author: IÍARRisox, J.

text:
    Wilson v. Bowden, et al.

    C hoses is action — Bnfor oíble in Equity. — A person may be entitled, in equity, to money due upon a bond or eliose in action, although the legal title has not been transferred by assignment; and such purchaser of a chose in action, in equity, will have a right of subrogation to the debt and all the securities that attend it, and can enforce its collection in equity.

      Appeal from I'ope Circuit Court.

    Hon. William N. May, Circuit Judge.

      Clark f Williams, for appellants.
   IÍARRisox, J.

This was a bill in chancery, exhibited in the Pope circuit •court, by Joseph E. "Wilson, William J. Ashmead, and Mary Ashmead, his wife, against Elizabeth Bowden, Louisa Burk-head, and the heirs at law and the administrator of John S. Bowden, deceased.

John S. Bowden, on the 22d day of January, 1861, executed to Louisa Burkhead, a writing obligatory for five-hundred and sixty-five dollars, payable in seven months after date, with ten per cent, interest from date, and to secure the payment of the same, he and Elizabeth Bowden, his wife, executed to her a mortgage on a tract of land containing about one hundred and twenty acres.

Louisa Burkhead, to use the exact language of the bill, “for value received, sold and delivered” the writing obligatory and mortgage, to Samuel D. Wilson, the guardian of the complainants — Joseph E. Wilson and Mary Ashmead, then Mary "Wilson — for their use and benefit.

Elizabeth Bowden, it was alleged, was in possession of the land.

The hill prayed that the complainants might he subrogated to the rights of Louisa Burkhead; that the equity of redemption of Elizabeth Bowden, and the heirs of John S. Bowden, in the mortgaged premises, be foreclosed, and that the same be sold for the payment and satisfaction of the writing obligatory.

Elizabeth Bowden and Jackson J- Bowden, the administrator of John P. Bowden, filed a demurrer to the bill, in which they assigned as grounds therefor, first; that no assignment of the writing obligatory and mortgage to the said Samuel D. Wilson, or to the complainants, was alleged or shown in the hill; and second, that it contained no allegation of an indebtedness of Samuel D. Wilson to the complainants.

The oilier defendants made no defense, but no decree pro confesso, was taken against them.

The court sustained the demurrer and dismissed the bill.

The question raised by the demurrer may be readily disposed of. That a person may he entitled in equity to the money due upon a bond or other chose in action, notwithstanding the legal title has not been transferred to him by assignment, so that he may sue upon it at law, is so plain and famil iar a proposition as not to admit of discussion.

The bill alleges that Louisa Burkhead had, for value received by her, sold and delivered the writing obligatory and mortgage to Samuel D. Wilson, for the use and benefit of the complainants.

Although she had not assigned the writing obligatory, by an indorsement, and the legal title remained in her, she had no beneficial interest in it, and held it only as trustee for the complainants, who alone were, in equity, entitled to the money due upon it; and they sought to be subrogated to her right to enforce its collection.

A chose in action may be the subject of a sale, which will entitle the purchaser to all the remedies or securities held by the vendor, and to enforce them by action, in the name of the A’endor, but for his own benefit; and in equity will give a right of subrogation to the debt itself, and to all the securities that attend it. Carter v. Jones, 5 Ired. (Eq.) 196; Matthews v. Aiken, 1 Const. 595; 2 Amer. Lead, cases, 407; 2 Lead, cases in eq. 230.

The other objection, that the bill contains no allegation of an indebtedness from Samuel H. Wilson to the complainants, is wholly immaterial. Their right to the money duo upon the bond was derived from the purchase of it for their use, which their guardian might make, whether indebted to them or not.

The matters set forth in the bill, if true, entitle the complainants to the relief they pray, and the demurrer to it should have been overruled.

The decree of the court below must, therefore, be reversed and the cause remanded for further proceedings.


source: Caselaw Access Project

author: Harrison, ,J.

license: Public Domain

text:
    Cline v. Wilson, et al.

      Partners — When rights vest. — Agreement of partnership to commence in futuro, upon the death of one of the parties, before the time fixed for commencement, no estate or interest intended to he contributed by either of the parties, vests in the partnership and the survivor takes nothing as such.
    Eight of Survivor. — A surviving partner has a right to the possession and control of the partnership property for the purpose of settling and closing the business, and not for the purpose of carrying it on.

      Appeal f i o/u Pope Circuit Court

    Hox. W. U. Max, Circuit Judge.

      Gallagher $ Newton for appellant.

      Clark Williams, for appellees.
   Harrison, ,J.

This was an action of ejectment by Chestoen Cline against Curtis R. Wilson, Mary A. Dawson, Absalom Adams, Joseph A. "Wilson and Jones Ilicks.

Absalom Adams, Joseph A. Wilson and Jones Hicks, pleaded the general issue, Curtis R. W ilson and Mary A. Dawson the general issue, and also, specially, that the parcel of land described in the declaration, was the property, in his lifetime, of William II. Dawson, deceased, who died, seized and possessed thereof, on the 11th day of November, 1868; that they were his executors, and that, as such, entered into and took possession of the same.

To this special jilea the plaintiff replied that the said William H. Dawson and himself, on the 18th day of September, 1868, formed a partnership for the purpose of carrying on the business of farming in the ensuing year of 1869, and that, by their partnership agreement, the said William H. Dawson was to contribute or furnish the said land for cultivation.

A demurrer was sustained to the replication, and the plaintiff declining to proceed further with his suit, it was dismissed by the court and judgment rendered against him for costs.

The partnership between the plaintiff and William IT. Dawson having been dissolved by the death of the latter, before the beginning of the year 1869, or the commencement of the term for which it was to have the land, no estate or interest in it ever vested in the partnership, and the plaintiff, of course, could have none as surviving partner, lie was entitled, as such survivor, to the possession of the properly belonging to the partnership, if any, only for the purpose of settling and closing the business of the partnership, and not for the purpose of continuing or carrying it on.

The demurrer was properly sustained, and the court did not err in dismissing the plaintiff’s suit, upon his refusing to proceed further with it, and rendering judgment against him for costs.

Judgment affirmed.


author: Ghegu, J.

text:
    Hazard v. White.

      Indoksehs — Release of. — To release an indorser on the ground of extension of time given l)y the indorsee to the maker, or on further security given by the maker to the indorsee, it must bo shown that a consideration was paid or promised for the delay or further security.

      “Waiver — Mow shown. — It is competent to show by parol, the waiver of demand and notice at the time of the indorsement.
    Liability — Demand and notice, within proper time, or a waiver thereof, must be proved, to fix the liability of the indorser.
    Demand and Notice — Waiver of. — An unconditional promise to pay by the indorsee, with a full knowledge of the facts by which he is released at law, is an implied waiver of demand and notice and a promise by in-dorser of a promissory note to pay after due, is prima facie evidence of demand and notice.

      Appeal from Mississippi Circuit Court.

    Hon. John E. Bennett, Circuit Judge.

      Palmer ft Sanders, for appellant.
    This transaction was not the ordinary transfer of commercial paper, in the regular course of business, but it was a sale of the piece of paper for the reason that the maker could not pay it. Plaintiff, defendant and "Ward all being present, and being parties to the transaction which culminated in the sale and assignment of the paper, were all equally affected by it. Demand was then and there made, and defendant had notice that Ward could not, would not, and did not pay the paper. The testimony of Hazard, on this point, excluded by the court, should have been received, even under the old practice. But under the Code, with its liberality of amendments, all testimony bearing on the transaction, the res gestee should be received in evidence, because plaintiff had a right to amend his declaration to correspond with the testimony: Code sec. 155, I-Iord v. Chandler, 13 B. Mon. lfil¡.; Coil v. Howard MS. Ky. opin. Beer. 1.863; Kearney v City of Cov., 1 Met. 339; Irwin v. Bank of Belief ontaine, 6 0. St., 81; Hunter v. Hudson River R. R. Co , 30 Barbour, J/.93; see notes to sec. 161, Ky. Code of Practice; Coleman v. Playstead, 86 Barb. 37.

    Plaintiff should have been allowed to prove that the mortgage was taken only as collateral security — that there was no novation of the old debt. Story on Bills, sects 1$7, /¡SO, J¡36: Byles on Bills, 196; Mohawk Bank v. Van Horne, 7 Wendell 117; King Houston v. State Bank, 9 Ark., 190; Smith’s Mercantile law, 368; McLemore v. Powell, 13 Wheaton 55.1¡..

    If defendant, with full knowledge, afterwards promise to pay, he is liable. Smith’s Mercantile Law, 168, and authorities there cited, as to the mortgage. As to the' demand and notice: Story on Bills 339, and notes; Thornton v. Wynn, 13 Wheaton, 187; Byles on Bills, 336-7-8 and 9, and notes; Walker v. Walker, 7 Ark., 5J¡.3; Chitty on Bills, 33/¡,-5 and 6.

      If. M. McVeigh, for appellee.
    It is an inflexible rule of law that written evidence is of a higher grade than parol testimony. Trowbridge v. Sawyer, 4 Ark., 454- And it is a well established rule, applicable to •suits in equity, as well as at law, that a parol contemporaneous agreement, contradicting or varying the written contract oí the parties, is inadmissible. See JBordon v. Beay, HO Ark., 298. Also the cases of Michardson v. Comstock, 21, 67; Henly v. Brodie, 16, 516; Featherston v. Wilson, 4, 154; Beitrand v. Byrd, 5, 678; Scott v. Huey, 18, 585; Jordan v. Fenno, 18, 593; ■and the case of Anderson r. Yell, 15, 9, where the court decided that it was error to permit the plaintiff to change a blank in-dorsement as given on oyer into one ■waiving demand and notice.

    A contract cannot rest partly in writing, nor can verbal 'Conditions be annexed to a written contract. Black v. Bowman, 9 Ark., 501; and when a contract is once reduced to writing, it is to the writing alone that we must look to ascertain what the contract really is. Scott v. Iluey, 13, 125; Jordan v. Fenno, and cases before cited.
   Ghegu, J.

The appellant sued appellee as the indorser of a promissory note made by Ward and Edington. Appellee answered that .appellant did not make presentment to, and demand of the makers in due time; secondly, that due notice of non-payment was not given him; and thirdly, that appellant took a mortgage of one of the makers, to secure payment, and for that consideration extended the time of payment without his knowledge or consent.

The court overruled a demurrer to the cause of defense set up in the third paragraph of the answer. The cause was then submitted to the court and a finding and judgment for the defendant, the appellant.

The note, given in evidence, was for §1000, with certain credits thereon, dated March 12, 1866, payable to John W. White, on the 1st of October, 1866, and indorsed .by "White, November 14th, 1866.

The appellant offei’ed to prove that, at the time of the in-dorsement, appellee said, in the presence of him and Ward, that appellant had made a good thing of it; that the note had cost him only $800, in cash; that appellant then refused to-complete the trade because the note drew but six per cent interest, and Ward then agreed to pay two per cent., and did pay that for one year. Appellant also offered to prove, by parol, that in taking the mortgage, he did not agree to give Ward time on the debt; that the mortgage was only as security and the extension of time only related to the foreclosure, etc. The court sustained the objections to such parol proof. Appellant then read a letter from the appellee, dated October 29th, 1868, in which he stated “you say I have to become-paymaster for the balance of the Ward and Edington note; you say you could only collect $400,” etc., “having a lien on Ward’s old mill.” Then speaking of what per cent. Edington’s estate could pay, and of a note, held against him for land, which had been transferred and could not be used, he adds : “But I can assure you, Ur., that it shall be paid if fakes the-last piece of property I own, though it seems hard to lose so much, when I need it so bad. I have other notes, amounting to more than I owe you, and if I can collect them, I will pay all indebtedness to you” etc. etc., closing by saying, “at any rate, I think I shall fix up our business satisfactoiy by Christmas, or before.” These, with the mortgage referred to, vras the substance of the evidence. The proof does not show that there was any consideration paid, or promised, for delay, or that the plaintiff put himself under any legal obligation, whatever, not to sue the obligor, and hence the defense set up in the third paragraph failed. McLemore v. Powell 12 Wheat, 557; Byles on Bills, 316 and cases there cited; Creath’s adm’r. v. Sims, 5 How. U. S. 192.

The appellant might have proved, by parol, that the appel-lee, at the time of the indorsement, waived his right of demand and notice, but the statements attempted to be given in evidence, had no such effect, and were properly ruled out; and the evidence offered to modify the terms of the mortgage was incompetent and properly excluded.

We are of opinion the letter of the appellee admitted his liability upon the note, and, upon this evidence, the appellant asked the court to declare the law. The court first correctly declared that demand and notice within proper time, or a waiver thereof, must be proved, to fix liability upon the ap-pellee.

Secondly, the court declared that “the evidence introduced does not show that such a demand and notice was given, or such a -waiver was made as would make the indorser liable.”

This declaration of law was not supported by the evidence. If such had been given as an instruction to a jury, it would have been calculated to mislead them, and, therefore, erroneous, and when declared by the court, sitting as a jury, it was likewise erroneous.

If an indorser, with a foil knowledge of the facts by which he is released by law, unconditionally promises to pay, it is an implied waiver of demand and notice, and a promise, by the indorser of a promissory note to pay it, after due, is, at least, prima facie evidence of demand and notice. Byles on Bills, 285; Greenway, et al., v. Hindley, 4 Camp., 52; 12 Wheat., 187; Rogers v. Stephens, 2 Tenn., 718; Walker & Faulkner v. Walker, 4 Ark., 542, and the cases there referred to on this subject.

The judgment herein is reversed, and the cause remanded to bo further proceeded in.


author: Ghegg, J.,

text:
    George v. Terry.
    CONFEDERATE money. — In a contract, tlie consideration of which was Con- ’ federate notes, it is immaterial whether the party first agreed to pay money for such notes, or to pay property for them, and then executed a promissory note for the property, the consideration, which was the basis of the promise, being Confederate notes, was illegal, null and void.
    Promissory note. — A promissory note given for a supposed liability, which has no foundation in law, is without consideration and void.

      Appeal from Ashley Circuit Court.

    Hon. IIenRy B. Mouse, Circuit Judge.

      G-. W. Norman, for appellant.

      W-1). More, English, Gantt § English, for appellee.
   Ghegg, J.,

The appellee brought his complaint at law upon a note for $1000. The appellant answered the complaint, by admitting the making of the note, and averring that she had sold the ap-pellee one hundred hales of cotton, for two thousand six hundred dollars, in treasury notes of the so-called Confederate States, then in rebellion against the United States government, and she received the two thousand six hundred dollars in such treasury notes, and gave her receipt for the same, and agreed to deliver the cotton, and did deliver sixty-six hales, which were afterwards sold by appellee for $8,717 T25\-, in United States currency, and the balance of her cotton, without fault of hers, being burned, at the instance of the appellee she executed the note, sued upon, as the balance of the consideration on her part in said agreement, and for no other consideration; that said treasury warrants were utterly valueless and void, etc.

The appellee demurred to the answer. The circuit court sustained the demurrer, and rendered final judgment against the appellant for the amount of the note and interest, from which judgment she appealed to this court.

The appellee here says: “The only question presented hy the transcript is: Was there a consideration for the note sued on?”

There was an agreement by the appellant to transfer a considerable amount of valuable property, and an agreement on the part of the appellee to pay her a certain amount of notes, which this court has repeatedly held to be illegal and void. If the promise was made by the-one party, without any consideration on the part of the other, such promise cannot be held binding. If this answer be true, and' for the purposes of the demurrer it is taken as true, the appellee paid over Confederate notes; he neither paid, nor promised to pay any thing else, then there was no consideration moving from him but the Confederate notes, and it is not material whether the appellant first agreed to pay money for such notes, or to pay property for them, and then executed the note in lieu of the property; the consideration, which was the basis of the promise, was Confederate notes received. That, and that alone, was all that was given, or to be given, for the cotton or note. Then, if these notes were illegal and valueless, the appellee sustained no injury in passing them to the appellant, nor did he thereby confer any benefit upon her; and it has been holden that such notes, issued in violation of the laws of the State and United States, and to aid in the rebellion against the lawful government, must be so considered.

A promissory note, given for a supposed liability, which has no foundation in law, is without consideration and void. Haynes v. Thorn, Foster, 386.

It therefore, follows that the circuit court erred in sustaining the demurrer to the appellant’s answer. Eor that error the judgment is reversed, and the cause remanded, with instructions to overrule the demurrer and to proceed according to law.


author: Gregg, J.

text:
    Pugh v. Harbison.
    Peactioe — The several pleas or defenses that may be set up in an answer, under paragraphs three and. four, section 116, Oode of Practice, stand each upon its own merits, and a demurrer may be sustained as to some and overruled as to others.
    Pleadinc — It is a rule well understood that a litigant is not bound to prove more than he avers, and a plea or defense, not denying title in plaintiff, or averring title in defendant, is bad on demurrer.

      Appeal from Ashley Circuit Court.

    Hon. Henry B. MoRSe, Circuit Judge.
    J. W. Van Gilder, for appellant.
   Gregg, J.

The appellant brought his complaint at law, in the Ashley circuit court, for three bales of cotton; at the March term, 1870, the appellee filed his answer containing four paragraphs.

The first: That martial law had been proclaimed in the county by the Governor; that civil law was suspended, and the government of the county turned over to military officers, J. A. Lockhart was such officer in command of that county, and by his order the appellant was required to turn over the cotton to George W. Norman, as the administrator of Rufus "Whitlow.

The second: That Norman, as administrator, under such order, directed appellant to turn over said cotton to the appel-lee, and it was so delivered for said Norman.

The third: That the appellee, under Norman’s order, received the cotton and “turned it and the proceeds of it,” over to Norman.

The fourth: That the cotton was the property of Norman, as such administrator, and that appellant had taken the same without right, and that the cotton ivas turned over to Normanr who, as administrator, was the owner.

The appellant demurred to the first three paragraphs or causes of defense in the answer; the court overruled the demurrer; the appellant rested, and final judgment went against him for costs, from which he appealed.

The third and fourth paragraphs of section 116, of the Civil Oode, relating to what the an^ver of a defendant shall contain, read as follows:

“ Third. A statement of any new matter constituting a defense, counter claim or set ©if, in ordinary and concise language, without repetition.”
“ Fourth. The defendant may set forth in his answer as many grounds of defense, counter-claim, and set off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered. The several defenses must refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” Section 121, provides that the plaintiff may demur to the answer, etc.

Thus it is declared that a defendant may set up any number of defenses he may have, but each defense must be separately stated, in a paragraph distinguished by number. Then each of these pleas, or paragraphs of defense, stands upon its own merits. A demurrer may be sustained as to some paragraphs and overruled as to others.

The question then recurs, do the facts set up in the first paragraph constitute a defense? This paragraph does not claim that the cotton belonged to Norman, to the appellee, or Whit-low’s estate. It admitted the taking and did not deny ownership in the appellant; it did not aver any public or military necessity for taking the property, and that he was required by military order to take the same. It is a rule, well understood, that a litigant is not bound to prove more than he avers; hence the demurrer should have been sustained to this pai’agraph.

The second paragraph is equally bad. It does not deny the appellant’s ownership of the cotton. It admits the taking and avers he did it under an order from Norman, without claiming that Norman had any title to the cotton.

The third paragraph, likewise, avers that appellee took the ■cotton and turned it, and the proceeds of it, over to Norman, without averring title in Norman, or want of title in appellant, •or that he was compelled, by military order, to take the cotton, and it was demurrable. ®

The fourth paragraph is different. It denies appellant’s right; ■sets up title in Norman, as administrator, etc., and, if true, is a good defense to the action.

For the error in not sustaining appellant's demurrer, the judgment is reversed, and the cause remanded with instructions to allow the pleadings amended herein, and for further proceedings to be had according to law.


author: Wilshiee, C. J. Judges Gregg and Harrison,

text:
    Mason, Ad. v. Bull, Ellis & Co.

      Admikistration — Authentication of Olaims. — Verification of claims against the estate of a deceased person, by one cognizant of the facts, under act of March 5, 1867, or by agent or attorney, under act of March 18, 1867, is sufficient — and these acts are not in conflict ■with each other.

      .RECORDS — Proof of. — Parol evidence is admissible to prove the contents of a record, ancient or recent, after proof of its loss or destruction, satisfactory to the court.

      Appeal front Pope Circuit Court.

    Hon. William N. May, Circuit Judge.

      <Clark if- Williams, for appellant.
    The claim was not authenticated by affidavit, as required by law, to authorize a judgment of allowance. Lafferly Exr. v. Lafferly, 10 Ark. 268; Carnallv. Edmondson, 17 Ark. 884; Bank of the State v. Hcnchdiffe, .{Ark. 444; Burns Burnside v. Im-hoden et cd. 16 Ark. 4.15; Rogers et al: v. Wilson ft al. 18 Ark.. 507; See act approved 13th July, 1867, pamphlet acts, page 218; Smith v. Dudley, 2 Ark. 60; McKnight v. Smith, 5 Ark. 409; Sedgwick on Stat. and Const. Laws, 888; Ex parte Bank of Monroe, 7 Hill, 177; Dwarris, p. 477; Sedgwick on Constitutional and Statutory Law, 809-885-, Bartlett v. Morris, 9 Porter {Alaf 368, 269-, Agent of State Prison v. Ijothrop, 1 Mich. 488.

    The claim was barred by the statute of non-claim, and it was competent for the administrator to show that fact by evidence. 1 Green’l. Ev. sec. 92-, McCary v. Curtis, 9 Wend. 17; Commonwealth /;. Hom-oss, 9 Mass. 402; Ellis v. Ellis, 11 Mass. 92; Rex v. Allison R. R. 109.

      English, Gantt <f English, for appellees.
    We submit that the affidavit authenticating the claim is substantially good. Beirne et cds. v. Imboden et ais. ad 14 Ark. 24-1-2. State, use State Bank, 16 Ark. 32.

    There was no error in the exclusion by the court, of the evidence offered by T. I). Sheppard, to prove by parol, matters of record. Williams v. Brcimel, 4 Ark. 129, unless the record lias been lost or destroyed. Davis v. Pettie, 6 Eng. 349; 1 Greenl. Ev. sec. 501-521.

   Wilshiee, C. J.

On the 16th day of July, 1867, Bull, Ellis & Co., presented to R. 0. Mason, as the administrator of'S. I). Lewis, deceased, a claim against said estate, based upon a promissory note, bearing date April 4, 1860, for the sum of $87.1 18, payable twelve months after date, with interest at eight per cent, after-maturity. ' The claim was verified by the affidavit of one WD. Jacoway and presented to the administrator for allowance, who rejected the same.

The appellees, on the same day, presented the claim to the probate court of Pope county for allowance and classification. The probate court allowed the claim, and classed it as a fifth class claim against the estate of Lewis, deceased. The administrator appealed to the circuit court of that county, which affirmed the judgment of the probate court, and the administrator appealed to this court.

The first error complained of, is the ruling of the probate court in overruling the motion of the administrator to dismiss the claimant’s action, because the claim was not authenticated by affidavit, as required by law. The affidavit is as follows :

• “I, W. D. Jacoway, being duly sworn, do depose and say that, to the best of my knowledge and belief, nothing has been paid or delivered towards the satisfactioil’of the above demand except what is credited thereon, and that the sum of four hundred and forty-four dollars and thirty-one cents, above demanded, is justly due the firm of Bull, Ellis & Co.”

The affidavit of Jacoway for the authentication of the claim is substantially that prescribed by section 102, chajtter 41, Gould’s Digest. That statute required the affidavit to be made by the claimant, but, by an act of the General Assembly, approved March 5, 1867, it is provided, “that the affidavit required in section 102, chapter 4, Gould’s Digest, to authenticate demands exhibited for allowance against the estates of deceased persons, may be made by any person other than the claimant, who may be acquainted with the facts sworn to, and who is otherwise competent to give evidence in a court of justice; and such affidavit shall have the same force and effect as if made by the claimant.” This statute is manifestly just, as it allows to persons who have claims against the estates of deceased persons,.the right to establish their claims by the testimony of witnesses, cognizable of the facts, competent to testify in the courts, as well as the affidavit of the claimant. It is not unfrequently' the case that the claimant is not as well advised of the facts in relation to his claim against the estate of deceased person, as some person who has no interest in it.

The act of the General Assembly, approved March 18,1867, authorizes the verification to be made by an agent or attorney of the claimant, and prescribes the requisites of their affidavit. This latter statute does not conflict with the act of March 5, 1867; one applies to cases where the claim is verified by the affidavit of a person cognizable of the facts, and the other to verification by an agent or attorney, as to his belief, after having “made diligent inquiry and examination,” etc. Both acts were evidently intended to relax the vigor of the statute formerly existing in relation to the verification of such claims.

The second and only remaining error complained of here, as presented by the record before us, is, that the appellant offered to prove, by one Y. B. Sheppard, that he, the said Sheppard, administered on the estate of S. D. Lewis, in the year 1864, in the county of Sevier, and that he is still administrator of said estate, and that he has not resigned his admistration nor been removed as such; which testimony the probate court excluded.

The position assumed by Mason, the appellant, in the probate court, is remarkable, to say the least of it. It appears, by the transcript of the record, that when the claim was presented to him for allowance, he indorsed his disallowance on it, as the administrator of Lewis; he appeared in the probate court and contested the claim; went into trial, as such administrator, and then attempted to show that he was not the administrator, but that Y. B. Sheppard was.

The appellant made no attempt to show the loss or destruction of the record of the Sevier probate court appointing Sheppard as administrator of Lewis, and the probate court of Pope county very properly refused to allow him to introduce parol testimony to prove a record that this court, from the record before us, presume to be in existence.

This court held, in Davies v. Pettit, 11 Ark., 359, that a party might be allowed to introduce parol .evidence to prove the contents of a record, either ancient or recent, after proof of its loss or destruction satisfactory to the court. But in the case at bar no such proof of loss or destruction was made, or attempted to be made, by the appellant, in the probate or circuit court.

Judgment affirmed.

Judges Gregg and Harrison,

dissenting say:

We concur with the majority upon the ruling of the court' below, excluding the parol evidence offered, but we are of opinion that the affidavit of Jacoway, appended to the claim for probate, was not a compliance with the statute, and was not sufficient to entitle the claim to probate.