text:
    The State of Arkansas vs. Clark.
    -Cbiminab Law: Former jeopardy, etc.

    The defendant was indicted for the larceny of several articles, tried antfc convicted as to a part of the articles, and a new trial granted him; a new indictment was afterward found against him -for the same larceny, but embracing some additional articles, and the original indictment was quashed. Held,/rs¿, the indictment being good, the defendant could not be put in jeopardy again on that, or a subsequent indictment, as to the articles which he was acquitted of stealing, or other articles embraced 5» the larceny, but not included in the first indictment; second, as to the articles he was found guilty of stealing, under the first indictment, he was in the same attitude as if there had been no trial, and could be triedi again upon the second indictment.
    APPEAL from Ciarle Circuit Court.
    Hon. L. J. Joyner, Circuit Judge.

      Attorney-General for the State.

      Gallagher & Newton, contra.

   English, Ch. J.:

On the 1st of December, 1875, Aaron Clark was indicted for larceny in the Circuit Court of Clark County.

The indictment charged him with stealing, on the 15th May, 1875:

One package of Smoking Tobacco, of the value of............................................ •$ 1 1 00
One Plug of Tobacco, of the value, of. 1 00
1 00 One pair of Kid Gloves, of the value of.
One Treasury Note of the United States, commonly called Greenback, of the denomination of five dollars, and of the value of.............. 5 00
One Ten-Do'llar Bill, commonly called Greenback, of the value of.................................. 10 00

of the goods and chattels of one James Strong.

On the 7th of December, 1875, he was tried on the plea of not guilty, and the jury returned the following verdict.

“We, the jury, find the defendant guilty of feloniously stealing one five-dollar greenback bill, $5; one pair of kid gloves, $1.50'; one package smoking tobacco, 75 cents — $7.25.”

The defendant filed a motion for a new trial, which, on the 22d day of December, 1875, the court granted.

At the April Term, 18763 the grand jury returned a new bill of indictment against him for the same larceny.

The second indictment charged him with stealing a package of smoking tobacco, of the value of $1; and pair of kid gloves, of the value of $2; one treasury note of the United States, commonly called greenback of the denomination of five dollars, and of the value of $5; and two national bank bills, each of the'denomination of five dollars, commonly called national currency, and each of said bills, of the value of $5.

The only difference between the first and second indictment is, that the value of kid gloves is alleged' in the first fit $1, and in ten-dollar bill, commonly called greenback,” etc; and in the second, instead thereof, he is charged with stealing “two national bank bills, each of the denomination of five dollars, commonly called national currency,” etc.

At the October Term, 1876, it appearing to the court, that another indictment had been found by the grand jury against defendant for the same offense, it was ordered by the court, that the first indictment be quashed.

To the second indictment the defendant pleaded, that he had once been in jeopardy for the same offense: the court sustained the plea, discharged defendant, and the State appealed.

By the verdict on the first indictment, the defendant was convicted of stealing the five-dollar United States treasury, or greenback bill; the pair of kid gloves, and the package of smoking tobacco, described in the indictment; and he was, in legal effect, acquitted of stealing the plug of tobacco, and the ten-dollar bill, commonly called greenback. Johnson v. The State, 29 Ark., 31. The indictment being good on which this acquittal was had, he never could be put in jeopardy again on that indictment, or on any subsequent indictment, for stealing the same articles. The acquittal is a perpetual bar, though the court after granting him a new trial as to the articles which he was convicted for stealing, and after the second indictment was. found, quashed the first indictment on which he was tried. The court could not deprive him of the bar by quashing the indictment, for the reason that a second indictment had been found for the same offense, and not because the first indictment was bad.

In legal effect, he asked for a new trial, on so much of the indictment as charged him with stealing the articles which the jury found him guilty of stealing, and the court granted it. He then stood just as though he had never heen tried on the indictment as to these articles. ' ' ' .

In this attitude of the caso, a new indictment was found against him for the same offense, and the court thought proper to quash the first indictment, on which he had been tried, under sec. 1803, Gantt’s Digest; and now the question is, can he be tried on this second indictment for stealing the articles which he was convicted of stealing under the first indictment, and as to which he was granted a new trial?

We have been able to find but one case in point, and that is, The State v. Harresby, 8 Robinson (La.), 583.

Ilarresby was indicted and tried for murder, in the District Criminal Court, and found guilty, by the jury, of manslaughter; he moved for a new trial which was refused, and he was sentenced on the verdict. lie appealed to the Supreme Court; and the judgment was by it reversed, and the cause remanded with direction to the inferior court to grant him a new trial. After the cause was remanded, a new indictment was preferred against him for the same manslaughter, and a nolle prosequi entered on the first indictment. He was arraigned on the second indictment, and pleaded the foregoing facts as a former acquittal or jeopardy. The State demurred to the plea, and the demurrer was sustained, and on appeal to the Supreme Court, the judgment on the demurrer was approved.

The Judge delivering the opinion of the court, after holding that a new trial could . be granted the defendant on conviction of a felony, though such was not the practice in England, sai.d : “It is not disputed, that the new trial was awarded at the prayer of the defendant, * * * yet it has been argued, that in seeking and obtaining the new trial, the defendant did not, by legal intendment, consent to be tried on any other than the first indictment, the quashing of which, under the circumstances, was, it is said, equivalent to an acquittal. Upon mature reflection,, we think that no such pretension can be legitimately .set up by the defendant. He took the new trial with all its legal consequences and contingincies; and if the attorney general, anterior to the. first trial, or to the empannelling of a jury for the purpose of a trial, could have entered, as we doubt not he could, a nolle prosequi on the indictment which was then pending for murder, and institute another instantly for manslaughter, without thereby acquitting the accused by judgment of law, he certainly had an equal right to adopt that course after the new trial was awarded, at the time he did exercise it with the leave of the court. All former proceedings were set aside, and the party stood as if he had not been tried at all. It is true, the verdict of manslaughter was a virtual acquittal of the charge of murder, for which grade-of homicide the accused could not have been again constitutionally put on his trial, under the first indictment or a second; yet it would be a legal solecism to say that he was acquitted of manslaughter, when he was convicted of that offense by the finding of the juryj which was an insuperable barrier to a verdict for •murder only, on a second trial. The now trial having been granted, in reference to the fact, whether the homicide was manslaughter or not. In other words, the new trial was granted as. to the crime of which the accused was found guilty, the indictment affording only the form of bringing the crime before the-court. The homicide was always the same fact. It was pronounced manslaughter by the jury.

“The accused succeeded in setting that verdict aside, to be tried again for the same fact. It 'was the fact and not the form of bringing it before the court, which the accused succeeded in having ordered to be tried again, and the fact is now brought before the court in a form most favorable to the accused. It is a rule of law, that if a man indicted for murder is found guilty of manslaughter, he’ can . not again be indicted for murder, if the first indictment, were a good one; and if,-in such.a case, a new trial is awarded, it may be on the indictment for murder, because an indictment for murder includes an accusation for manslaughter. We can see, however, no legal reason, why, in a case like the present, the attorney general might not enter a nolle prosequi on the indictment for murder, on the trial of which manslaughter was the verdict, and a new trial granted, and prefer one 'simultaneously for the manslaughter. It neither compromises, delays, nor takes away from the accused any right or privilege, whilst it simplifies the prosecution.”

On principle, there is no material difference between the case from which we have quoted and the one now before us. In that, a nolle prosequi was entered on the first indictment, on the finding •of the second: in this, after the finding of the second indictment, the court quashed the first, because the second indictment was for the same larceny, and not because the first indictment was bad.

We hold therefore that the appellee may be legally tried on the-second indictment for stealing the same articles whieh he was ■convicted for stealing, by the verdict of the jury on the first indictment, and as to which a new trial was granted him : but he cannot be tried again for stealing the other articles described in the first indictment, because as to them he was, as we have shown, in legal effect, acquitted by the verdict;

And we think the better American rnle is, though the English •rule seems to be to the contrary, that appellee cannot be tried for stealing the “two national bank bills, each of the denomination of five dollars, commonly called national currency.” which he is charged with stealing in the second indictment, but which were not embraced in the first indictment.

It seems to be law -in England, that if a man steal two pigs at the,same, time, h.e may be indicted for .stealing one of them, and if acquitted, indicted, for stealing .the other. 2 Russell. Cr. L., 127. But the Americans have not favored this splitting of an offense,, and the harrassing of the accused by several indictments for part of the same offense.

It appears from the record in this case that appellee was accused of but one.larceny; the larceny of a number of articles at the same time. He was indicted for stealing some of the articles, tried and convicted as to part of them, and acquitted as to others embraced in the indictment. This acquittal was ■ a bar to any indictment for articles not embraced in the indictment on which he was tried. Fisher v. Commonwealth, 1 Bush., 211; Roberts et al. v. State, 14 Geo., 8.

In Kelly v. Burnell, 14 Indiana, 328, the court said: “The State cannot split up one crime.and prosecute it in parts. A prosecution for any part of a single crime, bars any further prosecution based upon the whole or part of the same crime.”

State v. Johnson, 12 Ala., 840; 1 Bish. Cr. L., sec. 1061-4.

If the law be otherwise, if a man steal a dozen articles at the same time, which is but one offense, he may be indicted, tried, convicted, and punished for stealing each article. Or he may be harrassed with a dozen trials, if acquitted on the indictment, seriatim.-

The plea of former jeopardy in this case was not in good form, it failed to set out the facts appearing of record, but it seems the parties agreed to try it as a formal plea, and we have treated the case as if the plea had set out all the facts, and been demurred to in the court below, though no formal demurrer was interposed.

The judgment must be reversed, and the cause remanded to the court .below with instructions to set aside the order discharging appellee, and to hold him to plead over.to the second indictment upon the charge of stealing the same articles which he was convicted for stealing on the first indictment, and as to which a new trial was granted him.


source: Caselaw Access Project

author: Harrison, J.:

license: Public Domain

text:
    Mason vs. The State.
    Larceny: Felonious intent necessary; presumptions, etc.

    A felonious intent is an essential constituent of larceny; it is as necessary to be averred and proven as the taking and carrying away; the mere fact of the taking does not raise a presumption of guilt, or that it was to steal; the felonious intent must be shown by circumstances connected with the taking; the law presumes in favor of innocence, and the burden of proving the criminal intent is on the State.
    APPEAL from Washington Circuit Court.
    Hon. J. M. Pittman Circuit Judge.

      Attorney General for the State.
   Harrison, J.:

Brier Mason the appellant, and Mid Jones and Riley Beavers, were indicted for larceny in breaking and entering the house of Nathan Dixon, and also for grand larceny in stealing therefrom a keg of beer, the property of said Dixon.

The appellant was separately tried, and acquitted of the charge of burglary, but convicted on the second count, of petit larceny.

He filed a motion for a new trial upon the ground that the evidence did not sustain the verdict, which was refused.

Nathan Dixon, a colored man, the only witness for the State, testified, that on the second Saturday in April, 1876, the defendant, and the said Jones and Beavers, came to his house in Cincinnati, in Washington County, after eleven o’clock at night, and called for some beer. He had then gone to bed, and refused to get up and let them have it. They insisted, and told him if he did not let them have it they would steal- all he had. He did n'ot get up and they left. The witness was sleeping in the house in which he kept his beer for sale. The next morning he discovered that a window of the room in which he kept the beer had been prized up, and a keg of beer which set on the opposite side of the room, had been taken out, and was setting by the window on the porch, and about a gallon of the beer, worth about 30 cents, had been taken. He suspected the defendant and Jones and Beavers of the act but said nothing about it that day to any one except Mr. Scoy, a justice of the peace, who lived about two miles from town ; Mr. Scoy told him it was a gr’and jury case. On the following Monday morning and before he had mentioned the matter to any other person, the defendant and Jones and Beavers came to him, and told him that they had taken the beer, and offered to pay him for it. They offered $3, which he refused to received, but offered to take $30, and give them a full receipt against the grand jury. They refused to pay $30.

The witness had been selling cakes; and beer and cider as a business in Cincinnati ten years, and had been long intimately acquainted with all the said parties, and had known the defendant, who was raised there since he was ten years old, and from the time the witness came there and engaged in said business. That all had been, for years, customers of his, and the defendant ever since he commenced selling cakes, and beer and cider, and that he lived about a hundred yards from him, and Jones near by.

A felonious or criminal intent, is an essential constituent of larceny. It must always be averred in the charge, and is as necessary to be proven as the taking and carrying away. Proof of one without the other will not suffice.

The mere fact of the taking and carrying away, does not raise a presumption of guilt, or that the taking was to steal, or lueri causa, for the sake of profit or gain; but such felonious or criminal intent must be shown by circumstances connected with the taking. 1 Lead. Cr. Cases, 354 ; 1 Green. Ev., sces. 33-35-87b; 2 Ib., sec. 157; 2 Whar. Cr. Law, sec. 1769 ; Commonwealth v. McKie, 1 Gray, 61; Smith v. Shultz, 1 Scam. (2 Ill.,) 490; State v. Gresser, 19 Mo., 247.

Webster defines profit to be: 1. acquisition beyond expenditure ; excess of value received for keeping of selling over cost: emolument. 2. Accssion of good ; valuable results; useful consequences; benefit; avail and gain; as that which is gained, obtained or acquired, as profit or advantage : profits; benefits; winning; opposed to loss.

. The beer was taken on Saturday night; on Monday mornirig, before any complaint was made, the parties went to the owner and told, him they had taken the beer, and offered to pay him for it. No one had seen them take it; it was not found in their possession, and the fact that they took it was known only to themselves. Dixon kept beer for sale; they applied to him as they had often before done for some; they had been his customers for years; the defendant for ten years ever since he was ten years old ; and he was intimately acquainted with all of them; there is no proof that they did not intend to pay for it, and the only reason for not letting them have it, so far as the evidence discloses any, was that he had retired to bed, and did not wish to get up.

Where is the evidence of a design to fraudulently deprive Dixon of his property, or of an intention to take it without giving him a quid pro quo of equal value? If they intended to pay for the beer, Iaoav did they intend to defraud him, or Avhat gain to themselves did they contemplate?

The laAV presumes in favor of innocence, and of a good motive rather than a bad one, and the burden Avas not upon the defendant to sIioav that he had no criminal intent in taking the beer, but it devolved upon the State to prove that ho had.

The presumption in favor of an innocent intent was not encountered, that Ave can see,, by the slightest proof, nor the act of the parties.

.The judgment of the court beloAV is reversed and the cause: remanded to it, that the appellant may have a new trial.-' -


author: English, Ch. J.:

text:
    Allen vs. State of Arkansas.
    Officials: Suspension from office when under indictment, etc.

    The act of March 7th, 1877, providing for the suspension from office by the Circuit Court of any county or township officer, against whom a presentment or an indictment is lodged in the Circuit Court, until the charge is tried, is not unconstitutional.
    APPEAL from Clay Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Attorney General for the State.
   English, Ch. J.:

At the August Term, 1877, of the Circuit Court of Clay County, the prosecuting attorney filed a motion, in the name of the State, to suspend from office until the next term, unless a trial could be sooner had, Edward M. Allen, the sheriff and col- ■ lector of the county, because four bills of indictment, therewith shown to the court, had been regularly returned into court and filed against him by the grand jury, numbered, etc., charging him with high crimes, felonies, incompetency and misdemeanors in office.

The indictments, which were before the court on the hearing of the motion, are copied in the transcript..

The first, charges him with an assault' with intent to commit murder.

The second, with malfeasance in office, in failing to pay over $680.60, found to be due from him, as sheriff and collector, to the county on settlement.

The third, with incompelency in office, by reason of being habitually drunk.

The fourth, with voluntarily permitting a prisoner committed to his custody to escape.

The defendant seems to have heen personally in court when the motion was presented, and aided by counsel in the hearing.

The several indictments having been read to the court, and the premises considered, the court adjudged that the defendant be suspended from the further exercise of the functions and discharge of the duties of the office of sheriff and collector of the county, and from the enjoyment of the fees and emoluments thereof, until the next term of the court, unless a trial of defendant should be sooner had on each and every of said indictments.

The court also appointed a person to act as temporary sheriff and collector, until the Governor should fill the office, and required the defendant to turn over to the temporary officer, on his entering into bond, etc., all writs, process, books, papers and moneys belonging to the office.

The defendant excepted, and appealed to this court.

No bill of exceptions was taken, and no particular questions of law reserved in the court below, and no brief has been filed, for appellant here.

We suppose the appeal was taken with the view to have this court decide whether the court below had power to make the order of suspension, and whether it is regular on the face of the record.

By sec. 27, art. vii., of the Constitution : “ The Circuit' Court shall have jurisdiction, upon information, presentment or indictment, to remove any county or township officer from office, for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance, or nonfeasance in office.”

We suppose that under this clause of the Constitution, no final judgment or order of removal would be made, until after trial and conviction on information, presentment or indictment.

It is provided by the act of 9th March, 1877 : “That whenever any presentment or indictment shall be filed in any Circuit Court in this State, against any county or township officer, for incompetency, corruption,' gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such Circuit Court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried: provided, such. suspension shall not extend beyond the next term after the same shall be filed in such Circuit Court, unless the cause is continued on the application of the defendant. Sec. 1.”

By sec. 2, Upon conviction of any such officer for any such offenses, a part of the sentence of the Circuit Court having jurisdiction, shall be to remove such officer from office, etc.”

Provision is also made by the act for filling the offices on removals, and for temporary appointments on suspensions, etc. Acts of 1877, p. 64.

It was perhaps argued in the court belowr that this act is in conflict with the Constitution, because it deprives the accused of the right to exercise the functions of 'his office by suspension, before he is tried and convicted; in other words, punishes him before trial and judgment.

The same objection might be urged to all statutes which provide for arresting men accused of crimes, and depriving them of liberty, before trial and conviction. Persons charged with crimes are often denied bail, or unable to give it when allowed, and are imprisoned before trial and conviction. Public policy requires this to be done for the due enforcement of penal laws.

Offices are not regarded in this country as grants or contracts, the obligation of which cannot be impaired, but rather as trusts or agencies for the public. They are within the power of the legislature, except so far as the Constitution may forbid interference with them. Coffin v. State ex rel. Norton, 7 Ind., 157.

' When an officer is indicted for crimes and misdemeanors in office, as in this case, it might be detrimental to the public to permit him to continue to exercise the functions of the office ■ until tried and convicted; a trial might be delayed during the whole term of his office.

It cannot be supposed that a grand jury of his county would make false accusations against him through malice or prejudice.

Seeing no clear ground on which we can hold the act to be- unconstitutional, and the order of suspension appearing to be regular, the judgment must be affirmed.


author: ■ English, Ch. J.:

text:
    Reynolds, Adm’r et al. vs. West.
    1. Rleadinoj: Amendment, when not allowed.

    A party should not toe permitted to file an amended answer cenlradiotory of and inconsistent with the original answer in material matters, without showing by affidavit, that the original answer was filed under a mistake • as to the facts.
    2. Vendor’s Lien: Assignment, parties, eta.

    When a vendor, who has executed a deed to the land, assigns a note executed for the purchase money, to a firm as collateral security for a claim of smaller amount, it is competent for the surviving partner of the firm,, and the administrator of the vendor, he having died in the mean time, to join as plaintiffs in a proceeding to enforce the vendor’s lien.
    APPEAL from Qhioot Circuit Court in Chancery.
    ' Hon. Theodoric F. Sorrells, Circuit Judge.

      Reynolds, for appellant.
   ■ English, Ch. J.:

1 This bill was to enforce a vendor’s lien for purchase money, etc. The bill was filed on the chancery side of the Circuit Court of Chicot County, August 24th, T 874, by Daniel H. Reynolds, as. administrator of the estate of F. W. Smith, deceased, and John N. Ware, surviving partner of the firm of Mercer & Ware, against Nathan West.

The substance of the case made by the bill is, that on the 29th of January, 1870, F. W. Smith. sold and by deed of that date conveyed, to Nathan West, certain lands in Chicot County, which are described, for the consideration of $5000. .That for part of the purchase money, West executed to Smith a promissory note for $2294.70, payable 1st January, 1871, and bearing 10 per cent, interest from maturity, which note was credited with $214.53 on the day of its execution.

That on the 4th January, 1871, Smith delivered the said note to Mercer & Ware, of Memphis, to secure the sum of $1100 due to them, and the sum of $90, due one E. A. Summers, and took from them a receipt for said note, stating what the same was to secure the amounts, etc.; which more fully appears by the receipt, which is exhibited, and made part of the bill. That on the-day of October, 187-1, Smith endorsed said note in blank, and still left it with Mercer & Ware to secure said sums, which remained unpaid, etc.

The receipt is in substance as follows

“Eeceived, Memphis, January 4th, 1871, ofF. W. Smith, one note drawn by Nathan West, in his favor, for $2294.70 with,a credit on said note of $214.50, leaving a balance of $2080.20. The above note executed 29th January, 1870, and payable 1st January, 1871. The above note is left with us as collateral to secure his several endorsements to us for Nathan West, amount $1100; also to secure payment of his note executed to E. M. Summers’ for $90, payable one day after date, 4th January, 1871. The said note to be refunded to him, or balance thereof, after the said amounts are paid. Mercer & Ware.”

That West was residing on, and in possession of the lands described in the bill. That Mercer, of the firm of Mercer & Ware, had died since said note was deposited with them by Smith, to secure to the firm said indebtedness, leaving plaintiff, John N. Ware, his sole surviving partner. ThatSmith had also-died, and plaintiff, Daniel H. Reynolds, had been granted letters of administration on his estate.

That said note for purchase money remained unpaid, and was a lien on said lands, and that the amount secured to Mercer & Ware by deposit of the said note with them, also remained unpaid.

Prayer that the amount due on the note be declared a lien on the lands, and that defendant be decreed to pay the same in a reasonable time; and that on default of payment, the lands be sold, etc., and that out of the proceeds of sale, the amount due to plaintiff, Ware, as surviving partner of Mercer & Ware, be first paid, and the remainder, if any, be paid to plaintiff Reynolds, as administrator of Smith, etc.

On the 16th September, 1874, defendant West filed an answer to the bill. He admits that Smith sold and conveyed to him the lands, and took the note for purchase money as alleged in the bill; and that the note was credited as of its date with the sum stated in the bill. Admits that Smith deposited the note with Mercer & Ware to secure the payment of $90 to E. S. Plummer,, but denies that it was left with them to secure the payment of any sum due to them. Denies that he was ever indebted to-them in the sum of $1100, or that Smith ever endorsed for him to them for said sum.

Alleges that he had paid to Smith upon the note in suit, afc various times after the date of its execution, sums amounting to $1810, for which he was entitled to credit. That these payments-were made to Smith in good faith, and before any notice that he-had transferred the note to Mercer & Ware.

■ A bill of particulars of the alleged payments is made an exhibit, verified by affidavit in probate form.

The first item in the bill of particulars is stated thus: 1870, December — To cash paid in cotton to S. Wood for your account, $1300.” It is not material on this appeal, to state the dates and amounts of the other items in the bill of particulars.

The answer further admits that after deducting the alleged payments, the balance due upon the note is a lien on the lands as in favor of Smith or his administrators.

The answer also contains a general demurrer to the bill, and is yerified by the affidavit of defendant.

The plaintiff filed a demurrer to the answer, but no action appears to have been taken by the court upon the demurrer; and at the June Term, 1875, the plaintiffs filed a special replication to the answer.

At the January Term, 1876, the defendant asked leave to withdraw his answer and demurrer, and to file an amended answer and demurrer. The court refused to permit him to withdraw the answer and demurrer, but permitted him to file an amended answer and demurrer.

In the amended answer, defendant admits that he purchased the lands of Smith for the consideration of $5000, and received from him a deed therefor, but denies that the note in suit was given for part of the purchase money of the lands. On the contrary, alleges that at the time of the purchase, he paid Smith in full for the lands; and afterwards bought of him all his mules, tools, and some corn on the premises, and executed to him the note in suit for the agreed value of such personal property, and not for any part of the purchase money of the lands; and denies that the note is a lien on the lands in the hands of either of the plaintiffs.

That he knew nothing about the transfer of the note to Mercer & Ware, aiid was advised to deny the same, and require proof thereof.

That Smith always gave him to understand, to the time of his death, that he still owned and held said note, and with that assurance drew sundry drafts upon him, against said note in favor of Win. E. Trice and Sanford Wood, which drafts were accepted by him to the amount of about $1300 ; and for which amount judgment had been recovered against him on the law side of the court, and still existed, and for which he was entitled to credits as of the dates of the drafts.

Other payments are then alleged, corresponding with the payments claimed in the original answer, and stated in the bill of particulars made on exhibit thereto, except the first item above copied.

The amended answer also contains a demurrer to the bill, and assigns the following causes of demurrer :

“First — That Eeynolds, .as administrator of Smith, and Ware as surviving partner of Mercer & Ware, show no such privity or mutuality of interest in the cause of action, as entitles them to sue as joinfiplaintiffs, and they have improperly joined in the suit.

Second — Eeynolds, as administrator, shows no sucli possession or ownership of the note in suit as entitles him to sue.

“Third — Ware shows no right in him to bring the suit, or join as plaintiff, and no'right to the relief prayed.

“Fourth — The complaint does not state facts sufficient to constitute a cause of action.”

The amended answer was sworn to by defendant.

The plaintiff moved to strike out the amended answer, for the reason that it was inconsistent with the original answer, and the court overruled the motion.

The court sustained the demurrer to the bill contained in the amended answer for misjoinder of plaintiffs, and leave was given to amend, the plaintiffs declining to amend, the court dismissed the bill, and plaintiffs appealed.

I. The original and amended answers were both sworn to byappellee, and yet they are contradictory and inconsistent in some of their material features.

In the original answer, appellant admits that the note sued on was given for part of the purchase money of the lands, and that after deducting alleged payments, the balance was a lien upon the lands.

In the amended answer, he denies that the note was given for any part of the purchase money of the lands; and, on the contrary, alleges that he paid for the lands at the time he purchased them, and gave the note for personal property bought of Smith.

In the original answer he claims to have made payments upon the note to Smith, without notice of the transfer of the note to Mercer & Ware, amounting to $1810, and exhibits a sworn bill of particulars of alleged payments, the first item of which is for cash paid in cotton to S. Wood, on account of Smith, $1300.

In the amended answer, he claims, instead of this payment, to have accepted Smith's drafts in favor of Trice and Wood, for $1300, upon which he had been sued, and judgment recovered, but does not claim to have paid the judgment.

Story, in his Equity Pleadings, says: “ In the cdsc of answers and of pleas put in upon oath, the court will not, for obvious reasons, easily suffer an amendment to be made. In a small matter, however, the defendant may amend; but not in a material one, unless upon evidence to the court of surprise. The most common case of amending an answer is, when, through inadvertency, the defendant has mistaken a fact, or a date, then, the court will give leave to amend, to prevent the defendant from being prosecuted for perjury. In general, however, this indulgence is confined to cases of mere mistake or surprise in the answer.” Sec. 896, (8 ed.) and notes.

Again he says: In proceedings upon an answer under oath, where there is a clear mistake, the answer was, by the old practice, allowed to be taken off the file, and a new answer put in. But Lord Thurslow adopted a better course, not taking the answer off the file, but permitting a sort of supplemental answer to be filed; that course leaving the parties the full effect of what had been sworn before with the explanation given by the supplemental answer. This has been allowed even, after the cause was in the paper for hearing. But to obtain such permission, the defendant must state by affidavit, that, when he put in his answer, he did not know the circumstances upon which he replies, or any other circumstances upon which he ought to have stated the fact otherwise.” Ib. sec. 901.

By a provision, of the Code : The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” Gantt’s Dig.,sec. 4616. This is a very liberal statute' of amendments, but it was error to permit appellee to file an amended answer contradictory of, and inconsistent with, the original answer, in material matters, without any showing by affidavit (and none appears of record), that he had labored under a mistake or misapprehension in putting in the original answer.

II. The court below erred in sustaining the demurrer to the bill.

The vendor’s equitable lien upon land for purchase money is personal to him, and does not pass to an assignee by assignment of .a note given for purchase money. Shall v. Biscoe et al., 18 Ark., 142. But in this case, Smith, the vendor, deposited the note for purchase money with Mercer & Ware, and endorsed it, as a collateral security for claims they held against him, and Ware, as the surviving member of the firm, had the right to bring the bill to enforce the lien, as held in Crawley v. Riggs et et., 24 Ark., 563. But inasmuch as the note was for a larger sum than the debts secured by it, and Reynolds, as administrator of Smith, entitled to the surplus, we can see no possible objection to his being joined in the suit as an interested plaintiff, instead of being made a defendant. Gantt’s Dig., sec. 4469.

The decree must be reversed and the cause remanded to the court below with instructions to reinstate the bill and overrule the demurrer, etc.


author: Walker, J.:

text:
    Massie et al. vs. Enyart.
    1. Ehatti>ui,e:nt Conveyance: Notice to the purchaser.

    It is well established that a third party may, with a knowledge of the failing circumstances of a debtor, buy property of him upon a fair consideration actually paid, unless he was aware that the debtor intended by the-sale to defraud his creditors.
    2. --: Same. Pleading.

    Knowledge by the purchaser of the fraudulent intent, or of circumstances, sufficient to put him upon inquiry, before the payment of the purchase-money would defeat his title. And an answer denying knowledge should, extend to the time of paying the consideration.
    3. --: Circumstances indicating fraud and knowledge.

    The purchase at an inadequate price by a minor son without means, who. was at the time residing with his father, the grantor, a debtor generally known to be in failing circumstances, who had previously transferred other-property to his other children in fraud of his creditors, held to be invalid.
    APPEAL from Washington Circuit Court in Chancery.
    Hon. J. M. Pittman, Circuit Judge.

      Davidson, for appellant.

      Walker, contra.

   Walker, J.:

The appellants, plaintiffs in the court below, filed their bill against the appellees, to set aside a deed of conveyance for a tract of land executed by John Enyart to his co-defendant, Stephen B. Enyart, which plaintiffs allege to have been made in fraud of their rights as creditors of John Enyart.

The cause was submitted to the court upon bill, answer, exhibits and depositions, and a decree rendered in favor of the defendants, from which plaintiffs have appealed.

It appears from the pleading and evidence, that John Enyart was indebted to both Massie and Gollaha for money borrowed of them. The note given to Massie was for $100.00, dated 9th of March, 1873, due 1st of September thereafter, upon which, on the 16th of December, 1874, Massie obtained judgment in a Justice’s Court for the sum of $111.70, upon which execution was issued on fhe 16th of January, 1875, and placed in the hands of the constable. Enyart filed a schedule of his property which exempted all of it from execution, and the constable returned it no property found.

A transcript of the judgment, execution and return was filed in the Circuit Court clerk’s office, upon which, on the 8th of March, 1875, -execution issued directed to the sheriff and returned by him no property found.

John Enyart was also indebted to Gollaha as evidenced by two notes, one executed 30th of March, 1872, for $100.00, and the ■other of April 1st of. that year for $50.00, upon which Gollaha, ■on the 26th of April, 1875, obtained judgment for $196.87, upon which execution issued on the 14th of May, 1875, placed in the hands of the proper officer to be executed, and returned no property found; on the 19th of May, 187'5, a certified transcript of the judgment, execution and return was filed in the Circuit Court clerk’s office, entered upon the judgment docket of said court, an execution issued directed to the proper officer and returned no property found.

It was to subject a tract of 120 acres of land owned by John Enyart at and after the execution of said notes, that the bill of complaint was filed.

It is alleged that on the 1st of May, 1874, John Enyart and his wife conveyed by deed to his son, Stephen B. Enyart, for the alleged consideration of $300, the tract of land now sought by plaintiffs to be subjected to the payment of their judgments. That John Enyart, at the time of contracting with plaintiffs, was the legal owner of this and other tracts of land, and that at the time of making a conveyance to Stephen B. Enyart he was in failing circumstances; that the transfer was made without consideration and in fraud of their rights as creditors; that Stephen B. Enyart wras a minor without means to pay for the land, and took the conveyance with a knowledge of the fraudulent intent with which it was made. .

That John Enyart was in failing circumstances is abundantly shown from the evidence; besides the debt due to plaintiffs, he was indebted to Columbus Jackson, Porter Owenby and others. Owenby -states that he was unable to collect his debt of Enyart, and that to his knowledge other creditors frequently called upon him for payment. He told Owenby that he owed about $6,500, had thought of taking the bankrupt act, but declined doing so; said he would pay all the debts he now contracted, whether he paid the old debts or not; that he had given some mortgages to secure their payment and intended to give some others.

Walden, his son-in-law, deposed that as early as 1871, John Enyart conversed with him about his financial affairs, in the fall of that year proposed to let witness have fifty acres of land, wanted a deed made in? my wife’s name, said I might select the fifty acres out of a tract of 200; that my wife was his favorite, 'he would give her the land, but a gift would not stand in law when a man was in debt, and I must pay him something; the .-sum agreed upon was $250.00. I let him have a horse and a mule for that price, and he paid me $100, and took my wife’s mote for a $100, which he said she wouldneverbe called upon to pay if he had a like amount for the rest of his children.

He made a deed to my wife for the fifty acres of land, the consideration named was $100, said that consideration was as good as any other sum; the land was worth $12 per acre, said he .^sometimes thought of taking the bankrupt act, but it might not ¡be right, although others had done so with him; said if his creditors knew that he was selling off his lands to his children, they might close mortgages on him.

Witness Mitchell deposed that in 1871, Enyart told him about 'being in debt, and that those owing him had taken the benefit of ■the bankrupt act; witness asked him why he did not take it, he . said he did not think he could clear his oath by making his land ■over to his children, and then taking the benefit of the law. It was generally known in the neighborhood that Enyart was in failing circumstances.

Witness TJptigrove deposed that it was the general talk in the meighborhood that Enyart was in failing circumstances.

Witness Todd deposed that he had heard much of Enyart’s ■ circumstances, he was said to be considerably in debt, part of his land was mortgaged, h’is indebtedness was known and spoken of by his neighbors generally.

On the other hand, Enyart, in his answer, denies that the sale • of his land to his son was in fraud of the rights of his creditors, but was a bona fide sale for $300.00 cash in hand paid, which was ■ a fair consideration for the. land, but all of the other witnesses depose that the land -was worth $10 per acre, or $1200 for the itract at the time of ;the conveyance.

In his deposition Enyart deposed that his estate was worth $4,000 or $5,000 at the time the conveyance was made to his son, and that his indebtedness did not exceed $100, which is iully contradicted by other testimony.

Such is, in substance, the evidence, which we think clearly shows that John Enyart was not only in failing circumstances at the time he conveyed the land to his son Stephen, but also that he was disposing of his property in fraud of the rights of his creditors.

But in order to vitiate the sale and set it aside as fraudulent, it must also appear, that his son was apprised of the failing circumstances of his father; and of his purpose to sell his property to avoid the payment of his debts, because, if ignorant of these facts, he bought the property in good faith, and paid for it, without a knowledge of the failing circumstances of his father, and his object in conveying the property, to hinder or delay the payment of his debts, his title to the property will not be disturbed, even though it may have been the intent of the father in making the sale to defraud his creditors.

The general proposition, that one in failing circumstances may pay one creditor in preference to another, or convey to him property at its value for that purpose, is well established, and it is equally well established that a third party, not a creditor, may, with a knowledge of the failing circumstances of the debtor, buy property of him, upon a fair consideration actually paid, unless at the time of the purchase, he was aware of the fraud intended. to be practiced by the debtor upon his creditors in making it.

Thus, in the case of Christian v. Greenwood, 23 Ark., 258, in which Henley, a debtor, removed his negroes from the State of Arkansas to Louisiana, to prevent them from being sold by his creditors, sold them in Louisiana to Christian, who had no agency in moving them, but was aware of the fraudulent intent with which they were removed to Louisiana, and, after his purchase, brought them back to Arkansas. Under this state of case it was held that, although Christian paid a fair price for the negroes, he had a knowledge of the fraudulent intent of Henley and'could not hold the negroes as an innocent purchaser. Mr. Justice Fairchild, who delivered the opinion of the court, said : “If Christian bought the negroes of Henley and paid the value of them without notice of Henley’s fraud, his equity as a purchaser is equal to that of the creditor to have his debt paid out of Henley’s property, and the legal title derived from the purchase will prevail; but if the purchaser have notice of the fraud, and deal with the vendor, and, by so doing, aid him in the participation of a fraud upon his creditors; then even if a full price is paid by him, he shall assert no claim to equitable relief.”

The decision has been approved by several of our later decisions. In Galbreath & Stewart v. Cook and wife, 30 Ark., 417.

It is under this sale that we are to determine whether, conceding the fraudulent intent of John Enyart, the debtor, his son Stephen, in good faith bought the land and paid for it without notice of the failing cii’cumstances of his father and his intent to defraud his creditors.

Complainants allege that Stephen purchased the land of his father with a knowledge of his failing circumstances, and the. fraudulent intent of his father to hinder and delay his creditors in the collection of their debts; they deny all intention to defraud the creditors: say that it was a bona fide sale for the sum of $300, in hand paid, which is the value of the land.

Defendant Stephen, says he was an innocent purchaser with- • out notice of his father’s intent to defraud his creditors (the plaintiffs). But it will be seen that this denial of notice of fraud only extends to the time when the contract was entered into in May, and although it is stated in the answer that the consideration $300, was paid cash in hand. The evidence of all the witnesses, including this defendant, shows that there was no money or other consideration paid at that time, nor until the month of October thereafter. The answer therefore, that hé' was not aware of the fraudulent intent of the father, in making the conveyance at the time it was made, is not sufficient, but should have extended to the time of making the payment in October. Notice at any time before payment is sufficient to defeat the defense of innocent purchaser. Byers & McDonald, v. Fowler et al., 12 Ark., 218; Whiting & Stark v. Beebe et al., Ib., 552; Duncan v. Johnson et al., 13 Ark., 190.

• But if in fact the answer had denied notice up to the time of payment, it is very questionable whether the facts disclosed by the evidence were not sufficient to charge the defendant with notice, or at least to put him upon inquiry. It is shown that he was a minor son residing in the family of his father, without property, except perhaps a horse and cow to which no value is attached by the witnesses; shortly before that time, his .father had conveyed, by deed, part of the same tract to two of his sisters. The 120 acres of land which he claims to have purchased of his father for $300, is shown to have been worth $1200, no note was taken for the payment of the purchase money, nor was there any time agreed upon for making payment. His father was generally known and spoken of in the neighborhood as involved in debt, and, as transfers were made in the family, it is but a fair inference that they came to the knowledge of the defendant, and; taken in connection with the terms of sale of the land to the son, were sufficient to put him upon inquiry, in regard to which, the rule is, that such information as will put the party upon inquiry, is in equity notice of all facts of which an inquiry suggested by such information would have led. Kerr on Fraud, 290.

.But whether sufficient to put the purchaser upon inquiry in this case or not, his failure to deny notice of the fraudulent intent of his father, not alone at the time he purchased the land, but also up to the time he paid for it, was necessary to protect him in his purchase as an innocent purchaser, because, if he had such notice át any time before paying for the land, by doing so, he made himself a participant in the fraud.

Such being the case we must hold the deed void as against the plaintiff creditors of John Enyart.

Let the decree of the court below be reversed and set aside, the cause remanded and a decree rendered, setting aside the deed of conveyance from John Enyart and his wife to the defendant, Stephen B. Enyart, and subjecting the lands so conveyed to the payment of their debts, in accordance with the prayer of the bill.


text:
    Blevins vs. Rogers.
    Vendok’s Lien: Subrogation.

    A purchased a tract of land, executed his n.ote for che purchase money and received a bond for title. B, at the request of A, paid tbo note and the vendor executed a deed to A; at the same time and as apart of the same-transaction, A made his note to B for the sum so paid and executed a mortgage on the land to secure it: Held, that no new lien was created, there was merely a transfer of the original lien, and a change in the form, oí security.
    APPEAL from White Circuit Court.
    Hon J. N. Cypert, Circuit Judge.

      Moore, for appellant.

      Coody, contra.

   Harrison, J.:

This was an aption of ejectment by Robert J. Rogers against Henderson Blevins. Rogers recovered judgment, and Blevins appealed.

Blevins purchased the land in controversy, a quarter section, .from James Á. Neavill, and gave his note for the purchase money and took a bond for title. A balance on the note ($363.10) remaining unpaid. J. N. Cypert, upon the request of Blevins, on the 28th day of December, 1869, paid the same to Neavill, who thereupon made Blevins a deed for the land. At the same time and as part of the same transaction, Blevins gave Cypert his note for the money so paid by him, payable one day after date with 10 per cent, compound interest until paid, and executed a deed of trust, with a power of sale, on the land, to John G. Holland, to secure its payment. Blevins, when the deed of trust was given, was a resident of the State, and a married man and the land was his homestead. The note to Cypert, not being paid, Holland, the trustee, on the 31st day of July, 1876, in pursuance of the power in the deed sold the land at public auction, for cash to the plaintiff, at the price of $558.70, and executed a deed for the same to him.

The appellant contends that the deed of trust was not á security for the purchase money of the land, that the purchase money Avas paid Avith the money advanced for that purpose by Cypert, Avhen the note given for it Avas taken un; and that it AAras only a security for money loaned, and as such vóid under the provision of sec. 2 of art. xii of the Constitution of 1868.

It cannot be questioned that if Cypert, when he advanced the money for BleAÚns, had, instead of having Neavill to make the title, and Blevins to gi\’e him the note and execute the deed of trust, taken an assignment of BleAÚns’ note for the purchase money, Neavill’s lien Avould have passed with it to him: and he got nothing moie by the deed of trust. No new lien or incumbrance was created: there was merely a transfer of the old, and a change in the form of the security.

,, At no instant of time before the execution of the deed of trust did Blevins, hold the land free from the lien. “A transitory seizin for an instant” says Chancellor Kent, “when the same act that gives the estate to the husband conveys it out of him, as in the case of a conusee of a fine, is not sufficient to give the wife dower. The land must rest in the husband beneficially for his own use, and then if it be so vested, but for a moment, provided the husband be not the mere conduit for passing it, the right of dower attaches. Nor is the husband's seizin sufficient when the husband takes a conveyance in fee, and at the same time mort gage the land back to the grantor, or to a third person to secure the purchase money in whole or in part.” 4 Kent Com., 37; Mayburry v. Brien, 15 Pet., 35; Holbrook v. Finney, 4 Mass., 565; Clark v. Munroe, 14 Ib., 350.

In the case Lassen v. Vance, 8 Cal., 271, the defendant purchased the lot on which he and his wife had been for some time residing, and on the day of the purchase borrowed from the plaintiff the money with which he paid for it, and executed to him a note, and a mortgage upon the lot, and at the same time taking a conveyance to himself, the Supreme Court of California held, that the defendant had no homestead right against the mortgage and say: “The money of the plaintiff paid for the lot, and it certainly would be an exceedingly hard rule of law that would defeat his mortgage upon the very lot purchased with the money furnished by himself.” In Illinois, when a party owning and residing upon a homestead, purchased and obtained a conveyance of land adjoining thereto, to be used as a part of the homestead, and procured the purchase money of-the land so added'to the homestead, to be paid by a third person as a loan to the purchaser, the Supreme Court of that State held, that the money so paid by the lender was purchase money, and the owner of the land so acquired had no homestead right against the person lending the money. Austin v. Underwood, 37 Ill., 438; and also see Stevens v. Stevens, 10 Allen, 146.

It is clear to our mind, that Blevins’ debt for the balance of the purchase money was not extinguished, but was transferred in equity, together with its lien, as was the obvious intention of the parties, to Cypert, who paid the money for him.

Judgment affirmed.


author: 'Engeisi-i, Ci-x. J.:

text:
    Parham vs. McMurray.
    1. Execution : Levy, waiver of exemption, etc.

    When the sheriff levies execution on personal property and leaves the same in the possession of the defendant, the latter becomes his bailee; and neither the fact of his retaining possession, or purchasing the property, either directly or through others, at the execution sale, would amount to a waiver of his right to claim the property as exempt.
    2. ---: Measure of damages for illegal sale.

    The measure of damages in an action against a sheriff for the illegal sale of property to which the defendant is entitled as exempt, when the same is not taken out of his possession, and is bid in by or for the defendant, is the amount he is required to pay on the biu; and the fact that the same is entered as a credit on the judgment, will not affect the measure of damages.
    3. Exemption: Duty of appraisers under the statute.

    The duty of persons appointed to appraise property scheduled as exempt, is merely to ascertain the value of the property scheduled. They have no authority to inquire as to whether it js subject to execution, and if they undertake to do so and report adversely to the exemption, it confers no power on the clerk to revoke a supersedeas previously issued; and the revocation by the clerk under such circumstances is no justification to an officer in selling the scheduled property under the execution.

      4.--: Exception under Constitution of 1868 construed.

    The exception in favor of laborers contained in sect. 3, art. xii., of the Constition of 186S, prescribing exemptions, related to labor upon the homestead, and not to personal property.
    APPEAL from St. Francis Circuit Court.
    Hon. J. N. Cypebt, Circuit Judge.

      Howes for appellant.
   'Engeisi-i, Ci-x. J.:

Hugh McMurray sued John Parham, Sheriff of St. Francis County, in trespass, for selling personal property under execution, which he had scheduled and claimed to be exempt from sale under the Constitution of 1868.

Parham, in his answer, admitted that he had levied upon and sold the property described in the complaint, but justified on the ground that the clerk of the court who issued the execution, had revoked the supersedeas granted on the filing of plaintiff’s schedule, and left the execution in force in his hands as sheriff.

On the trial some of the facts were agreed on by the parties, and evidence introduced as to the value of the property, the damages of plaintiff, etc., and the jury returned the following verdict:

“ We, the jury, find the following as the facts in this case: In and during the year 1871 and 1872, one John O’Brien performed work and labor for the plaintiff, Hugh McMurray, as a common laborer. In 1872, O’Brien sued McMurray before a justice of the peace upon an account for such work and labor; in this suit he claimed no special lien on any particular property ; the justice rendered judgment in favor of O’Brien against plaintiff on such account for the sum of $250. Execution issued from the justice, and was returned nulla bona. O’Brien after-wards filed a transcript of judgment in the office of the clerk of the Circuit Court of St. Francis County, and by said clerk it was entered on the judgment docket of said court. Afterwards execution issued from said court directed to the defendant, as sheriff of said county, who levied the same upon the property described in the complaint. Plaintiff filed a schedule in the office of the clerk of said Circuit Court, claiming said property as exempt from execution, under the provisions of sec. 2635, Gantt’s Digest; the clerk then issued a supersedeas of the execution. O’Brien applied to the clerk for the appointment of appraisers under the provisions of the same act; appraisers were appointed, who did not find the value of the property, but found as a fact, and so reported to said clerk, 'Thatthe judgment being for work and labor performed by O’Brien for McMurray, that no property was exempt from execution upon said judgment;’ the clerk then issued and delivered to the defendant an order revoking the supersedeas, and defendant as such sheriff proceeded to sell and did sell the property in the complaint described, by virtue of such execution; the property was purchased by H. W. Winthrop. We further find, that at all the times mentioned, plaintiff was a citizen and resident of St. Francis County, was the head of a family, and that his whole personal property did not amount to the value of $2000. We further find that the property so seized and sold was of the value of $480. If upon the above facts, the court should be of the opinion that the law is with the plaintiff, we find for the plaintiff, and assess damages at $240. If the court is of the opinion that the law is with the defendant, wre find for the defendant.”

Whereupon the court found the law of the case for plaintiff, and rendered judgment in his favor against defendant for $240.

The defendant moved for a new trial on the ground:

First — The court erred in instructing the jury, etc.

Second — The court erred in finding the law for the plaintiff upon the special verdict of the jury.

Third — The verdict of the jury is contrary to law.

Fourth — The verdict is contrary to the evidence, aud the damages assessed are excessive.

The court overruled the motion for a new trial, and the defendant took a bill of exceptions and appealed.

I. The following is the only instruction given by the court to the jury:

“If the jury find from the evidence that defendant Parham, levied upon the goods of plaintiff, then, noth withstanding ho may have loft them in the hands and possession of plaintiff" (plaintiff in that case being simply the bailee of said Parham), the measure of damages will be the value of the goods as proven herein ; unless the jury also find that plaintiff procured them to> be purchased for himself at the sale and redeemed the same from the purchaser or purchasers at the price for which they sold at said sale, in which case the jury will find as the measure of damages the amount the goods brought at such sale.”

If appellant had done nothing more than levy on the goods, and leave them in the hands of appellee as his bailee, the)first clause of this instruction would have been wrong, because in such case the measure of appellee’s damages would not have been the-value of the goods.

But the instruction taken as an entire proposition, and considered in connection with the pleading and evidence before the-court, is not subject to such criticism.

The complaint alleges that appellant seized and sold the goods; and he admits in his answer, that he did levy upon, and sell them, but justifies under the process. Under the issue so made, appellee need have proven nothing but the value of the goods, the levy and sale being admitted. Norris et al. v. Norton, 19 Ark., 319.

On the trial, appellee, on his own examination in chief, gave-evidence conducing to prove that the goods wore of the value found by the jury in their special verdict. Upon cross-examination he testified that appellant did not take any of the property levied on, out of his possession, except the horse mentioned in the complaint, which was very soon returned to him, but that he agreed with the appellant, to turn the property over to him on demand. It was no doubt upon this feature of the evidence-that the court charged the jury, in effect, that from the time of' the levy until the sale, appellee was the bailee of appellant, and there was nothing wrong in this. Had appellant demanded a delivery bond, and had appellee given it, this would have been no waiver of his right to claim the property levied e.n as exempt from execution. Atkinson et al. v. Gatcher, 23 Ark., 101. But instead of demanding a delivery bond, appellant thought proper to entrust the property to the custody of appellee until the day of sale; and if no sale had been made, the measure of damages, of appellee would not have been, as above remarked, the value-of the goods.

Appellee further testified on his cross-examination, that the-whole of the goods levied on brought at the sale the sum of $240,. and that the purchasers did not take the property out of his. possession; and it may be assumed, from testimony of other-witnesses of appellant, conducing to prove the fact, that appellee arranged with bidders to buy in the property for him, and to. permit him to redeem it, by refunding to them the amount bid by them, and paid to appellant; and it was upon this feature of' the evidence that the court charged the jury, in effect, that if they believed such to have been the case, the measure of appellee’s damages would not be the value of the goods, but the amount which they brought at the sale, and Avhich appellee had to refund to the bidders, to protect himself in the possession of the goods.

The case may be put in a still stronger view for appellant. It may be supposed that appellee bid directly for the goods at the sale, and paid to the appellant $240, the amount of his bids ; was this a waiver of his right of exemption ? We think not.

The property described in the complaint, and proven to have been levied on and sold, was one horse, five head of cows and calves, five yearlings, four sheep, five head of stock hogs, and twenty-two bee hives, which the jury found from the evidence to be of the value of $480. • Appellee had scheduled this property, and claimed it to be exempt from - execution under the Constitution of 1868, and exemption laws then in force. He had done all the law required of him to prevent its sale, but appellant, under a misapprehension, no doubt, of his official duty in the premises, persisted in selling the property. From its character and usefulness in domestic life, it may have been a very great inconvenience to appellee and his family to be deprived of its use, and to have no remedy but an action against appellant for damages, or action against a number of purchasers of the property. Under such circumstances he thought proper, it may be assumed, to bid in the property at the sale, and pay appellant the money on his bids, to prevent being deprived of the use of the property by permitting others to purchase and remove it.

On principle, Crump et al. v. Starke, 23 Ark., 131, is in point do show that by such bidding and purchase of the property, appellee was not estopped from setting up his right of exemption.

Nor does the fact that the amount bid by him may have gone to pay his debt to O’Brien, the plaintiff in the execution, lessen his right of recovery against appellant for the wrongful sale. O’Brien had no legal right to make his debt out of exempted property. Appellant was forced to pay $240 to protect himself .against the consequences of an illegal sale, which was less than the value of the property as found by the jury and wc think think the court did not err in instructing the jury that he could recover of appellant damages to that extent in this action.

II. Did the court below err in finding the law of the case for appellee on the special verdict of the jury ?

Sec. 1, art. xii, Constitution of 1868, exempted the personal property of any resident of the State, to the value of $2000, to be selected by such resident, from sale on execution, etc., issued for the collection of any debts contracted after its adoption.

It was the duty of the appraisers to ascertain the value of the property scheduled by appellee, in order that it might appear whether it was in excess of the sum limited by the Constitution. It was not their province to determine whether the property scheduled.was subject to, or exempt from sale under O’Brien’s judgment. Their report that the judgment being for work and labor, no property was exempt from execution upon it, was not such a report as they were required by law to make; it was a mere nullity; and the clerk had no authority to revoke the supersedeas upon such report; nor did his revoking the supersedeas furnish any justification to appellant to sell the scheduled and exempted property under the execution. See Gantt’s Dig., secs. 2635-42.

O’Brien’s judgment did not purport on its face to be a lien on any personal property; the debt was for common labor, and the judgment an ordinary one for money. The scheduled property was not the product of his labor, nor was it real estate improved by his labor. See Gantt’s Digest, title Laborer’s Lien, p. 74. Taylor, Radford & Co. v. Hathaway, 29 Ark., 597.

It is insisted by the learned counsel for appellant that under the provision of the Constitution of 1868, no property is exempt from sale on execution issued upon a judgment recovered upon a debt for labor, and this argument is based upon a clause in sec. 3 of the Article on Exemptions, which will be copied below.

Sec. 1, relates to the exemption of personal property; and provides, as above shown, for the exemption of such property to the value of $2000 from sale on execution, etc., for the collection of any debt contracted after the adoption of the Constitution. In this section no exception is made in favor of debts contracted for labor.

Sec. 2, declare that the homestead of a married man, or head of a family, shall not be incumbered in any manner, etc., except, for taxes, laborers’ and mechanics’ liens, and securities for the purchase money thereof.

Sec. 3, defines the homestead and declares that it shall be exempt from sale on execution, etc., but no property shall be exempt from sale for taxes, for the payment of obligations con- ' tracted for the purchase of said premises, for the erection of improvements thereon, or for labor performed for the owner thereof; Provided, that the benefit of the homestead herein provided for shall not be extended to persons who may be indebted for dues to the State, county, township, school or other trust funds.”

It is manifest that the exception in favor of the laborer, like that in favor of the mechanic, in the homestead sections, relates-to labor upon the homestead, and has no application to personal property.

It is further insisted for appellant that appellee should have appealed from the decisions of the appraisers under sec. 2642, Gantt’s Digest.

It was the duty of the appraisers, appointed on the application of O’Brien, to appraise the property scheduled, and to decide whether its value was above or below the constitutional limit. Instead of discharging this duty, they undertook to decide, as a matter of law, and which they had no legal power to .decide, that the judgment being for labor, no property was exempt from sale under execution upon the judgment. This decision amounted in law to nothing; and if O’Brien wished the benefit of the appraisement provided for by the statute, it was incumbent on him to take the proper steps to compel the appraisers to discharge the duties imposed on them by law. The appellee was not bound to move in the matter. Pie had selected and scheduled the property which he claimed as exempt from sale under the execution, and nothing more was required of him.

The appraisers having been appointed by the clerk of the Circuit Court, the statute undertakes to give either party an appeal to the Supreme Court from their decision — that is, if the scheduled property be over-valued, the defendant in the execution may appeal, and if under-valued the plaintiff may appeal. To say nothing of the novelty of an appeal to the Supreme Court from the. decision of a board of appraisers exercising no judicial, but merely ministerial power, it is sufficient to say in this case that they made no appraisement at all, and there was no decision within the meaning of the statute, to appeal from.

The clerk is required to issue the supersedeas on the filing of the schedule. He had no power to revoke it on such a report as that made by the appraisers, as above stated.

Sec. 2638, Gantt’s Digest, provides that: “ If the decision (of the appraisers) shall be that the property described exceeds in value the amount exempted by the Constitution, then * * * the clerk shall revoke the supersedeas so far as concerns such items of the property described as the appraisers may designate ■as in excess of the amount of exemption by the Constitution provided for.”

The sheriff was bound to know the law in the premises, and cannot protect himself by a void decision of the appraisers, and an illegal act of the clerk in revoking the supersedeas.

There is nothing in the other grounds of the motion for a new trial, and the judgment of the court below must be affirmed.


author: English, Cb. J.:

text:
    Askew, Adm’r., vs. Columbia County.
    Taxes: Duty of collector to pay over county revenue in kind; his liability how discharged.

    Under the provisions of sec. 18, Miller’s Digest of the Revenue laws, it is the duty of the collectors to pay into the county treasury the funds collected by them as county revenue, in hind, and, upon failure to do so, they are subject to the penalties imposed by that section. But where a collector collected a bridge tax in currency and paid it to the treasurer in county warrants, his official liability therefor ceased, because the law makes the warrants a legal tender- by the collector in payment of his indebtedness on account of the tax.
    APPEAL from Columbia Circuit Court.
    Hon. J. K. Young, Circuit Judge.

      Clark & Williams, for appellants.

      Smoote & Kelso, contra.

   English, Cb. J.:

In the year 1873, Claiborn S. Barron, Sheriff' and Collector of Columbia County, filed an account for settlement with the Board of Supervisors of the County, in which he charged himself with “this amount bridge taxes per assessment for 1872, $1359.84,” and some small items not material to be stated, and credited himself with sundry-small items not controverted, and with “Treasurer’s receipt this day filed $1,252.27,” which balanced his account.

James A. Jordan and Andrew Williams, representing themselves to be the holders of a warrant for $432, drawn on the Treasurer, 23d Eecember, 1871, for bridge purposes for the year 1872, filed exceptions to the account of Barron on the grounds, in substance, that he had collected the whole of the tax assessed for bridge purposes for the year 1872, in United States Currency, and paid over to the County Treasurer the above sum of $1,252 (for which he obtained his receipt) in bridge scrip, when, by law, he should have paid it in United States Currency.

The Board of Supervisors rendered judgment against Barron, and he appealed to the Circuit Court.

After the appeal, and before the case was tried in the Circuit Court, Barron died, and Benj. F. Askew, his admistrator, was substituted as defendant.

The cause was tried de novo before the court sitting as a jury, at the April Term, 1876. After reading the record of the proceedings in the matter before the Board of Supervisors, the plaintiff (Columbia County) introduced Thomas J. Balger as a witness, who testified that Claiborn S. Barron was sheriff and collector of said county for the year 1872, and he was his assistant, and knew that Barron collected all of the bridge tax for that year in United States Currency but about $25.

Plaintiff also introduced W. B. McNeill as a witness, who testified that he sold Barron about $300 in bridge scrip or bridge warrants on Columbia County for that year, which was then worth from 75c to 80c on the dollar.

To all of the above testimony defendant objected as irrelevant and illegal, and the court overruled the objection.

The defendant then, after proving the hand-writing of Booth, the county treasurer, introduced the following receipt:

“Received, Magnolia, Arkansas, June 19th, 1873, of C. S. Barron, collector for the County of Columbia, in the State of Arkansas, the full sum of one thousand two hundred and fifty-two dollars and twenty-seven cents ($1,252.27), in bridge warrants in full for bridge tax for the year 1872.

Dee R. Booth,

Treasurer of Columbia County, Ark.”

The above being all of the evidence introduced by the parties, the court found and rendered judgment as follows :

“The court finds from the evidence that Claiborn S. Barron, deceased, was sheriff and collector of the revenues of the County of Columbia for the year 1872, and, as such collector, he collected for said county for said year on account of bridge tax the sum of $1,227.27 in United States Currency, and attempted to discharge said amount by paying the same into the county treasury in bridge warrants; and that he, as such collector, is entitled, on account of money paid to officers for fees, to a credit of the •sum of $342.21, and that the residue of taxes collected on account of said bridge funds for the year 1872, amount to the sum ■of $885.06.

“And the court is of opinion, and finds and declares the law to be, upon the foregoing findings of facts, that said Claiborn'S. Barron, as collector, as aforesaid, ought to have paid said sum of $885.06 into the county treasury of said county in United States Currency to the credit of bridge funds of said county; and that Benjamin F. Askew, as his administrator, ought now to do so, and have return of said sum of $885.06 in bridge scrip or warrants.

“It is therefore considered and ordered by the court, that Columbia County, etc., recover of and from Benjamin F. Askew, as administrator of said Claiborn S. Barron, deceased, the said sum ■of $885.06 on account of bridge funds of said county in United States Currency, and that he, as such administrator, be, and he is hereby ordered to pay into said treasury of the county the said sum of $885.06 in United States Currency to the credit of bridge funds thereof, and that he, as such admist-rator, be and he is hereby authorized and permitted to withdraw, and the treasurer of the county is directed to pay to him, as such administrator, the sum of $885.06 out of any bridge warrants remaining in said treasury.”

Judgment is also in favor of the county for costs.

Askew filed a motion for a new trial, which was overruled, ■and he took a bill of exceptions and appealed to this court.

In State, use of Chicot County, v. Rives et al., 12 Ark. (7 Eng.), 721, the collector of Chicot County was sued on his bond for a sum due to the county on settlement, and he pleaded a tender of county warrants. Held, that county warrants issued under a statute providing for their issuance, and making them receivable in payment of county taxes, debts, etc., accruing to the county, were a legal tender, by the collector, in payment of the amount due from him to the county for revenue collected, such tender not falling within the provisions of the Constitution declaring that nothing but gold and silver coin shall be made a legal tender, etc., and overruling Gaines v. Rives, 3 Eng., 220.

This decision, which has never been overruled, is relied on by appellant to show that his intestate had the legal right to pay to the treasurer of Columbia County, in county warrants, the amount due from him to the county, on account of the bridge tax collected by him for the year 1872, and that he was not legally obliged to pay the same in United States Currency, though it was proven that he collected the tax in such currency.

On the other hand, it is insisted for appellee that inasmuch as the tax was collected in currency, the collector was obliged to pay it over in currency, and could not discharge himself by paying it in county warrants.

That the bridge tax, being for part of the ordinary expenses, of the county, could have been paid, by the tax-payers, in county warrants under the revenue laws in force in 1872, does not admit of doubt. Acts of 1871, p. 58. Gantt’s Digest, sec. 610.

But the question recurs, if the collector collected the tax in currency, could he discharge himself otherwise than by paying it over to the county treasurer in currency?

Counsel for appellee insist that he could not, and cite sec. 18, of Miller’s Digest of the Revenue Laws, which is the same as sec. 5168 of Gantt’s Digest, which is a part of the Act of March 5th, 1867.

The whole of the Act, which we divide into clauses, is as follows :

(Clause 1.) “The collectors of the county revenue of this State shall pay into the county treasury, in kind, all money collected by them, whether specie, United States paper currency, warrants or scrip, as authorized by law to be received; (Clause 2) each collector, sheriff or other officer, collecting county revenue, shall pay over to the county treasury, warrants and county scrip at the price and discount at which he shall have received them as county revenue; (Clause 3) each collector, sheriff or other officer shall make oath before the clerk of the County Court, at what discount he shall have received said warrants and scrip; (Clause 4) and each and every collector, sheriff or other officer, who shall fail to pay over to the county treasury, all money received, as provided by this Act, shall forfeit to the county the sum of $100 for each violation, to be recovered upon conviction under indictment, and shall not be eligible to hold any office of trust in the State.” Acts of 1866-7, p. 201.

Sec. 5168 of Gantt’s Digest, is made up of the first and last clauses of the above Act, the second and third clauses being omitted.

By sec. 22 of “An Act to amend the Revenue Laws of the • State,” approved March 5th, 1875 (Acts of 1874-5, p. 222), it was made the duty of the Auditor of the State to digest the revenue law as contained in Gantt’s Digest with that act; and hence the Auditor carried into his (Miller’s) Digest as sec. 118, sec. 5168 of Gantt’s Digest, made up of parts of the Act of 5th March, 1867, as above indicated.

The second and third clauses of the Act of March 5th, 1867, were omitted by the digester (Mr. Gantt) because, perhaps, as written, they are absurd. The substance of the second clause is that the collector, collecting county revenue, shall pay over to the county treasury, warrants and county scrip at the price and discount at which he shall have received them as county revenue ; and the third clause, in substance, requires him to make an oath before the clerk, at what discount he shall have received said warrants and scrip.

Now in all cases where warrants and scrip are legally receivable in payment of taxes, they are receivable at par, and the collector is obliged so to receive them, and it is absurd to assume that he could exact them, or that the tax-payers would pay them in at a discount.

We may suppose that it was the intention of the legislature in passing the clauses of the Act of 5th of March, 1867, which have been omitted in the Digest, to prevent the collectors from speculating with the public revenue by purchasing up warrants and scrip at a discount, and paying them over in their settlements at par/ and to require them to give the public, whose agents and trustees they are, the benefit of profits so made. But if such was the intention of the. legislature it was so badly expressed as not to be manifested by the clauses of the act in quession, and hence they have proved to be of no practical benefit, and been treated as nugatory.

Whether Barron purchased at a discount any of the warrants which he paid over to the treasurer on account of the bridge tax, does not appear from the evidence.

A Avitness (McNeill) testified that he sold Barron about $300 in bridge Avarrants, which were then worth from 75c to 80c on the dollar but he did not state that Barron paid to the treasurer the warrants which he, sold him; nor was it proven that he purchased the warrants which he paid to the treasurer at a discount.

The first clause of the Act of 5th of March, 1867, which has been carried into the Digest, remains to be construed:

“The collectors of the county revenue, etc., shall-pay into the county treasury, in kind, all money collected by them, whether specie, United States paper currency, warrants or scrip, as authorized by law to be received.

It is insisted by counsel for appellant that this clause means simply that where the law requires a tax to be collected in specie or United States Currency, the collector must pay it over in such money, and when a tax may, by law, be collected in warrants or scrip, the collector must pay over such warrants or scrip as it may legally be collected in.

Such, in one view, may be the legal effect of the clause, but, looking at the whole act, we are of the opinion that it was the intention of the legislature to require the collectors to pay over in money any tax collected by them from the tax-payers in money, that the public and not the collectors might have the benefit of such money.

So we think that Barron having collected the bridge tax of ' Columbia County for the year 1872, in currency, should have paid it over to the treasurer in currency.

But failing to do so, what was the penalty ? The last clause of the act answers the question. He was subject, on indictment, to pay a fine of $ 100, etc.

But, nevertheless, we take it to be law that whatever tax may be collected in county warrants, may be paid to the county treasurer in like warrants by the collector, or his sureties, so as to discharge him or them from liability upon his bond therefor, as held in State, use etc. v. Rives, supra. Because the' same law which makes the warrants receivable in payment of the tax, makes them a legal tender, by the collector, in payment of the amount of his indebtedness to the county incurred on account of the tax.

When Barron paid to the treasurer, in bridge warrants, the amount of the bridge tax, and took his receipt therefor, the debt was thereby legally discharged as a debt due to the county, though he may have acted in bad faith in availing himself of warrants to pay the debt, when he had collected money of the tax payers, and may have subjected himself to penalties therefor under the last clause of the Act 5th March, 1867.

Suppose he had not paid the warrants to the treasurer at all, but had filed his settlement with the Board of Supervisors showing himself to be indebted to the county in the sum of $885.06, or any other sum, on account of bridge tax, can it be doubted that he or his sureties, or his administrator, could not have paid that sum to the county in her own warrants, due, and, upon their face, payable in money?

The Circuit Court ordered appellant to pay to the county ■ treasurer $885.06, in United States Currency, without any showing, and none certainly appears in the record before us, that $1, had come into his hands as administrator of Barron. If no appeal had been taken, how was this judgment to be. enforced ? Not certainly by execution, for none could be issued upon the judgment against the administrator. Yonley v. Lavender, 27 Ark., 252.

The judgment would have to be certified to the Probate Court as a debt ascertained to be due from the estate to the county, and paid under the order of the Probate Court. Gist, adm’r., v. Gans, 30 Ark., 286.

The judgment is reversed, and the cause remanded with instructions to the court below to grant appellant a new trial.


text:
    Galbreath et al. vs. Mitchell.
    1. Circuit Court: Special terms.

    The Circuit Court may, under the statute, provide for a special adjourned term to be held after the time for holding the next regular term in another county of the circuit.
    2. Amendment of process.

    Where, iii an action of forcible detainer, the names of the parties are properly set out in the complaint and bond, but wholly omitted from the writ, the plaintiff, pending a motion to quash the writ, should be permitted to amend.
    APPEAL from Desha Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Pindalls, for appellant.

      Weatherford, contra.

   Walker, J.:

Galbreath and’Thomas H. Allen & Co., brought an action of forcible detainer in the Desha Circuit Court, against Mitchell and Wilcox, for several tracts of land situate in said county, of which they allege they arc the legal owners and are entitled to the immediate possession; that defendants forcibly and unlawfully entered into possession of said lands and unlawfully detain the same after demand made therefor; That defendants are not entitled to the possession of any part of the. land, and that said lands are worth $20,000.

The declaration was filed and a writ issued on the 22d March,. 1875, directed to the sheriff to be executed, and after the execution of a statute bond, was executed by delivering to the plaintiffs • the land delivered in the writ, according to the command thereof..

At the September Term of said Court, 1875, the ease was, without trial, adjourned to a special adjourned term of said court to be held on the 11th day of January, 1876, at the court house in said county; at which term the defendants appeared and. moved the court to quash the writ of possession, because, the writ did not disclose the names of the parties, nor the cause in which it Avas issued, and thereupon, and before the motion to quash was considered or disposed of by the court, the plaintiffs moved to amend the writ.

The motions Avere considered together, and the court upon consideration sustained the motion to quash the writ, and granted an order for the restitution of the property ; from Avhi'ch plaintiffs appealed to this court.

Counsel for plaintiffs rely upon two grounds for reversing the decision of the court beloAV.

First — That the special adjournment.of the court to January, 1876,was Avithout authority of laAV, and for this reason the judgment was void.

Second — That the court erred in refusing to permit plaintiffs b amend the writ of possession, and in quashing the same, and ordering a restitution of the property.

The first ground of objection seems not to have been presented t-D the court beloAV, but is for the first time raised in this court.

The regular terms of the court Avere the first Mondays of March and September. Sec. 1201, Gantt’s Digest, provides that the court shall continue in session until the business therein pending is disposed of, or, until it becomes necessary to adjourn the court in order to reach the court next to be liolden in his Circuit.

Sec. 1164, provides, that a special adjourned term of any court may be held in continuance of the regular term, upon its being so ordered by the court.or judge in term time, and entered by the clerk on the records of the court.

It is contended by counsel, that sec. 1201, is a limitation upon .sec. 1164, so far as to prohibit the court from adjourning beyond the time fixed for holding the next regular term in some other county.

Such we think is not the case, but that sec. 1164, without reference to the time fixed for holding the court, or, of their continuance in session, Avas intenedd to confer power upon the court in its discretion, to fix a time for holding a special term at any time between the adjournment of the term then being held, and the next regular term of the same court. ,

It has not escaped the observation of the practitioner, that temporary delays for the lack of witnesses, or other cause may prevent a trial at a regular term, which it is important to the parties litigant, should be disposed of before the next regular term of the court, and it Avas to obviate this inconvenience no doubt, that a discretionary power Avas given to the court, to fix a special term, at some early day, Avhen the case could be heard and disposed of. .

The objection to the sufficiency of the Avrit (admitting it ti have been defective) was the proper subject of amendment.

The names of the plaintiffs and defendants Avere set out it length in the declaration, and the bond executed by the plaintiffs, but the clerk who issued the Avrit, instead of setting them out it length, commanded the sheriff to deliver the “plaintiffs” posses- ■ sion of the lands (describing them) and that he summon the “defendants” to appear and answer the complaint of the “plaintiffs/

The nature of the complaint and the names of the parties having been fully set forth in the complaint, the court should have directed the amendment to be made, the propriety of doing Avhich was evident.

The motion to amend being before the court for consideration at the time the motion to quash was, it was the duty of the court to permit the amendment, and thereby supersede the motion to quash by curing the alleged defect in the writ.

Long before the adoption of the Code practice, as early as the decision in the case of Mitchell v. Conley, 13 Ark., 414 ; it was held by this court proper to permit clerical omissions in writs to be amended, and the rule has since been adhered to, even in cases where the seal of the court, or name of the clerk was omit ted.

The rule of practice has beeu recognized and adopted in our Code practice, sec. 4616 Gantt’s Digest.

It is true that the question of amendments is addressed to the sound descretion of the court to which application is made, but there must iu all cases be something upon which the discretion is to be exercised, something which, if permitted to be done, would prejudice the rights of the parties; but in this case, nothing of the kind could arise; on the contrary, the amendment was one which could neither cause-surprise, or delay, but would tend to hasten the determination of the case.

Under the state of case presented it was error in the court to refuse the amendment, and to quash the writ.

Let the judgment he reversed and set aside, and the cause remanded, with instructions to permit the writ to be amended, and proceed with the case to hearing according to law and the opinion herein.