author: Battle, Sp. J.

text:
    State, use Oliver, Adm’r, vs. Rottaken, Adm’r, et al.
    1. Administrator de bonis non: His right on bond of predecessor.

    An administrator de bonis non has no right to sue the representative or sureties of a former administrator or executor, at law, or in equity, for property of his intestate, lost, wasted, mismanaged or converted by him. Only creditors, legatees, distributees, or others interested in the estate, can maintain such action.
    2. Administrator Pctedio : Rights of, same as other administrator.

    A public administrator lias no more or greater power, authority or rights, than other administrators.
    3. Administrator : Action on bond of deceased for waste, etc.

    No action can be maintained on the bond of a deceased administrator for assets of his intestate on hand and capable of identification at his death, nor for waste and mismanagement thereof after his death.
    4. Amendment: When not made.

    Where a plaintiff shows in his complaint that he has no cause of action, the court can net amend it by making others plaintiffs who have.
    APPEAL from Pulaski Chancery Court.
    Hon. J. R. Eakin, Chancellor.
    Before Mr. Justice Harrison, And 1-Ion. Jesse Turner and Hon. B. B. Battle, 8p. JJ., — Mr. Chief Justice Engl rsn and Mr. Justice Eakin being disqualified.

      Brown, for appellant.

      Bose, contra.

   Battle, Sp. J.

This is an action in chancery, brought by the state of Arkansas for the use and benefit of "William S. Oliver, as public administrator of the estate of David Skelton, deceased, against II. H. Rottaken, as public administrator of the estate of John T. Trigg, deceased, and Charles Ay]iff and dlaiborne "Watkins, as the residuary divisee of the estate of George C. Watkins, deceased.

The appellant, in her complaint, states that John T. Trigg was duly appointed administrator of the estate of David Skelton, deceased, in the year 1855, by the probate court of Pulaski county; that Trigg qualified as such administrator, and executed his bond to the state of Arkansas, in the sum of nine thousand dollars, with George C. Watkins and Charles Ayliff as sureties thereon, and conditioned hs required by law; and that said bond was approved as good and sufficient.

That on the twenty-eighth day of October, 1858, Trigg filed his account current, showing a balance of fifteen hundred and seventy-one dollars and twenty-five cents due the estate of Skelton; and that this account current was approved and confirmed by the probate court, at the April term thereof, in the year 1859.

That Trigg died in the year 1868, without making a final settlement or paying the balance aforesaid, or any part thereof; that Thomas Eletcher, public administrator of Pulaski county, administered on the estate of Trigg, and as such public administrator filed a partial settlement of Trigg as administrator of Skelton, showing the same balance due the estate of Skelton as shown by Trigg; that this settlement was confirmed by the probate court, at the April term thereof, in the year 1868, and Eletcher, as such administrator, was, at his request, discharged.

That William S. Oliver was appointed administrator of Skelton, by the probate court, on the twenty-fourth day of October, 1871.

That George C. Watkins died in the year 1873, leaving a last will and testament whereby he bequeathed and devised the whole of his estate to Claiborne Watkins, charged with the payment of his debts and certain legacies, and appointed Claiborne Watkins executor thereof; that said will was proven, and admitted to probate by the pro.bate court of Pulaski county, in the manner prescribed by law ; and that Claiborne Watkins qualified as such executor, and took upon himself the execution-of the will, and paid all of said debts exhibited to him, properly authenticated, within two years after the date of his letters testamentary, together with said legacies.

That George C. Watkins left property amply sufficient to pay all his debts and said legacies ; and that after the payment of the same, a vei’y large and valuable estate was received, and is now held and enjoyed by Claiborne Watkins under the provisions of the will, especially the property described in said complaint.

That at the April term, 1875, of the Pulaski probate court, Ií. H. Rottaken was appointed administrator of the-estate of Trigg, and as such administrator was ordered by said court to pay to Oliver, as administrator of the estate of Skelton, the said sum of fifteen hundred and seventy-one dollars and twenty-five cents, and interest thereon for fifteen years, amounting in the aggregate to the sum of two thousand, nine hundred and eighty-five dollars and thirty-eight cents; that Oliver afterward demanded payment thereof, when Rottaken refused to pay the same, saying he had no assets with which to pay it; that Oliver, as administrator of Skelton, made out an account of his said demand, verified by his oath, and in June, 1875, presented it to Claiborne Watkins, as executor of the last will and testament of George C. Watkins, deceased, and he refused to pay the same.

That said claim did not mature and become demandable until after the expiration of two years next after the date of said letters testamentary; that the same is barred, as against said executor; and plaintiff’s only remedy is in equity against the devisee of Watkins.

The prayer of the complaint is, that said demand be declared a lien upon the property devised to Claiborne Watkins, which is described in the eomplaint; and that plaintiff', for the use of Oliver as sach administrator, have judgment for the amount of such demand, against defendants, and for other relief.

The defendant, Claiborne Watkins, demurred to the eomplaint, because there is no equity therein; because the claim was barred by the statute of limitation and non-claim; and because it appears on the face thereof that the court below had not jurisdiction of the subject-matter of the action. The demurrer was sustained as to so much thereof as says there is no equity in the action, and was overruled as to the other causes assigned.

Plaintiff, with leave of the court, filed an amendment to her complaint, and therein stated that Skelton left surviving him, at his death, eight children, heirs and distributees — their names; and when they respectively arrived at the age of twenty-one years; that while they were minors their mother moved with them from the state of Arkansas, and from thence hitherto they have "been non-residents of this state; that no assets of the estate of Trigg ever came to the hands or possession of Eottaken ; and asked that Skelton’s heirs be made and considered parties plaintiff's, joining in the further prosecution of this action, aud renewed1 the prayer of the original complaint.

Defendant, Watkins, demurred to the amended complaint, because the facts stated therein are not sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiff declining to amend further, the complaint was dismissed; judgment for costs was rendered in favor of defendants against plaintiff; and plaintiff excepted and appealed.

The complaint and amendment thereto fail to show that any part of the assets received by Trigg remained in specie at the time of his death, or were capable of being ascertained and identified as the specific property and estate of Skelton. But, on the contrary, it is alleged that a balance of fifteen hundred and seventy-one dollars and twenty-five cents was due the estate of Skelton at the filing of Trigg’s last settlement, and that no part thereof has ever been paid. How and on what account this balance became due, plaintiff fails to explain. The only l'easonable conclusion which can be drawn from the complaint and amendment is, it was due and owing by Trigg on account of assets of the estate of Skelton lost, wasted or converted by him, in his lifetime. If the conclusion be correct, does the amended complaint show that plaintiff has or had a cause of action against the defendants or either of them?

It is said, that by the old law of England the king was entitled to seize upon the goods of all intestates as the parens patriae, and general trustee of the kingdom. This prerogative he exercised for some time by his own ministers of justice. Afterwards the crown, in favor of the church, invested the prelates with this branch of the prerogative. The goods of intestates were given to the ordinary by the crown; and he had the right to seize them, and keep them without wasting, and also might give them, alien, or sell them at his will, and dispose of the money in pios usas. For the discharge of this trust the prelates were only accountable to God and their own consciences. This trust they abused most outrageously, and in the name of the church and the poor, the whole residue of the deceased’s estate, after the partes rationabiles of the wife and child were deducted, took unto themselves, without paying even his lawful debts, or other charges thereon. To check this exorbitant power, entrusted with ordinaries, it was enacted by'the Statute of Westminister 2 (13 Edwr., 1 C., 19), that the ordinary should pay the debts of the intestate, so far as his goods would extend. But this statute did not afford adequate relief. After the payment of the debts there was very often left a residuum to be used as the ordinaries might see fit to apply. This power they used in a most iniquitous manner, and thereby caused parliament, by the Statute 31, Edwr. Ill, 0'., 11, to further enact, that in case of intestacy, the ordinary should depute the neai’est and most lawful friends of the deceased to administer his goods ; and thereby gave origin, to administrators, who, before this statute, were unknown to the laws of England. - Under the Statute 31, Edwr. III, an administrator became the deputy of the ordinary, and clothed with all the authority and power which the ordinary previously had in the administration of estates. The legal title to the personal estate of his intestate vested in him. lie had the power to alter, change or convert any portion thereof to his own use, and such portion was thereby fully administered, and became a part of his estate, and descended to his legal representatives. But inasmuch as be held in autre droit, and, therefore, had no right to dispose, by will, of the property which remained in specie at his death, it still remaining the property and estate of his intestate, it resulted back to the ordinary to appoint a receiver. So, too, when an executor died intestate, his administrator did not become the representative of his testator, but, as in case of the deceased administrator, it became the duty of the ordinary to appoint an administrator of the testator with the will annexed. In both cases, the appointment of an administrator was for the purpose of completing an administration already begun. It was not, as in case of the first administrator, a full and immediate administration of the “goods, chattels and credits, which were-of the testator or intestate at the time of his death,” but an administration de bonis non administratis. The commission of the second administrator only vested him with the power and authority, and imposed upon him the duty of collecting and administering “ such property and effects of the deceased, not administered by the former representative, as remained in specie, and were capable of being ascertained and identified as the specific property or estate represented by him.” To this extent, only, did his power, authority and duty extend. He could not sue the former executor or administrator, or his sureties, on his executorial or administration bond, in law or equity, for property wasted, lost, altered or converted by the first executor or administrator. Such liability of the former executor or administrator, or his sureties, was no part of the estate of the testator or intestate, on which the administrator de bonis non had a right to administer, but was “a chose in action belonging to those entitled to the estate as creditors, legatees, or distributees.” In such cases the creditors, legatees or distributees only, were authorized to sue. Finn et al. v. Hempstead et al„24 Ark., 117; Coleman v. McMurdo, 5 Rand., 51; Potts et al. v. Smith, 3 Rawle, 360; Warfield v. Brand’s Adm’r, 13 Bush. (Ky.), 77; Beal v. New Mexico, 16 Wallace, 540; 3 Redfield on the Law of Wills, star page 103; 1 Lomax on Executors, marginal pages, 335-339; 1 Williams on Executors, marg. pages, 822-827; 4 Bacon’s Abr., 24.

In equity, the executor or administrator holds the property of his testator or intestate, in trust for the benefit of those concerned, first for the benefit of the creditors, and then for the legatees, or, in case of intestacy, for the distributees under the statute of distributions. And the assets are treated and regarded as a trust fund, “to be administered by the executor,” or administrator’, “ tor the benefit of all persons who are interested in it, whether they are creditors, legatees or distributees, or otherwise interested, according to their relative priorities, privileges and equities.” Eor the benefit and at the instance of those inter■ested, only, will a court of equity interfere to protect the trust funds, and hold the executor, or administrator, or his legal representative and sureties, accountable for waste and mismanagement of the same, and cause it to be administered of disposed of according to their relative priorities, rights, interests, privileges and equities. (1 Story’s Eq., secs. 532, 579, 580). As we have already seen, the administrator cle bonis non can not, and does not, stand in the relation of cestui que trust to the trust fund; nor does the executor or administrator hold the same in trust for his use and benefit. His commission gives him a right which is purely of a legal nature, and which extends only to so much of the goods, chattels and credits as remains in specie, and can be identified as the specific property or estate of the deceased. Hence, it follows that he has no right to institute suit, in a court of equity, to hold the representative or sureties of a former executor or administrator accountable for property lost, wasted, mismanaged or converted, by such former executor or administrator.

The power, authority and duties of an administrator de bonis non remain and are the same in this state as we have already seen they were under the common law of England and statutes of the British parliament, unless they have been changed by statute. Have they been changed? They have not. It is true that sec. of Gantt’s Digest says: “ If any executor or administrator die or resign, or his letters be revoked, he, or his legal representatives, shall account for, pay, and deliver to his successor, or the surviving or remaining executor, all money and personal property, and all the rights, credits, deeds, evidence of debt, and papers of any kind belonging to the estate of the deceased, at such time and in such manner as the court shall order; and such court, in case of a refusal to comply with such order, shall have power to enforce the same by attachment.” But what money, personal property, lights, credits, deeds, evidence of debt and papers are referred to in this section? Manifestly, such as remains in specie. The former executor or administrator, or his legal representative, could not account for, pay and deliver to his successor any other assets. No other assets belong to the estate of the deceased. And it would be absurd to require and force him by attachment to account for, pay over and deliver to his successor something which had ceased to exist, and was beyond his reach and control. He could not be forced by attachment; and it would be impossible for him to account for, pay over, 'and deliver to his successor any assets other than those in specie, and capable of being identified as the specific property or estate of the deceased. It could not be any money which the deceased administrator was liable to pay on account of assets lost, wasted, or converted by him; for the same statutes expressly provide how demands and claims for money against the estates of deceased persons shall be authenticated, presented, classed, and paid, and that, too, in a way and manner entirely different from that provided for the payment and delivery of assets under sec. 44 cited above.

Instead of giving the administrator de bonis non the right to sue on the bond of a former administrator, and recover any amount fo© which he may be liable on account of any waste or mismanagement of the estate of the deceased, sec. 191 of Gantt’s Digest, on the contrary, expressly provides: “ The bond of any executor or administrator may be sued on at the instance of any legatee, distributee, creditor, or other person interested, in the name of the state, to the use of such legatee, distributee, creditor, or other person interested, for any mismanagement, waste, or other breach of the condition of such bond ; and the party to whose use suit is brought, shall have judgment against the executor or administrator, and his securities, for the whole value oftheestate mismanaged or toasted, with costs of suit; and the amount so recovered shall be distributed by the court in the same manner as if the same had been accounted for by the executor or administrator.” This statute in no wise changes the remedies in the cases therein provided for, but substantially re-enacts the law which was in force in such cases at the time of its enactment, and thereby perpetuates it in every material point. Under it, the administrator de bonis non has no authority to sue, because he has not, and from the nature of the case could not have, an interest in the assets wasted or mismanaged, or the liability therefor, as we have already seen.

But has Oliver, as public administrator, greater power and authority and more rights than he would have if he had been regularly appointed administrator de bonis non of the estate of Skelton ? "What are the powers, authority and duties of a public administrator, as defined by the statute ? The statutes make it his duty to take charge of all the estates of every kind, of the deceased persons in his county, in certain enumerated cases, and to “institute all manner of suits that may be necessary to recover the property, debts, papers or other estate of the deceased, in the same manner as if letters of administration were actually granted to him.” If property comes into his hands, he is required to enter into the like bond and security as is prescribed in cases of administrators in ordinary cases, and to make true and perfect inventory thereof, “ and administer and account for the same as near as circumstances will permit, according to the law prescribing the duties of administrators, subject to the coiitrol and direction of the court.” “He holds the estate until an executor or administrator is regularly appointed, when, under the order of the court, he is required to account for, pay and deliver to such executor or administrator all the money, property and estate of every kind in his possession. He is required to act as a temporary administrator for the preservation of the estates of deceased persons in his county, liable to be wasted, injured or lost; and to bring suits for the recovery of the estate in the same manner he would do if letters of administration were actually granted to him. No statute or law, other than those governing administrators, define his power and authority, and prescribe his duties as to the estates in his charge. The same law which defines the power and authority and prescribes the duties of administrators is made applicable to him. There is no statute giving him greater power and authority than is granted to administrators regularly appointed, or giving him power to administer any more or other goods, chattels, rights and effects, than an administrator of the same estate, regularly appointed, would have. Hence it follows that Oliver, as public administrator, had no more or greater power, authority and rights than he would have if he had been regularly appointed administrator de bonis non; and that he only fills the place of an administrator de bonis non ;pro tempore, and until an administrator de bonis non shall be regularly appointed. Gantt’s Digest, sec. 216, 233.

Plaintiff alleges in her complaint that Oliver was appointed administrator of the estate of Skelton, on the twenty-fourth day of October, 1871. Taking it for granted that the appointment was valid, he thereby became the administrator de bonis non of Skelton’s estate, and thereafter had no right to sue or recover any assets of the estate of Skelton, in his capacity of public administrator; and in such capacity could not maintain this action. Gantt’s Digest, sec. 220.

Could or can an action he instituted and maintained on the bond of Trigg for assets of the estate of Skelton, which were received and held by Trigg while he was administrator, and were on hand at his death, and capable of being ascertained and identified as such assets, or for damages suffered by reason of the waste and mismanagement- thereof since his death ? Certainly not. Section 44, cited above, makes it the duty of the executor or administrator, when his administration terminates in his lifetime, to account for, pay, and deliver the assets remaining in specie, under the order of the probate court, to his successor; and in the event he dies before he is discharged or removed, it makes it the duty of his legal representative to account for, pay and deliver so much of the assets as remain in specie and were capable of being identified and ascertained, in like manner, to such, successor. His legal representative is required to give bond for the faithful discharge of his duties, one of which, nominated in the bond, is, he shall, well and truly, do and perform all other matters aud things touching” his administration, “ that are or may be prescribed bylaw, or enjoined” on him “ by the lawful order, sentence or decree of any court having competent jurisdiction.” One of the duties appertaining to his administration, prescribed by law, is, to account for, pay, and deliver to such successor the assets belonging to the estate of the deceased, represented by his testator or intestate, in his lifetime, and remaining in specie, when thereunto required by the probate court. If he fails to do so, he is liable to a suit on his executorial or administration bond. On the other hand, if the administration of the first executor or administrator terminates in his lifetime, it is his duty to account for, pay, and deliver to his successor such assets, under order of the court; and if he fails to do so, is liable to an action ©n his bond. Section 45 says: “ The succeeding administrator or the remaining executor may proceed at law against the delinquent and his securities, or either of them, or any other person having in his possession any part of the estate.” What delinquent is referred to in this section ? Manifestly he who failed to deliver assets in obedience to the order of the court, as prescribed by section 44, just preceding. If the first administrator be dead, the delinquent and securities referred to could not be the first administrator and his securities, because no action could be brought against him. As to the assets remaining in specie at bis death, he could not be considered a delinquent, because the law assumes no jurisdiction of a dead ■ man, and requires nothing of him. His sureties have no right, and it is not tlaeir duty, to take charge and control of the assets, and they are powerless to prevent waste thereof. It is his legal representative who is required to account for and deliver the assets remaining in 'Specie, under the order of the court; and if he fails to do so, he is the delinquent, and his sureties are the securities authorized to be sued by section 45. If the assets have been lost, wasted or converted by the deceased administrator in his lifetime, the creditors, legatees, distributees or other persons interested, are alone authorized to sue on the bond of the first executor or administrator, and not his successor. Sections 44, 45 and 191, stand as a part of one and the same act of the legislature, and should be construed together. From them, construed as a whole, the conclusion that suit can not be brought on the bond of a deceased administrator by his successor, for assets remaining in specie at the time of his death, or for damages suffered by reason of the waste and mismanagement thereof since his death, is unavoidable.

Plaintiff, in the amendment to her complaint, asked that the heirs and distributees of Skelton be joined and considered as plaintiffs in this action. These heirs and distributees, so far as shown by the transcript of the record here, did not appear and ask to be made parties, and were not made parties. Did plaintiff- have the right to amend by making them parties ? The Code says: “ 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.” This provision of the Code assumes that the plaintiff has a cause of action, and does not authorize the court in any case, where the plaintiff has failed to show any cause of action, to amend by adding the name of a party in whose favor a cause of action is shown by the complaint to exist, because such a proceeding would be practically instituting a new action, and forcing a party, at the instance of one who has no right to demand it, to commence an action when he does not wish to do so. Broad and liberal as the provisions of the statute of amendments are, we see no authority in them for such a proceeding. Pomeroy’s Remedies and Remedial Rights, sec. 420; 4 Watte’s Practice, 655; Van Syckels v. Perry, 3 Rob. (N. Y), 621; Davis v. The Mayor, etc., of New York, 14 N. Y. (4 Kern), 506; Van Duzer v. Howe, 21 N. Y. (7 Smith), 531.

We, therefore, conclude that plaintiff’s complaint and amendment thereto, under any construction that may or can be placed thereon, fail to state facts sufficient to constitute a cause of action : that the demurrer thereto was properly sustained; and that there is no error in the proceedings of the court below.

Let the decree of the court below be in all things affirmed.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    State of Arkansas vs. Parker.
    1. Larceny : Indictment, description of property in.

    “Twenty-five cords of wood” sufficiently indicate, personal property, and is a sufficient description of the subject of larceny. The common and ordinary acceptation of property is to govern in description ; the certainty must be to a common intent, which is, such as will enable the jury to say whether the chattel proven to be stolen is the same as that specified in the indictment, and will judicially show to the court that it could have been the subject-matter of the offense charged.
    2. Same: Trees severed from soil, subject of.

    Trees previously severed from the soil are personal property and the subject of larceny, and when furtively taken from the land or possession, actual or constructive, of another, it is larceny.

      APPEAL from Lawrence Circuit Court.
    Hon. R. H. Powell, Circuit Judge.

      Mr. Attorney General Henderson, for the State.
   English, C. J.

John Parker was indicted for larceny in the circuit court of Lawrence county, the indictment charging— “That the said John Parker, on the twentieth day of December, A. D. 1876, with force and arms, in the county aforesaid, etc., twenty-five cords of wood, of the value of $75, of the property of the Saint Louis, Iron Mountain and Southern Railway company, then and there being found, feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, against the peace and dignity of the state,” etc.

The defendant demurred to the indictment, on the grounds that it was defective in not sufficiently describing the subject-matters of the larceny; and that it did not contain facts sufficient to require defendant to answer thereto, etc.

The court sustained the demurrer, discharged defendant, and the state appealed.

I. “ Tioenty-five cords of wood ” was a sufficient description of the subject of the larceny. Any person in this county, who has intelligence enough to be responsible for crime, would understand from these words the nature of the charge. Gantt’s Dig., sec. 1796.

The common and ordinary acceptation of property, is to govern in description, and the certainty must be to a common intent, by which is meant such certainty as will enable the jury to say whether the chattel proved to be stolen is the same as that upon which the indictment is founded, and will judicially show to the court that it could have been the subject-matter of the offense charged. 1 Wharton Cr. L. 6 Ed., sec. 355.

II. Larceny is the felonious stealing, taldng and carrying away of the personal property.of another.

The indictment does not charge the subject of the larceny to have been the goods and, chattels or personal property of the corporation alleged to have been injured, but the words used, u twenty-five cords of loood,” sufficiently indicate that the property was personal, and not real.

"When trees have been severed from the soil, whether by the owner or a third person, or even on a previous occasion by the thief himself, they have become personal property, the stealing whereof is larceny. 2 Bishop Cr. L., sec. 781.

Removing of cut timber from the lands of another may be a trespass, and, by statute, indictable as a misdemeanor (Gantt's Dig., sec. 1385), but where cord wood is furtively taken from the land, or possession, actual or constructive, of another, it is larceny.

Reversed and remanded for further proceedings.


text:
    State of Arkansas vs. McMinn.
    1. Criminal Pleading : Former acquittal. Variance. v

    If, upon a former indictment, tie defendant could not have been convicted of the offense described in the latter, then an acquittal upon the former is no bar to the latter.
    Upon an indictment for stealing a cow, one can not be convicted of stealing a bull. (Sec. 178, Gantt’s Digest, explained.)
    APPEAL from Yell Circuit Court — Danville District.
    I-Ion. W. D. Jacoway, Judge.

      Mr. Attorney General Henderson, for the State.
   English, C. J.

At the February term, 1879, of the circuit court of Yell county, Danville district, McMinn and others were indicted for larceny, the indictment charging, in substance, that, “the said Robert McMinn, C. T. Rains and Robert Wilson, on the 28th day of July, 1878,in the Dan-ville district, of the county of Yell, etc., one bull of the value of four dollars, of the property of M. Y. Adney, then and there being found, did unlawfully and feloniously steal, take and carry away,” etc., etc.

McMinn filed a plea of former acquittal, in substance as follows:

“ Defendant, etc., having heard said indictment read (and protesting that he is not guilty of the premises charged in said indictment), says that the said state, etc., ought not further to prosecute said indictment against him, because, he says, that heretofore, to-wit: at the present term of this court, he was held and tried on the 18th day of this present month of February, 1879, upon an indictment wherein it was charged that this defendant, with C. S. Rains and Robert Wilson, did, on the 25th day of July, 1878, in the Danville district, in-the county of Yell, etc., one cow of the value of $10, one heifer of the value of $3, and one heifer of the value of $4, of the property of W. R. Carrell, steal, take and carry away; and defendant charges that if any offense was committed it was embraced in the said offense aforesaid, and that on the trial of said cause, by a jury, upon a plea of not guilty, this defendant was acquitted, as by the record thereof in this court appears ; and this defendant, in fact, says that said Robert J. McMinn, so indicted and acquitted as last aforesaid, and this defendant are one and the same person, and not other and different persons; and that the felony and larceny of which he, the said Robert J. McMinn, was so indicted and acquitted as aforesaid, and the felony and larceny of which defendant is now indicted, are not other and different felonies and larcenies, and this he, the said Robert J. McMinn, is ready to verify: Wherefore he prays judgment, and that by the court here he may be dismissed and discharged from the said premises, and in the present indictment specified; and this defendant says, as to the said indictment wherein he is now attempted to be put on trial, it is for the same larceny as charged in the said indictment wherein he was so acquitted as aforesaid, and that he is not guilty of the offense as charged in the present indictment, on which he is now attempted to be tried.”

The state demurred to the plea, the court overruled the demurrer, and the state resting, defendant was discharged.

The state appealed.

Cow — The female of the bovine genus of animals.— Webster.

Heifer — A young cow. — lb.

■ Bull — Male of tbe bovine, etc — lb.

Appellant was indicted (with others) for stealing a bull.

The substance of his plea is, that he (and others) were previously indicted in the same court for stealing a cow and two heifers, tried and acquitted, and that the offense charged in the indictment was embraced in the former indictment — that the offenses are the same.

On the first indictment he could not have been convicted for stealing a bull.

If, upon the first indictment, he could not have been convicted of the offense described in tbe second, then an acquittal upon -the former is no bar to the latter. 3 Green-leaf Ev., sec. 36; 1 Wharton Cr. L., 6 Ed., secs. 551-557.

“ The rule is,” says Mr. Wharton, “thatif the prisoner could have been legally convicted on the first indictment, upon any evidence that might have been legally adduced, his acquittal on that indictment may be successfully pleaded to a second indictment; and it is immaterial whether the proper evidence were adduced at the trial of •the first indictmeut or not.”'

But upon the indictment for stealing a coto and two heifers, appellant coiüd not, upon any evidence that might have been legally adduced, have been convicted for stealing a bull, the variance between the indictment and proof, as to the subject of the larceny being material and fatal; hence an acquittal upon the first indictment could be no bar of the second for stealing a bull.

This rule of the common law has not been changed by statute.

It has been suggested that if, upon the first trial, the court had dismissed the indictment for variance between the indictment and proof, it would have been a bar to the second indictment, under section 1844, of Gantt’s Digest, and that an acquittal upon the first indictment would, of course, for a stronger reason, be a bar to the second. But this suggestion is made upon a misunderstanding of the section of the Digest above referred to, which Mr. Gantt did not copy literally from the corresponding section of the Criminal Code.

Section 169 of the Criminal Code is as follows: “If the demurrer is sustained because the indictment contains matter which is a legal defense or bar to the indictment, the judgment shall be final, and the defendant discharged from any further prosecution for the offense.”

Section 178, is as follows: “ The dismissal of the indictment by the court, on demurrer, except as provided in section 169, or for an objection to its form or substance taken at the trial, or for variance between the indictment and the proof, shall not bar another prosecution for the same offense.”

The meaning of this section may be clearly expressed thus: The dismissal of the indictment by the court, on demurrer (except as provided in section 169), or the dis-' missal of the indictment for an objection to its form or substance, taken at the trial, or the dismissal of the indictment for variance between the indictment and the proof, shall not bar another prosecution for the same offense.

Such is the reading which this court gave the section in, Lee v. State, 26 Ark., 268.

It follows that the plea of former acquittal was bad, and that the court erred in overruling the demurrer of the state thereto.

Reversed and remanded for further proceedings.


text:
    Hutchinson vs. Hutchinson.
    1. Statum oi? Limitations. Demurrer for, at lato.
    The statute of limitations can not be availed of at law by demurrer to the complaint, but must be pleaded in bar; unless the complaint shows upon its face not only that sufficient time has elapsed to bar the action, but also the non-existence of any ground of avoidance.
    APPEAL from Arkansas Circuit Court.,
    lion. J. A. "Williams, Circuit Judge.

      Pinnell for appellants.
   English, C. J.

Thomas H. Hutchinson sued John II. Hutchinson in the circuit court of Arkansas county, upon an open account for balance, after allowing credits, of $375.66.

The account filed with the complaint is made up of numerous items, running from July 5, 1870, to February 26,1876, amounting to $554.68 ; and the credits are entered at various dates during and after the same period.

Defendant filed an answer of two paragraphs, the first denying that he was indebted to plaintiff as alleged, or in any sum; and the second, pleading a set-off' or counterclaim upon open account, for $950.14, filing bill of particulars made up of running items covering about the same period embraced in plaintiff’s account. Plaintiff filed a replication, disputing the set-off.

There was a trial, and verdict in favor of plaintiff for $300.

The defendant filed a motion for a new trial, which was granted by the court.

Afterwards the defendant demurred to the complaint on the following grounds:

“1. That so much of the said account sued upon, and each and every item thereof mentioned in said complaint, accruing in the years 1870, 1871, 1872 and 1873, did not accrue within three years next before the commencement of this suit, and that the same are barred by the statute of limitations.

“2. This court has no jurisdiction of the cause of action,” etc.

Plaintiff moved to strike the demurrer from the files; the court overruled the motion, gave defendant leave to withdraw his answer, etc., and sustained the demurrer to the complaint, and dismissed the cause for- want of jurisdiction, and plaintiff appealed.

In Collins v. Mack, 31 Ark., 686, this court decided that in an action at law the statute of limitations can not be availed of by demurrer to the complaint, but must be pleaded in bar, unless the plaintiff should be foolish enough not only to show upon the face of his complaint that a sufficient time had elapsed to bar his cause of action, but also the non-existence of any ground of avoidance, which was not done in that or this case.

The sum claimed in the complaint was within the jurisdiction of the court.

Reversed, and remanded for further proceedings.


author: English, 0. J.

text:
    Lee County vs. Abrahams.
    1. Writs, etc. Tax on, not unconstitutional.

    The tax of fifty cents imposed by statute upon each original writ and execution issued out of any court, and on each certificate of record of recorded instruments, is strictly a fee to the public, and not a tax within the clause of the constitution requiring all property to be valued ad valorem, and may be imposed without express authority of the constitution if not prohibited by it.
    APPEAL from Lee Circuit Court.
    Hon. J. N. Cypert,'Circuit Judge.

      Monroe Anderson, and Tappan <f* Hornor, for appellant.
   English, 0. J.

Abrahams was ruled to a settlement in the county court of Lee county, for money received by him as clerk of the circuit court and recorder of the county for tax on writs and instruments recorded. , Thei’e was a judgment against him in the county court, for the amount found to be due from him to the county, and for penalty thereon for his delinquency; and he appealed to the circuit court, where a demurrer was sustained for want of jurisdiction in the county court; and the county appealed to this court, and the judgment was reversed and the cause remanded for further proceedings. See Lee county v. Abrahams, 31 Ark., 571.

On the remanding of the cause to the circuit court, Abrahams again demurred to the claim of the county against him, on the following grounds:

“1. That each and every item exhibited against him is for tax upon original writs, instruments for record, etc.

“ 2. That article X., section 2, of the constitution of the state, defines a uniform rate of taxation and forbids the levying of any tax except ad valorem at true value in money.

“ 3. That the act of the general assembly under which said taxes were authorized are in conflict with the constitution, and therefore null and void.

“4. That the county of Lee has no right or cause of action herein, or any right to levy or collect said tax.”

The demurrer was sustained and the matter dismissed, and the county appealed to this court.

The statute imposes, and requires to he collected for county purposes, a tax of fifty cents on each original writ and execution issued out of any of the courts of the state, and fifty cents on each certificate of-record of each instrument recoi’-ded in the recorder’s office. Miller’s Dig., sec. 7.

The statute was passed March 5, 1838, and is part of the Revised Statutes, sec. 1, chap. 38.

The tax on writs is collected by the clerk, of the parties ■suing them out, and is part of the costs of the suits.

The tax for recording instruments is collected by the recorder, of persons procuring them to be recorded.

The county is at the expense of furnishing the clerk’s office and supplying the recorder with registration books, etc., and the tax on writs and certificates of recording is intended to reimburse the county for such expenditures.

Mr. Cooley says taxes on legal processes “ are usually imposed with a view to adjusting, on an equitable basis,, as between suitors and the public, the expenses of the administration of justice. They may be imposed as stamp-fees on process, fees for permission to enter suit,” etc. Cooley on Con. Lim., 23.

Such fees to the public are provided for in the constitutions of some of the states. [16., in note.] They were not by the constitution of 1868, which was in force when appellee was clerk and recorder. But they may be imposed without an express provision of the constitution-authorizing it, if not prohibited. Harrison, Pepper & Co., v. Willis et al., 7 Heiskell (Tenn.), 35.

They are strictly fees to the public, and not taxes within-the meaning of the clause of the constitution, requiring all property, etc., to be taxed acl valorem.

They have been long imposed in this state, under all of the constitutions, and we are not aware that the constitutionality of the statute imposing them has heretofore been seriously questioned.

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


author: Harrison, J.

text:
    Catlin vs. Horne.
    1. Consideration : Pleading. a

    A plea alleging that the note sued on was given without consideration, is good.
    2. Fraud : Pleading.

    A plea that the note sued on was obtained by false representations, without stating what the representations were, is bad.
    APPEAL from Prcdrie Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.
    Hughes, for appellant.
   Harrison, J.

The appellee sued the appellant before a justice of the peace upon the following note:

“$200. March 7th, 1876.

“On or before the 15th day of July next I promise to pay Sim Horne two hundred dollars — it being one-half of my subscription for the purpose of building a county jail in the town of Des Arc.

“ Witness my hand and seal.

“ S. P. Catlin.”

The defendant filed an answer containing three paragraphs.

The first alleged that the note was given without consideration. The second and third were as follows:

“ 2. Defendant, for a further answer, says: That the said note was obtained by false representations made to defendant by the plaintiff, which he, this defendant, at the time believed and acted on, and which were the sole and only inducement to the execution thereof. That the facts and circumstances under which this defendant signed and delivered said note, were the following:

“ This defendant, in July, 1874, made three distinct propositions to the commissioners elected on the thirtieth day of June, 1874, to locate the county seat of Prairie county, as an inducement to locate the same at Des Arc, conditioned, that any one of said propositions being accepted the others were to be void.

The first of said propositions was, to furnish the house to be used as a court-house at Des Arc. The second of said propositions was, to furnish the ground upon which to build a court-house and jail; and the third of said propositions was, the donation of four hundred dollars. All of said propositions are herewith filed, marked, respectively, the first, ‘C;’ the second, ‘D;’ and the third, ‘E;’ and made part of this answer. That all of said propositions were delivered to said commissioner’s; that they had the same under consideration and advisement, and in their report to the county court, at its July term, 1875, locating said county seat at Des Arc, they reported the two propositions, marked respectively ‘C5 and ‘D;’ but did not report or make any mention of the proposition ‘E;’ leaving with the county court to determine which of the twro, ‘C’ or ‘D,’ to select.

“ That upon said report the county court appointed commissioners to receive plans and specifications for building a county jail — to report at an adjourned term, to be held on the thirteenth day of September thereafter. That at said adjourned term, the court made an order approving the letting of the contract for the building of the jail to the plaintiff for the consideration of the Des Are subscriptions before subscribed and filed for that purpose.

“ That at the January term, 1876, said commissioners, so appointed, reported to the court that they had let the building of the jail to the plaintiff, and had paid him for the same with the subscription list of the .citizens of Res Arc and vicinity; which did not and could not have included the naked proposition of this defendant to donate, as an alternative, four hundred dollars, practically rejected by the commissioners, whose duty it was to receive donations and locate said county seat. And said defendant says: that he is informed and believes, that he is bound by the selection of said commissioners; and submits that having executed said note upon a false representation of facts, the same is without consideration and void.

“3. This defendant for a further answer in' this cause says: that at the time he executed the note herein sued on, he was wholly and entirely ignorant of the action of the commissioners to locate the county seat on his said three propositions, and also of the action of the county court, and of the commissioners, to build the jail.

“That supposing fair dealings would be meted out, and having entire confidence in the parties managing the matters in question, he gave himself no trouble about the matter. That a short time after the completion of the jail, the plaintiff came to him and informed him that the jail commissioners had turned over to him the four hundred dollars conditional donation proposition, and, at the same time, representing to the defendant that the same had been accepted by the commissioners to locate the county seat; which said statement and representation was untrue, but that this defendant, at the time, believing that the said proposition had been legally accepted, and that he was released from the other two, he gave the note, conditioned, verbally, that it should in no wise conflict with the previous action of the commissioners to locate the county seat., or the action of the county court, but in all things was to be made to conform to the action of said commissioners and of said court.” , '

The plaintiff filed a demurrer to the whole answer, which the justice sustained, and rendered judgment in his favor.

The defendant appealed to the circuit court.

In the circuit court the demurrer was again sustained to all the paragraphs of the answer, and judgment was again rendered for the plaintiff.

As a consideration is essential to the validity of every contract, the defense set up in the first paragraph of the answer was unquestionably, a good one, and the demurrer as to it should have been overruled.

It was several times held by this court before the adoption of the Code of Practice, that a plea of no consideration, without stating the circumstances attending the execution of the contract sued on, was good. Dickinson v. Burks, 6 Ark., 412; Cheney v. Higginbotham, 10 Ark., 273; Dickinson v. Burks, 11 Ark., 308; and the same' ruling has been made in other states under the Code practice. Butler v. Edgerton, 15 Ind., 15; Frybarger v. Cockefair, 17 Ind., 404; Swope v. Fair, 18 Ind., 303; Evans v. Williams, 60 Barb., 346; Newm. Plead. and Prac., 543.

The second and third paragraphs, which we have set out, are singularly loose and vague. The second alleges that the note was' obtained from the defendant by false representations, but does not show what the misrepresentations were, by which he says he was deceived.

The demurrer to it was rightly sustained.

The defense set up in the third, if we correctly understand it, is, that the commissioners to locate the county seat, by not reporting the defendant’s proposition to donate four hundred dollars to the county court, when they made tlieir report of tlie location, and also reported his other propositions, elected not to accept it, and it was no longer obligatory upon him; of which action of the commissioners he had no knowledge when he executed the note, and was induced to execute it by false representations of the plaintiff that they had accepted it.

The assumption, that the proposition to donate the money was not accepted, or assented to, and never became binding or obligatory upon the defendant, because the commissioners failed to report it to the county court, when they reported their location of the county seat, with his two •other propositions, is not correct.

The removal of the county seat of Prairie county from Devalls Bluff to Des Arc, was made under the provisions of an act of the general assembly, entitled “an act providing for the removal of the county seat of Prairie^county,” approved May 28, 1874.

The sixth section of the act required the commissioners elected for that purpose, when they should have selected the location, to make a report of the location to the board of supervisors (now the county court), and also of the donations that had been made in land or money; and the eighth section said,' “the board of supervisors shall receive all donations made for the erection of the public buildings, and if land be donated, the deed shall be made to the county of Prairie.”

The proposition of the defendant to donate four hundred dollars was made to depend upon the event that neither of his other propositions was accepted, and all were upon the condition that the county seat should be located at Des Are.

As the commissioners had no authority to provide a court-house, or to say upon which ground the court-house or jail should he built, the board of supervisors, or the county court, which succeeded it, could only accept one of the first two propositions, neither of which being accepted, and the county seat being located at Des Arc, the proposition to donate money became absolute and binding. It is not alleged that either of the first two was accepted, which fact would have been within the knowledge of the defendant.

The fact that the money proposition was not reported by the commissioners when they made their report of the location of the county seat, did not have the effect to reject it. They had no power to reject any proposition o'r donation made, under the provisions of the act, and their omission to report the money proposition of the defendant when they reported the location, could not affect him in any way, or absolve him from his obligation.

The alleged representation, therefore, was true, and the defendant was not deceived by the plaintiff, or induced by any misrepresentation to execute the note, and the demurrer to this paragraph, also, was properly sustained.

But, for the error of the circuit court in sustaining the demurrer to the first paragraph, which should have been overruled, its judgment is reversed, and the cause remanded for further proceedings


text:
    Vanderpool vs. State.
    1. Commission job oe United States Circuit Court: Van not fine. False imprisonment.

    A commissioner of the circuit court of the United States has no. power to fine a party as upon final trial, and if he does so and imprisons him until the fine be paid, he is guilty of false imprisonment.

      APPEAL from Marion Circuit Court.
    Hon. A. Davis, Special Judge.

      Attorney General, for the State.
   Harrison, J.

The appellant was indicted in the Marion circuit court for the false imprisonment of John Clark, and was convicted, and fined $100. A motion for a new trial was made, and overruled.

The only evidence in the cause was the testimony of John Clark, the person the indictment charged to have been imprisoned, a witness for the State, who testified: That he was, within twelve months of the finding of the indictment by the grand jury, arrested under a warrant issued by the defendant, who was at the time a commissioner of the United States circuit court, upon a charge of obstructing the passage of the mail; that he gave bond for his appearance before the defendant, as such commissioner, at Yell-ville, in Marion county, on a day named; that he appeared before him, at Yellville, on the day appointed, and that the defendant examined the charge, and declared him guilty, and fined him $10, and ordered him into custody of the marshal, who was present, until the fine and cost of the prosecution were paid ; that some conversation then took place between the witness and marshal about the payment of the fine and costs, and the marshal agreed that if the witness would give a bond for the payment of the fine and costs, it would be satisfactory. "Witness and the marshal walked down stairs together, and witness found sureties, whom the marshal was willing to accept, and the bond was given for the payment of the fine and costs at a future day, and witness returned home; that the marshal did not.confine witness in any room, or lay his hands upon him; and that the bond had not been paid.

There can be no question as to the authority of the defendant, as a commissioner of the United States circuit court, to issue the warrant for the arrest of said Clark, and cause him to be brought before him for examination upon the charge against him, and to hold him to bail, or, in default thereof, to commit him to prison to answer the charge before the court of which he was the commissioner.

But the law did not empower him to fine him as upon final trial, and to imprison him until the fine and costs of prosecution were paid.

The imposition of the fine, and the order that he be held in custody until it and the costs were paid, were, therefore, outside and beyond his jurisdiction ; and if Clark was in consequence thereof imprisoned, the defendant was guilty of a violation of the law against false imprisonment, and can claim no immunity on account of his being a judicial officer.

The law is thus stated by Judge Cooley: “Every judicial officer, whether the grade be high or low, must take care, before acting, to inform himself whether the circumstances justify his exercise of the judicial function.

A judge is not such at all times aud for all purposes. When he acts he must be clothed with jurisdiction ; and acting without this, he is but the individual, falsely assuming, an authority he does not possess. The officer is judge in the cases in which the law has empowered him to act, and in respect to persons lawfully brought before him; but he is not judge when- he assumes to decide cases of a class which the law withholds from his cognizance, as cases between persons who are not, either actually or constructively, before him for the purpose. Neither is he exercising the judicial function when, being empowered to enter one judgment, or make one order, he enters or makes one wholly ■different in nature. “ When he does this, he steps over the boundary of his judicial authority, and is as much out of the protection of the law, in respect to the particular act, as if he held no office at all.” Cooley on Torts, 416; Trammell v. Town of Russellville et al., ante, 105; Piper v. Pearson, 2 Gray, 120; Clark v. May, 410; Craig v. Burnett, 3 Ala., 728.

But the evidence fails to show any imprisonment of Clark • after he appeared before the defendant upon the examination of the charge against him. Though ordered into custody of the marshal, it does not appear that he was taken into custody by him, or that he was in anywise restrained of his liberty.

The verdict was, therefore, without evidence, and the motion for a new trial should have been sustained.

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


author: Eakin, J.

text:
    Hinkle vs. Ball et al.
    1. Courts : Power over process. Injunction against supreme court judgments.

    Courts of law have the control and direction of their own process, free from interference of other courts of law of co-ordinate authority; and an inferior court of law can not interfere with the execution of the process of the supreme court.
    But whenever from fraud, accident, or mistake, etc., it becomes inequitable to proceed with the execution of the process of the supreme court, and it can not interfere without the exercise of original jurisdiction, it allows courts of chancery to interfere by injunction.
    2. Supreme Court: Mandamus.

    The supreme court can issue writs of mandamus in aid of its appellate and supervisory jurisdiction, and on proper application, may direct the sheriff as to the funds he should receive in satisfaction of its execution.

      APPEAL from Izard Circuit Court.
    Hon. S. Peete, Special Judge.

      Moore, for appellant.
   Eakin, J.

Hinkle, sheriff of Izard county, had in his hands an execution from this court against Ball and seven other defendants, in favor of Fulton county. The defendants petitioned for and, after due notice, obtained from the circuit court of Izard county, a mandamus against the sheriff, commanding him to accept, in payment, certain warrants, or scrip, of said county of Fulton. From this order, Hinkle appealed to this court.

Courts of law have the control and direction of their own process, free from all interference from other courts of law of co-ordinate authority. A fortiori, an inferior court of law should not, by mandamus or otherwise, interfere with the execution of process from this court, or control the officer in his duty, either to enforce or prohibit. He must make his return here, and is responsible alone to this court. 'Whatever orders may be necessary for his direction,, should emanate from the tribunal under which he is acting, or from some superior court. Under the constitution, this-court has power to issue writs of mandamus in aid of its appellate and supervisory jurisdiction, and has exercised the power in a case like this. Woodruff v. Trapnall, Atty., 12 Ark., 640.

Whenever from fraud, accident, or mistake; or from causes supervening, or discovered too late to be brought properly to the notice of this court in the decision of a case, it becomes inequitable to proceed with" the execution of its process; and when the examination of the facts involves the necessity of the exercise of original jurisdiction, this court, disclaiming such original powers, and recognizing the necessity of a remedy somewhere, has formerly conceded to courts of chancery the powTer to interfere by injunction. No such case is presented by the record. This court may, on proper application, and being satisfied as to the merits, give all necessary directions to the sheriff as to the funds which he should receive in satisfaction of the execution. Such action would be ancillary only. The circuit court should not, by proceedings at law, have assumed jurisdiction to do so.

Reverse the judgment of the circuit court at the cost of appellees, and remand the cause, with instructions to the circuit court to dismiss the petition for want of jurisdiction.


author: Eakix, J.

text:
    Burgie vs. Davis.
    ,1. Landlord and Tenant: Laborer not a tenant. Sub-laborer: Lien on crop.

    One who raises a crop upon land of another under a contract to raise the crop for a particular part of it, is a mere cropper, and not a tenant; and has a lien upon the crop for whatever is due him: And, as against him, a laborer under him has a lien upon the crop only to the extent of the cropper’s claim against the land owner, and may enforce it against the land owner who gets the crop.
    APPEAL from Chicot Circuit Court.
    Hon. T. E. Sorrells, Circuit Judge.

      Reynolds, for appellant.

      Rice $• Bishop, contra.

   Eakix, J.

By an instrument bearing date the first of January, 1875, Paralee Davis contracted, in writing, with Philip Armistead to work for him during the year, “ to help him make a crop of corn and cotton on the plantation of Samuel Burgie.” He, on his part, agreed to pay her, as wages, three bales of cotton of 400 pounds each, which he was to ship, when ready for market, collect the proceeds and pay over to her.

In February, 1876, she sued Armistead and appellant before a justice, in a written complaint; wherein she set up the contract, and that she had performed her part; and that the results of the labor, in which she had assisted, had been eight bales of cotton, weighing, in the aggregate, 3,286 pounds; that a half of it had been turned over to appellant Burgie for rent; that there were still three bales left belonging to said Armistead, which Burgie had taken under a pretended purchase, and was about to remove. She claimed a laborer’s lien upon those bales, and obtained an attachment, by which the cotton was seized.

Armistead made no defense, being, as appears from the evidence, in sympathy with the plaintiff. Burgie answered, stating that Armistead had agreed with him to work a part of his land for 1875, for a half of the corn and cotton raised, less the amount of supplies which might be furnished to him, by Burgie, during the year; and that the balance of said half, after paying the supplies, was to be turned over to Armistead at the gin-house. The other half was to be retained by Burgie for the use of his land, teams and farming implements; that he was advised by Armistead and Paralee that she was working with him on the same terms as an assistant, and that he had, himself, no contract nor understanding with Paralee. She and Armistead lived together in the same cabin, and together consumed the supplies which appellant furnished, which supplies, after deducting all credits, amounted in value to $202.92. Further, that the half of the crop (1,648 pounds) had been applied in part payment of these supplies, and the remainder, which had been attached, belonged to him for the use of his lands, etc.

He denies that any of the cotton had been turned over to him for rent, or that any one had authority thus to turn it over, but claims the right to all of it until he may be paid for supplies. He says that the whole crop made, will not pay for the use of the land, teams and supplies furnished, and that Armistead never had any interest in it, except for the balance, as aforesaid. He denies, further, that the plaintiff has any lien as against him.

Judgment was rendered, before the justice, in favor of defendant Burgie, and Paralee appealed to the circuit court, where the cause was tried de novo, on the same pleadings. There was a verdict, in favor of plaintiff, for $96, motion for a new trial overruled, judgment, and appeal to this court by defendant Burgie, with bill of exceptions.

Armistead, testifying for the plaintiff, said, that he had contracted to work some ground ” on Burgie’s plantation, in 1875, on halves, Burgie furnishing land, teams and utensils. That Burgie was to furnish him, and nothing was said about who should pay for supplies ; others, working on the same place for a half, paid for their supplies out of their half of the crop. "Witness employed Paralee to work for him under his contract. Burgie took the whole crop, one-half for himself, and the other half to pay for supplies furnished witness. The contract between Paralee and Armistead was then introduced, and proof made that she had rendered the services, and had not been paid, and that cotton -was worth from 8 to 10 cents per pound.

Burgie testified, for himself, the same matter set up in his answer, with regard to the nature of his contract with Armistead, especially that he was to be paid for supplies furnished Armistead, out of his half of the cotton, and pay him over the balance only. He proved the indebtedness of Armistead, and that his half of the crop was insufficient to pay it.

It was further proved, on the part of defendant, that the contract between Paralee and Armistead was not really made until some time in March or April, and ante-dated.

It is apparent, from the pleadings and evidence, that the relation of landlord and tenant did not exist between Burgie and Armistead. The latter was merely what is called a cropper, to be paid for his labor out of the proceeds of the crop. This is equally true, whether he was to be paid half the proceeds in gross, or. only the balance after deducting from his half advances for supplies. He was in no sense a tenant. His contract for labor was a personal one, to be paid for by either the gross half, or the balance of the half, as aforesaid, as the jury might determine the contract to have been. (Christian v. Crocke et al., 25 Ark., 327; Ponder v. Rhea, 32 ib., 435.) Under the laborer’s lien act he had a lien upon the crop raised, for whatever his claim might be, and as against him Paralee had a lien for the proceeds of 1,200 pounds, but only to the extent of his' claim against Burgie. If he had nothing coming from his employer, there was nothing upon which any lien in favor of Paralee could attach, inasmuch as she was not a laborer for Burgie, nor connected with him by any privity of contract. She had no right to take his property to satisfy a contract made with Armistead for the latter’s benefit.

The instructions of the court to the jury were based upon the supposition that the relation of landlord and tenant existed between Burgie and Armistead, and that the lien of the former extended only to the half of the •crop due for rent, and that as to the other half the lien of Paralee was superior. The evidence would not have authorized the jury in finding a tenancy, and the law governing landlord’s liens has no application to the case. The instructions should have been in accordance with the principles above indicated, and it should have been left to the jury to determine the amount, if any, due Armistead under the contract; deducting from the half of the crop the amounts of supplies furnished, if they should find such to have been the contract — or alloAving the whole half, to the extent of plaintiff’s claim, if they should find no contract for making such deduction to have been made, or impliedly ■understood by the parties. The plaintiff, by virtue of her lien against Armistead for labor, may enforce against Burgie, who got the cotton, just such lien as Armistead had for his labor, and no more. She stands in Armistead’s .shoes, claiming under and through him. If, indeed, Armistead contracted to make a crop for one-half, less supplies furnished, it would be grossly inequitable to allow him to take up the half in supplies, and, by employing another to do the work he contracted to do, give that other a lien as against the landlord upon the very crop for which the landlord had paid. No such construction can be put upon the statutes.

For error in instructions, the nature of which has been sufficiently pointed out, let the judgment be reversed, and the cause remanded for anew trial.


text:
    Kelly vs. Altemus.
    1. í'ekbymah' : Ferriage.

    A ferryman can not charge, as a common carrier, for the contents of a wagon separately from the wagon itself. The fixing of the rates of ferriage by the county court is for the protection of the public against, an abuse of the franchise.
    2. Replevin : Measure of damages in.

    The ordinary measure of damages for the plaintiff in replevin, as to. property which has no usable value except for consumption, in the absence of proof of special damage, is legal interest on the value of the-property, in addition to the property itself or its value. But as to property having a usable value by waj>- of bailment for hire, like horses or tools, the measure is the value of the use during the detention.
    The loss of a job by the taking and detention of one’s tools is too remote as an element of damages.
    APPEAL from Pulaski Circuit Court.
    Hon. J. ~W. Martin, Circuit Judge.
    Ratdiffe, for appellant.
   Eakin, J.

Replevin before a justice of tbe peace, by Altemus against Kelly, to recover a chest of tools. It was taken under the writ, detained by the officer three days,, and then delivered to plaintiff. Verdict and judgment for the plaintiff, with $25 damages and cost, from which Kelly appealed to the circuit court.

Upon a trial de novo, there, the plaintiff again had a verdict and judgment against defendant and his sureties on the appeal bond, for $28 damages and cost. There was a motion for a new trial, which was overruled upon a remittitur by plaintiff of half the damages — bill of exceptions and appeal.

It appears from the pleadings and evidence that plaintiff is a carpenter, who had obtained employment at some point beyond the river from the city of Little Rock, and had engaged a person to carry his tool-chest to the place and deliver it there. This person placed the chest in the charge of one of the drivers of the carts of a coal company, who placed it in his cart and drove it on a ferryboat under the control and management of Kelly. By an understanding between the owners of the ferry and the coal company, the carts' of the latter were passed over upon tickets, which were good to pass them whether loaded or unloaded. It had been the practice, however, for the drivers of the carts to pay extra for any freights they might carry over in them other than coal. There were no rates of ferriage for boxes or packages of goods established, nor was any notice of them posted. Kelly inquired of the driver, whilst the boat was crossing, concerning the ownership of the box or chest, and being informed that it belonged to plaintiff, remarked that Altemus already owed him two dollars for freights; and the driver not having the money to pay the freight, Kelly removed the chest from the wagon, and kept it until the same was replevied. He did not demand any particular amount for the freight, but had been in the habit of receiving fifty cents for such packages. The plaintiff' lost the job by the detention of his tools. Tie was employed at the rate of $2.80 per day, and did not get another job for ten days. There was no established rates of ferriage for freights out of wagons. The rates for wagons were posted on the boat, but the evidence failed to show what they were.

Upon this state of the evidence, the defendant failed to show that, as the agent of the ferry company, he was' entitled to demand or receive any freight, separately, for a box in a wagon. It was his duty to pass wagons loaded or unloaded, at the posted rates of ferriage, whatever that might be. If he had charged or demanded more, he would have committed an offense against the law, and would have been liable to a forfeiture of ten dollars. If, under the contract with the coal company, the ferriage ticket was not good for a loaded wagon, he should have refused it and demanded the posted rate for the wagon itself. He had no right to inquire into the ownership of the contents, and charge separate freights for that — or to take^ it out of the wagon and retain it for separate charges. He accepted the ferriage ticket, which compelled him to pass the wagon and its load, and he had no right to take the chest out and retain it. The verdict was properly for the plaintiff, so far as regarded the property.

It is not meant to hold that a ferryman, outside of the articles included in the posted rates, may not also be a common carrier of freights across a stream. But with regard to such things as are fixed by the county court, and included in the posted schedule of rates, as wagons were, his duties and obligations are statutory, and he is confined to those rates as a ferryman. He can not charge as a common carrier for the contents of a wagon separately from he wagon itself. So far as the county court goes to establish'rates, they are for the protection of the public against an abuse of the franchise.

The court, upon this point, properly instructed the jury, and so far the verdict was right.

Upon the point of damages, the court also properly instructed the jury that they could only look to the immediate injury resulting from the taking and detention of the property, and not to any remote injury growing out of such taking and detention. The jury found for the plaintiff what he might have received for wages by ten days’ labor with the use of the tools in the chest if they had not been detained. They were in fact only detained three days, but the plaintiff’ claimed and testified that it was ten days before he got another job. It is not apparent how the detention of the tools for three days prevented his use of them for the other seven, nor is it clear that during the three days he might not have made some remunerative use of his time and labor. He was not entitled to sit idle and claim speculative damages. Nor was it a proper case for vindictive or punitory damages. If, in fact, business was so dull, that being capable of rendering services worth $2.80 a day, he could not find employment, that was his misfortune, and not the immediate result of the action of defendant. He might not have got a job for six months, yet it can not be thought the defendant should pay him full wages all that time. It is not even shown how long the particular job he had in hand would have lasted, or what he would have made by it; although that would have been itself mere speculative damage, as he might have fallen sick, or the job may have been discontinued. He says, generally, that he was promised employment for several weeks.

The jury evidently made their verdict, as to damages, upon a misapprehension or disregard of instructions. The error was only mitigated, but not cured, by the remittitur. There was nothing upon which to base a verdict for even half the amount. The defendant was entitled to have his case considered upon a fair understanding of the principles upon which the jury should act, and it is not easy to conceive on the evidence how, so acting, the jury could have found a verdict for more than the interest on the value of the tools whilst detained. That would have been the full measure of compensation.

The ordinary measure of damages for the plaintiff in replevin, in the absence of proof of special damage, is legal interest on the value of the property, in addition to the property itself or its value. [See Blakie v. Cooney, and cases cited, 8 Neb., 41]. This with regard to property which has no usable value, except for consumption. With regard to property having a usable value by way of bailment for hire, like horses or tools, the true measure is the value of the use during the detention. [Allen v. Fox, 51 N. Y., 562. S. C. Sedgwick’s Leading Cases on Measure of Damages, p. 650.] There may, of course, be special damages from deterioration of the property. But there is no warrant in law or reason in holding the measure of damages to be what the plaintiff might have made by the use of the property in his own labor or business. In this case, the jury acted on this last idea.

For error in overruling the motion for a new trial, let the judgment be reversed and the cause remanded for a new trial.


text:
    State of Arkansas vs. Devers.
    1. Jurisdiction or Circuit Courts : Sow ascertained.

    The correct method of ascertaining the civil and criminal jurisdiction of the circuit courts, is to see what cases, or class of cases, are confided by the constitution exclusively to the jurisdiction of other tribunals; and the great residuum belongs exclusively, or concurrently, to the cireuit courts.
    2. Jurisdiction: Concurrent.

    In cases of concurrent jurisdiction in different courts, the first exercising jurisdiction rightfully acquires control, to the exclusion of the other.

      3. Circuit Courts : Gan not be deprived of jurisdiction.

    It is not in the power of the legislature, under the provisions of the constitution, to deprive the circuit courts of all original jurisdiction of misdemeanors; and the act of the fifteenth of March, 1879, attempting it, is unconstitutional and void.
    APPEAL from Faulkner Circuit Court.
    Hon. J. ~W. Martin, Circuit Judge.

      Mr. Attorney General Henderson, for the State.
   English, C. J.

At the December term, 1878, of the circuit court of Eaulkner county, George Devers was indicted, for misdemeanors. There were two counts in the indictment, the first charging him with wearing a concealed weapon — a pistol; and the second charging him with carrying a pistol as a weapon.

At the March term, 1879, the defendant moved to dismiss the indictment, on the ground that the court had no jurisdiction to try the offense charged against him in the indictment, the jurisdiction being in justices of the peace of the county, etc.

On the hearing of the motion, the prosecuting attorney asked the court to make the following declarations of law :

1. “That the act of the fifteenth of March, 1879, giving justices of the peace exclusive jurisdiction of misdemeanors, is unconstitutional and void.

2. “ That the constitutionality of said act does not affect, or take from this court its jurisdiction over indictments for misdemeanors found and duly returned into the court by the grand jury before the passage of the act.”

The court refused to make these declarations of law, but declared the law to be, that “ the exclusive jurisdiction to try misdemeanors is now vested in the justices of the peace,' and there is no original jurisdiction in this court to try this cause, or to proceed further herein.”

The court, accordingly, sustained the motion of defendant, and ordered the case dismissed and stricken from the docket; and the state appealed.

The first section of the act of the fifteenth of March, 1879 (Ads of 1879, p. 8f), is : “ That justices of the peace of this state shall have exclusive jurisdiction of all cases of misdemeanors, to try, and finally to determine the same; provided, however, that the circuit courts shall have concurrent jurisdiction in cases of false imprisonment and malfeasance in office.”

The second section gives any person convicted before a justice of the peace, the right of appeal to the circuit court, on executing bond, etc.

The third section repeals conflicting laws.

No provision is made for the disposition of indictments pending in the circuit courts at the passage of the act.

The legislature attempted to deprive the circuit court of original jurisdiction of all misdemeanors except false imprisonment and malfeasance in office, and vest such jurisdiction exclusively in justices of the peace.

If this law be constitutional, justices of the peace now have exclusive original jurisdiction of all misdemeanors except false imprisonment and malfeasance in office, as to which only, the circuit courts retain concurrent jurisdiction.

By sec. 15, Art. 6, of the Constitution of 1886, it was provided that justices of the peace should have no jurisdiction to try and determine any criminal case or penal offense against the state, but might sit as examining courts, etc.

By an amendment of the constitution, passed by the two houses, ratified November 17, 1846, the general assembly was empowered to conier such jurisdiction as it might deem proper on justices of the peace in prosecutions for assault and battery, and other penal offenses less than felony, which might be punished by fine only. English’s Digest, p. 71.

By act of sixteenth of December, 1846 (Acts of 184,6, p. 69), the legislature attempted to confer upon justices of the peace, jurisdiction to try and punish by fine, assaults, assaults and batteries, affrays, etc., without presentment or indictment by a grand jury.

In Eason v. The State, 11 Ark., 481, this act was held to be null and void, because in conflict with the fourteenth section of the Bill of Rights, which declared: “That no man shall be put to answer any criminal charge, but by presentment, indictment or impeachment;” and which the court held was not repealed, or modified, by the amendment to the constitution, ratified seventeenth of November, 1846.

The fourteenth section of the Declaration of Rights of the Constitution of 1864, was in these words: “That no man shall be put to answer any criminal charge, but by presentment, indictment or impeachment, except as hereinafter provided.”

And by a clause of section eighteen, article seven, such jurisdiction was given to justices of the peace as .might be. provided by law “ in prosecutions for assault and battery, and other penal offenses less than felony, punishable by fine only.”

By a clause of section twenty-two, article seven, of the constitution of 1868, it was provided that: “In criminal causes the jurisdiction of justices of the peace shall extend to all matters less than felony for final determination and judgment.”

And section nine of the Rill of Rights, declared that: “ No man shall be held to answer a criminal offense unless on presentment or indictment of a grand jury, except in cases of impeachment, or in cases of petit larceny, assault and battery, affray, vagrancy, and such other minor cases as the general assembly shall make cognizable by justices of the peace,” etc.

The fifth clause of section 1642, of Gantt’s Digest (enacted while the constitution of 1868 was in force) provides that: “In criminal causes, the jurisdiction of justices of the peace shall extend to all matters less than felony, for final determination and judgment; provided, that circuit courts shall have jurisdiction concurrent with justices’ courts in all such cases.”

Thus it appears that at the time of the adoption of the present constitution, the circuit courts and justices of the peace had concurrent oi’iginal jurisdiction of all criminal offenses less than felony — in other words, of all misdemeanors. James Bradley v. State, 32 Ark., 725.

Section eight, of the Declaration of Rights of the present constitution (1874) provides that: “No person shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury, except in cases of impeachment or cases such as the general assembly shall make cognizable by justices of the peace, and courts of similar jurisdiction,” etc.

And by the third clause of. section forty, article seven, it is provided that justices of the peace shall have such jurisdiction of misdemeanors as is now, or may be, prescribed by law.

By this clause, the criminal jurisdiction of justices of the peace is limited (except for examination, commitment, or bail) to misdemeanors; and it gave them such jurisdiction of misdemeanors as was then, or might thereafter be, prescribed by law.

Ve have above shown that by the law in force when the constitution was adopted, justices of the peace had jurisdiction • of all misdemeanors, and they will continue to have such jurisdiction until otherwise prescribed by law.

But by the law in force when the constitution was adopted, though they had jurisdiction of all misdemeanors, their jurisdiction of that class of crimes was not exclusive, hut the circuit courts had concurrent jurisdiction with them of misdemeanors.

The act of fifteenth of March, 1879, attempts to deprive the circuit courts of all concurrent jurisdiction of misdemeanors, except false imprisonment and malfeasance in office, and, of course, the legislature may also deprive them of jurisdiction of the cases excepted, if it had power to divest them of jmñsdiction of all other misdemeanors.

Is it, then, in the power of the legislature, under the provisions of the constitution, to deprive the circuit courts of all original jurisdiction of misdemeanors?

The constitution vests the judicial power of the state in a supreme court, circuit courts, county and probate courts, and in justices of the peace; but provides for the creation, by the general assembly, of municipal corporation courts, courts of common pleas, and separate courts of chancery, and prescribes what judicial power may be distributed to them when established.

The constitution prescribes, limits and defines, with more or less accuracy, the jurisdiction to be exercised by all of tbe courts except the circuit courts, and instead of attempting to define their jurisdiction (other than appellate), leaves to them the great residuum of civil and criminal jurisdiction not distributed exclusively to other courts.

Sections 4 and 5, of Art. 7, define the jurisdiction of the supreme court, which is appellate, supervisory and ancillary, with original jurisdiction only in the cases specified in section 5.

Section 14 prescribes the superintending and appellate, but not the original, jurisdiction of the circuit courts.

Section 15 gives them jurisdiction in matters of equity until courts of chancery are established.

Sections 28 and 84 define the jurisdiction of county and probate courts, and section 40, of justices of the peace; and sections 43 and 32 prescribe and limit the jurisdiction that may be vested in corporation courts, and courts of common pleas.

The original civil and criminal jurisdiction of the circuit courts is not otherwise defined than as follows :

“Section 11. The circuit courts shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which may not be vested in some other court provided for by this constitution.”

To maintain the constitutionality of the act of fifteenth of March, 1879, this section would have to be interpreted to read as follows:

“ The circuit courts shall have jurisdiction in all civil and criminal cases, the exclusive jutisdiction of which may not be vested (by the general assembly) in some other court provided for by this constitution.”

But the interpolation of the words, by the general assembly, would not only not be in harmony with the grammatical construction of the section, the verb “may (not) be vested” being in the present tense, and implying nothing to be done in the future, but it would leave the civil and criminal jurisdiction of the circuit courts very much at the will of the legislature, which would, be at variance with the judicial plan of the constitution.

For example, section 32 provides that: “The general assembly may authorize the judge of the county court, etc., etc., to hold a quarterly court of common pleas, etc.; which shall be a court of record, with such jurisdiction in matters of contract, and other civil matters, not involving title to real estate, as may be vested in such court.”

Here the verb may be vested, is again used, but from its context it necessarily implies future legislative action.

Now suppose the meaning of section 11 to be that “the circuit courts shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which may not be vested (by the general assembly) in some other court provided for by this constitution,” and it would follow that the legislature might vest in a court of common pleas, established for any county, exclusive “jurisdiction in matter of contract and other civil matters, not involving title to. real estate,” and utterly strip the circuit court of all original jurisdiction of such matters.

The true reading of section 11, viewed in the light of the judicial plan of the constitution, is manifestly this :

“ The circuit court shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which may not be vested {by this constitution) in some other court provided for by this constitution.”

The section, when so read, is not free from tautology, nor as euphonious as it was written by Brother Eaicin, who was a member of the convention and drafted it, but, so read, it more clearly expresses the intention of the framers of the constitution, and harmonizes with all of its provisions distributing the judicial power among the courts.

By section 11¡. the circuits are given a superintending control and appellate jurisdiction over all the courts inferior to them.

By section 15, they are to have jurisdiction in matters of equity until the legislature shall deem it expedient to establish courts of chancery.

Their original jurisdiction in civil and criminal cases is readily ascertained by comparing other sections of the article on the Judicial Department with section 11, as above mentioned.

By section 5, the supreme court, in the exercise of original jurisdiction, may issue writs of quo warranto to the circuit judges and chancellors, when created.

This jurisdiction is perhaps exclusive in this court, as the circuit judges are of co-ordinate rank, as will be the chancellors when created.

By the same section the supreme court may issue writs of quo warranto to officers of political corporations when the question involved is the legal existence of such corporations.

In such eases, the circuit courts may, no doubt, exercise concurrent jurisdiction, as the jurisdiction of this court is not made exclusive.

By section £8, the county courts are given exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, apprenticeship of minors, etc., etc., and, as to all such matters, the circuit courts are excluded from the exercise of original jurisdiction.

So, by section 31h the exclusive original jurisdiction of probate courts is provided for.

Section 40, which prescribes the jurisdiction of justices of the peace in civil and criminal matters, gives them no exclusive jurisdiction in civil cases, except in matters of contract where the amount in controversy does not exceed the sum of one hundred dollars, excluding interest. In all other civil eases, their jurisdiction, to the limited extent to which it is conferred, is concurrent with the circuit courts.

The framers of the constitution refused to give them exclusive jurisdiction in suits for the recovery of personal property, no matter how small the value, and in suits for damage to personal property, however trifling the injury— and gave them no civil jurisdiction whatever in cases of injuries to persons, or trespasses upon real estate.

By what consistent logic, therefore, may it be maintained, in the absence of any express provision of the constitution to that effect, that its framers intended to empower the legislature to confer upon them exclusive jurisdiction of all misdemeanors, many of w^hich are grave offenses, involving the peace and good order of society, and seme of them punishable by heavy fines and deprivation of liberty.

Down to the time of 1he adoption of the constitution of 1868, there was no attempt to confer jurisdiction upon justices of the peace of any misdemeanors except such as were punishable by fine only. That constitution opened the way to give them jurisdiction of all misdemeanors concurrently with the circuit courts.

The framers of the constitution of 1874 simply said, in effect, by the third clause of section 40, above copied, that they might continue to exercise such jurisdiction until otherwise prescribed by law, but there is nothing in this clause, or in the section of which it is a part, or in any section of the article on the judicial department, from which it may be fairly implied that the framers of the constitution intended to leave the legislature at liberty to deprive the circuit courts of all jurisdiction of misdemeanors.

The correct method of ascertaining what jurisdiction the circuit courts have in civil and criminal cases, is to see what cases, or class of cases, are confided by the constitution exclusively to the jurisdiction of other tribunals, and the great residuum belongs concurrently or exclusively to the circuit courts.

There is no direct provision of the constitution giving the circuit courts jurisdiction of felonies. If we have not, as above, given the proper construction of section 11; and if the jurisdiction of all criminal cases is within the control of the legislature, there is no section or clause of the constitution that would expressly forbid the legislature from conferring upon justices of the peace exclusive jurisdiction of felonies, as well as misdemeanors. There is nothing in the literal reading of the Bill of Rights to prevent this, for section 8 merely declares that: “No person shall he held to answer a criminal charge unless on the presentment or indictment of a grand jury, except in cases of impeachment or cases such as the general assembly shall make cognizable by justices of the peace, and courts of similar jurisdiction,” etc.

And yet if the legislature were to attempt to strip the circuit courts of jurisdiction of felonies, and place the lives and liberties of men in the hands of justices of the peace, however intelligent that useful body of magistrates may be, it would strike bench, bar and people as an act at war with the spirit of the constitution, and an innovation upon the long established judicial policy of the state.

There need he no conflict or confusion in the exercise of concurrent jurisdiction of misdemeanors by the circuit courts and justices of the peace. In cases of concurrent jurisdiction in different tribunals, the first exercising jurisdiction rightfully acquires the control, to the exclusion of the other. James Bradley v. State, 32 Ark., 725.

The justices of the peace holding their courts in every township, without terms, and always open, may well try •and punish summarily, most of the misdemeanors. The grand juries, assembling but twice a year, may look over their fields, and present to the circuit courts such cases as may have been neglected by the justices of the peace, and cases of a graver character, affecting the peace, morals and good order of communities.

If the orderly and law-abiding people of the state prefer to have all misdemeanors tried and punished summarily before justices of the peace, they may accomplish their preference of jurisdictions, regardless of the act of fifteenth March, 1879, by causing offenders to be brought before the justices. But if they are wanting in such zeal for the public good, the grand juries, prosecuting attorneys and •circuit courts must make up for their shortcomings.

If we merely doubted the constitutionality of the act in ■question, we would, according to the judicial custom, with all due respect for the judgment of the legislative department, resolve such doubt in favor of the validity of the act. But being of the opinion that the act is an unwarranted attempt to deprive the circuit courts of part of their constitutional jurisdiction, we can not, in the conscientious discharge of judicial duty, do otherwise than pronounce it invalid.

The judgment must be reversed, and the cause remanded with instructions to the circuit court to reinstate the cause and dispose of it according to law, and not in consistent with this opinion.