text:
    Kittlewell et al. against Scull.
    Error to Jefferson Circuit Court.

    In a suit by an assignee, on an assigned note or bond, against the maker or obligor, it is not necessary to be stated that he sues “as assignee.” The rule as to executors and others suing in a representative or official character, does not apply.
    If the declaration shows the execution of the note or obligation, and its assignment, with sufficient certainty, it is all that is required.
    Whore the record shows that oyer was craved, but does not show that it was granted, no question as to variance between the declaration and note can arise in this Court. A statement of the Clerk, in the transcript, that the original note was filed, but is not among the papers, is a mere private memorandum, and no part of the record.. <
    Where the Court below overrules a motion to dismiss for want of a bond for costs, unless the record shows that the plaintiff was a non-resident, the decision of the Court below cannot be impugned.
    The objection that there is no bond for costs, is matter in abatement, whether presented by plea or motion, and cannot be interposed after a plea in bar.
    This was an action of debt. The declaration commenced, “John Kittlewell and William Boggs, partners, &c., complain of Hewes Scull.” It then averred the making of a certain note, by Scull, to Richard C. Byrd, and its assignment by Byrd to them, with a breach that neither the debt nor interest had been paid to Byrd before the assignment, nor to the plaintiffs afterwards. In the Court below, at the return term, Borriss, for defendant, moved to dismiss, for want of a bond for costs. The record simply states, that he made the motion, and that it was overruled. He then craved oyer, which is stated by the record to have been granted; but the instrument was not made a part of the record, nor even,left among the papers. He then demurrred, on the grounds, 1st, That the plaintiffs did not set out with sufficient certainty the character in which they sued; 2d, Variance — the declaration alleging the assignment to have been by Richard C. Byrd, while the signature on the note was “R. C. Byrd;” and 3d, That the breach did not correspond with the commencement of the declaration. The demurrer was sustained, and judgment went against the plaintiffs upon it.

      TRApnall and Cocke, for the plaintiff:
    The only question presented by the assignment of errors in this case, is, whether the demurrer to the declaration was properly sustained.
    We understand the objection urged to the declaration In the Circuit Court, upon the first cause assigned for demurrer, was, that the plaintiffs had failed to aver that they sued as assignees. And this objection was made upon a supposed analogy between the case of an assignee and that of an executor or administrator.
    We admit, when an executor or administrator sues for a cause of action that could only have accrued to him in right of his testator or intestate, he must show forth his representative character, by averring that he sues as executor or as administrator. But it is not so with an assignee. He does not sue in a fiduciary or representative character; he sues in his own right; and when he sets forth, in the body of the declaration, an assignment showing the legal interest to be in himself, he has sufficiently established his right to sue.
    Nor is it a variance, as is supposed, that the declaration has stated the assignment to have been made by'Richard C. Byrd, when the note was in fact endorsed by R. C. Byrd. The only effect of this mode of averring would be, to put the plaintiff to prove, on the trial, that the endorsement was actually made by Richard C. Byrd, and that he was in the habit of signing his name R. C. Byrd. The note would then have been proper testimony in support of the averment. In Wood vs. Buckley, 13 J. it., 486, a note signed “ Christ. Bucldey” was held to prove an averment of a note made by Christopher Buckley, it being proved that the defendant usually abbreviated his name in that manner.
    The last cause assigned for demurrer is even more frivolous than the two we have already disposed of. That the breach must correspond with the commencement of the declaration, is certainly a novel idea to us; and we venture to assert, no one authority can be produced in support of it. The rule upon this subject is, that the breach must be co-extensive with the contract. In the declaration in this case, it was so, and is therefore sufficient.

      Pike, Contra:

   Dickinson, J.,

delivered the opinion of the court:

It cannot be contended that the rales governing actions brought by executors, administrators, or guardians, are applicable to the case before us. They sue in their representative character and capacity, and not in their own right, or for their own individual benefit. At common law, an assignee could not maintain an action in his own name; and it was to remedy this inconvenience, that our statute was enacted, authorizing the assignment of bills, bonds, and notes, and the bringing of the suit in the name of the assignee on the original obligation. And the assignee stands precisely in the same relation to the obligor after assignment,- as the assignor did before the transfer was made. The legal as well as equitable interest passes by assignment and delivery, and the assignee acquires the right of action thereby, and is fully authorized to commence and prosecute the suit in his own name.

If the note or obligation, and the assignment or endorsement are set out with sufficient certainty, it is all that the statute requires. It is clear to us that the declaration does state all the facts necessary to show that the plaintiffs sue as assignees of Byrd, and that the assignment was regularly made and executed. The averment, “as assignees,” either preceding the statement of the cause of action, or in the conclusion of the declaration is unnecessary.

There can be no good objection to the breach, for it is sufficiently formal, and contains all that is essential to a recovery. Nor can the mode or manner in which the assignment was made, be the subject of inquiry; for although oyer was craved, it does not appear to have been granted, and we are bound to presume that the assignment was correctly set out in the declaration. The statement of the Clerk, that the original note was filed, and not now among the papers, and that consequently no copy can be given in the transcript, is but a private memorandum of that officer, and, forming no part of the record, cannot be considered by this Court. The declaration, and the allegations and averments therein, exhibit a legal cause of action, sufficient to entitle the plaintiffs to a recovery. A motion was made, in the Court below, to dismiss the suit, for want of a sufficient bond for costs. The fact that the plaintiffs were non-residents when the suit was commenced, is not presented by the record, and therefore, in accordance with the principle laid down in the case of Clark vs. Gibson, 2 Ark. Rep., 113, we are bound to presume that the decision of the Circuit Court was correct. And it has repeatedly been ruled in this Court, that as the defence, being to the personal disability of the plaintiffs to sue, is the same whether interposed by motion or by a formal plea in abatement, it must be presented in proper order and in due time, according to the established rules of pleading, and will not be entertained after a plea in bar has.been filed. The whole facts' of the case, as presented by the record, are, in our opinion, sufficient to entitle the plaintiffs to a recovery, and are pleaded in-the declaration with sufficient certainty; and the Court below erred in sustaining the demurrer to tf\e plaintiff’s declaration.

The judgment of the Circuit Court must therefore be. reversed, with costs.


source: Caselaw Access Project

author: Lacy, J.,

license: Public Domain

text:
    McLain et al. against Onstott.
    Error to Pulaski Circuit Court.

    An obligation executed to A. B., receiver of the estate of C. D., is made to A. B. in his individual character — the words “receiver &c.” are mere words of description, and A. B. has full power to assign such an obligation.
    And in a declaration by the assignee of such an obligation, it is unnecessary to state that it was made to him as receiver ; or, that he assigned it as receiver.

    If a defendant wishes to raise any question as to the assignment of a bond or note, he must crave oyer of the assignment, a prayer of oyer of the bond or note is not a prayer of oyer of the assignment.
    And if, where oyer is craved merely of the instrument, the instrument or copy given on oyer has an assignment upon it, such assignment is no part of the record.
    John W. Onstott instituted an action of debt, as assignee of David Fulton, on an obligation executed by the plaintiffs in error, to “David Fulton, Receiver for the estate of Kirkwood Dickey deceased, or order.” The declaration alleged, that Fulton, on the first day of January, A. D. 1837, by the description of “David Fulton, Receiver,” assigned the obligation to Onstott. At the return term of the writ, the defendants in the Court below, appeared and craved oyer of the obligation, which was granted by filing the original; whereupon, they saying nothing further in bar or preclusion of the demand, judgment was rendered against them. Upon the obligation filed on oyer, as far as appeared by the transcript, there was no transfer or assignment to Onstott; but simply the name “DavidFulton” endorsed thereon.
    Fowler, for the Plaintifis.
    It is contended by the plaintiffs in error, that Fulton, as receiver for the estate of Dickey, deceased, was but a trustee; and that'in such delegated or representative character, appointed to a particular trust, he could not legally assign said writing obligatory, and thereby transfer such trust to another, making a sub-trustee of Onstott: that he, Fulton, was bound to execute the trust, in his own proper person, for the benefit of said estate. The record does not show that Onstott was a representative of said estate, or in anywise interested therein, either in law or equity. Such transfer to Onstott is therefore, in violation of the trust reposed in Fulton, and void in law.
    Further, the writing filed as oyer, does not purport to have been assigned to Onstott: he therefore shows no legal interest in thé writing obligatory. If assigned at all, it is only in blank; and, if not filled up before judgment, it is error, and properly reversible in this Court. A Bond filed as oyer becomes a part of the previous pleading, and plaintiff is bound by it, as long as it remains a part of the record. See 2 ¿Irk.' Rep. S3, the Auditor vs. Woodruff.

    It is also suggested, that the judgment aforesaid was rendered co-ram non judice. The Circuit Court of Pulaski county is by law required to be holden on'the first Mondays of March and September of each year; whereas this judgment seems to have been rendered on the — day of November, A. D. 1840, without any showing whatever, that it was rendered in any term known to the law, or any adjourned term. Is not such judgment therefore void ?
    Ashley and Watkins, Contra :

    As to the first ground assigned for error in this case, that the obligation sued on was given to David Fulton, receiver of the estate of Kirkwood Dickey, deceased, and that he could not by law assign it, we apprehend the Court will not entertain any serious doubt. The obligation, in the first place, is not executed to him as receiver, &c., and therefore, the addition of the words “Receiver of the estate of Kirkwood Dickey, dec.,” are mere words of surplussage and description; and Fulton, in-suing upon the obligation, would not only have been at liberty to have treated them as such, but he could not have sued properly in any other way. But supposing this obligation to have been executed to David Fulton, as receiver, and that to be an official character or capacity recognised by law, as for instance an executor or administrator, he would still have had the right to assign it, being always responsible for assets, to the power appointing him; and he would have the right, in his individual capacity, to assign such an obligation, since it is doubtful, whether all notes or bonds, executed to an administrator (or trustee) as such do not enure and belong to him individually. And especially is it doubtful whether an administrator, as such, could execute an obligation binding upon the estate, and not upon himself — or, what is the same thing, make a contract of assignment: so, of a trustee or receiver. See case of Robert A. Wat/cins adm. vs. McDonald etal., decided by this Court at the January term 1841 — and the cases there cited by the plaintiff in error.
    The second question sought to be raised by the assignment of errors, is whether the assignment to Onstott being in blank and not filled up, and the instrument being.so granted on oyer, any legal interest or title to the obligation sued on, is shown to be in him. But we submit whether this question is raised on the record. If the plaintiffs in. error, after having craved oyer of the obligation sued on, which was granted by filing the original, had demurred for such omission to fill up the blank assignment, and the plaintiff below had not chosen to avail himself of the privilege, usually extended by Courts in such cases, of filling up the blank endorsement at any time before judgment, this question might have been raised by the record. But after the grant of oyer, the defendant below neither demurred nor pleaded, but suffered judgment by nil dicit. And the defendant in error insists now,-that the paper purporting lo be the writing obligatory sued on, and the endorsement upon the same, copied into the transcript sent here, by law constitutes no part of the record, so that this Court can take no notice of the objection, attempted to be raised by the plaintiffs in error. By the strict rules of pleading, a party pleading, after craving oyer of an instrument, should set it out in haec verba, else it forms no part of his plea, and the utmost latitude that could be given to this rule would be, that the party pleading should incorporate the instrument, granted on oyer, in his pleading, by proper reference or intendment; and this might properly be done, where the instrument is a long one. The defendant in error claims at the least, that a grant of oyer is inoperative, unless the party craving, avails himself of it, by demurrer or plea to some substantial purpose. The defendants below in this case did neither. We refer the Court on this subject to 1st Tidd Prac. Ed. 1807, p. 526, et seq. and also to the following authorities furnished by the counsel for the plaintiff in error in the case of Byrd vs. Cummins at this Term, Stephen Plead. 70, 71; 2
      Saun. PI. jEv. 740; 1 Chiity Plead. 417-18; Ld. Raym. 1135; 2 Wilson 413; 2 Saun. 361; ib. 366; n. 1; 2 Bos. & Pul. 13; 1 Chilly Plead. 419; 5 Co. 470; 1 T. R. 139; 1 Mod. 69; 1 Chitly Plead. 420; 4 T. R. 370; 1 Saun. 96, n. 1 ; 1 Harrington 433. The case of the Auditor vs. Woodruff, et.al., 2 Ark. Rep. 73, does not sustain the position claimed by the plaintiffs in error. In that case, the defendants, after oyer craved and granted on the instrument sued on, demurred generally and specially for a variance, which demurrer was sustained and the Court in that case say, that a demurrer is regarded as a plea to the action; and, after considering the points raised on the demurrer in that case, the Court say, “ The record shows that oyer was granted by filing a copy of the original bond; and the oyer thus granted is to be regarded as part of the previous pleading — and the plaintiff"is bound by it as.long as it remains of record in the case, even though it may have been unnecessarily or improperly granted, and the defendants are at liberty to avail themselves of any defect or objection manifest upon or produced by it.” This language of the Court was made in reference to the fact, that the copy, tiled as grant of oyer in that case, was defective, inasmuch as it did not show to have been sealed by the defendants, which defect was over-looked in the Court below. And when taken in connection with the whole case, proves nothing for the plaintiffs in the cáse now-before the Court. And Qacere, whether a defendant is entitled to oyer of an assignment without specially craving it; and whether the endorsement is any part of the instrument filed on oyer in this case, supposing the instrument itself to be properly a part of the record.
    As to the third objection, that the judgment was not rendered at the regular term of the Pulaski Circuit Court, and is coram nonjudice, because no special order of adjournment appears upon the Transcript, the defendant in error submits that it is not made by the assignment of errors, nor does the record raise any such question. From aught that appears, this judgment was rendered at and during the regular September Term, 1840, of the Pulaski Circuit Court. In .the case of Dunn vs. the State, decided by this Court at the January Term, 1840, it affirmatively appeared by the record, (and not necessary to be raised by the assignment of errors, it being a criminal case) that, it was a'special, extraordinary term, convened by the Judge, by virtue of the statute, for the trial of that particular case of a prisoner confined in jail, charged with a capital offence; and it did not appear, as it should have done by the record in such case, that all the requisites of the statute had been complied with. See 2 Ark. Rep. 229. And in that case the objection was in favor of human life, and does not, in any particular, sustain the objection in the case now before the Court, supposing any such to. exist. But should this Court, ex officio, take notice of the fact, that the current business of the September term^ 1840, of the Pulaski Circuit Court, was adjourned until the first Monday in November following, the defendant in error will ask leave to suggest a diminution of the record in this respect; by reason that such special adjournment to a day certain, was for a valid cause and regularly entered of record in time, Rev. Stat. p. 233, Sec. 28 — and by reason, that the defendant, by his joinder in error, has not waived his right to suggest a diminution of record in any matter, not put at issue by the assignment. .
   Lacy, J.,

delivered the opinion of the court:

It is contended by the plaintiffs in error, that the declaration is defective, because it contains no allegation that the assignment was made to the defendant in error, by-Fulton, as receiver of the estate of Dickey; and that it shows no cause of action, because Fulton had no authority to make such assignment. In our opinion, the record authorizes no such conclusion. The term receiver, as used in the assignment, is a mere word of description, and has no relation whatever to his fiduciary capacity as trustee. The declaration, therefore, is held good upon this point; and Fulton, having full authority to assign the instrument, passed it to the defendant in error in his proper person.

To constitute an assignment in an. official character, as sheriff", as executor, and the like, it is necessary to make an averment, showing in what character the party sues; and so it has frequently been determined in this Court. But where words are mere words of description, no such allegation or averment is necessary, because the party sues in his individual, and not in his representative character.

The defendant below craved oyer of the writing sued on, which. was granted, by filing the original; and, they saying nothing farther in bar of the action, judgment was entered for the plaintiff. The question now is, upon the prayer and granting of oyer, can the party asking for it take any advantage of a want of sufficient assignment? We think it clear that he cannot. Had he wished to question the assignment, he should have craved oyer of it, as well as of the original obligation, and then he would have brought that fact to the notice of the Court. This he did not do, but merely craved oyer of the original. The granting of this oyer certainly did not give him oyer of the assignment; for the assignment is wholly a distinct matter from the original. If oyer is granted of a bond with a condition, the bond being complete without the condition, oyer of the one does not give a party a right to oyer of the other; but it must bo demanded of both, if wanted. Cook vs. Runnington, 6 Mod., 237; Campbell vs. Vaughn.

In order to bring error, the'party who insists upon oyer must enter his prayer on record, oyer being in the nature of a plea. 2 Salk., 498; 2 L. Ray, 290. In Serries vs. Harridge, 1 Saund. 9, and Serj. Williams’ note upon that decision, the whole subject of oyer is examined with much accuracy and learning, and the principles there settled clearly show, that upon a bond or promissory note, with endorsement, the granting oyer of the original does not necessarily give oyer of the endorsement; but the party, to entitle himself to oyer of the endorsement, must have craved it, and have demurred or pleaded, in order to bring the question before the Court. This being the case, as there was no oyer craved or granted of the assignment, the judgment below must be affirmed, with costs.


author: Dickinson, J.,

text:
    Slattery, Ex Parte.

      On Habeas Corpus.

    The General Assembly may constitutionally vest in a Corporation Court the jurisdiction of all offences below the grade of felony at the common law.
    The act of 21st December, 1840, providing that each of the city justices elected for the city of Little Rock,.shall, separately or together, have jurisdiction as a Corporation Court, to hear, try, and determine certain offences, without indictment or presentment, organizes a court or tribunal, whose powers are co-extensive with the corporate limits of the city.
    The City Council had power to provide, by ordinance, that if any person should, in public, usé any obscene or indecent language, he should be punished by fine, not less than five, nor more than fifty dollars; and that judgments should be entered in the name of the State, for the use of the city; and that the defendant should stand committed and be held in custody until fine and costs should be paid.
    If any person in the city offends against such ordinance, as the offence is not one declared to be criminal by any statute, he may bo constitutionally proceeded agdinsl in. the Corporation Court, without indictment .or presentment, tried by, jury, and fined, and held in custody or committed until the fine and costs be paid.
    John C. Slattery, being held in custody by the City Constable iu Little Rock, upon a conviction before the Corporation Court, for using indecent language in public, upon which conviction he had been committed until the fine and costs should be ¡paid, obtained a habeas corpus from the Supreme Court. The City Constable set out, in his return, for what cause he held him in custody, with a transcript of the record of conviction, and a copy of the ordinances applicable to the case, all of which are fully stated in-the opinion. Slattery demurred, to the return. .
    Hempstead, for demurrant:
    Borden and Pike, Contra:

   Dickinson, J.,

delivered the opinion of the Court:

The prisoner is brought up on a, writ of habeas corpus. He contends that he is entitled to a discharge, upon the grounds, 1st, That there is no legally constituted Corporation Court in the City of Little Rock; and 2d, That his conviction is contrary to the constitution and laws of this State.

As to the first objection: The only limitation to the powers of the Legislative department that can exist, must be found either in the Constitution of the United States, or of this State, or in the natural and inherent rights of the citizens, as enumerated in the bill of rights, which they cannot part with, or be deprived of by the society to which they belong. The 'first .section of the sixth article of the Constitution, after declaring that “the judicial powers of the Stateshall be vested in one Supreme Court, in Circuit Courts, in County Courts, and in Justices of the Peace,” expressly authorizes the General Assembly to vest such jurisdiction as may be deemed necessary in Corporation Courts.

The third section gives to the Circuit Courts original jurisdiction over all criminal cases which shall not be otherwise provided for by law; but exclusive original jurisdiction of crimes that do amount to felony at common law. These provisions render it obvious that the General Assembly may, if they deem it necessary, vest in a Corporation Court the jurisdiction of all crimes less than felony at the common law.

The city of Little Rock was incorporated in 1835. On the 21st December, 1840, the General Assembly enacted, “That each of the city justices elected for the city of Little Rock, as now provided by law, shall, separately or together, have jurisdiction as a Corporation Court, to hear, try, and determine certain enumerated offences, without the necessity of indictment or presentment,” among which are, offences against “ the public peace, good morals, or decency, not specially provided for by statutory provisions;” and “that every person so tried shall be entitled to a trial by jury.”

The language and terms used rih the act referred to, are by no means precise or definite, but certainly sufficient to ascertain the intention of the General Assembly to establish and organize a Court or tribunal, whose powers are co-extensive with the corporate limits of the city; and that the city justices, or either of them, are authorized to preside in the Court, as the Judge or Judges thereof. Whether such a Court is calculated to aid and assist in the administration of justice, and preservation of the public peace, is a question, the policy of which must be left to the decision of another department. We can only inquire, in this instance, into its acts as presented by the return of the officer, viz: That on the Sth day of February, 1841, the Mayor and Aldermen of the city of Little Rock, in Council assembled, did ordain, “ That'if any person in this city shall use, in public, any obscene or indecent language, he shall, on conviction thereof, be punished, by fine, not less than five nor more than fifty dollars;” and that judgments shall be entered in the name of the State, for the use of the city; and that the defendant shall stand committed, and be held in custody, until the fine and costs are paid. That on .the 18th July, 1841, the prisoner was, upon the plea of not guilty, fined by a jury in the Corporation Court, in the sum of five dollars, for using obscene and indecent language, in the public street, and in the presence and hearing of ladies; and judgment was thereupon rendered against him for^the fine and costs, and that he stand committed until the same be paid.

The truth of this return is not controverted. 1's there any doubt of the authority of. the Corporation to pass such an ordinance? What was the power conferred upon the Mayor and Aldermen by the city charter? We answer that it was wholly political. Instead of prescribing, at their discretion, every duty to be performed, and forbidding every act to be .avoided — in a word, directing the whole system of govermen.t to be observed and executed — the Legislature have merely defined the outlines and leading principles, and conferred upon the inhabitants within the bounds of the Corporation, the power, at discretion, to fill up and carry them into operation. Individual rights or private interests are no’ more involved in the arrangement,, than they are in the general laws passed with reference to the government of the State.

Any person who will look into the powers and privileges conferred by the charter upon the city, and its qualified right of self-government in'reference to its domestic regulations, will at once perceive that the powers and duties of the inhabitants and officers are more or less limited and defined, leaving whatever was deemed by the Legislature expedient, to the exercise of their discretion. They are to adapt the law to their peculiar condition and necessities. The powers delegated, executive, legislative, and judicial, and the rights in the inhabitants, are of the same kind, and designed to accomplish the same end, to wit: the good government of the people. These powers are all public trusts, to be executed not for the benefit of the few, but for the public weal. When they shall cease to exist, or in what manner modified, is for the Legislature to determine. The forming of cities into communities, corporations, or bodies politic, and granting them the privileges of municipal jurisdiction, has contributed, more than any other cause, to introduce regular government, and preserve good order through its police.

A public corporation is defined to be “ an investing the people of a place with the local government thereof.” This description is appropriate, and justified by the history of these institutions, and the nature of the powers with which they are and were invested. They have capacity to sue and be sued, to purchase and hold real estate, to make such contracts and hold such personal property as may be necessary to its corporate and administrative powers, and to make such order for the disposition, regulation, and use of its public property, as may be conducive to the interests of the inhabitants, and to pass all laws necessary to carry into effect its general and specific powers.

The charge against the prisoner is not declared to be criminal by any statute, but is simply a breach of one of the ordinances of the Corporation, which it had as well the authority to make, as to declare the punishment for its violation.

He is in custody, by virtue of the final judgment of the Corporation Court of the city of Little Rock, which possesses competent jurisdiction to adjudicate the matter with which he is charged; and not bringing himself within any of the causes specified by law, (Rev. Stat. Ark., 440,) his application for a discharge must be refused, with costs.

He is therefore remanded into the custody of the City Constable, to be by him delivered into the custody of the keeper of the common jail of the county of Pulaski, to be by him safely kept in said common jail, until he shall have paid the fine and costs mentioned in the return to the writ of habeas corpus in this case issued, or shall be otherwise discharged therefrom by due course of law.


author: Dickinson J.,

text:
    Webb & Taylor against Brown.
    Eekoe to Chicot Circuit Court.

    The Statute which authorizes judgment on motion upon a forfeited delivery bond, authorizes such judgment only at the term at which the execution is returned; and a judgment rendered at any subsequent term is void.
    Brown obtained judgment against Webb at the November term of the Chicot Circuit Court, 1839, andón the 14th of January, 1840, had a writ o f fieri facias issued upon the judgment returnable to the May term, 1840; which was placed in the hands of the Sheriff, and on the 23d of April, was levied upon several of Webb’s negroes.
    On the day of the levy, Webb, and Taylor as his security, executed their bond, to the plaintiff, Brown, conditioned for the forthcoming and delivery of the negroes on the 18th day of May, 1840, the first day of the Circuit Court. On the 19th day of May, the Sheriff returned the execution unsatisfied, and endorsed the failure of Webb and Taylor to deliver the negroes according to the condition of the bond.
    On the 11th day of January, 1841, and at a term of the Court subsequent to that in which the execution was returned and returnable, Brown, the defendant in error, moved the Court to renderjudgment upon the bond, under the 40th section of the Statute of executions. Which motion, although resisted by the plaintiffs in error, was sustained by the Court, and judgment rendered for the amount of the original judgment, and ten per cent, damages and the defendants excepted.
    Teapnall & Cocke, for the plaintiffs:
    The 40th section of the Statute, under which this motion was made, provides that “If the condition of the bond be broken, and the execution be returned unsatisfied, the defendant and his securities shall be deemed to have notice of the facts, and the plaintiff without further notice may, on the return day of the execution, or on any sub

      sequent day of the term, at which such execution is returned, move the Court for a judgment on the bond, against the defendant and his securities or any of them, or the plaintiff may at his option bring an ordinary suit on the bond.
    The Legislature have expressed in this section, with so much distinctness, that the summary remedy, by motion on the bond, and notice thereof to the defendants, was to be confined to the return day of the execution, or any subsequent day of the term, at which such execution was returned, as to cut off all necessity or apology for argument or array of authorities.
    E. L. Johnson, Contra:

    submitted this case without argument.
   Dickinson J.,

delivered the opinion of the Court:

Section 37 of the Rev. Stat. Ark. under the title, execution, p. 380, authorizes the Sheriff to permit the defendant in execution, to retain possession of the property levied upon, by giving bond in favor of the plaintiff with sufficient security, in double the value of such property, conditioned for the delivery of the property to the officer at the time and place of sale to be named in such condition,- and by the provisions of the 40th section of the same act, “if the condition of the bond be broken, and the execution be returned unsatisfied, the defendants and his securities shall be. deemed to have notice of the facts, and the plaintiff, without further notice, may on the relurri day of the execution, or on any subsequent day of the term at which such execution is returned, move the Court for judgment on the bond against the defendant and his sureties, or any of them, or the plaintiff may at his Option bring an ordinary suit on the bond.”

The 41st section (which was in force in May, 1839, but had been repealed previous to January, 1841), provided that, “If any controversy arise on the motion, it shall be heard and determined in a summary manner, without the form of pleading, and unless the demand be avoided, judgment shall be rendered thereon without delay, according to the circumstances.” The language of the Statute is plain and imperative. If the defendant in error intended to avail himself of the remedy afforded by motion, and bring himself within its provisions, he must conform strictly to all its requisites. If he fails or neglects so to do, at the return term of the execution, he unquestionably by his laches, waives any advantage and forfeits every right he may have had to relief under that mode of proceeding.

In the transcript before us, no such motion appears to have been made until the January term following. That the Court erred in taking cognizance of the motion, and in rendering judgment thereon against the plaintiffs in error, there can be no question or doubt.

The judgment of the Circuit Court of Chicot county must therefore be reversed, annulled, and set aside with costs.


author: Dickinsow, J.,

text:
    Baker, alias Beiquett, against The State.
    Appeal from Pulaski Circuit Court.

    A judgment is not the determination and sentence of the Judges, but of the law.
    The style of it, therefore, is not “It is ordered,” or '‘resolved by the Court,” for then the judgment might be their own; but, “ it is considered,” which implies that the act is none of their own, but the act of the law, pronounced and declared by the Court, upon determination and inquiry.
    And if the words “ it is considered” are wanting, there is no judgment, and no appeal will lie.
   Dickinsow, J.,

delivered the opinion of the Court:

The defendant was tried at the March term of the Circuit Court of Pulaski county, upon an indictment containing two counts: one for shooting at, with intent to kill, Jacob Faulkner; the other for shooting, wounding, and disabling him.

The jury returned a verdict of guilty upon both counts, and sentenced him to imprisonment in the Penitentiary for five years. After the entry of the verdict, the record proceeds as follows: “On this day came the Attorney for the State, and the said defendant was brought to the bar of this Court, in the custody of the Sheriff, and the Court proceeded to pass the sentence of the law on the said defendant, in accordance with the verdict of the jury in this case, as follows, to wit: Ordered by the Court, that the said defendant, Franklin T. Baker, alias Franklin T. Beiquett, be committed to the Jail and Penitentiary house of the Stale of Arkansas, for the full space and term of five years from the twenty-sixth day of March, A. D. 1841, for shooting with intent to kill; and that he pay all the costs of this prosecution, and stand committed until the sentence of the law is fully complied with.”

The record being moved into this Court by appeal, various errors were assigned. But as this Court can take jurisdiction in cases of appeal, or writ of error, only when final judgment has been entered in the Court below, it becomes necessary to consider, first, whether there has been such a final judgment in the case.

A judgment, though pronounced or awarded by the Judges, is not their determination and sentence, but the sentence and determination of the law, which depends, not upon the arbitrary opinion of the Judge, but the settled and invariable principles of justice, and is the remedy prescribed by law for the redress of injuries; and the suit or action is the vehicle or means of administering it; and, therefore, the style of the judgment is not “ That it is ordered or resolved by the Court,” for then the judgment might be their own; but “It is considered”— “Consideralum est per Curiam,” which implies that the judgment is none of their own, but the act of the law, pronounced and declared by the Court, upon determination and inquiry.

Inasmuch, therefore, as no judgment has been entered below, and consequently no appeal can be taken to this Court, the appeal must be dismissed, and a writ of procedendo be issued to the Circuit Court of Pulaski county, to give judgment in this case according to law. 1 Chitty’s Crim. Law, 701; 8 B. & C., 196, and authorities there quoted; 1 Chitty’s Black., 312-13.


author: The Court,

text:
    Rutherford and Others against The State Bank.
    EkroR to Independence Circuit Court.

    A writ of error, returnable into the Supremo Court, may be issued and tested by a Judge of the Court, and is as valid as oho issued and tested by the Clerk, under the seal of the Court.
    If there are less than fifteen days between the teste and return day of a writ of error, it will be quashed.
    A writ of error issued in this case, dated June 30, 1841, returnable on the first day of July, 1841, issued and signed by the Honorable Townsend Dickinson, Associate Judge, without the seal of the Court.
    Hempstead and Johnson, for defendant in error,
    moved to quash the writ, because it was so issued.
    Byeks, Contra:

   The Court,

the Chief Justice dissenting, held that the writ properly issued, a Judge having power to issue the same.

And afterwards, the motion to quash being renewed, and the want of fifteen days between the teste and return day assigned as a ground, by leave of the Court, the objection was held fatal, and the writ quashed.


author: Ringo, C. J.,

text:
    Wilson against Mason & Others.
    Error to Conway Circuit Court.

    Under the Constitution of this State, one tribunal. or class of tribunals, cannot have or exercise any original jurisdiction over a subject matter, over which another has the exclusive original cognizance.
    The amount of each separate claim or contract, which one person holds against another, and not their aggregate amount, is the sum in controversy, within the meaning of the Constitution.
    No contract or claim, of which by the Constitution, a justice of the peace has jurisdiction, can be sued on in the Circuit Court, either separately, or together with others.
    If therefore, one count in a declaration is on a contract for more than one $100, and another on a contract for $100 or under, the Circuit Court has no jurisdiction of the latter, and a judgment for the plaintiff on both counts will be reversed.
    The declaration contained two counts; the first upon a bond for the sum of $110 26; and the second, upon an account for $22 94. The plaintiff in error, who was defendant in the Circuit Court, enters his appearance to the action, and craved oyer of the bond mentioned in the first count of the declaration, which was granted, and judgment by nil dicit given against him for the aggregate amount of the several demands mentioned in both counts of the declaration, with damages and costs of suit.
    A motion was made by the defendants in error, for leave to enter in this Court a remittitur of the amount of the debt mentioned in the second count of their declaration, which was granted them; but they subsequently declined availing themselves of the liberty so granted.
    Clendenin, for plaintiff in error:
    Ashley and Watkins, Contra :

   Ringo, C. J.,

delivered the opinion of the Court:

The record and assignment of errors present but a single question for our consideration and decision: that is, whether the Circuit Court could legally exercise original jurisdiction over the demand mentioned in the second count of the declaration, it being for a sum under one hundred dollars.

It must be conceded that the demand mentioned in the second count, if taken separately, is not originally cognizable before the Circuit Court: But the defendants in error contend, that inasmuch as, according to the principles of the common law, it could be joined in the same declaration, with the demand mentioned in the first count, there is nothing in the Constitution, or laws of this State, prohibiting such joinder, and if, when they are so joined, the aggregate of the several sums sued for exceeds the sum of one hundred dollars, the Circuit Court has original jurisdiction, and more especially so, when one of the demands sued for, as in the present case is, taken separately, within the jurisdiction of the Court. That as to the question of jurisdiction, the aggregate of the several contracts, when the decía, ration discloses more than one, constitutes the sum in controversy within both the letter and spirit of the Constitution; and by this criterion, the question of jurisdiction must be determined. And further, it is urged that each item in an ordinary open account, especially in running accounts including charges or contracts made at different periods, (such for instance, as merchant’s accounts) constitutes generally a separate contract; which, if the criterion here insisted upon be not the true one, must, when the action is based upon such account, determine the question of jurisdiction, and become the basis of a separate action.

These positions are controverted by the plaintiff and will be examined by the Court.

When the action is founded upon contract, the question of jurisdiction, as regards the subject matter, must depend-alone upon the sum in controversy: but the criterion, by which the sum in controversy, as contemplated and understood by those who framed the Constitution, shall be ascertained and determined, where the action, as in this case, is founded upon distinct contracts, one of which separately considered is, and the other is not within the original jurisdiction of the Court, remains to be decided — no case so circumstanced having been hitherto finally determined in this Court.

In the case of Berry vs. Linton, 1 Ark. Rep. 252, this Court held that the union of several demands, each within the jurisdiction of a justice of the peace in the same declaration, could not confer upon the Circuit Court original jurisdiction thereof. In the case of Fisher vs. Hall & Childress, ib. 275, it was determined, that the interest accrued, as regards the question "of jurisdiction, could not be considered as a part of the sum in controversy within the true intent and meaning of the Constitution. And in the case of Heilman vs. Martin, 2 Ark. Rep., it was decided, that where each count in the declaration disclosed'a cause, of action within the jurisdiction of the Court, the defect of jurisdiction could only be taken advantage of by plea in abatement to the jurisdiction of the Court; if in fact, the real matter in controversy between the parties was not within its jurisdiction: thus leaving the effect of the joinder of two demands, one within and the other, not within the jurisdiction of the'Court, to be adjudged when such case should arise.

In defining and prescribing the jurisdiction of the judicial tribunals of this State, the Constitution declares, that the justices of the Peace “shall have individually, or two or more of them jointly, exclusive original jurisdiction in all matters of contract, except in actions of covenant, where the sum in controversy is of one hundred dollars and under:” And that the Circuit Court shall have “original jurisdiction in all matters of contract, where the sum in controversy is over one hundred dollars.” Const. Art. 6, S. 15, 3. From these quotations it will be perceived, that the original jurisdiction conferred upon justices of the peace, in regard to all matters of contract, of which they can take cognizance, is “exclusive,” and cannot therefore exist in any other tribunal, so as to be concurrently exercised, at the election of the parties, or either of them. And it appears to us to be very inconsistent, and illogical, if not absurd, to suppose that one tribunal can have the exclusive original cognizance of any specified subject matter, while another, at the election of one or more of the parties, at the same time also, may exercise original jurisdiction over the same subject matter. And in our judgment, no conclusion, which permits such election, can be maintained. But the difficulty arises from the want of some plain and established rule, for ascertaining to what particular contracts or subject matter, the exclusive original jurisdiction of the justices of the peace is attached'; as for instance, where the plaintiff, at the time of the institution of his suit, is the holder of several distinct contracts of the defendant, upon each of which a separate action at law, according to the principles of the common law, could be prosecuted, whether they must be considered as separately constituting the sum in controversy or subject matter of a suit within the jurisdiction of a justice of the peace: or whether they may not be considered collectively, and the aggregate thereof, as constituting the sum in controversy, within the spirit and design of Constitution, upon which suit can not be brought before a justice of the peace, or in other words, whether the Constitution as to the present question does not regard the sum claimed upon each separate contract put in suit, as furnishing the criterion for ascertaining what tribunal shall have the adjudication thereof, in the first instance, rather than the aggregate claimed upon several distinct contracts, or separate causes of action, which according to the principles of the common law might be joined in the same action, or be sued upon separately.’

If we are right in the conclusion, that one tribunal, or class of tribunals, cannot have or exercise any original jurisdiction over a subject matter, of which another has the exclusive original cognizance, it results, as a necessary consequence, that there can be no election as to the tribunal to which the plaintiff may resort for the adjudication thereof. If he sue upon a subject matter within the exclusive original cognizance of one tribunal, he cannot, under any circumstances, have it adjudicated in the first instance in a different tribunal. So in the case before us, if the demand mentioned in the second count be within the exclusive jurisdiction of a justice of the peace, no other tribunal can take cognizance of it, until it has been first adjudicated upon by a justice of the peace. And we know of no criteria, other than those mentioned, by which the jurisdiction of the different tribunals, in actions upon matters of contract, can be ascertained and determined: and the jurisdiction being, as we conceive, in such cases, absolute and without any election on the part of the plaintiff, he can have no legal redress in any tribunal, other than that in which jurisdiction of the subject matter is vested by the Constitution.

If these positions be true, there can be but little doubt as to the true criterion by which the question of jurisdiction must be determined; for if the aggregate, claimed upon several contracts capable in law of being made the foundation of separate actions, could be regarded as furnishing the rule, the right of election would remain in the. plaintiff, and the jurisdiction which the Constitution obviously intended should belong exclusively to the justices of the peace, might be, and in many cases doubtless would be thereby defeated, and, by a course of'pleading similar to that adopted in this case, be transferred to, and exercised by, the Circuit Court. Furthermore, we cannot conceive how it is possible that the justices of the peace could be considered as exercising entire the exclusive original jurisdiction in all matters of contract, where the sum in controversy is of one hundred dollars, or under, while the adjudication of any matter of contract, not exceeding that amount, is allowed to the Circuit Court. Besides, in our opinion, the language used in the Constitution indicates that it was the intention of the Convention to refer “ the sum in controversy ” to its antecedent — that is, to “matters of contract;” and to them dislributively, rather than collectively; which interpretation is, as we think, strengthened by the consideration that no reference whatever is made to the suit, or the sum, or amount sued for, or in issue, or in controversy in the suit; while the language used is comprehensive enough to include all and every contract, without regard to the subject matter, or the amount, or value thereof; and the only express limitation upon the justices’jurisdiction, in matters of contract, consists in the withholding from them the power of adjudicating any action of covenant, or contract, where the sum in controversy exceeds one hundred dollars. And, therefore, it appears to us, that the language used, upon its face, inculcates, plainly and distinctly, the idea that the original jurisdiction over every contract for the payment of money, upon which a recovery of more than one hundred dollars could not bona fide be claimed, or in justice and according to law obtained, was intended to be, and is, vested in the justices of the peace; and this interpretation, in our opinion, harmonizes better than any other with the apparent design and general frame of the judiciary department, as it is organized and directed by the Constitution, the policy of which appears obviously to have been, so to distribute the judicial power, as to invest the justices of the peace with the exclusive original adjudication of all such demands, arising upon contracts, as are generally the most plain and simple in their character, and the least important to the parties on account of the insignificance- of the amount involved, but which, from their multiplicity in the ordinary business of the community, demand at the same time the most convenient, speedy, simple, cheap, and effectual redress by suit; which object, in the opinion of the Convention, could not be so completely attained by referring the original adjudication thereof to any other of the judicial tribunals established or authorized by the Constitution. And therefore the original jurisdiction of the justices of the peace over all such matters of controversy, was made “ exclusive,” while the adjudication of the more complicated or important rights involved in controversies arising upon legal obligations created by contract, was wholly withheld from them, and referred to other tribunals, supposed to be better qualified or more competent to give more adequate redress according to law.

Other considerations may have influenced the Convention in the distribution of the judicial power. That body might, with great propriety, have conceived, that, to invest the higher tribunals with original jurisdiction over obligations generally so simple and unimportant, (separately considered) would, by occupying too much of their lime, deprive them of the opportunity of giving to more complicated and important matters that deliberate attention to which they would be justly entitled; while the consequence generally would not only be to delay, but also increase the expenses incident to their adjudication in the - inferior tribunal, which, in the great majority of cases, would enforce justice between the parties, who would willingly acquiesce therein, and the controversy be thereby finally determined. Otherwise, the same could, consistently with the constitutional organization of the judiciary department, be revised or re-adjudicated, (if desired by either party), by some superior tribunal.

The argument that each item of a continuing account may be regarded as constituting a separate contract, capable of forming the legal basis of a distinct action, as though separate notes in writing therefor had been executed, is, in our opinion, untenable, and opposed to the well-settled principles of law relating to all actions founded on such demands. Because, the law contemplates the obligation arising thereupon as being inchoate, and as remaining always open, subject to the addition of other items or demands, until the account is finally stated, or determined by some act of the parties, when the balance struck, or the aggregate of the account, (and not each separate item of charge contained in it), is considered in law as one definite and complete charge, constituting a single demand, arising as upon a contract embracing a number of things and a variety of items or subject-matters of charge, forming the basis only of a single action at law.

We do not deem it necessary to pursue this investigation further; but, to prevent misconception, we will simply state, that in this opinion it has not been our intention to declare whether original jurisdiction over, matters of contract of any character or description, or under any circumstances whatever, is or may be vested in county'courts, probate courts, corporation courts, or courts of equity, where the sum in con»troversy is one hundred dollars or under, but simply to determine the question in regard to the jurisdiction of the Circuit Courts.

We are therefore of the opinion that the Circuit Court erred in taking cognizance of and adjudicating the demand mentioned in the second count of the declaration, the same being within the exclusive original jurisdiction of a justice or justices of the peace. Judgment reversed.


text:
    Didier and Others against Galloway.
    Error to Pulaski Circuit Court.

    In suits by attachment, the bond to be filed before issuing the writ is a pre-requisite. If no such bond is filed as is required by the statute, the effect is to abate the writ; but it is no ground for a motion to dissolve the attachment and restore the property.
    Any matter which defeats the present proceeding, and does not show that the plaintiff is for ever precluded, should in general be pleaded in abatement, unless some other 'mode of proceeding is warranted by express enactment.
    If in any case there is no such enactment, there is no authority for a departure from the common law rules of pleading.
    A judgment in a suit by attachment, that the attachment be dissolved, the property restored, and the defendant recover costs, is not a final judgment.
    Debt, by writ of attachment. Galloway, the defendant, moved to dissolve the attachment, and that the property be restored, because ho sufficient bond was filed before issuing the writ. The Court sustained the motion, and gave judgment that the attachment be dissolved, and the property restored, and that the defendant recover the costs.
    Scott, and Trapnall & Cocke, for plaintiffs:
    Pike, Contra:

   Dickinson, J.,

delivered the opinion of the Court:

This is an action of assumpsit, instituted by Didier and others against Galloway and others, by attachment. The fifth section of thé act regulating this mode of proceeding, (Rev. Stat. Ark., 116), requires that the plaintiff shall, at the time of filing his declaration, also file with the Clerk a bond to the defendant, with sufficient security, to be approved of by such Clerk, in double the amount of the debt sworn to, “ conditioned that he will prove his debt or demand on a trial at law, or that he will pay such damages as shall be adjudged against him.”

Under the old law, the writ issued as of course in all instances where the proper affidavit was filed. And though the plaintiff may have failed-to prove his demand, the defendant, in many cases, would have had no adequate redress. It was to remedy this evil, that the present statute was passed, requiring a bond to indemnify the defendant for any injury sustained from the prosecution of a stale or fictitious claim.

The proceeding by attachment against absent or absconding debtors, is a peculiar privilege granted to creditors, because it is the policy of the law, and the honest right of the creditor, that he should be permitted to collect his debt, wherever he can find the means of satisfaction. It is, however, one of those violations of the common law, that can only be authorized by express enactment, and is watched with great jealousy, that no fraud or injustice may be practiced under it, and that it be not made to embrace a class of cases not intended to be brought within its operation.

In the case before us, the declaration and affidavit were filed at the proper time. A motion was made and sustained by the Court, to dissolve the attachment, and release the property levied on, because no such bond had been filed as was required by law, and judgment was entered against the plaintiffs in error, for all the costs in the suit expended. The bond is a pre-requisite, and the plaintiff must comply with the condition upon which he is allowed his writ, before he can avail himself of the privileges of the act. The effect upon the suit, if there is no such bond as is required by the statute, would be to abate the writ; and that the defendants had a legal right to avail themselves of all matters in abatement, in any manner authorized by law, will not be controverted. The only question is as to the mode of doing it.

We have examined the statute with great care, and find that there are but two instances specified, in which, while the action is pending and undetermined, the attachment can be dissolved a.nd the property restored. 1st, Where the party gives bond for his appearance and compliance with the judgment of the Court. 2d, Where an exception is sustained to the affidavit; and even the defendant must appear and plead to the action, before his exception will be entertained by the Court. In the event of its being sustained, his common appearance will be accepted, the property attached released, and the suit then, proceed as other suits at law, (Rev. Stat. Ark., ch. 13, sec. 13, 29); but this cannot be done on motion.

In the casé before us, th’e exception is not to the affidavit, but to the bond. The record is silent as to the nature of that exception. Is it that the .security is not of that species which is required by the statute ? or is it defective in its condition ? ot were either of the contracting parties infants, insane, or the like? Is it contrary to policy, and therefore regarded as void? Is it void from defective execution? 1s it without consideration, or was it executed or filed too late? Whether it was declared to be imperfect for any one of these, or other causes, we are left wholly, in1 the dark. The record merely shows the fact, indirectly, that the exception, whatever it may have been, was, in the opinion of the Court, sufficient to dissolve the attachment and release the property. If this can be done in the present instance, where shall we draw the line of distinction, and what influence is this summary mode of proceeding by motion, so frequently, and, as we think, so unwarrantably indulged in by the Courts to have upon the rights and interests of individuals? According to what we understand to be the law, any matter which defeats the present proceeding, and does not show that the plaintiff is for ever precluded, should in general be pleaded in abatement, (4 T. R., 227; 3 Chitty's Bla., 302), unless some other mode of proceeding is warranted by express anactment. In the case before us, there is no such enactment; consequently, there is no authority for a departure from the common law rules of pleading; and the Circuit Court erred in entertaining the defendant’s motion, but should have required a regular and formal plea, if there was any disability resting upon the plaintiffs to sue, or a non-compliance with any of the pre-requisites of the statute.

Although perhaps not imperatively called upon to express an opinion upon the effect of a motion of this kind, we have deemed it better to do so, to regulate, if practicable, the practice of the Circuit Courts, and confine them to the long-established and well-settled rules of pleading, particularly where the Legislature has not thought proper to interfere.

There has been no final determination of the suit by the Circuit Court. It is true, the attachment is ordered to be dissolved, the property levied upon restored, and judgment that the defendant should have and recover all the costs in the suit expended. But there is no judgment abating the writ or dismissing the action, but merely a decision upon an incidental question arising during the progress of of the case, leaving the gist of the action yet to be settled and finally determined.

Upon this view of the case, and for want of any final judgment, the writ of error must be dismissed.


text:
    Dawson and Others against The State Bank.
    Ekkok to Pulaski Circuit Court.

    If a summons against A. B. sen., is returned by the Sheriff served “on the within named A: B. jun.,” the law presumes that that the Sheriff has done his duty, and not an illegal act; and the addition of the letters “jun.,” will not falsify .his statement that he has served the writ on the person named in it.
    If the facts stated by the Sheriff, in his return, admitting them all to be true, do not show with reasonable certainty that the process has been executed in some manner prescribed by law, the return is,invalid.
    And although the law presumes that the Sheriff has done his duty, yet he is strictly required by the Statute, to set out in his return every thing done by him in the execution of a writ.
    A return thus — “Executed the within writ on the within named A. B. and C. D. by delivering them a true copy of the same at their places of residences and leaving the same with a person over the age of 15 years, on &c., at &c.;” will be construed to mean that it was executed in no other way than by leaving a true copy at their respective places of residence, with some person over fifteen years of age.
    And still the return is bad, and will not sustain a judgment by default, because it does not show that the person was a member of the family.
    Debt. Declaration against James L. Dawson, James Scull, sen., and William R. Gibson, judgment by default. The writ was well served on Dawson ; as to Scull and Gibson the return was, “Executed the within writ on the within named James Scull jr., and Wm. R. Gibson, by delivering them a true copy of the same at their places of residence, and leaving the same with a person over the years of 15 of age, the 3d day of Jan. A. D.. 1840, done in the town of Pine Bluff, Arks. Jefferson.”
    Ashley & Watkins, for plaintiffs in error:
    According to the decision of this Court in the case of Gilbreath vs. Kuykendall, 1 Ark. Rep. 50, on judgment by default, the defendant below is entitled to all legal exceptions to the writ and service thereof. And in same case, p. 52, the Court say, that “the defendant’s right to insist upon a legal and valid service of the writ upon him, before he was bound to appear or subject to the consequences of a legal default for not appearing, unless waived by himself, must be admitted.” No judgment of any Court can be valid, unless it appears upon the record to have jurisdiction of the subject matter, and also of the parties, either by the legal service of valid process, or by their voluntary appearance. See also Moore vs. Watkins et al. 1 Ark. Rep. 269. And we apprehend the rule of law would be the same, where there is a joint suit, and judgment vs. several defendants, and no service of process as to one of them.
    Hempstead & Johnson, Contra:

   Ringo, C. J.,

delivered the opinion of the Court:

It is objected that the return of the officer, does not show any execution of, or attempt to execute it, on J ames Scull sen. one of the defendants therein named, and that, if executed at all, it appears affirmatively to have been executed on James Scull, jr., who is not named therein. This objection cannot, in our opinion, be maintained: Because the law will not admit the presumption, that an officer charged with the execution of process, has, in the execution thereof, not only failed to discharge his duty, but has actually done an illegal act, which he was in no wise commanded to do : but always presumes that every public officer has discharged his official duty, until the contrary is affirmatively shown. Here the officer, in his official return, states- that he has executed the writ, “on the within named James Scull, jun..” The question is one of identity, and the simple addition of the letters “jr.” after the name of James Scull, which the law does not regard as comprising any part of the name, cannot, upon any principle of law or reason, be suffered to disprove and falsify the positive assertion that the writ was executed on the person therein named-

Other objections however to the execution of the writ appear upon the face of the return, in which the officer executing the writ, was bound to “set out how and in what manner he executed the same." (Rev .St. Ark. ch. 116, S. 20). Consequently when the facts as stated, admitting them all to be true, do not show with reasonable certainty, that the process has been executed in some manner prescribed by law, the parties, upon whom such execution is not shown, cannot, in justice or according to law, be considered and treated as legally in default, for failing to comply with the mandate of the writ: because until they have such notice of the writ and proceeding, the law imposes no obligation on them to observe or obey its mandate, or to appear in Court to answer the demand exhibited by the plaintiff; nor can their rights in such case be legally adjudicated in their absence.

The writ issued in this case is a summons, and the law prescribes that “a summons may be executed either by reading the writ to the defendant, or by delivering hi,m a copy thereof, or by leaving a copy thereof at his usual place of abode with some white person of the family over fifteen years of age.” (Rev. St. Ark. ch. 116, S. 13.) The return before us is liable to much criticism, and the facts are so stated therein as to leave it somewhat uncertain whether a single copy of the writ was delivered to Scull and Gibson personally, and another left at their places of residence, or whether such copy was left for each at his place of residence. But after a careful examination of the whole return, we think the most reasonable and certain conclusion, which can be drawn from the facts as they appear, is that the writ was not executed upon Scull and Gibson, otherwise than by leaving a true copy thereof at their respective place of residence, with some person over fifteen years of age; which might all be strictly true, and yet the writ never have been executed in any manner prescribed by law; for" the person, to whom the copies were delivered, may not have been a white person of the family of said defendants respectively. Now, although it is true, as before stated, that the law presumes every officer to have discharged his duty agreeably to law, yet it was no less his duty to set forth, in his return of the.writ, truly every thing done by him in the execution thereof, according to the positive injunction of the Statute, than it was to execute the writ itself: and therefore, under the same rule, we are bound to presume that he has done so in the return before us, and as sufficient does not appear from the facts stated to constitute a legal and valid execution of the writ, on the defendants Scull and Gibson, the Court has no jurisdiction over their persons, nor any power to adjudicate their rights without their consent, which in this case does not appear in any wise to have been given. The return therefore, did not authorize the Court to adjudicate the case, and pronounce judgment against the defendants Scull and Gibson, as for a default in not appearing to the action, while they were under no legal obligation to appear thereto; and in so doing the Court manifestly erred: Judgment reversed, and case remanded. Case to proceed as if process served.