text:
    Driver vs. Jenkins.
    1. Lien, by Pakoe: Equity Jwisdietion.

    One who furnishes money and supplies to another to make a crop, under a verbal agreement that he is to have a lien on the crop to be raised, of which he is in possession at the institution of the suit, acquires, in equity, a lien which that Court will enforce, there being no adequate remedy at law.
    APPEAL from Mississippi Circuit Court in Chancery.
    Hon.--, Circuit Judge.
    The appellant.
    The demurrer being general, could only put in issue the jurisdiction as based upon the facts as they appear in the bill. Gantt’s Digest, section 4565. It admits the allegation of a lien. State v. Stephenson, 2d Ark., 260; Keith v. Pratt, 5 Ark., 661.
    This gives jurisdiction for want of adequate remedy at law. See Conway ex parte, 4 Ark., 303; Witter v, Arnett, 8 Ark., 57.

      John C. Palmer, for appellee.
    Lien defined £d Bouvier’s L. Biot., 47. Verbal liens are only by bailment, parting with possession is fatal to it. Barnett et al. V. Mason et al, 7 Ark., 253.
   Walker, J.:

The appellant filed his bill in chancery to subject certain personal property to sale, to satisfy a debt of $678.77, for the payment of which he claimed to hold an express lien, by contract, upon the property for the payment of the same.

The defendant appeared and filed a demurrer to. the bill upon the ground that the court had no jurisdiction of the matter set forth in the bill of complaint.

The court sustained the demurrer and proposed to transfer the case to the common law docket, but the plaintiff declined to make the transfer, and rested upon the sufficiency of his bill in a Court of Chancery, whereupon the court dismissed the case, and rendered judgment against the plaintiff for costs, from which judgment the plaintiff appealed.

No special grounds for demurrer were set forth. The sole grounds of demurrer was that the cause of action set forth in the bill was one of which a Court of Chancery had no jurisdiction.

The complaint was that the defendant was indebted to the plaintiff in the sum of $675.77 for supplies of provisions, goods and merchandise, and for money advanced — most of which was for supplies of provisions and money to pay for the hire of hands; that such supplies and money were advanced to enable the defendant to plant, cultivate and gather a crop for the current year of 1874; that at the time these advances of supplies and money were made, it was verbally but expressly agreed between the parties that complainant should have an absolute lien upon all of the crop to be raised on the plantation of plaintiff by defendant, until the supplies and money so advanced should be fully paid; that plaintiff has in his possession the crop so raised — three bales of cotton, worth $150, and two hundred bushels of corn, worth $200; that his debt remains unpaid, sets up his lien right to satisfaction out of the corn and cotton in his hands, and prays judgment for his debt, and that the cotton and corn may be sold to pay the same.

Conceding all this to be true as the demurrer does, the question is, has the plaintiff a right to equitable relief, or should he resort to a court of law for redress.

The plaintiff was entitled to the benefit of his specific lien by-contract upon the cotton and corn, for the payment of his debt.

The common law court had no power to enfore the execution of the contract upon the crop raised, and it follows that the remedy in that court was not full and complete, and when such is the case, a court of equity has jurisdiction to give such adequate relief.

Liens may result from the rules of the common law; may originate from usage; may be created by statute; or may arise from the contract of the parties. The lien rests upon the idea, that the party having it has a right in, or to, the property until his claim has been paid or satisfied by the owner of the property. Houck on Liens, 34, says: “ a general lien is a right to retain all the property of another for a general balance of accounts, as where an agent advanced money at different times for his principal, he has a general lien on all of the goods of the principal in his hands. A particular lien is a right to retain a thing for a charge on account of labor employed or expenses bestowed upon it.”

Whitaker in his work on liens, page 8-, says: “liens are either general or special; a special or particular lien is a right to retain the property of another on account of .labor employed or money expended upon the same property.”’

In the case under consideration, the plaintiff furnished to the defendant subsistence for himself and hands, whilst planting, cultivating and gathering in the crop, and also money with which to hire hands for that purpose.

This money and supplies were expended' in making the crop, without which it might not have been made-. In many cases where labor is thus bestowed and. money expended, the law asserts a lien in behalf of the party who thus bestows labor or expends money upon the property, and to retain possession of it until paid. Statutes are passed in this and most of the States to protect mechanics and others in their right of lien.

In this case, the lien right is asserted under an express contract of lien upon the crop to be raised for the year 1874, on the plaintiff’s farm, but as there was at the time that the contract was made no crop in existence, no lien could, at the common law, exist. In the case of Apperson & Co, v. Moore, decided at the present term of this court, we held that a mortgage on a crop to be planted and grown, was invalid at law, but that in equity such contract could be enforced; that although the crop had no existence when the deed was executed, still when afterwards the crop matured, the lien in equity attached to it.

Here there is a right without an adequate remedy at law. It is a maxim in equity that equity will not suffer a right to be without a remedy. This maxim is the foundation of equitable jurisdiction; because that jurisdiction had its rise in the inability of the common law courts to meet the requirements of justice. Bispham’s Equity, page 46.

The same author at page 333 says: sales of personal property to be acquired in futuro, which would not have been considered good under the strict rules of the common law, may be sustained in equity; so also mortgages of similar property, which would not be recognized in the courts of law, may be upheld in courts of equity.” This authority is in strict conformity with our decision in Apperson & Co. v. Moore,

Yielding our full assent to the correctness of these authorities, we must hold that the complainant made a clear case in equity by his bill, and that the court below erred in sustaining the demurrer to it.

Let the judgment be reversed and the cause, remanded for further proceedings,


source: Caselaw Access Project

author: Walker, J.:

license: Public Domain

text:
    Hydrick vs. Burke.
    1. Husband and wife. Proceeds of wife’s property.

    Money derived from the sale of a married woman’s land in another State will, in the absence of a statute of that State enlarging her rights, vest in the husband.
    2. Conflict of Law. Presumption as to the law of another /State.

    In the absence of evidence as to the law of another State, it will be presumed that the common law is in force.
    3. Husband and wife. Married women cannot contract.

      A married woman cannot, at common law, contract for and purchase property in her own right.
    3. Property acquired by a married woman in another /State.

    In order to protect a married woman in the enjoyment of property brought by herself and her husband into this State, she must show that she acquired a perfect title at the place of purchase, and that the instrument under which she claims was either recorded in that State or under the laws of this State.
    APPEAL from Lincoln Circuit Court.
    Hon. Read Fletcher, Special Judge.

      Llarrison & Jones for appellant.

      Ford for appellee.
    Cited and relied upon Constitution of 1868, art. 12, sec. 6; Gantt’s Digest, ch. 93, secs. 4193-94; Bush v. Vaught, 55 Penn. St., 437; JBrummet v. Weaver, 2 Oregon, 168 ; Schwrman v. Marley, 29 Ind., 458; Spaulding v. Lay, 10 Allen (Mass.), 96; Vreeland y. Vreeland, 1 Green (N. J.), 572; Buckley v. Wells, 33 N. Y., 518 ; Jennings v. Lavis, 31 Conn., 134; Kirkpatrick v. Buford, 21 Ark., 268. The act of 28th April, requiring registration, was not passed when the right of action accrued.

      Lick Gantt, for same.
    The act in Gould’s Digest, if it ever applied to require a schedule of a married woman’s personal property, was impliedly repealed by the Constitution of 1868. The Constitution should receive a liberal construction. Cooly on Con. Lim., p. 61, and cases cited. See Goldman v. Clark, 1 Nev., 607.

      In absence of proof, the laws of a foreign State are presumed to be those of the forum. Cox v. Morrow, 14 Ark., 603; Tatum v.. Hines, 15 Ark., 180.
    Husband does not acquire title to wife’s property by possession and use. White, admr., v. Zane, 10 Mich., 333; Wales v„ Newhould, 9 Mich. 45.
    The verdict of the jury will not be disturbed where there is not total want of evidence. Rose’s Digest, p. 562.
    The act of 1873 only'required the real estate to be scheduled.. See pamphlet act, p. 379, sec. 10, although different in the Digest. There has been no act making Gantt’s Digest the law of' the land.
   Walker, J.:

This suit was brought by Jane C. Burke, a married woman, to. recover two mules, a wagon and harness, which she claimed as her separate property, bought in the State of Missouri by her-husband, at her instance, with her money, which she claims to have received for a tract of land which came to her by descent,, which she sold in the State of Tennessee, whilst she resided in that State with her husband. She and her husband removed from Missouri to Arkansas.- At what time they came to Arkansas, or how long they resided in this State does not appear from the evidence. No date is given as to the time of residence, either in Tennessee or Missouri. It is in proof, however, that on the 15th of November, 1872, the husband, without the knowledge or consent of his wife, took the mules and wagon from Little Rock, where they resided, to Lincoln county, in this State,, and sold and delivered them to the defendant, and received.from him part of the purchase money.

It is in evidence that the wife claimed the property as her own whilst living in Little Rock, and hired a driver to drive the-team, but that the husband sometimes drove it. About the 1st of December, 1872, the plaintiff went to the house of defendant and claimed the property as hers. Defendant refused to deliver the property to her. She went to Pine Bluff, where her husband was then living, and resided with him. The plaintiff denies positively that she ever assented to the sale of the property to defendant, whilst the evidence of the defendant and two witnesses strongly prove that she assented to the sale. The defendant states that she urged him to make the last payment for the mules, etc.; that she and her husband were in need of the money. Two witnesses state that she sent Avord by them to the defendant to pay the balance of the purchase money without further delay. The defendant testifies.that he paid to her husband the balance of the purchase money for the property at their own house in Pine Bluff, the plaintiff then living in the house, and in a position Avhere she might have seen and heard Avhat passed when the payment Avas made, and made no objection to the payment to the husband.

Upon this point there was clearly a conflict of evidence; which, whilst the preponderance appears to have been greatly in favor of the defendant, it may not be necessary to consider, because, unless it shall appear that the wife was, in fact, the owner of the property in her oavu right, her subsequent affirmance of the sale by her husband is immaterial.

Conceding it to be true that the money used in payment of the property was that received by the wife for land in Tennessee Avhich came to her by descent, still, in the absence of a statute of that State enlarging her marital rights, the husband, by virtue of his marriage, was entitled to the money, the proceeds of the sale of the land.

The statute of Tennessee was not introduced as evidence of the laws then in force, and the court could not take judicial notice of the statutes of Tennessee. Cox v. Morrow, 14 Ark., 606.

In the absence of this evidence, it is to be presumed that the . common law is still in force in that State, $ind consequently the wife’s claim to a separate property in the money must fail. See Perry on Trusts, page 278.

At the time of the purchase of the mules, wagon and harness in Missouri, the plaintiff was a femme covert, and if she then had power to contract for, and purchase property in her own right, such power must have been conferred by the statutes of Missouri, with regard to which there was no proof.

When property claimed by a married woman is brought by herself and husband into this State, in order to protect her title to it she must show that she acquired a perfect title to the property according to the laws of the State where the purchase was made. When this is shown, and that the instrument through which she acquired her title is there recorded, as held in Oneil v. Henderson, trustee, 15 Ark., 235, it is not necessary for the wife, in order to protect her right to the property, also to record it .in the county in which she resides in this State; otherwise, unless so recorded according to the laws of this State, she cannot hold it as separate property, as held by this court in the case of Beeman and wife v. Cowser et al. 22 Ark., 432.

The 7th section, chapter 3, Gould’s Digest, which was in force at the time this right accrued, expressly provides that before any married woman shall be entitled to the privileges and benefits of this chapter (referring to preceding sections which confer the right to take and hold property in her own right) she shall cause to be filed in the Recorder’s office, in the county where she lives, a schedule of the property derived through her.

The 8th section requires that the deed, or other instrument, by which she acquires title, shall set forth that the same is designed to be held exempt from the liabilities of the husband.

These provisions of the statute were evidently intended to so distinguish the separate property of the wife from that of her husband, and from her general property as to prevent fraud and imposition upon creditors and purchasers, and, unless these conditions are complied with, the right to hold separate property is lost.

At the instance of the plaintiffs the court instructed the jury that registration, or scheduling of the property was unnecessary in order to protect the wife in her title to the property in this State. This was erroneous because, as we have seen, there was no proof .of the existence of statutes changing the common law within Tennessee or Missouri, in the absence of which the presumption is that the common law is still in force there, and even if these States authorized the wife to take and hold separate property, under our decision in Oneil v. Henderson, trustee,, the instrument, under which she claimed title, should have been registered either in the State where the title was acquired, or in this State.

There were several other instructions given or refused, to which exceptions were taken, but as the determination of this instruction covers the material questions at issue we deem it unnecessary to notice them.

The court below erred in overruling the defendants motion for a new trial.

Lét the judgment be reversed and the cause remanded that a. new trial may be had.

Hon. W. M. Harrison, J., did not sit in this case.


author: Harrison, J.:

text:
    Oliver, Sheriff and Collector vs. Memphis & L. R. R. Co.
    1. Taxation: Exemption from irrepealable.

    The provisions of the charter of the Memphis & Little Rock Railroad' Company exempting its property from taxation could not be repealed by a subsequent Legislature or Constitutional Convention.

      2. Equity Jurisdiction: To restrain illegal taxes.

    A court of equity will not restrain the collection of an illegal tax unless irreparable injury would otherwise ensue. ( This cause came up before the passage of the act of — 1873 Rep.)
    APPEAL from Pulaski Chancery Court.
    Hon. T. D. W. Yonley, Chancellor.

      Montgomery & Warwick, for appellant.

      Clark & Williams, for appellees.
    The act of 11th January, 1853, exempting the road from taxation was not repealed, and could not be, constitutionally; reference made to the Chancellor's opinion, and authorities therein cited. State of Arkansas v. County Court of Crittenden County, 19 Ark., p. 360-72, and cases cited; Tomlinson v. Branch, 15 Wallace, 460, which shows that this exemption passes to a new company. See also Jessup v. Tomlinson ib., 454; Humphries v. Pegues, 16 Wallace, 244; Pacific R, R. v. Maguire, 20 Wallace 36.
   Harrison, J.:

This was a suit in the Pulaski Chancery Court, by the Memphis and Little Rock Railroad Company against William S. Oliver, Collector of Taxes of Pulaski County, to enjoin the collection of State and County taxes for the year 1869, on its road, work-shops, warehouses, cars, etc.,

The plaintiff was incorporated by a public act of the Legislature on the 11th day of January, 1853, the 28th section of which, act is as follows:

“The capital stock of said company shall be exempt from taxation until the road pays a dividend of six per cent., and the road with all its fixtures and appurtenances, including workshops, warehouses and vehicles .of transportation shall be exempt-from taxation for the' period of twenty years from and after the completion of said road.”

The complainant alleged that the road had never paid any dividend, and that the road was never completed; but that although not subject to taxation, the road with its work-shops, warehouses and ears within said County, had been assessed in said year, and State and County taxes levied thereon, and the defendant had seized and was about to sell the same for said taxes.

It further alleges that the sale would stop the running of trains and the transportation of the mails, passengers and freight, over that portion of the road, and thereby destroy and ruin the business of the company, and cause irreparable injury.

The defendant demurred to the complaint, for the want of equity, and specially assigned, that the provision in the charter exempting the plaintiff from taxation, was repealed by the Con- . stitutiou of 1868 and subsequent legislation.

The demurrer was overruled, and the injunction decreed.

The doctrine that a State Legislature may, when not restricted by its Constitution, exempt from taxation such property as it may deem expedient, is too well established by authority to admit of discussion, or be called in question. Pacific Railroad Company v. Maguire, 20 Wall, 36. The Delaware Railroad Tax, 18 Wall,206; Humphrey v. Peques, 16 Wall, 244; Tomlinson v. Branch, 15 Wall, 460; Wilmington Railroad v. Reid, 13 Wall,264; McGee v. Mathis, 4 Wall, 133; Jefferson Branch Bank v. Kelly, 1 Bench, 436; Ohio Life Insurance and Trust Company v. Debolt, 16 How., 416; Philadelphia and Wilmington Railroad Company v. Maryland, 10 How., 376; State v. County Court of Crittende County, 19 Ark., 360; and see also cases referred to by Mr. Justice Compton in the opinion of the court in the case just cited.

It is equally well settled, that a provision in the charter of a railroad company, exempting its property from taxation, whether for a period of years, or forever, is a contract, and as such inviolable by any attempt by the State to repeal or revoke the exemption. Pacific Railroad Company v. McGuire, 20 Wall, 36 ; Humphries v. Pegues, 16 Wall, 244; Wilmington Railroad v. Reid, 13 Wall, 264.

In the last cited case, the Supreme Court of the United States says: It has been so often decided by this court, that a charter of incorporation granted by a State, creates a contract between the State and the corporation, which the State cannot violate, that it would be a work of supererogation to repeat the reasons on which the argument is founded,” and the same court, White v. Hart, 13 Wall, 646, has directly held that “ a State can no more impair the obligations of a contract by adopting a Constitution than by passing a law,” and so has this court, in the case of Jacoway, adm’r, v. Denton, 25 Ark., 625.

Whether the Constitution of 1868, in force when this assessment was made, admitted of the construction assumed by the demurrer we need not consider,

The illegality of the taxes alone could not give the court jurisdiction to restrain the sale, but the sale of the road would most probably, if not necessarily, result in the stoppage of its trains and the suspension of its business for an indefinite time, and until the company could regain possession; an injury which, because the actual damages by reason of their uncertain nature, could not be ascertained, would be irreparable, and to prevent which it was the duty of the court to interpose by injunction. The defendant’s demurrer was rightly overruled.

There is no error in the decree and it is accordingly affirmed.


author: English, Ch. J.:

text:
    State vs. Anderson.
    1. Chimin al Law: Proof as affected by allegations of the indictment.

    If an indictment for playing at cards on Sunday state the name of the game alleged to have been played, it is necessary to prove it, though the allega_ tion was unnecessary.

      APPEAL from Nevada Circuit Court.
    Hon. James K. Youñg, Circuit Judge.

      Attorney General Hughes, for State.
    It was not necessary to allege the name of the game, or that money was bet State v. Graee, 21 Ark., 227; Stoelcden v. State, 18 Ark., 186. Whatever is not essential is surplusage. 1 Whar. Am. Crim. Law Book 1, sec. 624-6, Rev’ed.
   English, Ch. J.:

On the 30th of November, 1874, John D. Anderson was indicted in the Nevada Circuit Court for Sabbath breaking.

There were four counts in the indictment. The first count charged that the defendant on the first day of November, 1874, the same being' the Christian Sabbath, or Sunday, at etc., did engage in a game played with cards called euchre, etc.

The second count charged that, on the same day, he engaged in a game played with cards called casino, etc.

The third count charged that, on the same day, he engaged in a game played with cards called euchre, and bet money on said game, etc.

The fourth count charged that, on the same day, he engaged in a game played with cards called casino, and bet money on said game, etc.

The defendant pleaded not guilty ; and on the trial, the State proved, by a witness, that in October or November, 1874, and before the finding of the indictment, he saw the defendant engaged in a game played with cards, on Sabbath, in the town of Prescott, Nevada county, but could not i’emember the name of the game played, and had no means of refreshing his memory.

The Prosecuting Attorney asked the court to instruct the jury:

First — If the jury find from the evidence that the defendant, at any time within twelve months before the finding of the indictment, in the County of Nevada, etc., was engaged in a game played with cards on the Christian Sabbath, or Sunday, they will find him guilty of Sabbath breaking, and assess his fine, etc.

Second — The name of the game is not material and need not have been alleged in the indictment, and the allegation in the indictment in regard to the name of the game alleged to have been played, is mere surplusage, and should not be considered by the jury in arriving at their verdict.

These instructions ’the court refused; but gave the following, moved for the defendant:

First — That it is necessary for the State, before a conviction should be had to prove every material allegation in the indictment.

Second — That in an indictment for Sabbath breaking charging particular games of cards to have been played by. defendant, it devolves upon the State to prove the identical game or games, or one of that class of games charged in the indictment, and on failure to prove the games alleged, the jury must acquit.

Third — The defendant is entitled to the benefit of all reasonable doubts.

The defendant was acquitted and the State excepted and appealed.

The statute, under which the indictment was preferred, provides that “every person who shall, on the Christian Sabbath, or Sunday, be engaged in any game of brag, bluff, poker, seven up, three up, twenty-one, vingt-un, thirteen cards, the odd trick, forty-five, whist, or at any other game at cards known by any name now known to the laws, or with any other new name, for any bet or wager on such game, or for amusement without any bet or wager, shall, on conviction thereof, be fined in any sum not less than twenty-five dollars nor more than fifty dollars.” {Act January 12th, 1853) Gantt’s Digest, 1621.

In Stockden v. The State, 18 Ark., 186, there was a motion in arrest of judgment, because the indictment did not aver whether the defendant played the game at cards, on the Sabbath, for a wager, or for amusement, and it was held that neither averment was necessary. The court said: “The object of the statute was to prohibit the desecration of the Sabbath by engaging in the vicious employment of playing cards on that day, which is set apart by divine appointment, as well as by the law of the land, for other and better engagements, and, whether the defendant plays for a wager or amusement, he is alike guilty of a desecration of the Sabbath, and consequently of a violation of the law.

“The playing cards upon that day is the gist of the offense, and whether the playing be for a wager or amusement, is not material. No matter what the purpose of the game may be, it is a desecration of the day, and vicious to public morals in its tendencies.”

In the State v. Grace, 21 Ark., 227, it was held that in an indictment for playing cards on Sunday, it is not necessary to allege the name of the game played, citing Stogden v. The State, Sup., and The State v. Parnell, 16 Ark., 507.

In this case the indictment unnecessarily alleged in each count, the name of the game of cards at which the defendant played on the Sabbath. Was the State bound to prove the name of the game — did it become material because alleged, or was it such surplusage as need not be proved ?

The material act or thing charged to have been done on the Sabbath, was the playing at a game of cards, and the name of the game was averred as descriptive of the act or thing done.

Roscoe says where a person or thing necessary to be mentioned in an indictment is described with circumstances of greater particularity than is requisite, yet those circumstances must be proved, otherwise it would not appear that the person or thing is the same as that described in the indictment. Roscoe Cr. E., 101.

Courts are more strict in requiring proof of the matters and things alleged in a criminal than in a civil suit.

Mr. Roscoe states several cases illustrative of the above rule. For example, where a man was charged with stealing a blaeh horse, the allegation of 'color, although unnecessary, yet being descriptive of that which was material, could not be rejected. So where the prisoner was indicted for stealing four live tame turkeys, and it turned out in evidence that they were dead turkeys.

This court has heretofore applied this rule in several cases.

In Haney v. State, 9 Ark., 193, the indictment charged that the accused and four other persons bet together at a game of cards, and the proof was that the bet was with but one, and it was held that the charge was made with unnecessary particularity, but should have been proven as alleged.

So in Shover v. The State, 10 Ark., 259, the gist of the offense was in keeping a grocery open on Sunday, and the indictment alleged that the accused was the owner of the house. Held that it was not necessary to allege who owned the house, but, the ownership having been alleged, it should have been proven.

So, in an indictment for keeping a common gaming house, it was not necessary to allege that any particular game was played, but, having been alleged, the State was bound to prove the allegation. Dudney v. State, 22 Ark., 252.

The rulings of the court below were in harmony with these decisions, and the judgment must be affirmed.


author: Walker, J:

text:
    Nicholls & Barrett vs. Gee ad. et al.
    1. Claims Against Estatus. Probate of claims unnecessary in foreclosure of mortgage.

    In a-proceeding to foreclose a mortgage executed by a party who is deceased, it is unnecessary to probate the claim.

      2. TJsuby. The act repealing retro-active.

    The 6th section of the act of July 13th, 1868, repealing the statute of usury affected contracts then in existence, and precluded the defense of usury in a suit then pending.
    APPEAL from Chicot Circuit Court in chancery.
    Hon. John A. Williams, Circuit Judge.

      Garland for appellants.
    The plea of usury had been abolished by act of the Legislature. Woodruff v. Scruggs, 27 Ark., 26.
    There was no partnership’as to the $9,000. The two instruments of writing must be construed together. Vaugine, et al. v. Taylor, et al, 18 Ark., 65. The foreclosure for that is all that is claimed.

      D. H. Reynolds for appellees.
    The contract was usurious. Gould’s Digest, ch. 92, secs. 2 and 5; 22 Ark., 413; 7 Paige, 557 ; 2 Edwards, 267 ; Blydenburgh on Usury, 86, 248, 254; Kelly on Usury, 40 — and the mortgage in consequence. No legislation could cure it. Blydenburgh on usury, 87, 125 and 199 ; 5 Johns Chan. Rep., 122; 8 Paige, 639; 18 Ark., 456; Gould’s Digest, ch. 92, sec. 7; Kelly on Usury, 51, 56; Sedgwick on Stat. and Const. Law, pp. 177, 193-97 and 683. The bill should have been dismissed for want of affidavit of justness of claim and non-payment. Gould’s Digest, ch. 4, sec. 107; 7 Ark., 78; 14 Ark., 237, 247; 21 Ark., 519.
    And if partnership found, the bill should still have been dismissed, as the loan was usurious. 3 Parsons on Con., 143; Kelly on Usury, 37. And usury might have been insisted on in answer after plea overruled. Mitford, by Jeremy, 306; 20 Ark., 526.
    The law in force at the time of the contract controls, unless made retro-active expressly and cleax-ly. Sedgwick on Stat. and Const. Law, 134, 188 to 191; 18 Wis., 298; 1 Florida, 371; 14 Mass., 332; Baugher etal.y. Nelson, 9 Gill, 299.

      This suit cannot be affected by act of July, 1868, being then pending, and even if that act made valid contracts null before its passage, being now repealed, it is as if never passed.
   Walker, J:

James D. Clanton, a planter and the owner of a tract of land in the county of Chicot, Arkansas, borrowed of Nicholls & Barrett, nine thousand dollars, for the payment of which he executed to them his note, dated January 11th, 1866, due 1st of January, 1867, for the sum of nine thousand dollars for value received, with interest thereon at the rate of ten per cent, per annum from date, until paid, and on the same day Clanton executed to Nicholls & Barrett a deed of mortgage upon certain lands owned by him in said county, to secure the payment of the note. And the parties, also, on the same day, entered into an agreement, which was exhibited by the defendants in their answers, and which we will notice in that connection.

Clanton died, leaving Willie D. Clanton, his widow, and one child. The executrix of his will declined to qualify, and letters of administration were granted to Charles J. Gee. The note being due and remaining unpaid, a bill in chancery was filed to foreclose the mortgage and subject the lands to the payment of the debt. ‘ The widow, child, and administrator are made defendants. A guardian ad litem, was appointed for the infant child.

A demurrer to the bill was filed, which was sustained, and the bill amended.

The defendant, Gee, appeared and filed a plea of usury, at the December term, 1867. At the April term, 1870, the court decided the plea of usury insufficient. And thereupon the defendants, Willie D. Clanton and Charles J. Gee, filed separate answers, in which they admit the execution of the note and mortgage, but set up in defense a written agreement entered into on the same day that the note and mortgage was made, in which it appears that the $9,000 was intended to be used in the cultivation of a cotton farm belonging to Clanton, who agreed to have the land cultivated, and, with the first cotton raised, to pay the note, and that the residue of the crop, after payment of the note, should be equally divided between the plaintiffs and Clanton. They say that this agreement to divide the profits was part of the consideration for the loan, and with the ten per cent, stipulated in the note, was in excess of lawful interest, and was usurious and void, and insist upon this defense. They also set up another ground of defense under this agreement, that a partnership existed between the plaintiffs and Clanton in the cultivation of the crop, but without any statement in the answer that such was the case. After stating that the crop of cotton raised on the plantation, by the aid of the money advanced, did not yield enough to pay the cost for raising the same, the answers conclude by saying, that at the final hearing they will insist on their defense of usury, and, that not waiving said defense of usury, should the court be of opinion that the note and mortgage are not void, but that there was a partnership created by the agreement, then they will insist that if the complainants were to enjoy part of the profits of the crop, if a good one, the plaintiffs should bear their part of the loss, if a bad one, and that an ■account be taken between the parties, and a balance struck.

A motion was filed at the September term, 1873, which the record states should have been filed at the May term, 1873, to dismiss the cause, because no affidavit was made, as required by law, before the suit was commenced, which motion was overruled by the court. There was no error in this. We suppose the affidavit referred to was such as is required when a claim is presented for probate and allowance in the Probate Court. We have repeatedly held that when suit is brought to foreclose a mortgage To satisfy a debt thus secured, no such affidavit was necessary. Hall v. Denckla, 28 Ark., 506.

The case was heard upon the bill, answers, replications and exhibits. The Chancellor found for the defendants, and dismissed the bill with costs. Plaintiff appealed.

The only ground of defense which we need notice, is that of usury. This defense one of the defendants interposed by plea, and it was disallowed by the court. If the defendants had intended to rely upon this defense by plea, they should have rested upon it, and have appealed. The decision of the court upon the plea was in favor of the plaintiffs, and they should have appealed, not for error in that decision, but from the decision and judgment of. the court upon the final hearing.

It is the practice, where both parties feel themselves aggrieved by the decision of the court, that both of them appeal, when the whole case with all the rulings of the court, are subject to examination and review. Daniel’s Chancery Pleadings and Practice, 1641.

But in this case no cross appeal is taken; indeed, the defendants abandoned their defense by plea, when they set it up in their answers, and had the benefit of it upon final hearing.

Defendants setup the same substantial defense in their answers. They admit the material allegations of the bill to be true, and set up a defense under an agreement between the parties of the same date of the note and mortgage, which they make an exhibit. It appears from this agreement that the $9,000 for which the note was executed was to be used by Clanton in the cultivation of the crop of cotton on the farm of Clanton. That the note was first to be paid out of the crop raised, and the amount over, to be equally divided between plaintiffs and Clanton. They allege the embarrassed circumstances of Clanton, and thus plaintiffs took advantage of his situation, and corruptly and usuriously contracted for and took, not only the ten per cent, stipulated in the note, but also one-half of the crop to be raised, after payment of the note.and interest. They insist upon their defense of usury, and conclude that if the court should not sustain this defense and should be of opinion that, under the agreement, there was a partnership, that it will so declare, and have an account of expenses and profits taken, and render a decree upon equitable principles.

As regards this part of the answer which concludes more like a cross bill, or answer setting forth facts necessary to make it in substance a cross bill, we may remark that there is no allegation in the answer with regard to a partnership, nor is there a word in the agreement with regard to it, and of course nothing upon which to base a prayer for relief, if indeed such was intended by the answer.

The two grounds of defense are wholly irreconcilable. If the ' money was intended as an advancement, to be used in a partnership transaction, then there was no loan, without which there could be no usury. If on the other hand, it was a loan for which ten per cent, interest was charged, and in addition to this plaintiffs, as part consideration for £he loan, were to receive half the profits of the crop, then if the plea of usury is permissible, a case may be presented for consideration.

The main question to be determined is, had the defendants a right to interpose this defense und'er the statute in force ? It will be seen that this debt was contracted at a time when the statute, ch. 92 Gould’s Digest was in force, but before the decision of the court upon the plea of usury, and befime the answers of the defendants were filed, the act of 13th July, 1868, in express terms, repealed all of the sections in that chapter, which limited the rate of interest to be contracted for to ten per cent., and which declared that all contracts for the loan or forbearance of money loaned, for a greater rate of interest than ten per cent. should be void, so that the question as to whether the plea of usury can be interposed must depend upon the proper construction of the act of 13th July, 1868.

This court heretofore held in the case of Woodruff v. Scruggs, 27 Ark., 26, that the 6th section of this act denied the right to interpose this defense in bar of any action, whether the contract was made before or after the passage of the act, and we might decide this question by referring to that decision, without further consideration. But in deference to the opinion of the distinguished counsel for defendants, who assumes that our former decision was made without due consideration of the whole act in-connection with the 6th section, we will briefly review the act, and the authorities cited by counsel, as well as all others at our command, and give to the act such construction as we think will fully express the intention of the Legislature when it was enacted.

It is a familiar rule that in order properly to ascertain the intention of the Legislature, and properly to construe its acts, we should look to the law repealed, and the mischief intended to be-remedied by the new enactment.

At the time the act of July, 1868, was passed, there was a law in force which limited the right to contract for interest for the loan of money to ten per cent per annum, and which declared all contracts for a greater amount of interest than ten per cent void. This statute the Legislature repealed, and enacted that contracts for the loan of money should be without limitation and without penalty. The mischief, then, in the opinion of the Legislature, was the limitation upon the right to contract for the loan of money, and affixing a penalty for making contracts for a greater amount than ten per cent. The remedy intended by the act was to confer an unlimited power to contract, and to remove the penalty.

Another means of ascertaining the intention of the Legislature is to so construe the act as to give effect to all of the provisions, and, at the same time, to carry into effect the general purpose and intention of the act, for it is a rule that every word and clause shall be presumed to have been intended to have force and effect, if possible, so that no clause, sentence or word shall be void, superfluous or insignificant.

With these rules as our guide, and with the wrong, and the remedy intended, we will look to the statutes.

Section 3, of the act of July, 1868, provides “that, in all contracts hereafter to be made, whether written or verbal, it shall be lawful for the parties to stipulate the rate, and agree upon the sum of interest that may be taken and paid, upon any one hundred dollars of money borrowed, or in any manner due and owing from any person or corporation to any other corporation or person in this State.”

The 5th section of the act is evidently intended to give a like effect to contracts made in the State, but payable out of the State, as is given to contracts made and payable in the State, and such, also, was the intention of the latter .clause of the 6th section. Section 6 of said act is as follows: “No plea of usury, nor defense founded upon any allegation of usury, shall be sustained in any court of this State. Nor shall any security be held invalid on any allegation of usury, where the rate of interest received, discounted or taken, does not exceed the laws of this State, in consequence of such security being payable in a State, kingdom or country where such rate of interest is not allowed.” The whole question at issue turns upon the proper construction of section 6, and before referring to the language used in this section, we will refer to another rule, which is, where the language used is plain and unambiguous there is no room for construction ; there is nothing to construe.

No one can read this section and find the slightest ambiguity or doubt as to what the Legislature intended; there is not a word to indicate whether this prohibition shall be prospective or retrospective in its operations, but declares, in positive terms, that no plea of usury shall be sustained in any court.”

Defendants’ counsel insist that we shall construe this statute as applicable only to contracts entered into after its passage. But it will be seen that to do this would, in effect, leave the whole of section 6 superfluous and unnecessary, because, if construed, to act prospectively, then, there is nothing for it to act upon. By the 3d section all limitation upon the right to contract for interest is swept off.

The usury act in Gould’s Digest, chapter 92, was repealed. This latter act imposes no penalties for usury. There was no usury act in force in the State, and, consequently, to give effect to the act, it must refer to pre-existing contracts, or to none. If there was any other sensible construction to be given to this act, than to declare it retrospective in its operation, we should adopt it. But by every known rule for construing statutes we feel constrained to declare that it was clearly the intention of the Legislature to give to this section a retrospective operation, and whatever may be our opinion with regard to the propriety or necessity .of the act, in deference to a co-ordinate department of the government, acting as we do under oath, it becomes our duty to sustain the legislative will and action, unless we should find the act clearly unconstitutional.

The note, to secure the payment of which the mortgage was given, was for the payment of $9,000, with ten per cent, interest, and upon its face was not usurious. It was necessary, therefore, by plea, to connect some other contract with the note, which, with the ten per cent, contracted to be paid, would amount to usurious interest for the loan of the $9,000. We have seen that when this note was executed the statute of usury was in force. The effect of the repeal, says Segwick, 129, was “to obliterate-the statute repealed, as completely as if it had never been passed. The repeal of a statute puts an end to hll prosecutions under the statute repealed, and to all proceedings growing out of it pending at the time of the repeal. In criminal proceedings the effect of the repeal is not only to wipe out the law but also to discharge the penalty, but in civil cases the rale is different. When a right in the nature of a contract has vested under the original statute, the repeal does not disturb it.”

The defendants in this case assert no claim under a contract,, but a right to defense against a contract alleged to have been made in violation of law. They say that the right to this defense was vested in them by force of the statute then in force, and has survived to them since the repeal of the statute under which it was made, and but for the passage of the act of 1868,. which denies to the defendants this defense of usury, might have-been successfully interposed.

The Legislature can pass no law which impairs the obligation of contracts. Of this there can be no question, and whilst this-act of the Legislature does not directly impair the obligation of the contract, it does deny a remedy of which, but for the act, the defendants might have availed themselves.

Upon this question of right and remedy, and the effect of legislation upon them, the decision of the courts have not been uniform.

Segwick, at page 133, after a review of these decisions, concludes by. saying: “ This distinction has been drawn by the highest federal tribunals between the obligation of a contract and its remedy. It has been regretted, but the State Courts have adopted it, and it is now too late to hope for its abandonment. What relates to the remedy is understood to be at the mercy of legislation, but the obligation of contracts is covered by the aegis of the federal charter.

That usury is a defense which must be pleaded is well settled by this court. Howell v. Vinsant, 7 Ark., 146; Ambler v. Ruddell, 17 Ark., 138; Pilsbury v. McNally, 22 Ark., 409. In the last case cited it was held that usury could not be given in evidence under the general issue, but must be specially pleaded.

A usurious contract is not, for a consideration malum in se, void, nor is it void ah initio, but the statute assumes the existence of the contract, and declares it to be void as corrupt, and against the statute. The note or bond is held as evidence of a right of action, and it devolves upon the defendant affirmatively to sustain his plea, which being, done, the court pronounces the contract void. If such was not the case, courts of equity would not, when appealed to by the borrower for relief, make the contract for a usurious loan, the basis for raising an equity in favor of the lender, to relieve him from the penalty. We have held the 6th section of the act 1868, to be retrospective, but it by no means follows for that reason that it is unconstitutional.

In the case of Satterlee v. Matherson, 2 Peters, 380, it was held that retrospective laws, which do not impair the obligation of contracts or partake of the character of ex post facto laws, are not condemned or forbidden by any part of the Constitution.

The defendants claim to have a vested right to this defense of usury, which they deny the constitutional right of of the Legislature to deprive them of. Cooley in his work on Constitutional Limitations, at page' 370, after giving several examples where a defense cannot be taken away by retrospective legislation, such for instance, as a plea of payment or satisfaction, says in regard to these cases: “We think investigation will show, that a party has no vested right in a defense based upon an immorality not affecting his substantial interest * * * There is no doubt of the of the to make .laws which reach back to,, and change and modify the effect of prior transactions, provided retrospective laws are not forbidden eo nomine by the State Constitution, and provided no other objection exists than their retrospective character. As a fit illustration of this rule; in the ease of Trustees v. McGaughy, 2 Ohio N. S., 155, by statute certain notes issued by unincorporated banks were declared void; subsequently, the Legislature declared that it should not be lawful for a defendant to plead, set up, or insist upon the defense that the notes were void on- account of their being contracted in violation of the statutes. It was held that the original invalidity was only because of the statute, and was founded upon a principle of public policy, which the Legislature had seen fit to abrogate, and that the defendant could not be permitted to rely upon it.

By a statute of Connecticut, where loans of money were made, and a bonus paid by the borrower beyond that allowed by law, the demand was subject to a deduction; after this act, the Legislature passed an act declaring that such loans should not be held usurious and void, but that if in other respects valid as to principal and interest, the law was sustained.

In Goshen v. Stonington, 4 Conn., 209, it was held that where a statute was expressly retro-active and the object of it is to correct a mistake, remedy, a mischief, execute the intention of the parties, and promote justice, then both as a matter of right and of public policy affecting the peace and welfare of the community, the law should be sustained. Savings Bank v. Allen, 28 Conn., 97.

In the case of Curtis v. Leavitt, 17 Barber, 309, a statute forbidding the interposition of the defense of usury was treated as a statute repealing a penalty.

In the case of Gibson v. Hibbard, a note void at the time it was given for want of a revenue stamp, was held valid after it was stamped under a subsequent act of Congress permitting it.

In the case of Springfield v. Hampden Commissioners, 6 Pick., 501, it was held that there was no such thing as a vested right in a particular remedy.

In the case of Bunker v. Nelson, 9 Gill., 299, that there is no vested right in the defense of usury.

In the case of Foster v. Essex, Burk, 16 Mass., 245, it was held that there could be no vested right to do wrong.

The borrower may or he may not be in such circumstances as to be imposed upon by the lender.. It is sometimes the case that the borrower is really obliged and benefited by getting the use of money at rates exceeding lawful interest, but he is not in equity and good conscience at liberty to refuse to refund the money borrowed because he was charged greater interest than allowed by law. It is at least morally wrong for him to refuse paying the money borrowed, and certainly he has no vested right to the use of a plea, which protects him in doing wrong.

After a careful examination of these decisions we have reached the conclusion that the Legislature has power by retrospective legislation, in many cases, to deny to the defendant a defense which is not in itself meritorious, and particularly such as are created by statute. The defense of usury was founded by legislation, at the timé supposed to be on principles of public policy. Experience may have shown a subsequent legislature that this defense did not promote or subserve the public interest, and believing such to be the case, the same power that created the defense can withdraw it. Such was doubtless the conclusion of the Legislature of 1868. They repealed the usury act as having failed to produce beneficial effects, and expressly denied the defense of usury. This we must hold they had a constitutional right to do. In no case should we declare an act of the Legislature unconstitutional unless most clearly so. It is not for us to review, or revise legislative action but to enforce the legislative will, when acting within its constitutional limits.

Having taken, to some extent, a wider range of review of authorities than was taken in Woodruff v. Scruggs, we have reached the same conclusion; or even if in doubt as to its correctness we should not, for that reason, feel at liberty to reverse it, and should have been content to decide this case upon the authority of that without reference to other authorities, but for the earnest appeal by counsel that we should do so.

Let the judgment of the court below be reversed, and the cause remanded for further proceedings.


text:
    McKay et al. vs. Jones et al.
    1. Certiorari:
    So long as the Circuit Court acts within its jurisdictional limits this Court has uo power to control its judgment by certiorari.
    2. -Proceedings necessary to give the Circuit Court jurisdiction in.

    It is essential to the jurisdiction of the Circuit Court in a proceeding by certiorari that the writ issue and be returned with a transcript of the proceeding sought to be quashed unlessMie writ and return are waived.
    WRIT of Certiorari to Randolph, Circuit Court.
    Hon. John McCoy, Special Judge.

      Brown & Ford, for petitioner.
    Certiorari is the correct and only remedy.
    McKay & Fisher were not proper parties in the cause below, neither could have appealed.
    This case distinguished from Allston ex parte, 17 Ark., and McKay v. Jackson, 21 Ark.; Redmond v. Anderson, 18 Ark.
    No transcript from the County Court was filed. The Circuit Court had no jurisdiction. Dicus v. Bright, 23 Ark., 107.

      Rose, for defendants.

      The defendants below were duly summoned and appeared, the judgment cannot be void. Gantt’s Digest sec. 4739 ; Allston ex parte, 17 Ark., 580; McKay v. County Court, 21 Ib.
    The failure to issue and return the certiorari might be waived. Rightor v. Gray, 23 Ark., 228.
   Walker, J.:

The record of the proceedings and judgment of the Randolph Circuit Court has been brought before us, in obedience to a writ of certiorari, issued by order of one of the judges of this court, from which it appears that a petition was presented to the judge of the Circuit Court of Randolph county, praying for a writ of certiorari, to be issued to the clerk of the County Court of said county, requiring him to certify and return to said Circuit Court the records, proceedings and orders of the County Court of said county, which related to the contracting for the building of a court house in said county.

The prayer of the petition was granted, and an order was made by the judge ©f the Circuit Court in chambers, that, upon the filing of the petition and order in the Circuit Court of Randolph county, the clerk of said court issue a writ of certiorari, directed to the clerk of the County Court of said county, commanding him to certify a full and perfect transcript of the records and proceedings had in that case in the County Court to the Circuit Court of said county, and that a writ of supersedeas be issued, restraining said court from issuing the county bonds mentioned in the petition, until the further order of the Circuit Court. And also that said clerk issue a summons to the sheriff of Randolph county, commanding him to summon the defendant to appear in the Circuit Court, at the next term of the court, and show cause why the proceedings in the County Court should not be quashed.

This order of the Circuit Court appears to have been made at chambers, on the 12th of August, 1872, and at the May term of the Circuit Court, 1873, the case appears to have been docketed and continued until the September term of said court, at which term one of the defendants, Fisher, appeared by attorney and suggested that he had resigned as commissioner, and filed a motion in abatement of the action as to him.

No disposition appears to have been made of this motion. The case was continued until the November term, 1874, of said court, at which term a special judge was elected to try this and other causes in which the regular judge was disqualified, and, at a subsequent day of the term of the court, the case came on to be heard, and, after an order of abatement as to several of the plaintiffs on account of death, the record entry is as follows: This cause came on to be heard, and it appearing to the court that the defendants have been duly summoned according to law, and have been duly served with a copy of the supersedeas, and failing to answer as required by law, it is, therefore, adjudged and decreed by the court, * * after due inspection of the records and proceedings of the County Court in relation to the building of said court house, that they were and are wholly illegal and without authority of law, and are absolutely void; and that each and every order made by said court in relation thereto, and all the proceedings of said court in relation to the making and letting said contract for the building of said court house, were wholly illegal and void, and that the same be quashed, annulled and set aside, and the order suspending such proceedings be made perpetual, and for cost.. This is the substantial part of the judgment of the court; the long and unnecesary recitals we omit.

Under the restricted jurisdiction and powers of the court in proceedings by certiorari, our investigation is confined to the state of case presented by the record brought before us.

Was the case before the Circuit Court a subject matter over which it had jurisdiction? and was it so brought before that court as to enable it to exercise such jurisdiction ? and whether or not such jurisdiction had been exercised according to law ? If snch was the casé, then our superintending control over the judgment of the Circuit Court has nothing upon which to act, because, whether the judgment of such court is right or wrong, we have no power to control it, so long as it keeps within its appropriate jurisdiction. Its conclusion and judgment upon the facts of the case, and the law applicable to it, can only be questioned or corrected by appeal.

Under the provisions of our Constitution and laws, the Circuit Court has a superintending control over the inferior courts, and in this instance was properly exercised by the circuit judge, who ordered that a writ of certiorari be issued to have the records of the County Court brought before the Circuit Court for its adjudicátion. The petition, with a copy of the records of the County Court as an exhibit, with the order of the judge of the Circuit Court in chambers, appears to have been placed on the files of the Circuit Court, and the case docketed, called and continued for several terms, and, although not endorsed filed by the clerk of that court, we may presume was, in fact, filed.

But it does not appear that any writ of certiorari was ever issued by the clerk of the Circuit Court, or served upon the clerk of the County Court, or that any copy of the records and proceedings of the County Court was ever filed or brought before •the Circuit Court. The copy of the records of the County Court, found in the transcript of the records before us, is that attached to the petition for certiorari. .It is to be presumed that when the Circuit Court record states that the court, after an inspection of the records of the County Court, found them void and ordered them quashed, it was on inspection of the copy of the records filed as an exhibit.

In order to give the Circuit Court jurisdiction of the case, it was necessary, not alone that the subject matter was one within the jurisdiction of the court, but it was also necessary that the subject matter be properly brought before it.

The purpose of the petition, with its exhibits, was accomplished when the order for a certiorari and supersedeas was granted. They were directed to be filed in the clerk’s office, as an incipient step to getting a case by certiorari before the court.

It was necessary that the writ be issued and returned with a transcript of the records of the County Court in that case, in order to give the Circuit Court jurisdiction of the case, and to enable it to pass upon the validity of the proceedings and judgment of the County Court, and to quash or affirm.

In the case of Derton v. Boyd, 21 Ark., 264, a writ of certio- . rari was ordered, but not issued, and returned with the transcript of the records as required by law. It was held that there was nothing before the Circuit Court for adjudication. See also Dicus v. Bright, 23d Ark., 107.

The greatest extent to which we have gone in sustaining the jurisdiction of the Circuit Court in cases of certiorari has been to permit the parties, by consent, to waive the necessity of a writ and try the case upon a transcript filed. Rightor v. Gray, 23 Ark., 228.

Jn this case there is no writ, no transcript filed, and no consent to waive them. And we must hold that the Circuit Court did not acquire jurisdiction of the case, and could render no judgment in it, and, as a consequence, that the judgment of the Randolph Circuit Court must be set aside and quashed, and the cause remanded to the Circuit Court, with leave to the plaintiffs to have a certiorari issued in accordance with the order of the judge in chambers, with supersedeas (unless one has been issued) ' to bring up the records of the County Court in said case to the Circuit Court, in obedience to the command of such writ for adjudication in that court.


text:
    Johnson et al. vs. Nunnerly.
    1. Vendob’s Lien: Merger of.

    A vendor who executes a bond for title and subsequently, but before payment of the purchase money, executes a deed to the purchaser, thereby looses his lien under the bond and acquires a vendor’s equitable lien.
    2. -Assignment without recourse.

    The assignment “without recourse” of a note executed for the purchase money of land does not early with it the vendor’s lien.
    APPEAL from Chicot Circuit Court in Chancery.
    Hon. Henry B. Morse, Circuit Judge.

      Garland, for appellant.
    The endorsement without recourse deprives the assignee of the lien, 27 Ark., 229; lb., 292; lb., 518; lb., 557; 26 lb., 617; 27 Ark., 563, and cases cited. Marlcin v. Lynman, 15 ves. (1 Lead. Ca. in Eq., 113), Adams Eq., 126 et seq.
    The deeds merged and destroyed the lien if one existed, and the purchasers were innocent. They will be protected. 15 Ark., 55; 18 lb., 142; 1 Lead. Ca. in Eq., 277; 2 Story’s Eq., p. 481, sec. 1,229; 7 Wheaton, 46; Scotty. Orbison, 21 Ark., 202, and cases cited above.

      Reynolds, for appellee.
   Walker, J.:

The complainant alleges that John Canan sold to Gabriel C. Johnson and James H. Mabry 968.45-100 acres of land, for the payment of which they executed to Canan four notes, each for fl,210,56J, due respectfully January 15th, 1858, 1859, 1860, and 1861, and that Canan executed to them his bond, by which he bound himself to make title to the land upon payment of the notes.

The bond was recorded December 12th, 1857.

The note due in 1861 was assigned by Canan to W. H. Allen . or order, and by Allen, without recourse on him, to complainant.

By force of these assignments complainant claims a lien upon the land for the payment of which it was given, and for the conveyance of which the bond was executed, and to be subrogated to the rights of Canan.

It is further alleged that part of the land sold by Canan to Johnson and Mabry was, in 1869, under a decree of court, sold as the property of Johnson to Jos. W. Carroll; that Mabry is dead, and that David Dickinson and Martha Dickinson, formerly the wife of Mabry, as well as William A. Miller, have an interest in a portion of the land, purchased at a sale of the lands of the estate of Mabry. These parties are made defendants to the bill.

The answer of Miller is, in substance, that he purchased a part ■ of the land belonging to the estate of Mabry at a sale under an order of the Probate Court; that he was an innocent purchaser without notice of the existence of the supposed lien set up by plaintiff, and that in fact plaintiff has no lien on the land.

Defendant Dickinson and wife, Johnson and Carroll set up, the defense of purchases without notice, exhibit their deed as evidence of title, and rely upon the ground of defense, that Canan, after he executed his bond for title to Johnson and Mabry, executed to them deeds for the land so covenanted to be conveyed by force of which the bond became merged in the deed.

The assignment to plaintiff was made by Allen “without recourse on him,” and that in fact plaintiff held no lien upon the lands.

This brief reference to the defense set up in the answer, will suffice to show what the' material issue between the parties is, that the complainant, the holder of the note by assignment, claims a lien on the lands, and has filed his bill to subject it to sale to satisfy his debt. The defendants deny that such lien exists.

The case was set for hearing upon the pleading and exhibits. There was no evidence taken. The court decreed in favor of the complainant for $2,088.16, with ten per cent, from the 31st March, 1873, and declared a lien in favor of complainant upon the lands sold by Ganan to Johnson & Mabry, and that they be sold to pay the debt so found.

The defendant appealed; the defense presents two questions:

First — Was the bond for title merged in the deed subsequently executed by Ganan to Johnson & Mabry.

Second — Admitting such not to have been the effect of the deed upon the bond, did the plaintiff acquire a right of lien by force of the assignment made without recourse by Allen.

As regards the first proposition, we may remark, that the bond for title had in many respects the properties of a mortgage. Moore v. Anders, 14 Ark., 628. And if Ganan had retained the ownership of the note, and had not made an absolute deed to the land, the lien would have been perfect in him and he might have enforced it against all subsequent purchasers.

By executing a deed for the land, he, in effect relinquished his lien under the bond' in the nature of. a mortgage lien, and took in lieu thereof a vendor’s lien, which does not follow the note by assignment. Shall v. Biscoe, 18 Ark., 142. The effect of the execution of the deed of assignment upon the rights of the assignee, need not be considered in this case. But if the bond should still be held in force (which we think is not the case) we have held, that where the assignment is made without recourse, it does not carry with it the rights of lien. Williams v. Christian, 23 Ark., 255.

The only qualification to this rule is, in cases when after an assignment, without recourse, the note has been taken up by the vendor and re-assigned, whereby the note and lien are again united.in the same party, as held at the last winter term of this court in the case of Bernay v. Field & Dolley.

But no sucb assignment is shown in this case. "We must hold that plaintiff held no lien upon the lands for the payment of the note; that Canan having merged the bond lien into a vendor’s lien, that alone remained to him, and would not pass to the assignee even upon an assignment with recourse upon the assignor, and that whether the lien be considered a lien under the bond for title or a vendor’s lien upon a conveyance by deed, no such lien exists. The only rights of the plaintiff by force of this assignment was personal and against Johnson and the estate of Mabry for any balance due on the note.

The court below erred in rendering a decree in favor of complainant, under the state of case presented, the bill should have been dismissed.


author: S. W. Williams, Special Judge.

text:
    Stoddard & Hewett vs. Waters.
    1. Handdobd and Tenant: Construction of lease.

    A clause in a lease reserving to the tenant the right to gather the crop after the expiration of the term, entitles him to free ingress and egress so far as is necessary to gather and remove the crop, but does not authorize him to hold over and exclude the landlord after the time at which he was to surrender.
    2. -Damages where the tenant holds over.

    Where a tenant holds over after the determination of his lease and interferes with the re-letting of the premises, he is liable for the damage thereby sustained by the landlord.
    APPEAL from Jefferson Circuit Court.
    Hon; Henry B. Morse, Circuit Judge.

      Bell & Carlton, for appellants.
    The judgment is irregular, being against one of the defendants “as executrix” and against the other personally.

      ■ The lease may be explained by parol evidence of the extent, and meaning of the covenants. Glanton v. Anthony, 15 Ark., 543.
    The court erred in giving instructions, Thompson v. Bertrand? 23 Ark., 731, and the proof did not sustain the verdict.

      Gallagher & Newton, for appellee.
    Cited in support of the instructions, and to show that defendant had no right to complain of them as a whole, Gibbons v. Dillingham, 10 Ark., 9; Wood v. Wylds, 11 Ark., 754; Ingram v. Marshall et al, 23 A.rk., 115; Pleasant v. State, 22 Ark., 215; Patterson v. State, 15, 396; Brooks v. Peay, 23d ib.; McJS/eil v# Arnold, 17-154.
    The jury were judges of tipie facts and this court will not interfere. Hubbard v. State, 10 Ark., 378; Bennett v. State, 13 Ark., 695; Clark v. Bales, 15 Ark., 452; Sparks v. Beavers, 11 Ark., 640; State Banker. McGuire, 14 Ark., 530; Brooks v. Perry,. 23 Ark., 32.
    They had no right to retain possession, but might go on to gather crop. Taylor, Land, and Ten., sec. 524, p. 387, and secs.. 525 and 531-2 and 533.
   S. W. Williams, Special Judge.

The appellee rented her plantation, in Jefferson County, Arkansas, to appellants for the year 1870. The contract of lease was reduced to writing, which, after providing in the usual form for the letting of the plantation for 1870, and the amount of rent to be paid, contained two clauses, upon the construction of . which this suit must be determined. They are in the lease numbered three and seven.

Number three is in words following i

3. Said parties of second part (appellants) to deliver possession of said place 1st January, 1871, in ordinary good repair, wear and tear excepted.”

The seventh clause is in words following:

“ 7. The parties of the second part to have the right to gather crop, after the expiration of lease.”

The complaint counts on the breach of the third clause, setting forth, in substance, that appellants had not delivered possession on 1st January, 1871, and still retained it when the suit was commenced, in the latter part of February, 1871. The complaint alleges causes of special damage, among others that appellee had not been able to rent her plantation for 1871. The answer admits the holding over of the premises, but claims the right to do it under the seventh clause of the contract of lease.

Much is said in the complaint and testimony of appellee, to the effect that appellants had denied to tenants and laborers of appellee admission, and the right to occupy houses and tenements on the place after January 1st, 1871, after appellee had made a contract for the renting of the place for 1871. These charges the appellants, by answer and testimony, endeavor to mitigate, by claiming that they had the right of possession under the lease until they gathered their crop, and that they had exercised this right as gently as they could, and in such a manner as to interfere as little as possible with appellee’s necessities in preparing for another crop.

The solution of this controversy turns upon the proper construction of these two clauses in the lease, above copied.

They are unambiguous and clear in their meaning and significance, and the parties having made a writing the witness of their contract, which contains no latent ambiguity, it is the sole evidence of the contract, and proves conclusively that the possession of the place was to be surrendered January 1st, 1871, and that- appellant after that period had a right to gather the crop. We must so construe this contract as to give force to every word, line and clause, if possible. This we could not do if we made the right to gather the crop after January 1st, 1871, nullify clause three, which requires possession to be surrendered on that day. They can be harmonized by holding appellants to their contract to surrender on the first of January, 1871, and holding appellee to hers, to permit appellants to have free ingress ■ and egress upon the land, and to occupy it so far as was necessary to gather and remove their crop. The possession of the place was not surrendered according to the contract; that is admitted and proved by all the witnesses, and the seventh clause of the lease furnished no excuse for this failure. For it only provided for the right of ingress and egress to and from the land on which the ungathered crop was, and the occupancy thereof, as far as necessary to the gathering until a reasonable time after the 1st of January, 1871, was given for gathering the crop of 1870.

If the appellants had desired possession, further than was necessary for this object they should have provided for it in their contract.

The cause was tried and a verdict was rendered for appellee for one thousand dollars damages. Appellants moved for a new trial setting orrt as grounds therefo.r:

First — That the verdict is contrary to the evidence.

Second — That the verdict is contrary to law.

Third — That the verdict is contrary to the instructions of the court.

Fourth — The court erred in giving fifth and sixth instructions asked for by plaintiff.

The court overruled this motion and appellants presented their bill of exceptions, in which all the testimony and instructions are set out.

The evidence, in addition to what is stated above, tended to prove that appellee had been -refused, by appellants and their agent, admission to quarters on the premises, for her tenants and laborers in the latter part of January, 1871, and in consequence thereof, a contract which she had made to rent the place for nine thousand dollars had been abandoned, and later in the season she had taken $6,000 for it from the same parties, who had offered nine thousand in January, 1871, which was all they were willing to give so late in the season. While there is some evidence on the part of appellants tending to mitigate the effects of these facts which the jury no doubt considered, as we infer from the verdict, we cannot say that this verdict is without evidence to support it. There is nothing, therefore, in the first ground of the motion for a new trial.

The second must be determined by the instruction which we-presently consider.

The third ground is of no moment, as there was no instruction of the court below, which gave the law of the case, against-which the verdict at all militates.

The errors that were committed by the Court below in receiving parol evidence to vary and explain the terms of the lease, and in giving for appellants, and refusing to appellee certain instructions in reference to written and parol testimony were all in favor of appellants, and to appellee’s prejudice.

Appellants’ first instruction, which was the only one which the court refused to give, is in these words:

“First — If the jury believe from the evidence, that by the lease made between the plaintiff and the defendants for the year 1870,, the defendants had the right, after the expiration of the lease for said year, to gather the ungathered crops upon the premises leased, and the defendants used due diligence in the gathering-of said crops, and delivered possession of said premises, when said crops were gathered, the jury must find for defendants.”

In the light of the evidence and with the construction we have put upon this lease, it is clear that this instruction was properly refused.

The lease being unambiguous as any other deed should have been construed by the court, and it properly declined to mislead the jury, by the instruction, to believe that they might construe the clause seven, so as to make it override and nullify the third clause of the lease, which unqualifiedly required the premises to be surrendered on the 1st day of January, 1871, and thereby postpone appellee’s right to possession to a period subsequent to January 1st, when appellants’ “due diligence” in gathering their crop, and not lapse of time, would perfect appellee’s right to possession. The court could not have lawfully so instructed the jury.

Did the court err in giving the 5th and 6th-instructions asked for by appellee ?

They are as follows:

Fifth — If the jury believe from the evidence that defendants held the premises over the term for which they had leased them, and that such holding over was in violation of their written agreement to surrender the same to the plaintiff, they will find for the plaintiff and assess in her favor such damage as they believe from the evidence she has sustained.

,8ixth — If the jury believe from the-evidence the plaintiff let the premises in question to the defendants, and it was agreed and understood between the plaintiff and defendants, that the defendants should be allowed to gather the crop in a reasonable time after the 1st of January, 1871, and that the agreement did not carry with it the right to occupy the tenements upon the premises • and that defendants held said tenements, so as to obstruct or pre- . vent the letting of the premises to tenants for the year 1871, or that defendants extended their privilege of gathering said crop beyond a reasonable time, and that plaintiff was thereby damaged, the jury will assess such damage according to the evidence adduced.

These instructions are good law, when applied to the facts of this case. If there be any error in the 6th, it is in this, .that the jury might have inferred from it theif right to construe the lease • as a matter of fact, so as to defer the time at which possession was to be delivered, upon any c.ontingency, to a period beyond January 1st, 1871, but this was a misleading to appellant’s advantage, and they cannot now be heard to complain of it.

The judgment of Jefferson Circuit Court is in all things affirmed.

Mr. Ch. Justice English did not sit in this case.


author: English Ch. J :

text:
    State of Arkansas vs. Seely.
    Indictment: Certainty in description of persons.

    In an indictment for assault and battery, only the initials of the Christian, name of the party upon whom the assault was made was used: Held to be a sufficient description.
    APPEAL from Greene Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Attorney General Hughes, for State.
    The indictment sufficiently charges the offense of assault and battery; Gantt’s Dig., 1295; as also it sufficiently indicates the person injured; Gantt’s Digest, sec. 1786, and see Commonwealth v. Keleher, 3 Met., 485. '
   English Ch. J :

At the April term of the Greene Circuit Court, 1875, Oliver Seely was indicted as follows:

The Grand Jury of Greene county, in the name and by the authority of the State, etc., accuse Oliver Seely of the crime of misdemeanor committed as follows: The said Oliver Seely at, etc., on the 10th day of December, 1874, did unlawfully assault J. H. Hufstedler, and did then and there unlawfully beat him the said J. H. Hufstedler, against the peace, etc.”

The defendant demurred to the indictment on the grounds :

First — That it was not sufficiently certain as to the offense charged.

Second — That it did not state the name of the person upon whom the offense was committed with sufficient- certainty.

The court sustained the demurrer, and quashed the indictment, and the State appealed.

Mr. Archbold furnished the following form of indictment for an assault and battery:

“ The jurors for our Lady the Queen, upon their oath present, that A. B. on the-day of-in the year of Our Lord-, in and upon one C. D. did make an assault, and him the said C. D. did then beat, and other wrongs to the said C. D. did, against the peace of our Lady the Queen, her crown and dignity.” The venue is stated in the margin.

The indictment before us is in the code form, but contains the substance of the common law form, unless the omission of the full-Christian name of the person alleged to have been injured is fatal. He is described as J. H. Hufstedler.

The name of the party injured, if known to the Grand Jury, should be stated in the indictment, and proven substantially as alleged. If unknown the accused is not to escape indictment on that account, but it may be alleged that the name of the person injured is unknown to the Grand Jury, and the plea of not guilty puts this allegation in issue, and it must be proven. Cameron v. The State, 13 Ark., 717. Gabe v. The State, 6 Ark., 519. Such is the rule of the common law.

The party injured may, however, be described by any particulars which furnish sufficient identification; and if, instead of a true name, a well known nickname to which the person answers, an acquired name, or an addition by which such person is usually known, be used, it will be sufficient — thus, John, parish priest of D., was enough without the surname. Dyer, 285 ; and Victory, Baroness Turkheim, by which appeliation the person injured had acted and was known, was held good, though her real name was Selina Victoire. 2 Leach., 1,005. Bacon Title Indictment G., 2.

In an indictment for retailing, one count alleged a sale to A. B. Arnold, and another a sale to A. B. Arnold, F. P. Robinson, Henry Power, and certain other persons. Before evidence was offered, the defendant moved to quash the indictment, for uncertainty in the description of the third person mentioned therein, objecting to the use of initials. The Circuit Judge held that if by proof it should appear that the individuals meant were known by the names which had been used in the description, that was sufficient certainty. On the admission of evidence this did fully appear, and he overruled the motion to quash the indictment.

On appeal, the Court of Appeals (of South Carolina), sustained the ruling of the Circuit Judge. The court said that in the description of parties injured, in indictments, certainty to a common or convenient intent, was sufficient. That “before evidence offered, a judge wholly ignorant of the persons in the indictment, could not have known that the letters which were said to be initials, were not the names of baptism, and when the evidence was heard, it appeared that although these letters were only initials of the true Christian names, yet that by these letters the persons designated were called and known. That they wrote these letters for names, answered to them, and were distinguished by them. Under these circumstances and in the general use of initials for names, which prevail, it would be straining for the relief of the accused to say that he must be presumed incapable of knowing the persons mentioned by the description which pointed them out without doubt to everybody else.” State v. Anderson, 3 Rich. L., 174.

Wharton says, initials, it seems, are a sufficient designation of the Christian name of a party injured, and at all events cannot be excepted to after verdict, citing State v. Anderson, Sup., 2 Whart. Cr. L., sec. 255, 6 Ed.

But if it may be said to be in doubt whether by the rules of the common law an indictment like the one before us, which describes ,the party injured by the initials of his Christian name, should be quashed on motion, we think a provision of the Criminal Code settles the matter. It provides that “where an offense involves the commission, or attempt to commit an injury to person or property, and is described m other respects with ■sufficient certainty to identify the act, an erroneous allegation as to the person injured or attempted to be injured is not material.” Gantt’s Dig., seo. 1,786.

In Alice v. Commonwealth, 5 Bush (Ky.) 376, the person whose house was entered, was described as A. Domick, and proven to be A. Domeck. Held that if the variance was substantial, which the court doubted, it was rendered immaterial by a statute similar to the above.

In the State v. Thompson, 19 Iowa, 299, the name of the party injured was alleged to be Y. B. Skiff, and turned out in evidence to be F. B. Skiff. Variance held to be immaterial, under like statutes of Iowa. See also State v. Emeigh, 18 Ib., 122.

We do not favor the use of initials in criminal or civil pleadings, but the custom of using initials in business is so prevalent • that it is not unfrequently difficult for Prosecuting Attorneys and Grand Juries to ascertain Christian names, and hence the above statute, if prudently applied, may be of public benefit, and work no substantial wrong to parties accused of crimes.

The judgment must be reversed, and the cause remanded.


text:
    State of Arkansas vs. Webster et al.
    Ihdictmjsnt. Certainty in the description of the accus ed.

    An indictment against several persons, in which some of the parties were described by using the initials of their Christian names, and the Christian name of one of the parties was wholly omitted, held good on demurrer.
    APPEAL from Lonolce Circuit Court.
    Hon. J. J. Clendenin, Circuit Judge.

      Attorney General Hughes for State.
    Omission of defendant’s first name will not vitiate an indictment. Commonwealth v. Keleher, 3 Metcalf, 485. Gantt’s Digest, sec. 1785.
    The indictment shows the offense was committed in Lonoke county.
   English, Ch. J.:

After the risual caption, the indictment in this case was as follows:

The grand jury of Lonoke county, in the name and by the authority of the State, etc., accuse Q,. T. Webster, Newt. J. Farris, John Graham, Hosea King, R. H. Maury, J. D. Elsberry,- Johnson, H. G. Legate of the crime of riot, committed as follows, viz: The said Q,. T. Webster, Newt. J. Farris, John Graham, Hosea King, R. H. Maury, J. T. Elsberry, -Johnson, H. G. Legate, on the 3d day of June, 1875, in county and State aforesaid, being assembled unlawfully and riotously, did agree mutually to assist each other to unlawfully abuse, ill-treat and hang Csesar Gartrall by force and violence, and said defendants above named, being so assembled as aforesaid, unlawfully and riotously did seize, ill-treat, abuse, and with force and violence then and there did hang the said Caesar Gartrell by the neck in accordance with and in accomplishment of the said unlawful agreement, against the peace and dignity of the State of Arkansas.”

A capias was issued for each .defendant by the name given him in the indictment, and they were all arrested by the sheriff and brought into court, whereupon, by leave of the court, they filed the following demurrer :

“ The State of Arkansas v. Q,. T. Webster and others :

Come the defendants and say that the indictment herein is not sufficient im law, and they are not bound by the law of the land to answer the same, and for cause of demurrer show:

First — There is no sufficient statement of the names of the parties alleged to have been engaged in the riot.

Second — The offense is not charged to have been committed in Lonoke county.

Third — The indictment is otherwise uncertain, defective, informal and insufficient. Wherefore they pray judgment, and that said indictment be quashed.”

The court sustained the demurrer and quashed the indictment, and the State appealed.

The indictment is under section 1506 Gantt’s Digest, p. 365, seems to be in good form, except that the defendant Johnson is given no Christian name, and four of the other defendants are described by initials instead of Christian names.

By the common law the person charged by the indictment must be described by his Christian or first name, and surname, and it seems that the law recognizes but one Christian name. If the name of the party is unknown, and he refuse to disclose it, he may be indicted as “a person whose name is to the jurors unknown, but who was personally brought before them by the keeper of the prison,” or some other mode of description by which it may be ascertained whom the grand jury meant. 1 Arch. Cr. P. 78 and notes.

When the indictment gives the defendant no Christian or first name, or a wrong one, no surname or a wrong one, it is by the common law matter of abatement only. But this is now of no use (in England) for by statute 7, G. 4, C. 64, S. 19, no indictment shall be abated by reason of any dilatory plea or misnomer, etc., but in such case the court shall forthwith cause the indictment to be amended according to the truth, and call upon the party to answer thereto, and shall proceed as if no dilatory plea had been pleaded. 1 Arch. Cr. P. & P. 111.

In this State the practice was (before the adoption of the criminal code) where matter in abatement was successfully interposed, to hold the defendant to answer a new indictment in felonies, the court having no power to amend a bad indictment.

If the defendant on arraignment pleaded not guilty, it was not necessary for the State to prove his name as alleged, misnomer being matter in abatement only.

It may be that by the common law where a defendant is indicted by initials, instead of a Christian name, and there is no allegation that the christion name is unknown to the grand jurors, the indictment is bad on its face.

But in the City Council v. King, 4 McCord, 271, where the' defendant was charged by the description of A. W. King, the court said : “It surely will not be contented here (South Carolina) that a man may not take any name he pleases, and if he, by his own conduct, renders it doubtful what his real name is, the fault is his, and let the consequences be also his. But in truth I know no law, nor do I see any reason why a man may not take the letter A. W. for his first name, or as it is generally called his Christian name; for as there is no union here between church and state, and no obligation on parents to baptise their children, this name may be as often changed as the patronymic, and although we know that letters are usually the initials of a name, yet if a person uses them, and them only, it is difficult to perceive how his real name can be known, for if he is sued as Alexander William he may say they mean Andrew William, or any other name which may begin with those letters.”

And in Commonwealth v. Kelcher, 3 Metcalf, (Ky.) 484, where the defendant was indicted as Mrs. Keleher, and demurred to the indictment, the court said : “It is quite probable that appellee had a Christian name, but there is nothing in the record from which the fact can be ascertained that she had one, and having admitted, by her demurrer, that the' facts as stated in the indictment are true, it would follow as a necessary consequence, that she was correctly described and named therein.”

But be this as it may; let it be granted that the indictment in this case, is bad on its face, by the common law, as to the defendant whose Christian name is not given, and as to the other defendants, who are described by initials, instead of Christian name should the court below, for such defects, have quashed the indictment.

The criminal code provides that, “ An error as to the name of defendant shall not vitiate the indictment, or proceedings thereon, and, if his true name is discovered at any time before execution, an entry shall be made on the. minutes of the court of his true name, referring to the fact of his being indicted by the name mentioned in the indictment, and the subsequent proceedings shall be in the true name, substantially as follows: The State of Arkansas against A. B. indicted by the name of C. D.” Gantt’s Dig. sec. 1785, p. 405.

The statute is safer for the accused in one respect than the common law practice, for if he be misnamed and plead not guilty, whereby the misnomer is waived, the court will nevertheless cause his true name to be entered of record, when discovered, to protect him against a subsequent indictment for the same offense by his proper name; and it is better for the State, because it saves the trouble and expense of a second indictment when the first, on plea of misnomer, is held bad and quashed.

If the defendants not indicted by their proper Christian names in this case, had pleaded this misnomer in abatement, they would have been bound to furnish their true names in the plea, and then instead of amending the indictment, and overruling the plea, as an English judge would do under the statute of George IV, above referred to, the court would have caused the names furnished to be entered of record, and overruled the plea.

But in this case the counsel for defendants are entitled to the credit of ingenuity for attempting to evade the statute, and avail the defendants of misnomers by demurrer, without disclosing their proper names. Can the manifest purpose of the statute be avoided by the mere mode of presenting the misnomer? We think not.

In the case of Commonwealth v. Kelcher, above cited, the appellee was indicted by the name of Mrs. Kelcher, for keeping a tippling house, by which name she was summoned, appeared and demurred to the indictment, because her first or Christian name was not stated in the indictment. The court said : The rule as laid down in some, if not all of the elementary works on criminal pleadings, is, that a person charged in an indictment must be described by his first or Christian name, as well as his surname, but that rule is changed in this state by the adoption of the criminal code.” The court then quotes a section of the Kentucky code similar to the one above copied, and proceeds to say: “ If the erroneous statement of the whole name of defendant would not vitiate an indictment, certainly the omission to set out the Christian name of a defendant would not, and the objection to the indictment on that account must be regarded as unavailing.” And after quoting another section of the code of Kentucky (and we have a like provision in our code, Gantt’s Dig., sec. 1782), which provides that: “No indictment is insufficient,'nor can the trial, judgment, or other proceedings thereon, be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the meritsthe court further say : “ By which we understand that no defect in an indictment which would not, on the trial on the merits, deprive the defendant of some substantial right, shall be regarded.” And adds: “ Noav if the appellee was not the person intended to be indicted, or if some one else bearing her surname was the person who had’ committed the offense charged, the omission of the Christian name in the indictment would not deprive her of the privilege of showing the fact, nor could she thereby be deprived of any substantial rights upon the merits.”

Moreover, three of the appellants, Newt. J. Farris, John Graham and Hosea King, seem to have been indicted by their Christian names, and why the court below quashed the indictment as to all of the appellees, for a supposed fatal defect in setting out the Christian names of some of them, we are at a loss to understand.

Chitty says: “ If matters in abatement be pleaded by one of several defendants, and allowed, it aa¡í11 only quash the indictment as to him, without affecting it as to those who are correctly indicted.” Chitty Cr. L., 450.

We are not aware that the rule is otherwise on motions to quash, or on demurrers, for such defects as are complained of in this case.

The judgment must be reversed and the cause remanded, with instructions to the court below to overrule the demurrer to the indictment.