source: Caselaw Access Project

author: G-regg, J.

license: Public Domain

text:
    Thompson v. Mankin.
    'Constitutional Law. — A State government not in the United States and in obedience to her Constitution, is not, as a law making power, a part of the United States government, and there is no law, State or National, by which that government, when she conquers her opposers, is hound to recognize as valid the public or political action of any such State while engaged in rebellion against the national Constitution and laws.
    If the lawful government of the United States, .or of a State, through the proper political departments, do not recognize the validity of the acts of such rebel State, the courts of the regular State government have no .authority to hold the public acts and proceedings of a State, so in opposition to the Constitution and laws of the United States, valid and binding between individuals.
    The force and effect of all acts of the courts of a State in rebollion depends upon the recognition of the conquering power.
    The recognition of the civil government must be decided by the political department of the government to which the courts belong, and when so decided, are to be considered res adjudicatei.

    The government recognized by the President of the United States, whether foreign or domestic, is the one acknowledged by the courts.
    The governments, established by the States in rebellion, were never recognized by the government of the United States as the legal State governments.
    The according of belligerent rights, to a State in rebellion, does not constitute a government de facto.

    Coneedébate Coubts — Service by, not binding. — Service made, during the rebellion, by a Confederate Court is not binding upon the party to appear, and any decree or judgment rendered thereon is a nullity.

      Error to Arkansas Circuit Court.

    Hon. William M. HaRRison, Circuit Judge.

      Clark, Williams <J- Martin,tor appellant.

      Bell <f Carlton, for appellee.
   G-regg, J.

In this ease it appears that Joseph Maxwell, as clerk of Arkansas circuit court, on the 17th day of August, 1861, issued a writ of summons against the plaintiff in error, which, on the 3d of October following, was read to him by Henry Stephens, as sheriff, and it required him to appear at the circuit court of said county in November, 1861, to answer the complaint of said Mankin. Then follows an opening order of the circuit court of said county, on the 13th of October, 1865, and a judgment against Thompson by default. ' .

The only question presented, is, whether or not Thompson, upon these proceedings, was compelled to appear in the circuit court of that county in October, 1865, and answer at the suit of Mankin. But this, as did the case of Penn v. Tollison, involves the regularity and validity of proceedings had in the fall of 1861. Counsel submit, if they were valid, the judgment is good, otherwise, it is reversable for want of service.

Since the suppression of the rebellion much has been said, and some very elaborate and learned opinions have been written upon the statutes of this State during the insurrection. After much delay and anxious consideration, I cannot consent to some of those very ably written arguments and opinions. Courts take judicial notice of important facts in the history of a State, and thus we know that on the 6th of May, 1861, a Convention, of the delegates of the people of this State, passed .an ordinance of secession and attempted to withdraw the State from the Federal Union, and to sever her citizens from all allegiance to the government; and thereafter formed an alliance with certain other States, then in rebellion, against the government, and with them, by armed force, resisted the authority of that government until 1865, overcome by superior power, they were compelled to submit to her mandates. This we also know by the public acts of Congress and proclamations -of the President, as well as by the acts of our State Convention and legislature. By the act of Congress of July 13th, and the proclamation of the President of August 16, 1861, this, among other States, was declared in rebellion against the United States government, and that the laws thereof could not be enforced within our limits; other acts of Congress, and proclamations show the continuance of the rebellion, and when it ceased; so that we must know that the acts of Maxwell and Stephens, above referred to, were within the'rebellion, and had such power and force only as the rebellious authority could give them.

It has been urged that when resistance to lawful authority has been made, by a sufficient number and such means, that those, engaged in re-establishing order, must recognize the insurgents as enemies at war; must accord to them belligerent rights, when subdued; all their acts, not directly in aid of war with the proper government, must be regarded as valid and binding; in other words, that a rebellion of such magnitude as to be considered a civil war, gives to those, engaged in such rebellion, all the civil power and authority of a regular, valid, recognized government during the existence of the insurrection, and that the civil acts of such rebellious authority must be taken and considered settled law by the courts of the legitimate “government. This we are not prepared to concede. The magnitude of the resistance, the force of numbers, may require belligerent rights, but these are war rights — they are rights existing for the sake of humanity, and to soften the rigors of war, which are always harsh enough, and not to settle individual titles to property.

"When war exists, the belligerents may capture or destroy the property of each other, and each, if not right, by power may enforce laws, or rules, as to property, as well as persons, within their own lines of occupation; hut such laws, or rules, are considered nowhere binding upon the opposing army, and if the citizens are brought within the lines of the opposing forces, there is no power or law, by which they can demand of the advancing army to observe the laws laid down by the receding forces, and it is wholly at their option whether or not they will regard the laws or rules enforced by the former army; and we are of opinion that any civil organizations, rules or forms of government, adopted by those supporting the rebel cause, within its lines, and protected by its power, though adopted in the form of civil law, must depend upon a like principle — must depend upon recognition and assent.

We are not aware of any principle, in international law, that compels a conquering power to observe all the property rights in the conquered territory. Wisdom and natural justice may dictate such a policy; yet we hold that there may be a marked difference between true policy and absolute rights, and even in policy there may be a difference; there may be a respect due the laws and customs of an established and recognized government among civilized powers, even when such government is conquered, and destined to be forever extinct, that cannot be claimed for the enactments of mere combinations of persons or communities in opposition to their government, and without authority recognized by it, or by other existing governments. If an individual acquires a property right-under the’ laws and regulations of a properly organized and existing government, a government known and recognized as one among the nations of the earth, he can, with great force and reason, insist that such right be respected by any succeeding power that may acquire dominion over him, and to divest such rights might well be considered a harsh use of conquering power, rather than an observance of those rules of natural justice prevailing among civilized nations; but if a member of a lawless mob, overruning a small district of country, when dispersed and driven to obedience by legitimate authority, sets up a claim to property, by a right under the rules or laws of the insurrectionary party, it would not be recognized by any one. And so, in all cases, the demand for the protection of such alleged property rights is more or less just in proportion as the power, that attempted to confer such right, was or was not proper governmental authority; and these conditions, which are addressed mainly to the political departments of the established government, should certainly have a controlling influence over it; and we maintain that the recognition of a civil government, so far as the equrts are concerned, must be decided by the political departments of that government to which the courts belong; and when so determined, the question is res adjudícala with her courts, and taking the question thus settled, they must determine rights of litigants by the rules of law applicable in such cases.

In the case of Sutton vs. Bordan, the Supreme Court of the United States said: “ That it rested with the political power to decide whether the charter government had been displaced or not, and when that decision was made, the judicial department would be bound to take notice of it as the permanent law of the state, without the aid of oral evidence, or the examination of witnesses; that, according to the laws and institutions of Rhode Island, no such change had been recognized by the political power, and that the charter government was the lawful and established government of the State, during the period.in contest, and that those who were inarms against it were insurgents, and were liable to punishment. * * *

“In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice; and this principle has been applied, by the Act of Congress, to the sovereign States of the Union. *’ * * * “Ho one, we believe, has ever doubted ‘the proposition that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own. pleasure. But whether they have changed it or not, by abol-isMng an old government and establishing a new one in its place, is a question to be settled by the political power, and when that power has decided, the courts are bound to take notice of its decisions and to follow it.”

According to the doctrine announced in these extracts, can this court recognize the acts of any power, claiming to be a government, as valid, if the political departments of our government declare that no valid government did then and there-exist ?

The Supreme Court of Tennessee, in the case of Wright & Cantrell v. Overall, after urging that the court has no power to recognize a government not acknowledged by the political departments, say: “No rights or protection can accrue to individuals under Confederate laws; they were enacted without lawful authority and against the policy, laws and Constitution of the United States, and the courts of the country are bound-to treat them as if they never had been promulgated; 2 Cold., 344.” The same court, in case of Thornburg v. Harris, 8 Cold., 168, say : “The according of belligerant rights to the insurgents, did not constitute them a government de facto, nor vest in them any of the rights of sovereignty which would authorize them to issue a currency that can be recognized, as legal, by the courts sitting under the authority of the regular government, nor can the courts recognize any of the acts of the insurgents in their organization as a civil government. The question rests with the political power of the government; so long as that power withholds its recognition, the courts of the country cannot lend their aid to enforce any contract growing out of the organization, of the so-called Confederate States.”

In the case of Ray v. Thompson, 43 Ala., 454, the Supreme Court of that State say: “ It is known to the court, as a part of the judicial history of the State, that the court, in which this judgment was rendered, constituted a portion of one of the departments of a government established in hostility to the Constitution of the United States. It has been settled that the acts of the legislature of such a government are invalid. * * * If this is admitted, and it seems it cannot be denied, it cannot well be considered, bow the judgments of the courts of such a government can be better or more valid than its laws.”

And in this discussion we must not lose sight of the fact, that writers upon international law, in commenting upon the' rights of communities or individuals, as they should be respected by a conquering government, address themselves to the military and political departments of that government, and declare what is the duty of the government, and not what is the authority and power of the courts belonging to the government. They cannot, and do not attempt to lay down any arbitrary rules, as law, by which the courts must be governed, without regard to what the political departments announce as the fundamental law of the State. The rights of citizens depend upon the sovereign will of the States, and not upon any rule of courts to be adopted contrary to such will, and those outside of a government, who are brought under that government by the conquering power of arms, come in with no vested rights,,except such as have been recognized by the conquering power, or secured by treaty, or which may afterwards be conceded to them by those in authority.

bTor must we lose sight of the difference between what a sovereign ought to do, and usually does do, and what he has the,power to do, when by the powers of war he subdues his-enemies. Does any one doubt that in case of a civil war, when the insurgents are compelled to submit, that the government, although their numbers might be considerable, might not declare them traitors and subject to punishment as such? Had Great Britian seen fit to execute all the conquered Fenians, she might have incurred the censure of civilized people, but would any one here question her national right to do so ? How many said Maxamillian’s life and property should not be forfeited to Mexico, yet who denied her lawful power to kill him, or appealed from her decision when she did so ? And upon an •.unconditional surrender of a rebellion, can any one question ■the power of the government to confiscate a part or the whole of the insurgents’ property, or impose other restrictions or limitations upon them ? In a republican government we may condemn such policy, but the propriety of doing and the power to do are different; and we are trying to demonstrate what is a right of war or governmental power in such case, and to direct the minds of counsel and parties to the distinction between what a government may do and ought to do, and what the courts of such government have authority to do.

While the political departments, the sovereignty of a nation,, have a large discretion and vast power over the rights and property of her subjects and her conquered enemies, the courts of that government are hedged in by rigid rules; not only hound by the sovereign will of the people, but they must obey every legislative command that does not clearly violate the established fundamental principles of the government. Courts then, instead of launching out upon a broad, philosophical and moral discretion as to natural justice and right between man and man, can only go to the wall thrown around them by political action. The discretion of courts is but an oath bound obedience to the declared will of the political departments or their governments; hence our principal labor is to ascertain what acts express the authoritative sovereign or legislative will of our State or general government, and it seems to us not difficult to - determine whether or not our political departments of government recognize authoriiy in Arkansas- to make laws, hold courts* etc., while in rebellion. The proclamations and commands of the President, the acts and resolutions of Congress, as well as the acts of the State herself, declare that, during the rebellion, she had no valid legal government; that she was at war with the government, and in opposition to the national Constitution ; and upon the close of the rebellion the political departments of the State government not only refused to recognize the validity and binding force of the acts of the revolting State of Arkansas, but they expressly and in the most emphatic terms, and in a solemn ordinance of the Convention, declared that: “The action of the Convention of the State of Arkansas, which assembled in the city of Little Rock, on the 4th day of March, A. D. 1861, was and is null and void, all the action of the State of Arkansas, under the authority of said Convention, of its ordinances, or its Constitution, whether legislative, executive, judicial or military, was and is hereby declared null and void,” etc., etc. But we will not quote at greater length, or go into the history of this Convention, because our Chief Justice, in the case of Penn v. Tollison, decided at the present term, has treated this matter at considerable length.

We desire now to elaborate but the two propositions: First, that a State government, not in the Union of the United States, and in obedience to her Constitution, is not, as a law making power, a part of the United States government, and that there is no law, State or national, by which that government, when she conquers her opposers, is bound to recognize as valid the public or political action of any such State while engaged in rebellion against the national Constitution and laws. Secondly, That if the lawful government of the United States, or of a State, through the proper political departments, do not recognize the validity of the acts of such rebel State, the courts of the regular State government have no authority to hold the public acts and proceedings of a State, so in opposition to the Constitution and laws of the United States, valid and binding between individuals.

In the case of Scott, et al. v. Jones, 5 Howard, 377-8, which was upon a writ of error to the Supreme Court of the State of Michigan, to reverse a judgment of ejectment in that State court, it was alleged that the statute, under which one of .the parties claimed, was enacted by a legislature convened before the State was admitted into the Union. The Supreme Court of the United States say: “Such conduct, by such bodies, if not situated within the territory of the Union, would be a foreign affair, and not within the cognizance of any of the departments of the government, unless so interfering with its rights as to call for the political exercise of the executive or-legislative authority over our foreign relations.”

“Agam, such conduct by bodies situated within our limits, unless by States'duly admitted into the Union, would have t© he reached either by the power of the Union to put down insurrection or by the ordinary penal laws of the State or territories within which these bodies, unlawfully organized, are situated and acting. While in that condition their measures are not examinable at all by a writ of error to this court, as not being statutes by a State or member of the Union. It follows, then, that a statute passed by a political body,'before its admission into the Union, seems either not to be one under the cognizance of the Union, or its judicial tribunals, by means of sec. 25, of the Judiciary Act, unless re-enacted or adopted after becoming a State. The question of their competency is not, however, thus made a closed one, but may be discussed before the proper political tribunals.”

In an earlier paragraph the court say : “Hence, two things must unite in order to justify it (the jurisdiction); there must be an act of solemnity and importance, such as a statute, and that statute must be by a State, a member of the Union and a, public body, owing obedience and conformity to its Constitution and laws.” This latter clause clearly lays down the proposition that the courts of the United States will not recognize the statutes of any legislative body, unless that body is of a State in the Union, owing obedience and CONFORMITY to its Constitution and laws. They hold that a statute passed by a legislature, in a territory, cannot be considered as an act of the State, unless re-enacted or adopted after it becomes a State.

This distinguished and learned tribunal, in those earlier days, when the minds of the people had not been inflamed by the passions of war, say the question, as to the competency of such a legislature, is not a closed one, but may be discussed before the proper political tribunals; thus, beyond question, settling that whatever of law or rights may have existed, by reason of the action of a territory or State, not a member of the Union, in obedience to her Constitution, is a matter to be addressed to and decided upon by the political, and not the judicial departments of the government; and whether that political determination was ■judicious, was wise, as it has appeared to be in most of the territories, or unwise, and influenced by passion, as has been alleged in some of the late rebel States, it is, nevertheless a settled proposition for the judiciary, and right or wrong, politic or impolitic, the credit or responsibility is upon that department to which the Supreme Court of the United ■States says it properly belongs.

It has been urged that the statutes, acts of courts, and other proceedings of rebel authorities, in this State, must be held valid because they were formal, and there was an actual existing government. Something more is necessary. Michigan had framed and adopted a constitution, her legislature had "been duly elected and returned, her laws were in due form, and approved hy her governor, acting under her constitution; there was no rebellion there, and no attempt or intention to do violence or wi’ong to any proper authority; but, under the United States Constitution, there had been no act of Congress recognizing their authority or enabling them to form a State government, and because of this mere oversight by her territorial authorities, the Supreme Court, in effect, say their acts must-be held void. They would not even assume jurisdiction, because ■she had not political jurisdiction, in accordance with the Constitution.

What would the Supreme Court then have said of .a State like Arkansas, acting in direct and palpable violation of the Constitution of the United States, and exerting every power in her command to destroy that Government ? If possible,. the answer is made more strikingly plain, when the political ■departments have declared that the action of this State, during the rebellion, shall be held null and void. If their language had been less explicit and definite, while the debates and proceedings of the Convention of 1868, and the individual views of its members, are so fresh in our minds, we could not doubt as to what was their intention and purpose; and whether or not their action and policy was expedient and just, is not a question for the court to decide. They did intend, and by language unambiguous did enact that all action under the Constitution of 1861, or of the ordinances of that Convention, whether legislative, executive, judicial, or military, was and is null and declared void. This embraces the officers of the Arkansas circuit court. They were qualified under an ordinance of that Convention, and acting under that Constitution; their acts have not been recognized as valid, and by the Constitution of 1868 they were declared void; and, while we are sworn to support that Constitution, we cannot hold such acts valid and binding upon litigants who have in no way given assent thereto.

In conclusion, we repeat the propositions assumed: when a people engaged in war are subdued, by force of arms, their property rights must depend upon their terms of peace, or upon recognition of their laws or rights by the conquerors, and if suph recognition is had, it must come from the political departments of the conquering State or Nation. If the political departments refuse to recognize as valid the former laws of the conquered people, the courts of the established government cannot hold them valid and binding. In the matter under consideration, the Confederates were engaged in war, with laws among themselves, but which laws were not acknowledged by any other power; they were subdued by force of arms, and surrendered to the United States without condition or reservation, and consequently took the risk of all the deprivations the war power, or triumphant government, might impose, and that government refused to recognize as valid any of their laws, or public acts, and the State, in her sovereign capacity, by a solemn ordinance declared that the acts of the departments of the State, during the rebellion, shall be held void, and the courts are bound by the ordinances of the Convention of 1868, and other proper acts of the political departments of the government.

Therefore, the pretended service of a summons, in this case, feeing under and by virtue of the authority, ordinances and laws of 1861, was invalid, and not binding upon the defendant below. The judgment is, therefore, reversed; and, as he has appeared to the action, by prosecuting this writ of error, the cause is remanded to the court below, with instructions to allow him to plead to the action therein, and to proceed to judgment.

HARRISON, J., being disqualified, did not sit in this case.

Hon. J ohn ’Whytock, Special Supreme Judge.


author: Bennett, J.

text:
    Timms v. Grace.
    Judgment by Confederate Court void. — A judgment rendered by a court held in this State, after the passage of the ordinance of secession, is coram non jwdice and absolutely void?

      Petition for Certiorari.

      Watkins Pose, for petitioner.

      English, Gantt $ English, for defendant.
   Bennett, J.

On the 31st day of July, 1868, petitioner filed in this court his petition, praying that certiorari, with a supersedeas, issue to the Desha circuit court, to bring up a pretended judgment of that court, rendered on the 28th day of October, 1861, and wh ich that court was endeavoring to enforce in defiance of la w, and that the same might be quashed.

The writ and supersedeas was allowed by the Chief Justice. On the 14th of December, 186S, the defendant filed a motion to vacate supersedeas and dismiss certiorari.

The petition and the transcript, sent up, show that the judgment, which is sought to be quashed, was rendered at the October term, A. D., 1861, of a court said to be held in Desha county, after the passage of the ordinance of secession.

Article 1, section of the State Constitution says: “The action of the Convention of the State of Arkansas, which assembled in the city of Little Rock, on the first day of March, A. D., one thousand eight hundred and sixty-one, was and is null and void. All the action of the State of Arkansas under the authority of said Convention, of its ordinances or its Constitution, whether legislative, executive, judicial, or military, was and is hereby null and void.”

The views.of this court as to the validity and powers of courts organized after the passage of the ordinance of secession, and the efiect of the above provision of the Constitution, have been presented at this term of the court, in the cases of Penn v. Tollison, and Thompson v. Mankin.

The judgment, now before us, coming under the principles decided in these cases, the same is coram non judice and absolutely void, and therefore will be quashed and superse-deas made perpetual.

IlARRisoN, J. being disqualified, did not sit in this case.

Hon. John Wiiytock, special Supreme Judge.


author: Harrison, J.

text:
    Evans v Parrott, administrator et al.

    Bills on Review. — Decrees in Chancery are reviewed on two grounds only: For error of law apparent upon the face of the decree, without further examination of matter of fact; and new matters arising after the decree.
    EeSob Apparent. — By error apparent ux>on the face of the decree, is to be understood, that it so appears, by a comparison of the decree with the bill, answer and other proceedings.
    When not allowed. — Where complainants’ bill charges such facts as entitle him to relief, and no facts are recited in the decree, as established, there is nothing in the decree or the record upon which error can be predicated, or out of which it could possibly arise, as a foundation for a bill of review.
    When permitted — new matter, etc. — To authorize a bill of review for new matter, it is required to be “new matter or evidence, which hath come to light after the decree, and could not possibly be had or used at the time when the decree passed.”

      Appeal from, St. Francis Circuit Court.

    IIon. William Story, Circuit Judge.

      Brown Lyles, for appellant.
    We submit that it is not necessary to obtain leave of the court, before a bill of review for error of law apparent on the face of the decree, is filed. ' Sec 405, Story’s Com. Eq. (4 ed.)

    “It may be brought upon error of law appearing in the body of the decree itself. A bill, of this nature maybe brought without the leave of the court previously given.” Willford Ch’y Pl’d (6th Ed) 102, and note citing, Webb v. Pell, 1 Page’s Ch. R. 564.;. Edmondson v. Manley’s heirs, 4. J. L Marsh, 500; Blight v. Mcllvay 4 Monroe, 145.

    “A bill of review, brought to review a decree for error apparent on the face thereof, may be filed without the leave of the ’court.” Daniels Ch. Pr. *1729. If a bill of review is filed without leave in a case requiring it, it may be dismissed on motion. Carrol v. Parram, 1 Bland, 125'.

      Watkins £ Rose, for appellees.
    The granting of a review is not a matter of right, but of sound discretion in the Chancellor. Hughes v. Jones, 2 Md. Chy. Dee. 289; Pfelz v. Pfelz, 1 Ib 155; Hargroves v. Lewis, 7 Geo, 110; P. M. Rank v. Dundus, 10 Ala. 661; Massie v. Graham, 8 McLean, 1.1; St. Eq. PI. sec. 117. As to the newly-discovered evidence the bill could not be filed without the previous leave of the court. Webb v. Pell, 1 Paige, 561; Lansing v. A Ibany, Ins. Co. Ilopk. 102; Kenon v. Williamson, 1 Hay. 350; Caller v. Shields, 2 Stew. Port. 117; Burch v. Scott, 1 Gill J. 898. The newly discovered evidence must be of some new fact not before put in issue, and not merely correlative. Respass v. McClanahan, Hard. (Ky.) 816; Lawson v. Moore, 1 Texas, 22; Vaughan v. Ham, 6 B. Mon. 338; Tharp v. Gotten, 7 lb 636; Caller v. Shields, 2 Stew. Port, 117. Any error of law or of judgment not palpable on the face of the decree and of the pleadings in the cause, could have been corrected by appeal, but not by bill of review. On bill of review the court will not examine the evidence on which the decree was based. Garrett v. Moss, 22 HI. 868; Laum v. Stingley, 8 Clarke {Iowa) 511; Winchester v. Winchester, 1 Head, 166; Eaton v. Dickinson, 8 Sneed, 101; Foy v. Foy, 25 Miss. 207.

   Harrison, J.

The appellant exhibited his bill of complaint in the St. Erancis circuit court, against the administrator and heirs of James P. Nimmo, deceased, and George B. Hotchkiss, in which he set up a vendor’s lien, reserved in the deed of conveyance, upon a tract of land of which the said James P. Nimmo died seized, purchased by him from one George W. Seaborn, the guardian of the said George B. Hotchkiss, then a minor, and a right to be subrogated for the vendor thereto, on account of having, as the security of said Nimmo, whose estate was insolvent, paid the obligations given for a portion of the purchase money, and praying a forclosure of the lien for his benefit. The deed, together with the record of it, was alleged to have been destroyed by the burning of the recorder’s office.

The administrator answered and admitted all the allegations of the bill except that in relation to the reservation of the lien, which he denied to be time, and the heirs, who were infants, answered by their guardians ad litem, and denied any knowledge or information of the matters contained in the-bill and called for proof. George B. Hotchkiss did not answer or make any defense. Replications were filed to the answers, and upon the hearing the court dismissed the bill for want of equity.

To review and reverse the decree the plaintiff filed this complaint, which assigns as grounds therefor, First: That the sale created a lien upon the land for the unpaid purchase money, which the guardian could not waive or release, and the complainant, as the security of the purchaser, paying the obligations, it was apparent upon the record that he was entitled to be subrogated to the right of the lein, and to the relief lie prayed, and that the court manifestly erred in dismissing his bill. Secondly: That the complainant’s solicitor omitted to prove, which he could have done had he propounded the question, by the said George B Hotchkiss, whose deposition'was read upon the hearing, that a lien was reserved in the deed, which omission was not observed" until at the hearing, and that since the making of the decree he had discovered that he could prove the fact also by the said George W. Seaborn, and also learned that he himself was a competent witness.

'The administrator demurred to the complaint as showing no ground for review, and upon argument the demurrer was allowed and the complaint dismissed.

There are but two cases in which the decree of a court of •equity may be reviewed, and these, as settled by the first of the ordinances in chancery of Lord Bacon, respecting bills of review, never since departed from, are: error of law appearing upon the face of the decree, without further examination of matters of fact, and new matter arising after the decree.

In England, the decree recites the substance of the proceedings, and the facts on which it is founded, but in this country, the bill, answer, and other pleadings constitute the record, and there can be no necessity for embodying the substance of them in the decree. We are, therefore, to understand by error of law appearing upon the face of the decree, that it so appears by a comparison of the decree with the bill, answer, and other proceedings. It is the established doctrine that the error ap • parent upon the decree must arise out of the facts admitted by the pleadings, or recited in the decree as settled, declared or allowed by the court; and there is a marked distinction between such error and error in the decree. “Thelatter description,” says Lord Eldon, “ does not apply to a merely erroneous judgment-; and this is a point of essential importance; as if I am to hear this cause upon the ground that the judgment is wrong, though there is no error apparent, the consequence is, that in every instance a bill of review may be filed; and the question, whether the cause is well decided, will be argued in that shape; not whether the decree is right or wrong on the face of it. The cases of error apparent, found in the books, are of this sort; an infant not having a day in court to show cause, etc., not merely an erroneous judgment.” Perry v. Phelps, 17 Ves., jr. 178.

None of the allegations of the bill were so admitted in the pleadings as to dispense with proof of them. The heirs admitted nothing, nor were they, being infants, capable of making admissions that would bind their interests.

Then, if the complainant’s bill charged such facts as entitled him to relief, a question not before us, nor considered by us, as proof was required, and no facts are recited in the decree as established, there was nothing in the decree or the record upon which error might be predicated, or out of which it could possibly arise as a foundation for a bill of review. The other ground assigned is equally untenable. No new fact, or evidence, which might not have been known by the use of ordinary diligence, is alleged to have been discovered, and the omission to prove, upon the examination of a witness, a material fact directly in issue, which could have been done, if he had been interrogated in respect to it, or neglect to procure the testimony of other persons who were most likely to know it, to the same fact, when not prevented by causes or circumstances beyond the parties control, certainly can be no ground for a review of a decree.

To authorize a bill of review for new matter, the ordinance, before referred to, requires it to be u new matter, or evidence which hath come to light after the decree, and could not possibly be had or used at the time when the decree passed.” A bill of review for. such cause cannot be brought as a matter of course, but application for leave to file it must be made to the court, and such leave will not be given unless it clearly appears to be within the rule established by the ordinance.

Decree affirmed.


author: GrRBGG, J.

text:
    Hightower, et al v. Nuber.
    PRAUDUnEHT Deed. — Bad faith and unconscionable acts can have no allowance or favor in a court of equity, and in a bill charging the execution and procurement of a deed under such circumstances- — the strength of mental capacity of .the parties, the circumstances surrounding themj their relationship etc., make up the grounds upon which the court can find the real influences that produced the conveyance.
    ' When relieved against, etc.— If the evidence adduced, or the circumstances surrounding the procurement of the conveyance, show thatthe party, in whose favor the conveyance is made, possessed an undue advantage over the grantor, and in person, or by agent, exercised an improper influence over such one and to the advantage of the grantee, it is an act against conscience, and within the cognizance of a court of equity and will be relieved against.

      Appeal from Sebastian Circuit Court.

    Hon. E. D. Ham, Circuit Judge.

      Fishback, Clark $ Williams, and Yonley, for appellants.
    The denial in the answer of appellant threw the burthen of proof upon the appellee; Greenl. Ev. 838, Sec. 860. The presumption of law is in favor of soundness of mind; 8d Kent, 668. Mere mental imbecility is not sufficient, there must be a total loss of the reasoning faculties, to avoid a deed or contract; 8d Kent, 564■; Bambean v. Brant, 17 How., J3; 81 Curtis, 854. Nor will inadequacy of consideration avoid a deed; lb. A voluntary or fraudulent, and even voidable deed, may become .good by matter ex post facto; 4 Kent,511; Buckle v. Mitchell, 18 Vesey, 110. Fraud is never presumed, but must be proven ; 9 Ark., 488; Hempstead v. Johnson, 18 Ark. 184-

      Walker f Hu Val, for appellee:
    No principle is better established, in courts of equity, than that á conveyance or contract will be set aside whenever it has been obtained through undue influence over a person greatly under the power of another, if there is inadequacy of price, or clear ground of inference that a confidence reposed has been abused, or an advantage has been taken of.incompetency, weakness of understanding or clouded or enfeebled faculties. Harding v. Handy, 11 Wheat US. S. Ct. B. 104, k85; Taylor v. Taylor, 8 Hoio., 188; Wheeler v. Smith, 3-Cowan,539, 578; Me Craw v. Havis, 8 Iredell Eqt. 618; Slocumb and Wife v. Marshall el ad, 8 Wash. C. C. Rep. 397; Kennedy’s heirs and executors v. Kennedy’s heirs, 8 Ala. 574, 606; Hall v. Perkins 3, Wend 686, 631. As to relief of grantor in equity, in case of fraudulent deeds, see Jackson v. King, 4 Cowan, 807, 880; Butler et al v. Haskell, 4 Hessaussure, S. C. R. 658, 684; Warren v. Daniels et al, 1 Woodbury ¿- Minot 98, 103. The question of undue influence is for the chancellor to decide; Griffith v. Robins, 3 Madd. 191; Dent v. Bennett, My. Cr. 873; Harvey v. Mount, 8 Beav 439.

   GrRBGG, J.

In November, 1869, the appellee commenced bis suit, in equity, in the Sebastian circuit court against the appellants, J oseph S. 0. Roland and his wife J osephine, to cancel a deed by him made to the defendant, Mary Jane Hightower, under which she claimed title to lot 7, in block 7, in the city of Fort Smith, and to have possession thereof delivered to him ; alleging that said Rolands were in actual possession as tenants under the Hightowers, and that the deed, executed to said Mary Jane, was obtained through fraud and deception, and without any consideration. That from long and severe affliction he had become greatly depressed in body and mind, insomuch, that he was incapable of transacting any business, and through undue influence of those who were his confidential advisers, and of his own want of capacity, said deed was procurred.

The Rolands made no response to the plaintiff’s complaint.

The Hightowers separately answered and admitted that the plaintiff was quite old and had been afflicted for many years, and that he was propped up in a sick bed at the time he executed the deed; that the consideration expressed in the deed in reality never did pass, except temporarily, and the lot and houses thereon were a gift to the said Mary Jane. But they repeatedly and positively denied that the "plaintiff’s mental faculties were impaired, and they averred that he was fully sane and well; knew all that he was doing at the time he executed the deed ; that plaintiff was a foreigner and had no heirs in this government, and that he was greatly attached to the said Mary Jane because of her kind offices to him, and like favors from her mother’s family, and for that cause he gave her the property and executed‘the deed. Issues were made up and both parties took depositions.

Swift, a justice of the peace, testified that at the instance of W. M. Hightower, he went to Huber’s house and took the acknowledgment of the deed. Plaintiff was supposed to be between 50 and 60 years old; had been in feeble health, and Avas then propped tip in a sick bed; that plaintiff responded, “the deed was all right,” and made the usual acknowledgment and said he was old and sick and would die soon and Avanted some one to take care of him. Mrs. Hightower presented the deed, Sparks filled up some blanks, and he and her brother, Henry Miller, witnessed the deed. Nothing said as to whether the deed was a gift or sale, but Mrs. Mary J. High-tower handed plaintiff a $500 bill. He did not thfen appear to be in danger of immediate death, and witness considered his mental condition not then such as to render him incapable of making a deed, and the property conveyed was worth from S3,000 to $4,000.

This witness was asked, if, atthe bringing of this suit, he did not tell William Walker, esq., that when he took the acknowledgment of the deed, he thought the plaintiff was in no condition to make a deed; said he made no such statement that he could recollect of. Walker testified, orally, before the court, that he did then make such statement.

Sparks testified that he happened to go to Hightower’s that evening, and Hightower asked him to go with his wife, as she Avas going out; they went to plaintiff’s, found him set up in bed; could not say if he was supported by some one; that he was about 60 years old and was feeble, and for several years he “had made motions like a man in bad health;” saw nothing to indicate incapacity to make a deed; that he signed, acknowledged and delivered the deed, and received^from Mrs. Hightower a $500 bill; that the plaintiff and the Miller family (of which Mrs. Hightower had been a member) were very intimate, and he had heard plaintiff say, Mary Jane, (alluding to Mrs. High-tower,) was to have what he had, or something to that effect, but never heard him speak of the deed after it was made.

Henry Miller testified that he was the brother of Mrs-Hightower; that he attested the deed; that plaintiff gave the numbers and signed and acknowledged the deed; that plaintiff, at the time, was perfectly rational; that he told Mary Jane-where to get the original deed, which she yet has, and he received from Per a $500 bill; that in a few days he rented the premises from Hightowers and boarded and provided for Huber, while there, etc.

Humphreys testified that W. H. Hightower employed him to prepare the deed in question; that Hightower, as the agent of Huber, had employed him, as an attorney, to appear for Huber in a suit of slander against him, and that he advised Hightower that the lot should be transferred to an innocent purehaser for a valuable consideration, to avoid a judgment, if any should be recovered against Huber; and he also prepared a lease of the premises from Hightowers to Roland.

Garrard testified that in July or August, of 1869, plaintiff told him he had sold his house for $500 to Hightower; after-wards they had some words, and heard plaintiff tell "W. H. Hightower he would have his house back.

Clifford testified that, within six months, plaintiff told him he had conveyed his lot to Mrs. Hightower, and that he was sick and out of his head when he did so.

Mrs. Roland and Yail testified that when they made application to rent, in 1869, the plaintiff told them Hightower had .control of that matter, and they would have to rent from him.

Harrison testified that he waited on Huber, and he was very sick, or pretended to be so, when the deed was made, and he said “Mary Jane, I always intended this for you,” but he did •not know what he did with the deed when signed'.

Doctor Spring testified that in October, 1868, plaintiff was very feeble and confined to his bed; he did not recollect of any evidences of unsound mind at that time; he was very peevish and fretful, and on several occasions threatened to go and throw himself into the river to get out of the way; that he ■supposed him to be 65 years old, and at times he was very nervous.

Doctor Dunlap testified that for thr'ee years he had occasionally attended the plaintiff; that he had a number of severe attacks and was liable to die at any time; the effect of the attacks was great physical prostration, and he manifested the usual peevishness; not palsied or extremely nervous, but his nervous condition corresponded with his general physical prostration; the mind would not he strong and vigorous as one in health; it would, in some degree, partake of his physical prostration, differing in different persons, etc.

McDonald testified that he was in the room, at plaintiff’s, when Swift came to take the acknowledgment of the deed; that plaintiff was in a critical condition, likely to die, and witness was emphatically of the opinion that plaintiff was not then in a condition to transact important business of any description. A few days after he asked plaintiff if he was satisfied with the transaction, and he replied he did not know, and supposing plaintiff did not wish to talk of the matter, the subject was at once stopped; some time after this plaintiff told witness he had heard Hightower claimed to have bought his house and lot for $500, and to take care of him, and “he was a good take care to let him set and freeze, and he did not intend such conveyance should stand,” and asked witness to employ Hill Walker and Ben Duval for him, which witness did.

Huber, himself, testified that he was 66 years old and that he had no recollection .of ever before seeing that deed; that he never received one dollar for the place; that no $500 bill was ever paid him, etc.; in substance, same as stated in his complaint.

Mary Jane Hightower testified to all the material allegations in her answer; that she did not know the $500 was to be given back until she and plaintiff were left alone in the room, when he handed it back and told her he made her a present of that, etc.

It is alleged in the bill of complaint that William H. High-tower was a brother mason, and a confidential friend, and that he had done kindness to plaintiff, and that he had agreed to act as the agent of plaintiff, and to rent his house and collect rents for him upon his receiving written authority so to do, etc.

And the defendant William H. Hightower, in his answer says, “it is true, as stated by the plaintiff, that at the time stated in the petition, he was a brother mason and a confidential friend and adviser of said plaintiff; and that it is also true that he frequently accompanied by his wife, and more frequently when not accompanied by her, for many years visited the plaintiff and extended to him every office of kindness and sympathy in his power, but he denies any speculations as to who should be the object of his bounty.” He denies that he agreed to support the plaintiff during his life-time, but says that it was agreed that part of the rents were to be set apart t o his support.

Several witnesses in' addition to the above were examined and it may be sufficient to say, that it satisfactorily appears that the plaintiff has resided iff Port Smith near 30 years, and a large portion of that time his health has been bad; that he is a foreigner without any relatives in this government; that he is a bachelor 65 or 66 years old; that he is subject to many severe attacks of sickness, very feeble, nervous and peevish; that the house and lot in question is worth near $4000 00, and was all the property he owned; that at the time the deed was made he was in á critical condition, very sick and weak, and liable to die at any time; that defendants, Hightowers, were then among his most intimate friends, associates and confidential advisers.

But whether or not at that time his mental faculties were so impaired as to deprive him of that sound discretion necessary to protect his own interests, or render him incompetent to bind himself by deed, is not alike understood by the witnesses.

The counsel on both sides, in the court below, seemed fully impressed with the importance of developing the mental capacity, or incapacity of the complainant at the date of executing the deed, but the counsel for the plaintiff, in this court, more frequently allude to his mental imbecility as a circumstance to evidence fraud and imposition upon him, than as a disqualification on his part to execute such transfer had he been properly advised and fully protected in what he did.

And in a court of equity, where bad faith and unconscionable acts can have no allowance or favor, the strength of mental capacity of the parties, the circumstances surrounding them,, their relationship, etc., make up the grounds upon which the court can find the real influences that produced the conveyance. And when it is discovered that the party, in whose favor the conveyance is made, possessed an undue advantage over the grantor, and in person, or by agent, exercised an improper influence over such one, and to the advantage of the grantee, it is an act against conscience and within the cognizance of a court of equity.

Without enumerating all the facts in this case, and referring to the great number of authorities in support of the position assumed, suffice it to say, that this grantor was in his dotage, with body and mind greatly enfeebled by long and severe sickness; he was without relatives who, by nature, would have been bound to kindly overlook his declining years. It would have been but unnatural for him to have lingered and died in his solitude without some confidential friend with whom he could communicate, and upon whom he could call for advice, and the defendants were the choice of this grantor, and any of their kind offices had a right to his gratitude, and the respect of all good people; but as above intimated, if such acts were done in the interests of the performers, and to gain an advantage over the recipient, they become vicious and inequitable.

Just before the making of the deed, the defendants made visits, furnished many comforts and luxuries, and in addition, it seems, intoxicating drinks. William Hightower was chosen agent and confidential adviser; was depended upon to employ his counsel and guard his business interests; and at a time when the plaintiff was, at least, in a critical state of, health, when, as the physician testified, he was liable to die at any time, when so feeble that he had to be raised and propped in his bed, and his mind so weak as to cause witnesses much to differ whether or not he knew the act he was doing — a deed was produced by the grantee, and he was caused to sign and acknowledge it.

This might be claimed as well, if the conveyance had been .reasonable to the grantee and just to the grantor, but the case shows a palpable want in this; the house and lot in question ■was his onJ.y earthly possessions; divest him of this and he became a pauper; he had not the physical ability to call from door to door and ask a beggar’s support — would any man of discretion and sane mind have thus reduced himself to entire dependence, and that not in the country of his birth, of within the knowledge of his kindred ? It is true it was attempted to be proved that the defendants, Hightowers, were supporting him, but, upon oath, they both declare they were under no ■obligations to do so. And when we examine the deed we find no^ provision whatever for his maintenance, and it would be unreasonable to think or hold that this old man, whose frugal 'life had secured him about $4000,00 worth of property, in this, his day of greatest need, would, without consideration of kinship or value, convey to another every dollar he was worth.

W"e might refer, in detail, to the particular situation and mental condition of the plaintiff, the peculiar circumstances uilder which such marked attention was given him by the defendants, the intimations of a want of that full attention after the deed was executed, the delivery of $500,00 in the presence of the witnesses as a pretended consideration, when none in fact was given, the admission of the defendants that they were attempting to practice a legal fraud, etc., but it is unnecessary. The whole substance of this transaction shows a want of capacity or undue influence, and a court of equity cannot sustain it, and out of many authorities we refer to Kennedy’s heirs, et al. v. Kennedys et al. 2 Ala., 574; Hall v. Perkins, 3 Wend, 626; Whelan v. Whelan, 3 Cowen, 539; Taylor v. Taylor, 8 How. U. S., 183; Whelan v. Smith et al. 9 ib. 55; Harding v. Harding, 11 Wheat, 106; Jackson et al. v. King, 4 Cowen, 207.

The court below found one hundred and eighty dollars against the appellants jointly for so much rents and profits by them received for the use of the house and lot, from the date of thej deed up to the date of the decree ; but the counsel for the appellee, in this court, waive all claim for rents and profits, and consent that so much of the decree of the court below as relates thereto may be reversed, we therefore express no opinion as to whether that portion of the decree of the court below was correct or not, but will modify the same as agreed by counsel, and with that modification the decree of the court below is affirmed.


author: Harrington, Special Chief Justice.

text:
    McMillen, et al, v. Smith, et al.

      Mandamus — Will not control judicial discretion. — The issuing of an injunction is not an act ministerial in its character only, hut one of judicial discretion, and mandamus never lies to control that discretion.

      Petition for Mandamus.

      Witherspoon and Garland Nash, for petitioners.

      Montgomery $ Warwick, for respondents.
   Harrington, Special Chief Justice.

The plaintiffs, claiming to be the school board of directors for the single school district of Arkadelphia, in Clark county, petitioned the Hon. E. J. Searle, as judge of the Clark circuit court, praying an injunction restraining the defendants, as the acting school board of directors for said single school district of Arkadelphia, from paying out or otherwise disposing of moneys in the hands of the treasurer of said county, and belonging to the aforesaid school district of Arkadelphia, which application was refused, and they now apply to this court for mandamus against the said judge of the Clark circuit court, to compel him to grant the injunction as prayed for in said petition.

The issuing of an injunction is not an act ministerial in-its character only,-but one of judicial discretion, and the only question involved in this case is fully discussed and decided in Hays, ex parte of the present term, in which it was held: That mandamus never lies to control judicial discretion. See opinion in Hays, ex-parte; also 6 Howard 92; 5 Iowa, 380; and 13 Peters 279, 404.

Mandamus is denied.

SbaRlb, J. being disqualified, did not sit in this ease.

TIon. S. R. IIaRRIn&ton, special Supreme Judge.


author: HaRRInuton, Special J.

text:
    Neville v. The State.
    "Obimxnal Law. — A verdict of conviction in a case of murder, which does not find the degree of murder, is so fatally defective that no judgment can be entered upon ijr.

      Appeal from Phillips Circuit Court.

    Hon. John E. Bennett, Circuit Judge.

      Garland Nash, for appellants.

      Montgomery, Attorney General, for appellee.
   HaRRInuton, Special J.

The appellant was tried in the court below for the murder of Sandy Hash. The jury returned a verdict of “guilty as charged in the indictment.” The defendant moved for a new trial and presented, in support thereof, exceptions to the verdict, also exceptions to the instructions and rulings of the court and to the evidence, but his motion was overruled and he was sent enced to be hanged. Many of the causes assigned for a hew trial are unimportant, and need not be considered by this court in reviewing the case; but the language of the verdict “guilty as charged in the indictment,” is too general to guide the court to the penalty which the law inflicts. Murder is recognized by the statute as a greater or less crime, according to the circumstances under which it may be committed, and is classed into the first and second degrees, and different punishment provided for each degree. It is therefore just as necessary that the jury should find the degree in which the defendant is guilty of murder, as it is that they should find whether or not he is guilty of the murder. And this court has held in Thompson v. The State: “That a verdict of conviction in a case of'murder, which does not find the degree of murder, is so fatally defective that no judgment can be entered upon it.” See Thompson v. The State, and Allen v. The State, decided at December term, 1870, and authorities there cited. Also, Trammell v. The State, decided at the present term.

The judgment of the court below is reversed and the cause remanded to it with instructions to arrest the judgment and grant a new trial.


author: SeaRLe, J.

text:
    Patton v. Cobb.
    Where neither the evidence nor the instructions of the court, in the trial below, are saved by bill of exceptions, or any exceptions are taken to any of the proceedings of the court in the case, there is nothing before this court to determine.

      Appeal from Pulaski Circuit Court.

    Hon. John Whytock, Circuit Judge!

      Garland Nash, for appellant.

      Ploioard $ Reeve, for appellee.
   SeaRLe, J.

This action was brought to the September term, A. D. 1869, of the Pulaski circuit court, by the appellee against the appellant, upon an account for services rendered as clerk, etc. Appellant answered and filed a set-off, which exceeded appellee’s claim by ten dollars. The cause was tried by a -jury, who found for the plaintiff. Defendant moved for a new trial, which was overruled. Thereupon, defendant appealed to this court. -This is all we have of this case. Heither the evidence nor the instructions of the court, in the trial by the court below, were saved by bill of exceptions; nor does it appear that any exceptions were taken to any of the proceedings of that court in the ease. There is nothing. before us therefore to determine.

This being the case-, let the judgment be affirmed.