text:
    Hill Ex. vs. The State.
    As upon the death of-a trustee he ceases to be such, and as to him the trust is no longer continued, his indebtedness to the ti'ust becomes a demand against his estate, to be authenticated, allowed, classed and paid out of the assets of his estate, as other demands.
    The statute of non-claim is a bar to the claims of the State, if not exhibited within the time prescribed by the statute, as in the case of private individuals.

      Appeal from Pulaski Ohaneery Qowrt.

    Hon. H. F. Fairchild, Chancellor.

      Watkins & Gallagher, for appellant.
    Hempstead, for appellee.
   Mr. Chief Justice English,

delivered the opinion of the court.

This case, like The State vs. Shall, ad., and Biscoe vs. The State, ante, is a branch of the suit of the State against the Trustees, etc., of the Real Estate Bank.

George Hill was one of the original Trustees under the deed of assignment; and was also one of the residuary Trustees, and continued to act as such until the time of his death, in January, 1849.

Having made a will, letters testamentary were granted to his widow, Nancy Hill, by the probate court of Hempstead county, 31st of March, 1849; and as his executrix she was made defendant to the bill filed by the State against the Trustees, etc., 1st of May, 1854.

In her answer, she pleaded the statute of non-claim, limitation, etc., and before,' and at the time of the final hearing, she moved to be discharged upon these defences, but the court overruled the motions, and rendered a decree against her, as the representative of her deceased husband, for the sums mentioned below, and she appealed.

Hill was indebted to the bank, on stock notes and accommodation notes, before, and at the time of the deed of assignment; he made payments during his lifetime, and like Biseoe (see Biscoe vs. State, ante,) was credited with a salary of $750 per annum for his services as Trustee, instead of th&<per diem compensation provided for by the deed. At the time of his death, there was still a balance against him upon the books of the bank, as his account was stated by the cashier and secretary of the board of Trustees, which Mrs. Hill, as his executrix, subsequently fully paid off.

Hpon a re-statement of his account, by a special master, under the directions oi the chancellor, as in Biseods ease, his estate was reported to be indebted to the trust in the sum of $3,091 24, in money, and $1,837 87, in Arkansas bank paper or bonds, for whi-cb a decree was rendered against appellant, as executrix. A decree was also given against her for the sum of $2,365, in money, reported by another special, master to whom the matter was referred, as being Hill’s portion of the value of the Ferguson negroes, which were lost to the trust, the chancellor held, by the negligence of the Trustees.

It appears that ¥m. D. Ferguson had made a mortgage to the bank upon lands and negroes, to secure debts due from him to the bank; the mortgage had been foreclosed, the property sold and purchased by the Trustees. On the 28th May, 1847, the Board of Trustees, (present, Biscoe, Hill, Faulkner and Walters,) made an order, upon application of Ferguson, that when he paid or secured $5,500 00, the value fixed upon the slaves, they would reeonvey them to him. In the meantime the slaves were to remain in his possession, to be employed, fed, clothed, etc., by him, on condition that he did not remove them from ' the State. It seems that no further step was taken, by the Trustees, about the matter during their continuance in office. That Ferguson failed to secure or pay the value of the slaves, and that some time or. other, whether before or after the death of Hill does not appear, ran them off to Tennessee, and they were lost to the trust.

It was agreed by the parties that there had been no authentication and presentation of the demands against Hill’s estate, to his executrix, as required by the administration laws; and that if the statute of non-claim was applicable to this suit, the appellant should have been discharged.

The bill sought to recover against Hill’s estate mere money demands. Upon his death, whatever trust property there may have been in his possession, passed, it must be supposed, in the absence of any showing to the contrary, into the hands of his survivors and successors in office. The decree against his executrix was for money demands, one of them arising upon a re-statement of his book account, and the other upon a valuation of trust property,- supposed to have been lost to the trust, by the negligence of himself and his co-trustees, in leaving it in the possession of Ferguson without security. These demands, if just claims against his estate at all, as we must suppose they were, existed at the time of his death, and were as capable of being asserted in a sworn bill brought within two years after the grant of letters testamentary to his executrix, as they were five years after by the bill then filed in this case.

In Walker as ad. vs. Byers, 14 Ark. 252, the court, by Mr. Justice Scott, said: “In this system, [meaning our administration system, upon which he was commenting,] two capital objects seem plainly in view from the various provisions for their attainment ; first, that the estate of every deceased person, after death, shall immediately pass to the custody of the law, to be administered for the benefit of creditors, and after the satisfaction of all claims against it, that shall be presented within two years after the grant of letters testamentary, or administration,-. the residue shall in the next place be passed to the heir or distributee, quit of all claims against it which the law will allow of, as against an executor or administrator.”

And after remarking upon the jurisdiction of the probate court, and its mode of dealing with estates, the Judge continues thus: “ In such a system, with a tribunal thus constituted, as its effective instrument, we think it clear that the claims and demands which the statute contemplates shall be exhibited to the executor or administrator in the manner provided by the statute, before the end of two • years from the granting- of letters, on pain of being forever barred, are all claims capable of being asserted in my court of justice, either of law or equity, existing at the time of the death of the deceased, or coming into existence at any time after the death, and before the expiration of two years — including, of course, all claims, or demands, running to certain maturity, although not yet payable, to be adjusted presently, upon equitable principles of discount, according to the rate of interest when matured, or to be provided for at the day of maturity without discount, and excluding such claims only as might be inchoate and contingent, like that in the case of Burton vs. Lockhart, (4 Eng. R. 412,) and like dormant warranties, broken by eviction after the expiration of the two years.”

“ In excluding such possible claims, (continues the Judge,) indicated in the latter class, the statute does not destroy them, only as against any administrator, or executor, and in preferring to them all claims that exist at the death, or come into existence at any time before the expiration of the two years, and therefore leaves them to be asserted against the heir or distributee, as such, as a superior equity to Ms, in the assets that may have descended, or been distributed to him after the estate of a deceased person has been administered for all the purposes contemplated by law. Whereas, every species of claim or demand, either legal or equitable, which comes within the scope of the administration, as we have defined, will be forever barred, as well against the heir or distributee, as the executor or administrator, if not exhibited in the manner provided by the statute, by the end of two years.”

• “From this exposition of our administration system, etc., etc., etc., it results that where one dies and leaves an estate, every claim or demand against it, for which it is liable, when in the course of administration, in whatever manner asserted, must be authenticated by the affidavit of the claimant, as provided by the statute, because in no other way can a claim be exhibited' in accordance with the statute, to prevent it being forever barred.”

After noticing some exceptions to the rule as thus stated, which are unlike the case now before us, and showing that the statute of non-claim, and not the general statute of limitations is applicable to demands against the estates of deceased persons, the Judge says: “ In the light of these views, then, it is clear that the decree in this case cannot be sustained upon the cross-bill of Byers, because there is no pretence either that the cross-bill was sworn to, or that it was filed, until long after the expiration of two years from the grant of letters of administration to Walker.”

The principles announced in this opinion have been repeateclly applied and confirmed in subsequent cases, and may be regarded as settled. See Bennett et al. vs. Dawson, 18 Ark. 336; Oswalt vs. Moore, 19 Ark. 225; State Bank vs. Walker ad. 14 Ark. 236; Bennett et al. vs. Dawson et al., 15 Ark. 413; Biscoe et al. vs. Madden as ad., 17 Ark. 533.

It is insisted for the State, that the statute of non-claim does not apply in this case, first, because Hill was a trustee, and that the trust was direct and continuing; and, second, that the statute of non-claim, like the general statute of limitations, does not run against the State.

In regard to the first objection, it may be remarked that it is true that Hill was a direct trustee, under the deed of assignment, and that it was, what is denominated in the books, a continuing trust. But upon his death, he ceased to be a trustee, and, as to him, the trust no longer continued (Halliburton ad. vs. Fletcher ad. et al., 22 Ark. 653). His indebtedness to the trust became a demand against his estate, to be authenticated, allowed, classed and paid out of the assets which came into the hands of his executrix, as other demands, unless the State, having an interest in the trust, was privileged to file a bill at any time to enforce the payment of the demand, by the executrix, regardless of the provisions of the administration statute prescribing the mode of authenticating, and limiting the time for presenting claims against executors and administrators; and this brings us to the consideration of the second and more difficult objection:

Does the statute of non-claim apply to the State?

It may be remarked, that the demand against Hill’s estate, on account of his indebtedness to the trust, was not one directly due to the State, or payable into her treasury. She is, however, deeply interested in the effects appertaining to the trust. To enable the Real Estate Bank, a private corporation, to raise a banking capital, the State issued her bonds to the bank, on the faith of mortgages made by the stockholders, upon jands,,, to secure the payment of the bonds, etc.; the bi^páí^ endorsed by the bank, put into the market and sol|. ’“'After-wards, the bank being in failing circumstances, made the deed of assignment to Trustees for the benefit of its creditors, etc. The bill, in this case, was filed by the State, on behalf of herself and other creditors, to compel the Trustees, and the executors and administrators of such of them as were deceased, to account, etc. Any stockholder, bondholder, or other creditor of the bank, or person interested in the trust, had the same right to file the bill that the State had, and a bill to compel the executrix of Hill to account, and pay over money due from him to the trust, might have been filed within two years from the grant of letters to her, as well as after the expiration'. of five years; which time had elapsed when the present bill was filed.

If this suit had been brought by any other creditor of the bank than the State, we think it clear that it would have been barred by the statute of non-claim, so far as the demand against the executrix of Hill is concerned. Why then should the State ■ be permitted to come in, out of time, and compel the executrix to pay a demand lost to all other creditors by their negligence and delay? The answer for the State is, that the statute of non-claim does not apply to her — that time does not run against the State.

It is true that it is an old maxim of the English law, that no lime runs against the crown, or, as it is expressed by the early law writers, nullum tempus occurrit regi. Broom's Legal Maxims 46; 11 Coke 68, 74. And the rule founded upon it is, that the king is not bound by any statute of limitations unless there be an express provision to that effect. Sedgwick on Stat., etc. 105. The reason sometimes assigned why no laches shall be imputed to the king, is, that he is continually busied for the public good, and has not leisure to assert his right within the period limited to subjects. Coke Lit. 90; 1 Black. 247. A better reason is, the great public policy of preserving public rights and property from damage and loss through the negligence of public officers. United States vs. Hoar, 2 Mason 311; The People vs. Gilbert, 18 John. 227; 9 Wheat. 720, 735; Levasser vs. Washburn, 11 Grat. 576; Angel on Lim. 35. And it has been said that the reason is equally, if not more, cogent in a representative government, where the power of the people is delegated to others, and must be exercised by these if exercised at all; and accordingly the principle is held to have been transferred to the sovereign people of this country, when they succeeded to the rights of the king of Great Britain, and formed independent governments within the respective States. Levasser vs. Washburn, 11 Grat. 577; Kennedy’s Ex. vs. Townley’s Heirs, 16 Ala. 247; Commonwealth vs. Baldwin, 1 Watts 54; State vs. Thompson, use, etc., 5 Eng. R. 67; McNamee vs. United States, 6 Eng. 148.

And though this is sometimes called a prerogative right, it is in fact nothing more than a reservation, or exception, introduced for the public benefit, and equally ^applicable to all governments. United States vs. Hoar, 2 Mason 314.

“ But, independently of any doctrine founded on the notion of prerogative, (says Judge Stohy in the case last cited,) the same construction of statutes of this sort ought to prevail, founded upon the legislative intention. Where the government is not expressly, or by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed, or the language used, that the government itself was in contemplation of the Legislature, before a court of law would be authorized to put such an interpretation upon any statute. In general, acts of the Legislature are meant to regulate and direct the acts and rights of citizens; and, in most cases, the reasoning applicable to them applies with ‘ very different, arid often contrary force to the government. It appears to me, therefore, to be a safe rule, founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act.”

Conceding it to be well established that the general statute of limitations does not run against the State, we will apply the rule for the construction of statutes as stated by Judge Story, to the statute of non-claim, and other provisions of our administvation acts, to be taken in connnection with it, and see whether demands due to the State are not, by clear and necessary implication, embraced.

The language of the statute is broad and comprehensive. It declares that “ all demands, not exhibited to the executor or administrator, as required by this act, before the end of two years from the granting of letters, shall be forever barred.” Dig., chap. 4, sec. 98. It embraces, as we have above shown, equitable as well as legal demands. Claims due to corporations, to artificial as well as natural persons, are expressly included. (Sec. 104.) No exceptions are made in favor of married women, infants, persons insane, imprisoned, or beyond seas. (1 Eng. R. 14.) The demands of all, alike, are forever barred, as against the executor or administrator, if not brought forward within the time limited by the act. The general statute of limitations applies to the remedy only, and the debt, after it is barred, may be revived by a new promise, part payment, etc., but the statute of non-claim applies to the right, and when the claim is barred by it, it is forever barred. No promise of the executor or administrator, made in any form can revive the claim. It is not within their power to allow a demand after the expiration of the two years. The policy of the statute forbids it. The statute need not be pleaded, but the executor or administrator may insist on the bar, at any time before final judgment. 14 Ark. 240.

Upon the death of a person, his entire estate (subject to dower and specific liens, etc. 14 Ark. 246; 18 Ib. 414; 22 Ib. 535), becomes assets,in the hands of his executor or administrator, first, for the payment of all demands brought forward, in the manner prescribed by the statute, within two years from the grant of letters, and then the remainder, if any, to be turned over to the legatees or distributees; who are kept waiting, without even an allowance for maintenance, until the expiration of the two years, unless the Probate Court, upon refunding bonds executed by them, shall sooner order distribution, etc. (Secs. 149, 159). And to avoid unnecessary delay in tbe payment of debts brought in and classed within the period of limitation, as well as to prevent executors and administrators from unnecessarily keeping back the remainder of the estate from legatees and distributees, the statute declares that every “ executor or administrator shall make final settlement of his administration within three years from the date of his letters,” etc. (Sec. 204.) And though, in many instances, it may be impracticable for executors and administrators to make final settlement within three years, yet this section is in harmony with the other provisions of the statute, and constitutes an important feature in the administration system contemplated by it.

Looking at all of the provisions of the statute together, and considering the policy manifestly contemplated by it, we think the conclusion is unavoidable, that demands due the State, or in which she is interested, as in this case, are, by clear and necessary implication, embraced by the statute, and, like other demands, barred if not brought forward within the period of limitation fixed by the act.

If the State, through the negligence of her officers, may hold back her demand for more than two years from the grant of letters, and then bring it forward, and compel the executor or administrator to allow" and pay it, she may not only delay to present it for five years, as in the case before us, but the delay may extend to any number of years. In the meantime, how is the executor or administrator to pay the demands presented and allowed in time; to pay legacies and distributive shares out of the assets remaining; and make a final settlement of the estate within three years from the grant of letters, as required by the statute? A construction of the statute that would admit a demand due the State after the expiration of the period of limitation, would be at war with the manifest policy of the statute, and hinder, delay and disturb the due course of administration.

In the general statute of limitations, from considerations of public policy, there is an implied reservation in favor of the State (where she is not named), as there are express exceptions in favor of women laboring under the legal disability of coverture, infants and insane persons, who are ¡supposed to be incapable of attending to their interests, etc., and there are good reasons why these reservations should be made.

But the administration statute, contemplating, as we have seen, a speedy settlement of all demands, and a distribution of the remainder of the estate to legatees and distributees, within a prescribed time after grant of letters, in fixing the period in which demands are to be presented, has, consistently with the policy of the act, made no reservation in favor of married women, infants, insane persons, etc., and the courts can make none. The policy of the statute is, that the course of administration and distribution shall not be prolonged and confused by the coming in of claims out of time; and there is no good reason why the policy which excludes demands due to the helpless persons above mentioned, if not presented within the time prescribed by the statute, should not also bar the claims of the State exhibited for allowance out of time.

In Mississippi, where the statute limiting the time for exhibiting demands against the estates of deceased persons, is treated as a mere statute of limitations, (5 S. & M. 651; 7 Ib. 441), it has been héld that the statute does not run against the State. Parmilee vs. McNutt, Gov., etc., 41 S. & M. 183.

So in United States vs. Hoar, 2 Mason 311, Judge Story appear^ to have treated the statute of Massachusett, limiting suits against executors and administrators, as of the nature of the general statute of limitations, and applied the old English maxim, nullum tempus occurrit regí, etc.

But in The State vs. Crutcher ad., 2 Swan 504, in a well considered case by Mr. Justice McKinney, the distinction between the general statute of limitations and the statute of non-claim of Tennessee, is pointed out, and it is held, upon a construction of that statute, and other statutes construed in connection with it, that demands due the State are barred by the statute of non-claim, if not presented within the time limited, etc.

Our conclusion is, that the decree against Mrs. Hill must be reversed, and a decree entered here, and certified to the court below, discharging her from the suit.

Mr. Justice Fairchild did not sit in this case.


source: Caselaw Access Project

author: Mr. Justice Compton

license: Public Domain

text:
    Turnbull vs. Turnbull.
    Where the evidence, in a bill for divorce by the husband, fully establishes the fact of adultery on the part of the wife, and that, afterwards, and with a full knowledge of her guilt, he received and kept her as his wife, the law will imply that he remitted her fault and forgave her the violation of her marriage vow — the doctrine of con-donation as acted upon in all English and American courts, where divorces are granted, not being, destroyed by the statute upon divorces.

      Appeal from Pulaski Chancery Court.

    Hon. Uriah M. Rose, Chancellor.
    Garland & Randolph, for the appellant.
   Mr. Justice Compton

delivered the opinion of the Court.

paving carefully examined this case, and found no error in the record, we affirm the decree of the court below, and direct that the opinion of the chancellor be reported as expressing, fully, the views of this court.

CHANCELLOR’S OPINION.

The plaintiff seeks to obtain a divorce from the defendant on account of adultery, which he says was committed by her with a person named Thomas Connor, at a public hotel called the Anthony House, in the city of Little Rock, during the month of November, 1859.

The defendant answered the bill; positively denied the fact of adultery as charged, and asserted that she had, at all times, demeaned herself as a true and faithful wife of the plaintiff; and that after the time that the plaintiff says in his bill that he became convinced of her infidelity, he continued to live with her on the same terms of confidence as formerly, and to treat her with the same kindness.

It appears from the bill and from the evidence, that at the time of the alleged commission of the act of adultery, the plaintiff was the manager of a theatre in Little Rock, and thg-t-' the adulterer was an actor in his employment.

The evidence also shows that the defendant, for two or three years before the time of her alleged offence, was a very light and imprudent woman, very fond of the society of other men besides her husband, and very unrestrained in her manners at all times. That at Hot Springs in 1858 and 1859, she was so indiscreet as to attract, the attention of visitors: that she wasin the company of Connor on every opportunity áfforded by the absence of her husband: that on one occasion she expressed herself in the presence of more than one person as having an affection for Connor, and said that she did not care who knew it, and that on being remonstrated with, and told that she was acting badly, she said that she did not care: that during the month of November, 1859, the plaintiff went to Memphis, leaving his wife at the Anthony House, where they were then boarding; that during the absence of the plaintiff, Connor was in the room of the defendant every day, and that one day she was seen in the room of an actress named, or called, Oceana, with Connor, and that while there she used very indecent and unbecoming familiarities with him: that while the plaintiff was gone to Memphis, Connor was seen to go into defendant’s room at about twelve or one o’clock at night, and that he did not come out until after 8 o’clock next morning, until which time the witness, who was employed as watchman at the hotel, kept guard, that about six or seven o’clock next morning after Connor went into the room, the little sister of the defendant and another girl went to the door of the room and tried to get in, but could not; that soon after the plaintiff’s return from Memphis, Connor came in the night into the hall upon which the defendant’s room opened, turned down the lights in the hall, examined the premises as if to see whether any one was about, and then knocked at defendant’s door, went in, remained ten or fifteen minutes, and then came out, and that the plaintiff was not in the house at that time. It is also proved that these facts, wfifich transpired at the Anthony House, were made known to the plaintiff on or about the 15th day of December, 1859, and that soon afterwards the plaintiff shot Connor in his wife’s room.

The fact that Connor was seen to go into the defendant’s room at night, was testified to by a witness whose name is McDaniels, and who was the watchman above mentioned. But of the intimacy which existed between her and Connor, of her language wherein she expressed her preference for him, and of the scene in Oceana’s room, we have the evidence of other witnesses. There is something in the evidence of the sister of the defendant, which militates against that of the witness McDaniel, but not enough, it seems to me, to overthrow it, or to make it proper to discard it. But if the evidence of McDaniel were left out of the case, I should still be sufficiently convinced that the defendant has been guilty of the sin of adultery, as charged in the bill. The act of adultery can rarely be proved by positive evidence. The guilty parties, through fear and through shame, generally use all their ingenuity to keep it secret, and if it be proved at all, it is almost always indirectly, and by evidence of various circumstances, each of which may appear trivial in itself, but the aggregate of which is convincing, and sometimes nearly conclusive. It is barely possible, from the evidence in this case, that the defendant may be innocent, as it has been said by a learned ecclesiastical judge, that it is physically possible that two persons of different sexes may be in the same bed together without sexual intercourse, but the courts cannot act on such presumptions. The evidence in this case cannot be said to be equivocal. The acts of the defendant obtrude themselves upon the mind, and her words rivet conviction. To attribute her behavior to mere levity would be to exercise a charity which would infringe upon justice, and would be to refuse to draw a reasonable inference from the facts which are in evidence.

The answer states that after the time of the alleged discovery of the offence of the respondent, the plaintiff lived with her, and treated her as in all former times of their married life. This I take to be a sufficient urging of condonation by the plaintiff as a defence to this suit, and I do not conceive that even thus much need be stated in the answer in order to give the defendant the benefit of that defence, which is one that belongs to society as well as herself.

It has been urged in the argument that, since no mention of condonation as a defence to a suit for a divorce is anywhere made in our statute, the whole doctrine must be considered as foreign to our jurisprudence. I do not understand that our legislature, in passing the divorce act, intended or attempted to codify the whole law appertaining to that subject, and that our law of divorce is necessarily limited and circumscribed to the mere letter of the statute. The doctrine of condonation is familiar in all English and American courts, where divorces are granted or permitted, and it would hardly seem to be the intention-of the legislature to destroy it unless there was some enactment to that effect. Although the statute provides that the proper court shall have power to grant divorces for adultery, yet the court is not bound to do so. The same discretion is left with the court as was formerly left with the ecclesiastical court, a discretion which is to be exercised according to equitable principles, and with due regard to the rights of the parties, the interests of society, and the welfare of the offspring of the marriage^

If a person have a right to a divorce for adultery, cruel treatment, or any other cause, he is not bound to exercise it, or to enforce it. He may waive it, or abandon it. The law permits him to elect to live with the wife who has dishonored him, if he prefers it, and whenever he knows that she has committed adultery, and he can make proof of it, and then voluntarily cohabits with her, the law allows that he has made his election. Williamson vs. Williamson, J. C. R. 488: nor ought any blame to attach to the law because it requires men to be somewhat consistent, and causes the effect of their forgiveness to live somewhat longer in some cases than the transitory feelings which prompt them.

The peace and quiet of families, the tranquility of society, and a proper regard for the welfare of the issue of the marriage which may be born or engendered after the time of the condonation, afford the most potent reasons on which the principle rests.

It appears by the bill, that the plaintiff was informed of the most material facts in evidence in this case, on or about the 15th of December, 1859, and that he was thereupon so well convinced of the guilt of his wife, that he immediately took steps to secure a divorce. He was well enough satisfied of her transgression to endeavor, straightway, to be legally separated from her, whom, he says, he had hitherto loved with an exceeding affection; and fully enough convinced to shoot her paramour, as is shown by the evidence. He knew that he could make, by Stidham and McDaniel, the same proof which is made by them here; and which would satisfy any reasonable tribunal of his right to a divorce. There was nothing to blind him in the matter. It was all apparent before him, as^ell what his wife had done, as what the law permitted him to do. He had his choice to rely on his legal rights, or to forgive his erring wife, and receive her again to his bosom. Unfortunately for his success in this suit, he chose the latter. The night after he shot the adulterer he passed in jail; his wife visited him in prison. Upon his release, next day, he returned to his room at the Anthony House, and staid there with his wife, as before, until he left the State with her. • The evidence elsewhere show's that there w'as but one bed in the room. Soon after he was let out of jail, he went to Danley and told him that he was sorry that ladies had quit visiting his wife; that he had heard that it was because there was a current report that he had caught Connor in an improper connection with her; that the report wms false; that he had shot him because he had spoken to her after he had forbidden him t.o do so. Within a few days afterward, the plaintiff went to Memphis with his w'ife, occupying the same stateroom on the steamboat which carried them thither, and when they got to Memphis, where the defendant’s father lives, they lived together as man and wife, and during the two or three months they wrere there together, they both occupied one room. Soon after the plaintiff arrived there, he went to the editor of a newspaper, got into a quarrel with him because he had published an account of the affair between the plaintiff and Connor, which contained reflections on the defendant’s virtue, and was instrumental in causing a retraction of the offensive article to be published by the same editor. During their stay at Memphis, the plaintiff took his wife to visit his relatives, and his sister returned with him, and staid with them for some time, and during all this time the chief solicitude of the plaintiff seems to have been to make the world think that his wife was innocent.

If any thing was wanting to this overwhelming array of facts, it is to be found-in the letters which he wrote to his wife, when absent at times, from January 19th, 1860, to the following 4th of July. These letters are very affectionate in their spirit and language. ííe calls her his dear Frank, and expresses the most earnest care for her health and her happiness. He is profuse in his expressions of conjugal affection: he is anxious to hear often from her; he sends her money; he urges her to take care of her health, speaks of the incidents of his travels; entreats her in some of his letters to seek the consolations of religion as above all others; tells her of his success in his business, which was gambling on a game called rondeau, and speaks of the pleasure which he anticipates at their meeting. In May} 1800, he parted from her kindly, and wrote to her in the same manner up to within seventeen days of filing his bill in this cause; but within a short time after the commencement of this suit, he told one of the witnesses that he was under engagement to marry another lady residing in Louisiana.

This evidence shows that with a full knowledge of his wife’s guilt, he received and kept her as his wife still, that he remitted her fault, and forgave her the violation of her marriage vows. And having taken this course, he cannot now be allowed to revive the memory of her sins, to parade them before the public, and make them the basis of his relief. He had the right to forgive her or not, as he saw fit, but having once forgiven, it is not his privilege to retract his pardon, to subserve the purposes of his passion, his caprice or his interest. He has passed an act of oblivion which heals all, and, in the eyes of the law, for all time to come. And although the severance of family ties by guilt and by dissension, is one of the most melancholy subjects that can be presented for the consideration of any tribunal, yet there is in this case but little which can awaken the sympathy of the court on behalf of either party.

Absent Mr. Justice Faiechild.


text:
    Imboden vs. Hunter.
    It is a rule in equity that a trustee to sell for others, or a mortgagee with power of sale, is not allowed to purchase, directly or indirectly, for his own benefit, at the sale: And it matters not, in the application of the rule, that the sale was bona fids, and for a fair price: at the instance of the cestui que trust, or person interested, within a reasonable time, a court of equity will set aside the sale, as of course: In such a case, a re-sale ordered, the property to he set up at the bid of the mortgagee.

    A trustee i's not entitled to compensation for his trouble and attention, where he accepts the trust coupled with an interest, and the deed expressly provides for the payment of the expenses of the trust, but is silent as to compensation.

      Appeal from Randolph Circuit Court in Chancery.

    Hon. William C. Bevens, Circuit Judge.
    Fairchild, for the appellant.
    Hempstead, for appellee.
   Mr. Justice Compton

delivered the opinion of the Court.

Absalom Looney was indebted to Washington R. Hunter in the sum of $1,276 80, by bond dated the 27th March, 1855, and payable, with interest, on the 1st of August next following, to secure which, he executed to .Hunter a mortgage on certain negro slaves, with power of sale; in which he stipulated that» on failure to pay the bond at maturity, Hunter should have authority to take possession of the slaves, and, after advertisement, sell them, or a sufficiency thereof to pay the amount due; and should then transfer or pay over the surplus, if any, whether of slaves or money, to Looney. Looney having failed to make payment, Hunter, in the exercise of the power conferred, sold the whole of the slaves, on the 10th of April, 1857, at public sale. Prior to the sale, Looney, for a valuable consideration, executed to William R. Cain an order by which Hunter was directed to deliver to Cain any surplus, either of slaves or money, which might be left after satisfying Hunter’s debt; which order Cain, for a valuable consideration, assigned to John H. Imboden, who, on the 24th April, 1857, exhibited the bill in this case, alleging, in addition to the facts above stated, that there was an overplus of money in Hunter’s hands, and that the negro woman, Hannah, and her children, mentioned in the mortgage, were bid off at the sale by Samuel McLane for the benefit of Hunter; and praying, in the alternative, that the residue of the money arising from the sale be decreed to him, or that the sale be set aside, and a re-sale made under the direction of the court, as to Hannah and her children, and for general relief.

On appeal by both parties from the final decree of the Chancellor, the main question argued in the court, is, whether the Chancellor erred in refusing to set aside the sale.

That McLane was a mere nominal buyer of the slaves, and Hunter himself the real purchaser, is an irresistible conclusion from the evidence in the record; and it is a stern rule of equity that a trustee to sell for others, is not allowed to purchase, either directly or indirectly, for his own benefit, at the sale. He cannot be both vendor and purchaser. As vendor, it is his duty to sell the property for the highest price, and as purchaser, it is his interest to get it for the lowest, and these relations are so essentially repugnant — so liable to excite a conflict between self-interest and integrity, that the law positively forbids that they shall be united in the same person. And it matters not, in the application of the rule, that the sale was bona fide, and for a fair price. The enquiry is not whether there was fraud in fact. In such a ease, the danger of yielding to the temptation is so imminent, and the security against discovery so great, that a court of equity, at the instance of the cestui que trust, if he applies in a reasonable time, will set aside- the sale, as of course. The rule is not intended to remedy actual wrong, but is intended to prevent the possibility of it. The situation of the party, itself, works his disability to purchase. Davone vs. Fanning, 2 John. Ch. Rep. 252; Wormley vs. Wormley, 8 Whea. 421; Michond vs. Girod, 4 How. (S. C.) 503; Lewis vs. Hilleman, 18 Eng. Law Eq. 34; Fox vs. Mackreth, 1 Lead. Cas. in Eq. top page 159 (Amer. note.)

But some of the decisions to which we have been referred maintain the proposition, contended for by the counsel for Hunter, that the case before the court falls -within a recognized exception to the general rule. Thus, in South Carolina, a sale by the mortgagee under a power contained in the mortgage, was sustained by the Court of Appeals, as not being obnoxious to the rule, that a trustee to sell cannot purchase at his own sale. In delivering the opinion of the court, Chancellor Johnston said: The opinion of the court (in which, to avoid being misconceived, I state that I do not concur,) is, that a mortgage of personalty does not fall within the principle which prevents a trustee to sell from buying at his own sale. It is my province to state the reasons which have conducted my brethren to this conclusion. A creditor holding a mortgage security is a trustee to sell, not only for the benefit of the mprtgagor, but for his own also. If he were not at liberty to bid, he would be deprived of the means of protecting his own interest as creditor. The moitgagor is at liberty to bid also, and has thus the means of entering into fair competition with the mortgagee and compelling him to give a fair and full price. But the court is of opinion that although a mortgagee does not stand in that relation to the mortgagor, which would subject him to an order setting aside, as of course, his purchase at his own sale; yet that he holds such a trust character, as to throw the burden on him of supporting his purchase, by proof of fairness.” Black vs. Hare & Black, 2 Hill Ch. Rep. 622. The same conclusion was reached by the Supreme Court of Texas, in The Howards vs. Davis, 6 Texas Rep. 174. The court said: “That a trustee cannot be the purchaser of a trust estate, without leave of the court, is an established rule in equity. A mortgagee is a trustee, but in a qualified sense. He does not hold for the benefit of others, but for himself. He is a cestui que trust, as well as trustee. He has an interest in the property. It is pledged expressly to secure his claim; and were he deprived of the power to purchase, he might suffer great loss by its sale at a low price. He has an interest that the bid shall amount to his incumbrance, and that the .property be not sacrificed, to the injury as well of the mortgagor as the defeat of his own claim; as this may be the only fund for the discharge of his debt. Sales at foreclosures, whether under a power or by decree, are open and public, and are made after long notice; and it is the interest of the mortgagor, that the mortgagee should enter into the competition at the sale.”

We do notthink that the reasons given by the learned judges, who decided these cases, are sufficient to warrant a relaxation of the general rule. How the property would be saved from sacrifice, as regards the interest of the mortgagor, by permitting the mortgagee to bid, it is not easy to perceive. If the mortgagee were allowed to bid, it would still be to his interest to purchase at th3 lowest price. Would he be likely to give more than he would be forced to give by the competition of other bidders? Or, if a mortgagee, liberal enough to do otherwise, might be found, would not self-interest dictate an inadequate price? The result, in either case, would be to allow the mortgagee, in the absence of competition, to purchase the property on his own terms. True, it may be necessary, in some instances, that the mortgagee should bid, to protect his own interest; but this, it seems to us, furnishes no good reason why the fundamental principle, which prohibits him from being both vendor and purchaser, should be modified. In all such cases, his remedy, if the mortgagor will not consent that he shall bid at the.sale, is to apply to a court of chancery; and if it is there made to appear, that his interest may be sacrificed unless he is permitted to bid, the court will divest him of the character of trustee, that he may be enabled to do so, and will substitute the master or other person to execute the trust; provided the court is satisfied that the interest of the mortgagor will not suffer by reason of such permission. De Caters vs. Le Ray & De Chaumont, 3 Paige Ch. R. 178. Whether the mortgagee is a trustee in a technical sense, or is so in a qualified sense only, can make no difference. The rule is not confined to persons who are trustees within the more limited and technical signification of the term, or to any particular class of fiduciaries, but applies to all persons placed in a situation of trust or confidence with reference to the subject of purchase. It embraces all who come within its principle, permitting no one to purchase property and hold it for his own benefit, where he has a duty to perform, in relation to such property, which is inconsistent with the character of a purchaser on his own account, and for his individual use. Van Epps vs. Epps, 9 Paige Ch. Rep. 237; Torry vs. Bank of Orleans, Ib. 649; Dobson vs. Racey, 3 Sandford 251; Voorhees vs. The Presbyterian Church, of Amsterdam, 8 Barbour's S. C. R. 136; Hawley vs. Cramer, 4 Cowen 717. The sale of the property is entrusted to the mortgagee; and because he is beneficially interested, it is not less his duty to sell for the highest price, nor less his interest to purchase for the lowest — and here we have the same struggle between integrity and self-interest, the same temptation to abuse, and the same danger of imposition “ inaccessible to the eye of the court,” which the general rule is designed to prevent.

In Hyndman vs. Hyndman, 19 Vermont, 9 — which was a bill to redeem — the contract between the parties was held to be a mortgage, with power of sale; and it appearing that the mortgagee, in the exercise of the power, had sold the premises, and become the purchaser, the mortgagor .was allowed to redeem. The court said: “ The’ only other ground upon which the defendant claims to hold the estate free from the plaintiff’s equity of redemption, is, that, in pursuance of the power of sale, he caused the estate to be sold at auction, and became himself the purchaser. Such sales have always, in the English chancery, and in this country, unless when the matter is controlled by the statute, been held voidable, at the election of the mortgagor, or cestui que trust, unless he delay for an unreasonable time to make his election — in which case he will be held to have confirmed the sale by his acquiescence.” The same principle was decided in Middlesex Bank vs. Minot, 4 Metc. 325. And in Wade vs. Harper, 3 Yerg. 383, a deed of trust was executed by the debtor to a trustee for the benefit of the creditor, to whom power was given to direct the trustee when to sell, and whether for ready money, or on credit, thus giving the creditor control of the sale: payment was not made, the property was sold, and the creditor became the purchaser: Held, that the sale, however fair and free from fraud, should be set aside, at the election of the heirs of the debtor: “We cannot distinguish the relation of (the creditor) to this transaction,” said CateoN, C. J., “ from that of a commissioner of a bankrupt, where the trustee makes the sale of the assets. In such case, the commissioner has a duty to perform, to make the estate bring the best price, and cannot buy without being subject to have the sale set aside at the election of creditors. In all cases where the property is vested in a trustee, with power to sell, or where there is a power in one to sell the title remaining in the cestui que trust, or the aid of a solicitor is called in, or there is an agent to aid in effecting the sale, such persons cannot be permitted to buy the property, denuded of the trust, and if any interested, especially the cestui que trust, calls in question the purchase, that it was fair is no defence; the trust attends it.” In New York, it is provided by statute that a mortgagee, with power of sale, may purchase; and wherever the courts of that State have recognized the validity of such purchases, the decision will be found to rest upon the statute. See Jackson vs. Golden, 4 Cowen 266; Slee vs. Manhattan Company, 1 Paige 48; Wilson vs. Troup, 2 Cowen 195. The principle decided, however, in Dobson vs. Racey, 3 Sandford 60, clearly sfiows that, in the absence of statutory provision authorizing the mortgagee to purchase, he would not be permitted to do so. There, the debtor, in July, 1817, mortgaged a tract of land to the creditor, and in October following, the debtor being about to leave the State, executed to the creditor a power of attorney authorizing him to sell the mortgaged premises, in such manner as he might deem proper; and, after discharging the mortgage debt out of the proceeds of the sale, to pay over the surplus to the wife of the debtor. The debtor departed, and died abroad; and, in November, 1817, the creditor by virtue of the power of attorney, conveyed the mortgaged premises to a third person, as nominal purchaser, who, two days afterwards, conveyed to the creditor. On a bill to redeem, The Assistant Vice Chancellor said: “ The validity of purchases made by fiduciaries, of the property entrusted to them, has been much considered recently in the courts of equity, both in this State and in England. And it is now a settled rule, both there and here, that no party can be permitted to purchase an interest, where he has a duty to perform which is inconsistent with the character of purchaser.” And he said the rule was applicable to the case before him, whether the creditor was to be regarded as a trustee or as an agent: that his interest as purchaser was in direct conflict with the interest of the debtor, his constituent, or cestui que trust; that'his purchase caused one of those collisions between interest and duty, which equity wisely and resolutely prohibits; and that it made no difference, in the application of the rule, that no fraud was committed, and that the creditor paid a fair price for the property. See, also, Mr. Hill’s work on Trustees (2 Amer. Ed.) marg. page 158, (in pote), where it is laid down that a mortgagee, with power of sale, cannot purchase, citing Waters vs. Givens, 11 Cl. & F. 648.

We scarcely need add, that a mortgagee, without power of sale, may purchase the same as he could at sheriff’s sale under execution at law: because, in such case, he has no duty to perform inconsistent with the character of a purchaser. Murdock’s Case, 2 Bland. Ch. Rep. 468; Lyon vs. Jones, 6 Humph. 533.

The court did not err in denying commissions to Hunter, as trustee. Though the English rule has been modified in this country, and commissions are allowed in some cases, still the trustee is entitled to none, where, as in this case, he accepts the trust coupled with an interest, and the deed expressly provides for the payment of the expenses of the trust, but is silent as to whether he shall have compensation for his trouble and attention.'

It is conceded in argument that Hunter wad guilty of no actual fraud or unfairness in the sale of the slaves; he was therefore entitled to his costs, and the court should have so decreed.

The decree, except so much of it as denies commissions to Hunter, must be reversed, and the cause remanded to the court below, with the following directions: That,under the directions of the court, the slaves, Hannah and her children, be re-exposed to public sale by the master in chancery, or other person appointed by the court for that purpose; that the slaves be put up at the amount of the former sale, and interest thereon from the date of such sale to the time of the re-offering, and if they shall not sell for more than that sum, the sale heretofore made, shall, in all things, stand confirmed, but if they shall sell beyond that sum, then the former sale shall be held to be vacated; that the costs, of the cause in the court below, together with the necessary expenses attending both sales be paid out of the proceeds of the sale; and that the residue of such proceeds be applied and disposed of, as in and by the deed of mortgage, and the order of Looney, assigned to the complainant, is directed.

One half the costs in this court will be decreed against Imboden, and the other against Hunter.

Mr. Justice Faieohild did not sit in this case.


author: Mr. Chief Justice English

text:
    Alexander vs. Sanders.
    Where the bond of the sheriff and collector is in a sum less than double the amount of the state and county taxes, the county court has the legal power to require him to give a new bond: and if he fail to do so, he cannot compel the clerk, by mandamus, to deliver to him the tax book.

      Appeal from Hempstead Circuit Coui’t..

    Hon. Len B. Green, Circuit Judge.
    Hempstead, for appellant.
    A. B. Williams for appellee.
   Mr. Chief Justice English

delivered the opinion of the Court.

At the general election held' on the first Monday of August, 1860, Wm. A. Alexander was elected sheriff of Hempstead county, and was duly commissioned and qualified as such.

On the 10th of January, 1861, he executed and filed in the clerk’s office a bond as collector of revenue, in the penal sum of $30,000, which on the same day was approved by the county court.

On the 13th of April, 1861, he returned his assessment list; and on the 4th of May following, the county court adjusted the list, and fixed the rate of assessment for the year, etc.

On the 5th of August, 1861, the county court made the following order:

“ Whereas, William A. Alexander, sheriff and ex-officio collector of Hempstead county, having executed his bond in the sum of thirty thousand dollars, for the year 1861; and whereas, since the execution of said bond, the tax of said county for said year having been assessed to the sum of forty thousand eight hundred and fifty-six dollars, it is ordered that the said William A. Alexander, as such sheriff and collector, be, and he is hereby required to execute a new bond, in the sum of eighty-five thousand dollars, and file the same with the clerk of this court, on or before the first day of the next term of this court.”

Alexander, having failed to execute and file a new bond as required By the order of the court, he was, on the lóth of November, 1861, after citation to show cause, etc., rem'oved from office, by the court, for such failure.

Afterwards, on the 17th of December, 1861, he applied to the Circuit Court, of Hempstead county, for a mandamus against Simon T. Sanders, clerk of the County Court, to compel Sanders to deliver to him, as collector, the tax book for the year 1861.

Sanders entered his appearance to the petition, waived the issuance of an alternative writ, and filed his response.

Alexander demurred to portions of the response, replied to other portions: and upon the hearing, a peremptory mandamus was refused, and he appealed .to this court.

Whether Sanders was in default for not delivering the tax book to Alexander before he was required to execute a new bond, by the County Court, or whether his excuses for refusing to do so are sufficient, it is not necessary in this case, to determine. We need only decide whether he was legally obliged, and compellable by mandamus, to deliver the tax book to Alexander, after he had been required by the county court to execute and file a new bond, and had failed to do so, etc.

By the law, as contained in Gould’s Digest, the sheriff was required, each year, to execute and file his bond as collector, on or before the. 10th of January, in a sum at least double the amount of taxes levied for state and county purposes, and on failure or refusal to file the bond at the time, and in the manner prescribed by law, he forfeited his office, and was subject to removal by the County Court, on citation, etc. Dig. ch, 148, sec. 52-3-6.

By an act approved 21st February, 1859, (Pamph. Acts, 1858, p. 235,) which was passed after the publication of the Digest, it is declared: “ That so much of the existing law as requires that.the collector of revenue shall file his bond, as such collector, on or before the tenth day of January, be and the same is hereby repealed, and instead'of said tenth day of January, each collector shall be required to file his bond on or before the first day of June, in each year, the same to be conditioned, and the penalties for failure to file the same to exist as now provided for bylaw," etc.

The defect in the previous statute intended to be remedied by this act, was obviously this — By the previous law, as contained in the Digest, the collector was required to file his bond, on or before the 10f/¿ of January, in a sum at least double the amount of taxes levied for state and county purposes, when the state and county taxes to be levied for the year, could not be then known: and could not be accurately ascertained until the assessment list was returned, and the rate of county taxes fixed by the County Court. But by postponing the execution of the bond until the first of June, the proper sum for the penalty could be correctly ascertained, the law requiring the assessment list to be returned, adjusted, and the rate of county tax to be fixed by the county court before that time: See Dig. ch. 148, sec. 34, 38, 45; ch. 147, sec. 4.

It is probable that when the appellant’s bond was executed and approved, 10th of January, 1861, the act of 21st of February, 1859, was overlooked; and the law as contained in the Digest followed.

After the ássesment list had been returned, adjusted, and the rate of county taxes for the year fixed by the county court, it was ascertained, as alleged in the response of the appellee, that the State and county taxes to be collected, amounted to $21,360 19; besides which additional assessments were made, under ordinances of the convention.

The attention of the County Court having been called to the fact, by the appellee, that the bond of the appellant was not in a sum at least double the amount of taxes levied for State and county purposes, as required by law, the court made the order of 5th of August, 1861, above copied, requiring him to execute a new bond, etc.

That the court had the legal power to make this order, we do not doubt, and the court having deemed it expedient to make the order, for the safety of the public revenue, and the appellant having failed to comply with the order, and being in default when he applied to the Circuit Court for the mandamus, to say nothing of his removal from office, the court did not err in refusing him the writ to compel the appellee to deliver to him the tax book.

The court having the legal power to make the order requiring the appellant to give a new bond, if there was any error in its proceedings in the matter, the remedy of the appellant was by appeal, or other appropriate application to the proper supervising tribunal. The order coming before us collaterally, and not directly, we can only pass upon the judicial power of the County Court to make it.

The judgment is affirmed.


text:
    Craig vs. Price.
    Before a bill of exchange payable one day after sight, can.be legally protested for non-payment, it must be presented for acceptance, then one day allowed for the bill to mature, after it was shown to the drawee, and three days of grace.

      The holder of a bill, purporting on its face to be for value received, and payable out of the State, and legally protested for non-payment, is entitled, under secs. 8, 9, 10 of ch. 25 Dig-, to interest -at the rale of 10 per cent, on the amount specified in the bill, but not to ten per cent, interest on the damages given by the act.
    A bill of exchange is payable at the place of residence of the drawee, unless some other place of payment be stated.

      Appeal from, Chicot Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Garland & Randolph, for appellant.
    Faust for the appellee.
   Mr. Chief Justice English

delivered the opinion of the court.

Sarah Price brought assumpsit against Josua M. Craig, the drawer, upon a bill of exchange as follows:

“ Lake Village, Arics., ) April IQih, 1861. |
“ $10,500. '
At one day’s sight pay to the order of Sarah Price, ten thousand five hundred dollars, being for her interest in the estate of Junius W. Craig, deceased, and charge to account of your ob’t. serv’t. J. M. CRAIG.”
To Messrs, A. D. Kelly & Co.,
New Orleans, La.”

It is alleged in the declaration, that the bill was presented to the drawees for payment, on the 8th of May, 1861, and payment refused, but it is not alleged that the bill was, at any time, presented for acceptance; or shown to the drawees, before the day on which it was presented for payment.

On the trial, under the general issue, the plaintiff proved that the bill was presented for payment on the 8th of May, 1861, protested for non-payment, and the defendant duly notified; but no evidence was introduced to prove that on any previous day the bill had been presented for acceptance. The court sitting as a jury found for plaintiff, a motion for new trial was overruled, and final judgment against defendant for the amount of the bill, interest, damages, etc., from which he appealed.

The bill was payable one day after sight. The presentment for payment on the 8th of May, and the protest for non-payment on that day were ineffectual for any legal purpose, unless the bill had been previously presented for acceptance, allowing one day for the bill to mature after it was shown to the drawees, and then three days of grace.

Upon all bills payable at sight, or at so many days after sight, or after any other event not absolutely fixed, or after demand, a presentment to the drawee for acceptance is absolutely necessary in order to fix the period when the bill is to be paid. This is sufficiently obvious in the cases of bills payable at so many days after sight, or after demand, or after a certain event. The like rule prevails in the French law. But it is equally true in our law, although not in the French law, as to bills payable at sight, which are not, in fact, payable on presentment,* but which have the ordinary days of grace allowed them for payment, after presentment. But bills payable on demand (which are immediately payable on presentment) or payable at a certain number of days after date, or after any other certain event, need not be presented for acceptance at all, but only for payment. And here again the French law coincides with ours. However, in practice, whenever the bill is payable at a certain number of days after date, it is usual, and certainly is prudent to present it for acceptance. If presented the holder must conduct himself in the same way, and make protest and give notice in the same manner as he would upon a bill payable at so many days after sight. Story on Bills, (3 ed.) sec. 228.

The court rendered judgment for the amount of the bill, with ten per cent, interest and four per cent, damages, and upon the aggregate amount thus produced, gave interest at ten per cent, from the date of the judgment.

The bill was drawn in this State, upon Kelly & Co., of New Orleans, in the State of Louisiana, and payable there, no other place being named in the bill (Story on Bills, sec. 48,) and clearly purports, on its face, to have been drawn for value received; and had the plaintiff properly alleged and proven that it had been duly presented for non-payment, she would have been entitled to receive four per cent, damages: and also, “ interest at the rate of ten per cent, per annum, on the amount specified in the bill, from the date of protest until the amount of such bill should be paid. Dig. ch. 25, secs. 8,8, 10. But the four per cent, damages should not be made to bear interest at ten per cent, from the date of the judgment.

The plaintiff having failed to show by her declaration, or evidence, that the bill was due and payable on the 8th of May, when it was presented for payment, and consequently failed to show a legal protest for non-payment, the verdict and judgment in her favor were erroneous.

The judgment must be reversed, and the cause remanded with instructions to the court below to grant the appellant a new trial, and permit the appellee to amend her declaration if she shall desire to do so, etc.


text:
    Hogan et ae. vs. The State.
    Scire facias on recognizance defective as in Darby vs. State; 21 ArJc. 523 (State vs. Sartain, ante.)

      Error to Prairie Circuit Court.

    Jordan for plaintiff.
    Faust for the State.
   Mr. Justice Compton

delivered the opinion of the court.

In this case, the scire facias does not show that the recognizance was entered into before the court in which the prosecution was had, or before any of the officers authorized by law to take it. The judgment by default cannot, therefore, be sustained, according to the principle decided in Darby vs. The State, 21 Ark. 523.

The judgment must be reversed, and the cause remanded for further proceedings.


text:
    Veatch vs. Greenwood.
    In ease of misjoinder of counts, the entire declaration is bad, and it is error to sustain a demurrer to some of the counts and overrule it as to others — in such cat)'.' the court should, in general, on motion, grant leave to amend by striking out.

      Appeal from Chicot Circuit Court.

    Hon. John C. Murray, Circuit Judge!

      Hutchinson, for appellant.
    Garland & Randolph, for appellee.
   Mr. Justice Compton

delivered the opinion of the Court.

Assumpsit by Greenwood against Yeatch and Wardlow. Veatch demurred to the declaration for misjoinder of counts, upon the ground that some of the counts were against Yeatch and Wardlow, and others against Yeatch alone. Pending' the demurrer, the plaintiff discontinued as to Wardlow, and the court sustained the demurrer as to the third and fourth, and overruled it as to the first and second counts. Yeatch rested, final judgment was rendered against him, and he appealed.'.

The demurrer was to the whole declaration; and in refusing to sustain it to that extent, the court erred. In case of misjoinder of counts, the entire declaration is bad, and the rule is, that the plaintiff cannot, if the declaration be demurred to, aid the mistake by entering a nolle prosequi, so as to prevent the’ operation of the demurrer for misjoinder; though the court may, and, in general, should grant him leave to amend by striking out some of the counts on payment of costs. Chit, on Plead., marg. p. 206; Drummond vs. Dorant, 4 T. Rep. 360; Jennings vs. Newman, Ib. 347. Here, there was no motion for leave to strike out.

Let the judgment be reversed, and the cause remanded, to be proceeded in according to law,


text:
    Thomas vs. Lanier.
    The stipulation, on a sale of land, to make title, and the undertaking to pay the purchase money, stand on the same legal footing; and where the one is a condition precedent to the other, and the time but not the place of performance is fixed, the vendor must seek the vendee, if within the State; but if he be absent, the vendor may proceed by attachment for the purchase money without first offering to make title.

      Appeal from Jackson Circuit Court.

    Hon. Wm. R. Cain Circuit Judge.
    Stillwell & Woodruff, for appellant.
   Mr. Justice Compton

delivered the opinion of the court.

At the suit of the plaintiff on. a writing obligatory for $200 00, dated 26th November, 1856, and payable on the 25th December, 1857, the slave of the defendant was attached. The defendant appeared, and pleaded, in substance, as follows:

That he executed the writing obligatory for the residue of the purchase money, agreed to be paid for a tract of land; that the plaintiff, at the same time, executed to him a bond for title, in which it was stipulated that, upon payment of the writing obligatory, the plaintiff should make, or cause to be made, to the defendant, a deed to the land; and that the plaintiff neither made, nor offered to make a deed to the defendant, before the commencement of the suit, as, by his bond for title, he was bound to do.

To this plea, the plaintiff filed four special replications (the same in substance), alleging that, at the time the writing obligatory and bond for title were executed, the plaintiff and defendant both resided in the State of Arkansas, and that the defendant, after the execution and before the maturity of the writing obligatory, left said State, and remained continuously absent therefrom, from thence until after the commencement of the suit, so that the plaintiff could not tender him a deed to the land. The court sustained a demurrer to the replications, and the plaintiff rested.

It is well settled, that where, upon an agreement for the sale and purchase of land, the stipulations by which the vendor undertakes to make title, and the vendee to pay the purchase money, are dependent, the vendor cannot maintain an action for the purchase money until he has performed, or offered to perform his part of the contract (Lewis vs. Davis, 21 Ark. 235; Smith vs. Henny, 2 Eng. 207): and the only question in this case is, whether the replication of the plaintiff sets up a sufficient excuse for non-performance.

It was laid down as a rule of the common law, at an early day, in England, that where the condition precedent is the payment of money at a day certain, and no place of payment is specified,.the obligor must seek the obligee, if he be within the realm. Littleton, book 3, chap. 5, sec. 340. And Lord Coke, commenting on this section, lays it down, that, if the obligee be absent from the realm, such absence is a good excuse for non-performance of the condition; and the reason assigned is, that the obligee himself is the cause of the obligor’s inability to tender the money. Co. Lit. 210, b. The same learned commentator says, that if the condition be to make a feoffment, it is sufficient to make it upon the land, “ because the estate must pass by livery.” lb. It may be remarked, however, that the conveyance by feoffment, with livery of seizin, has long since become obsolete in England, and is unknown in our system of conveyancing. Here, livery of seizin is not, and never was necessary to pass the estate; and hence a personal tender of the conveyance, or an excuse for not doing so, must be made. The stipulation to make title, on the one part, and the undertaking to pay the purchase money, on the other, stand upon the same legal footing; and where, as in this case, the one is a condition precedent to the other, and the time, but not the place of performance, is fixed, the vendor must seek the vendee, if within the State; but if he be absent from the State, then the vendor may proceed against him, by attachment, for the purchase money, without first offering to make title. See Comyn’s Dig., title Condition G. 9.

The court, therefore, erred in sustaining the demurrer to the 2d, 3d, 4th and 5th replications of the plaintiff; for which, the judgment must be reversed, and the cause remanded for further proceedings.


text:
    Christian et al. Ex Parte.
    A court of chancery has no power over the judgments of the County Court except for fraud : where errors have been committed, the remedy is by appeal to the Circuit Court.
    Where the County Court, instead of requiring a collector to make settlement in March, as as the law directs, when he was solvent, delayed it until October, when he waB insolvent, the sureties are not thereby discharged.

      Motion for Mandamus to Mon. John C. Murray, to grant an injunction.

    Hutchinson, for the motion.
   Mr. Justice Compton

delivered the opinion of the court.

The sureties in the official bond of James Norris, a collector of public revenue, exhibited their bill in chancery, and upon the allegations and prayer thereof, moved the court for a writ of injunction, .restraining the county of Ashley, until the final hearing of the cause, from further proceeding to execute a judgment, recovered by her, in the County Court, against Norris and themselves, for public revenue which Norris had collected and failed to pay into the county treasury. Their motion was overruled, and they now petition this court for a mandamus to the chancellor, compelling him to grant the injunction.

That the alledged errors in the settlement of Norris’ account furnish no basis for relief in equity, is well settled. A court of chancery has no power over the judgment of the County Court, except for fraud; and here no fraud is alleged. Ringgold vs. Stone et al., 20 Ark. 526. If mere error intervened, the mode of correcting it was by appeal to the Circuit Court. Carnall vs. Crawford County, 6 Eng. 604. But the ground mainly relied on, is, that the County Court, instead of requiring Norris to make settlement, in March, as the law directs, (Dig. chap 148, sec. 89,) when he was solvent, delayed the performance of this duty until October following, when he had become insolvent ; which, it is insisted, discharges the sureties from liability on the official bond. To this,, we cannot yield our assent. The correct doctrine is well laid down in United States vs. Kirkpatrick, 9 Whea. 720. There, in an action of debt on a bond executed by a collector of direct taxes and internal duties, the District Court directed the jury that they were at liberty to impute laches to the government, from the delay of the proper officers to call the collector to account, at the periods prescribed by act of Congress, and the consequent injury to the sureties; and on error, it was held by the Supreme Court of the United States, that this direction was’ erroneous. “ The general prin. ciple is,” said Mr. Justice Story, that laches is not imputable to the government: and this maxim is founded, not in the notion of extraordinary prerogative, but upon a great public policy. The government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions. It would, in effect, work a repeal of all its securities.” And in another part of the opinion, he says: “It is admitted that mere laches, unaccompanied with fraud, forms no discharge of a contract of this nature, between private individuals. Such is the clear result, of the authorities. Why, then, should a more rigid principle be applied to the government? a principle which is at war with the general indulgence allowed to its rights, which are ordinarily protected from the bars arising from length of time and negligence ? It is said that the laws require, that settlements should be made at short and stated periods; and that the sureties have a right to look to this as their security. But these provisions of the law are created by the government for its own security aud protection, and to regulate the conduct of its own officers. They are merely directory to such officers, and con-, stitute no part of the contract with the surety. The surety may place confidence in the agents of the government, and rely on their fidelity in office; but he has. of this the same means of judgment as the government itself; and the latter does not undertake to guaranty such fidelity. No case has been cited at the bar, in support of the docti’ine, except that of The People vs. Jansen, 7 John. Rep. 332. In respect to that case, it may fie observed, that it is distinguishable from the present in some of its leading circumstances. But if it were not, we are not prepared to yield to its authority.” In Parks vs. The State, 7 Mo 194 — which was a suit against the sureties of a tax collector— the same question arose, and the court held that laches could not be imputed to the State, citing U. S. Bank vs. Kirkpatrick, supra.

The application of the petitioners is overruled.


author: Mr. Justice Fairchild

text:
    Pope et al. vs. Macon et al.
    Where a party holds lands under a tax sale, the matter of the sixth and seventh sections of chapter 106, Gould's Digest, that is, the filing of an affidavit of the tender of the taxes and interest, etc., and of the value of the improvements made, is as good a defence to an action of ejectment as to a bill in chancery, (Úraig vs, Managint 21 Ark. 319,) and may be presented, either by motion or by plea in abatement.

      Writ of Error to Jefferson Circuit Cowrt.

    lion. John C. Murray, Circuit Judge.
    Bell & Carlton, for the plaintiffs.
    Garland & Randolph, for the defendants.
   Mr. Justice Fairchild

delivered the opinion of the court.

The plaintiffs in -error brought an action of ejectment for a lot of ground in Pine Bluff, and were met by a plea in abatement, that the land, including the lot, had been purchased at a sheriff’s sale for the non-payment of taxes, by persons under whom the defendants, through sundry conveyances, claimed : that .the lot had been held under the purchase, and taxes paid Thereon, since its occurrence, in 1855 ; that improvements had been put upon it, and that the plaintiffs, before bringing their suit for the recovery of the lot, had. not filed in the office of the clerk of the Circuit Court of Jefferson county, an affidavit setting forth that they had tendered to the purchasers of the land, their agents or legal representatives, the full amount of all taxes and costs paid on account thereof, with interest thereon at the rate of one hundred per centum upon the amount first paid therefor, and twenty-five per centum per annum upon all costs and taxes paid on the land from the time said costs and. taxes were paid, and the full value of all improvements, of whatever kind and description made on said lot, and that the same had been refused.

The plaintiffs demurred to the plea, their demurrer was overruled, and upon their refusing to answer over, final judgment was rendered against them, to which they sued out a writ of error.

The plea is in strict accordance with the sixth and seventh sections of oh. 106, Gould’s Digest, and presents, as matter in abatement to an action of ejectment, the same defence that was interposed in Craig vs. Flanagin, 21 Ark. 319, to a bill in chancery, by way of motion to dismiss, made under the eighth section of the Act.

The defence might have been made in this suit by motion, but if good on motion, it is good in a plea of abatement. Hence, the only enquiry is, if the matter of the plea present a proper defense to the suit; and that inquiry has been affirmatively answered by this court in the case mentioned. The defenses in that case, as in this, were that the law was unconstitutional, and that the sales at which' the purchases were made were void for noncompliance with the revenue law. For answer to the arguments made in this case, we refer to the opinion in Craig vs, Flanagin, and affirm the judgment of the Circuit Court.


text:
    Collins et al. vs. Gauche.
    Where the court announces that, on the call of the docket, no case would be tried, but all would be continued but such as were undefended, in which judgments by default would be rendered, it is still a regular calling of the docket, within the 63d section of ch. 126, Eng. Dig. — a defendant having made no defense nor employed an attorney has no cause to complain of a judgment by default being taken against him — nor has he a right to an extension of time for trial or for pleading, because of the continuance of causes.standing before his on the docket.

      Error to Pulaski Circuit Cou/rt.

    Hon. John J. Clendenin, Circuit Judge.
    Garland & Randolph, for plaintiffs.
    Bertrand for defendant.
   Mr. Justice Fairchild

delivered the opinion of the Court.

Gauche brought an action in the Pulaski Circuit Court against Collins and Fenno, as members of the firm of John Collins & Co., in which judgment by default was rendered, and to reverse this judgment, the defendants sued out a writ of error. The grounds upon which the judgment is attacked and supported by the respective parties, are well set forth in the bill of exceptions :

“ Be it remembered, that on the 20th day of May, 1861 * * “ the third Monday of the said term, the court called the docket, “ as it had previously announced it would do, for the purpose '“of permitting judgments by default to be taken in cases “ where no defence had been interposed; and the said defend- “ ants having filed no pleas, and no counsel having been “ employed, or representing them, the court permitted and “ entered a judgment by default against them; * * and the “ day after the said judgment by default had be taken, * * * “they, the said defendants, appeared in open court by attorney, “ and asked and moved the court to set aside the said judgment “ by default, and allow them to file their two pleas.” The bill of exceptions then copies the pleas tendered, states that the court overruled the motion, and then proceeds: “And be it further “remembered, that at the time said judgment by default was so “ taken * * and at the time the court overruled the motion “ to set aside the same, and refused to permit * * the said “ defendants to file their said pleas, the docket had not been per- “ emptorily called for the trial or other disposition of many civil “ cases which stood on the docket ready for trial before the said “ case, and which had been passed by, because they were contest- “ ed or litigated.”

The plaintiffs in error insist that their pleas were offered before the calling of the cause in its regular order on the docket; that they should have been received and treated as defences to the action, made in proper time, the judgment by default being first set aside as prematurely rendered.

“Every plea to the merits shall be filed, when the writ has been “ served thirty days previous to the return day thereof, at or be- “ fore the calling of the cause in its regular order on the docket, “ unless further time be given by the court for pleading, which shall in no case extend beyond the term.”

“ If the defendant shall fail to file his plea, or other pleading “ within the time prescribed by this act, or the rules of practice “ of the court, an interlocutory judgment shall be given against “ him by default.”

^/“Whenever an interlocutory judgment by default shall be “ rendered for the plaintiff by default, or upon demurrer, in any “ suit founded on any instrument of writing, and the demand is “ ascertained by such instrument, the court shall assess the “ damages, and final judgment shall be given thereon.” Eng. Dig. ch. 126, secs. 53, 78, 81.

In Hixon vs. Weaver, 4 Eng. 137, this court held that the Circuit Court could not, by a rule of practice, require a defendant to file his pleas by the fourth day of the term, if the case was not then called for trialj that the statute gave the privilege of withholding a plea till the cause was on its regular call, and that no rule of practice could restrict the time so given for pleading, although the time might be extended by the court. From the statute thus construed, it follows that a defendant, served with process thirty days before court, has secured to him a longer time to plead, than if the writ had been served less than thirty and more than fifteen days before the return day of the writ. For in such a case, by the 54th section of the chapter quoted from, a defendant must file his plea to the merits by the third day of the term, or sooner, if the court should not last three days. And if a Circuit Court can enlarge the time for pleading, the same principle of construction adopted in Hixon vs. Weaver, that of implied obedience to the letter of a statute regulating the practice of Circuit Courts, would require that the statute should be observed when it provides that in no case shall a further time given for pleading extend beyond the term. But in Browning vs. Roane, 4 Eng. 354, it was decided that a continuance at one term by the plaintiff to await the progress of a suit in chancery between the same parties to restrain the defendant from having the benefit of a proposed plea, was such an implied enlargement of the time of pleading as would excuse the defendant' from pleading till the chancery suit should be decided or abandoned, and that a default taken at a subsequent term, before the trial of the'suit in chancery. was irregulai’. This is an assumption that the time for pleading may be extended beyond the trial term, and it cannot be inferred that the court, in the case before it, gave greater effect to an enlargement of time to plead, that was only construed to be such from an act of the plaintiff, than it would have given to an express order of the court for further time to plead. In Carrol vs. Harris, 19 Ark, 239, this court expressly said, that the Circuit Court might have allowed the defendant until the next term to file an amended plea, upon an application and showing. From our knowledge of the practice of courts in this State, we know that nothing is more common than for Circuit Courts, upon, application of defendants, and. against the objection oí plaintiffs, to extend the time for pleading to a subsequent term of the court, when justice to defendants seems to require it to be done. This is in accordance with remarks made in an early opinion of this court, signifying that it was a necessary and inherent power pertaining to the courts in the administration of justice, that they should be allowed to exercise their usual discretion for the attainment of justice, though the statutory provisions under which they might be acting, might not confer, or seem to imply any such authority. Wilson vs. Phillips, 5 Ark., 184. This, with several other decisions of this court, recognizing and applying the same principle, was cited and approved in Gould vs. Tatum, 21 Ark., 329, and on page 331, are some general observations, to which we refer as bearing upon this case.

The practice that.has grown up under our statute and its construction in Hixon vs. Weaver, is very embarrassing to Circuit Courts, in taking away from them the power to discharge business with proper deliberation, and with desirable promptness. For, an obstinate or crafty attorney, by withholding his defence till the case is called for trial, may then file numerous and complicated and conflicting pleas, and thus ensnare the opposite party, or the court into some step, or ruling, that a different and reasonable rule of practice would give time to avoid': or secure a continuance, thus prostrating or delaying the course of justice.

In two other cases it has been decided that judgments taken by default upon the fourth day of the term, for want of a plea* but before the regular calling oí the docket, were irregular, and they were reversed by this court, because a rule of practice could not abridge the legal right of refusing to plead till the case is called. Cornish vs. Sargent, 18 Ark., 266; Aaron vs. An derson, ib., 268. Every lawyer must know that where difficult pleas are filed on the call of a case, it is not a call for trial; for it may take much thought and study to determine with intelli.gence what response to make, or if a mode of reply may be soon adopted, its preparation may take more time than courts can give.

We have thus commented on the statute and cases cited, not to overrule the construction given to the statute, or to construe the statute itself away; but in showing the result of the law as written and expounded, and its consistency with other statutory requirements, that have been held to be directory only, sufficient reasons are adduced not to extend restrictions upon Circuit Courts in the disposition, of causes upon their docket, further than we are required to do.

In the case under consideration, the court called the docket late in the term: sufficient time had elapsed for every defendant to have prepared his defence, at least to have employed a lawyer so as to inform the court that a case was a contested case, and though it had been announced that, on the call that would be made, no causes would be tried, and all would be continued but such as were undefended, in which judgments by default would be rendered, this was still a regular calling of the docket within the 53d section of the statute above quoted.

If, for any reason, the court thinks best to continue a case, or a class of cases, that does not give a defendant in another case the right to have his trial, or his time of pleading deferred, because the call of his case may be made sooner than it would otherwise have been made.

The Circuit Court of Pulaski county had the right to continue some, many or all of the cases upon the docket, but this one against John Collins & Co., as against any objection they could make. Otherwise the call of a case would not be when the court should have the parties called, but when all other cases preceding it on the docket had not only been called, but had been tried, and had taken as much time in the trial as the defendant in the given case had supposed, or had hoped. .

The judgment of the Circuit Court in this case, and in Collins vs. Frost, depending upon the same facts, must be affirmed.


text:
    Cheatham vs. Roberts.
    Where incompetent evidence is not objected to, either when offered, or by motion to exclude it, but is presented for the first time as one of the'causes on a motion for new trial, the party merely appeals to the discretion of the court for a favor to be extended to him, and its refusal is not an error of law.

      Appeal from Desha Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Faust, for the appellant.
    Fabrebby & Finley, for appellee.
   Mr. Justice Fairchild

delivered the opinion of the Court.

Roberts brought an action of assumpsit against Cheatham, on ' an account for about one hundred and eighty-six dollars, of which nearly all was charged for money advanced to steamboats for freight and charges upon goods left for Cheatham upon the wharf-boat of Roberts; but an item of fifteen dollars was charged for storing the merchandize on which advances had been made, and for storing other merchandize. It did not appear in proof, on the trial, that any other merchandise than that on which advances had been made, had been stored by Roberts, whence it is argued that there is a want of evidence to sustain the charge for storage; but the proof was, that it was worth fifteen dollars to store the goods mentioned in the account.

The only witness, who testified in the case, had ,personal knowledge of the correctness of the charges, except of the items charged from the 9th of June to the 4th of September, 1856, and these he supposed to be correct, as he had seen the steamboat receipts to Roberts for the amounts charged. This evidence was received by the court sitting as a jury without objection from the defendant. If the testimony had been resisted as incompetent, either when offered, or upon motion to exclude it after it was given, the court would doubtless have sustained the objection to its admissibility, or would have disregarded it at the request of the defendant, as on a motion to exclude, had the trial been by a jury; or, on the motion of the defendant, the court might have declared it as law that the evidence was not to be considered. But when the evidence was before the court sitting as a jury, we cannot say that the court ought not to have taken it into consideration in its finding, any more than we could say a jury should not consider it in making their verdict. In eithar case, it belongs to the ti’ibunal of fact to judge as it may from the facts proved. When the defendant raised the question upon the legal character of this evidence, for the first time, in his motion for a new trial, he did not present any point of law for adjudication, but only appealed to the discretion of the court for a favor to be extended to him; and its refusal was not an error of law.

The judgment is affirmed.