source: Caselaw Access Project

author: Mr. Chief Justice WalKee

license: Public Domain

text:
    Dorris vs. Grace.
    The rights of the owners of slaves, not within the lines of the military occupation of the United States during the late war, were in no wise affected or impaired by the proclamation of the president, of the 1st of September, 1862, commanding that all slaves in the state should be free from and after the first day of January, 1863.
    The act of congress of the 3d of March, 1865, does not repeal the act of the 30th of June, 1864, so as to take away the right of the plaintiff, at any time before offering in evidence an unstamped writing obligatory sued on, to affix a revenue stamp to it in the presence of the court, where such stamp has not been omitted with intent to evade the provisions of the act.
    A writing obligatory when stamped, as prescribed by the act of congress, in the presence of the court, is valid from its date.

      Where a case is submitted to a jury, without objection ufion no issue, or an informal issue — as where the defendant pleads a good plea in bar, and the plaintiff “puts himself'upon the country” instead of answering the plea — and the parties have had a fair trial with the benefit of his evidence applicable to his plea, and the finding is consistent with right and justice, this court will not disturb the judgment, but under the statute consider the pleadings as amended.

      Appeal from Jefferson Circuit Coxvrt.

    Hon. ¥m. M. Harrison, Circuit Judge.
    ClaRK, Williams & Martin, for the appellant.
    The question raised upon the demurrer to the first plea, is, did the proclamations of the president of September 1st, 1862, and January 1st, 1863, operate to make the negro free so that would cease to be a valid consideration for a contract. It is suggested that the president, as commander in chief of the army, and a military necessity existing, might in the absence of law make his wish the law of the land. See Acts of July 29iA 1861; 2 Bright-ley’s Dig.,' 192; Pro. of Sept. 1st., 1863; 12 Stat. at Large, 1267; Act of July 17, 1862; Stat. at Large, 591; Brightley’s Dig. 199, 200.
    The contract was void bylaw, having never been stamped; and the court had no power to permit it to be stamped at the trial, so as to make it valid, and surely none to make it relate back and become valid db initio. See the Stamp Act of 3cl March, 1865; 2 Brightley’s Dig., 265, secs. 252, 25,page 266. Gibson vs. Hib-bard, 13 Mich., is against this position.
    ,The want of a replication to defendant’s second plea is not cured by verdict, by Stat Henry 8th, ch. 30. See Tidd’s Prac.. 835; McMechan vs. Hoyt, 16 Arle., 303; Bac. Abr. title Pleas <& Pleading, G., 2; Taylor et al. vs. Goolidge, 17 Arle. 456.
    Hice for the appellee.
    In time of peace, the president with or without the sanction or authority of congress had no power to issue a proclamation freeing the slaves; but as commander in chief of the army he had the power, during the war, to issue any military order authorized by the usages of modern warfare, which the circumstances required; but no military order or proclamation issued by him could have effect over persons or property not within the lines of military occupation but within the lines of the enemy and over which they had exclusive control. Lawrence's-eel. of ’Wheaton!s Int. Law, page, 604 a/nd notes.

    Personal property within the enemy’s country may be taken by military order for use of the army, and the owner’s title thereby divested. Mr. Alexander's Colton, 2 Wallace, 404; but the right of the owners cannot be divested or impaired until' actual seizure and appropriation.
    There was what was styled a replication to the second plea: and though it was defective, the parties went to trial without objection, as upon issue to the plea. This comes under and is covered by sec. 36, oh. 134, -Gould's Dig.

   Mr. Chief Justice WalKee

delivered the opinion of the court.

Grace brought his action of debt against Dorris upon the following instrument:

“ One day after date I promise to pay W. P. Grace or order, the sum of three thousand dollars, with ten per cent, interest thereon for value received of him. Witness my hand and seal this August 29th, 1863.

GARLAND H. DORRIS, [Seal.]”

In defence of the action brought upon this note, the defendant, Dorris, filed four pleas. The first of which was as follows:

“ Comes the said defendant and defends the wrong and injury when, etc., and says actio non, because he says that the said writing obligatory was given for the consideration of a certain negro man by the said plaintiff sold to defendant, and for no other consideration whatever, and the said defendant in fact saith, that heretofore, to-wit: on the first day of September, 1862, Abraham Lincoln, then president of the United States, issued his proclamation commanding that, from and after the first day of January, all slaves in certain states, including the state of Arkansas and county of Jefferson, where said slave was sold, should be and were free from and after the first day of January, 1863, by order of which the said negro was not a slave for life, but on the contrary, was a- free man, and said defendant procured from said plaintiff no property in the labor of said slave, or right to control his person, and the said contract was made in violation of the said proclamation, and in .violation of the law of the land, and the consideration of said writing Obligatory is illegal and void, and the said defendant is ready to verify, etc.”

To this plea the court sustained a demurrer, and its legal sufficiency is thus presented for our consideration.

The defendant insists, that the negro slave sold by Grace to him was, by force of the proclamation of President Lincoln, made on the first of January, 1863, free, and not property subject to sale, and that, therefore, the writing obligatory was given without consideration.

The effect which the proclamation of the president had upon the rights of the owners of slaves held as such within the limits of the territory actually occupied by the federal army, and consequently within its lines, is not now before us for consideration, because it is not averred in the plea, the legal sufficiency of which we are now considering. And, therefore, the precise question before us, and which we will proceed to determine, is as to the effect of the president’s proclamation upon the rights of the owners of slaves, who resided with them beyond the lines of occupation of the federal army.

We are clearly of opinion, under such circumstances, that the rights of the owners of slaves were in no wise affected, or impaired by the proclamation of the president. Por whether we consider the proclamation as issued by him in virtue of his authority as the head of the military of the nation, in the exercise of all his military powers in time of war, or as enlarged by act of congress for the purpose of enabling him the more effectively to conduct the war to a favorable issue, it could in no wise affect the rights of property in slaves — a right fully recognized by the constitution of the United States, and settled by the highest judicial tribunals of the nation.

It is a matter of public history that eleven of the American states had assumed the right to dissolve their connection with the federal government of the United States and to establish for themselves a separate and independent government. This attempt was held by the government of the United States to be revolutionary and rebellious, and the military forces of the nation had been called out to suppress it. It was under these circumstances, and after repeated conflicts in arms, that the proclamation was addressed by the chief executive of the nation to the people of the states in rebellion, commanding of them obedience and denouncing, as a penalty for disobedience, the emancipation of their slaves. The proclamation was, evidently, intended as a war measure, issued under his military power as commander-in-chief in time of civil war. "We cannot suppose that the president assumed to act in any other capacity, because such act would be clearly unconstitutional. Slaves were property, so recognized by an express provision of the constitution, and so decided by the supreme court of the United States. As a war measure it may have been, and was, probably, intended to act upon the fears of the slave-holders (who had long had a well grounded apprehension that their slave property, if not wrested from them, would be rendered insecure and comparatively worthless,) and by threats to induce them to return to their allegiance to the government of the United States. But beyond this, it could only be available as an indication of executive will, or as directory to the military forces who were invading the states assumed to be in rebellion. It could only be made available to the limits of the federal lines — was enforced by the military, whose lines were its limits; and whose strong arm was essential to its efficacy: because, at the time when the proclamation was issued, the power and authority of the United States government had been suspended beyond such limits, and the territory was then claimed and held as part of an independent government, foreign to that of the United States. And the laws having been suspended, it could in no event extend beyond its lines of occupation. But even if such had been the case, we are at a loss to conceive upon what principle of right, the property in slaves could be divested by force of a mere proclamation, emanating, even, from the chief of the executive department of the nation. Captured property in time ■of war, stands upon quite a different footing. But we deem it unnecessary to argue this question at any length, as we have recently decided all the questions of law that may have a bearing upon this precise point in the case of Hawkins vs. Filkins.

In this case, the enemy had not extended his lines to Pine Bluff. The negro had neither been within the federal lines, nor cáp-tured. The title of Grace was, therefore, as perfect as if no such proclamation had issued, and the plea which was based upon a supposed defective title, presented no bar to the plaintiff’s recovery. The demurrer to it was therefore properly sustained.

■ The third plea presents, substantially, the same question as that decided at the present term of the court, in the case of Julia Roane vs. Green and Wilson, and upon the authority of which we will hold the plea insufficient,

A demurrer was also filed to the fourth plea, which was by the court sustained. The defence set up in the plea was, that the writing obligatory, upon which suit was brought, had not been stamped as required by the act of congress. The writing obligatory was executed on the 29th day of August, 1863, and remained unstamped until the 11th day of December, 1865, at which time it was duly stamped in the presence of the court.

It is contended by the counsel for the defendant:

First. That the act of congress of the 3d of March, 1865, in effect, so far repealed the act of the 30th of June, 1864, as to take from the court, or officer (as therein provided,) the power to permit instruments executed prior to the first of August, 1864, to be stamped. And Second. That if such power is given, when so stamped tbe instrument could only take effect, as a valid instrument, from tbe time when tbe stamp was affixed to it, but did not relate back, so as to make it valid from its date.

By reference to tbe several acts of congress in regard to stamp duties, it will be found that under tbe first act, wbicb took effect on tbe first of October, 1862, instruments executed prior to that date, were not chargeable with stamp duties; but, as tbe writing sued upon in tbe case before us was executed since that date and prior to tbe first of August, 1861, unless, as contended for by counsel, the act of 30th of June, 1861, was repealed by the act of tbe 3d of March, 1865, there can be no doubt but that tbe party bad a right, at any time before offering tbe writing obligatory as evidence in tbe case, to affix a revenue stamp to it in the presence of the court. The act of 30th of June, 1861, provides: “ That no deed, instrument, document, writing or paper, required by law to be stamped, which has heretofore been signed, or issued, without being duly stamped, or with a deficient stamp, nor any copy thereof, shall be recorded, or admitted, or used a3 evidence in any court, until a legal stamp or stamps, denoting the amount of duty, shall be affixed thereto, and the date when the same is so used or affixed, with his initials, shall have been placed thereon, by the person using or affixing the same; and the person desiring to use, or record any such deed, instrument, document, writing, or paper, as evidence, bis agent or attorney, is authorized in the presence of the court, register or recorder, respectively, to affix the stamp or stamps thereon required. Provided, that no instrument, document, or paper, made, signed or issued, prior to the passage of this act* without being duly stamped, or having thereon an adhesive stamp, or stamps, to denote the duty imposed thereon, shall for that cause, if the stamp or stamps required shall be subsequently affixed, be deemed invalid and of no effect.”

The great leading motive in this enactment was, not to embarrass, or impose terms upon the parties contracting: so far from this, it is the purpose of all legislation upon the subject, to encourage, uphold and maintain them when fairly made. The life of trade demands this: but it is a revenue measure, and the penalties imposed upon a non-observance of its provision, were, evidently, intended to compel the use of stamps by parties contracting, and thereby increase the revenue. Bearing in mind this manifest intention, and in the light of it, looking into the subsequent act of the 3d of March, 1865, in which there is no repealing clause, we cannot believe that the act of 1861 was, by force of the act of 1855, by necessary implication, repealed. The first part of section 158 of the act of March 3d, 1865, after enumerating all the several contracts set forth in the act of 1861, and requiring that they shall be stamped, provides: “ That if the stamp be omitted, with intent to evade the provisions of the act, the party so failing, shall forfeit the sum of fifty dollars, and such instrument, document or paper, bill, draft, order or note, not being stamped according to law, shall be deemed invalid and of no effect.” This is the act [of the proviso to it, we will make reference hereafter.] Upon a careful examination of the act, it will be found that it is, in effect, a penal act, intended to throw safeguards around the laws then in force, not to repeal them : indeed it is difficult to conceive how it can be otherwise considered. It says, that if a party omit to stamp an instrument, or, if stamped, to cancel the stamp, with i/ntemt to evade the provisions of the act, he shall pay a fine of $50, and that the instrument so unstamped, shall.be deemed invalid and of no effect. These are the penalties imposed. For what ? Not simply for omitting the stamp, but for omitting it with intent to defraudé If there was no “ intent to defraud,” there would be no penalty. The instrument would still be admissible in evidence under the provisions qf the act of 1864, or upon compliance with the further provisions made in thproviso of the act of 1865. No side issue could be made, upon an application to stamp, as to whether there was, or was-not, an intent to defrcmd the United States out of the stamps required to be placed upon the instrument. This act is in limitation .of the rights of the citizen, as well as penal in its character, and by well established rules, will be construed strictly.

We are sustained in our view of the proper construction of this act, by a recent decision of the supreme court of Iowa, as will appear from a late Digest of the decisions of that court: and it would seem, from the same authority, that it had been, also, held that a note executed prior to the act of 30th June, 1864, and stamped under the provisions of said act, is valid as if stamped at the time when it was executed.

And now with regard to thq proviso of the act of 1865. We think, upon a fair construction oí it, that so far from repealing the. then existing laws, it was intended to extend to the party who had, from inadvertence, omitted to stamp a. deed, or other instrument, additional facilities for complying with the law, by providing an additional tribunal before whom the instrument might be made valid, by affixing to it the proper stamp. Prior to the passage of the act of 1865, the party whose instrument was unstamped, could put the necessary stamp upon it, in the presence of the court, the register, or the recorder; by theproviso of the act of 1865, the party may also appear before the collector of the revenue of the proper district, and have a stamp affixed either with or without penal terms as may seem right to the collector.

The writing obligatory, then, having been stamped in the presence of the court, was valid, not from the day it was stamped, as contended for by counsel, but from its date. Edwards on the Stamp Act, page 237; Brown vs. Savage, 5 Jurist, N. S., 1020’. The court did not, therefore, err in sustaining a demurrer to the plea.

The remaining question presented for consideration, arises out of the action taken upon the second special plea of the defendant, to which issue was attempted to be taken by the plaintiff, and upon the trial of which by the jury, a verdict and judgment were rendered for the plaintiff.

The defendant’s counsel insists that the replication of the plaintiff was, in effect, a nullity — presented no issue to be tried, and that'in fact the plea stood wholly unanswered. e

The,plea presents matter which, if true, (and if unanswered we must so consider it,) is a good bar to the action. It sets forth a total failure of consideration, in this, that the negro sold hy Grace to the defendant, and in consideration of which he executed the writing obligatory in suit, was, at the time of the sale, and still is, a free man, and concludes with a verification. The plaintiff, instead of negativing this affirmative matter, or of confessing it and setting up new matter in avoidance, says: “ he puts himself upon the country.” For what purpose % There could be no necessity for calling a jury to try that, which, net having been denied, stood admitted to be true.

The counsel for the plaintiff concedes that there was no formal issue presented by the verification, but contends, that after verdict, this defect is cured by our statute of amendments.

The provisions of the statute are very broad. The 119th see. Dig.,page 863, provides: “That when a verdict shall have been rendered in any cause, the j udgment shall not be reversed, or in any way affected, by reason of any mis-pleading, mis-continuance, discontinuance, insufficient pleading or mis-joinder of issue:” and it is provided in see. 120, “ That any such imperfections, not being against the right and justice oí the matter of the suit, and not altering the issue between the parties on the trial, shall be supplied and amended by the court, when the judgment shall be given, or by the court in which such judgment may be removed by writ of error, or appeal.”

Our former decisions have all given to this statute a liberal construction, and unless in this case the finding has been (in the language of the statute ) against the right and justice of the matter of the suit, or alters the issue which was tried by the jury, it will become our duty to sustain the verdict and the judgment rendered upon it.

Upon reference to the state of the pleading, we find a good plea, which was, in effect, not replied to, or, at most, an informal and insufficient reply, to which no objection was made by the defendant, but which was treated, both by the parties and the court, as presenting an issue upon the facts stated in the plea, to be tried by a jury, and and to try which a jury came, and after having heard the evidence, found a verdict for the plaintiff. Upon the trial, the defendant had the full benefit of his plea, his range of evidence was as full as if his plea had been properly negatived; and by reference to the evidence we find that it wholly failed to sustain his plea, and that the finding of the jury was correct. For what purpose, then, should this verdict be set aside ? Surely no injustice has been done the defendant; he did not object, as he might have done, to the sufficiency of the replication ; he has had the benefit of a fair trial upon all the evidence he produced, and from the state of case made out by him, has no right to complain of the result.

It is clear that, upon the whole record, there has been no error in the rulings of the court, and that the judgment is correct. And when such is the case, we have repeatedly held, that the judgment of the court below will not be disturbed. Sweiptzer vs. Gaines et al., 19 Ark. Rep., 96; Tatum vs. Tatum, id., 199.

Upon the whole case, the law is clearly for the plaintiff, and although we think it not improbable that the defendant, at a time when slave property was of very doubtful value, did not intend to pay $3000 in cash for the negro, yet as he lias, in reducing his contract to writing, used such terms as import a purchase for cash — as we have heretofore held — a court of law cannot depart from the established law of evidence to relieve him from the consequences of neglect, or inadvertency, should there have been such.

Let the judgment of the circuit court be affirmed.


author: Mr.»Chief Justice Walker

text:
    Taylor vs. Jenkins.
    AVhere a citizen, during the late civil war, resided within the lines of the confederate army, he might, prima facie, be considered an enemy to the United States, and his property enemy’s property, and liable to seizure : and so if the lines be only temporarily extended over him; but if living within the permanently established lines, never thereafter interrupted, he was entitled to the protection of the law, and his property not subject to seizure except in ease of military necessity.
    Soldiers may justify the taking of property under the orders of their commanding officers; but they, having a discretion, are liable for taking the citizens, property without sufficient warrant.
    The mere seizure of the citizens’ property by unauthorized military power, and placing it among other property of the United States, without other act of con demnation, or appropriation to military purposes, does not divest the owner of bis title.

      Appeal from, Jefferson Oireidt Coitri,

    Hon. W. M. HaebisoN, Circuit Judge.
    ENGlish for the appellant.
    If this case is to be tested by the laws of war, the. re-cap ture of the mule by the confederate scout, and restoration of it to Taylor, restored his title.
    If it is to be tested by the opinion of Chief Justice Chase in Mrs. Alexander’s cotton case, 2 Wallace, 420, there was no showing that the mule was subject to capture under the act of congress — no showing that Taylor’s title was ever divested by any legal seizure or confiscation.
   Mr.»Chief Justice Walker

delivered the opinion of the court.

Jenkins, the appellee, brought his action of replevin in the Jefferson circuit court against the appellant, Taylor, for a mule.

The defendant filed pleas of non-cepit and property in himself; to which issues were taken, and the cause submitted to the court sitting as a jury. The court, after having heard the evidence, declared the law governing its decision, and found the issues for the plaintiff, and rendered judgment thereon accordingly. The defendant moved the court for a new trial, and assigned lor cause that the ruling of the court was contrary to law, and that the finding was not warranted by the evidence, which motion the court overruled, and thereupon the defendant excepted, and in his bill of exceptions has made the ruling of the court upon the law, and all of the evidence, part of the record now presented for our consideration.

Although the amount in controversy in this case is small, yet upon looking into the state of facts presented, there are but few questions of more general importance than this is.

It appears from the evidence that Taylor, the defendant in the action of replevin, was the owner of the mule in controversy in the year 1863 ; that he bought the mule from a drover, and had worked it on his plantation for some eight years; that in 1863, and after the federal army had taken possession of Pine Bluff, near where Taylor lived, a federal scout came to his house, arrested him and one other person there, and holding them in custody, drove off some twelve or sixteen head of Taylor’s mules and horses, took them to Pine Bluff’, and turned them into a pen in charge of the United States quartermaster. There is no positive evidence that the mule in controversy was one of those taken from Taylor and turned into the lot, but from all the facts and circumstances of the case, there is a strong presumption that such was the case. It is in proof that it was customary with the government officers to brand stock so taken and turned over to the government with the letters “ U. S-”, but that Taylor’s mules were not branded. The mule in controversy had no such brand. As a matter of history, we know that the federal army occupied Pine Bluff early in the fall of 1863, but how long after that it was before the mule was taken from Taylor does not appear in evidence. It appears, however, that shortly before Christmas of that year, a son of the plaintiff traded for the mule from a stranger — who that stranger was, or how lie came into possession of the mule, or how long he had been in possession of it, does not appear; nor is it shown whether he was a soldier of the southern or federal army, or was a citizen in sympathy with either party of the belligerents. The plaintiff' proved that he got the mule from his son; that she remained in his possession until the fall of the year 1864, when she was captured and taken from him by Yaughn’s company of rebel scouts; that thereafter, the defendant, Taylor, found the mule in the possession of these scouts, claimed and identified the mule as his, whereupon it was delivered to him.

Thus it will be seen, that if Taylor, who beyond all question (according to the evidence) was once the lawful owner of the mule, was divested of his title to it, it was by force of the capture, by which she ceased to be his property and became that of the United States. If such was not the effect of the capture, then the title to the property remained in Taylor. The determination of this question will, in effect, settle also the law with regard to the second capture, and supersede the necessity, of a separate investigation of it.

That the late war was a civil war, and that all of the rights of belligerents apply and govern the conduct and the rights of both parties, we may, without reference to authorities, hold to be fully settled in the case of Hawkins vs. Filkins, decided at the present term of this court. And we are left to consider whether the capture in this case was such as to divest Taylor of his title to the property, and as a consequence necessarily following, to vest it in the United States.

The first question to be considered is, was the property captured enemy’s property” % To make it such, Creed Taylor, the then owner of the property, must have been an enemy to the United States. If he had resided within wiiat was recognized as enemy’s country, that is, within the lines of the Confederate States army, uncertain and difficult as in many instances, it might be to determine certainly where the line was, then, prima fade, Taylor might have been considered an enemy, and his property enemy’s property; but we are not to be understood as holding that this presumption might not be removed by evidence tending to show what the real facts were. There were, doubtless, individuals found, both within the federal lines and the confederate lines, who were enemies to one of the respective belligerent parties, and who, when ascertained to be such, might be treated accordingly. It is not necessary, however, in this case, to attempt to lay down any rule for general application, - if indeed it would be practicable to do so, because each case must, at least to some extent, depend upon the facts and circumstances connected with it.

In the case under consideration, Taylor resided within the federal lines at the time the property was taken from him. The possession and dominion of the federal government over that part of the state in which Taylor resided, was not temporary, as in the case of the occupation of that part of the state of Louisiana in which Fort De Hussy was situated at the time Mrs. Alexander’s cotton was captured. In Mrs. Alexander’s case, it was argued with much plausibility: “ That the moment the people were released from rebel military rule, the political and military power of the usurpers was broken, and the jurisdiction and authority of the United States were supreme. It gave to the loyal citizen that dominion over his property, accompanied with rights of property such, as he enjoyed before this rebel rule intervened.” As a general proposition, this was held to be true, but the court said : The occupation of that part of Louisiana in which Mrs. Alexander resided, was too limited, and too precarious to change the enemy relation created for the country and its inhabitants, by three years continuous rebellion, interrupted at last, for a few weeks, but immediately resumed, and ever since maintained.” 2 Wallace, 418.

If,¡¡however, the occupation of that part of Louisiana near Fort DeHussy had been permanent, as it was at Pine Bluff and its vicinity, there can be no doubt but that the court would have held the capture of Mrs. Alexander’s cotton unlawful, and that she -was entitled to compensation for it.

In view of this authority, and guided by the rules which we have stated, it cannot be said that the defendant Taylor was au enemy. He resided at the time the property was taken from him within the established permanent lines of occupation of the federal army, never thereafter interrupted, and had as far as appears in evidence been loyal. The laws of the United States, which had been suspended by forcible adverse occupancy, followed the .national flag, and the citizens resident within the territory thus reclaimed, were entitled to the protection of the law. Taylor being thus a resident within such territorial limits was not an enemy, nor was his property subject to seizure for other or different purposes than such as the law of necessity in time of war justifies.

Chancellor Kent, after reviewing the earlier practice under the laws of war, says : “ The general usage now is, not to touch private property upon land, without making compensation, unless in special cases, dictated by the necessary operations of war. *

* * If the conqueror goes beyond these limits wantonly, or when it is not clearly indispensable to the just purposes of war, and seizes private property of pacifie persons for the sake of gain,

-» •>:• * * jie violates the modern usages of war, and is sure to meet with indignant resentment, and to be held up to the general scorn and detestation of the world.” Kents Com., vol. 1, pages 91-93.

In Mrs. Mexmder’s cotton case, Chief Justice Chase says: “ It is true that this rule, as to property on land, has received very important qualifications from usage, from the reasonings of enlightened publicists and from judicial decisions, it may now be regarded as substantially restricted to special cases, dictated by the necessary operation of the war, and as excluding, in general, the seizure of private property of peaceful persons for the sake of gain. The commanding general may determine in what special cases its more stringent application is required by military emergencies.”

“ By the usages of modern war, the private property of an enemy is protected from seizure or confiscation as such.” Lawrence Wheaton, 631.

In the light of these authorities, except in some special cases from the necessity of which the officer in command must act, and in which, in his judgment, it is necessary to take the property to promote the public service, private property is not subject to be taken by the military. The property of Taylor, under the circumstances of the case as presented to us, was not subject to either capture or seizure, by military authority. It is not shown that the capture was made by any order or command of a superior officer, or other directions than that of the witness Jenkins, who states that he was in command of a federal scout, who took the mules from Taylor. The rank or grade of the officer, if such indeed he was, is not stated. The purpose for which the scout was sent out is not shown; nor is there any inference to be drawn from existing circumstances, that mules were needed for military purposes.

It was held by the supreme court of the United States, in the case of Mitchell vs. Harmony, 13 How., 134, that even when invading the enemy’s country, when each day’s march marked the line of enemy’s country, the private property qf a loyal citizen was not subject to seizure and appropriation, even for public use, nor to prevent its falling into enemy’s hands, unless there existed an absolute necessity for doing so, and that, when an order was given to take the property, the discretionary power given the officer must be sustained by the facts then existing. And whilst officers may exercise a discretionary power in effecting that which they are required to perform, soldiers under their command have no such discretion. They act under orders, are in fact the instruments through which orders are carried into effect. Yattel says: “The troops, officers, soldiers, and in general, all of those by whose agency the sovereign makes war, are only instruments in his hands. They execute his will, and not their own.” The' soldiers, who took the defendant’s mules under the orders of an officer (if indeed he was such) might justify under such order, but, until the officer who commanded the act to be done, be shown to have acted in obedience to some order of his immediate superior, he would stand in the relation of1 a tresspasser, and as such would be liable for his acts, or the acts of'those under his command, and if a tresspasser, then the legal right to the property was not affected by such act.

"Whether the mule in controversy was one of those taken and placed in the quartermaster’s pen is not very clear; but admitting such to have been the case, there is no proof that the mule was either branded, used or sold by the military authorities, and soon thereafter it was found in the hands of a stranger, but whether a soldier or a citizen does not appear, from whom the son of the plaintiff purchased the mule, and sold it to the plaintiff, who held and claimed it until the fall of 1864, when it was captured from him by a confederate scout, near one Carson’s; but whether Carson lived within the federal or the confederate lines does not appear; nor is it shown whether the plaintiff was in sympathy with, or acted with the one or the other party belligerent. In the absence of these facts, we cannot say whether the plaintiff’s title was or was not affected by such capture. For aught that appears from the evidence, we might, upon principle, say that it was not; but ot this we need make no further investí-' gation, because we are, in view of the whole case, of opinion that such capture as is shown by the evidence did not divest Taylor of his title to the mule; and that the circuit erred in declaring the law to be otherwise, and upon the state of facts presented, in rendering judgment for the plaintiff; and that for such erroneous ruling of the law and finding, a new trial should have been granted.

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


author: Mr. Chief Justice Waleer

text:
    Miller ad. vs. Henderson.
    A demurrer to a declaration by an administrator, because the letters were unstamped, held bad: it is sufficient to stamp either the letters or the administration bond, if a stamp b.e required; and the objection, if good, should be made by plea.

      Appeal from Saline Circuit Oow't.

    lion. Liberty Bartlett, Circuit Judge.
    Wateins & Bose, and J. M. Smith, for appellant.
    ClarK, "Williams & Martin, for appellee.
   Mr. Chief Justice Waleer

delivered the opinion of the court.

This is an action of debt, brought by the appellant, as adminis-tratrix of the estate of Mark S. Miller, deceased, upon a writing obligatory, executed by the defendant to the plaintiff’s intestate. The declaration is in the usual form, and makes profert of the letters of administration granted by the clerk of the court of probate, for the county of Ouachita, on the 24th day of February, 1864.

The defendant craved oyer of the letters of administration, which was granted., and demurred to the declaration, and set forth as special cause, of demurrer:

1st. That upon the face of said letters, and upon the record it is shown that Phillip Agee was not clerk of said county of Ouachita, and that there was no clerk or probate court in existence in said county at the date of said letters.

2d. Said letters of administration are not stamped as required by act of congress.

The circuit court sustained the demurrer and rendered judg- ' ment for the defendant, from which the plaintiff appealed.

The first ground of demurrer presents the same question which was decided by this court in the case of Hawkins vs. Filkins, and under that decision we will hold the ground of demurrer insufficient.

As regards the second ground of demurrer, which is for the want of a stamp placed upon the letters of administration, it will be observed that, even if it was necessary to place a stamp upon the letters, about which it is not at this time necessary to express an ^opinion, the objection could not be reached by demurrer; because, under the act of congress and the instructions in regard to affixing revenue stamps, the stamp may either be affixed to the administration bond, or the letters of administration, and therefore, although there is no stamp affixed to the letters, it does not necessarily follow that the letters were invalid. By demurrer the facts are taken as true, and as the letters would be as valid if the bond was stamped, as if the stamp had been affixed to the letters, there is no necessary defect in pleading.

If the defendant wished to question the validity of the letters of administration he should have done so by plea ne ungues administrator. Edwards on the Stamp Aet,p>. 218; Thynne vs. Pothero, 2 M. & S., 553. The plaintiff might sustain the issue on this plea, by producing his letters stamped, or by producing an administration bond stamped in connection with his unstamped letters; or if neither had been stamped, the letters bore date in February, 1864, and under the act of congress passed June 30th, 1864, could have been produced in court and then stamped, and offered in evidence, as held in the case of Dorris vs. Grace, at the present term of this court.

We are therefore of opinion that the circuit court erred in sustaining the demurrer to the declaration. And for this error the judgment must be reversed and set aside.


author: Mr. Justice CohptoN

text:
    Milan vs. The State.
    An assault with intent to kill, as created by our statute, (Gould’s Dig. eh. 51, part 3, art., 6, sec. 1; part 10, sec. 5,) is a felony; and an indictment-for such offence must charge that the assault was made feloniously, etc., and also that the intent was felonious, etc.
    The record should always show the empanneling of the grand jury that found the indictment; and that the indictment had been returned into court by the grand jury. (13 Ark., 720; 19 Ark., 178.)
    By the common law, challenges to the polls for cause, are for principal cause, or to the favor. If for principal cause — as where the matter imports absolute bias or favor — it is tried by the court on the testimony of the juror to the exclusion of other evidence, and if found true, the lawyer se pronounces the juror incompetent. If to the favor, — as where it is supposed the juror is under undue influence or prejudice — it is tried, under the direction of the court, by triers, on-other testimony to the exclusion of the oath of the juror; and the finding is conclusive unless the triers are improperly directed.
    The practice, as modified by our statute is, that challenges to the polls, whether for principal cause or to the favor may be tried by the court, or by triers at the election of the party challenging: if tried by the court, then on the oath of the person challenged; if by triers, then on other testimony; and if the challenge be for favor, then the finding of the court is as conclusive as if it had been determined by triers. (13 Ark., 720.)
    In view of the constitutional provision which guarantees to the accused a trial by an impartial jury, and of that purity and sense of justice which should characterize the administration of the law, a person who states that he would convict a colored man on less evidence than he would a white man for the same offence, should be rejected as a juror on an indictment against a colored man.
    A witness who had given evidence before the examining court in a criminal case, may be interrogated on the trial in relation to such evidence, for the purpose of laying a foundation to contradict him.
    Although an attorney is bound to withhold, and will never be compelled to disclose any information which he knows only through professional relations to his client, he may, be compelled to testify against his client as to other matters.
    The testimony of a witness given before the examining court, which was reduced to writing, is competent evidence on the trial for contradicting him — a foundation having been laid for the introduction of such evidence.

      Appeal from White Circuit Court.

    Hon. 3L H. Powell, Circuit Judge.
    TubNee and Watkins & Eose, for appellants.
    The circuit court erred in empanneling upon the jurymen who were disqualified by prejudice, to act as impartial jurors. The legal rights of the negro in the courts when charged with crime are the same as the white man’s; and a jury as impartial and unprejudiced must be awarded to him as is accorded to the white man. The bill of rights (sec. 11) secures to every one charged with crime, the right to be tried by an impartial jury; and makes no distinction between the white and the black man, and the courts can make none. As to the disqualification of a juror by having formed or expressed an opinion in the case, see Dig. ch. 52, sec. 163; Stewart us. State, 13 Ark., 727, a/nd Meyer us. State, 19 Ark. 156.
    A party is always allowed to impeach the credit of a witness by proving that he has made statements out of court contrary to his testimony on the trial — the witness being first interrogated as to those statements, as was done in relation to the statements of Mary Branch. 1 Oreen. Mu., 462.
    The refusal of the court to compel McBae to testify was a glaring error. The fact that he was counsel for the prosecutor afforded no excuse whatever, nor can any be given.
    The written testimony given before the examining court was competent evidence to discredit the witnesses, who had denied, on the trial, the statements they had made on the examination. Atkins us. State, 1 Ark., 568; Bos. Cr. Eu., 236.
    The indictment is clearly defective, if not a nullity, in failing to charge that the assault was willful, felonious and of malice aforethought, and that it was made with a felonious intent. Dig. 336, sec. 31; State vs. Elclridge, 7 Eng., 608; Whar. Cr. Law, 552. ' Mr. Attorney General O. T. JoedaN, for the state.
    The court below did not err in overruling appellant’s challenge of jurors. See 13 Ark., 147; Gould!s Dig., page 644; Wharton's American Law, 854.

      As to witnesses testifying on tbe final trial, of statements made before tbe committing court. Atkins vs. The, State, 16 Ark., 688; Roscos’s Evidence, 236; Gre&nleaf on Evidence, sec. 613.
    As to granting a new trial on tbe grounds of tbe verdict of tbe jury being contrary to tbe evidence. 'Walker vs. The State, 4 Ark., 88; Wharton’s American Law, 873; Ghittwood vs. The State, 18 Ark., 453.
    Motion in arrest of judgment. 1 Chitty Or. Law, 663; Gould’s Digest, ch. 52, page 407.
   Mr. Justice CohptoN

delivered tbe opinion of tbe court.

Milan — a man of color — was convicted in tbe circuit court of White county, of an assault with intent to bill, and was sentenced to the penitentiary. lie moved in arrest of judgment, and for a new trial, which motions were overruled, and tbe case now comes before this court for consideration.

In determining tbe several questions presented, we will first consider those which relate to tbe sufficiency of the indictment. Tbe indictment charges, with requisite certainty of time and place “ that a colored man, named Milan, on etc., at etc., with force and arms, in and upon one Haywood Branch, then and there being in the peace of God and the state, did make an assault, with intent to kill, and him the said Haywood Branch then and there feloniously, wilfully and of his malice aforethought, did, with a certain pistol, then and there had by said Milan, beat, bruise and attempt to shoot, kill and murder, and other wrongs to the said Haywood Branch, contrary, etc.” By our statute {Gould’s Dig., chap. 51, part 3, art. 5, sec. 1) it is provided, that “whoever shall feloniously, willfully and with malice aforethought, assault any person, with intent to murder, kill, rob or commit a rape, or shall administer, or attempt to give any poison or potion, with intent to kill or murder, and their counsellors, aiders and abettors, shall, on conviction thereof, be imprisoned in the jail and penitentiary house, not less than three, nor more than twenty-one years;” and by section 5, part 10, of the same chapter, it is further provided that “ the term £ felony,’ as used in the laws of the state of Arkansas, is defined to be any crime, or offence, which by the laws are punishable, either capitally, or by imprisonment in the penitentiary, or when any portion of the punishment inflicted shall be imprisonment in the penitentiary.” Construing these provisions together, as they must be, they create the offence for which the accused was indicted, and make it a felony. No such offence existed at common law. An assault with intent to kill was by the common law an assault only, and might be charged with or without the aggravating circumstances, that is, the intent to kill. Not so of an assault with intent to kill, as created by the statute. Under the statute, the intent to kill must be charged — by the common law it may or may not be laid. The statute creates a new offence, and declares it a felony. The indictment must, therefore, be framed upon the statute, according to the rules of the common law, for framing an indictment for a felony declared by the statute. And these rule's require, in all cases, that the act constituting the offence must be charged to have been done feloniously. From what has been said, the unavoidable conclusion is, that the indictment, in the case before us, to have been good upon the statute, should have charged that the accused, feloniously, wilfully and of his malice aforethought made the assault, as well as that the intent was, feloniously, wilfully and of his malice aforethought, to kill. To charge that the accused made an assault with intent, feloniously, wilfully and of his malice aforethought, to kill, is to charge a misdemeanor only, with the aggravating circumstance of the intent to commit a felony. Failing to charge the assault as required by law the indictment is fatally defective. See Williams vs. The State, 8 Hump. 585, and authorities there cited; 2 Hale, 184-5. The indictment is also defective, for the reason that it nowhere charges an intent, feloniously, wilfully and of malice aforethought, to kill. The phraseology “with intent to kill,” without more, is not sufficient. The killing intended must be a felonious, wilful and malicious killing, and should be so alleged, in order that the character and extent of the crime intended to be perpetrated may distinctly appear. Curtis vs. The People, 1 Seam. 285.

Our attention has been called to the fact that the transcript of the record in this case does not show that the indictment upon which the accused was tried, was found by a legally organized jury — in other words, that the record entry or caption, showing the empanneling of the grand jury, at the time at which the indictment purports to have been found, is omitted. The uniform practice in this court has been to supply this omission by certiorari, ess officio, even after error joined, for the purpose of affirming, where no other error appears in the record, as indicated in Stewart vs. The State. 13 Ark., 720, and Green vs. The State, 19 Ark., 178. The record also fails to state that the indictment was ' returned into court by the grand jury; nor does it show that any note was made by the clerk upon the back of the indictment of its having been returned into court and hied. This was held to be good ground for reversal in Green vs. The State, supra. There the prisoner had pleaded to the indictment and procured a change of venue; and the court, after an extended review of the authorities, said: “We would not reverse the judgment of the court below on the ground in question, if there was any competent' legal evidence in the transcript, either of an entry of record or an endorsement upon the indictment, that the grand jury had returned the indictment into court, but there is no such evidence; and the course of decisions of this court does not warrant the indulgence of presumptions against the prisoner, in cases involving life or liberty in reference to matters vital to the regularity of the prosecution.”

Having disposed of the questions deemed material, arising upon the motion in arrest, we will next consider those upon the motion for a new trial.

It appears from the bill of exceptions that in empanneling the jury who tried the case, the following jurors, uamely, Henry Blevins, Henry Martin, Frank Gill, Samuel Neely, Luke T. Hutchinson, Green Wright, Laban G. Elliott, Harrison Blevins, Charles Gillam, and Benjamin Bolton were called, and who, after having been sworn on their voir dire and examined by the attorney for the state, were severally put to the defendant, who propounded to each of them the following interrogatory: “Do you feel that you can act as a juror in this case and decide it, according to the law and the evidence, with the same impartiality and want of prejudice toward the defendant that yon would if a white man were on trial?” To which they each answered: “I don’t think I can.” The attorney for the state then put the following question : “Don’t you believe that you can go into the jury box and do the defendant impartial justice, according to the law and the evidence ?” To which each answered: “ I do. ” "Whereupon the defendant’s interrogatory was repeated and answered as before. The defendant then propounded to the said Laban C. Elliott, Charles Gillam and Harrison Blevins the following interrogatory: “ Would you acquit a negro charged with an assault with intent to kill a white man, upon the same evidence that you would acquit a white man on a like, charge?” To which each answered: “I don’t think I could.” The juror, Benjamin Bolton, on further examination, was asked whether he had formed and expressed an opinion as to the guilt or innocence of the accused; and answered that he had from rumor, but that the opinion so formed was not such as to prejudice his mind, though it would require evidence to remove it.

The party challenging the before mentioned jurors not demanding triers, the court proceeded to try the issue, and found the jurors competent, and they were sworn upon the jury — to which finding the defendant excepted.

At common law, a challenge to the polls, for cause, may be either for principal cause, or to the favor. A challenge for principal cause is always tried by the court, and is for some matter which imports absolute bias or favor. When the fact alleged is put in issue the court has only to find whether it is true or not. If true, the law adjudges the juror incompetent and he is ex-eluded. As, for instance, if the juror has formed and expressed an opinion as to the issue to be tried, or is of Mn to either party, or if he was one of the grand jury who found the particular bill— in all such cases when the truth of the fact is ascertained, the law per se fixes the incompetency. A challenge to the favor is not tried by the court, but is submitted to triers, under the direction of the court, and takes place when, though the circumstances are not such as to fix the juror’s partiality as a conclusion of law, as in case of challenge for principal cause, there is nevertheless reasonable ground to suspect that he will act under some undue influence or prejudice. The causes of such challenge are numerous, and dependent on a variety of circumstances; as that the juror challenged and the opposite party are in habits of great intimacy, or are partners in business, and the like. The question to be tried, in such case, is whether the juror stands altogether indifferent between the parties. In the nature of things, no rule can be laid down that will enable the triers, in every case, to determine with certainty, that the juror is or is not biased. It is not a question of law, but is matter of fact to be submitted to the common sense of the triers, who must find that the juror stands impartial, or they should reject him. The court may direct what evidence is admissible upon the question of indifference ; but its weight and influence in proving the allegation of favor or bias, are for the triers alone to determine. Freeman vs. The People, 4 Denio 9; Wharton Crim. Law, 836, 843, 858. These rules of the common law have been modified, in some respects, by our statute (Gould’s Dig., chap. 52, sec. 52, et seq.() and this court, in Stewart vs. The State, supra, took occasion to indicate the extent of the modification, as also what was conceived to be the correct practice, under the statute, in reference to challenges to the polls. It is there said: “Construing this statute with reference to the common law, we think the correct mode of proceeding under it, as to challenges to the polls for cause, is that when a juror is presented, it is the duty of the court to inquire first of the attorney for the state, and then of the defendant, ‘do you accept this juror, or do you challenge him?’ If challenged for cause, the party should declare for what cause or causes he so challenges him. Then the court should inquire, ‘how will you have this challenge tried, by the court or by triers V If by the court, the cause, if disputed, is to be tried by the court upon the oath oí the person challenged, and upon no other evidence. If the party challenging shall elect to have the cause of challenge in dispute determined by triers, it is to be tried on other evidence to the exclusion of the oath of the person challenged.” And in another part of the opinion, it is said that “unless it be made to appear upon the record that the party challenging demanded triers, the presumption will be that he elected to have the cause of challenge tried by the court; and in challenges .for favor, the finding of the court as to the fact whether the juror stands indifferently ■ between the parties is equally conclusive, as if found by triers.” Thus abolishing in form, though not in substance, two distinctions which existed at common law between challenges, to the polls for principal cause and to the favor.

The bill of exceptions states that the several jurors were challenged “for cause,” but fails to show whether for principal cause, or to the favor — because all challenges, except such as are made peremptorily, are for cause. We infer, however, from the examination of the jurors, that the challenge was to the favor; and treating it as such, we do not hesitate to say that, in view of the constitutional provision which guarantees to the accused a trial by an impartial jury, and of that purity and sense of justice which should ever characterize the administration of the law, among an enlightened people, the jurors challenged, especially those who stated that it would require less evidence to convict the accused than it would a white man on trial for the same offence, ought to have been rejected. But, though we differ in opinion with the circuit judge, sitting in lieu of triers, in regard to the weight of evidence upon the issue as to whether the jurors were, in point of fact, biased or not, we cannot for that reason, consistently with the established rules of law, disturb the finding. In Freeman vs. The People, supra, it is laid down that the finding of triers, if they have been properly directed, is not subject to revision. The court said — speaking of the issue on a challenge to the favor — “that must be determined by triers, who are to pass upon the question of actual bias or favor. They are final judges upon the matters submitted to them ; and from their decision, when properly instructed, the law has provided no appeal.” In Mima Queen and child vs. Hepburn, 1 Cranch 290, which was a suit for freedom, one of the jurors was challenged for favor; and on being questioned, said that he had formed and expressed no opinion as to the particular case, but that such was his detestation of slavery that in a doubtful case he would find a verdict for the plaintiff, and that he had so expressed himself in regard to the case then on trial. He also stated that if the testimony were equal he should certainly find a verdict for the plaintiff. Upon this statement' the circuit judge rejected the juror; and on appeal to the supreme court of the United States, the judgment was affirmed. Marshall C. J., remarking upon the point as to the competency of the juror, said: “Jurors ought to stand perfectly indifferent between the parties, .and although the bias which was acknowledged in this case, might not perhaps have been so strong as to render it positively improper to allow the juror to be sworn on the jury, yet it was desirable to submit the case to those who felt no bias either way; and therefore the court exercised a sound discretion in not permitting him to be sworn.” In Costby vs. The State, 19 Geo. 614, LumpkiN J., in delivering the opinion of the court, said: “We would not undertake to disturb the finding of triers — why should we that of the court, sitting quoad this point in the place of triers ?” And in Stewart vs. The State, supra, this court, as above shown, has said that in challenges to the favor, the finding of the court is as conclusive as if found by triers.

At the trial the counsel for the accused asked the witness, Mary Branch, on cross-examination, whether she did not state in her evidence bei'ore the examining court, at West Point, that she saw the accused strike at Haywood Branch after they came out of the cabin in which the struggle had commenced. Tbe state objected to the question, and the court sustained the objection. In this there was error. The question was material to the issue, was put for the purpose of laying foundation on which to contradict the witness, and the court should have required an answer.

It also appears that the accused offered to'introduce as a witness Dandridge McRae, Esq., who announced to the court that he was of counsel for the prosecution, and for that reason declined to'testiíy: whereupon the counsel for the accused stated that he did not propose to interrogate McRae as to any matter of professional confidence, and moved the court to compel him to testify — which the court refused to do. This was error. Although - an attorney is bound to withhold, and will never be compelled to disclose any information which he knows only through professional relation to his client, it does not follow that he is incompetent as a witness, or may not testify against the client as to other matters.

The testimony of Haywood Branch, taken before the examining court and reduced to writing, was competent evidence on the trial, for the purpose of contradicting him — a foundation for the introduction of such evidence having been first laid as to that witness — and the court erred in excluding it. Atkins vs. The State, 16 Ark., 868,

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


author: Mr. Justice ClendeniN

text:
    Reid vs. Nunnelly.
    Where the payee in a note agrees with tho surety and principal debtor to accept a third person as surety in his place and discharge him, and tho agreement is executed, it operates as a discharge of the original surety and may be Bliown by parol.

      Appeal from, CoVumbia Circuit Court.

    lion. LeN B. (xkeeN, Circuit Judge.
    (xAllaghee & NewtoN, for appellant.
    Eelease by parol even of a sealgd instrument is sufficient, a fortiori, a parol release is good in this case which is a mere simple contract. Dearborn vs. Cross, 7 Cowan, 48: The contract was discharged so far as appellant is concerned for a full and valuable consideration; and the party absolutely discharged by substituting a new security who was accepted.
    G-ARland & Nash, for appellee.
    The defendant attempted to set up a release of the claim sued on in parol. The demand sued on is a promissory note, which, under the statute, is of equal grade with a sealed instrument, and a parol release cannot be pleaded, to either. This is beyond all question. Levy vs. Very,T Mig., 148. For this reason the court b.elow did not err in sustaining the demurrer.
   Mr. Justice ClendeniN

delivered the opinion of the court.

This was an action of assumpsit, brought by the plaintiff in the court below, upon a promissory note, payable to Josiah. E. Nunnelly, for $675.00, dated 14th February, 1857, and payable on the first day of January, 1858, signed by Eobt. V. Eeid, John E. Buchanan, ¥m, IEL C. Eeid, and ¥m.I. Joiner, and which was assigned by the payee to the plaintiff. Eobt. Y. Eeid, John E. Buchanan and ¥m. M. Joiner were not sued in the action. No copy of the note appears in the transcript. On the return of the writ, ¥m. H. 0. Beid filed five pleas: First, non assumpsit; second, payment; third, set off, and fourth and fifth, special pleas, sworn to. The plaintiff demurred to the plea of set-off, and to the two special pleas. The court sustained the demurrers ; the defendant withdrew his first and second pleas and judgment was rendered in favor of the plaintiff, and the defendant brings the case by appeal to this court.

Our review of the case must necessarily turn upon the action of the circuit court in sustaining the demurrers to the defendant’s pleas. The plea of set-off attempted to be set up, is clearly de_ fective under the decision rendered by this court in the case of Mace vs. Robinson, 16 Ark., page 500, and is so conceded by the counsel of the appellant in their‘brief.

The fourth plea of the defendant is, “ and for a further plea in this behalf, said defendant says actio non, because he says, some time in the month of December, and before said promissory note was due and payable, said defendant, together with said John C. Buchanan, the principal, in said note, wishing to remove from the state of Georgia (the state in which said note was given) to the state of Louisiana or Arkansas:, called upon Josiah E. Nunnelly, the then .holder of said note, and stated to said Nunnelly, that he wished said defendant to move as aforesaid, and that he was indebted to said plaintiff as security on the promissory note in said declaration mentioned, he wished to be discharged from any liability on, or in regard to said promissory note in any way and form whatever; that said defendant and said John E., acting under said agreement, and in full faith that the same would be complied with on the part of the said Josiah E., then the holder of said note, and the only person who had any authority or control over said note, produced one "William M. Joiner, at the time of said assignment then a man in' perfect solvent circumstances, so far as this defendant and the said Josiah E. knew, to sign said promissory note in his stead, with the full knowledge and consent, and in ful-filment of the agreement made and entered into between said Josiah E. and the said defendant: that the said James E. expressed himself perfectly satisfied with said William M. Joiner “ as a security in the place of said defendant and accepted fully of him the said William M. in the place and stead of said defendant, whereby the said William M., became liable on said promissory note, and would not have signed said note under any other circumstances, and said Josiah E. stated at the time to said defendant that he was fully discharged from said note and his name canceled therefrom : that said defendant acted in full faith, and never knew but that his said name was cancelled, until a short time before the commencement of this suit, which said defendant is ready to verify, wherefore he prays judgment,” etc.

The fifth plea is substantially the same as the one copied.

The demurrer to the pleas being sustained, their legal sufficiency is submitted for our consideration.

The question raised by these pleas, is, was the appellant (the defendant in the court below) discharged from his liability on the note by the parol agreement of the payee, to receive another name on the note and to release and discharge the defendant ?

The pleas aver this agreement and that on the part of the defendant it] was perfected, by offering Joiner in his place, and that Joiner was accepted, and that Joiner signed the note. If we consider the pleas as an attempt to set up a release, they would be defective, because they do not aver such release was in writing and under seal, but we do not so treat them. We look upon these special pleas as an offer on the part of the defendant to show by parol that he was discharged from all liability on the note by the agreement (perfected) with the payee to substitute the name of Joiner, for the name of defendant on the note. We have examined at some length the authorities referred to by counsel, and also others tending to throw some light oh a question comparatively new in this court, and our conclusions are, and we think sustained by the weight of authority, that the defendant can show by.parol the agreement made and perfected between himself and the payee of the note.

In the case of Logan vs. Williamson, 3 Ark., 216, it is held, that a debt may be paid or extinguished by a third person becoming responsible-to the creditor with the concurrence of the debtor. A bond or other specialty may be released or discharged by a parol agreement between the parties, especially where such agreement is executed. 7 Cowen, 48. If the debtor gives and a creditor receives, in full satisfaction for the debt, the note of a third person for a smaller sum than the amount of the debt, it is a valid discharge. 1 Rhode Island, 496. A mere parol agreement is not sufficient of itself, to release an instrument under seal: but an executed parol agreement may have that effect, as it is not the agreement alone that is relied on, but the agreement coupled with the acts done under it. 6 Indiana, 128.

Testing the pleas in this case by these conclusions and authorities, we are of the opinion that the 4th and 5th pleas were sufficient, and that the circuit court erred in sustaining the demurrer.

The judgment of the circuit court must be reversed, with instructions to that court to overrule the demurrer to the 4th and 5th pleas.


author: Mr. Justice ClichdeNIN

text:
    Rust vs. Reives.
    In an action against the maker of a note payable at a particular place, it is not necessary to aver or prove a demand at that place.
    Where the circuit court has ordered an execution, in an attachment case, this court will presume that the law providing that a bond be filed by the plaintiff has been complied with.

      Error to Drew Circuit Cowrt.

    Hon. William 1VI, HajíbisoN, Circuit Judge.

      Garland & Nash, for plaintiff in error.
    The pleas set up that the instrument sued on being payable at 'a particular place, should have been presented at that place before suit brought, and that the declaration should so aver: and there is no doubt of the correctness of this. Byles on Bills, (3d Amer. Bel.) 166-7-8; Gohen vs. 'Hunt, 18m. & Mar., 227.
    The judgment rendered by the court cannot be sustained; because execution was awarded on the judgment and the record does not show that a bond with good security was filed before this was done; and our statute is peremptory as to this. GoulcPs Dig., p. 176, seo.41.
    Claris, Williams & MartiN, contra.
    In so far as the plaintiff attempts to set up that the note was payable at a particular place and had not been presented, it is defective and incomplete in failing to aver that money was ready at the place when the obligation fell due; and even then would, like a plea of tender, only bar cost and interest. S-wwner vs. Ford, 3 Ark. B&p., 389.
   Mr. Justice ClichdeNIN

delivered the opinion of the court.

James IT. Beives commenced his suit in attachment, by petition and summons, against Albert Bust, in the circuit court of Drew county to the April term, 1866, upon the following instrument :

“ $12,500. Albemarle Co., Ya., Sept. 20th, 1860.

“ On demand I promise to pay to George Beives or order at the counting house of Stokes & Beives, in the city of Bichmond, Ya., twelve thousand five hundred dollars, with interest from date in payment for seventeen negroes which he has this day sold to me, the title to which he warrants, but makes no warrant as to health or constitution. Witness my hand and seal.

A. BUST, [Seal.]”

On which instrument is the following assignment: “ Oct. 20th, 1865. I assign the within bond to J. H. Reives, but without recourse. Signed GEO. REIVES.”

The attachment was levied and personal service had on the defendant. At the return term the defendant appeared and filed his prayer of oyer, which was granted by filing the original. The defendant then filed two pleas, the first of which, as appears by the amended transcript, was, on motion of the plaintiff, stricken out. The second plea is as follows:

“ Comes the said defendant by attorney and for a plea in this behalf says actio, non, because he says, that the said instrument sued on in the above mentioned cause, if executed at all, was executed to one George Reives of the state of Virginia in the year A. D., 1860, for the purchase of seventeen negroes, sold by the said George Reives to the defendant, which said negroes the said George Reives warranted to be slaves for life, upon which warranty said bond was executed, payable when the payment should be thereunto afterwards demanded, at the banking house of defendant’s banker in the city of Richmond, Virginia, and said defendant avers that said bond was never presented and shown for payment by the said George Reives or any other person for him, at the counting house of defendant’s bankers, nor at any other place was payment demanded of this defendant, and this defendant further avers that after the execution of said bond, and before payment thereof was demanded, said negroes were declared free by the president of tho United States, to wit, on the day of January, 1863, and by the laws of the United States, and by ■ the laws of the several states on the 1st day of March, 1861, said negroes were emancipated, and taken from the possession of defendant, and to him rendered utterly valueless, by reason whereof said defendant says the consideration for which said bond was executed, if executed at all, has failed, and this he is -ready to verify.”

This plea, was sworn to. The plaintiff demurred to this plea, and the court sustained the demurrer; and the defendant saying nothing further, judgment was rendered for the debt and damages, with interest, and that execution should issue against the lands attached, and from this judgment the defendant in the court below prosecutes his writ of error.

The only cause assigned for error is, that the circuit court erred in sustaining the demurrer. But our attention is drawn by the brief of the counsel of the plaintiff in error to the final judgment in the case ordering execution to be issued, which they insist is erroneous.

The plea attempts to set up two defences; the first, that no demand was made at the place where the bond was payable ; the second, that the consideration of the note had failed in this, that the negroes for which the bond was given were declared free by the proclamation of the president of the United States, and were free by the laws of the United States before demand of payment was made.

We consider it to be well settled law that no demand against the maker of a note need be averred or proved. In 9 th Howard, TJ. 8. if., 263, it is decided, that in an action against the maker of a note payable at a particular place, it is not necessary to aver or prove a demand at that place. And in 11th Illinois, 467, it is also so decided, and that the commencement of a suit is a sufficient demand of payment.

The second matter of defence made by the plea has been decided by this court at the present term in the case of Graos vs. Dorris, where a defence similar in its character to the one presented in this case, was held not to be a good defence.

In regard to the point made by the counsel in their brief, it is unquestionably the law in this state that no execution shall be awarded against any defendant or garnishee, nor shall any of the defendant’s goods or property be sold, unless the plaintiff enter into bond, to be approved by the court, with conditions as prescribed by law. See seo. 41. oh. 17, Dig. of Arh. But we think that is a matter that addresses itself to the circuit court; and if the circuit court has ordered an execution, as the record shows us has been done in this case, we will presume that the law has been complied with.

Finding no error in the proceedings and judgment of the circuit court in this case, the judgment is affirmed.


author: Mr Justice Clendenin

text:
    Beller vs. Page.
    The only question in this case was decided in Hawkins vs. Mlkins, supra.

      Appeal from Hempstead Cwcuit Court.

    Hon. Thomas Elliott, Circuit Judge.
    YoNley, Eaeeelly & Kitight, for the appellant.
    Gallagher & Newton, for the appellee.
   Mr Justice Clendenin

delivered the opinion of the court.

On the 18th day of November, 1862, James B. Page, as administrator of Thomas Christian, dec’d, recovered in the circuit court of Hempstead county, a judgment by nil dieit against Eli Y. Collins, Noel G. Neal and Allen T. Béller: on the 18th day of September, I860, an execution was issued on this judgment, returnable to the October term of said court. The execution was levied on the property of Beller. At the return term of the execution, Beller filed his petition in the circuit court, praying the court to quash the execution upon the ground that the court that rendered the judgment upon which the execution was based, “had no legal jurisdiction or existence.” The court overruled the petition and refused to quash the execution, and Beller filed his bill of exception^ and appealed to this court.

The question raised by the record and bill of exceptions in this case, is the same as that presented by the case of Hawkins vs. Filkins, decided at tho present' term of this court, and will be governed by it.

The judgment of the circuit court is affirmed.


author: Mr. Justice Clendenin

text:
    Millwee ex parte.
    Tho poiat in this ease settled in Dorris vs. Grace, supra.

      Application for Mandamus.'

    Garland & Nash, for the application.
    Gallagher & Newton, contra.

   Mr. Justice Clendenin

delivered tho opinion of the court.

This is an application for mandamus against the Hon. Augustus N. Hargroves, judge of the 9th judicial circuit of this state, to compel him to grant an injunction, which, it appears by the endorsement on the bill, now filed with the petition in this case, he refused to grant.

From the bill oí complaint and the exhibits, we learn that on the 18th of February, A. I). 1863, the petitioner- purchased from William P. McIntosh, the defendant in the bill, a negro slave, for the sum of fourteen hundred dollars, upon a credit of twelve months; that he executed three writings obligatory to said McIntosh, two for five hundred dollars each, and one for four hundred dollars, due at twelve months, with ten per cent from due; that McIntosh executed a bill of sale to petitioner; that petitioner afterwards paid one of said five hundred dollar notes, and two hundred dollars on account of the other; that McIntosh instituted his action of debt, upon the balance due on said notes, in the circuit court of Sevier county; that service of process was had; that at the September term of said circuit court, petitioner, Millwee, appeared and craved oyer of the instruments sued on] which being granted, he filed his three pleas: 1st. of nil debeb, not sworn to; 2d. payment, and 3d a special-plea, sworn to : that the consideration of the instruments sued on, was a negro slave, which was warranted a slave for.life, and that by the proclamation of Abraham Lincoln, president of the United States, and the organic law, slavery had been abolished, etc., that the plaintiff moved to strike out the plea of nil debeb, took issue to the plea of payment and demurred to the third plea; that petitioner Millwee then withdrew his pleas, and judgment was rendered against him. • •

The petitioner then presented his bill praying for an injunction and setting up, in substance, the same matter presented by the special plea.

Independent of the question, that the defendant, having eléct-ed to defend at law, he is bound by his election, we are clearly of the opinion that the first reason assigned for refusing to grant the injunction — for want of equity on the face of the bill — was a good and sufficient one, and is based on the law as decided at the present term of this court in the case of Dorris vs. Grace.

The mandamus is therefore refused.


text:
    Steele vs. Richardson.
    After! the adoption of the constitution of 1864, by which slavery was abolished in Arkansas, S. Sold and conveyed to R, a tract of land for the expressed con sideration of ten thousand dollars, but, in reality, for a number of negroes, valued at that sum, whichR. warranted to be slaves for life: JIM, on a bill in equity to cancel the deed for the land : 1st That the facts in this case bring it within the exception to the rule, ignormtia juris non exeusat: 2d. That the sale was entirely without consideration: 3d. That nothing of any value whatever having been paid for the land, the negroes being free, there was no necessity to offer to return them: 4th. That R. may have a remedy on the warranty, but as a court of law could not place him in possession of his land, equity would relieve him, and cancel the deed.

      Appeal from Ouachita Circuit Court in Chancery.

    lion. James T. Elliott, Circuit: Judge.
    Gallagher & Newtow, for appellant.
    We think none of the grounds taken in the demurrer, separately or collectively, to be well taken.
    The bill shows that the pretended consideration of ten thousand dollars in the deed of conveyance was not paid in money, as appears prima facie, but in negroes at that time free. Vau-(jine vs. Taylor et al-, 18 Ark., 18. That the complainant accepted the pretended sale of the negroes on account of representations of defendant that they were his property and slaves for life. This misrepresentation was fatal even though innocently made, and sufficient to avoid the contract. 1 Story’s Eq., p. 225, sec. 193, and authorities cited; Ilarrell vs. Hill, 19 Ark., 115.

    Admitting that the party contracted in ignorance of the law, still it is sufficient to avoid the contract. State vs. Paup., 13 Ark., 138. But this contract was based upon the fact that the party was ignorant that at the time it was entered into, slavery did not exist in Arkansas. Esr’s of Hopkins vs. Maseyk, et al., 1 IIHl’s Ch. Rep.

    There was a total failure of consideration and assuredly the complainant had a right to have the conveyance annulled, though he is willing to let the agreement stand if the defendant will pay him the value of the property, (21 Ark., 84; 1 Eng., 317.)

      It was unnecessary to offer to return tbe negroes — they were not within the control of the complainant — did not belong to the defendant when he pretended to sell them — he was in statu quo without a return.
    GARLAND & Nash for appellee.
    The contract being executed the matter is closed even if there had been no consideration whatever; if a mere voluntary gift it was then beyond reach of the parties unless fraud be alleged. Adams Eq., 174-5 et seq.\ 2 Spenee Eq. Jut., 885; 2 Oreen. Cruise, 532.
    The mere ignorance of Steele, that negroes had been freed, will not]protect him. Adams Eq., 189.- State vs. Pomp., 13 Ark., 129 ; 7 Geo., 70; 2 MeCord, Oh. R. 455 ; 1 Hill, Oh. R. (S. C.) 250. And -were it simply a fact about which Steele was ignorant, he could not be relieved without averring he could not obtain the necessary information with due diligence. Adams Eq., 179,* 187,* Mason vs. Waving, 15 Beav. 151.
    The bill should offer to place the parties in statu quo, and is demurrable for this defect. Rcvvis vs. Tarwater, 15 Ark., 286, ib. 292.
    Th e contract 'being performed and executed, the parties must stand altogether on their covenants. It is not a case for equity to relieve. 1 Parsons on Con., 456, 475 ; 6 Eng., 58. Both parties knew the fact that negroes were free, or both equally ignorant of it; and it is probable that both knew it was so ordained and proclaimed, but being within the confederate lines did not heed the fact. Even if Steele had paid the money for them he could not recover it back on the contract executed, and certainly equity will not undo the contract now. 6 Mass., 358 ; 6 Cowen, 431; Adams vs. Barratt, 5 Georgia, 404. ■
   Mr. Chief Justice Waleer

delivered the opinion of the court.

The complainant, Steele, charges that on the 14th day of April, 1865, he was the lawful owner of a valuable tract of land situate in the county of Ouachita and state of Arkansas, containing four hundred and thirty-five acres, a part of which was improved and then in cultivation, arid that the complainant also owned and was possessed, of fifty head of cattle, fifty head of hogs, thirty-five bushels of corn, five bushels of seed peas, eight bee-gums, a large lot of household and kitchen furniture, together with a growing crop of thirty acres of corn, and a growing crop of twenty acres of wheat, which land and property were of the value of $10,000; which sum the defendant agreed to pay in property of that value, to-wit: negro slaves, which the defendant claimed and owned as his property, and thereupon executed to the complainant a bill of sale for six negroes, which he then warranted to be his property and slaves; which negroes, so warranted to b'e the property of the defendant and slaves, complainant accepted at the value aforesaid in payment and satisfaction for said tract of land and other property; and thereupon, together with his wife executed to the defendant a deed in fee simple for said tract of land : that at the time of such sale, and the execution of such de.ed, he the complainant was ignorant of the fact that; long before that time, slavery had been, and then was abolished and prohibited by the constitution of the state of Arkansas. That he made the contract, and conveyed the lands and other property in good faith, believing that the said six negroes so conveyed were slaves, and worth the sum agreed upon. That he was induced to make the trade and execute the deed for the land, upon the faith and confidence in the representations of the defendant, and that the negroes were slaves; but in truth and in fact that said negroes were not slaves, but were then free, and that defendant had no title or property in them whatever. And that he knew at the time said conveyance was made and consummated, that they were not slaves, and that he had no right to dispose of them as such. That defendant, although requested so to do, had refused to pay the complainant .the sum of $10,000,- the price agreed upon, or to re-cbnvey and re-deliver the land and property so conveyed by the complainant to him — with a prayer for the payment of the $10,000, or that the sale of the land may be set aside and an account taken, etc:

To this bill the defendant demurred; the demurrer was sustained, and a decree rendered dismissing the bill, and for costs; from which the complainant appealed.

The several allegations in complainant’s bill, which are set forth at greater length than we have considered necessary to repeat here, must be taken upon demurrer as being true; and the question is, when thus taken, is the complainant entitled to relief in a court of equity?

That the complainant contracted under a mistake, there' can be no doubt. No one can believe that any man in his senses would have conveyed $10,000 worth of property, to which he' had an undisputed title, for no other consideration than negroes, if he had known that the negroes were not property, and that he could not in law, for a single day, command their services. The bill expressly avers that complainant was ignorant of the fact, that by the constitution of 1864, negroes were freed, and that the defendant, at the time he made the trade and represented the negroes as being slaves and his property, knew that they were not property, but were free. It is beyond all question, from the statements in the bill, that the defendant has possessed himself of valuable property worth $10,000, for which in fact he has paid not one cent, and if the bill be true, he knew, at the time he made the contract, that he was paying nothing for the property received by him. And the defendant comes into a court of equity and says that I admit this to be true, and yet a court of equity can give to the complainant no relief, because this mistake was not of fact but of law; and that the rule, ignora/nUa jwis no exeusat, must prevail, and denies to the complainant all relief. The existence of this rule is fully recognized, but there are exceptions to it, which are equally well tinderstood. This question of ignorance, or mistake of law was fully considered by this court in the case of The State vs. Paup., 13 Ark. Rep., 109, in which the general rule, as well as the exceptions to it, was considered, and in which it was held that even though the party contracting did know of. the existence of the law; yet as he mistook its legal effect, equity would relieve him. In that case as in this, the complainant got nothing by his contract, and the defendant, the state, lost nothing, parted with nothing.

It is insisted that the complainant should have returned, or offered to return the negroes. We think not. Defendant had no negroes — sold none to complainant — negroes were not the subject of sale; they were not property at the time this contract was made. The complainant acquired no title to them, and could not lawfully, for an instant, control them. Consequently he got nothing from defendant and had nothing to return.

The claim of the complainant to equitable relief does not rest alone upon his ignorance of the constitutional provision emancipating slaves, but also upon the ground that the deed made by him to the defendant, and the transfer of the chattels set forth in the bill was made without any consideration whatever. No contract without consideration is valid. A consideration is an essential requisite to all contracts. The deed, however, purported to be made in consideration of $10,000. This, in point of fact, as shown by the bill, is not true. Under this deed, which is prima fade, valid, the defendant had taken possession of the property and claimed ■ to hold it. The deed, even if invalid, created a cloud on the .title of the complainant, which he had a right to have removed. This was .held to be permissible in the case of Cook vs. Cole, 2 Halst. Ch., 522, 627.

In the case before us, the complainant parted with property of the value of $10,000, for which he received nothing whatever. The defendant under this contract took possession of this property, as expressly charged in the bill, knowing, at the time, that he had no title to the negroes, which he professed to sell to the complainant. No one can believe that the. complainant would have parted with his property and received these negroes in payment for it, if he had. known that they were free. He must, in the very nature of things, have relied upon the false statements of ■the defendant, with regard to his title to the negroes.

It is true that complainant may have his recourse at law upon his bill of sale for damages upon a breach of warranty of title; but he could not be restored to the possession of his property by any process of a court of law. He is also entitled to have the deed canceled and set aside. This the court of law could not do.

In view of this whole case, which is certainly a very strong one, we are of opinion that the complainant has, upon the face of his bill, shown a case which entitles him to relief in a court of equity; and that the court below erred in sustaining a demurrer to it.

Let the decree be reversed.