author: Greoo, J. McClure, J.,

text:
    Tucker, recr., v. Yell, admr.

    Administration of estates — classification of claims. Tlie classification of claims made by the administrator is subject to the supervision of the probate court. That court is the proper authority to ultimately order the classification of claims.
    A claimant who files his demand with the probate clerk, subjects himself to the jurisdiction of the probate court, and is bound to take an appeal therefrom in due time.
    Final decree. A decree requiring a defendant in a chancery suit to pay-over money to the receiver appointed therein, is a final decree, and appealable.
    The decree of this court, in Crittenden, ex pande, 10 Ark., 833, that “a final decree is one that makes an end of the case, and decides the whole matter in controversy, costs and all, leaving nothing further for the court to do,” is too broad in its terms.
    In peculiar cases, this court may decree as to certain defendants or property, while all the equities as to other defendants and property are reserved for further consideration; and yet this decree, as to certain defendants or property, may be final.
    If, in the course of the proceedings, final decrees vital to the interests of any of the litigants are made, an appeal may be had.

      All judgments and decrees obtained against the deceased, during his lifetime, and which were capable of being liens on real property of the deceased, if he had any, whether liens were actually secured by them or not, belong to the third class of claims against the estate.
    Writ of certiorari. Where the probate court improperly' classifies a claim against an estate, and that error appears upon the face of the record, the writ of certiora/ri is the proper remedy.
    Where the record shows that the claim was a final decree, and the claim was duly certified, verified and allowed, and it appeared that no laches had intervened to bar its just claim of lien, and that it had been classed in the fourth class, error does appear on the face of the record, and the court issuing the writ may re-classify the claim.

      Appeal from Jefferson Circuit. Court.

    Hon. H. B. Morse, Circuit Judge.

      Clark, "Williams & Martin and "Watkins & Bose, for appellant.
    I. Under the circumstances of this case, certiorari was the proper remedy. Couch, ex parte, 14 Ark., 387; Lindsay, v. Lindley, 20 Ark., 581; Denton v. Boyd, 21 Ark., 264.
    II. The decree of the chancery court of Arkansas county was a final decree. Gerald’s Digest, title Chancery, secs. 125,182, 134,135,146,148.
    It is not necessary that the entire cause should be finally disposed of before an appeal can be taken on a branch of it. JSfichol v. Dunn, 25 Ark., 129; State v. Shall, admr., 28 Ark., 601; Trapnall, et al., v. Broionlee, 8 Ark., 207.
    The finality of a decree is not suspended by a reference to a master. Peayv. Bliss, in U. S. Ct. Ct., May T., 1869; op. by Caldwell, J.; Barnard, heirs v. Ashley, 18 Now., 43; 2 Danl. Chy., 1192; 1 Band., 421.
    III. The statute of non-claim is the only rule as to claims not barred by the statute of limitations, at the decease of the debtor. Walker v. Byers, 14 Ark., 246.
    Under our system of administration, all decrees, &c., which áre of the capacity to be liens on the realty of a deceased person, at the time of his death, constitute the third class of claims. Gould’s Digest, tit. Judgment and Decrees, secs. 4 and, 5; Chancery, sec. 134; Administration, sec. 99.
    The law made it the duty of the administrator to class this claim. Gould’s Digest, tit. Administration, see. 112. It was so classed; and the action of the probate court, in displacing that allowance and classification, -was illegal, and the proceeding should have been quashed in the circuit court.
    , Bell & Carleton, for appellee.
    There was no decree against Yell, either interlocutory or final; but the record shows an order nisi upon Yell, as an officer of the court, based upon an interlocutory application, pendente lite. 3 Dan. Ch. Prae., 1780 and, 1790.

      The order against Yell determines no right, and establishes no interest in any parties litigant in the suit, to the money in Yell’s hands. There is no feature of a final decree about it. Keatts v. Hector, 1 Ark., 391; Green v. Thomas, 8 Jr £.,56; Haynie v. McLemore, 12 Ark., 297; Price v. Notrebe, 17 Ark., 58.
    The writ of certiorari was not properly issued in this case, and the court, of its motion, at any stage of the proceedings, can quash it. Handle v. Williams, 18 Ark., 380. A writ of certiorari will not lie to corrrect errors in the proceedings of an inferior court, which could have been corrected on appeal. Alston, ex parte, 17 Ark., 580.
    Judgments and decrees are only liens on lands situate in the county where they were rendered.
   Greoo, J.

We find from the record, in this cause, that .on the 28th day of April, 1868, the appellant presented his petition to the judge of the second judicial circuit, for an order to the clerk of the circuit court of Arkansas . county, to issue a writ of c'ertiorari, directed to the clerk of the probate court of said county, commanding him to certify the l’ecords and proceedings in the matter between the parties above mentioned, and send the same up for the inspection and consideration of the circuit court; and also, that a citation be issued and served upon the said Annie P. Yell, as such administratrix, requiring her to appear before said circuit court, at the October term next thereafter, to show cause, if any she could, why such judgment and proceedings should not be quashed. Whereupon the judge, in vacation, made such order. The writs issued in obedience to the order, and being served, the parties there appeared, and the record was presented to the circuit court.

It appears from the record, so certified up, that after the death of James Yell, in 1867, the appellant, as a receiver in chancery in the case of Thomas Fletcher, as the administrator of the estate of Joseph W. Clay, deceased, complainant against Benjamin Twombly, and other defendants, on bill, and Benjamin Twombly, in his own right, andas administrator, &c., complainant, against James Yell, and others, defendants, on supplemental bill in the circuit court of. Arkansas county, in chancery, presented his claim against the estate of James Yell, then deceased,, for $11,900^°^, with interest at six per cent., from the 17th May, 1867, founded on a decree in the cause rendered on that day.

A duly certified copy of such decree was annexed to and made a part of the claim. The justness and non-payment of the claim was duly verified by the affidavit of the claimant, and said Benjamin Twombly, and was by the administratrix indorsed, “ exhibited and allowed as a claim of the third class;” but afterwards the probate court classed the same in the fourth class.

The order or decree of the Arkansas county chancery court is as follows:

“Thomas Fletcher, as the administrator of Joseph W. Clay, deceased, complainant, v. Benjamin Twombly, et al., defendant; bill in chancery; and Benjamin Twombly, in his own right, and as administrator, &c., v. James Yell, et al., defendant; on supplemental bill.

“ And now, on this day, on consideration of the application of said Benjamin Twombly, filed during the present term of this court, the same having been argued and submitted, and by the court taken under advisement, the court is of opinion that a receiver ought to be appointed herein, as prayed for in said application, and Sterling H. Tucker, Esq., of Little Rock, being suggested as a suitable person therefor, and no objections to such appointment being made, it is therefore ordered, adjudged and decreed, that the said Sterling II. Tucker be, and he is hereby, appointed receiver of the fund in this cause, and upon his taking the affidavit prescribed by the statute in such eases provided, and giving bond, with good and sufficient security, and which may be approved either by the judge or clerk of this court, in term time or in vacation, in the penal sum of twenty-five thousand dollars, in the form and condition prescribed by said statute, and upon such affidavit and bond being filed in the office of the clerk of this court, said receiver shall be deemed qualified as such; and, it appearing to the court that the said James Yell, commissioner to sell the land in controversy, in said original suit, has in his hands an admitted balance of eleven thousand nine hundred dollars and twenty cents, belonging to the said Benjamin Twombly and. other beneficiaries thereof, and without any security therefor; it is further ordered, adjudged and decreed, by the court here, that the said commissioner, James Yell, pay over to said receiver, when so qualified, forthwith, the said moneys so in bis hands; and that, on said commissioner being served with a duly certified copy of this order, and unless he shall pay over the said moneys to said receiver, within thirty days after being served, with such.copy, and on his failure so to do, said Benjamin .Twombly, or any other of said parties interested in said fund, may have leave, on ten days’ notice thereof in writing to the said James Yell, to make application to the judge of this court, in vacation, or to the court, in term time, for an attachment against the said James Yell, as for contempt in not obeying such order, unless the said James Yell, upon the hearing of such application, shall show good cause why such attachment should not issue.

“And as to the exceptions of the said Benjamin Twombly, to the report and account filed by said commissioner, it is further ordered that the same be referred to Nathaniel Edwards, Esq., who is hereby appointed master in chancery, for the purpose, with directions to take and state an account of the funds, in this cause, which have come to the hands of said commissioner,' upon the papers on file herein, and upon the testimony adduced, and upon the examination of any, or all of said parties, whom he may'summon before him for that purpose, at such time or times and place as he may appoint, such testimony and examination to be by him reduced to writing; and ascertain the amount of said fund which is, or ought to be, in the hands of such commissioner, and make report of the same, together with the evidence aforesaid, to this court, on or before the first day of the next term thereof.

“And it being suggested and shown that, since the last term of this court held, the said Martha R. Ellison, (born Twombly,) hath departed this life, intestate, leaving Ida Ellison, an infant, her only child and heir at law, and that the said Benjamin Twombly hath been, by the probate court of Jefferson county, appointed administrator of the estate of said Martha R., and guardian of the said Ida Ellison; it is further ordered, that this suit of interpleader abate, as to the said Martha R. Ellison, and that said Benjamin Twombly, as such administrator and guardian, and representing these interests, be allowed to prosecute, as complainant herein, and adopting his said supplemental bill, &c.; and it is further ordered, that this cause be continued until the next term of this court.”

The record further recites • that, at a regular term of the probate court of Jefferson county, &c., the following proceedings were had, to wit:

“ January 24,1868, Sterling H. Tucker, receiver, claimant, v. Estate of James Yell. Claim allowed..

“ On motion, it is ordered that said claimant be, and he is hereby, allowed against said estate the sum of eleven thousand nine hundred dollars and' twenty cents, as per transcript of decree herein filed, and placed in fourth class claims, to be paid accordingly.”

Upon the showing in the above record, it is insisted by the appellant that his claim was founded upon a final decree against the deceased, in his life-time, which was a lien, or had the capacity of being a lien, upon his lands, and was properly a third class claim against his estate; that it was approved, and so allowed by the administratrix, filed in the clerk’s office of the probate court, and that that court had no authority to change the classification made by the administratrix, accepted by him, and filed for confirmation and recording; and if the court had such power, it could not so adjudicate as to change the class of the claim from the agreement between the parties, without notice being given to the claimant; that these errors appear upon the record, and therefore certiorari was the proper writ, and that the order of classification should have been quashed.

The counsel for the estate of Yell insist that the decree of the chancery court of Arkansas county, was not a final decree; that it was but an order nisi, and created no lien against the lands of James- Yell, and was not a third class claim; that if it was a final decree, and such as would have been a lien on lands of Yell in Arkansas county, it was no lien on lands in Jefferson county, and there was' no showing that Yell owned lands in Arkansas county, and hence there was no lien, and the demand therefore a fourth class claim; that the probate court alone was authorized to class the same, and the presumption is, it was properly done, and, if that court erred, such error should have been corrected on appeal; that claimant had his demand presented in that court for classification, and it was his own laches if he did not prosecute an appeal, if aggrieved, by the action of that court; that the circuit court could not' look beyond the face of the record of the probate court, and, with legitimate presumptions in its favor, there was no sufficient error to quash that judgment, and hence the judgment of the circuit court should be affirmed.

Omitting, for the present, the first ground assumed by the demandant, his second is, that the claim had been allowed and classed by the administratrix, and that the probate court had no power to change that classification. Sec. 111, ch. 4, of Gould’s Digest, provides that “if the executor or administrator is satisfied that a claim, properly verified, is just, he shall indorse thereon his approval and allowance, and the time it was exhibited.” He is not therein required to class the demand, but he is required to note the time the approval is made, obviously to make evidence upon which the court can act in determining the class to which the claim belongs.

Section 118, of the same chapter, provides that “the clerk shall present the claims on file with him for classification, and a record shall be kept of the date of filing and the amount and class of the claimand, by section 115, “the order of the court, allowing and classing a claim, shall have the force and effect of a judgment.”

It is provided by section 112 that “the administrator shall class and keep a list of all demands, and present the same to the court with each annual account current.” It is evident to our minds that, by that section, he was only required to keep such list for settlement and distribution.

Section 116 provides that “no claim shall be presented to the probate court for allowance until after the executor shall have refused to allow and class the same; and in all such cases, if the claimant be allowed his claim by the court, he shall be entitled to his costs.”

Judge Scott, in the case of Cossitt v. Biscoe, 12 Ark., 99, says: “These duties are manifestly but to produce data for the action of the probate court, as to the allowance and classification.” We think it does not deprive the court of control over demands. Take our entire administration system together, and it seems quite clear that the probate court is the proper authority to ultimately order the classing and recording of demands. Such orders, when made, have the force and effect of a judgment. Dooley, et al., v. Watkins, 5 Ark., 705; McMorin, administrator, v. Overholt, 14 Ark., 245; Cossitt v. Biscoe, 12 Ark., 98. And certainly an administrator has no power to render a judgment, or to do an act that is equivalent to a judgment, against his intestate’s estate. Nor is the probate court compelled to act under his directions. That court is a guard against faithless administrators as well as fraudulent claimants. It is made the duty of the probate court to examine and correct all errors in the accounts of administrators before the same are approved. In some instances minors, or even creditors, have no protection to their property rights only such as is furnished by the court. It should exercise a general guardianship over all estates being administered. Should an administrator and claimant agree together to class.a demand, unjust in itself, or in an improper class, to the injury of distributees or the prejudice of creditors, whose peculiar service or vigilant prosecution of their claims entitles them to a preference, it would be the duty of the court of probate to reject such claim, or place the same in the class assigned it by law, regardless of the administrator’s wishes.

The claimant insists, in this case, that he was not before the probate court. Ve think he was. He set up the demand against the estate; he was the person invoking the consideration of the court between his claim and that of other creditors and' distributees of the estate, and had he not seen fit to move in that matter, no such cause would have been in that court. Having made and verified his claim, presented the same and filed it in the clerk’s office; having prepared his case for that probate court, (although the clerk is required to lay the claim before .the court for classification,) he, by law, was bound to know his demand would be for action before the court, and, if he saw fit to remain absent, the risk was upon himself.

The counsel for the estate is correct in assuming that if any error to the damage of the claimant has intervened in this case, relievable only by appeal, he must bear the loss by failing to pursue his remedy in its proper channel, after his institution of proceedings on his demand.

This brings us to the main question in this case: "Vty’as the decree of the Arkansas county chancery court final; and, if so, was the claim in the third class ?

Section 146, chapter 28, Gould’s Digest, provides that “if any person shall deem himself aggrieved by any final decision, order or decree, of any court exercising chancery jurisdiction, and if such person shall pray an appeal to the Supreme Court, during the term at which such decision, order or decree, is-made, such appeal shall be granted;” and hence counsel have referred us to various decisions on appeal that, by examination thereof, we might arrive at a correct conclusion as to the finality of this decree. Many of the definitions of final decree are quite loose and unsatisfactory, resulting mainly from the fact that such definitions were given in view of a specific state of facts then before the court, and not intended as a full exposition of the terms in an abstract sense. An exact definition, applicable to all cases possible to arise in practice, is not easily given.

Mr. Bouvier, in his Law Dictionary, says : “A final decree is that which finally disposes of the whole question, so that nothing further is left to adjudicate upon.”

In Haynie v. McLemore, 12 Ark., 393, Justice Scott says: “ A final decree is where nothing remains to be done by the court, between the parties remaining in court.”

Mr. Adams, in his Commentaries on the Law, as administered in the court of chancery, says: “A final decree, called a decree on further directions, or on the equity reserved,'disposes ultimately of the suit.” . Adam’s Eq. Pl., 375.

Chief Justiee Savage defines a final decree to be “ the last decree which is necessary to be entered to give to the parties the full and entire benefit of the judgment of the court.” See 7 Paige Ch. R., 19.

In the case of Crittenden, ex parte, 10 Ark., 339, Chief Justice Johnson says.: “A final decree is one that makes an end of the case, and decides the whole matter in controversy, costs and all, leaving nothing further for the court to do.”

This last definition, if not some of the others, is clearly too broad in terms, and seems to require a more absolute and complete disposition of all the matters before the court than can legitimately be claimed under our statute. This is made apparent by after decisions of our court, and adjudications of superior courts of other States.

In the ease of the State v. Shall, admr., et al., 23 Ark., 601, one defendant filed a plea; the court considered the plea; held it sufficient, and decreed that the bill be disihissed as to him. This court held that to be a final decree, although the merits of the case were not affected between others, and no decree between them was, for three years, rendered. Yet Shall was finally discharged, because an appeal as to him was not prosecuted upon the first decree. 23 Ark., 601. The case of Nichol v. Dunn, et al., 25 Ark., 129, is equally in point.

in 2 Daniels’ Chy. Pr., 1202, it is said: “ Although a general rule of the court is to make a complete decree upon all the points connected with the case, it frequently happens that the parties are so circumstanced that a decision upon all the points connected with their interests can not be pronounced until some future period,” &c.

Under the Kentucky statute, which is substantially the same as ours, in the case of McCown v. Delancy, et al., the Supreme Court of that State held there was no error in decreeing against a complaint in favor of some of the defendants and retaining the cause for further consideration as to another defendant. 2 Bibb, 441.

In Graham, et al., v. Hardin’s Executor, a decree was rendered foreclosing the equity of redemption in lands, and at a subset quent term of the court, in the same case, rendered a decree in personam against the defendant for the amount found due. It was held, on appeal, no question could be considered as to the foreclosure, because the first was a final decree, and no appeal was taken until the judgment was rendered in personam. 4 Dana, 559. And in Story v. Hawkins, et al., the court decreed, among other things, a sale of lands, in which decree a right to change or modify the decree at a subsequent term was reserved, held to be final as to the sale of the lands, but within the power of the court, and subject to be changed as to all other matters, at any subsequent term. 8 Dana, 13.

It is shown by such adjudications that in peculiar cases, and under special circumstances, the court may order or decree as to certain defendants or specific property, while all the equities as to other defendants, and important claims as to other property, are reserved for further consideration. Yet, as to the particular matter or party acted on, it may be a final determination.

From, a careful examination of our statutes, the above cases, and others of similar import, we are clearly of the opinion that it is not always absolutely required to dispose of the entire merits of a cause, and all the pax’ties before the coux’t, as a necessity to a final decree, upon cex'tain particular conceded or established rights, either in or springing out of the matters befox’e the court.

Axxd, while we hold that correct practice requires a chancery court to reserve the equities axising ixx the cause, as far as can be without maxiifest injustice, uxxtil the final hearing, and then dispose of the entire cause in one decx’ee ; yet we deem it but a question of pi’actice, and if manifest necessity requires such action, and in the course of the proceedings final decrees vital to the interests of the litigants are made, axx appeal may be had. A final order dismissing a bill as to one defendaixt, or directing the sale of cex’taiu property, or declaring a party subject to certain burdens, or directing a particular disposition of funds in court, may destroy some of the clearest, vital and most important rights of the complainant, yet' there may be other parties and other equities before the court, and the lower court has only exex’cised its judgmeixt, axxd thex’emedy must be by appealing to the superior court. And the ax-gument that other parties can not be stopped ixx the court below to await appellate action, or the assertion that a final decree is such only as makes an end of the cause, axxd disposes of the whole matter in eoxxtroversy, so nothixxg further is to be doxxe by the court, is xxo sufficient answer to the law allowiixg appeals from any final order or decree. Courts are ministers of justice. The object of the law is to protect the rights of persons, and we are slow to construe law so as to. cut off axxy important right of a suitor who is using all due diligence in making his defense or prosecuting his demaxxd.

The splitting up of cases, and producing such confusion and difficulty in practice, superior courts will condemn, and inferior courts avoid, as far as practicable; but, in the wide range of equity jurisdiction, subjects or parties may be so brought before the courts as to require more than one order or decree determining separate specific rights in the same controversy; and, if so,, we have found no authority holding such decree erroneous in law.

Yell admitted he had $11,900-3^ belonging to the original suitors, for which no security had been given; and it appeared to the court there was danger of that sum being lost to its owners. It was then competent and right for the court to make a final order requiring him to pay the amount to a receiver, in whose hands it could securely await further action of the court, and to enforce such order or decree by execution or attachment; and the fact that the original litigants claimed a larger amount, while Yell denied his liability over the $11,900-3^-, was no sufficient estoppel in law to compel the court to hazard the loss of so large a sum, until the final settlement of all matters between the parties; and, as to that sum, it was an adjudication between Yell and the owners of the funds, and if not reversed, on appeal, forever binding on him. It was a final decree, in the sense used in our statute.

Upon classification, section 134, chapter 28, Gould’s Digest, declares: “ All decrees for money shall be a lien on the lands and tenements of the party against whom the decree is entered, to the same extent and under the same limitations as a judgment at law.” Section 4, chapter 96, Gould’s Digest, provides that: “ Judgments and decrees rendered in the circuit courts shall be a lien upon the real estate of the person against whom they are rendered, situate in the County for which the court is held.” Section 5, chapter 96, ib., declares: “Liens shall commence on the day of i’endition of the judgment, and shall continue for three years, subject to be revived,” &c. Section 99, chapter 4, title “ Administration,” provides that: “ All demands against estates of deceased persons shall be divided into the following classes: 1. Funeral expenses; 2. Expenses of the last sickness, including wages of servants, medicine and medical attendance; 3. Judgments rendered against the deceased during his lifetime, and which are liens on the lands of the deceased, if lie died possessed of any, otherwise to be regarded as debts due by contract; 4. All demands, without regard to quality, which shall be exhibited to the executor or administrator, properly authenticated, within one year after the first granting of letters on the estate,” &c.

The language used by the Legislature, in declaring what claims shall come within the third class, is not as explicit as it might have been. It is quite clear that it was their' intention to give some judgments preference over other mere contract debts. They were evidently disposed to reward the vigilant, and to prefer such as had seen fit to prosecute claims to certain .judgment liens, and they did not intend to confine these favors to actual liens; if so, they would have gone no farther than to have said the judgments against the deceased in. his lifetime, and which were liens on his lands, shall compose the third class claims; but they say, “ if the deceased died possessed of any.” We can only understand from, this that they meant such judgments as might have been liens on lands ; that claims thus reduced to judgment are to have the preference, whether the deceased had lands or not.

Was it not to base this privileged class upon the judgment, and not upon the fact as to whether the debtor, at his death, had or'had not lands ? The right to that class was provided for those who would incur the expense and use the diligence to obtain a judgment in those superior courts, and to exclude those whose negligence had suffered their judgment liens to expire, or who had not sued upon their claims, or had gone no farther than to reduce their demands to judgments in an inferior court, such as a corpoi*ation or justice of the peace court. The law always aids the man who is energetic and vigilant in. the enforcement of his just demands, and his right to the higher class claim depends upon his own efforts, and the extent of aid he has obtained from the courts, and not upon the character and location of the property of the deceased. It is the capacity of the judgment held, and not the property owned by the deceased, that gives character to the claim; hence we are of opinion that the judgment and decree, as made by the Arkansas county chancery court, had the same force and effect in determining the class to which the claimant’s demand belonged, as it would had the record shown lands of the deceased in that county.

We know of no requirements of law bringing records or other sufficient information into the probate court, by which it could determine whether or not a deceased at his death was the owner of lands. We find provisions of law by which a widow can sue for dower, and bring before the court a claim upon lands, or, upon a failure of personal assets to pay debts, an administrator may, by petition-or suit, bring before that court evidence that the deceased owned lands, and ask that the same be sold to pay debts; but if no such proceedings arise, in the course of administration, and the class of claims depended upon the existence or non-existence of actual liens, the probate court would have no information or prescribed means of ascertaining the class of claims based upon circuit court judgments; and when the Legislature provided .no such information, and prescribed no mode for obtaining it, we must presume they did not intend that it should be had. On the other construction, that they intended the character of the judgment or decree to determine the class of the claim,'all requisite information is provided. If a claimant presents.his demand, based upon a judgment, the probate court, by inspection of the claim, can readily see if the same was rendered by a foreign court, by a justice of the peace, or other inferior court, or if by a circuit court; whether, from its date, the party has slept upon his rights until his lien is lost. Thus it is easily seen that, although the probate court knows nothing of the lands of the deceased, it can correctly determine the class of the demand. Finally, we find the facts set up in the petition for certiorari such as authorized the issuing of- the writ. Then, does the face of the record of the probate court, in this case, disclose error destructive to the interest of the claimant ?

That record shows that the claim presented is based upon a ■decree which we have determined -was final. The decree was presented to the court as a claim, and having been duly certified, verified and allowed, it offered the requisite and proper evidence to a just classification of the demand; and as it possessed all the characteristics of a judgment, capable of being a lien upon lands, and it appeared upon its face no laches had intervened to bar its just claim of lien, the probate court should have so determined, and classed the same in the third class of demands against the estate. And, as all these facts appear upon the face of the record, certiorari was a proper remedy, and the circuit court should have quashed the judgment of the probate court; and, for the error in refusing to do so, its judgment is reversed and this cause remanded, with direction to proceed according to this opinion.

McClure, J.,

dissenting, says;

I am of opinion that the decree, which was the basis of the claim in this ease, should have been classed as a third class claim by the probate court, but do not concur in the reasoning or argument presented, in relation to the power of the probate court to classify claims on its own motion.


source: Caselaw Access Project

author: Wilshire, C. J.

license: Public Domain

text:
    McQuistian v. State.
    Proof of vence. Where, upon appeal to this court, the record in a criminal case shows that the venue was not proven on the trial below, this court will reverse the judgment of conviction.

      Appeal from Benton Circuit Court.

    Hon. E. I). Ham, Circuit Judge.

      "Walker & Cullom, for appellant.
    Montgomery, Attorney General, for appellee.
   Wilshire, C. J.

At the March term of the Benton county circuit court,, James McQuistian was convicted and sentenced to imprisonment in the penitentiary for three years, upon an indictment for an assault with intent to commit a rape. The defendant moved the court "below for a new tidal, which motion the court overruled. The defendant excepted to the ruling of the court, and appealed to this court.

The motion of the defendant, in the court below, and the grounds upon which it was made for a new trial, does not appear in the transcript of the record. There appears only the statement that the motion was made. But, upon an examination of the whole record, we find, from the evidence brought up by the bill of exceptions, that the venue whs not proven, and, for this error of the proceedings in the court below, the judgment is reversed, and the cause remanded for further proceedings.


author: McClure, J.

text:
    Hardy v. Clendening.

      Replevin — instructions. In a replevin suit, it is proper for the court to refuse to instruct the jury as to the different forms of action which might have been brought by the plaintiff.
    What constitutes trespass. Any unlawful exercise of authority over the goods of another will support trespass, even though no force may be exerted.
    Trespass will lie against the purchaser, with notice, of the goods of a third person at a sale under execution.
    The doctrine of caveat emptor applies to such a purchaser.
    Costs oe suit. — When, in such a case, the owner of the goods recovers judgment in replevin against the purchaser, the latter must pay the costs.

      Appeal from Phillips Circuit Court.

    Hon. John E. Bennett, Circuit Judge.
    English, G-antt & English, for appellant.
    Replevin in the cepit will lie in any ease where there has been a tortious taking, either originally of by construction of law, by some act which makes the party a trespasser ah initio. It lies in any case where trespass de bonis asportatis will lie. Trapnall v. Hattier, 1 JEng. P.,21; Meny v. Heard, 1 Mason, 319.
    The owner may well bring replevin (in the cepit) against the purchaser, where his property has been sold under execution •against the third person. Dodd v. McCraio, 3 JEng. P., 83; Hicks v. Britt, 21 Ark., 423. This latter case was in the detinct, but the action on the facts would have lain in the cepit, beyond doubt.
    If a sheriff take the goods of B, under an execution against the goods of A, it seems that even the sheriff’s vendee is liable in trespass or replevin. 1 Chit. PL, 111; Thompson v. Button, 14 Johnson, 84; Overly v. McGee, 15 Ark., 461.
   McClure, J.

The defendant in this cause had a judgment against one W. N. Martin, upon which execution issued. The constable levied on a wagon, offered the same for sale, and sold it to Clendening, the plaintiff in execution. At the sale the defendant was notified that the wagon was not the property of "W. N. Martin, the defendant in execution, but that the same belonged to Mrs. L. A. Hardy, the plaintiff in this suit. After the sale, Mrs. Hardy brought an action of replevin, in the cepit, against •Clendening, for the wagon. Upon the writ of replevin, the wagon was taken from the defendant, ’ and delivered to the plaintiff. The defendant pleaded: 1. Non cepit;. to which issue was taken. 2. Property in the defendant; to which issue was taken by replication. 3. Property in "W. N. Martin ; to which issue was also taken by replication. The issues were submitted to the court, sitting as a jury. The evidence adduced shows conclusively that the wagon belonged to the plaintiff. The defendant introduced no evidence, and relied on the admission of the plaintiff, that the wagon was sold by an officer under an execution against W. N. Martin, and bought by defendant.

The plaintiff asked the court to declare the law applicable to the evidence to be as follows:

1. “ That, notwithstanding the property in controversy was taken and sold under an execution against a party other than the plaintiff in this suit, and at the sale under the execution was bought by the defendant, that fact does not constitute the defendant the owner of the property in question, as against the plaintiff, if the plaintiff was, at the time of the purchase by the defendant, the owner thereof, and had the right to the immediate possession thereof, for the law, by the purchase under the execution, confers no other right to the property purchased than that which belonged to the defendant in the execution under which he bought.”

2. “The plaintiff in this suit had her election to proceed by trespass for the property, or she could have waived the trespass, and could have sued in assumpsit for the value of the property in controversy, either against the defendant in this suit or the officer who took her property under the execution under which the defendant bought.”

3. The fact that the property in question was for a while in custodia legis, while it remained in the hands of the officer, under the execution under which defendant purchased, and, during that time, a replevin would not lie at the suit of the plaintiff in this suit, or any one else; yet, when he sold under the execution in his hands, under which defendant bought the property in question, the right of the plaintiff to sue the defendant at once attached, as soon as he bought under the exOeution in question; and she could either sue in trespass, replevin, detinue, trover, or, waiving the tort, might sue in assumpsit, for the value of the property in question.

The court refused to declare the law as moved by the plaintiff, and she excepted.

The second and third instructions of the plaintiff, were simply asking the court to ‘declare how many different forms of action the plaintiff’ could resort to, in cases of that kind, or of a similar nature. They were not pertinent to the case, and will receive no further consideration.

The court, at the request of the defendant, declared the law to be: “That replevin in the cepit lies only where there has been a tortious taking; that replevin in the cepit, only lies where trespass, de bonis aspoftatis, would lie; that the plea of non cepit puts in issue the unlawful taking.”

To this declaration of law the plaintiff excepted.

The court found in favor of the defendant, upon the issue to the plea of non cepit, and in favor of the plaintiff, on the issues to the other two pleas, and gave judgment that the plaintiff’ keep the property, and that defendant recover against the plaintiff all the costs of suit.

The plaintiff moved for a new trial; the court overruled the motion; the plaintiff excepted and appealed to this court. The appellant complains only of the judgment against her for costs.

The court, sitting as a jury, found that the property belonged to the plaintiff, at the time of the sale, but assumes, or seems to have assumed, that the purchase of the property at the constable’s sale, by the defendant, did not lay him liable to an action of trespass de bonis asportatis, and therefore hot to an action of replevin in the cepit. In this the court erpd, as any unlawful exercise of authority over the goods of another will support trespass, although there may not have been any exercise of force. An actual and forcible dispossession of the plaintiff need not bo shown. An ignoring and disregard of the plaintiff’s rights, to such an extent as compels her to seek redress at a legal forum, where the defendant was advised of the nature of those rights before he purchased, is all that is necessary for her to show. Gibbs v. Chase, 10 Mass., 125; Robinson v. Mansfield, 13 Pick., 130; Phillips v. Hall, 8 Wend., 610; Allen v. Crary, 10 Wend., 349; Fonda v. Van Horne, 15 Wend., 631; Noff v. Thompson, 8 Barb., 213.

The court held, in Noff v. Thompson, (8 Barb., 213,) thattres,pass or replevin in the eepit would lie against the purchaser of ..property not belonging to the defendant in execution, although no actual possession has been taken of the property by the •..purchaser.

Washington L. Martin testified that he attended at the place and time the wagon was advertised for sale, and, after the -constable had proclaimed said sale, he gave notice publicly that the wagon in question was not the property of W. N. Martin, the defendant in execution, but, on the contrary, was the property of Mrs. Hardy, the plaintiff in this suit.; that the defendant, Clendening, was present at the time he made this announcement, and must have heard his statement in respect ..to the title to said wagon before he purchased.

Thus, it appears that the defendant, if not duly notified that 'the property belonged to Mrs. Hardy, was, at least, cautioned to such an extent that the doctrine of caveat emptor would apply to him. He had a right to bid and buy at the sale, notwithstanding the notice; but, if the facts announced in respect toa want of title in’the defendant in execution should be established, equity and good conscience require that he should bear the burden of that proceeding.

He will not be allowed to come into court and plead that- he knew the property belonged to Mrs. Hardy, and defend the taking by saying that he purchased from a trespassing officer, when he had all the facts brought to his door that the constable was selling property belonging to another- party than the- defendant in execution.

The ignoring, of the plaintiff’s rights forced her into this action to 1‘ecover her property; she could not obtain it without resort, to the courts, and we regard the law well settled that, where one is forced into a court of justice to obtain redress, the party whose acts compelled the resort must pay the cost of the remedy.

Judgment reversed, and the cause remanded, to be proceeded with in accordance with this opinion.


text:
    Buerger v. Boyd.
    Landlord and tenant — liability for rent in ease of fire. Where the lessee takes an interest in the soil upon which the leased building stands, he will be held for the rent, even if the building should be burned down, unless he protects himself by stipulations in the lease; othenoise, if he simply leases the building, or a room in it.

      Appeal from Pulaski Circuit Court.

    Hon. John Whytock, Circuit Judge.
    Farr & Fletcher, for appellant.
    Wassell & Moore, for appellee.
   McClure, J.

Buerger leased Boyd’s house and lot for $125 per month, for three years; the house afterward burned down. The question now arises, is Buerger bound to pay rent after the destruction of the house by fire?

Boyd brought suit against Buerger for one month’s rent, ($125,) and for making a well frame, before a justice of the peace, for $131^,%. The justice rendered judgment in favor ■of Boyd for $34-^, and rendered judgment against him for ■cost. From this judgment, Boyd appealed to the circuit court •of Pulaski county. The cause came on for hearing in that court upon the following agreed state of facts, the same having been established by proof in the court below:

“On the 27th day of March, 1866, Boyd and Buerger signed a written agreement, whereby Boyd leased, for three years, to Buerger a house and lot known and designated as parts of lots eleven (11) and twelve, (12,) in block number thirty-four, (34,) in Little Rock, in which Buerger covenanted to pay Boyd rent, at the yearly rate of fifteen hundred dollars ($1,500) per annum, or one hundred and twenty-five dollars ($125) per month, payable monthly, in advance.”

. The covenant to pay rent was unconditional — no reservation as to fire Or any other casualty. Buerger entered on the premises, and occupied them several months, paid his rent up to February 6,1867; a new month commenced on the 7th day of February. On or about the night of the 13th of February, 1867, the house was destroyed by fire — not through the neglect or fault of either party.

The item for making the well frame is admitted at $615fr0Tr.

The circuit court rendered judgment against Buerger for flSl-j^jj-, and Buerger appeals to this court. It appears from the record, and the admission of the parties, that Buerger made an unconditional covenant to pay the rent,'making no reservation as to fire or any other casualty.

We understand the law to be that, where a lessee takes an interest in the soil upon which a building stands, and the building should be destroyed by fire, he will be held for the rent of the entire property, unless he stipulates against casualties.

If one simply leases the house or room, and acquires no control over or interest in the soil, and the building be destroyed, we understand the rule to be otherwise..

In this ease it is admitted that the lessee not only leased the house, but that he leased •“ part of lots eleven (11) and twelve, (12,) in block thirty-four, (34,) in Little Rock.” His lease covers the realty, and it can not be said that the estate, from which the rent was to issue, had ceased to exist.

The counsel for appellant urges that, to allow Boyd to recover rent for property destroyed by fire, “would be manifestly unjust, and repugnant to all sense of right and justice.” Graves v. Berdan, 26 N. Y., 502; Stow v. Russell, 36 Ill., 35.

Mr. Kent says: “The loss of the rent must fall either on the lessor or the lessee; that there is no more equity that the landlord should bear it than the tenant, when the tenant has engaged expressly to pay the rent, and when the landlord should bear the loss of the property destroyed. The calamity is mutual.” Kent’s Com., vol. 3, 584.

If a party voluntarily creates a charge upon himself, by neglect, default, or carelessness, when he might have provided against the casualty complained of by the exercise of ordinary business tact and prudence, he assumes the risk consequent to such neglect, and must reap the fruit of his own indolence without complaint.

The judgment of the circuit court is affirmed.


text:
    Fuller, et al., ex parte.

    Mandamus. The writ of mandamus can be granted only on the motion of the party aggrieved, or of the State when the public interests are affected.
    The petition of the party, other than the State, must show wherein he is aggrieved.
    Clark & Williams, for petitioners.
   McClure, J.

Section 519 of the Code declares that “the writ of mandamus, as treated of in this chapter, is an order of a court of competent and original jurisdiction, commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law, and Is granted on the. motion of the party aggrieved, or of the State, when the public interest is affected.”

It will be observed that the writ or order of mandamus is only granted “on the motion of the party aggrieved, or of the State, when the public interest is affected.”

The petition in this case does not allege any interest of the petitioners that would be promoted, or that their rights are in any degree diminished, by the omission to appoint commissioners to locate a site for county buildings. True, these petitioners say that “the county court have refused to appoint the commissioners,” but how this omission in any manner aggrieved, these parties, is not stated.. If they have not been “aggrieved” they are not entitled to the order. If they have been aggrieved they must state wherein. If it affects them as individuals, they must so state; because, if it is a matter “where the public interest is affected,” the writ can only be granted on the application of the State.

~Wq have refrained from expressing any opinion as to the jurisdiction -of this court in granting, a mandamus, in cases other than may be necessary to the proper exercise of a superintending control of and over inferior courts. The petition is not verified, or the matters recited in it in any manner corroborated, by transcript of the records of the county court.

The application is dismissed.


author: Harrison, J.

text:
    Edwards v. State.
    Change or venue. An application in due form for a change of venue in a capital case, made before the jury are sworn, and setting forth that the minds of the inhabitants of the district are so prejudiced against the defendant that a fair and impartial trial can not be had, the defendant becomes entitled to the change of venue as a matter of right.

      Indictment. An indictment for murder, alleging- that the prisoner “purposely, and of deliberate and premeditated malice,” gave the blow, &c., is defective.
    The words premeditated and aforethought are synonymous, but the omission of the term “feloniously,” is fatal.

      Appeal from, Sebastian Circuit Court.

    lion. A. A. Hargrove, Circuit Judge.
    Garland & Nash, for appellant.
    Montgomery, Attorney General, for appellee.
   Harrison, J.

Moses Edwards was indicted in the circuit court of Sebastian county, for the Fort Smith district, for ■ the murder of William Snipes.

After some of the jurors had been selected for the trial, but before any one of them had been sworn, he applied for a change of venue. His petition was verified by his affidavit, and the affidavit of another person, and assigned for cause that the minds of the inhabitants of the district were so prejudiced against him that a fair and impartial trial could not be had therein. The court refused to order the removal of the cause, and he was tried and convicted of murder in the first degree. He moved for a new trial and in arrest of judgment. His motion was overruled, and he appealed.

The first objection made by the appellant to the proceedings of the court below, is its refusal to allow the application for a change of venue.

His application appears to have been in strict conformity with the statute, and, when he brought himself within its requirements, he became entitled to the change as a matter of right, and it was the imperative duty of the court, without inquiry as to the truth of the cause assigned, or any consideration of expediency, to order the removal of the cause. Sections 132, 139, ch. 52, Digest; Brennan, et al., v. The People, 15 Ill., 511; Clark v. The People, 1 Scam., 117; Freleigh v. The State, 8 Mo., 606.

Appellant also insists that the indictment is defective, because it does not charge that the killing was done “feloniously” and “of malice aforethought.”

The indictment charges that the defendant, “purposely and of deliberate and premeditated malice,” made the assault and gave the mortal wound, and, in the conclusion, that he did, “purposely and of deliberate and premeditated malice, kill and murder the deceased.”

Premeditated and aforethought are synonymous; and premeditated malice- and malice aforethought are in sense and meaning the same; and either form of expression may, with, equal propriety, be used, and the indictment does, therefore, in fact, charge the offense to have been committed with malice aforethought. But the omission of the word “feloniously” is not supplied by any other, and the authorities, with scarcely an exception, agree that it is absolutely necessary, in charging a felony, to allege that the act was feloniously done. 1 Bishop Crim. Proceed., sec. 189; 1 Arch. Cr. Pr. and Pl., 288; 1 Stark. Cr. Pl., 76, 77; 1 East P. C., 346; 2 Hall, 184, 187; 4 Bea. Com., 307; Bacon’s Ab., I., (G.;) Respublica v. Honeyman, 2 Dall., 228; Williams v. The State, 8 Humph., 585; State v. Eldridge, 12 Ark., 608; Milan v. The State, 24 Ark., 346; Curtis v. The People, 1 Scam., 285; Curtis v. The People, 1 Breese, 197.

The objection to the indictment, because the offense is not charged to have been feloniously committed, is therefore well taken.

As the bill of exceptions fails to show whether the instruc•t-ions set out, asked by the defendant, were given or refused, and the only question which can be raised upon the motion for a new trial is,- as to the sufficiency of the evidence to warrant the conviction; and, inasmuch as the judgment must be reversed for the errors we have mentioned, we shall give the motion for a new Nial ho consideration. x

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


author: Bowen, J.

text:
    Warner v. State.
    Competency op witnesses. . Tlie rule of tire common law in criminal cases, respecting the competency of witnesses, has not been changed by the Code; and an infant, under ten years of age,, is admissible as a witness in a criminal case.

      Appeal from Pulaski Circuit Court.

    Hon. William Story, Circuit Judge.
    E. S. Gantt and Geo. E. Dodge, for appellant.
    Montgomery', Attorney General, for appellee.
   Bowen, J.

At the May term, A. D., 1869, of the Pulaski circuit court, the appellant, James Warner, was convicted, upon an indictment, for the murder of Johanna Stange, and sentenced to be hung on the 9th day of July, 1869. The bill of exceptions sets out the evidence and the motion for a new trial, and shows the overruling of such motion, and the exceptions taken to the ruling; also, that the prisoner’s counsel objected to allowing the witness for the prosecution, Minerva Stange, to testify, on the ground that she ivas an infant, under the age of ten years, to wit: nine years and eleven months old, and incompetent, as' a witness, under the Code; that such objection was, by the court, overruled, and that exceptions to such ruling were duly taken by the prisoner’s counsel.

"We- have, then, for consideration:

1. The admission of the evidence of Minerva Stange, over the objection of the appellant.

2. The overruling of the motion for a new trial, which was made upon the ground that the verdict of the jury was against the law and evidence.

The record shows that the witness, Minerva Stange, was nine years and eleven months old. Under the Code she would not have been a competent witness in a civil cause, but the rule of the common law, in criminal proceedings, in relation to the competency of witnesses, has not been changed by the Code, and the circuit court was correct in overruling the objection and permitting the witness to testify.

The consideration of the action of the circuit court, in overruling the appellant’s motion for a new trial, brings up for review the evidence in the case. The instructions of the court not appearing of record, we presume that no objection was made in regard to the law as expounded by the court.

It appears, from the evidence, that the deceased was found dead on the morning of the first day of August, A. D. 1868.-Dr. A. K. Hartman’s evidence discloses that she had received. three blows on the head with a sharp instrument- — one in the forehead and one behind each ear — either of which was a mortal wound.

The prisoner was seen, by John Dufte, at Mrs. Stange’s, the deceased, about seven o’clock on the evening before the morning on which the deceased’s body was found. Mrs. Stange then paid the prisoner about two dollars and forty-five cents, in money, out of a small box resembling a cigar box.

Q-. Hersch, a soldier, was at Mrs. Stange’s house, between eight and nine o’clock, on the evening of the 81st day of July. He' started to go away .about a quarter before nine; there were several soldiers, Mrs. Stange, and the child, Minerva Stange, in the house at the time. About ten minutes before thé witness started away, he was sitting outside the house, and saw the prisoner about forty or fifty yards off, in the bushes; he saw only liis face, and recognized the prisoner as the person he saw there.

Otto Miller, another soldier, was at Mrs. Stange’s the same evening, from about seven o’clock until about ten minutes before nine o’clock, and was the last one who left, leaving only Mrs. Stange and the child at the house when he left. As he was leaving, and after he had gone twenty or thirty yards, he heard a noise in the bushes, and, turning around, saw the prisoner come out of the bushes opposite the door, and pass over and enter the house. He had seen the prisoner once before, and recognized him as the person he thus saw. Mrs. Stange’s house was south of the arsenal, and it was about three-fourths of a mile from the house to the brick yard. Witness saw Mrs. Stange’s dead body the next day, lying about half-way between the house and: the brick yard.

James W. Vance, a'policeman, arrested the prisoner the next morning, and went with him to his (prisoner’s) residence. The prisoner denied having any money, but ■ finally said he had some, and showed witness where it was in a pillow — about twenty-one dollars — hut positively denied having any more.

In the mean time, a search warrant was brought, and, on proceeding to search the premises, about eighty-three dollars more were found in the prisoner’s bed, inside of the mattress, which the prisoner denied knowing anything about. Out of the money found, Gustave Stange, husband of the deceased, identified eight dollars as money which he had handed to his wife a few days previous.

John Agery saw the prisoner enter Bethel church the night of the murder, between nine and ten o’clock; witness left the church a short time before the meeting broke up; prisoner looked wild and scared, and witness remarked at the time that he would bet that Jim (the prisoner) had been stealing something.

Rev; John Peyton, who was conducting the exercises at the church, fixes the time .of their close at ten o’clock, and says that the residence of the prisoner was about one hundred yards from the church.

John Thomas, a witness for the defense, left the church with the prisoner a short time before the conclusion of the exercises; when near the prisoner’s house, the latter bid him good night, and went toward his residence. Witness did not go to' church with the prisoner., nor did he know how long he had been there ; did not see him when he entered the church.

John Peyton says: “ Services at the churclj. usually commence between seven and eight o’clock — nearer eight than seven.

Thomas, the witness, thought he had himself been at church less than one hour and a half.

There is other evidence in regard to various localities, some immaterial and some corroborative, which we will not specially allude to. The evidence of the child, Minerva Stange, nine years and eleven months old, whose answers show her to be a child of intelligence and truth, corroborated by that of Hersch and Miller, furnishes the solution of the whole matter. Prom her we learn that, soon after the .departure of Hersch and Miller, the prisoner entered the house and told Mrs. Stange that her husbatid had been sun struck; that he had been bathing his head, but it did no good ; that her husband wanted her and the child to come to the brick yard, and to bring the little blue box from behind the' counter, but did not say what was in it; that Mrs. Stange started with the prisoner, but told the little girl to remain at home, and that she would send her brother and the black woman to stay with her. Neither of them, however, came, and the child remained alone all night; that soon after her mother and the prisoner started she heard the drums at the arsenal.

We have carefully examined all the evidence, and considered the facts and circumstances.therefrom appearing.-

The prisoner left his home about seven o’clock, or soon after the cannon fired at the arsenal, on the night of the murder ; was seen by two witnesses, a few minutes before nine o’clock, near and at the house of Mrs. Stange. A portion of the money found at the house was identified by Mr. Stange, the husband of the deceased, as money handed by him to his wife. A few moments after the departure of Miller he was seen by him to enter the house where Mrs. Stange and the child Minerva were, at a time when no • other persons were there. He represented that Mr. Stange had been sun struck, and wanted Mrs. Stange and the child Minerva to come to the brick yard and to bring the blue box. Mrs. Stange left the child at the house, and started with the prisoner, a very few minutes before nine o’clock — the time the drums beat at the arsenal. Mrs. Stange was found dead half way from the house to -the brick yard; fragments of the blue box were found at the same spot, and only a.few dollars in money. Mrs. Stange must have had with her in all one hundred and forty dollars when she started, according to the evidence of Mr. Stange. The prisoner -appeared at Bethel church between nine and ten o’clock, a short time before the conclusion of the service, and left again before the congregation separated. His appearance was remarked at the time as wild and seared, and that he looked like he had been stealing something. The services concluded about ten o’clock, and he must have gone immediately and in haste from the scene of themurdertothechurch. His premeditated plan was, without a doubt, to kill both mother and child, the better to conceal his guilt, and the life of the latter was saved by the mysterious workings of the Providence of Almighty G-od. First, in suggesting to the mind of the mother to leave the •child at the house ; and, secondly, in its' operation upon the mind of the murderer after the commission of the deed, whose smitten conscience filled him with such a spirit of moral and physical cowardice that he could not return to kill a defenseless child, who, thus preserved, furnished the link which binds together the chain of facts and circumstances which,-thus strengthened and connected, drags him with a remorseless power to a doom from which, for him, there is no escape.

The judgment of the circuit court is in all things affirmed.


text:
    Brooks v. Moody.
    Covenant against incumbrances. — The covenant against incumbrances is broken immediately where there is an. outstanding mortgage on the demised premises.
    Equity pleading. — A supplemental answer and' cross-bill can not be filed without leave of the court; but the Chancellor does not possess discretionary power to deny a defendant the right to avail himself of a meritorious defense.
    Where the answer and cross-bill set up that the-.complainant is insolvent, (which allegation is not denied,) and that, at the time of the conveyance of the lands by complainant to defendant, the former represented that they were free from incumbrances, and covenanted against incumbrances, (which allegation is admitted,) the - defendant is entitled ■ to file his supplemental answer and cross-bill, alleging that at the same time there was an outstanding mortgage on the premises, which is being foreclosed upon the defendant, showing that he learned of this fact after filing his original answer and cross-bill'."

      Appeal from Pulaski Chancery Court.

    Hon. T. D. W. Yonley, Chancellor.
    Rice & Benjamin, for appellant.
    Clark, Williams & Martin, for appellee.
   Wilshire, C. J.

This was a bill filed, by Francis H. Moody, in the Pulaski chancery court, against William Brooks and J. B. Rogers, the object of which was to enforce a vendor’s lien upon'certain lands, sold and conveyed by Moody to Brooks, reserved in the deed of conveyance.

The facts, as appears from the transcript of’ the record, are briefly as follows:

Moody, on the 29th day of December, 1865',' sold to Brooks an undivided one-half interest in certain lands situated in Pulaski county, for the sum of $25,000, to be paid as follows: $1,000 paid down, upon the execution and delivery of the deed of conveyance by Moody to Brooks; $10,000 to be paid in sixty days; $9,000 in ninety days, and $5,000 in one year after the date of the sale; the first two of the deferred payments to bear interest at ten per cent, after due, and the last one at seven per cent, from date.

Upon the payment of the first one thousand dollars by Brooks, Moody and wife executed and delivered to him a deed in fee simple to the undivided half interest in the lands described in the deed, reserving a lien on the lands conveyed, .to secure the payment of the unpaid balance of the purchase money.

The first two of the deferred payments were paid by Brooks, but he refused to pay the last payment of $5,000, and Moody filed his bill to enforce his vendor’s lien reserved in the deed.

Rogers answered, disclaiming any interest in the land, and was thereupon discharged. Brooks answered, and set up as a defense that, at the time the lands were purchased, Moody represented that they were free from incumbrance, and that Moody and wife, by their deed, covenanted that they were •seized in the one undivided half interest in the lands described in their deed, “of an indefeasible estate in fee simple, free from all incumbrances,” &c.; and that the lands conveyed by Moody and wife to him were not free from all incumbrances, but that they were incumbered, together with the other undivided one-half of the described lands, belonging to one Peter Hanger, by a mortgage, executed by Moody and Hanger to Gordon N. Peay, as receiver of the Real Estate Bank of Arkansas, to secure the payment of the sum of $11,163, which they owed said bank for the purchase of said lands, and that, though the record of said mortgage showed that it had been paid off by Moody & Hanger, it had not, in fact, been legally paid -off and discharged, as a lien upon said lands, but had been paid in Arkansas war bonds, in the year 1862; that the receiver of said bank was not authorized to receive such bonds in payment of a debt due to said bank, and therefore the mortgage had not been legally paid off and discharged, &c. And Brooks, further answering, declared his willingness to pay the residue of the purchase money when the land should be cleared from its incumbrances, but averred his belief that he could not safely do so until then, as the complainant was in such failing circumstances that it would be impossible to make such sum out of him, if he' should now pay it, and the mortgage should finally be declared valid, and a subsisting incumbrance upon the land, and asked to have his answer taken as a cross-bill, &c.

The complainant replied to and answered the answer and cross-bill of the respondent, Brooks, :and admitted that he represented, at the time the sale was made, that the lands were free from incumbrances, and that he so covenanted with the respondent, but denied that the lands were incumbered at that time, in the manner alleged in the respondent’s answer, and concluded with a demurrer to the cross-matter - set up in the respondent’s answer.

Upon this state of pleading the cause was set down for hearing at the October term, 1867.

At the term of the chancery court, at which the cause was set to be heard, defendant, Brooks, asked leave to file a supplemental answer and cross-bill, and accompanied his application with an affidavit as to the merits of the defense sought to be. set up by him. The court below overruled the defendant’s application, and proceeded to hear the cause, and rendered a final decree against Brooks for $5,792, &c., &c. The defendant excepted to the ruling and. decree of the court, and appealed to this court.

The only question presented by the transcript of the record for our determination is, whether the court below erred in refusing to allow the appellant to file his supplemental answer and cross-bill at the time he applied to do so ?

The transcript does not contain a copy of the supplemental answer and cross-bill, sought to be filed by the appellant in the court below, and we can not look beyond the application and affidavit accompanying it,' to determine whether the defense sought to he set up by it was sufficient.

The appellant, by his application, states that he expected to show, by his supplemental answer and cross-bill, that the premises sold by the appellees to him, at the time of the sale, were, and are now, largely incumbered by a mortgage, executed by one Thomas Thorn, in the year 1840, to the Real Estate Bank of Arkansas, to' secure the said bank and the State of Arkansas, for bonds issued by said State to said bank, to the amount of seven thousand two hundred dollars, and that the State of Arkansas has already commenced a proceeding of foreclosure on said mortgage.

This application was accompanied with the affidavit of the appellant’s solicitor, M. W. Benjamin, Esq., who stated substantially that upon an examination made by him, since this cause was set for hearing, he found most of the land, conveyed by the appellee and wife to the appellant, was incumbered by the mortgage referred to in the appellant’s application, executed by Thomas Thorn to the Real Estate Bank, and that the State of Arkansas had instituted proceedings to foreclose said mortgage, &c.

It is insisted, by counsel for the appellee, that it was entirely a matter of discretion in the court whether the appellant be allowed to file his supplemental answer and cross-bill.

We think it is true that the defendant must have obtained leave of the court to file his supplemental answer and cross-bill, but the Chancellor, we think, does not possess the discretionary power of denying a defendant the right to avail himself of a meritorious defense.

It appears by the application of the appellant, and the affidavit of his solicitor, that he was not advised of the existence of the defense sought to be set up by the supplemental answer and cross-bill until after the cause was set down for hearing.

It is laid down as an established rule of equity pleading, that, where a fact which may be of advantage to a defendant has happened subsequent to his answer, it can not with propriety be put in issue by amending bis answer; but if it appears to the court, on the hearing, that it may be of advantage to a just and equitable determination of the rights of the parties, the proper way seems to be to order the cause to stand ■over until a new bill, in which the facts can be brought before the court, and to a hearing with the original suit. Story's Eq. Pl., sec. 903.

That learned author, on the subject of Equity Pleading, says that “ where new matter iii an account is discovered before the hearing, but after replication is filed, the court will permit a supplemental answer to be put in.” 1

The appellant alleged, in his original answer ' and cross-bill, his belief of the insolvency of the complainant, and that if' he should .now pay the balance of the purchase money, and the incumbrance alleged to be upon the land should be declared to be valid, &c., he could not collect the amount out of appellee .upon his covenants of warranty, &c. This allegation the complainant, by his replication and answer to the answer and cross-bill of the respondent, does not deny. The allegation of the appellant, in his original answer-and cross-bill, that the appellee; ¡.at the time of the. sale of the premises, represented to him that the lands were free from incumbrance, is admitted by the appellee to be true. This admitted fact, taken with the undenied allegation of the insolvency of the appéllee, we think, furnishes sufficient grounds to entitle the appellant to the defense sought to be set up by his supplemental answer 'and cross-bill; Vick. v. Percy, 7 Sneed & Marshall’s Rep., 268.

The defense sought to be interposed by the supplemental answer and cross-bill, as appears by the transcript of the record before us, was, that the premises conveyed to the appellant were incumbered by mortgage, and that the mortgagee was seeking to enforce that incumbrance by a foreclosure of the mortgage. The deed from Moody and wife to the appellant professes to convey the premises presently, and is absolute. It contains a covenant against incumbrances, and it purports to take effect immediately, and to convey the legal title to the estate.

The question then arises, was the covenant against incumbrances broken? It seems impossible to answer that question in the negative. If the mortgage of Thorn to the Real Estate IBank had been executed as stated by the appellant in his application, and was still outstanding and unpaid, the covenant of the appellees against incumbrances was broken immediately upon the delivery of the deed to the appellant, so far as the lands embraced in the deed were covered by the mortgage of Thorn. King v. Gibson, admr., 32 Ill., 348; Christy v. Ogle’s Exrs., 33 Ill., 295; Morgan v. Smith, et al., 11 Ill., 199.

And as it appears by the application of the appellant that proceedings had been instituted to foreclose that mortgage, and subject the lands to the payment of the money secured thereby, we think it was a good defense to be set up to the complain- ■ ant’s right to recover, and the coui’t below erred in overruling the appellant’s application for leave to file his supplemental answer and cross-bill.

The counsel for the appellee' insist, by argument, that the; mortgagé of Thorn to the Real Estate Bank had been foreclosed, and the lands sold and purchased by the bank, and that Moody acquired his title by purchase from the bank, and that the incumbrance created by the mortgage of Thorn had been removed by that foreclosure, and the title acquired by the bank had vested in Moody, by his purchase from the bank, &e.

The transcript of the record does not present such a state of facts, and the question of the effect of a foreclosure by the bank is not presented for determination by this court.

The decree of the court below is reversed, and the cause remanded, with directions that the defendant below be allowed to file his supplemental answer and cross-bill, and to be proceeded in according to law, and not inconsistent with this opinion.


author: Gregg, J.

text:
    Smith, et al., v. Graves.
    Replevin. In a replevin suit, the court properly refused to instruct that “if the proof satisfied the jury that the plaintiffs owned the horse on the first of January, 1864, and that the defendant took him about that time, they should find for the plaintiffs,” as there was no testimony tending to show any taking about that time.
    It was proper for the court to instruct that, “if the jury found that plaintiffs owned the horse about June, 1864, and that he was then taken by the defendant, they must find for the plaintiffs,” as there was testimony to show that the horse was taken about that time.
    In a replevin suit, to insure a recovery, it must be shown that all the plaintiffs owned the property, or were entitled to the possession thereof.
    Title shown to exist shortly before the suit raises a presumption of continued ownership.
    The orders of confederate officers did not justify the taking of property. It is no defense to a replevin suit that the defendant took the property from a citizen within the Federal lines, which the defendant seized as a Confederate soldier, and by command of his superior officer, who authorized him to retain the property as his own.

      Appeal from Phillips Circuit Court.

    Hon. James M. Hanks, Circuit Judge.
    Palmer & "Wygant, for appellant.
    The only question presented was whether the horse in question was a lawful prize of war ? It does not appear that defendant was sent into the Federal lines by order of his superior officer; or that he had any authority to take the horse for the use of the. Confederate authorities. But, even if it had been so, while the order of his. superior officer might protect the soldier from an action for trespass, the act complained of could not divest plaintiffs of their property. Hedges v. Michael, Court of Appeals of West Va., reported in 2 Am. Law JReviexo, 190; Yost v. Stout, 4 Cold., 205 ; Witherspoon v. Moody, ib.,
      605; Hawkins v. Nelson, 40 Ala., 553 ; Barnhill v. Phillips, 4 Cold., 1; Taylor v. Jenkins, 24 Ark., 337; Short v. Wilson, 2 Bush., 606. The citizen of a belligerent State is not necessarily a belligerent himself. To constitute him such, he must be engaged in the war himself. Plaintiffs were engaged in peaceful avocations, under the protection of their government, and defendant’s act was a private'trespass. Bassett v. Green, 2 Duvall, 560; Porter v. Botts, 2 Duvall, 365. As to what constitutes an individual a belligerent, see Hammond v. The State, 3 Cold., 129 ; Cochran v. Tucker, 3 Cold., 186.
    English, Gantt & English, for appellee.
    By the laws of war the horse was the subject of capture. The humanity and policy of modern times have abstained from the taking of private property, not liable to direct use in war. If the hostile power has an interest in the property, which is available to him for the purposes of war, that faet makes it, prima facie, a subject of capture. Wheat. Int. Law> (8th ed.,) 171.
    A private soldier of the rebel army may rely upon the belligerent rights awarded the late so-called Confederacy, as a defense in a civil suit for property taken according to the usages of war. Hughes v. Litsey, et al., Luaw Peg., vol. 5, 148.
   Gregg, J.

On the 27th of September, I860, the plaintiffs commenced their action of replevin, in the cepit, in the Phillips circuit court, against the defendant, for a sorrel horse. Service of process was had, and at the December term, 1865, of that court, the defendant appeared and filed four pleas: 1. Not guilty; 2. Non cepit; 3. That the horse was not the plaintiffs’, but that he was the defendant’s property; 4. That the horse was the defendant’s property, and not the property of the plaintiffs, and should be returned to the defendant. Upon which pleas issues were had; a jury was called; trial had; verdict and judgment for the defendant. Plaintiffs moved for a new trial, which was granted..

In June, 1866, the parties again appeared, and went to trial before a jury. The jury found for the defendant, and valued the horse at two hundred dollars, for which sum the court rendered judgment against the plaintiffs, who -then filed ¡their motion for a new trial; the defendant remitted $50 of the damages, and the court overruled the motion, to which ruling the plaintiffs excepted, tendered their bill of exceptions, and brought the case up by appeal.

The first and fourth pleas of the defendant might well have been stricken out, but plaintiffs joined issue upon each.

The plaintiffs proved title before and up to the time of the taking, and that they lost the horse from the woods or range near. Helena, from which place the defendant admitted he took the horse. The defendant offered to prove that the horse was taken within the Federal military lines;. that the plaintiffs were planters within such lines, and under Federal protection ; that the defendant was a Confederate soldier, under the command of Col, Dobbins, of the Confederate army, then on duty near said lines ■; and that, while on a scout with one or two other Confederates, ordered to look around the Federal lines, he entered within the lines and picked up the horse, took him to camp, and was told by Col. Dobbins to keep him and turn another horse or mule in the corral, and he did turn in the black mule that he had brought from home.

The plaintiffs objected to the introduction of such proof, but the court overruled their objection, .and allowed such evidence to be made, to which plaintiffs excepted.

Each party asked several instructions. The court refused to give any of the plaintiffs’ instructions, and gave all the defendant’s, to all of which the plaintiffs excepted.

Plaintiffs’first instruction was: “That if the proof satisfied the jury that plaintiffs owned the home on the first of January, 1864, and that defendant took him about that time, they should find for plaintiffs.” There was no testimony of any taking about that time, and the court might well have refused such instruction^

The next four instructions amount, in effect, to a charge that, if the jury find from the evidence that plaintiffs owned the horse about June, 1864, and that he was then taken by the defendant, they must find for the plaintiffs. These instructions, except some repetition, embodied sound law, and should have been given. Plaintiffs’ instructions, from six to ten inclusive, were to the effect, that, under the pleadings and proof in this case, the defendant could not justify his taking by reason of being a Confederate soldier; that the taking the horse from a citizen within the Federal lines, and delivering a mule to his superior Confederate officer for the privilege of keéping said horse, did not'invest the title of the horse in the defendant. The court also erred' in refusing to give these instructions.

The defendant’s first instruction was correctly given. His second was, “ that ownership in the spring of 1864 would not justify a recovery, without proof of ownership by all the plaintiffs at the bringing of the suit.” Title so recently before the taking would raise a presumption of continued ownership; and, if uneontradicted, as in this casé, would authorize a finding of that fact, and hence that instruction was calculated to mislead the jury, and ought not to have been given. The third, seventh and eighth instructions of the defendant were the opposite of the sixth, seventh, eighth, ninth and tenth instructions asked by the plaintiffs, and should'have been refused. Defendant’s fourth, fifth and sixth instructions may be considered rather abstract, but we see no valid objection to them.

The defendant rested upon a general denial of the allegation of taking, and of the right of property in himself. He made no cognizance,.plead no special plea, gave ho notice of matters “ which, if pleaded by avowry, cognizance or special plea, would have been a bar. to the action,.and which, under-; the statute, would have authorized him to give such- matters in evidence.” Under the practice at that time, and the well understood common law rule that the “ allegata et probata ” must correspond, he was not entitled to such proof. The plaintiffs were not required to meet questions in proof that had in no way been brought to their notice by any proceeding . before the court, and upon that ground the court ought .to have sustained the plaintiffs’- objection to the admission of such evidence; but such evidence should have been disallowed for the better reason that the facts, if formally averred and proved, would not have defeated the plaintiffs’ title or justified the defendant’s taking. See Hodges v. Michael, Court of Appeals, West Va.; Barnhill v. Phillips, 4 Cold., 1; Yost, et al., v. Stout, ib., 205; Witherspoon v. Moody, ib., 605; Hawkins v. Nelson, 40 Ala., 553; Witherspoon v. Moody, 5 Cold., 169; Beck v. Ingram, 1 Bush., 555; Terrell v. Rankin, 2 Bush., 453.

For these errors the judgment is reversed, and the case remanded, to be proceeded in according to law.


author: WlLSHIRE, J.

text:
    Jett, execx., v. Hempstead, execx.

    Attorney and client — statute of limitations. An action, can not be maintained against an attorney at law, or agent, for money collected by him as such, until after a demand and refusal to pay over.
    It is the duty of an attorney, or agent, who has collected money as such, to give notice of the fact to his client or principal within a reasonable time.
    Upon receiving such notice, the principal or client is bound to 'make demand within a reasonable time, and if he omits to do so, he puts the statute of limitations in motion.

    If the attorney neglects to notify his client, the 'latter may. maintain suit without previous demand.
    The statute will not commenee to run unless the client has notice by some means ; unless the attorney can show that the client could, by ordinary diligence, have known of the collection.
    The statute of limitations does not begin to run until there is a complete present cause of action.

      Appeal from Hempstead Circuit Court.

    Hon. George W. McCown, Circuit Judge.
    Gallagher & Newton, for appellant.
    Statutes of limitations are now favorably regarded by courts of justice as a means of suppressing litigation, &c. Hawkins v. Campbell, 1 Eng., 513.
    No trust relation existed in this' case. Denton v. Embury, 5 Eng., 228, where the decision was between attorney and client. Peay v. Singo, 22 Ark., 68.
    Appellee’s claim is barred by statute of non-claim, in not having been presented within two years after the death of Jett. 2 Eng., 78 ; 14 Ark., 237; 13 Ark., 507; 1 Eng., 14; 17 Ark., 533; 18 Ark., 334; 20 Ark., 79.
    Fay Hempstead and Garland & Nash, for appellee.
    The statute of limitations does not begin tq run against an agent or attorney until demand is made upon him. Taylor v. Spears, 3 Eng., 429; Denton v. Embury, 5 Eng., 233; Sevier v. Holliday, 2 Ark., 512; Taglor v. Sales, 5 Cow., 376 ; Sneed vHandley, Hempstead C. C. Sep., 660, and notes.

   WlLSHIRE, J.

This was a proceeding instituted in the probate court of Hempstead county, by Elizabeth Hempstead, as executrix of Samuel H. Hempstead, deceased, against Hester Jett, as executrix of Benjamin P. Jett, deceased, for the allowance and classification of a demand based upon a receipt of Benjamin P. .Jett, for certain collections placed in his hands by Samuel P. Hemp-stead.

The defendant, in the probate court, interposed the plea of statute of limitations, to which issue was joined, and the case submitted.Jo the court, which allowed the claim, and classed it in the fourth class of claims, for the sum of $50, with six per cent, interest from the 19th day of December, 1855, and the sum of $600, with interest at six per cent., from the first day of March, 1856, which, on appeal to the circuit court, was in all things affirmed.

The claim, was duly authenticated, and rejected by the executrix of Benjamin P. Jett, and the aid of the probate court invoked to obtain its allowance and classification.

On. .the trial the plaintiff filed the claim sought to be allowed, which appears in the transcript as follows:

“Benjamin P. Jett, to the estate of Samuel H. Hempstead^ Dr.

“ Por amount of iiote on -R. H. Winn for $50, 6 per cent, interest from 19'th December, 1855. ■

“ Amount of accepted draft on B. P. Ryburn for $600, 6 per cent, interest from March-1,1856.”

To which demand was attached a memorandum receipt as follows:

“ S. H. Hempstead has left with me, to be collected for his benefit, a . note on R. H. Winn for- $50, dated December 18, 1855, due ■ said Hempstead one day after date; also, the accepted draft of B. F; Ryburn for $600, on first day of March, 1856, payable to said Hempstead.

“Signed: - BENJ. P. JETT.”

The first question to be determined is that raised by the plea of the statute of limitations. It is admitted, by the agreed statement of - facts copied Into the transcript:

1. That Samuel H. Hempstead died in the year 1862.

2. That the plaintiff is executrix. ■■

3. That the signature to the receipt. is in the proper handwriting of B. P. Jett;

4. That a demand was made on the executrix of the will of Jett, for the' note or draft in said receipt specified, on or about the 4th or 5th day of May, 1866, before the claim was presented for allowance, and that neither said note or draft could' be found among Jett’s papers.

5. That Jett departed this life in 1865.

■6. That defendant is his executrix.

7. That Daniel R. Winn, a witness for the plaintiff, testified that he executed the note for $50, as specified in the receipt to said Hempstead, and that, some time in 1856, he paid the same to Jett.

8. That W. W. Andrews testified that he knew Ryburn; that he left the State for Texas in the year 1858 or 1859 ; that, before he left, he sent for him to settle up the business-between them; that Ryburn did so by giving a draft ón a house in New Orleans, and that said draft was paid, and, from information, he thought Ryburn dead.

The record does not disclose whether Jett was an attorney or a collecting agent; but it is evident that, by giving the receipt he did for the collection, he became the agent of Hemp-stead, for the purpose of collecting the note and draft received by him, and collecting a part of them, as is shown by the testimony of Winn, he so acted.

It is true the receipt bears no date; but, from the agreed statement of the parties as to the testimony, it appears that' Winn, sometime in the year 1856, paid to Jett the amount of the $50 note specified in the receipt, and from that fact the-conclusion is reasonable that the receipt was given by Jett prior to that payment.

The appellant insists that this action is for money had and received, and not on an instrument in writing.. We think- it is immaterial, so far as relates to the question of the statute of limitations in this case is concerned, whether the action was for money had and received, or was on an instrument of writing. It is well known, to every member of the legal profession, that the statute of limitations does not commence to-' run until there is a complete present cause of action; then it •only remains for us to determine when the cause of action in • this case accrued; when it was complete. An action may be said to have accrued when the plaintiff has a right to commence it. This court have heretofore held that an action can not be sustained against an attorney at law, and the same rule would apply to ah agent, for money collected by him for his ■clients, until after a special demand has been made by the Client, or some one duly authorized by- him to make the demand, and a refusal to pay over or remit, after instructions.: Cummins v. McLain & Badgett, 2 Ark., 412; Sevier v. Holliday, ib., 512; Palmer & Southmayed v. Ashley Ringo, 3 Ark., 75; Taylor v. Spears., 6 Ark., 381, and 8 Ark., 434; Warner v. Bridges, 6 Ark,, 385. This doctrine seems to be universally held by all the courts of this country. But it must be "borne in mind that it is in cases where the attorney has faithfully performed his duty, by giving his client timely notice of his action, &c.

If is the - duty 'of an attorney-or agent, who has collected money’ for ■ or on- account of his client of principal, to give notice within a reasonable time ’of the fact. Story on Agency, sec. 208. When the principal has received such notice, he is ■bound'to make demand of it within a reasonable time, and if he Omits to dó so, he1 puts the statute in motion; and when he suffers the time which it limits to expire, without bringing ■suit, is concluded by his laches.

But where-an attorney or agentp has collected money, and neglects to advise his client or principal of the fact, although his client or principal might maintain suit against him without demand, on the principle of his bad faith, the statute of limitations will' not commence to run until the client or principal has notice by some means that his attorney or agent has -collected the money, unless the attorney or agent shows affirmatively, by ’ satisfactory- evidence, that his Client or principal •could, by the exercise of ordinary diligence, have known that the money had been collected, and was in the’hands of the attorney or agent. And this, we think, is so, because the attorney; or agent, by concealing the fact of the collection, commits a fraud upon his client, or princip al; and in this view •of the case we are supported by the ease of Riddle v. Murphy, 7 S. and R., 235.

In the case of McDonald v. Potter, 8 Barr., 189, the court said: “The principle ruled in the case of the Harrisburg Bank v. Foster, 8 W., 16, applies here. As in that case, an attorney stands in a fiduciary character, and, before he can be permitted to avail himself of the defense, he must prove that he performed his duty, and his omission to do so amounts to such concealment of the state of the business as in contemplation of law is such a fraud as to deprive him of the protection of the statute, and makes' it necessary to prove payment of the debt, as in other cases.” The same principle is held in Jennings, et al., v. McConnel, et al., 17 Ill., 150.

The testimony of Winn shows that Jett collected of him, for Hempstead, some time in the year 1856, the amount of the note for $50, described in Jett’s receipt. There is no evidence that Jett, in his lifetime, or his executrix, since his death, gave any notice to Hempstead while living, or to his executrix since his death. Nor is there any testimony to show that Hemp-stead, while living, or that his executrix, might have obtained the knowledge of the collection being made by the use of ordinary diligence; and although we are of opinion that in such a case the attorney, if he would avail himself of the statute, is required to furnish proof of notice to his client; yet he may shield himself behind the statute, against a demand of long standing, by satisfactory evidence that his client could, by the use of ordinary diligence, have obtained the knowledge that the money had been collected, and was in the hands of his agent or attorney.

It follows, then, that the onus is thrown upon the defendant to prove that the plaintiff, or her testator, had notice of the collection, or that such information could have been had by the use of ordinary diligence by the plaintiff, or her testator. It may be said that it would be difficult in some cases for an attorney or agent to furnish the requisite evidence; but this is sufficiently answered in the case of McDonald v. Potter, which we quote with approbation. There the court said: “In some cases it may be, yet the cases in which an attorney of ordinary care will be exposed to any risk on that account, will be rare; and, at any rate, it is as easy to furnish affirmative proof, and as reasonable to require it, as to hold that the plaintiff shall be compelled to prove negatively that he was altogether uninformed of the receipt of the money.”

We have carefully examined the case of Denton’s Exrs. v. Embury & Young, 10 Ark., 228, and the authorities there cited, and fully concur in all of the opinion of .the court, except so much as puts the onus on the plaintiff of proving fraud, further than the fact is established by the evidence in the ease, that the defendant collected the money, and held it, without communicating the fact to the plaintiff, within reasonable time, or making effort to do so.

We are now brought to the merits of the case.

The testimony shows that Jett collected, some time in 1856, the note of Winn for $50, due December 19, 1855. There is no evidence that he collected the accepted draft for $600, specified in 'his receipt to Hempstead, nor does the transcript disclose evidence to show the failure to collect the draft was the result of negligence, or want of skill on the part of Jett.

We are of opinion that it was incumbent on the plaintiff to have shown, by competent evidence, that, by the exercise of reasonable diligence, the draft could have been collected; and, until such evidence was produced, the defendant was not called upon to prove that the draft could not have been collected by the exercise of reasonable diligence.

This doctrine has been held by this court in every case where the question has been presented. 2 Ark., 512; 3 Ark., 75; 11 Ark., 212.

We are of opinion that the evidence before the probate court was not sufficient to warrant the judgment of allowance of that part of the plaintiff’s demand based upon the acceptance of By-burn for $600, and' that the circuit court erred in affirming the judgment of the probate court; and for this error the judgment of the court below is reversed, and the cause remanded, to be proceeded in de novo. ■ ■


text:
    Russell, et al., v. Shute.
    Constitutional law — contracts for slaves. Where a judgment was rendered upon a note given upon the purchase of a slave, and the statutory judgment accrued upon the delivery bond before the adoption of the Constitution of 1868, the former judgment was satisfied by the latter before that Constitution was adopted, and neither judgment is within the inhibition of section 14, article 15.

      Appeal from Phillips Circuit Court.

    Hon. John E. Bennett, Circuit Judge.
    English, Gantt & English, for appellants.
    Garland & Nash, for appellee.
   Harrison, J.

The appellants, who were complainants in the court below, sought by their bill to enjoin proceedings on a judgment against them in favor of the appellee, on a forfeited delivery bond, upon the ground that its collection was within the inhibition of section 14, article 15, of the Constitution of the State.

The original judgment, which was on a note given for the purchase of a slave, was rendered against Osear F. Russell and Geo. W. Gray, on the 19th day of June, 1866, and the delivery bond, in which Lycurgus Cage, the other complainant, was the security, was returned forfeited, and the statutory judgment accrued thereon at the May term, 1867, and before the adoption of the present Constitution.

The court, rrpon demurrer, for want of equity, dismissed the bill.

The provision of the Constitution relied upon by the complainant, as inhibiting the collection of the judgment sought to be enjoined, reads as follows:

“All contracts for the sale or purchase of slaves are null and void, and no court of this State shall take cognizance of any suit founded on such contracts; nor shall any amount ever be collected or recovered on any judgment or decree which shall have been, or which hereafter may be, rendered on account of any such contract or obligation, on any pretext, legal or otherwise.”

The judgment upon the delivery bond had no connection whatever with the contract for the purchase of the slave. That was merged in and extinguished by the original judgment, and that judgment was satisfied and extinguished by this, upon the delivery bond; so that, at the time of the adoption of the Constitution, the judgment that had been rendered upon the contract for the purchase of the slave, had been satisfied, and no longer existed. Biscoe, et al., v. Sandefur, admr., et al., 14 Ark., 568; Phillips, et al., v. Wells, Pease & Co., ib., 595; Dougherty v. McDonald,, ib., 597; Cochran v. Jordan, 16 Ark., 625; Rector v. Harris, Norton & Co., 19 Ark., 265; Frazier v. McQueen, et al., 20 Ark., 68; Neale v. Jeter, ib., 98.

The grave question which may be raised, whether the provision of the State Constitution, above quoted, conflicts with that provision of the Constitution of the United States which prohibits the States from passing any law impairing the obligation of contracts, is not necessarily involved in the decision of the case, and we do not assume the responsibility of considering it.

The decree of the court below is affirmed.