author: Mr. J ustice Clendenin

text:
    Trammell et al vs. Bassett.
    Obedienoe is the first duty of a soldier; he has no right to require the reasons of orders, or consider the consequences of his acts under them; and may prove that he acted under orders in justification, when sued. But officers have a discretion in effecting that which they are required to'perform, and will be held to a more strict account for acts done by them.
    Where the bill of exceptions states facts different from the record this court must be governed by the record. (1Y, Ark., 682.)
    It is a matter within the discretion of the court to permit additional pleas to be filed after issue joined; and if pleas are filed out of time, according to the rules and practice of the court, it is within the proper exercise of the power of the court to order them stricken from the files.
    Where the admission of a party is offered in evidence against him, it is the well settled rule of law that the whole admission is to be taken together — all that he said at the time in connection with his admission should be permitted to be proved.
    On issues to the pleas of not guilty and limitations, in an action of trespass, the defendant will not be permitted to introduce evidence in mitigation of damages — snch evidence not being applicable to the issues.
    Testimony pertinent to the issue, and tending to prove circumstances showing the connection of the defendant with the trespass complained of, cannot be deemed of prejudice to the defendant and illegal.
    All persons present and participating in a trespass are deemed equally guilty; and if one be accidentally present and not consenting to or participating in the aet, it devolves upon him to prove his innocence.
    The taking and carrying away the property of another without his consent is a conversion.
    The reading of the preamble to the constitution to the jury, by the court, or other matter not pertinent or applicable to the issues in the ease, is objectionable and Bhould not be encouraged.

      Appeal from Washington Circuit Court.

    Hon. Elias B. Harrell, Circuit Judge.
    Walker for the appellant.
    It is insisted for the appellants that the court erred in sustaining the demurers to the 2d and 3d pleas, and in striking out the 5th. Soldiers cannot be held liable tor legitimate acts done in the prosecution of war. Halleoh on lnt. Law, chap. 19, seo. 31, p. 348: 5 Wheat. 152, The war was a civil war. 2 BlaoMs Hep. 635; and there is no distinction in the usages of war, whether it be a civil war or a foreign war. 7 Wheaton, 337; Tim Trqpie Wind, Law Hep., {July, 1861,) p>. 151; Hallecla's Lnt. Law, oh. 14, seos. 7, 8, p. 333, Lawrence's Wheat, lnt. Law, part 1V., oh. 1, seo. 7-10. Soldiers must obey, not act on their own discretion. Vattel, 293, 401. See opinion of NewhaN, J., in Hughes vs. Litsey et al., American Law Hegister (January, 1866,) 148 — 158.
    As the admissions of the defendant were proved by the plaintiff, his explanation or justification made at the same time should have been received in evidence.
    The instructions are abstract and illegal and tended to confuse the minds of the jury — particularly the preamble to the constitution — certainly the defendants were not required to prove their innocence.
    Geegg for the appellee.
    It is submitted that if a party voluntarily engage in the violation of law by rebellion, or otherwise, he is not excusable in trespass, because large numbers are acting in concert, and under men or officers of their own selection and in an organized form.
    The court properly sustained the motion to strike out the 5th plea. It was not filed in apt time — ’the issue having been made up at the previous term; and to have allowed the plea to stand would have been prejudicial to the plaintiff. Sec. 53, oh. 133, Gould's Dig.; 2 Eng. 117; 5 Eng. 443.
    The record does not state that leave was granted to file the plea after the issues had been formed, nor the reasons for striking it from the files; and if the bill of exceptions states 'facts inconsistent with the record entries, the record'must prevail. ' 17, Ark., 332; 5, Eng., 449.-

      We submit that there was error in receiving or rejecting evidence.
    The testimony tended to show that the parties had engaged together for a common purpose, and hence the instructions of the court were not erroneous. Instructions are not erroneous if there is any evidence from which the jury might infer the fact; nor will the court reverse a judgment on account of instructions unless they are prejudicial to the party. McNeill vs. Arnold,', 22 Ark., 477; Swinny vs. State, lb., 215; Patterson vs. Fowler, lb., 396,
   Mr. J ustice Clendenin

delivered the opinion of the court. .

On the 28th of July, 1865, the appellee, Bassett, commenced his action of trespass, against the appellants Leonard Trammell, George S. Trammell and Baker Pidcock, Daniel T. Smith, Jackson Dyer and George W. Drain. At the May term, 1866, all the defendants appeared. Smith filed his plea in abatement, and the other defendants their plea of not guilty, and also special pleas of justification. The plaintiff admitted the truth of Smith’s plea, and he w7as discharged. The plaintiff' joined issue on the plea of not guilty, and demurred to each and all of the special pleas. The demurrer was sustained, and defendants then filed their plea of the statute of limitations, upon which issue was made up, and on the application of the defendants the cause was continued.

At the. next term of the court in August, 1866, defendants, Leonard Trammell, Dyer and Drain, filed an additional speciál plea, and at the same time, defendants, Pidcock and Dyer filed an additional special plea, and defendant George S. Trammel], also, filed his additional special plea, all of which said pleas, the plaintiff moved to strike from the files, the motion was sustained, and the pleas stricken from the files, to which defendants excepted, ,and incorporated their pleas in the bill of exceptions. The case was then submitted to a jury, and a verdict found against defendants, Leonard Trammell and George S. Trammell,- and in favor of Pidcocb, Dyer and Drain. During the trial, the defendants excepted to decisions of the court, in regard to the admission and exclusion of testimony, and also to instructions given by the court, and the charge of the court; all of which exceptions appear by the record of the case. Leonard and George S. Trammell appeal to this court and assign for error:

1st. The circuit court erred in sustaining the demurrer to the several pleas of justification.

2d. The court erred in striking from the files the pleas of justification.

3d. The court erred in permitting illegal testimony offered by plaintiff to go to the jury.

4th. In refusing to permit testimony offered by appellees to go to the jury.

5th. In giving illegal instructions to the jury.

¥e will proceed to notice the assignments of error in the order in which they are stated; and in doing so it will be necessary to copy one of the numerous and voluminous pleas (all the others demurred to being substantially alike,) filed in this closely and •well prosecuted and defended case; it being necessary to do so, to examine its merits as a valid and legal defence.

The plea is as follows:

“And the said defendants, Leonard Trammell, Jackson Dyer and Geo. W. Drain, for a further plea in this behalf) (by leave of the court) for that purpose had and obtained, as to the said seizing, taking, leading, driving, hauling and carrying away the goods and chattels in plaintiff’s declaration mentioned, and therein supposed to be done by these defendants, they the said defendants say actio non, because they say that before the time when, in plaintiff’s declaration mentioned, to-wit: on the 7th day of May, 1861,and from thenceforward, continually, until and at and after the time when, etc., in the said counts in said plaintiff’s declaration mentioned, to-wit: in the county of "Washington, and state of Arkansas, aforesaid, there had been inaugurated and then existed a civil war, by and between the states of "Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Tennessee, Arkansas, Louisiana and Texas, and the people thereof, who claimed and assumed to have established a separate government from the other states of the United States, of the one part, and the government of the United States and the people of such other states, and the territories of the United States and the people thereof, of the other part, in the prosecution of said civil war so inaugurated and existing, Stephen B. Enyart, before the time when, etc., in said several counts in said declaration mentioned, to-wit: on the 10th day of June, 1864, at the county and state aforesaid,' was duly appointed and commissioned by the so-called Confederate States, as captain in the military service thereof, under and by virtue of which commission and appointment, he, the said Stephen B. Enyart, assumed to act, and did act as cap-lain as aforesaid, at the time when etc., and as such was vested with full power and authority to command and did then and there command a company of men to serve and do duty as soldiers in said civil war as aforesaid, in the service of the so-called Confederate States: and the said defendants say, that before ■ the time when etc., in the said several counts in said plaintiff’s declaration mentioned, to-wit: on the 10th day of June, A. D. 1862, and continuously thereafter, and at and after the time when etc., in said counts in said declaration mentioned, they had been, and were resident citizens of the county of Washington, in said state of Arkansas, and liable under the laws of said state to perform military duty, and was before the time when etc., in said counts mentioned, regularly enrolled and mustered into the service of the so-called Confederate States, to do duty and service in said company, and under the command of the said Stephen B. Enyart as such captain in the prosecution of the said civil war, and being such soldiers in such company under the command of the said Stephen B. Enyart, as such captain and while the said S. B. En-yart was, and was acting as a captain in the said service of the said so-called Confederate States, and whilst these defendants were subject to the order and command of the said Stephen B. Enyart as captain as aforesaid, they the said defendants as such soldiers, in such service and under and in obedience to the express command and order of said Stephen B. Enyart given as such captain at the time when etc., in the said counts in said declaration mentioned, did seize, take, drive, lead, haul and carry away the goods and chattels, the property in the said declaration in the several counts thereof mentioned, to-wit: at the county aforesaid, as it was lawful for them to do, as they were required to do by the order and command of the said Stephen B. Enyart, captain as aforesaid, so given as aforesaid, which are the same supposed trespasses in said counts in said declaration mentioned, and whereof the said plaintiff hath complained against them, and this they are ready to verify etc.”

This plea, in substance, set up the existence of a civil war, that the defendants were soldiers in that war; and that the acts done were done by order of their commanding officer; (naming him) and presents the question whether a private soldier in time of war can justify his acts by virtue of- the orders of his commanding' officer.

That a civil war existed at the period shown by the pleadings in this case, there can be no question. We have, at the present term of this court, in the case of Hawkins vs. Filkins, fully recognized and decided that point; and therefore, there being a war, and these defendants being soldiers in that war, what was their duty?

We think it may be laid down, as a well settled proposition, that obedience is the first duty of a soldier. It is not for him to ask the reason for the order he receives, or the act he is to do, or to consider the consequences of the act. He must obey. To him the maxim of despotism, that to hear is to obey,” is more nearly applicable than to any other class of society. If such be the rule applicable to the private soldier, he should certainly be permitted to prove it in his justification.

It is no doubt upon this principle that the law holds officers to a more strict account for acts done by them, than it does the private soldier, and that officers have a discretion in effecting that which they are required to perform. And this question incidentally came up before this court at the present term in the case of Taylor vs. Jenhms, in which the court say: “ and while officers may exercise a discretionary power in effecting that which they are required to do, 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 and soldiers, and in general all of those by whose agency the sovereign makes war, are only instruments in his hands to execute his will and not their own,” which we again • repeat and re-affirm as the law applicable to the-question now before us. And applying it to the pleas in this case we think the circuit court erred in sustaining the demurrer to the pleas.

The next cause assigned for error is the decision of the court, striking the pleas of appellants from the files.

• It will be seen from the statement of the case that these pleas were filed after the issues were made up, and at a subsequent term. The record does not show that they were filed by leave of the court, although the bill of exceptions does so recite it. Where the bill of exceptions states facts different from the record, we must be governed by the record. 5 Eng., 449; 17 Ark., 532.

It was a matter clearly within the discretion of the circuit court, to permit these pleas tó be filed; and if filed out of time, according to the rules and practice, it was in the proper exercise of the power of the court to order them stricken from the files.

The third error assigned is, that the court permitted illegal testimony, offered by the plaintiff, to go to the jury.

It appears by the bill of exceptions, that the plaintiff, to maintain the issue on his part, proved by three witnesses that defendant Leonard Trammell, in the latter part of August, 1862, and while he had the property in possession, within about a quarter of a mile of plaintiff’s, stated to them that he took the properry, the cattle and sheep in the plaintiff’s declaration mentioned; that at the time of making such statement the defendant, Geo. S. Tram-mell was with him ; and that they were driving off the property. The plaintiff also proved that in the evening of that day, the defendants, Drain, Pidcock and Dyer, and others, came with other property and staid at Johnsons; and that Leonard Trammell, apparently, had control of the property brought in; that next morning they all went off together, carrying off the property of the plaintiff, and the property brought in by the other parties; that the same was taken to McGuire’s and sold by Capt. Enyart; that Trammell, in the statement he made, also stated the property was taken for the use of the families of those who were fighting for their country.. Plaintiff also proved the value of the the property. ' And defendants then proved that defendants Drain, Dyer and Pidcock, and the Trammells were all engaged in the business of gathering up stock on the creek at the time, and met together on the night of the day of the taking of the property at Johnson’s, stayed all night together, and went off together next morning, driving the stock that had been gathered up and taken at different places; which was all the testimony given in the cause.

We have copied this statement from the bill of exceptions.

We cannot conceive how this testimony could prejudice the defendants, who are now the appellants in this court. The defendants, who might possibly complain, are not before us. They have been discharged by the verdict and judgment. The testimony, so far as defendants Trammell are concerned, was pertinent to the issues, and proved circumstances showing their connection with the tresspass.

The fourth cause of error is that the court erred in refusing to permit testimony offered by the defendant, to go to the jury.

The bill of exceptions No. 3, states that the plaintiff introduced William Terk, who testified that Leonard Trammell, one of the defendants, in the month of August, 1862, admitted while he had them in possession, in a conversation with witness, that he took the property, the cattle mentioned in the declaration, and thereupon, on cross-examination, the defendant offered to prove by said witness, that in the conversation mentioned in Ms examination in chief, the said Trammell also stated that they, the parties, were in the Confederate States service, and took the property in obedience to the command of the officers, and for the use of the Confederate States government, to aid in carrying on the war against the government of the United States. To the proving of which plaintiff objected, and the court sustained the objection and refused to permit the witness to testify. This was error. It is the well settled rule of law, that the whole admission is to he taken together. All that the party said at the time in connection with his admissions should be permitted to be proved. 1 Greenleaf, see. 201-2.

"We also learn from the bill of exceptions No. 4, that the defendant offered to prove in detail, (and which is set out in his bill of exceptions,) in mitigation of damages, the same facts which he had averred in his plea that had been stricken from the files, but that the court refused to permit him to make- such proof. The averments m the plea stricken out were substantially the same as those in the plea copied in this opinion, with the additional averments that the plaintiff was inimical to the Confederate States, and that the goods taken were for the use of the Confederate States.

"We do not think that the circuit court erred in refusing to permit this testimony to go to the jury. The only isues in the case were the pleas of not guilty and the statute of limitations, and the evidence offered was not applicable or pertinent to these issues, and could not be introduced in mitigation of damages. See Oreenleaf on Evidence, p. 288-9, 1 Ohitiy’s Pleading, 415.

The fifth cause assigned for error is as to the instructions and charge of the court.

The bill of exceptions shows that the court, of its own motion, instructed the jury as follows:

1st. If three or more persons assemble for the purpose of doing an unlawful act, and in furtherance of that purpose, the unlawful act is done by part or all the persons assembled for that purpose, all will be equally guilly, and if any person happen to fall in with the company, and is present when the unlawful act is committed, that pei'son to excuse himself must show that he was there for another purpose, and not to assist in or sanction the perpetration of the unlawful act.

2d. If A takes the property 'of B, without B’s consent, and carry it away, the moving the property is a conversion. It is not material what disposition of the property was made, if it was not returned to B it is a conversion.

3d. If you believe from the evidence before you, that the defendants, or either of them, took the property of the plaintiff without his consent within three years next before the commencement of this suit, you should find for the plaintiff, and assess such damages as you may think right against all the defendants that you believe participated directly or indirectly in the taking the plaintiff’s property.

4th. If you believe from the evidence before you that the defendants or any of them took the property-of the plaintiff without his consent; or if they did take it, if it was done more than three years before the filing of this suit, you should find for the defendants.

And the bill of exceptions also shows that the court, against the objections of the defendants, at the time stating that he did not do so particularly as instructions, read to the jury from the constitution of the state of Arkansas, as follows, to wit: We the people of the state of Arkansas, having the right to establish for ourselves a constitution in conformity with the constitution of the United States of America, recognizing the legitimate consequences of the rebellion, do hereby declare the entire action of the state convention of the state of Arkansas, which assembled in the city of Little Rock, on the 4th of March, 1861, was and is null and' void, and is not now, nor ever has been binding and obligatory upon the people. That all the action of the state of Arkansas under the authority of said convention, of its ordinances, or of its constitution, whether legislative, executive, judicial or military, (except as hereinafter provided) was and is hereby declared null and void. Provided that this ordinance shall not be so construed as to affect the rights of individuals, or change county boundaries, or county seats, etc., etc.

"We can see no serious legal objection to these instructions as given by the court. Taking them together, and applying them to the evidence in the case, we think they were properly given to the jury. We cannot, however, discover what law applicable to the issues in this case, was to be found in the preamble to the constitution of this state, read by the court, (over the objections of the defendants,) “ not as instructions,” as we learn from the record; but for what purpose it was read, the record does not inform us. It is very well, and no doubt proper, that all the citizens should be instructed as to the provisions of the constitution under which they live, as ¿they should be in regard to all their social and moral duties; but there is a time for all things, and we think it would be more proper to instruct at a time, when their 4 minds were not occupied with the duty oí trying a solemn issue between their fellow citizens; and while we do not think that there was any legal error in this action of the court, or that the minds of the jury were confused by it, and diverted from the issue they were to decide, still we think that the practice of reading matter to the jury not pertinent or applicable to the issues, is objectionable and should not be encouraged.

But because the court erred in sustaining the demurrers to the ■ defendants’ pleas, and in excluding proper testimony, this cause must be reversed.


source: Caselaw Access Project

author: Mr. Justice Clendenid

license: Public Domain

text:
    Trammell et al. vs. Brooks.

      Appeal from Washington Circuit Cowrt.

   Mr. Justice Clendenid

delivered the opinion of tbe court.

The points in this case being similar to those decided in the case of Trammell et al. vs. John N. Bassett, at the present term, must be governed by the decision in that case, and is reversed.


author: Mr. Chief Justice WalKek

text:
    Killian vs. Ashley Et. Al.
    Where a third party indorses a note, in blank, at the time it is executed, he is bound as security as fully as if he had written his name on the faoe, under that of the maker. But if such indorsement be made at a subsequent time, it is, in effect, a new-contract — a guaranty, and to be valid, must be made upon a sufficient consideration.
    An endorsement in blank by a third party gives to the payee or indorsee an implied power to write above it, the most absolute terms of guaranty, and is a promise in writing to answer for the debt of another as contemplated by the statute of frauds.
    A valid contract of guaranty indorsed upon an instrument of writing, passes by assignmenti to the assignee, and vests in him a right of action in his own name - against the guarantor.
    The release of a substantial security for the payment of a debt, in consideration of
      the guaranty of a third person, is a sufficient consideration to support the contract of guaranty.
    Where a guaranty is absolute and unqualified — as a guaranty in blank may be considered to be — and for the payment of a debt fixed and definite in terms, demand and notice are unnecessary.
    The liability of an indorser and guarantor is several — upon separate contracts; and a joint action will not lie against them.
    Where the blank indorsement of a third party is alleged to have been made at the time of the execution of the bond he may be sued as maker jointly with the payee as assignor.

      Appeal from Pulaski Circuit Court.

    Hon. Libeety Bartlett, Circuit Judge.
    ClarK, WilliaMS & Martin, for the appellant.
    That the maker, indorser, and guarantor who subscribes a note on the back for that purpose, may be joined in debt for the recovery of the note is well settled under our statute, and understood to need reference to no authorities ; nor is it necessary to refer to any on the point, that the releasing of a valid lien upon lands held by the payee in security for the payment of a bond would be a good consideration for the guarantor’s undertaking.
    In setting out a contract of guaranty in the declaration, it is not necessary to allege that the same or some memorandum thereof was in writing and signed by the party, 1 Chitty’s PI., 222. If the contract was not in writing, the statute of frauds must be pleaded, or is a matter of evidence. 1 Saund., 211, note 2 ; 2 Sails., 519 ; 3 Purr., 1890 ; 1 Saund., 216, note 2. It is only necessary to allege a good contract of guaranty without reference to the statute of frauds; and if the case is within' the statute, the court will presume the contract to be in writing until the contrary appears by plea, or on the trial.
    But in this case the contract of guaranty, as alleged in the declaration, is an original undertaking to pay the debt for a valuable and independent consideration, and is not within the statute. 1 Saund., 211, a note 2; 1 Wils., 305; Parsons on Con., 9; Alien vs. Thompson, 1 IT. Hamp., 32; Nelson vs. Dubois, 13 John., 173;. 8 Wend., 404; Meyer vs. More, 15 John., 425; FoJley vs. Cleavland, 9 Cow., 639; 15 Wend., 343. But if this case is within the statute of frauds, and it is necessary to allege that the contract was in writing, thé averment that the guarantor had endorsed the instrument in blank by way of guaranty for a valuable consideration, is a sufficient compliance with the requirement of the statute — such endorsement authorizing the holder to fill up the blank, by writing over the name a guaranty for the payment of the note. Nelson vs. Dubois, 13 John., 175; Riddle vs. Stephens, Law Reg., for Sept., 1866, page 651; 20 John., 365; Story on Bills, seo. 215.
    As a general rule a contract of guaranty is not assignable at common law, because the contract was personal to the party, and the guaranty an inducement to the credit; but in this case the contract of guaranty was not the inducement to the making of the bond, bu£ was given after the date of the bond and upon another and independent consideration. It is an original undertaking, not personal to the payee of the bond, but a security for its payment, and runs with the bond into the hands of the assignee. But if this were not so, our statute makes all contracts assignable, (Dig. oh. 15, sec. 1 — 9.) Parsons on Con., 3, 4; 24 Wend., 456; 26 Wend., 425; 8 Qreenl. Rep., 234; Story on Bills, seos. 456, 457, 458,' note 2.
    The liability of the guarantor is absolute, and not conditional, therefore demand and notice were not necessary; 13 Verm., 93; 2 Mar., 24; 1 Story, 22; 3 Greenl. Rep., 332; 24 Wend., 35, 82; Chitt/y on Bills, 353.
    "WatKiks & Bose, for the appellees.
    The endorsement of William E. Ashley, if it could amount to anything, was an engagement to answer for the debt of another and could not bind him unless there was a memorandum in writing. Could'1 s Dig., oh., 74, seo. 1; and to charge him it was necessary to allege and show a consideration. Penny vs. Price, 4 Pide., 885; Aldridge vs. Turner, 1 Gill & John., 427; Hunt v. Brown, 5 Hill N. Y., 145; Violet vs. Patton, 5 Crunch, 142. A guaranty, to charge the guarantor, must contain all the material facts on its face, and if it does not it is void under the statute, and cannot be aided by parol proof. Allison vs. Rutledge, 5 Yerg., 193; Kelson vs. Boynton, 3 Mete., 396; Clark vs. Russell, 3 Dallas, 415.
    If the endorsement of William E. Ashley, constituted a guaranty, the plaintiff could not recover unless he alleged that demand had been made of the maker of the note, and due notice of his refusal to pay had been given to the guarantor. Saga vs. Wilcox, 6 Conn., 81; Given vs. Dodge, 2 Hammond, 430; Dale vs. Young, 2 McLean, 55V.
    This, like all other contracts, must be construed according to the intention of the parties: and had W. E. Ashley designed to bind himself as maker, he would have signed the note instead of endorsing it. That upon this endorsement he cannot be charged as maker, see Penny vs. Price, 4 Pick., 385; %fen vs. Ket-tredge, 7 Mass., 233; Good vs. Jones, 9 Misso., 866; Spiers vs. Gilmore, 1 Corns., 324;- Pierce vs. Man/n, 17 Pick., 244; Edward on Bills, 219.
    A guaranty, though written on the same paper with the note, does not pass to the assignee of the note, so as to enable him to sue on it in his own name, though by the transfer of the note he may become the equitable owner of the contract of guaranty. The contract of guaranty is a collateral contract, and is not a part and parcel of the note itself. Bee Turley vs. Hodge, 3 Humph., 73; McDoal vs. Yeomans, 8 Watts., 361; Smith vs. Dickinson, 6 Humph., 261; Pierce vs. Mann, 17 Pick., 244; True vs. Fuller, 21 Pick., 140; How vs. Kemble, 2 McLem, 103; Preston vs. Davis, 8 Ark., 167. .
   Mr. Chief Justice WalKek

delivered the opinion of the court. This is an action of.debt brought by Killian against the defendants, Joseph O. and William E. Ashley, upon a writing obligatory, executed on the 12th of February, 1859, by William B. Easley to Joseph O. Ashley, for one thousand dollars, and assigned by Joseph O. Ashley to James B. Iieatts, and by Eeatts to the plaintiff. Upon the back of the writing obligatory the name of William E. Ashley is endorsed in blank.

The declaration contains two counts; the first is against Joseph O. Ashley as endorser, and William E. Ashley as guarantor. The second is against Joseph 0. Ashley as endorser and William E. Ashley as maker. The defendants filed separate demurrers to each count of the declaration. The demurrers were sustained, and judgment rendered thereon in favor of the defendants, from which the plaifctiff appealed.

The insufficiency of the declaration, and more particularly the first count, was questioned upon several grounds, which we will proceed to consider.

In the first count William E. Ashley is declared against as guarantor; and as the endorsement was made in blank, without date, it is not certain whether he should have been declared against as security or guarantor. If he endorsed the writing obligatory at the time it was executed by Easley, then he is bound as security for the payment, as fully as if his name had been written immediately under that of Easley, the principal. The mere fact that the name was written upon the back of the instrument, did not change the nature of his liability; it was not the making of a new contract, but simply becoming security for the payment of the one then being made. But if William E. Ashley endorsed the writing obligatory, after it was executed and delivered, such endorsement was in effect a new contract, and to be valid, should be made upon sufficient consideration. As against him, it created a distinct liability. Tenny vs. Prince, 4 Pick, R, 381. By endorsing the obligation in blank, he gave to the payee or assignee, an implied power to write above it, the most absolute terms of guaranty. Webster vs. Cobb, 27 III. R., 446; True vs. Fuller, 21 Pick. R., 142. If William E. Ashley bad desired to limit or qualify the terms of his guaranty, he should have done so when he made the endorsement; but when he sent forth the instrument with his name upon it, he is held to have given his implied consent to be bound by such terms as the holder of the obligation might fix upon him, in his character as guarantor.

The defendant’s counsel contend that, admitting the legal liability of William E. Ashley to pay, as guarantor, to Joseph 0. Ashley, the payee, the contract of guaranty did not pass by the assignment of the writing obligatory to the, plaintiff: that there is no privity of contract between William E. Ashley and the ' plaintiff, and that, consequently, the plaintiff has no right oí action against him. Smith et al. vs. Dickinson, Humph. R., 261, decided upon the authority of True vs. Fuller, 21 Pick., 140, and some others are cited as authority in support of this position; and an examination of them would seem to sustain the position assumed by counsel. But we find other and later decisions which hold differently upon reason and authority, which accord with the rights of parties, holders of negotiable paper. Our own statute has placed sealed and unsealed instruments upon the same footing, they are alike assignable, and enter largely into the business transactions of the country. It was evidently the intention of the legislature to facilitate their circulation, as a ^species of exchange, by vesting in the assignee the same interest which the assignor had. An endorsement by a responsible party after the execution of the instrument, gave to it an additional credit, and although a new undertaking, it is, nevertheless, so attached to, and connected with the original contract as to become, in some respects, a part of it. McLarren vs. Watson’s ex’r., 26 Wend., 425; Webster vs. Cobb, 27 Ill. R., 466; Cooper & Peabody vs. Dedrick, 22 Barb. Rep., 516, sustain us in the opinion that the contract of guaranty endorsed upon the writing obligatory, passed with it, by virtue of its assignment to the assignee, partakes of its negotiability, and vests in the assignee a right of action, upon the contract of guaranty, against William E. Ashley, the guarantor.

The objection to the first count, that the contract of guaranty is without consideration, is not well taken. It is averred that Joseph 0. Ashley held a lien upon a tract of land for the payment of the writing obligatory of Easley, which he released in consideration that William E. Ashley would guaranty the payment of the debt by endorsing the writing obligatory. We have no means of knowing whether William E. Ashley was benefited by this endorsement or not; he may, or may not have been interested in removing the lien from the land; but be that as it may, J oseph 0. Ashley was certainly prej udiced by giving up this additional security for the payment of his debt, which is a sufii-cient consideration to uphold the contract of guaranty. Howard vs. Kearstead, 20 Ill. R., 373.

It is further objected to this count, that it does not aver demand, and notice of non-payment of the debt to William E. Ashley. Whether this objection is well taken, or not, must depend upon the nature of the contract. As a general rule, it would seem that where a continuing guaranty is made, one which relates to future transactions upon the happening of which an absolute liability to pay must depend, the guarantor has a right to know whether such contingencies have happened, and is entitled to notice before he can be held liable upon his guaranty. McCollum, et al. vs. Cushing et al., 22 Ark. R., 540. But where the guaranty is for the payment of a debt fixed and definite in terms, and is absolute and unqualified, as we have seen the assignee had a right to make it, demand and notice are unnecessary. Easley had become bound to pay $1,000 on a given day, and William E. Ashley, by his unqualified guaranty of payment, became responsible for the payment of the debt according to the terms of the writing obligatory, as held by this court. Lane vs. Lavillian, 4 Ark. R., 85; Harrell vs. Miller, 21 Ill. R., 637; Webster vs. Cobb, 27 Ill. R., 465. Such being the effect of the guaranty, it was unnecessary to aver demand and notice.

The liability of William E.. and Joseph O. Ashley was upon separate contracts. They were not jointly liable, and upon this ground the demurrer to the first count was properly sustained, as held by this court in the case of Preston vs. Davis, 8 Ark. P., 167; Doodle & Jones vs. Jones, 9 Mo. R., 866.

It is true, as contended hy counsel,' that a promise to pay the debt of a third person must, under the statute, he in writing; but from the legal effect of the endorsement, coupled with the authority to fill up the blank with the written guaranty to pay, we must hold this to be a guaranty or promise in writing to pay, and is not void under the statute.

Having thus considered and disposed of the objections to the sufficiency of the first count, we will proceed to consider the sufficiency of the second count, in which William E. Ashley is sought to be charged as maker and Joseph O. Ashley as endorser. If in point of fact William E. Ashley endorsed the writing obligatory at the time it was executed by Easley, he thereby became security for Easley, and jointly bound with him to pay, and is properly declared against as maker and properly joined with Joseph O. Ashley who was the assignor. Tenny vs. Prince, 4 Pick. B., 387; Robertson vs. Pebles, 17 Ohio R., 36; Carr vs. Rowland, 14 Texas R., 278. The count is in the usual form, and we think in all respects sufficient. The pleader has chosen to fix the date of the endorsement of William E. Ashley as having been made at the time the writing obligatory was executed, and so we must, upon demurrer, consider it as having been made. If in point of fact there is a misstatement of time, in the further progress of the trial the defendant may avail himself of it, but of that we are not now called upon to consider.

In yiew of the whole case and the questions of law raised by demurrer, we are of opinion that the demurrer to the first count was properly sustained on account of the misjoinder of parties; and that the circuit court erred in sustaining the demurrer to. the second count, and for this error the decision of the circuit court must be reversed, and the cause remanded with leave to the plaintiff to amend the first count in his declaration, and for further proceedings.


author: Mr. Justice ComptoN

text:
    Buckingham vs. Hallett et al.
    The decree of confirmation of a tax title can have no effect to preclude a party in possession of the land from the benefit arising from lapse of time prior to the rendition of the decree — the proceeding for confirmation being in nowise a pos-sessory proceeding; and held in this case: that as the full period of limitation had elapsed, whether the cause of action accrued on the day of the tax sale, at the expiration of the time allowed for redemption, or at the date of the collector’s deed, it -was immaterial to inquire on which day the purchaser’s right to sue commenced.

      Error to Pemj Gi/rcuit Oowrt.

    Hon. Thomas Bowles, Circuit Judge.-
    . Ford, for the plaintiff.
    ClabK, Williams & MartiN, for defendants.
   Mr. Justice ComptoN

delivered the opinion of the court.

This was an action of ejectment brought by the plaintiff in error for the recovery of the possession of a tract of land lying in Perry county. The verdict and judgment in the court below were for the defendants; the plaintiff moved for a new trial, which motion was overruled, and the case now comes before this court for consideration.

The only question necessary to be decided is, whether or not the plaintiff’s right of action was barred. It appears that the land in controversy was sold for taxes, on the 5th day of November, 1819, and that the plaintiff became the purchaser, to whom the collector executed a deed, bearing date the 27th day of February, 1851; that on the 5th day of April, 1859, the plaintiff procured a decree of the circuit court confirming the sale, and on the 6th day of October, 1860, brought ejectment. .

At the trial the defendants proved that they had been in the continuous adverse possession oí the land for the space of twenty-five years next before the commencement of the plaintiff’s action, and relied on the statute of limitations of ten, and of seven years.

It is immaterial to inquire whether the plaintiff’s right to sue accrued at the date of the tax sale, or at the expiration of the time allowed for redemption, or at the date of the collector’s deed; because, if at either of the first mentioned periods, the act of limitation of ten years, then in force, was applicable, and if at the date of the collector’s deed, the limitation act of seven years, passed the 4th of January, 1851, applied. So that, in either view, the statutory bar was complete before the commencement of the suit, unless the decree of confirmation entered on the 5th of April, 1859, had the effect to preclude the defendants from any benefit in tiffs controversy, arising from lapse of time prior to the rendition of the decree. There is nothing in the terms of the decree that would warrant the conclusion that it did so operate, nor could there be consistently with the provisions of the enactment, under which the proceedings for confirmation were had.

The statute provides that the purchaser, after publication “calling on all persons who can set up any right to the land so purchased, in consequence of any informality or any irregularity or illegality, connected with such sale, to show cause,” at the time and place fixed by the statute, why the sale so made should not be confirmed,” may, on proof of such notice, apply to the circuit court for confirmation of the sale; and it is made the duty of tbe court, in case no cause to tbe contrary is shown to confirm the sale in question but in case it shall appear that the • sale was made contrary to law, it is the duty of the court “ to cmnul itIt is further provided that the decree of the court confirming the sale “ shall operate as a complete bar against any and all persons who- may thereafter claim said land in consequence of informality or illegality in the proceedings, and the title to said land shall be considered as confirmed and complete in the purchaser thereof,” with saving in favor of infants, etc. And it is also provided that in case any purchaser shall not deem it necessary to use the remedy conferred by the act, then the sale shall have the same effect only as is given to it by existing laws. Gould’s Dig., chap. 170, secs. 2, 4, 6, 8.

From these several provisions the conclusion must necessarily be, that the special proceeding for confirmation, authorized by the statute, is in no wise a possessory proceeding. The possession of the land, in such case, is not matter in issue, and the decree does not affect it, but relates to and affects the sale only, operating as a bar against all persons except those saved from the operation of the act, who may thereafter claim the land in consequence of any illegality connected with the sale. As has been seen, the purchaser may or may not, at his option, proceed for confirmation. If he does not, the legality of the sale may be questioned whenever he asserts his title to the land; but if before asserting his title, he procures a decree of confirmation, then all inquiry as to the validity of the sale is cut off. This is conceived to be the difference between a tax-title that has not been, and one which has been confirmed. Where there has been no confirmation, the right of the party in possession, to avail himself of the statute of limitations to defeat a recovery by the purchaser, has never been denied, and we think it sufficiently clear that he may do so, where the sale has been confirmed, although it becomes necessary, in order to make out the period of limitation, to embrace time which may have elapsed subsequent to the sale and prior to its confirmation; because, as before remarked, the possession not being matter in issue between the parties, the decree of confirmation does not operate as an estoppel on the party in possession, to do so.

It is not deemed necessary to consider the other questions discussed by counsel, as upon the whole record the judgment is correct and must be affirmed.


author: Mr. Justice ClendeniN

text:
    Bowman vs. Worthington.
    Where by statute jurisdiction over particular subjects of equity is conferred, or given to common law courts, the entire body of law administered in the equity courts of this country attaches; but the subject of divorce and all incidental questions, including alimony and matrimonial causes, are not subjects of equitable jurisdiction; and in such cases the courts have no other powers than those expressly conferred by the statute.
    Alimony being an incident to a divorce, the courts of this state, under our statute, can only grant it in connection with the decree of divorce; and have no jurisdiction to entertain an application for alimony where the decree has been granted by another tribunal.
    Where a divorced wife marries again she has no right to alimony or support from the first husband, either during the life, or after the death of the second husband.

      Ajypealfrom Chicot Circuit Cowt in, Chcmccry.

    lion. Win. M. HaeeisoN, Circuit Judge.
    PiKE & Adams, Albeet Piee & SoN, for appellant.
    Undoubtedly the court of chancery, in England, had no jurisdiction in matters of divorce and alimony. But our statute, ch. 59, sec. 3, provides that the circuit court, “sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony, or maintenance,’* like proceedings being had as “in other cases on the equity side of said court.” It is true that sec. 9 provides that “when a decree shall be entered,” the court shall make such order touching the alimony of the wife, as from 'the circumstances of the parties, and the nature of the case, shall be reasonable; and that there is no express provision giving an independent jurisdiction to decree alimony, where there has been a decree for a divorce, and no order in respect to alimony.
    We have no ecclesiastical courts, and if, after a judicial or legislative divorce, leaving the matter of alimony untouched, there remains a right to have alimony, the remedy to enforce this right must of necessity be in chancery, since, otherwise, it would be a right without a remedy. It is but a .question whether the statute gives the circuit court, in chancery, all the powers of the ecclesiastical court, in regard both to divorce and alimony or only a part of such powers. This court settled this in Bose vs. Bose, 9 Ark., 512.
    The legislature of Kentucky could not act on the matter ot alimony, that being reserved for judicial investigation. If, as is admitted, the divorce was valid and effectual, it left the right to maintenance unimpaired, and'there must be a remedy for it.
    That the divorce was valid, the legislature of Kentucky having power, as parliament had, to enact it, see Satterlee vs. Matthewson, 2 Peters 413; Story, Oonfl. of Laws, § 202; 2 Kent, 110; Opinion of the judges of Maine, 4 Shepl. 479; Wright vs. Wright, 2 Marylcmd 429 ; Cabell vs. Cabell, 1 Mete. {Ky.) 319 ; 1 Bishop, Booh vi: oh. xxxiv; Starr vs. Pease, 8 Conn. 541; Berthelemy vs. Johnson, 3 B. Mon. 90; Hull vs. Hull, 2 Strobh. Eg. 174; Bingham vs. Miller, 17 Ohio 445 ; Levms vs. Sleator, 2 Creme (Iowa) 604; Townsend vs. Griffin, 4 Harring. 440 ; Holmes vs. Holmes, 4 Barb. 295 ; Maguire vs. Maguire, 7 Dana 181; Crane vs. Meginnis, 1 Gill <& Johns. 463 ; Jamison vs. Jamison, &Md. oh. 289; Jones vs. Jones, 2 Jones (Pa.) 350 ; Ponder vs. Graham, 4 Flor., 23.
    If the complainant, legally divorced in Kentucky, where she was married, had a right to alimony afterwards to be decreed to her, that right is valid everywhere; and if not enforceable here, in equity, there is a clear and undeniable right, for which, on technical grounds, there is no remedy. The jurisdiction is necessarily cast upon the court of chancery, because the jurisdiction in regard to marriage contracts and breaches of them is given generally to that court. See Almond vs. Almond, 4 Rcmd., 662; Story Oonfl. of Laws, seo. 230, b.

    On the question whether a separate independent suit for alimony can be maintained, it is useless to quote the law and decisions in respect to alimony applied for where there has been no divorce, and none is ashed for, but the parties propose merely to live separate; as in Ball vs. Montgomery, 2 Ves. Jr., 191, 195.
    In Richm'dson vs. Wilson, 8 Yerger 67, the husband had obtained a legislative divorce, the act providing that nothing contained in it should deprive the woman of her right to alimony if by law she-were entitled to it. She filed a bill for alimony, and it was granted by the court. See Grane vs. Megirmis, 1 Gill c& John., 463; Wright vs. WrigMs Lessee, 2 Maryla/nd, 429; Jami-son vs. Jamison, 4 Maryland Oh. Rep., 289; Dunnock vs. Dwn-nock, 3 Maryla/nd Oh. Rep., 140.
    In Almond vs. Almond, 4 Rcmd., 662, the court admitted the English doctrine, but followed P%vrcell vs. Purcell, 4 Lien. c& Mumf., 507, in giving alimony upon a mere separation, deeming the reasoning of the chancellor on the point of jurisdiction sound.
    In North Carolina, the courts of equity have always exercised the same jurisdiction. Anon., 1 Eayw., 347; Spiller vs.Spiller, 1 LLayw., 482; Knight vs. Knight, 2 Kayw., 101.
    So also in Kentucky: Locleridge vs. Lookridge, 8 Dana, 28; Butler vs. Butler, A Litt., 201; Boggess vs. Boggess, 4 Da/na, 307; Wooldridge vs. Lúeas, 7 B. Morn., 49.
    And in South Carolina: Jélimeau vs. Jelineau, 2 Desaus., 45; Prince vs. Primee, 1 Richards. Kg., 282; Threewitts vs. Three-witts, 4 Desau., 560; Prather vs. Prather, id. 33; Mattison vs. Mattison, 1 St/róbh. Eg., 387.
    And in Alabama: Glover vs. Glover, 16 Ala., 440; Wray vs.

      Wray, 33 Ala., 187: where the granting of alimony is declared to be an exercise of an original jurisdiction in the court of chancery. •
    It has been held in Mississippi that a party is not compelled to proceed for divorce and alimony by one and the same bill; but if the question of alimony is not settled in the divorce suit, the wife may afterwards sue for it by separate bill, in the same or in another court of competent jurisdiction. Shohwell vs. Shotwell, 8m. & M. Oh., 51; Lawson vs. Shotwell, 27 Miss., 630.
    It was greatly relied on in the court below, that after remaining single for several years, Mrs. Worthington married again. The law encourages this, and discountenances those judicial separations by which, as in some states, a party is virtually divorced, but not at liberty to marry.
    When she married again, if her alimony had been already fixed by a court in Arkansas, the court could under the statute have diminished it. In Albee vs. Wyman, 10 Gray, 222, when a divorced wife re-married, the court reduced the amount of alimony to a nominal sum, for the reason that it was not necessary or proper to charge her former husband for her future support. The court said that by the second marriage she secured herself other resources for her support, and thus voluntarily furnished the ground for the reduction of the alimony. Certainly, when she became a widow again, and dependent on her parents, this reason ceased. The marriage did not annul her right to alimony. There is no such penalty on marriage. It is not a condition of the grant of alimony, that the divorced wife shall not marry again. It is exceedingly doubtful whether section 12 of our statute relates to any thing more than temporary alimony pendente lite, and whether a subsequent marriage, of the wife would, in this state, warrant the court in reducing the amount of alimony, any more than it would impair her right to dower, or a distributive share in her husband’s estate. Why should it ? The whole had to depend on the facts creating her right to alimony.. And these, if she had obtained a decree, would have been the facts existing, and as they existed, when, the alimony was decreed. Forrest vs. Forrest, ub. sup; 2 Fish. seo. 488.
    SuttoN, and GARLAND & Nash, for appellee.
    Jurisdiction in divorce and matrimonial causes, including alimony, is conferred upon the circuit court, sitting as a court of chancery. But the subject of divorce and all incidental questions are not subjects of equitable jurisdiction; courts of equity in England did not exercise jurisdiction over them. The court, therefore, in cases of this kind, must look to and be governed by the statutory provision. It has no other powers than those expressly thus conferred. And while it may sit as a court of chancery, it is not to be understood as exercising inherent chancery powers, but as a court limited, guided and directed by express statutory provisions, over a subject matter never belonging to chancery jurisdiction. It is then the circuit court, invested expressly by statute, with authority to investigate and try cases of this kind, by rules of proceeding adopted and practiced in courts of chancery. The first and main question then to be determined in the commencement of this investigation is, what authority has this court to grant the relief prayed for in this bill — or decree alimony in any case. The question is not whether a court of chancery will entertain a bill supplemental to a legislative or parliamentary divorce, in the state of Arkansas. We are not called upon to discuss the powers of a court of chancery in this case, for a court of chancery under our laws has no jurisdiction over the subject matter of this suit whatever. The statute points out the court, and the only court that can entertain the jurisdiction, and this express authority excludes the jurisdiction of all other courts. This express statutory provision, not only locates the jurisdiction, but it details the manner, the time when, and the circumstances under which, alimony may be adjudged, and the causes for which it may be adjudged to' the complainant or any other individual applying to the courts of Arkansas. The provision of law referred to is an original one, confirming, confining, and limiting and directing the exercises of the powers of this court over the subject of alimony' — the subject matter of controversy in this case.
    The first section of our law, chap. 59, Ark. Dig., enumerates the causes for which a divorce may be granted, and the only causes. The 3d section locates the jurisdiction, “ for all cases of divorce and alimony.” The 4th section defines the necessary qualifications of the bill of complaint, and the 9th section provides, “ when a decree (of divorce) shall be entered, the court shall make such order touching the alimony of the wife as from the circumstances of the parties and the nature of the case shall be warrantable,” and in 11th section “ the said circuit court shall have power to enforce the performance of any decree for alimony by sequestration or other lawful ways and means.”
    Statutes in cases of this kind are to be strictly construed. See sec. 575, Bishop M. and Dr, and Harrington vs. Ha/rrimgton, 10 Vt., 505, under a statute similar to ours. The court said: “The statute gives the court, which in application for divorce, acts as a court of law, no power to grant alimony, except after divorce granted.” And in Massachusetts a late case holds “ that until stat. 1855, c. 137, expressly conferred the authority on the courts, they could not order temporary support.” A different rule of construction, however, prevails in New York, Kentucky, New Jersey, and other states, but mainly because the jurisdiction of cases of divorce, alimony, and matrimonial causes are, in those states conferred upon courts of equity generally. By our statute, section 9, alimony is incidental with divorce, and inseparable from it by any fair construction. See also section 549, and following sections, and note 1, Bishop, M. and Dr, 2 Story's Egui1/y, sec. 1422.
    Alimony has no common law existence as a separate independent right. It does not follow a divorce, as a matter of course, oí-as a matter of right, but when found, it comes as an incident to a proceeding for some other purpose, as for a divorce for certain causes. No court in England has any jurisdiction to grant it, when it is the only thing or only relief sought. See Ball vs. Montgomery, 2d Vesey, Jr., p. 195; Duncan vs. Duncan, 2d Vesey, Jr., 385 ; Bees vs. Watts, 9 Watts, p. 90 — 93 ; Head vs. Head, 3d Ath., 547; Lawson vs. Shotwell, With Miss., 630. Banlcstone vs. Banlcstone, With Miss., 692. And this doctrine is laid down and expressly decided in the cases of Duval vs. Duval, 12>th Mass., 264; Jones vs. Jones, 16th Maine, 308 ; Dean vs. Bicha/rdson, 6th Piclc., 161; Blaher vs. Gooper, 7, S. and B. 500; Smith vs. Smith, 3 8. <& B., 248 ; Parsons vs. Parsons, 9, H. H. 509. It is laid down by Bishop, on Marriage and Divorce^ that the better opinion appears to be that the English courts of chancery have no power to entertain a bill for alimony supplemental to a parliamentary divorce.
    The sdpreme court of Indiana refused to give a wife, who had been divorced in Kentucky, alimony out of her former husband’s lands, situated in the former state. Fishlie vs. Fishlie, 1 Blackf., 360. The court of chancery of New Jersey, holds that it has no power to decree alimony, except as concomitant with divorce, or under the statute of that state. See Yule vs. Yule, 2d Stoelc, 138. The supreme court of Missouri held in Doyle vs. Doyle, 26 Mo., (5 Jones,) that it had no power to decree alimony, but as incidental to a divorce, except when the power is given by statute.
    The case now before the court rests mainly upon its analogy to Bichardson vs Wilson, 8 Yerger, 67. But in that case both parties were residents of Tennessee, and the divorce was obtained by the husband without notice to the wife, but with an express saving of her right to alimony.
    By the second marriage with another man, complainant closed the door of reconciliation in the - face of the defendant, and also the door of the courts against admitting or even sustaining her supposed claim for alimony, out of the property of the injured and discharged husband. When the vinculum of marriage is snapped, if the man dies, the woman will not be his “widow, nor entitled as such in dower and a portion of his personal property.”
      Levins vs. Blatter, 2d Greene’s loioa Rep., 604; 27 Maine 212; 8 Black/., 218.
    Alimony is sustenance given at the discretion of the court, to the wife out of the property of the husband. By the contract of marriage the husband assumes the duty and obligation to support his wife, and the law enforces this duty. If the husband is guilty of a breach of marital duty sufficient in extent and kind to justify a judicial separation, the law does not in consequence thereof release the husband from his obligation to maintain his wife, although the bonds of matrimony may be dissolved. But when the wife seeks and obtains a divorce a vmeulo, and marries again, she thereby fixes upon another and different man, the obligation to support or maintain her. And two liabilities to pay alimony cannot exist at the same time; by accepting one and enjoying its benefits, she discharged the former. Albeevs. Wyman, 10th Grey, p. 230. The reason for awarding alimony, or the maintenance of the wife, in consequence of the second marriage failing, the law itself ceases.
    If where alimony has been decreed, a subsequent marriage will abate it, or reduce it to a nominal sum, upon an inquest to inquire into the right of alimony, or an application to have' alimony assigned, should not the subsequent marriage be deemed and considered a conclusive bar to the action? Can reasonable doubt interpose in a case so clear and so obviously just? Bo not all our feelings revolt at the idea of requiring any man to pay alimony for the future support of another man’s wife? In a late case decided in England, Fisher vs. Fisher, Swabey & Tristram’s Reports, page 410, the effect of a second marriage after alimony or before alimony is expressly decided.
   Mr. Justice ClendeniN

delivered the opinion of the court. On the 13th of March, 1866, the complainant, Mary H. Bowman, filed her bill of -complaint against Elisha Worthington; and afterwards, on the 26th of June, 1866, filed an amendment to said bill. It appears from the allegations of the original and amended bills,- that the complainant, on the 10th day of November, 1840, intermarried with the defendant in the state of Kentucky, and went to reside with her husband, in the state of Arkansas; that she lived with her husband in Arkansas about five months, when, in consequence of the adultery of her husband, she separated irom him, and returned to the house of her parents in Kentucky, where she remained until the year 1843, when she applied to the legislature of that state for a divorce, and on the 4th of March, 1843, by a special act, in which many other persons were included, the bonds of matrimony between her and her husband were annulled on her part, and she was restored to all the rights and privileges of an unmarried person, and to her maiden name: [no cause for divorce was mentioned injthe act of the legislature of Kentucky.] That she continued to live in her father’s family in Kentucky until the 14th of October, 1847, when she intermarried with Benjamin H. Bowman, and after living for two years in Kentucky, removed with him to Louisiana, where they lived until his death, in 1854, when she returned again to Kentucky, and thenceforward resided with her parents: That Worthington was quite wealthy; that she demanded alimony of him, but he refused to pay any thing for her support, and proceeded to convey away his property, which was of the value of two hundred thousand dollars: That she never condoned his adultery, nor was herself guilty of any impropriety; and prays that alimony may be decreed to her. These are the substantial facts of the bill and amendment as pleaded.

To this bill, the defendant interposed his demurrer, setting out, among other’ things, the following causes:

1st. That the power of the circuit court to grant alimony depends entirely on the statute, by which alimony is dependent upon and incidental to a divorce from the bonds of matrimony, granted by the same court.

2d. That the marriage had been annulled by the act of the Kentucky legislature, and' that alimony can only be awarded to a wife, as such, out of the property of her husband, as such, in virtue of a subsisting marriage status, and that after a divorce granted, the court could have no jurisdiction of a bill for alimony.

3d. That the legislature which granted the divorce made ader quate provision for the complainant, and the circuit court in Arkansas could not assume jurisdiction to try issues that might have been determined before that tribunal.

4th. That the relief sought is barred by lapse of time, and also by the statute.

6th. That the complainant married a second time. That would have revoked alimony if it had already been granted, and so created a bar to the relief sought.

The demurrer was sustained and the bill dismissed, and Mrs. Eowman appealed.

We have thus presented for our determination the questions raised by the bill and demurrer, which have never been decided by this court; and we have, consequently, bestowed upon them all the consideration which their delicacy and importance demand, and have given to the authorities cited by the counsel, and such others as our investigations have led us to, our earnest and thoughtful attention and reflection. Owing to the peculiar jurisdiction of the English courts upon this subject, until the year 1858, we have not been able to find that light and information which we expect to find, and do generally find, to aid us in our judgment in the adjudications made by the great and learned of the profession in the country from which we get the foundation of most of our law : nor have we found many cases in the American courts where the same points as in this were before the courts and adjudicated by them.

The application in this case is for alimony. We do not understand the bill to pray for any thing else.

By our statute of divorce, chap. 59 Digest, jurisdiction in . divorce and matrimonial causes, including alimony, is conferred upon the circuit court, sitting as a court of chancery. The statute is an original provision, no part of the English ecclesiastical law having been expressly adopted in this state. Where by statute jurisdiction over particular subjects of equity is conferred, or given to common law courts, the entire body oi law administered in tbe equity courts of this country attaches to the mattér immediately on the jurisdiction being created. But the subject of divorce and all incidental questions, including alimony and matrimonial causes, are not subjects of equitable jurisdiction. Courts of equity in England did not exercise jurisdiction over them ; they were confined to the ecclesiastical courts, they alone adjudicated upon them. During the commonwealth, the ecclesiastical courts were abolished, and the courts of chancery, for a time, in virtue of special authority given in their commissions, toot jurisdiction of these causes, but after the restoration an act of parliament confirmatory was passed to justify this assumption of jurisdiction. The eccelsiastical courts in England retained exclusive jurisdiction of divorce and matrimonial causes, until the 20th or 21st year of Victoria by act of parliament the jurisdiction was transferred to a new court, styled “the court of divorce and matrimonial causes.”

The circuit courts of this state, sitting as courts of chancery, have jurisdiction of all cases of divorce and alimony by virtue of the statute. The court, in cases of this hind, must look to and be governed by the statute; it has no other powers than those expressly conferred, and while it may sit as a court of chancery, it is not to be understood as exercising inherent chancery powers, but as a court limited and guided by express statutory provisions, over a subject matter never belonging to chancery jurisdiction. It is then the circuit court, invested expressly by statute with authority to investigate and try cases of this kind by rules of proceeding adopted and practiced by courts of chancery.

The question then arises, has the circuit court, sitting as a court of chancery, jurisdiction to grant the relief prayed for, and decree alimony?

■Our statute points out the court that can entertain jurisdiction; it not only locates the jurisdiction, but it details the manner, the time when, and the circumstances under which alimony may be adjudged, and the causes for which it may be adjudged. The first section of our statute, chapter 59, Digest, Arh., enumerates the causes for which a • divorce may be granted. The 3d section says: “ The circuit court sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony, or maintenance, and like process and proceedings shall be had in said cases, as are had in other cases on the equity side of the court, except that the answer of the defendant need not be under oath.” The 4th section defines the necessary qualifications of the bill of complaint, and the 9th section provides that when a decree shall be entered, the court shall make such order touching the alimony ot the wife, and care of the children, if there be any, as from the circumstances of the parties and the nature of the case, shall be reasonable;” and in the 11th section, it is enacted that “ the circuit court shall have power also to enforce the performance of any decree or order for alimony and maintenance, by sequestration of the defendant’s property, or by such other lawful ways and means as are according to the rules and practice of the court.”

Alimony is the allowance which a husband, by order of the court, pays to his wife being separate from him for her maintenance. Bishop on Marriage and Divorce, 549. This definition is substantially the same as that given by other American, and the English authorities, and may be said to be only applicable to divorces a mensa et thoro, because it presumes the relation of husband and wife still to exist, although the parties are separated by virtue of the decree of a competent court, and is peculiarly applicable to the divorces granted by the courts in England prior to.the year 1858, for in England, previous to that year, no judicial divorces, dissolving the bonds of matrimony originally valid, were allowed.

The allowance of alimony may be for the use of the' wife, either during the pendency of the suit, in which case it is called alimony pendente lite, or, after its termination, called permanent alimony. It has no common law existence as a separate inde- . pendent right, but wherever found it comes as an incident to a proceeding for some other purpose, as. for divorce ; no court in England having any jurisdiction to grant it, where it is the only thing sought. Bishop on Mm'riage and Divorce, 550, and the authorities cited.

As we have before suggested, we have been able to find but few adjudications upon a point similar to the one we are now considering. In the case of Shotwell vs. Shotwell, 1 Smedes & Marshall, Chancery Reports, page 51, and which is a case and application similar to the one before us, except that there had been a judicial decree of a competent court of the state of Mississippi, dissolving the bonds of matrimony, the chancellor says, “That a separate suit by bill or petition, may be maintained for alimony, after a decree for a divorce in which such claim was omitted, if there was no express act of the wife waiving her right thereto.” But this opinion of the chancellor was, we think, subsequently overruled by the supreme court of Mississippi, in the case of Lawson vs. Shotwell, 27 Miss. Rep., 631, (and which appears to be a branch of the case of Shotwell vs. Shotwell.) The supreme court, in alluding to the decree for divorce that had been granted, and its effect and operation, say, “The constitution authorizing the legislature to give the circuit courts ‘equity jurisdiction in all cases whereof the thing or amount in controversy does not exceed five hundred dollars; also in all cases of divorce and for the foreclosure of mortgages the legislature, by the act March 2, 1833, organizing the circuit courts among other things, declares in the language of the constitution, in defining the equity jurisdiction of those courts, that it shall extend to cases of divorce,” etc. The court further say, “The question then comes up for decision whether the law, by investing the courts with full power to decree a divorce, intended that the court might gó further and decree alimony, or an allowance fb the wife out of the husband’s property.” “The authorities on this subject, almost without exceptions, agree that alimony is allowed only as in incident to some other proceedings, which may be legally instituted by the wife against the husband as such, for instance, as an action for the restitution oí conjugal rights, divorce, etc.; in which cases temporary alimony is allowed pending the suit, and permanent alimony on rendering the final decree in a divorce case, in favor of the wife.” And the court again say that, “ Having-decided then, that the jurisdiction of the circuit court was full and complete in the divorce case, as to the matters now in controversy, at least so far as the claim for alimony is concerned, and the complainant having failed to ask a decree in this respect, the question is, whether the present bill shall he entertained by the superior court of chancery; while equity inclines, at the proper time and in the proper mode, to administer justice on a liberal scale, in favor of an injured wife, against a guilty husband, yet it can dispense with none of those statutory rules constituting part of the system, in her favor, any more than in the case oí a less favored party. Matters which appropriately belonged to the case in the.circuit court, and which might, by ordinary diligence, have been embraced in its decree, or final action, ought not, upon principles of policy, to be again litigated between the same parties in another court.” And the court, after saying that the bill cannot be entertained, say, We do not intend to intimate that there may not be cases in which an original bill, after a decree for a divorce, could not be maintained. A good reason must be alleged why the alimony was not at the proper time allowed. What will he a good reason, must depend upon the facts of the case when presented.”

Another case, to which our attention has been drawn by the counsel of Mrs. Bowman, is the case of Richardson vs. Wilson, 8 Yerger, 67. This is a peculiar case, and if the courts of Tennessee had the equitable jurisdiction to entertain it, (which we are to suppose from the decision they had) particularly addressed itself to their consideration. Wilson, the husband, presented to the legislature of Tennessee, a petition for divorce, without the knowledge of the wife, and the legislature passed an act divorcing the parties, which act contained a proviso: “ That nothing in this act shall deprive the said Mary Ann, of her right to alimony, if by law she is entitled to the same.” The wife brought her bill for alimony, and Wilson defended, armed as he supposed with the weapon he himself had pi’ocured from the legislature, but the court decided that it cut both ways, that while it cut him loose from the bonds of matrimony, it carved out of his estate a maintenance and support for her who had been his wife — intimating also, that even without the proviso to the act, the court would have maintained her right to alimony. Justice Pegs, (concurring with Chief Justice CateoN, who had delivered an opinion) in an opinion replete with interest, says: “ If the legislature have, while the act of 1J99 was in force, stepped in the place of judicial authority and granted the divorce, cannot the courts of justice take up the cause, exactly where the legislature left it, and make inquiry, as if the divorce had been then and there granted by the court.”

We are not advised what are the particular features of the act of 1199 of the state of Tennessee, -under which the court acted, so as to be able to compare it with the provisions of our statute, under which we are called to decide.

We have also been referred to the case of Fishlie vs. Fishlie, 1st Blackford, 360, as in point to strengthen the position that a bill for alimony as a separate claim cannot be maintained, but as we have not been able to procure the volume referred to, we can only refer to it, as wo find it alluded to approvingly by Mr. Bishop in his well considered work on marriage and divorce.

The only direct decision upon this point we’have been able to procure, made by the English courts since the passage of the act 20 and 21 Victoria, establishing a court for dower and matrimonial causes, is the case of Winstone vs. Winstone and Dyne, 3 Swabey & Tristam’s Reports, 245; and from the section of the law given in the opinion, it will be seen that it is like our statute, a law giving to a court jurisdiction in certain and specified cases. The case was a petition for permanent alimony after a decree for dissolution. The 32d section of the law by which the court acquired jurisdiction to decree alimony is: “ The court may, if it shall think fit, on any such decree (i. e. for dissolution of marriage) order that the husband shall, to the satisfaction of the court, secure to the wife, such gross sum of money or such annual sum of money, for any term not exceeding her own life, as, having regard to her fortune, if any, to the ability of the husband, and the conduct of the parties it shall deem reasonable.” After referring to the circumstances in the case, the judge ordinary says : “ This is a novel attempt with respect to permanent alimony,” “ any thing in the nature of permanent alimony in a case of dissolution of marriage is the creature of the 32d section of the divorce act. I cannot think that the 32d section intended that after a decree nisi oí dissolution obtained against the wife she should be at liberty to file her petition for alimony.”

Bishop, in his work on marriage and divorce, 553, 554, after referring to some of the courts that had maintained the chancery jurisdiction to grant alimony, says : The inherent jurisdiction to grant alimony is also acknowledged in Yirginia, Kentucky, in South Carolina and in Alabama,” referring to cases in ,thc>§e states. But he says, “these are exceptions to the general nulp, -and'v&e: partures likewise from principle. In some of the other states, the jurisdiction has been expressly denied, iíi somé others by '' necessary implication, and probably it coulchnot now be established in any state where it had not already been maintained,, though there is some strength of argument and'^some apparent weight of authority in favor of the jurisdiction.”

From the views thus given, and the authorities we have examined, we have come to the conclusion that alimony being an incident to the divorce, by the peculiar phraseology of our statute, the courts of this state can only so grant it, and that in connection with the decree, and that the circuit court has not jurisdiction to entertain a separate application for alimony.

We have arrived at this conclusion with some reluctance, for we would have preferred, if we could have done so consistently with our views of the law, to have favored the jurisdiction, that the complainant might have got the relief she asked; but we believe sbe is now without the remedy she might have availed * herself of at the time she was compelled by the conduct of her husband to leave him. In 1841, when she left her husband, the same law was in force that is in force now, and she could have availed herself of it, and got such relief as the law and the courts can give in such cases; she then had a right and a remedy to enforce her rightbut she thought proper to resort to a tribunal in her native state and it granted her all she asked — to be released from an unkind and adulterous husband, and to be restored to her maiden name.

But should we be mistaken in the view we have taken of this point in the case, there is another raised by the bill and demurrer, which we think would defeat the application.

The bill shows that the complainant was divorced by the legislature of Kentucky in 1843, and that in 1847, she married Benjamin H. Bowman, who died in 1854, and that she is now the widow of Bowman. In this state of facts, and taking the broadest definition of alimony, that it is that portion of the estate of the husband which the court allows to the wife, on her divorce from him, for her support and maintenance, can we say that she is now entitled to such support and maintenance? She is the widow of Bowman, and as such entitled to dower in his estate. If sire is entitled to alimony now, she would have been so in 1847, after her second marriage, and if suit had been brought in his life time, he must have joined his wife in such suit, and the second husband and his wife would prosecute the first husband for the maintenance and support of the wife. We do not suppose the law ever contemplated or would encourage such a proceeding.

By the contract of marriage the husband assumes the obligation to support his wife. It is his duty to do so, and the law will enforce the duty, and although the bonds of matrimony be dissolved, still if the wife claims it in proper time, and before the proper tribunal, the law will enforce her claim. But when the wife seeks a divorce a wmoulo, and marries again, she fixes upon the new husband the obligation to support her. If the complainant in this case bad presented her application for divorce and alimony under our statute, and she had been divorced and alimony assigned to her, and she had again married, we have no doubt it would have been in the power of the court that, granted the divorce and allowed the alimony, to have ordered its payment to cease ; and upon this point, the effect of a second marriage, we have the light of direct adjudication.

In this case of Albee vs. Wayman, 10 Grey, 222, a divorce a vinculo and alimony had been decreed. Mrs. Wayman married again, and in consequence of that marriage, the court say,' “the application for a divorce and alimony was her own affair, a voluntary act of hers, instituted for her benefit; so long as she remained unmarried, no ground existed for lessening the amount of such alimony, while of course it was open to her application for increase for good cause. By her act of subsequent marriage, she secured herself other resources for her support, and thus voluntarily furnished the ground for the reduction of the alimony and it was reduced to a nominal amount.

In the case of Fisher vs. Fisher, 2d Swabey & Tristam's Reports, 411, the court say: “If hereafter the petitioner” (who had petitioned for divorce and alimony) “should become guilty of immorality, it would be unreasonable to call upon the former husband to maintain her. Again, if she avails herself of the freedom conferred by the decree of this court, and marries again, it would be unreasonable to compel the former husband to support her.” And, again, in the case of Sidney vs. Sidney, 4, Swabey & Tristam’s Reports, 180, the same doctrine is announced.

These authorities we think to be in accordance with the law, with propriety and good sense; and we therefore hold, because of the second marriage, the complainant in this case is not entitled to have maintenance and support decreed to her from her first husband. And having disposed of the case upon the two points considered, we deem it unnecessary to consider or decide upon the others made by the demurrer.

The decree of the circuit court dismissing the bill is affirmed.


author: Mr. Chief Justice Walkek said:

text:
    Busby vs. Atkins.
    The case of Roane ys. Green & Wilson, ante, approved.

      Appeal from Jefferson Circuit Oou/rt.

    Hon. W. M. IIabRISON, Circuit Judge.
    Tele for appellant.
   Mr. Chief Justice Walkek said:

The questions of law presented for our consideration in this case, are substantially the same as those decided in the case of Julia Roane vs. Green & Wilson at the last term of this court; and that decision is decisive of the questions presented in this case.


author: Mr. Chief Justice WaleeR

text:
    Montgomery Adm’r. vs. Erwin.
    A valid release given to one of several trespassers, enures to the benefit of his eo-trespassers as fully as if directly given to them.
    It is error to assume, in the instructions to the jury, the existence of the facts in issue, (See 14: Ark., 29; 550; 16 id.. 593.)
    Where the infancy of a party is pleaded to avoid his act, and the infancy is denied and his affirmance of the act after arriving at mature age is averred, the court in instructing the jury that the act was binding upon the party, should add, if the jury find from the evidence that he was of age when the act was done, or affirmed it after he became of age.

      Error to Prairie Oireiñt Gowrt.

    Hon. Libeety Bartlett, Circuit Judge.
    Watkins & Bose and TurNer, for appellant.
    The proofs show that Semantha Edwards, whose negroes had been abducted, run off and sold by the appellee, refused to relinquish her right to the negroes; that she was illiterate, but the contents of the alleged release were not read or explained to her, and she evidently intended only to relieve the appellee from criminal liability; that the compromise (or whatever it be) was in fact made and executed by Fielding Price who received the entire consideration, and that Semantha Edwards was’an infant at the time of those transactions, and died before she was twenty-one years old.
    The verdict for defendant in the' court below was not only without but against evidence, and a new trial should have been granted. See authorities cited in brief for appellant in Allen ei, al. vs. Grider at this term.
    As to the rights of the infant Semantha Edwards, or of her representative upon this record, see Vaughan vs. Parr, 20 Ark., 600; and Harrod vs. Myers, 21 Ark., 592.
    In the second and third instructions given to the jury, for the defendant, the court • below, in the face of all the evidence and the issues, assumed as facts, that Semantha Edwards had executed what is called a release, when really it was not her act and deed —that it was binding on her, when in truth she received no consideration for it — that she was of age or had ratified the paper after attaining her majority, though all the testimony (there was none to the contrary) on that point, was that she died before coming of age. In all the cases, down to one decided within the last few days, wherever such instructions have come under the notice of the court, they have met with unqualified condemnation. Moyd vs. Picks, 14 Ark., 295; State Bank vs. MoGuvre,

      ib., 537; Bwrrvs. Williams, 20 Ark., 172; Armistead vs. Brooke, 18 Ark., 526.
    The title of plaintiff’s intestate, and conversion of the property by defendant were not questioned, and there was really no evidence to sustain any one of the seven pleas interposed.
    Clare, Williams & MartiN, for defendant.
    The instrument executed on the compromise with the Stracen-ers, is not only sufficient to exonerate them — the consideration being received, (1 Campbell 249; 4 Esp. Rep., 85,) but is a technical release under seal and imports a consideration upon its face, and when given to one joint trespasser releases all. Hasting vs. Dickerson, 7 Mass., 153; Snell vs. Sparrow, 16 ib., 24; Upham vs. Smith, 7 ib., 265; 2 Mar.. <& McJELen., 121; 8 J. R., 54; Franklin vs. Hutt, 7 J. J. Marsh., 358.
    A release of one of several joint debtors, or joint and several debtors, is a release of all. 14 Pick., 123; 17 Mass., 581. So where a sum of money is received from one of several joint trespassers, ancl a receipt given therefor in full of his trespass, this operates as a discharge of the other joint trespassers, and the action can no longer be maintained against either of them. Cilpatiiok vs. Hwnter, 11 Shep., 18; Snow vs. Chandler, 10 N. Hamp., 92; 2 Hen. ds Munf., 358; 18 J. R., 459.
    The evidence given to prove the infancy of plaintiff’s intestate, when properly sifted and compared with the circumstances stated, does not sustain the allegation of infancy.
   Mr. Chief Justice WaleeR

delivered the opinion of the court.

The plaintiff, as administrator, brought his action of trover against the defendant for two negroes. A verdict aiid judgment were rendered for the defendant. The plaintiff filed his motion for a new trial, which was overruled; exceptions taken, in which the evidence and instructions of the court are made part of the record.

The errors complained of, not embraced in the motion for a new trial, or waived by pleading over, will be considered as-abandoned.

The second ground assigned for a new trial is that tlie court erred in refusing to give the fourth instruction asked by the ¿plaintiff, and in giving the second and third instructions asked. for by the defendant. The objectionable part of the fourth in. struction was that the compromise with Michael Stracener for any injury he may have done plaintiff’s intestate, was no defence for the defendant, Erwin, in this action. Under the issue formed, we think the court properly refused to give this instruction. The defendant had plead in bar of the action that the plaintiff’s intestate had compromised with Michael and William Stracener, and that for a valuable consideration she had, by deed or bond, released all her right of action as to them. There was evidence tending to prove that these parties stood in the relation of co-trespassers with the defendant in taking the negroes under this issue and with these facts in evidence, if the defendant had succeeded in showing a valid release to the Straceners, his co-trespassers, such release would have enured to defendant’s benefit as fully as if given directly to him.

The second instruction given by the court at the instance of the defendant, was “that the release of Michael Stracener was a valid release of all parties claiming under him in regard to the matter so released.” It will readily be perceived that the court, in this instruction, declared the existence of the most material .matter in issue, that is, whether there was, or not,- a valid release. The defendant had pleaded a release; the plaintiff replied that his intestate was an infant, and was not for that reason bound by the release. The defendant rejoined, first, denying that plaintiff’s intestate was a minor; and second, that after plaintiff’s intestate arrived at mature age she had affirmed her deed, so made whilst an infant, whereby it became valid and binding upon her. This was a matter of fact to be found by the jury, and it was error for the court to declare the release a valid release. In Floyd vs. Ricks, 14 Ark. 29; State Bank vs. McGuire, id., 550; and Atkins vs. State, 16 Ark., 593, as well as in several later decisions, tbis court has held it to be error to assume tbe existence of facts which are in issue to be tried, in giving to the jury instructions.

The third instruction, when taken in connection with the second was also erroneous. The court had in the second instruction declared the release valid, and although it was true that if they should find that Stracener, to whom the release was given, and the defendant were co-trespassers in taking the negroes and running them off, the release of Stracener would enure to the benefit of the defendant, the instructions should have gone further and instructed the jury that in order to make the defence valid, they must also find from the evidence, that the plaintiff’s intestate was of age when the deed was made, or that after she became of age, she affirmed the deed of release made whilst a minor.

Several other questions in regard to the validity of the release have been argued by counsel, which would more properly have arisen upon demurrer to the pleadings, but which, under the issue formed, we deem unnecessary to notice.

Independent of the erroneous instructions given, in view of the whole of the evidence, we are of opinion that the jury not only decided in favor of the defendant against the weight of evidence, but without evidence.

TJnder the general issue there was no conflict of evidence as to the title of the plaintiff to the slaves, nor of the taking and conversion by the defendant. Under the first rejoinder the proof was upon the plaintiff: under the second, it was upon the defendant, who upon that issue offered no evidence whatever. But it appeared from the evidence of the plaintiff that his intestate was a minor when the deed was made, and died before she became of age.

let the judgment of the circuit court be reversed and the cause remanded for further proceedings.