sovereign whose law is violated by the making of the false oath.
    The courts of no country execute the penal laws of another.
    5. --:
    The clerk of the county derives his authority to take affidavits for homesteads in the lands of the United States, from the Act of Congress, and not from the statutes of this State, and such false affidavit taken before the clerk, is not punishable as perjury, in the courts of this State.
    6. --:
    Some acts are offenses against the laws of both the State and the United States, and punishable in the courts of either or both. See opinion for examples.
    APPEAL from Clark Circuit Court.
    Hon. L. J. Joyner, Circuit Judge.

      Henderson, Attorney General, for appellant.
   English, Ch. J.:

Kirkwood was indicted for perjury, in the Circuit Court of Clark County, at the April Term, 1876; the indictment charging in substance:

That “said J. H. Kirkpatrick, at, etc., on the 10th day of January, 1876, did wilfully, corruptly, and falsely swear before R. R. Ross, Deputy Clerk of Jesse A. Ross, Clerk of the Circuit Court of Clark County, he, the said R. R. Ross, being authorized by law to administer oaths ; that he had not thereupon had the benefit of an Act of Congress approved May 20th, 1862, entitled 1 An act to secure a homestead to actual''settlers on the \ public domain5; and he, the said J. H. Kirkpatrick, further made oath, that he had made a bona fide settlement and improvement, and was residing on 'certain lands for the securing of which he, the said J. H. Kirkpatrick, was then and there making application to secure as a homestead, to-wit: The southeast quarter of the southeast quarter of section thirty-three, and the south half of the south-west quarter of section thirty-four; and the southeast quarter of the southeast quarter of section thirty-four, all in township five south, range twenty-two west. 'Which said oath was material to secure said lands as such homestead; and the said J. H. Kirkpatrick well knew the same was false when he made the same as aforesaid; the truth being, that he had theretofore made an application to homestead certain lands; and that said J. H. Kirkpatrick had made no settlement or improvement, and was not residing on said land above described. And so the jury say, that the said J. H. Kirkpatrick, in the manner above stated, committed perj ury, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Arkansas.55

The defendant waiving arraignment, entered the plea of not guilty, and was put upon trial. The State introduced A. M. Crow as a witness, to prove that the defendant had made affidavit of settlement and cultivation before the Clerk of Clark County, in order to secure a homestead under the Laws of the United States; whereupon the defendant moved to exclude such testimony, and the court sustained the motion. The State also offered testimony to prove that defendant had made no settlement and cultivation at the date of said affidavit, which testimony was excluded by the court, on motion of defendant; to each of which rulings the State excepted. The State offering no further evidence, the jury returned a verdict of not guilty, arid judgment was entered discharging defendant. The State appealed.

By sec. 2'of the Act of Congress, approved 20th May, 1862, •“to secure homesteads to actual settlers on the public, domain,” (12 U. S. St. L., 392) the person applying for the benefit of the act, is required to make affidavit- before the register or receiver, stating the facts, prescribed by the act to entitle the applicant to a homestead entry,, and to file the affidavit with the register or receiver.

The original act contained no provision for making such affidavit before the clerk of a state court.

But by sec. 3 of the Act of 21st March, 1864, Amendatory of the Homestead Law (13 U. S. St. L., 35) it is provided:

“That- in any case hereafter in which the applicant for the benefit of the homestead, and whose family or some member thereof, is residing on the land which he desires to enter, and upon which a bona fide improvement and settlement had been made, is prevented, by reason of distance, bodily infirmity, ór other good cause, from personal attendance at the district land office,, it shall and may be lawful for him to make the.affidavit required by the original statute, before the clerk of the.court for the county in which the applicant is an actual resident, and to transmit .the same, with the fee and commissions, to the register and receiver.”

It was for making a false affidavit under -this act, that appellee was indicted for perjury.

Mr. Greenleaf, treating of proof in cases of perjury,, says “where the .oath was made to an answer in chancery, deposition, affidavit, or other written p’aper, signed by the party, the original document should be produced, with proof of his handwriting, etc.” 3 Greenleaf. Ev., sec. 192.

In this case the State, it seems, neither offered in evidence the original affidavit, nor a certified copy from the land office; nor made any showing that neither could be produced, but offered a witness to prove the oath. The court below did not err in excluding the evidence so offered.

It is suggested, however, that the court excluded the evidence offered, on the ground that it had no jurisdiction to .try and punish the offense charged in the indictment, and the Attorney General has filed the transcript here for the purpose of having that question decided, under sec. 2128, Gantt’s Digest.

If the court below was of the opinion that it had no jurisdiction of the offense charged, it should have quashed the indictment of its own motion, no demurrer or motion to quash being interposed by the defendant. It was useless to put him upon trial, • on the plea of not guilty, exclude the evidence offered by the State, and permit a verdict of acquittal to be rendered, if the court had no jurisdiction of the offense.

We have however, examined the question of jurisdiction, and have no objection to expressing an opinion on the subject.

The clerk derives his authority to take the affidavit, from the Act of Congress, and not from any statute of the State. Whether a deputy of the clerk can administer the oath, we have no occasion to decide in considering the question of jurisdiction. See United States v. Barton, Gilpin’s R., 443.

There being no law of the State requiring, or imposing it as a duty upon the clerk to take the affidavit, he being merely authorized to do so by Congress, for the purposes of the Homestead Act,-he is at liberty to administer,the oath,, or deciine it, as he may think proper. State v. Whittemore, 50 New Hamp., 250; United State v. Bailey, 9 Peters, 253.

Perjury is an offense against the sovereign whose law is violated by the making of the false oath.

The courts of no country or sovereign, execute the penal laws of another. Story, on Confl. L., sec. 621; The Antelope,TO Wheaton, 66, 123.

In this country, where the citizens owe allegiance to two sovereigns, the State and Federal governments, there are certain crimes which are offenses against the laws of both sovereigns, and they may be punished in the, courts of either. For example, the State has passed statutes to punish the passing of counterfeit coin, etc., and Congress has enacted similar laws and a person passing or uttering such coin, etc., criminally, may be punished by the proper court of either government. Fox v. The State of Ohio, 5 Howard, 411; United States v. Marigold, 9 Howard 561.

Another example may be given, in the language of Mr. Justice Grier, in Moore v. Illinois, 14 Howard, 20. Where the same act may be an offense against both sovereigns, and punishable by both: “Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two-sovereigns, and may be liable to punishment for any infraction of the laws of either.” The same act may be an offense or transgression of the laws of both. Thus an assault upon the Marshal of the United States, and hindering him in the execution of legal process, is a high offense against the United States, for which the perpetrator is liable to punishment: and the same act may be also a gross breach of the peace of the State, a riot, assault, or murder, and subject the same person to punishment, under the State laws, for a misdemeanor or felonly. That, either or both may (if they see fit) punish such offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense : but only that by one act he committed two offenses, for each of which he is justly punishable.”

We have no special statute' making it perjury to make a false oath before a clerk, who administers such oaths under the authority conferred upon him by, and for the purposes of, the Homestead Act of Congress.

The general statute defines perjury thus:

“Perjury is the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any cause, matter, or proceeding before any court, tribunal, body corporate, or other officer having by law, authority to administer oaths.” Gantt’s Digest, sec. 1415.

“The wilful and corrupt .swearing, affirming, or .declaring falsely to any affidavit, deposition, or probate, authorized -by law to be taken before any court, tribunal, body politic, or officer, shall be deemed perjury.” Ib., sec. 1416.

The oath in this case was not taken under or by virtue of any law of the State, nor by an officer acting, in administering the oath, under authority conferred upon him by any law of the State, nor was the affidavit to be used in any court, tribunal or before any officer of the State.

On the contrary, the oath was taken under the Homestead Act of Congress, it was administered by an officer acting under authority of that act, and the affidavit was taken to be used before a United States land officer to procure a homestead entry. If the oath was wilfully false, it was an offense not in violation of a State law, nor against the sovereignty of the State. United States v. Bailey, 9 Peters, 238.

In People v. Sweetman, 3 Parker’s Criminal Rep., 358 ; held that under the Act of Congress, the County Courts of the several counties of the State of New York had jurisdiction of the naturalization of aliens. That the State Courts in entertaining jurisdiction of cases of naturalization, act exelusivly under the laws’ of the United States, and should be deemed quoad hoc, ■courts of the United States. And that wilful false swearing by a person giving material testimony in a naturalization proceeding, before a County Court, Avas an offense against the laws of the United States, and punishable in the United States Courts.

In Rump v. Commonwealth, 30 Penn. State R., 475; held that a person who made a false oath in a naturalization proceeding before the District Court for the City and County of Philadelphia, was indictable in the State Court, but this was p.ut upon the ground that a statute of the State, as well as the A.ct of Congress,, conferred upon the courts of the State jurisdiction to naturalize aliens. This case was approved in a similar case in New Hampshire State v. Whittemore, 5 N. H, 246.

But the Pennsylvania case was a stronger one in favor of the jurisdiction of the State Court, than the case now before as. There, the oath was taken in a proceeding in which the State Court was exercising jurisdiction; here, the affidavit was made to be used before a Federal land officer.

In ex parte Dock Bridges, 2 Wood’s R., 428; Bridges was indicted in the Superior Court of Randolph County, Georgia, for perjury committed October, ¿7th 1874, in an examination before a United States Commissioner, under the Improvement Act. He was released, after conviction, on habeas corpus, by Mr. Justice Bradley, on the ground that the crime with which he was charged was an offense against the laws of the United States, and not against the laws of Georgia. ’ That it would be a manifest incongruity for one sovereignty to punish a person for an offense committed against the laws of another sovereignty.

. We are of opinion that the court below had no jurisdiction of the offense charged in the indictment in this case.,

Affirmed.


author: English, Cb. J.:

text:
    Martin vs. The State.
    1. Criminal Law: Voluntary Escape.

    A voluntary escape, is where one having a felon lawfully in his custody, voluntarily permits him to escape from it, or to go at large: and this is felony, if the person be imprisoned for felony, and treason if he be imprisoned for treason, etc.; but the person, or officer voluntarily permitting such escape, is not to be tried until the party escaping is convicted.,
    2. --: Negligent Escapes.

    Negligent escapes of felons, are not felonies, but punishable by fine and imprisonment upon the officer or person that suffers them, and he may be punished for a misdemeanor, before the conviction of the principal party.
    3. --: Same; How Indicted.

    The statute provides for the punishment of voluntary escapes, but negligent escapes are indictable only as common law offenses, and punishable under the general statute adopting the common law, etc., by a fine not exceeding $100, and imprisonment not exceeding three months.

      4. --: Indictment; Magistrate.

    The term “magistrate” is not confined to an officer authorized to issue warrants of arrest, and an indictment charging that a warrant was issued by a magistrate, does not show that it was issued by a Justice of the peace, or other officer having lawful authority to issue it.
    5. --: Same.

    No indictment can be maintained against an officer for permitting the escape of one held under arrest by warrant, unless the officer issuing the warrant had jurisdiction, or legal authority to issue it, and this should appear on the indictment.
    6. --: Warrant, sufficiency of.

    A warrant commanding an officer to arrest one on a charge of felony, without designating the species of felony, is not void, and the officer can not legally refuse to arrest the accused, and will be liable to indictment if he permits him to escape by negligence.
    APPEAL from Faulkner Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Allen, for appellant.

      Henderson, Attorney General, contra.

   English, Cb. J.:

The indictment in this case is, in substance, as follows :

“The grand jurors of Faulkner County, in the name and by authority of the State, etc., accuse j. E. Martin of the crime of negligent escape, committed as follows, viz: The said J. E. Martin, on the 13th day of September, 1876, in the county and state aforesaid, then being the Sheriff of said County of Faulkner, and having the lawful custody of J. E. Rhea, under and by virtue of a warrant issued by A. F. Livingston, a magistrate of said county, upon charge of a felony, which said warrant ivas ■delivered to said J. E. Martin, as Sheriff, as aforesaid, to apprehend said J. E. Rhea, and bring him before said magistrate, to be dealt with according to law; and said J. E. Martin, as such Sheriff, having arrested said J. E. Rheaj in pursuance of said warrant, and so having said J. E. Rhea in his lawful custody for the cause aforesaid, at, etc., the said J. E. Rhea out of the custody •of him, the said J. E. Martin, unlawfully and negligently, did permit to escape and go at largo whithersoever he would, to the hindrance of justice, and against the peace,” etc.

•The defendant filed demurrer to the indictment, which was ■overruled. He was tried on the plea of not guilty; and the jury returned a verdict of guilty, and assessed a fine of $10 against him; and judgment was at once entered upon the verdict. On motion of the defendant, the court set aside the judgment, and permitted him to file a motion for a new trial, which was overruled. He then filed a motion in arrest of judgment, which was overruled, and final judgment entered upon the verdict, from which he appealed.

In the demurrer to the indictment, the following causes for demurrer were assigned:

-First — 1The indictment does not state facts sufficient to constitute a. public offense. .

Second — It does not show that said supposed warrant was a lawful warrant.

Third — It does not state the offense for which said prisoner was arrested.

Fourth — It does not show that said A. F. Livingston' was authorized to issue said warrant.'

Fifth — It does not state that' the escape was wilfully or voluntarily permitted, or carried out.

The motion in arrest of judgment, assigned the general cause: That the facts stated in the indictment, do not constitute a public offense within the jurisdiction of the court. .

By common law escapes are of two classes, voluntary and negligent.

A voluntary escape, is when a person having a felon lawfully in his custody, voluntarily permits him to escape from it, or to go at large; and this is felony, in case the person be imprisoned for • felony; and treason, in case the person be imprisoned for treason, etc.; but the person or officer voluntarily permitting such escape, is not to be tried until the principal offender escaping is convicted, etc. 1 Hale’s Pleas of the Crown, 590-9.

Negligent escapes of felons are not felony, but punishable by fine and imprisonment upon the' officer or person that suffer them, and the officer thus neglecting his duty may be fined and imprisoned for a misdemeanor before the conviction of the principal party. Hale P. C., 600, 4; Blackstone, 130.

The statute makes provision for the punishment of voluntary escapes, (Gantt’s Digest, secs. 1478, 1481-1487) but negligent escapes seem not to be embraced by any of the provisions of the statute. This class of escapes, however, is indictable as common law offenses, and punishable under the general statute adopting the common law, etc., by fine not exceeding $100, and imprisonment not exceeding three months. Gantt’s Digest, eh.’ 22, secs. 772-3.

The indictment in this case, is for a negligent escape, and charges that the warrant under which the appellant, as sheriff, arrested and had in custody the person accused of a felony, was issued by A. F. Livingston, a magistrate, etc. The use of the term “magistrate” was bad pleading. It is not used in the precedents.

Magistrate (from the Latin Magistratus): A public civil officer, invested with some part of the legislative, executive, or judicial power, given by the Constitution, etc. The President of the United States is Chief Magistrate of the Nation; the Governors are the Chief Magistrates of their respective States. In a narrower sense, the term only includes inferior judicial officers, such as justices of the peace, etc. Burrill'Law Die. Bouvier Law Die.

A statute of Maine declared, that deeds should be good against third persons, when acknowledged before a justice of the peace or magistrate, in some' other state, etc. In Gorden, et al. v. Hobart, et al., 2 Sumner, 401, the question came before Judge Story, whether a mortgage acknowledged by the grantor before an alderman of the City of Philadelphia, was valid under the statute, and he said :

“ Was the acknowledgment in conformity with the statute, etc.? Is an alderman of the City of Philadelphia a- magistrate in the sense of the statute? In my judgment he is ; for I know of no other definition of the term “magistrate,” than that he is a person clothed with power as a public civil officer. Mr. Justice Blackstone, in his commentaries, says, that ‘the most universal public relation, by which men are connected together, is that of government, namely as governors or governed, or in other words^ as magistrates and people.' And after speaking of the king as the supreme magistrate, he proceeds to speak of subordinate magistrates, and enumerates several classes of persons to whom the appellation is applicable, whose rights and duties he shalljnot investigate’; and then adds: 'Nor shall I enter into any minute disquisition with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because they are mere private and strictly municipal rights, depending ■entirely upon the domestic constitution of their respective franchises. Thus, he plainly admits aldermen to be magistrates; and afterwards enumerates others, whose rights and duties he shall consider; and among these are sheriffs, coro'ners, justices of the peace, constables, surveyors of highways, and overseers of the poor; so that it is clear, that the appellation is not confined to justices of the peace, and other persons ejusdem generis, who exercise general powers; but it includes others, whose main duties are strictly executive. Dr. Johnson gives a definition of the term ' magistrate,’ not materially different from that inculcated by Blackstone; saying that a magistrate is 'a man publicly invested with authority, a governor, an executor of the law,’ ” ■etc.

Under a similar statute of Massachusetts, an American consul at a’foreign port, "was held, in Warren v. Manufacturers’ Insurance Company, 13 Pickering, 523, to be a "magistrate” within the meaning of the statute.

The term "magistrate” is used in a genuine sense, in parts iv. •and vi., ch. 43, title Criminal Procedure, Gantt’s Digest, providing for the arrest of criminals, preliminary examination, etc., but not in .its broadest sense as above defined. Sec. 1668, defines •and limits the meaning of the term as there used, thus: "A warrant of arrest may be issued by the following officers, who are called magistrates, viz: Judges of city or police courts, mayors, and justices of the peace; and may be executed by the following officers, who are called peace officers, viz: Sheriffs, •constables, corqners, jailors, marshals, and policemen. ’

A justice of the peace has jurisdiction to issue a warrant for the arrest of a person committing a crime, anywhere within the 'limits of his county. Art. vii., sec. 40, Constitution, 1874; Gantt’s Digest, sec. —; Gantt’s Digest, ch. 43.

Judges of the city or police courts, and mayors, have jurisdiction to cause the arrest of persons committing offienses within the limits of their municipal corporations — Gantt’s Digest, sec. 1642; Act of March 9, 1875, for the incorporation of municipal corporations — secs. 45, 54, etc.

Had the indictment alleged that the warrant was issued by a justice of the peace, the jurisdiction would have appeared from the other allegations. But if issued by a judge of a municipal court, or mayor, as it may have been for anything that appears to the contrary by the use of the general term “ magistrate,”, the further allegation, that the offense for which the accused was arrested, was committed within the limits of the corporation of the officer issuing the warrant would have been necessary to show jurisdiction.

No indictment could be maintained against a sheriff, for permitting the escape of a person held under arrest by warrant, unless the officer issuing the warrant had j urisdiction, or legal authority to issue the writ, and this should appear from the indictment. Bass v. State, 29 Ark., 142.

The indictment charges, that appellant, as sheriff, etc., arrested and had in custody, J. E. Rhea, under and by virtue of a warrant issued, etc., upon a charge of “a felony,” without naming the particular crime for which the accused was arrested, etc.

Hawkins, says : “Also it seems clear, that every indictment for voluntary escape, must allege and show the species of the crime for which the party was imprisoned; for it is not sufficient to say, in general, that he was in custody for felony, etc., for that no one can be punished in that degree, but as involved in the guilt of the crime for which the party was in his custody; and, therefore, the particular crime must be set forth, that it may appear that the principal is attainted for the very same crime, if it were felony, or that it was in truth committed, if high treason. But it seems questionable whether such certainty, as to the nature of the crime, be neoessary in an indictment for a negligent escape, for that it is not material in this case, whether the person who escaped were guilty or not.” Boole 2, ch. 19, sec. 14.

The statute requires the warrant of arrest, in general terms, to name or describe the offense charged to have been committed, and gives a form for such warrant. Gantt’s Digest, sec. 1669, and notes. But we think a warrant commanding an officer to arrest a person on a charge of felony, without designating the species of felony, would not be void, and that the officer could not legally refuse to arrest the accused, and would be liable to indictment, if he permitted him to escape by negligence. The warrant under which the arrest was made in this case, was introduced on the trial, and the party arrested was charged with having committed the offense of felony,” and the indictment followed the warrant, and we think in this respect it was sufficient. Whether an indictment for a.voluntary escape, alleging the offense of the party arrested in such general terms, though bad at common -law, for the reason given by Hawkins, would be good under our statutes providing for the punishment of such escapes, is not now before us.

The indictment seems to be substantially good, except in alleging the warrant of arrest to have been "issued by a “ magistrate,” etc., as above-indicated, and for that cause the demurrer should have been sustained, and, having been overruled, the judgment should have been arrested. Inasmuch as no new trial can be awarded upon the present indictment, we deem it unnecessary to pass upon the questions reserved during the trial, relating to the admission of evidence, instructions of the court, etc.

The judgment is reversed, and the cause remanded with instructions to the court beiow, to arrest the judgment.