text:
    McKenzie vs. Roleson et al.
    Wills: Construction of conflicting clcmses.

    Where, in the execution of a power under a will an invincible repugnancy appears as between two provisions, or as between the will and codicil, the latter clause should prevail over an earlier one, if not inconsistent, all things being considered, with a reasonable intendment as to which of the conflicting clauses, addressed to the judicial mind, is most likely to effect the intention of the testator.
    APPEAL from Cross Circuit Court.
    Hon. W. H. Hazeldine, Circuit Judge.

      Adams & Dixon, for appellant.

      Brown & Lyles, for appellees.
   Searle, J.

The appellees brought their complaint in equity to the November term, 1871, of the Cross circuit court, for the recovery of certain real property situate in the town of Wittsburg, in Cross county. The appellant answered, alleging title in himself, to which answer appellees demurred. The court sustained the demurrer, and rendered a decree in favor of the appellees, from which the appellant, refusing to answer further, appealed to this court.

The facts material to the disposition of the cause here, that are alleged in the complaint and not denied by the answer, and that are alleged in the answer and conceded by the demurrer, are, in substance, the following:

Isaac Wafford, who was owner in fee of the property in controversy, a short time previous to his death, duly made and published his last will and testament, on the 6th day of May, A. D. 1848, and his codicil thereto, on the 7th day of July, A. D. 1849. In due time, after the death of Wafford, the will, with the codicil thereto, was duly probated and admitted to record, on the 80th day of August, 1849, and letters testamentary were issued to Samuel L. Austill, the person named in the codicil to the will as executor.

The rights of the parties in this case depending chiefly upon the construction given to this will and codicil, so much of them will be set forth in this statement as is material to the determination of the issues presented.

The third item of the will is as follows: “I will and desire, immediately after my death, that my children, or some one of them, select four negroes out of my stock of negroes, and dispose of them in the following manner, viz: to have them valued, each separately, and then for them to be drawn for my children, or some one to draw for them whom they may select, or for their legal representatives; the one that may be drawn in the name of Caroline Austell, my youngest ■daughter, I will to her absolutely; the one that may be drawn in the name of Juliana Nickels, my second daughter, I will to her absolutely; and the one that may be drawn in the name of my son James H. Wafford, I will to him absolutely; .and the one that may be drawn in the name of Delia C. Eergurson, my eldest daughter, I will also to my son James EL "Wafford, in trust for the use and benefit of my said daughter, Delia C. EergursOn, the trust fund or property above mentioned to be managed by my son, James H. Wafford, as trustee as aforesaid, in the manner hereinafter to be mentioned by me; and each one is to account to the other, who may draw the most valuable negro, making each equal in value.”

The sixth item of the will, after making other- devises of personal property, devised as follows, to-wit: “I will that my children agree among themselves, and sell on such time or for cash (a majority agreeing to sell), as they may think best, the residue of all my property, not above specifically devised, both personal and real; and the proceeds thereof to be divided into four equal parts, which I will and bequeath to the parties, and in the same manner and for the same purposes and uses that I have set forth and mentioned in the third clause or item of this will. In.order that no misconstruction shall be placed upon the clause and language therein set forth and used, I make 'this plain statement, that I will my daughter D. C. Fergurson’s portioh be equal to each of my other children’s; that I have willed it to my son James H. Wafford, in trust for her, during her natural life, and then, after her death, to-descend to her children, heirs of her body, absolutely; and the negroes thus willed by me for her use, I will that my son James H., trustee as aforesaid, hire out annually, and the moneys that may be, as a portion from my estate, to be kept, at interest, and apply the proceeds of the hire of said negroes and the interest aforesaid to her comfort and benefit, during her natural life, and thereafter, the residue to her children as aforesaid, equally and absolute^. I appoint no executor for the reason that my children are all of age and can legally wind up my estate without the expense of an administration.”

The codicil to the will, after making some changes in the provisions of the will in relation to the devises to testator’s wife, is as follows: “ I make this other change or alteration in the last clause of my will aforesaid, wherein I appoint no-executor ; that is, I constitute and appoint my son-in-law Samuel L. Austell, of St. Francis county, Arkansas, the sole executor of my last will and testament aforesaid, of date the 6th of May, 1848, and desire him to execute the same in every particular as therein I- have set forth and expressed, with the provisions of this codicil, which I make and ordain as a part of the same,” etc., etc.

The property in litigation in this suit was a part of the real property, to which the sale, as directed to be made in the above quoted portions of tbe will, had reference. James H. Wafford, one of the devisees of the will, conveyed his right, title and interest in the property in controversy, to Britton Boleson, one of the appellees in this suit, and Thomas H. Mc-Crary, on the 27th day of February, 1871 ; Delia O. Fergurson, another one of the devisees of the will, became discovert by the death of her husband in the year 1852, and died on the 16th day of March, 1869, leaving surviving her, her children and heirs at law, Thomas H. McCrary, Marietta W. Fergurson and Caroline Fergurson (who afterward intermarried with Benjamin F. Scott); and these last named persons, heirs, of Mrs. Fergurson, conveyed their right, title and interest in the property to Britton Boleson and Thomas H. McCrary, on the 28th day of February, 1871; and McCrary conveyed his interest to the appellees, B. C. Brown and O. P. Lyles. The appellees claimed title to one-half of the property described in their complaint, by virtue of the will and the above mentioned conveyances. The appellant claimed title to the same property by virtue of the will and the folio-wing conveyances and facts, as set forth and pleaded in his answer:

That Samuel L. Austell, as executor of said will, etc., and as authorized so to do by the well and codicil, on the 23d day of August, 1853, and on the 17th day of February, 1859, sold, and by his deeds of these dates, conveyed to one John Wilson, the property in the complaint described, which deeds were duly executed, acknowledged and recorded. That said Wilson died, leaving him surviving, his widow, Ann B., who intermarried with appellant; that said Ann B., during her widowhood, continued 'to occupy said property, the same being the homestead of the former husband, and no dower being assigned to her, until her said marriage with the appellant, since when she and her husband, the appellant, have had and held possession of the property; that the possession of Wilson from the dates of said deeds, and after his death of his widow, and after her marriage with the appellant, of her and the appellant jointly, was adverse to all the world, under and by virtue of the conveyances and facts aforesaid, and the statute of limitation is set up in defense of his title.

The demurrer to the answer admitting the facts therein pleaded as true, questions their legal sufficiency to defeat a recovery by the appellees. The court sustained the demurrer and (the appellant declining to plead further) pronounced a final decree in favor of the appellees, upon the allegations of their complaint, to the extent of the one-fourth interest in the property claimed to be willed to the use and benefit of Delia C. Fergurson.

Before entering upon the consideration of the questions raised by the demurrer, we will notice briefly, the objection of appellants counsel to the interposition of a demurrer to an answer in an action in equity.

The code provides as follows: Where the facts stated in the answer are not sufficient to constitute a defense, a counterclaim or setoff, the plaintiff may demur. Section 121, Civil Code of Practice. Substantially, this_provision is found in all or nearly all the new codes of practice adopted in the several states of the union; and the section itself is a literal copy of section 130 of the Kentucky Civil Code of Practice, and has been held, without question, by the courts of that state, as applicable alike to actions in equity and at law. Newman on Pleading and Practice, 677.

The demurrer raised two principal questions; the first, relating to the validity of the appellant’s title by virtue of the conveyances and facts pleaded in his answer and as briefly set forth in the statement of this case, and this without any reference to the statute of limitations ; the second, relating to the statute of limitations, as a bar to the appellee’s action.

The first of the aboye questions will be first noticed.

The appellant’s right to the property in controversy depends chiefly, if not entirely, upon the validity of the sale by the executor of the last will and testament of Isaac Wafford, deceased, to Wilson, and the validity of this sale depends upon the power of the executor to sell. To determine or ascertain the power of the executor in the premises, we must go to the will and codicil of his testator and discover therefrom, by a legal interpretation thereof, the intention of the testator in relation: 1. As to whether there should be a sale of the property or not; 2. As to who should sell.

1. As to whether there should be a sale of the property or not.

The will, as it originally stood, gave the testator’s children the power to sell the property. But it is suggested or'contended by appellee’s counsel, that though they had the power to sell under the original will, it was discretionary with them whether they sold or not. The words of the will (sixth item of original will) are : I will that my children agree among themselves, and sell on such time or for cash (a majority agreeing to sell) as they may think best, the residue of all my property, not above specifically described, both personal and real, and the proceeds thereof to be divided into four equal parts, which I will and bequeath to the parties, and in the same manner, and for the same purposes and uses, that I have set forth and mentioned in the third clause or item of this will.” It is clear that the substantive part of this provision is the sale of the property “ not specifically devised,” and the division of the proceeds thereof among testator’s children. Without a sale there eould be no division of proceeds, for the simple reason that there could be no proceeds ; and the will nowhere provides for a division of the property itself, in the event that no sale was made. The testator seems to have intended, not that the property of which he died seized, except such of the personalty as was specifically devised, but only the proceeds of the sale thereof, should be enjoyed by his children. It would follow, then, that as to the sale, there was no discretion given. The property must be sold at all events. The discretion was extended only to the matter of selling “ on such time or for cash as they (the children) may think best; and in the exercise of' this discretion, a majority was to "control. We think this view is further supported by the fact that in the after provisions of the will, as to the duty of James-H. Wafford, the trustee of Delia C. Eergurson, no mention was made of his managing her interest in the lands or paying over to her the rents and profits thereof. But he was directed to hire out the negroes annually, and to pay this hire and the interest on any “ moneys which may be as a part of my estate, to the use and comfort of the said Delia O. Eergurson, during her natural life.” What moneys were here meant by the testator ? It does not appear that any passed in specie by the will. He evidently had in view the moneys that should arise from these sales. Had the testator contemplated that it might so turn out that the property should not be sold,,he certainly would have put the alternative, or the rents and profits of the real estate. But there is no such alternative provision to be found in the will; from which fact it must be inferred, conclusively, that his intention was, that his children or any one, carrying into effect the provisions of the will, should have no discretion as to whether or not there should be a sale, but, at most, only as to the terms of the sale. The intention of the' testator then was that the property should he sold and the proceeds thereof divided among his children.

2. The intention of the testator as to who should make the sale.

No doubt the testator originally intended, as appears from the will as it originally stood, that his children should make sale of the property ; and his reason for so providing was, that “ his children were all of age and could legally wind up his estate without the expense of an administrator.” After this he seems to have changed his mind; and, by his codicil, he appoints an executor and directs him to execute the will “ in every particular.” The words of the codicil relating to the executor are as follows: “I make this other change or alteration in the last clause of my will aforesaid, wherein I appoint no executor, that is, I constitute and appoint my son-in-law, Samuel L. Austell, of St. Francis county, Arkansas, the sole executor of my last will and testament aforesaid, of date of the 6th of May, 1848, and desire him to execute the same in every ’particular as therein I have set forth and expressed, with the provisions of this codicil, which I make and ordain as a part thereof.”

The sale of the property not specifically devised was a particular of the will, and a very important particular. The will, as it originally stood, provided that the children should execute this particular. Now, the inquiry is, was this provision revoked by the testator when, he directed, in his codicil, that the executor should execute his will in “ every particular; ” or, in other words, was it rhe testator’s intention, from a proper construction of the whole testament, to embrace by the expression, “in every particular,” found in the codicil, the particular of sale, as provided in the will as it originally stood? If so, the executor clearly had the power to sell. But there is no expression in the will or codicil that would indicate such intention, save the repugnancy between the will directing the children to sell, and the codicil directing the executor to execute the will “ in every particular.” This repugnancy is what is denominated in law an invincible repugnancy; for the property musl be sold, and both cannot sell. In such cases of repugnancy, where it is impossible to determine from his expressions which clause the testator did intend to prevail, other things being equal, the latter clause should prevail over an earlier one. 1 Red. on Wills, 448-450, secs. 18; 451, secs-18, 14; Morrell v. Sutton, 1 Phillips, 582.

And in regard to the degree of certainty of intention to be-gathered from the will, as applied to the subject matter, which will justify the rejection of the one of two conflicting provisions, no satisfactory, universal rule can be laid down. Th& most that can be said is, that it must be that degree of certainty which satisfies the judicial mind, and which indicates that course as being the safest and most likely to effect the intention of the testator, all things considered. 1 Red. on Wills, 449. Now the subject matter to which these conflicting provisions relate is the sale of the property; and by an adherence to the first mentioned of the above rules, it would seem that the executor was the party authorized to sell, as the direction in the codicil that he should execute the will “ in every particular is the latter one in point of time. But we think we are not driven to the force of the mere relative positions, as to the time when made, of the two conflicting provisions, to determine which of them shall prevail, or which of the parties shall sell. We have, besides this, reasonable intendment to guide us in selecting which of the two provisions is most likely to effect the intention of the testator, all things considered. The object to be accomplished is the sale of the property. Is it not more likely that this object could be more effectually and advantageously accomplished by a single person, the executor, than by the concurrence of three out of four persons with clashing interests, and, of course most likely, with different views as to terms of sale, and probably scattered in different parts of the country ? Is it not more likely that purchasers from one who could at once perform his part of the contract of sale could be more easily found than from four who must unite, or the purchaser take the risk of litigation by a conveyance of a less number than the whole? Could not every transaction relating to the sale, as contracting to sell, the payment and receiving the purchase money, the execution of papers, etc., as well as the division of the proceeds among the devisees, etc., etc., be had and accomplished easier and more satisfactorily by and with one than by and with four ?

But it is suggested by appellee’s counsel, that, if the direction of the testator, that the executor should execute the will “ in every particular,” operated as a revocation of the provision in the original will, that the chidren should sell, then did it also revoke the appointment of testator’s son as trustee for his daughter, Mrs. Eergurson, and that this would require no more forced construction than the other. The counsel are mistaken in this; and for this simple reason, that the appointment of the trustee is not a “ particular ” of the will to be executed; it is a thing done. The sale of the property is a “ particular ” of the will not accomplished, but directed to be done. There is, certainly, no repugnancy between the provisions of the original will, appointing a trustee and defining his duties, and the provisions of the codicil appointing an executor-and directing him to execute the will “in every. particular.” Indeed, it would be the duty of the executor, under this direction in the codicil, to recognize the trustee and place Mrs. Eergurson’s portion in his hands. Eailing to do this, he would fall so far short, in executing the will “in every particular.” One other consideration we deem it proper to give a passing notice, and which is not without some weight in ascertaining the intention of the testator, as to the sale, and that is the acquiescence of the devisees or those interested in the estate for so long a time in the sales of the executor. The sales of the executor commenced in 1850, and continued until after 1860. They were to many parties, were open and known to every body, and the vendees notoriously took possession of tire property, and made valuable improvements upon it. Yet, the parties interested in the estate, made no complaint during all that time, while the sales were being made, nor since that time until 1871, when, part of them, assuming to be owners of an undivided part of the property, sold the same. The fact of this long acquiescence would seem to indicate a general understanding among the interested parties, that the executor had the power to sell under the provisions of the will and codicil.

From the above considerations, we think that the executor clearly had the power to sell, a power derived to him from the expressed intention of the testator as gathered from a proper interpretation of the will and codicil, a power that pertained to him by virtue of his office as executor. This sale, then, of the executor, as averred in the answer, was a valid one; and the appellant, who defends in right of his wife, to whose former husband the sale was made, as averred also in the answer, was rightfully in possession of the property in controversy. This being the case, the demurrer was improperly taken to the answer, and the court erred in sustaining the same and rendering a decree in favor of the appellees upon the allegations of their complaint. As to the statute of limitations, as pleaded in appellants’ answer, it is unnecessary to consider it in this case.

For the above errors, the decree of the circuit court is reversed, and the cause remanded to that court with instructions thereto, to Overrule the demurrer and proceed with the cause according to law, and not inconsistent with this opinion.


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    Steck vs. The State.
    Jeopardy and Former Acquittal.
    On an indictment for malfeasance in office, where the punishment, on conviction, is simply a fine, jury having been impaneled and sworn, and by reason of the sickness of a witness, and by consent of the parties, they were permitted to disperse under charge from the court, and being called, a part failing to appear, the court discharged the jury and ordered a new panel. On demurrer to pleas of jeopardy and former acquittal by the defendant, held, that under sec. 9, art. I, Const. 1868, the defendant was in no way put in jeopardy of his liberty a second time for the same offense, nor did the facts set up constitute an acquittal.
    APPEAL from Jefferson Criminal Court.
    Hon. Ira McL. Barton, Criminal Judge.

      J. R. Montgomery, Attorney General, for appellee.
   Gregg, J.

At the September term, 1871, the appellant was indicted in the criminal court of Jefferson county for malfeasance in office, under the 19th section of chapter 28 of the acts of 1871.

At the January term, 1872, he filed a demurrer to the indictment, which the court overruled.

On the 11th of September, 1872, a jury was selected and sworn, and, by reason of the sickness of a witness and upon the consent of both parties, the jury, under the charge of the court, was permitted to disperse. On the 16th of the same month, the case being called and some of the jurors being absent, the court ordered the jury discharged. To which the appellant excepted, and thereupon filed two special pleas, the first, setting up his arraignment, pleaded the impaneling of the jury and its discharge, and averred that thereby he had been put in jeopardy of his liberty; and to compel him to defend before another jury would be to put him again in jeopardy for the same offense, and he prayed judgment, etc.

In his second plea he sets up the same facts, and avers that by such action he was acquitted, etc.

The State demurred to these pleas, and the court sustained the demurrer.

A trial was then had before a jury; the appellant excepted to two instructions given for the state, and to the refusal of the court to give two of those asked by himself. He was found guilty, and a fine of five hundred dollars assessed against him; he moved for a new trial; his motion was overruled ; he excepted and appealed.

It was shown by records and other evidence that the appellant was the qualified and only acting constable of Yaugine townshipj from the 23d of May, 1871, until the 1st of July following, and that during that time he, as constable, collected $195 of fines assessed in two justices’ courts therein, and that he failed to account for the same, etc.

Without defending against the merits of the case, the appellant made a feeble effort to show that one [Mahar was the legal officer while appellant was acting.

The instructions excepted to were, in effect: 1st. That if the appellant was commissioned and acting as a constable in the township, and in that capacity collected money assessed as fines, etc., and failed to turn the same over to the proper collector of the county, they should find him guilty. The second instruction was in substance the same, but was more specific as to authority, dates, names, amounts,°etc.

The two of appellant’s instructions refused were, both in substance and effect, that if some one else was legally entitled to the office during the time that appellant acted and received the moneys, they should acquit.

The appellant has failed to bring up[all the evidence by formal bills of exceptions as required by the practice of this court. But, if considered as copied in the record, his instructions refused might well have been held as abstract, and those given were substantially in accordance with the statute.

The first demurrer was properly overruled, the indictment sufficiently charged the appellant, as constable of Yaugine township, with having collected four hundred dollars of fines belonging to the school funds of the county, and that he, as such constable, had unlawfully failed and refused to pay over to the proper officer. The demurrer to his pleas was properly sustained.

The facts set up by him did not constitute an acquittal, and, under this indictment, imprisonment was no part of the punishment. If found guilty, he was only liable to a fine, to be removed from office, and to be disqualified from holding office; hence, in the meaning of our constitution (sec. 9, art. I, Const. 1868), he was in no way put in jeopardy of his liberty a second time for the same offense.

The judgment of the criminal court of Jefferson county is, in all things, affirmed.


text:
    Metropolitan National Bank of New York City vs. Gordon.
    Statute oe Limitations : Suspended between belligerents.

    Upon the breaking out of a war, all contracts and rights between belligerents are suspended, and upon the restoration of peace the parties are restored to their rights and remedies as they existed at the commencement of hostilities.
    APPEAL from Conway Circuit Court.
    Hon. W. N. May, Circuit Judge.

      Wassell & Moore, for appellant.
   Gregg, J.

The appellant sued the appellee in the Conway circuit court on a writing obligatory, dated New York city, April 16, 1860, payable in the city of New Orleans, ten months after date.

Suit was brought March 6, 1872. On the 16th of April following, the appellee appeared in court and filed his plea of limitation; the appellant replied that she and the assignors of the writing sued on, before and since the making of the obligation, were and are citizens of the state of New York, and that since then a civil war broke out between the United States and certain states in rebellion, one of which was the state of Arkansas in which the appellee resided, and that such war existed from the year 1861 to 1865, during which time all the courts in Arkansas were closed, etc.

The appellee demurred to the replication; the court sustained the demurrer; the appellant refused to respond further and judgment was rendered against her for costs, from which this appeal is prosecuted.

The only question involved is whether or not the statute of limitations run during the late war between residents of belligerent states, when their rights are attempted to be enforced in the state courts.

In the case of Bennett v. Worthington, 24 Ark., 487, by our predecessors, a lengthy and considerate opinion was delivered, reviewing many of the older decisions, in which it was distinctly held that when a statute of limitation once begins to run, no subsequent disability will stop it; that the court could make no exception not provided for in the statute, and the closing of the courts, in time of civil war, was not an exception in the statute, and, of itself, could not be made one in the courts; hence the statute continued to run during the late war. But in the case of Hanger v. Abbott, 6 Wal., 542, Mr. Justice Clifford, in speaking for the court, as to the suspension of the running of the statute of limitations during the late rebellion, said, “ unless the rule be so, then the citizens of a state may pay their debts by entering into an insurrection or rebellion against the government of the Union if they are able to close the courts, and successfully resist the laws until the bar of the statute becomes complete, which cannot, for a moment, be admitted. Reace restores the right and the remedy, and, as that cannot be, if the limitation continues to run during the period the creditor is rendered incapable to sue, it necessarily follows that the operation of the statute is also suspended during the same period.”

In the case of the Protector, 9 Wal., 687, the supreme court approved of the Hanger■ and Abbott case, and said the time allowed by statute for taking an appeal should not be considered as running during the existence of war, and Judge Bradley expressly refused to place this upon the act of congress of 1867, in reference to appeals, but, as in the other case, rested it upon general principles.

In the case of Levy v. Stewart, 11 Wal., 244, a citizen of New York sued a citizen of Louisiana. Under the Louisiana Code, the prescription act of that state run against minors, interdicted persons and persons residing out of the state, and, in this, it was stronger and unlike the limitation statutes of most, if not all, the other states, and the state supreme court had decided that this statute continued to run during the late war. Yet, without dissent, the supreme court of the United States held that the full period of the war should be deducted upon an issue of limitation in such action.

In the case of Stewart v. Kahn, id., 493, and United States v. Wiley, id., 508, the cases referred to are affirmed, and the court seem, with entire unanimity, to have fully settled the law that, under modern international law and commercial custom, upon the breaking out of a war, all contracts and rights between belligerents are suspended, and upon the' restoration of peace the parties are restored to their rights and remedies as they existed at the commencement of hostilities.

We are not unconscious of the high respect due these gentlemen who so fully considered this question in our court, and also of the evil tendencies of disturbing a settled doctrine of our own bench. Yet it is very important to the interests of the whole country that there should be uniformity in the decisions of all the courts. And when the highest court of the nation has repeatedly considered and fully settled the law upon questions alike cognizable before them and us, we are disposed to conform to their ruling, even to the overruling of the decisions of our own court.

The j udgment is reversed, and the cause remanded for further proceedings.


author: McClure, C. J.

text:
    Jones vs. The State.
    Baukrctptcy : To what, disaha/rge in, may he pleaded,.

    To scire facias against surety on bail bond, the defendant pleaded liis discharge in bankruptcy. On demurrer to plea, held, that the plea was good.
    APPEAL from Arkansas Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Watkins & Rose, for appellant.

      J. R. Montgomery, Attorney General, for appellee.
   McClure, C. J.

The only question arising in this case is, whether the surety on a bail bond is released from all liability therefrom, by a discharge in bankruptcy.

On the 21st of August, 1867, O. E. Jones, the appellant, R. P. Ware and R. D. D. Miller, entered into bond to the state of Arkansas, that one Rickard Q. Jones would bo and appear before and at the circuit court of Arkansas county, on the first day of its next term, to answer to an indictment for forgery, and not depart the court without leave. Richard Q. Jones did not appear in accordance with the conditions of said bond» and scire facias issued, which was served on Oswell F. Jones, R. D. D. Miller and Robert P. Ware, and. Richard Q. Jones was not found.

At the November term, the attorney for the state moved for judgment and execution on the bond, which motion was overruled.

At the May term, Oswell F. Jones pleaded a discharge in bankruptcy, to which the state demurred, on the ground that the plea is insufficient in law. The demurrer was sustained, and Jones appealed to this court.

A discharge in bankruptcy releases the person therein named “from all debts, claims, liabilities and demands which were, or might have been proved against his estate.” (Sec. 34.) This language is broad and comprehensive enough to include the liability sought -to be enforced against the appellant. The bond, which Jones became a surety on, was not a “ debt created by fraud, or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in a fiduciary character,” and not being so, it is not included in the exceptions named in the act.

The court below erred in rendering judgment against the appellant, and in sustaining the demurrer. For the errors aforesaid, the judgment is reversed, and the cause remanded with instructions to set aside the judgment as to Jones.


author: Bennett, J.

text:
    Runnels vs. The State.
    Grand Jurors : What will not invalidate the proceedings of.

    Where there was not a sufficient number of competent grand jurors and alternates present, and not excused, the court ordered the deficiency to be made up from the petit jurors who had been summoned, though not impaneled and sworn. Held, that though irregular for the court to designate, by name, persons to fill the panel, yet, such irregularity would not invalidate all the proceedings of the grand jury.
    Prosecuting Attorneys : Discretion as to disclosures made by defendant.

    It is within the discretion of the public prosecutor to determine whether or not, the defendant, who is an accomplice, shall be permitted to become “state’s evidence,” and also whether, if he does, he is afterward entitled to exemption from further prosecution by reason of what he has done.
    New Trials:
    Applications for new trials, based on the ground of newly discovered evidence, should be received with caution, and should be corroborated by other affidavits than that of the accused, and should not only state that the defendant did not know of the testimony in time for trial, but that he could not have obtained it by reasonable diligence.
    Confessions : To be admissible, must be voluntary, eta.

    Confessions of the defendant, to be admissible in evidence, must have been voluntarily made, and whether they were so made is a question for the court to pass upon, and its ruling in that respect will not be ground of reversal unless arbitrarily abused.
    APPEAL from Phillips Criminal Court.
    Hon. C. C. Waters, Criminal Judge.

      G. F. Abbay, for appellant.

      T. D. W. Yonley, Attorney General, for appellee.
   Bennett, J.

The appellant, James Eunnels, was indicted at the January term of the criminal court of Phillips county,, for murder. At the September term, he was tried and found guilty of murder in the first degree. Motion for a new trial overruled, and defendant sentenced to be hung on the 13th day of December, 1872. On the 25th of November, 1872, an appeal and supersedeas was granted by this court.

A motion to set aside the indictment on the ground that there was error in the summoning and formation of the grand jury by whom the indictment was found and presented, in this, that upon organization and formation of said grand jury, there not being a sufficient number of competent grand jurors and alternates present, and not excused, to form the grand jury, the court ordered several of the men who had been selected and summoned, but not impaneled and sworn as petit jurors, to be taken to complete the grand jury, was overruled.

We are unable to discover any substantial error in this ruling of the court. The selection of a grand jury is regulated by statute. (Sec. 404, amendments of Code, 1871.)

This statute allows the court to complete the grand jury after the regular panel and alternates have been exhausted, from the bystanders. While it may be irregular for the court to designate persons by name to fill the panel, still this irregularity will not go so far as to invalidate all the proceedings of the grand jury.

The motion for a new trial is based upon several grounds. The only ones worthy of consideration are as follows:

1st. Because the defendant was taken by surprise in being put upon trial after having made a disclosure as to the alleged killing, to the state’s attorney, upon a promise either expressed or implied, absolute or conditional, that he would be allowed to turn state’s evidence.

2d. That in consequence of said promise, his counsel had not prepared his case for trial. It appears from the transcript' that the defendant had made certain disclosures to the state’s attorney in relation to the crime of which he, together with others, was charged, upon a promise made to him by said attorney, that if he should testify when called upon by the state, that then he should not be prosecuted for any supposed complicity or participation in said crime. Do these facts present such a case as entitles the defendant to a continuance? We think not. When prosecutions are instituted and carried on by a public prosecutor who acts directly for the state and protects its interests, there is an evident propriety in considering it to be within the exclusive discretion of this officer to determine whether or not an accomplice shall be permitted to become “ state’s evidence,” as it is sometimes expressed; and also whether, if he does, he is afterward entitled to be no further prosecuted by reason of what he has done. If a witness, on a trial, is introduced by the prosecuting officer to testify to facts which he knows, and he does not choose to conceal his own participation in them, he is a lawful witness, and no one but the witness himself is entitled to object to his criminating himself, and this is really all there is about being state’s evidence, except the understanding relative to the future protection of the witness, and since the power to act is complete in the hands of the prosecuting officer, the right to exercise the power should be construed to be also in him.

As to the defendant being surprised, we have the record of the court as appears in the transcript to overturn any such hypothesis. The record says after the motion for a continuance had been overruled, “ The court asked the defendant’s attorney whether by reason of the matter in the motion for continuance just overruled he had been surprised, and had therefore failed to subpoena or procure the attendance of other witnesses, and that, if so, a continuance would be granted for that cause. To which the defendant’s attorney responded that he had not been so surprised, whereupon the state and defendant both announced themselves ready for trial, which was ordered to progress.”

The third ground for a new trial is as follows: “That since the trial the defendant has discovered that the following important facts are evidence in his case, which in consequence of the surprise mentioned in the first ground herein, and of his friendless, moneyless condition and imprisonment, he was not able to procure in time for trial, not knowing their importance, they had escaped his attention and had not been told his attorney. By Wranford and Ned Graham, he can prove that he was not at the flat boat on the Sunday spoken of in the evidence, but was at the falls; by Mr. S. A. Batman, that he did hold out inducements to him to make the confessions, and by Eugene Mack, that it was he who made the statement on the boat which the witness Raymond testifies was made by the defendant. This statement was not supported by an affidavit.

Applications for new trials on the ground of newly discovered evidence are to be received with caution, and this in proportion to the magnitude of the offense. The application should be corroborated by the affidavits of other persons than the accused, and if possible, those of the newly discovered witnesses themselves, and it is not sufficient for the applicant to state that he did not know of the existence of the testimony in time to have brought it forward on the trial, but it must appear that he could not have ascertained it by reasonable diligence. Pleasant v. The State, 13 Ark., 362; Graham & Waterman, New Trials, vol. 1, pp. 462, 485, and cases cited.

The above statement does not, in any particular, present such facts as would warrant a court in granting a new trial for these reasons.

The fourth reason urged why a new trial should be granted was, that the court erred in admitting the confessions of the defendant to go to the jury. Deliberate confessions of guilt are among the most effectual proofs in the law. Their value depends on the supposition that they are deliberate and voluntary, and on the presumption that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience. Before any confessions can be received in evidence in a criminal case, it must be shown that it was voluntary. The material inquiry, therefore, is, whether the confession has been obtained by the influence of hope or fear, applied by a third person to the prisoner’s mind. The rule of law applicable to all cases only demands that the confession should have been made voluntarily, and the evidence to this point is addressed to the judge trying the case, who admits or rejects them as appears right in his discretion, and his judgment is not a subject of reversal unless arbitrarily abused.

In the casé before us, it appears by the testimony of witness Yesby, that what confessions were made by the defendant, were made “ without threats or promises. He made them voluntarily and in reply to questions asked him.” Yesby says: “ I made no promises or threats, nor used any undue influence to get him to make the confessions. The prisoner was under arrest, and was tried.” The statement of the defendant as made to witness Haymond, “that he was one of the men” at the boat at the time of the shooting, appears to have been made of his own volition. No reason, therefore, can be urged why a new trial should be granted, because the statements of the defendant were allowed to go to the jury. Even if these statements had been ruled out, there is enough other testimony to have warranted the jury in finding the verdict. The only remaining reason why a new trial should be had is, that the court erred in giving verbal instructions to the jury. If this was a valid ground for a new trial, the transcript does not show that the court gave any verbal instructions, but on the contrary, it shows that upon objections being made to verbal instructions being given, the court immediately reduced the instructions to writing. This cause, assigned for a new trial, was very frivolous, and should not demand our attention for a moment.

Finding no error in the proceeding of the court below, the judgment is in all things affirmed.


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    Brown vs. The State.
    Bobbery : What will not constitute the crime of.

    Where, in an indictment for robbery, it appeared in evidence that the taking of the property by the defendant was violent, but done in the presence of others under claim,of title: Held, that such taking did not constitute the crime of robbery:
    APPEAL from Chicot Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      J. A. Williams, for appellant.

      T. D. W. Yonley, Attorney General, for appellee.
   Gregg, J.

At the March term, 1873, the appellant was indicted in the Chicot circuit court for robbery. At the same term he was arraigned, tried, found guilty and sentenced to one year’s imprisonment. A motion for a new trial was overruled ; he filed his bill of exceptions and appealed.

The State introduced several witnesses, by each of whom she proved, in effect, that one John Burgman, at Sunnvside, in Chicot county, on the 22d of February, 1873, delivered to Jacob Frank eight bales of cotton for shipment; on the next day a steamer landed there, and the cotton was being shipped, ■when the appellant came, and using harsh words, said he had a claim on two bales of that cotton, and they should not be shipped; he then had a revolver strapped around him and drawn to the front, and swore he would shoot the first man that attempted to move the cotton; when the boat hands went to the bales, he'drew his pistol and stood in front of the bales, and said if they were moved, blood would be shed. Frank talked to Brown, but he used abusive language, and the constable commanded the peace, and arrested Brown. Frank testified that he shipped six bales, but did not ship the other-two because the appellant prevented him. Frank went on the boat, and she moved out and left the two bales at the landing. Appellant remained there, and in about a quarter or half an hour after Frank left, he got help and rolled the bales into W. Sayer’s yard ; and about a week thereafter he shipped these two bales by another boat, and Frank followed and attached them.

The appellant then introduced Sam Dorsey, who testified that he was at said landing when the appellant was charged with taking the two bales of cotton; that the cotton belonged to appellant; that he sold and turned the cotton over to him when it was in the patch; to which evidence the attorney for the State objected, and the court, as the record states, “excluded it from the jury because it did not show that he (Brown) was in the possession of the two bales of cotton charged to have been taken by Brown from the possession of Jacob Frank.”

Among other instructions, the court, on motion of the attorney for the State, instructed the jury :

First. “ That if the jury believed from the evidence that. Frank & Co. had the cotton lawfully and peaceably in their possession, that defendant Brown, by violence or threats or intimidation, deprived them of such possession, he is guilty of robbery and the jury will so find him.”

Second. “The question of ownership has nothing to do with the case, and the jury are not to consider it in making up their verdict, further than to show the right of possession.” To which instructions the appellant objected, but the court overruled his objections and gave them both as the law of the case, and appellant excepted.

The appellant then asked the court to instruct the jury that “In order to constitute the offense of robbery, the taking must be in the presence of the person who is alleged to have been robbed.”

2. “If the defendant took the property from Frank, under the bona fide opinion that the property was his own, he is not guilty of robbery.” The court refused to give these instructions and the appellant excepted.

In law, the commission of a crime consists in the joint operation of act and intent or criminal negligence. And robbery is defined the felonious and violent taking the property of another; and our statute says, it is the takingyboro the person of another. But the court seems not to have observed these very elementary principles, in excluding the evidence offered by the appellant, and in giving the State’s instructions and refusing those of the defendant above quoted. Each of which rulings, in our opinion, was erroneous.

In fact this whole case falls far short of what we would expect to hear upon a charge of robbery. It appears quite clear that there was a dispute as to the ownership of these two bales of cotton. The appellant claimed them ; he went in open day to assert his claim. Jacob Frank, Joseph Swanford, Sam. Altmyer, Frank Lawson, George Eeed and Sam Dorsey, all swear they were present, and it also appears that the officers and crew of the steamboat and Doty, a peace officer, were present; and Mr. Frank, the leading witness, swore that when the appellant spoke abusively to him, he struck appellant in tbe face, and that the constable commanded the peace, and arrested the appellant. Such circumstances, a public place, heavy commodities, in the presence of a large crowd of witnesses, and directly under the control of a peace officer, forbid the presumption that the appellant intended feloniously and violently to take another’s property from his person ; and further, the evidence shows that there was no such taking from the person of Frank.

The appellant’s conduct as referred to was quite reprehensible and merited punishment; but we are of opinion his acts and intention, as appears from the evidence before us, did not constitute robbery.

The judgment is reversed and the cause remanded to be proceeded in according to law.


text:
    State ex rel. vs. Elisha Baxter, Governor.
    Contested Elections : Who is to try contest for office of Governor.

    The attorney general presented an information upon the relation of Joseph Brooks, alleging that Elisha Baxter, without any legal warrant, grant or right whatever, etc., held and usurped the office of governor, and moved the court for a writ of quo warranto. On objection to the filing of the application, and issuance of the writ: Held, that under our constitution, the determination of the question as to whether a person exercising the office of governor has been duly elected or not is vested exclusively in the general assembly of the state, and neither this nor any other state court has jurisdiction to try a suit in relation to such contest, be the mode or form what it may, whether at the suit of the attorney general, or on the relation of a claimant through him, or by an individual alone claiming a right to the office.
    PETITION for Quo Warranto.

      T. D. W. Yonley, Attorney General, and W. G. Whipple and M. W. Benjamin, for petitioner.

      E. H. English and F. W. Compton, for defendant.
   Gregg, J.

T. D. W. Yonley, as tbe attorney general for tbe state, has presented to the court an information, upon the relation of Joseph Brooks, and alleges therein that Elisha Baxter, without any legal warrant, grant or right whatsoever, hath for four months and more held, used and executed the office'of governor of the state, and that he claims to be the governor of said state, and for said time has enjoyed all the liberties, privileges and franchises of that office, but that the same has been usurped and held without right, etc., and he moves the court for a writ of quo warranto against said Baxter.

The counsel for Mr. Baxter objected to the filing of the application and the issuance of the writ. Counsel then asked leave to argue the case, and we patiently heard them for two days of long sitting, in which arguments, authorities that had required much time to collect and arrange, were read and commented upon, and the merits of the case, so far as the jurisdiction of the court and its power to determine the matters in controversy, were, on each side well presented.

For the last few years no quéstion has .more earnestly attracted the attention of this court than that of quo warrantoproceedings. We had many days of excitement and earnest discussion in the case of the State v. Johnson, reported in 26 Ark., 281, and for weeks before this proceeding was instituted, our attention was called to it by the wrangling of the political papers of the states, besides, other important cases have been argued before us.

The attorney general announced to the court that if the court were of the opinion the information was objectionable, because made upon the relation of Joseph Brooks, they should strike out that name, but in frankness he must state that, by replication, the name would again be brought before the court as the relator of the person elected. He made no motion to strike Mr. Brooks’ name from the information.

The principal argument of the counsel of Mr. Baxter was not directed to the form of the information, or the fact that Mr. Brooks was the relator, but to the jurisdiction of the court, and its authority to determine the proposed issue, whether or not Mr. Baxter was the elected and qualified governor of Arkansas, and these arguments were responded to at length by counsel for the state, presenting the matter as if upon demurrer to the information, and assuming that if the information, upon its face, did not show facts sufficient to confer jurisdiction, the court would not entertain it, or issue the writ, and upon this view the case has been considered.

If the information is insufficient upon its face, it is not irregular, upon objection made, to decline entertaining it and refuse the writ, nor does the attorney general insist upon the filing unless the writ can issue thereon.

It must be borne in mind that our legal rights depend upon the laws, and the tribunals that must determine and enforce them.

The will of the people, as enacted in the organic law, or other laws not inconsistent with the constitution, is the rule by which all must be governed, and there is nothing in the argument that the courts alone can determine disputed rights, and that they alone possess all the judicial power of the state. The will of the people directs where such power shall be, and it may be vested in executive officers or in legislators, if the people in convention so ordain. Perhaps in every state in this Union, a branch of the legislature, for some purposes, sits and determines, as a court, and it is too well known to refer to the instances wherein states constituted their senate a court of last resort.

For most purposes, under our forms of government, it has been considered best to separate legislative, executive and judicial powers; but whenever the people, the sovereign power of the state, determine otherwise and engraft it in their organic law, the one department may, as well as any other, sit in judgment upon individual claims and rights.

Hence, there was j ust the same power in the people, when assembled by their delegates in convention, to give the power of settling any controversy that might arise, to one branch of the government as another; and if they conferred the power on the legislature, and not the courts, to determine who is the governor elected by the people, that body must execute the trust, and their authority cannot be revoked until the people again meet in convention and exercise their sovereign power.

It has been urged that the legislature may not exert their power against one unlawfully in place or incompetent to hold such position, or that legislators may become corrupt and count in one not elected, and thereby a mere' usurper would exercise these high prerogatives without having received a majority of the electors’ votes.

It is true that these are matters of great magnitude, and, like most others that affect the very elements of our government, were legitimate for consideration and determination by the sovereignty of the state, when in convention assembled; and as it is important to the people who shall govern a state, it becomes likewise important to them, in case of a contest, who shall decide who is the proper governor, and hence that question should have been discussed before the convention, and that body, as they did, should have declared how so important an issue should be adjudicated. And while it is not to be presumed that either the legislature or the courts will ever become corrupt, through partisan prejudice, pecuniary consideration or otherwise, yet in matters so vital ifc may have been proper to consider of remote possibilities, and fortify wherever danger could approach; and may the convention not have reasoned, as the courts compose the department most remote from the people, and are made up of but few judges, whose terms are for several years, that the offer of greater promotion, the power of personal influence, or even the love of mammon, more possibly, might produce some bias with the few so distant from the power that created them a court, than with the large numbers forming the general assembly, all of whom are directly responsible to the people for the trust reposed in them, and a large majority of whom must come before their constituents each session, where they must expect to be held responsible for their official acts.

The argument is pressed that if the governor be a usurper and his seat not contested before the legislature, the people are governed by a mere trespasser, and if the attorney general cannot sue out a quo warranto and this court decide who is elected, there is no remedy, and that “rights so dear, rights so sacred to the people,” etc., never can be thus violated in a just government and no redress offered, etc.

This is but changing the form of the sophism, and is answered by the same solution. The question is, In whom shall so great a trust be reposed ? If in the attorney general and a few judges,.and they should not execute it, would not the same result be produced ? Shall the governor of the state, the head of the executive department, be subject to removal by the courts of the state; shall these departments be coordinate, coequal in strength and dignity; or shall the officers of one have power to remove the incumbent of the other, and thus dictate his policy, or hold the executive at their mercy? These were questions when the elements and theory of our government were under discussion. It is said that the court could only turn one out who was not properly elected or qualified; neither can a general assembly count one in, or keep one in if not legally elected; and both are equally presumed to be honest and to perform their whole duty.

If the court, on the motion of the attorney general, has power to declare a governor out of office because he was not properly elected or qualified, then if it were possible for the attorney general and a majority of the court to be improperly controlled, no governor could hold his position unless the court approved his policy. If the power exists to turn any one out, no incumbent can withstand the judgment. If the court can judge, it may misjudge.

It seems to us one of the elementary principles of our government that the departments should be co-ordinate and coequal, and while the courts of the state move forward in the discharge of their duties, free from executive policy and beyond executive control, the governor is clothed with a manhood that places him above the whims, and stronger than any prejudice that could possibly exist in a court, and leaves his position to those who, under the constitution, are to designate the proper incumbent, and who are to try him for crimes or misdemeanors in office, and all the presumptions of integrity that can and should weigh in favor of a court must be allowed in favor of the representative men of the people.

' Sec. 19, art. VI of the Constitution of 1868, is as follows: “ The returns of every election for governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, and superintendent of public instruction, shall be sealed up and transmitted to the seat of government by the returning officers, and directed to the presiding officer of the senate, who, during the first week of the session, shall open and publish the same in presence of the members then assembled. The person having the highest number of votes shall be declared elected, but if two or more shall have the highest and equal number of votes for tbe same office, one of them sháll be chosen by joint vote of both houses. Contested elections shall likewise be determined by both houses of the general assembly in such manner as is or may hereafter be prescribed by law.”

Here the whole question is settled; the manner.of filling the executive chair is prescribed; the time of elections (sec, 3, art. XV) is fixed ; the manner of voting (sec. 1, art. VIII); how the returns shall be inclosed; to whom transmitted ; how •and where they shall be published ; how the result shall be declared, and if aspirants have the same vote, how one of them shall be chosen, and if the election is contested, how it shall be determined ; and in this it seems they intended to cover the entire ground, and to dictate the mode of determining who shall be the executive, and thus fixing the tribunal to try this issue, and no where intimating that the high prerogative of deciding this question should belong to any other tribunal, carries to our mind the conviction that it was intended to be exclusive.

The magnitude of the court shows the importance the convention attached to the issue. They declare that contested elections shall he determined hy both houses of the general assembly, and the manner of proceeding is regulated by the acts of the legislature, and it may be observed that this provision in the constitution does not limit the right of contest; it is not given exclusively to a rival candidate, nor to a prescribed number of voters, nor to the people at large, or any particular officer as the representative of the people, but the mode of contest and trial of the rights of the claimant is to be as the legislature have or may direct by law. They are to say who may contest, and how proceedings are to be brought before them.

It is further argued that in the absence of exclusive language, the higher courts are not inhibited; that their general jurisdiction empowers them to hear and determine this question.

This does not necessarily follow. The courts may be excluded by implication ; by language showing that some other tribunal is assigned that function.

Sec. 14 of art. Y declares that “ each -house shall choose its own officers, determine the rules of its proceedings, judge of the qualifications, election and return of its members, and may, with the concurrence of two-thirds of all the members elected, expel a member,” etc. There is nothing exclusive in this language. It only provides a tribunal to determine who is entitled to an office as a member of the general assembly. There is nothing declaring that the superior courts of general jurisdiction shall not try and determine the rights of one claiming to be legally elected to either house; nothing declaring that such cases are exceptions to the power of the courts to issue writs of mandamus or quo warranto, and hear and determine the same, or to issue other proper process, under the practice of the state to bring parties before the courts and have issues tried, rights determined and a judgment of ouster where the incumbent was illegally holding. Yet we have heard no one go so far as to assume that any judicial officer or court has the right, by quo warranto or otherwise, to decide whether any one is or is not entitled to a seat in either house of the general assembly, and to the .extent of each one’s official power, the people are as much outraged to allow an illegal holding, as in the case of a governor. But these officers and the judges are members of different and coordinate departments of the state government, and a constitutional provision being made that a legislator’s right to his seat shall be determined in their own department. And, in theory and principle, this right to sit as members should not be under the control of another department of the state government, and, especially one remote from the people. And it is quite clear that the convention never intended that the courts should have power to seat or unseat any member of the general assembly, recognizing that as a coordinate and coequal department of the state government.

If it is upon,this theory that the members of the legislature are not to be disturbed by the courts, are we not forcibly brought to the conclusion that they are not to seat or unseat the governor, who is the head of another coordinate department?

Had the court the power, by quo warranto, to seat or uns6at the governor, to seat or unseat the members of the general assembly, simply by ruling that they had not been elected in strict conformity to law, does it not destroy all equality of independence, of power and of dignity ? and if it is possible for a majority of a court to corruptly enter into political intrigue, would not the whole government of the state be dictated by these few ? — a thing not likely to occur, but a possibility properly guarded.

If was said a court does not seat or unseat any one upon quo warranto, In the same argument it was said, after the right had been determined, this court would issue a mandamus against one wrongfully holding the records, papers, etc., belonging to the office. Upon this reasoning, we are at a loss to see wherein an executive is more independent. "What matters it to him whether he is at once adjudged to turn over his office to another or decided out of office upon quo warranto, and then by mandamus compelled to surrender all that appertains to the office.

And when it is assumed that a court, by quo warranto, and the legislature, upon a contest, may each decide whether or not the incumbent received a majority of the legal votes, and is or is not properly in office, a conflict of jurisdiction arises, and the attempt to explain that away was but a feeble argument.

1’f the legislature should hear a contest and decide that “A.” was governor, and had a majority of votes over the only contestant “B.,” and upon quo warranto, the supreme court should find that B.” received a majority of the legal votes, or in other words, that “A.” did not receive a majority of the votes, “A.” would be adjudged in office by the one and out of office by the other, and a court could no more refuse a mandamus against a party wrongfully in possession of the books, etc., in one case than in the other, and if these two tribunals have equal rights, even as most strongly argued — one by contest between claimants, and the other by quo xoarranto in behalf of the state, it does not change the result. The legislate upon the contest determine that “A.” had more legal votes than B.” and is elected; the court upon quo warranto determines that “A.” did not have a majority and declare him out, and these tribunals being of equal dignity and power, the mandates of each must be obeyed. Thus governors may alternate as often as these august courts assemble, as neither has power over the other. Whichever sits the oftenest would fill the gubernatorial chair the longer time. Can any one, for a moment, suppose the framers of the constitution ever intended to have two tribunals of equal power and in no way in sympathy with each other, with no right of appeal and each independent of all other authority ? If it had not been so seriously controverted, we would have thought the mere statement would havejshown an absurity in any government. No one can contemplate a government with two courts of last resort, both with equal power, and each superior to the head of the executive department — the one declaring a man in office as governor and the other declaring him out of office, and the people with no possible means of ascertaining who is their chief executive.

Mucb time has been consumed in discussing the writ of quo ivctrranio, as used at common law, and in attempting to draw nice and learned distinctions between proceedings by quo warranto and proceedings upon information in the nature of quo warranto as practiced in most of the states, which proceedings are all without any substantial difference. Each is instituted against some one supposed to be illegally holding an office, and to test his rights, and whether the proceeding is in the name of the state alone, or in the name of the state upon the information of some one claiming the office, the object of the suit is to oust the incumbent that another may take his place, the result to the incumbent and the public is the same, and it seems more in keeping with the spirit and usage of the age to deal practically with substances, than to court attention by flirting with shadows.

The solution of the question .before us depends upon our own constitution, and upon a fair construction of that instrument. We are of opinion that the right to determine who is the legally elected governor . of the state belongs to another department, and not the courts, and it would be a useless expenditure of time to enter upon a treatise on quo warranto, its history, modifications, uses, etc.

Under this constitution, the determination of the question as to whether a person exercising the office of governor has been duly elected or not, is vested exclusively in the general assembly of'the state, and neither this or any other state court has jurisdiction to try a suit in relation to such contest, be the mode or form what it may, whether at the suit of the attorney general, or on the relation of a claimant through him, or by an individual aloDe claiming a right to the office. Such issue should be made before the general assembly. It is their duty to decide, and no other tribunal can determine that ques tion.

We are of opinion this court has no jurisdiction to hear and determine a writ of quo warranto for the purpose of rendering a judgment of ouster against the chief executive of this state, and the right to file an information and issue a writ for that purpose is denied.


author: Searle, J.

text:
    Bell, Guardian, vs. Lawson, Administrator.
    Administrators : Cannot represent interest of oreditors.

    Where, under sec. 4, ch. 4, Gould’s Digest, the property by order of the probate court was vested in the minor, and subsequently the administrator moved to rescind the order, alleging that the property was partnership property: Held, the administrator had no right to ■represent the interests of the creditors of the partnership.
    APPEAL from Ashley Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      J. W. Van Gilder, for appellant.
   Searle, J.

The appellant, as guardian of Alfred F. Bate-man, a minor, child of Peter F. Bateman, deceased, petitioned the Ashley probate court to vest the whole of the estate of said Peter F. Bateman in the said minor, for his support and education, said estate not being above the value of three hundred dollars. The probate court granted the prayer' of said petitioner. Afterwards the appellee, as administrator of the estate of Peter F. Bateman, deceased, came into the probate court and moved the same to rescind said action in said behalf. The court, after hearing evidence in behalf of the parties, overruled said motion, and the appellee appealed to the Ashley circuit court. The circuit court, sitting as a jury, tried the cause anew, and reversed the order of the probate court, Appellant moved for a new trial, that being overruled, she appealed to this court.

But one question is presented by the record for our consideration in the determination of the case, the character of which is disclosed by the following facts: The appellant proved, among other things, that Peter E. Bateman died, leaving no widow, but a minor child surviving him. of which minor she was guardian, and that the entire estate of deceased, consisting of the undivided half of a certain block in the town of Hamburg, as described in the petition, was not worth over three hundred dollars.

The appellee proved that the deceased and one Coplinger, as partners, purchased said block on the 21st day of September, 1860, for their partnership business, which was that of mechanics ; that they erected thereupon a workshop, and also a turning lathe, upon and by which they conducted their business from said purchase until the war; that upon the breaking out of the war the deceased entered the army, in which he died in 1863, and Coplinger left the country, insolvent, and that there were judgments in the circuit court against-said firm to the amount of six or seven hundred dollars, and the said block was the only property belonging to said firm, out of which said judgments could be satisfied.

The petition to the probate court, in the first instance, was ex parte. The appellee was made a party defendant when he • appeared in that court with his motion thereto to rescind the order vesting the property in the minor.

We are clearly of opinion that the appellee is not entitled to be a party to this suit. As such he does not pretend that he is representing the interests of the creditors of the deceased, if any such there were. Nor could he with any advantage to them; for if the property is not worth over three hundred dollars, sec. 4, ch, 4, Gould’s Digest, under and by virtue of which the probate court vested the property in the minor, would certainly cut such creditors out of all claims against the property. He is evidently undertaking to represent the interests of the creditors of the firm of Coplinger and Bateman, and this he has no right to do, being merely the administrator of Bateman, deceased.

Eor aught we can know from the record of this case, Cop-linger is still alive, and, as surviving partner, it is his right and duty to wind up the affairs of the partnership.

Eor the error indicated, the judgment of the court below is reversed, and the cause remanded thereto to be disposed of according to law and not inconsistent with this opinion.


text:
    Sugarman vs. The State.
    Forfeited Recognizance : What plea will not release security.

    In answer.to scire facias on forfeited recognizance, the surety pleaded that his principal, by reason of mob violence existing in the county before and at the time he should have appeared, and the fear of losing his life by violence, had fled from the county, and that he could not safely have remained in the county and at the court for fear that he would not be protected by the law. On demurrer to plea, held, that the averments of the plea were not sufficient to release the security from the forfeiture or the principal from trial.
    APPEAL from Chicot Circuit Court
    Hon. Henry B. Morse, Circuit Judge.

      A. H. Garland, for appellant.
   Gregg, J.

On the 20th of April, 1870, Francis Kelly, with one Frank and the appellant as his securities, was held to bail in the sum of five hundred dollars, conditioned for his appearance, on tbe next day in tbe Chicot circuit court, to-answer for an assault with intent to kill.

In March, 1872, Kelly was called in court and failed to appeal', and a forfeiture was taken against him and his securities. The appellant was notified and appeared at the following September term. He answered to the scire facias and averred that Kelly remained in the county until December, 1871, and, that on the part of the State, it was tacitly agreed that he should remain peaceably in the county; but in that month a mob took three white men, who were charged with killing a negro,” out of jail and killed them, and, thereafter, a reign of terror existed up to, and at said March term of court; that he had been informed and believed Kelly’s life had been threatened, and that, through fear of losing his life, he fled from the county, and was absent from that court; that said Kelly could not have safely remained in the county and at the court for fear of not being protected by the law.

The circuit court properly sustained the demurrer to this response, and the appellant saying ‘ nothing further, final judgment was rendered against him, from which he appealed.

There is no averment of any act of God, of the State or a public enemy preventing Kelly from appearing at the court when the forfeiture was taken, and if actual duress was a sufficient excuse, there is no averment here that such duress existed, and we cannot indulge the presumption that a circuit court, when regularly in session and transacting business, would not protect a citizen who would appear there in obedience to its process.

The appellant makes no averment of continued resistance to law and order, nor of Kelly’s return, or of his own readiness to surrender him in court to answer the charge, and, one under 'indictment for felony cannot escape all trial because his own conduct or accidental surroundings, for a time, made him fear he was in danger to go at large in the county.

In this case, there is not even a positive averment that Kelly was afraid; the security avers he had been informed he was, etc. This cannot release the principal from trial, and the security from the forfeiture. The circuit court committed no error, and its judgment is affirmed.


text:
    Standford vs. Wheeler, Auditor.
    Statutes Construed : Sea. 127, revenue aot of March 25,1871, construed.

    The county clerk claiming, that under sec. 127 of the revenue act, approved March 25,1871, he was entitled to five dollars for each certificate issued for lands sold to the state for the nonpayment of taxes, presented his account to the auditer for services in that respect, who refused to allow or audit the same. On petition for mandamus: Held, that the auditor was not authorized to audit accounts against the state for the payment of such fees, without an express legislative provision allowing such compensation to clerks, and without a legislative appropriation for such purpose.
    PETITION for Mandamus.

      A. H. Garland, for petitioner.

      T. D. W. Yonley, Attorney General, for defendant.
   Searle, J.

On May 2, 1873, the petitioner, who is clerk of Jefferson county, presented to the auditor of state for allowance, etc., his account, which is in words and figures as follows:

“ Slate of Arkansas, to B. H Standford, Dr.:
“ To conveying the land of 510 certificates of the clerk of Jefferson county, forfeited to the state in 1871, and recording the same as required by law, $5.00 = $2,550. 1873, April 9th ; ” and which account is sworn to by the petitioner. The auditor refused to audit said account. Whereupon the petitioner petitioned this court for a writ of mandamus directed to said auditor, commanding him, etc. We understand from the petitioner’s account, that he has executed conveyances to the state of lands sold to the state for nonpayment of taxes, upon presentation of five hundred and ten certificates of purchase, as required by section 127 of the revenue act, approved March 25, 1871, and that he has recorded the same; and for which he claims compensation at the rate of five dollars for each certificate.

The petitioner’s counsel asserts that “under the revenue act of 1871, it is by no means certain that Standford is not entitled to five dollars for each tract of land conveyed; but that he is entitled to five dollars for each certificate, there can be no question.”

We have carefully examined this act, and we can find no provision whatever for the payment of five dollars for each tract conveyed. Nor can we find any provision for the payment of five dollars for each certificate of purchase issued, whether to the state or to a private person.

Section 127 of the revenue act of 1871 declares that “ deeds shall be made to the state for lands sold for taxes by the county clerk,” etc. Nothing is said in this section, or anywhere else in the act expressly about the clerk’s fees for such deeds. Section 133 provides for the execution of the proper deeds by the clerk for lands sold for taxes, to the person or persons entitled to receive the same; and that “he,” the clerk, “ shall be entitled to charge and receive a fee of five dollars ” therefor.

If the legislature intended to include the state within the operation of the latter clause of the section just quoted (and this we are not inclined to concede), placing the state in the same category in the payment of such fees as private persons, still.the petitioner is not entitled to the writ prayed for; for neither his account against the state, which he presented to the auditor, nor his petition here, specifies the number of deeds he executed to the state, nor does the petitioner aslc to be compensated according to the number thereof. He alleges that he conveyed the land of five hundred and ten certificates of purchase, and he asks for compensation for such conveyance at the rate of five dollars per certificate. By his showing, therefore, granting that the law is in his favor, he is not entitled to the writ.

In conclusion, we will remark that the auditor would not be authorized to audit accounts against the state for the payment of such fees without an express legislative provision allowing such compensation to clerks, and without a legislative appropriation for such purpose.

We are of .opinion that the writ ought not to be issued.'


author: Stephenson, J.

text:
    Cato and wife vs. Stewart.
    Deeds : Ambiguity of, how explained.

    Where a deed is ambiguous as to the quantity and interest intended to-be conveyed, it presents a question of law to be determined by the court, but where the locus of the property is called in question by a suggestion outside of the instrument of conveyance, it is competent to introduce parol evidence to identify it.
    APPEAL from Arkansas Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Pindalls, for appellants.

      Bose & Green, for appellee.
   Stephenson, J.

The Catos, who are the minor children and heirs-at-law of Amos Cato, -deceased, sue by their next friend, Edward Johnson, for the possession of certain lands in Arkansas county, described as the S. £ S. W. ^ sec. 26, and S. E. i S. E. i sec. 27, T. 3 S., R. 6 W.

The defendant interposed a general denial, and at the March term of the Arkansas circuit court, the cause went to trial, the court sitting as a jury.

The plaintiffs introduced as evidence the certificate of the swamp land agent that the lands had been duly purchased from the state by their father.

Mrs. Rebecca Cato testified that she was the widow of Amos Cato, deceased, and that the plaintiffs were his children and only living heirs at his death, and the lands sued for were the only lands deceased owned, at his death, in Arkansas county.

D. S. Morris testified that the rental value of the lands per year was one hundred dollars.

The defendant then introduced and read from the records the following order:

“In the matter of the estate of Amos Cato, deceased. Now, on this day comes Rebecca Cato, by Whittemore, her attorney, and presents to the court here her petition asking the court to turn over to her the property belonging to said estate, said estate consisting of one hundred and twenty acres' of land, unimproved, lying on Bayou Meto, whereupon come D. S. Morris, Robert A. Young and W. T. Wells, and, after being duly sworn as the law directs, appraised said land' to be worth the sum of one hundred and fifty dollars. It is therefore ordered by the court, that said estate be and the same is hereby turned over and vested in the widow of the said Amos Cato (the said Rebecca Cato), during her life time.”

Defendant offered to read a deed from Rebecca Cato to Benjamin H. Nobles of the lands here sued for, but the court refused to admit the deed in evidence.

Defendant offered to prove by Eebecca Cato that she bad sold the land to Nobles, which the court refused.

The plaintiffs then offered to prove by Eebecca Cato that she did not employ Whittemore to procure the order from the probate court, and that she neither desired such an order, nor knew that it had been made until the commencement of this suit, and that Whittemore was not, nor ever had been her attorney, which the court refused.

The court found the following facts: That, in 1860, Amos Cato entered the land in controversy; that he is dead, and that plaintiffs are his children and only heirs at law; that Eebecca Cato, his widow, by Whittemore her attorney, made an application to the probate court, on the-day of -, 1867, to have 120 acres of land set apart to her, under sec. 3, ch. 4 of Gould’s Digest, and that said probate court did, by an order entered of record, set apart and vest in said Eebecca, widow of Amos Cato, deceased, 120 acres of land, and that it was the same land involved in this suit, and that the defendant was in possession.

The court declared the law to be that “ the probate court had jurisdiction of the subject matter and the parties; that said order divested the right to the possession of said land from the plaintiffs and vested it in the said Eebecca, and that the plaintiffs cannot recover.”

Judgment for defendant.

The bill of exceptions presents a long array of objections to the rulings, finding and judgment of the court, but we deem it material to notice the following only :

Did the court err in admitting in evidence the order of the probate court vesting the land in Eebecca Cato ?

Did it err in admitting the evidence of Eebecca Cato to prove what land her husband owned at his death, tOoShowthat the 120 acres of land mentioned in the order of the probate court was the same land involved in this suit ?

Did the court err in refusing to admit the testimony of Eebecca Cato to prove that she never employed "Whittemore to procure the order from the probate court?

The order of the court is based upon the 3d section of chapter 4, Could’s Digest, and is a substantial compliance with its formal requirements. It must be presumed, for the purpose of this case that, upon the filing of Eebecca Cato’s petition to have the estate of her deceased husband vested in her, the court satisfied itself that said estate was of the character or class contemplated by the statute; that being true, it had no other duty to perform than to taire the steps pointed out by the law to invest the widow with the title to the property.

It is insisted, secondly, that the court erred in admitting the testimony of Eebecca Cato to prove that the 120 acres of land, described in the deed, is the same land for the possession of which the suit was brought.

It will be observed, by reference to the order of the probate court, that the land is somewhat loosely described. Eebecca Cato files her petition to have the property belonging to the estate of her husband vested in her “said estate, consisting of 120 acres of land unimproved, lying on Bayou Meto.” “Itis therefore ordered by the court that said estate be and the same is hereby turned over and vested in the widow,” etc.

This order was Mrs. Cato’s title to the land, and is subject to the same rules of construction as a deed, so far as the words descriptive of the property are concerned.

What was meant by the language used was a question of law, to be construed by the court, and presents what is termed-a latent ambiguity. The quantity and interest intended to be conveyed by a deed must be determined by the court alone, but it frequently occurs, as in this case, that the locus of the property is called in question by a suggestion outside- the instrument of conveyance, in which case it is competent to introduce parol evidence to identify it. It was the duty of the court in this case to ascertain what land was meant to be vested in Mrs. Cato if it was possible from the language used to ascertain that fact, then upon the suggestion that the land sued for was not the same so vested, oral testimony could be introduced to explain the ambiguity.

A reasonable construction of the order, so far as it relates to the description of the land is as follows: One hundred and twenty acres of unimproved land lying on Boyou Meto, the same being the entire estate of Amos Cato, deceased.

From the order, the court has no difficulty in ascertaining the quantity of and interest in the estate which passed to Mrs. Cato, but to learn where it is, the judge, sitting as a jury, must place himself in the position of the probate court at the time it made the order, and if, by the aid of extrinsic cotemporary facts he can locate 120 acres of land belonging to the estate of Amos Cato, deceased, on Bayou Meto, he has a solution of the question. The plaintiffs sue for a certain tract of land described by the numbers of the legal subdivisions according to the survey. The defendant interposes a title to land differently described. The description in either deed is sufficient to pass the title. The instruments, themselves, do not disclose the fact that the land described in each is identical; resort must, necessarily, be had to proof aliunde.

The testimony of Mrs. Cato was of the highest importance to the proper solution of the controversy on this point, and is decisive of it. She swears that the land in controversy is the only land which her husband had in this county when he died, and the court, sitting as a jury, might well conclude from this testimony, and the order of the probate court, that the lands sued for and those embraced in the order were identical. 1 Greenlf. Ev., secs. 284-293; Reed v. Props. Locks and Canals, 8 How., 274; Bell v. Woodward, 46 N. H., 315; Jackson v. Moore, 6 Cow., 722; Gerrish v. Towne, 3 Gray, 86; Fitch v. Miller, 20 Cal., 352.

The plaintiffs, in order to destroy the force of this outstanding title from Mrs. Cato, attempt to introduce proof to show that the order was obtained by one Whittemore, without the authority, knowledge or consent of Mrs. C. That the judgment of a court of competent jurisdiction cannot be thus collaterally attacked has been so often decided by this and other courts, that a citation of authorities, or a reaffirmance of that principle we deem unnecessary. If the plaintiffs desire to test the regularity of the proceedings of the probate court, they must adopt another form of action on the other side of the court. We have already seen that the proceedings were not void on their face, and we must presume, for the purposes of this case, that the court had jurisdiction.

The judgment is, in all things, affirmed.


text:
    Files vs. Watt.
    Parties : When petition to be made party to a suit denied.

    In a suit for the possession of land, after appeal to this court and mandate sent down, a third party, showing no interest in common, or privity of right between himself and the other litigants, but claiming an independent ownership, petitioned to be made a party defendant: Seld, that the petitioner had no right to be made a party to a suit only involving the right of possession between the other litigants, and the court should have disallowed his petition.
    APPEAL from Ashley Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      J. W. Murphy, for appellant.

      J. W. Van Gilder, for appellee.
   Gregg, J.

An action was pending between Alexander K. Watt and John T. Hughes for the possession of certain lands; after the case had been in this court (26 Ark., 228), and a mandate sent down, the appellant appeared in the court below, and filed a petition to be made a party defendant.

The prayer of his petition was granted and his answer filed. After the plaintiff, upon the trial in the original suit, had produced his evidence, the appellant offered to introduce proof of title in himself, and to show that the defendant (Hughes) was holding under him, The appellee objected. The court sustained the objection, to which appellant excepted; whereupon the court, on its own motion, ordered the appellant’s answer stricken from the files, and his name as a defendant stricken from the record, to which he excepted, and he appealed to this court.

The appellant was neither a necessary nor a proper party to the suit between Watt and Hughes; he shows no interest in common or privity of right between himself and either of the litigants. He simply alleged an independent ownership, and made no showing that Watt, the plaintiff, was in any way attacking his right of property or possession, and if Watt was seeking no judgment against him, and none that affected his title or his right of possession, he should not complain, and certainly he had no right to intermeddle in a controversy between Watt and Hughes, only involving their right of possession, and the court should have disallowed his petition.

As he was improperly in court, and complicating litigation between others, he cannot be heard to complain if the court refused to hear his proof.

The judgment is affirmed.


text:
    Hughes vs. Watt.
    Landlord and Tenant: Tenant cannot dispute title of.

    Where a party in possession, while using the premis.es, pays rents to, and contracts with one as owner, he will not be permitted to deny the title he thus confirms, but if he wishes to contest the title, he must first surrender the possession, and then bring his action.
    APPEAL from Ashley Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      G. W. Murphy, for appellant.

      J. W. Van Gilder, for appellee.
   Gregg, J.

This case was before this court at the December term, 1870. 26 Ark., 228. After the mandate was filed in the court below, the appellee replied to the appellant’s answer, that appellant was his tenant and was holding over after the expiration of his lease.

The appellant moved the court to strike out this replication, which the court refused to do, and he excepted. A trial was had by a jury, a verdict and judgment for the appellee.

During the trial it was proved that the appellant recognized the appellee’s title, and verbally agreed to purchase from him, that he failed to complete the purchase, that he afterwards rented from him for the years 1868 and 1869, but in January, 1870, he disputed appellee’s title, and refused to give up possession.

If, as alleged, the appellant originally owned these lands and resided thereon, he might have held them as a homestead against any judgment, or if he had been lawfully in the possession of the lands under a title adverse to the appellee, the appellee could not have ousted him upon a fraudulent purchase, or upon a deed made by a sheriff, as such, where there had not -been a proper levy, advertisement and sale, as the appellant now avers the facts to have been.

But wheré the appellant recognizes the appellee’s title, rents from him, and settles for rents by payments or giving his notes, as was done in this case, it is not necessary to enquire into title in a suit merely for possession between them, because it does not lie in the mouth of a tenant who has recognized and contracted with one as owner, and attorned to him while using the premises, to deny.a title he has thus confirmed, and retain a possession he has enjoyed by the favor of such landlord. If such tenant wishes to contest the title, he must surrender possession and then bring his action. Hence the court did not err in refusing to allow him to read appellee’s deed from the sheriff, in order to lay a foundation to show that such deed was fraudulent and'void, and he was equally barred, in this possessory action at law, from showing that he was ignorant of his own rights or the character of appellee’s title, when he rented from him, courts must presume that those of sane mind and mature age understand the law, and due diligence requires that each be familiar with all facts relative to his own titles.

It was not necessary, under the general denial of the complaint, that the plaintiff below should have filed a replication averring that the defendant was his tenant (sec. 123, Code of Civil Practice), and it would have been proper, on motion, to have stricken the answer out; but as the same facts introduced to sustain the issue with the replication before the court would have been alike legitimate, if introduced under the general denial of the plaintiff’s cause of action,, the appellant was in no way prejudiced by the court’s refusing .to strike out the replication.

The judgment is in all.things affirmed.