author: English, C. J.

text:
    Weaver et al. vs. Carnall et al.
    •1. Pleading : Non est factum: Affidavit.

    "When a defendant, in his answer, directly denies the execution of the instrument sued on, and verifies the answer by his affidavit, there is no necessity for him to file an additional affidavit, denying its execution, as prescribed by seo. 2495 Gantt's Digest, in order to require the plaintiff to prove its execution.
    2. Agent : What he may delegate to another.

    An agent can not delegate any portion of his power requiring the exercise ..of judgment or discretion; otherwise, however, as to' powers or duties merely mechanical in their nature. And so, where A authorizes B to borrow money of 0 and sign his name to a note for it, and B borrows, the money, and, at his request, and in his presence, D signs A’s name to the note, thus, “A by D,” this is the act of the agent, and in legal effect the act of the principal, and not of D, who does the mere mechanical act of signing the name.

      APPEAL from Sebastian Circuit Court.
    Hon. J. H. Rogers, Circuit Judge.

      Sandels, for appellants.

      Du Val Cravens, contra.

   English, C. J.

This was an action on a promissory-note, brought in the circuit court of Sebastian county, Port Smith district, by William J. Weaver and Henry Pentzel, as administrators, with the will annexed, of George S. Birnie, deceased, against John Carnall and Thomas Lanigan.

The note sued on is as follows:

“ $500. Sixty days after date we jointly and severally promise to pay George S. Birnie, Esq., or order, five hundred dollars, for value received, with interest from date at’ the rate of one and one half per cent, per month.

“John Carnall,

“By W. B. Sutton, “Tiios. Lanigan.”

The complainant alleged, in substance, that defendants executed and delivered the note to George S. Birnie, who afterwards died, leaving a will, which was probated, and the persons named as his executors declining to qualify, plaintiffs were appointed by the probate court of Sebastian county, Port Smith district, administrators, with the will annexed. With the complaint was filed a copy of the note, and the original held subject to the order of the court, and inspection of defendants.

Lanigan pleaded bankruptcy, and was discharged.

Defendant, Carnall, filed an answer with two paragraphs. The court, on motion of plaintiff's, required him to elect between them, and he elected to rely on the first paragraph, which is as follows :

“Now comes the said defendant, John Carnall, and for answer to said complaint of said plaintiffs, saith that he did not make and deliver said promissory note, in said complaint of the plaintiffs set forth and described.”

. To the answer was attached the following affidavit:

“.The defendant, John Carnall, says that he believes the statements in the foregoing answer are true.”

Subscribed by affiant, and sworn to before a notary public.

The defendant did not make and file an affidavit denying the genuineness of the note sued on, as provided by sec. 2495 Gantt’s Digest (sec. 580 Civil Code).

Both parties announcing, themselves ready for tria), and a jury being impanneled, plaintiffs offered to read in evidence the note sued on, without proof of its execution, and, upon"the objection of the defendant, it was excluded by the court, and plaintiffs excepted.

Plaintiffs then read in evidence, without objection, the following letter :

“Hot Springs, Ark., October 1, 1873.

“Major Lanigan — Dear Sir: A letter of Mrs. Haynes’, of date sixteenth ult., and inclosed in one of your envelops, reached me here. Mrs. H. seems to me to be in distressed circumstances, and we 'must relieve her, if possible. I would like, if you will do so, to get $>500 from the bank, or from Mr. Geórge T. Birnie (to whom I am already indebted for many kindnesses), andT will sign a note with you for said amount, until we are in a condition^to make you title, when you can pay it. Perhaps Mr. B. would let us have it at 1J per cent., as the woman must actually be very needy. If you can not advance it (and I hardly suppose you can willingly spare it now), get it and inclose to me at Little Rock, or in letter to her at Helena, care Tappan & Horner, and write me of so doing. You are authorized tó sign my name to any such note.

“I believe that note for $200, for Miss Jennie S. Spring, is about due; don’t let it be protested. Very truly, yours,

“ John Carnall.

u I write Mrs. H. to-night.”

Plaintiff’ then introduced William B. Sutton as a witness, who testified, in substance, as follows:

“That he signed said Carnall’s name to said note, at the request of said Lanigan. Said Lanigan and Mr. Birnie being in the office of the store some thirty yards distant. Said Lanigan brought witness the draft of said note, with pen and ink, said he was going to sign it, that he had authority from said Carnall to sign his name thereto, ■ buff thought it would look better for witness to sign Cárn all’s as he would sign his own. That witness then and there, in the presence of said Lanigan, signed the name of said Carnall, and then said Lanigan signed it afterwards. That witness had no authority from said Carnall to sign said note; that witness and Lanigan were considered as partners at the time; that the money, he understood, was for private use; that it was not for the partnership business, and the money in no way went into the partnership business. Witness did not speak to Birnie upon the day the-note was signed.”

Plaintiffs then called Thomas Lanigan as a witness, who testified that he received the $500 from Mr. Birnie, and remitted it to Mrs. Haynes ; did not recollect informing Carnall thereof by letter; and did not know whether he ever told him that the money had been' sent to Mrs. Haynes'.

Plaintiffs then called defendant Carnall as a witness, who testified as follows:

“ That he, as agent and attorney for heirs of J P. Spring, sold to said Lanigan certain property in Fort Smith for a residence for $4,500; that $2,000 was paid in cash, and the remainder was to be paid when certain proceedings in court were had, so that title could be made of the interest of the minor heirs. That'before that could be done, and before the balance was due, one of the adult heirs, Mrs. Haynes, wrote to said Lanigan, urgently requesting him to advance her $500, because she was in great trouble, and said Lanigan referred. said letter to him (Carnall), then at Hot Springs. That he wrote at once to Lanigan the letter read in evidence. Got no letter from Mrs. Haynes that he recollected, and no information of said Lanigan that the money had been sent. Long afterwards, and just before he.made a deed to Lanigan (June, 1874), and Lanigan paid him balance due, $2,000, witness got information that the money had been sent Mrs. Haynes by said Lanigan. Witness had never seen the note to said Birnie before he settled with Lanigan, and understood Lanigan to say, on witness asking about if, that it was paid, and witness allowed it in settlement, and made deed to the property. Knew that he had gotten the money from Birnie, but did not know, or ask, if his (witness’) -name was signed to the note.

“ Supposed, previously, from what he wrote him, that Lanigan had signed it as attorney. Lid not know that Birnie had the note, with witness’ name to it, for years afterwards, and as soon as infoimed there was such a note, 'signed in such manner, by one not authorized, he utterly repudiated the same, and refused to "pay it. Had' never given any note at 1-|- per cent, pejr month to stand any length of time, and would not. Was under no obligations to Mrs. Haynes, and derived no benefit from the money whatever.

“ That he never, in any manner, nor at any time, ratified the execution of said note by Sutton. That after the agent of said Birnie spoke to him about it, and exhibited it to him, witness wrote to said Lanigan, then absent, bitterly reproaching him for not having settled the note, as he supposed he had.” w

Plaintiffs, after introducing the above evidence, again offered the note in evidence, and, on the objection of defendant, the court excluded it.

No further evidence being offered, the jury returned a verdict in favor of defendant, and judgment was entered discharging him.

Plaintiffs moved for a new trial on ,the ground that the court erred in excluding from the jury the promissory note sued on; the court overruled the motion, and they took a bill of exceptions, and appealed.

I. “Where a writing purporting to have been executed by one of the parties, is referred to and filed with a pleading, it may be’read as genuine against such party, unless he denies its genuineness by affidavit before the trial is begun.” Gantt’s Dig., sec. 2495; Civil Code, sec. 580.

Here the note was the foundation of the action, and it purported to have been executed by appellee.

It certainly does hot purport on its face to be the note of W. B. Sutton, who appears to have signed the note for appellee, and not for himself. Newman Plead. and Prac., pp. 138-9-40.

The original note was not filed with the complaint, as required by sec. 188 of the Civil Code, as originally adopted, if in the power of the party to produce it. But,'by an amendment of the Code, the plaintiff may file with his complaint a copy of the instrument sued on, as appellant did in this case. Gantt’s Dig., secs. 4599, 4600.

Now, where plaintiff files a copy, instead of the original, defendant may take a rule of court upon plaintiff’ to file the original before answering, or filing an affidavit disputing its genuineness. Nordman v. Craighead, Guardian, etc., 27 Ark., 369.

ipleadino:

S:esííffil davit‘

2. .agent:

mándeleGther*.0an~

Where the defendant in bjs answer directly denies the execution of the instrument sued on, and verifies the answer by his affidavit, we can see no necessity of his filing an additional affidavit, as prescribed by sec. 2491 of the Digest, above copied, in order to require the plaintiff’ to prove its execution.

II. It seems that appellee authorized Lanigan to borrow $500 of Birnie, and sign his name to a note therefor. Lanigan accordingly borrowed the money, and at his request, and in his presence, Sutton, his partner, signed appellee’s name-to the note. This was the act of the agent, and, in legal effect, the act of appellee, the principal, and not of Sutton, who did the mere mechanical act of signing appellee’s name to the note by request of Lanigan.

An agent can not delegate any portion of his power requiring the exercise of discretion or judgment; otherwise, however, as to powers or duties merely mechanical in their nature".

Hence, if empowered to bind his principal by an accommodation acceptance, he may direct another to write it, having first determined the propriety of the act himself; and it will bind the principal, though naming the delegate,’and not the one exercising the power. Commercial Bank of Lake Erie v. Norton et al., 1 Hill (N. Y.), 501.

In the cases cited the court said: “ But it is said the agent could not delegate the power to accept the drafts. This is not denied, nor did he do so. The bills came for acceptance, and'having, as agent, made up his- mind that they should be accepted, he directed Cochrane, the bookkeeper, to do the mechanical part — writing the acceptance across the bills. He was the mere amanuensis. Had anything like the trust, which is in its nature personal to an agent, a discretion, for instance, to accept what bills he pleased, been confided to Cochrane, his act would have been void. But to question it here would be to deny that the general agent of a mercantile firm could retain a carpenter to make a box, or a cooper to make a cask. The books go on the question whether the delegation be of discretion.”

So in Ellis v. Francis, 9 Georgia, 327, where a constable, a public agent, who could not delegate his authority, procured another person to make a return of nulla bona upon a fi.fa., in his presence, and’by his request, the return was held to be the act of the constable.

The court should have permitted the note'to be read in evidence to the jury, with the evidence conducing to prove its execution by appellee, and under proper instructions from the court, they should have returned a verdict upon all of the evidence.

The judgment must be reversed, and the cause remanded, with instructions to the court below to grant appellant a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Carter, Ad., vs. Engles.
    1. Claims Agatnst Estates: Erroneously allowed, no bar to sale of property for payment.

    The allowance and classification of a claim in the probate court has the force and effect of a judgment, and though erroneous, is conclusive as to all persons until reversed by a higher tribunal, or set aside in a direct proceeding for that purpose. Error in the allowance is no defense to an application for the sale of land for payment of the claim.

      2. Same: Allowance procured by fraud.

    If the allowance of a claim be procured by fraud between the creditor and administrator, there may be a remedy in equity for persons interested in . the estate.
    APPEAL from Independence Circuit Court.
    lion. Elisha Baxter, Special Judge.

      Hose, for appellant.

      Butler, contra.

   English, C. J.

On the twenty-fourth of August, 1877, James A. Carter, as administrator of the estate of Robert B. Engles, deceased, presented a petition to the probate court of Independence county, stating, in substance:

That no personal assets of said estate had ever been discovered by him, or come to his hands.

That there had been allowed against said estate, and classed in the fourth class, by said probate court, November 2, 1875, a claim in favor of Henry C. Smith, upon two promissory notes amounting to $259.93, to bear interest at 10 per cent., etc.

Also a claim in favor of said Smith, upon a judgment recovered before a justice of the peace, for $49.20, allowed and classed in the fifth class by said court on the sixth day of its then present term (August, 1877).

That the only assets in the hands of petitioner, as such administrator, for the payment of said debts, was the south half of the northwest quarter of section thirty-one, township thirteen north, range five west, situated in Independence county, containing eighty acres, more'or less, and duly appraised at $800.

Prayer for an order of court to sell said tract of land to pay said debts.

That due notice, by publication, had been given of the application, and proof of publication of said notice was attached to the petition.

On her application, Margaret Engles, widow of said Robert B. Engles, was made a party, and resisted the order of sale prayed for.

On a hearing, the probate court refused to make the order of sale, and Garter appealed to the circuit court.

The cause was tried anew in the circuit court.

On the trial plaintiff read in evidence an order of the probate court, made the twelfth of August, 1875, appointing him administrator of the estate of Robert B. Engles, deceased.

The order recites, in substance, that' Henry C. Smith, a creditor of the estate, made application to the court to appoint James A. Carter administrator, etc., and it appearing to the court that Robert B. Engles died intestate in Independence county, leaving property therein; that his widow and heirs had failed to apply for administration within the time prescribed by law; that Henry C. Smith was a creditor of the estate, and entitled by law .to have administration thereof; and that there never had been any actual administration thereof, it was, therefore, ordered and adjudged by the court, that said James A.^Carter be, and he was thereby, appointed administrator of said estate; whereupon Carter filed his bond as such administrator, in the sum of $1,000, conditioned as required by law, -with Henry C. Smith and John P. Clendenin as sureties, which was approved by the court,' and letters of administration upon said estate ordered to be issued to him.

Plaintiff also read in evidence the bond executed by him as such administrator under said order of the probate court, recorded the twelfth of August, 1875.

Also, the letters of administration issued to him by the clerk of the probate court, dated and recorded on the same day. ■ '

Plaintiff' also read in evidence the following judgment of the probate court, rendered November 20,1875 : . •

“Estate of Robert B. Engles, deceased. Now on this day comes James A. Carter as administrator of said estate, etc., and also come the widow and heirs at law of said deceased, by attorney, and the claim of Henry C. Smith, for $259.93, upon two certain promissory notes duly presented and allowed by the administrator, on the twelfth of August, 1875, was presented to the court, and after argument of counsel, the premises being seen and by the court fully understood : It is ordered and adjudged by the court that the said claim of Henry C. Smith be and the same is hereby allowed and classed in the fourth class of claims against said estate, and that said claim bear interest at the rate of 10 per cent, per annum from this date until paid; to which orde'r of the court in allowing and classifying said claim the widow and heirs of said deceased, by attorney, at the time excepted, and asked and obtained leave to file their bill of exceptions at any time during the present term of the court.”

Plaintiff’ also*read in 'evidence a judgment of the probate court, rendered August 11, 1877, as follows:

“M. A. "Ward and Lawson H. Ward, to use of Henry C. Smith, vs. Estate of Robert B. Engles, deceased.

¡Transcript of judgment.

“Now on this day was presented to the court the plaintiff’s demand against said estate, it being a transcript of a judgment against said deceased in his lifetime, before Henry Neill, a justice of the peace, on the eighth day of December, 1866, principal and interest to this date amounting to'$49.20, and having been examined and allowed by the administrator, on the eleventh, day of August, 1877, the same is now, by the court, examined, allowed and classed in the fifth class of claims against said estate.”

Which was all the evidence introduced on the part of the plaintiff.

Mrs. Engles was permitted to read in evidence, against the objection of plaintiff', a bond, purporting to have been executed by him as administrator of the estate of Robert B. Engles, deceased, with II. 0. Smith and John Bailey as sureties, bearing date the first of July, 1872, and filed for record on the same day.

Also, letters of administration purporting to have been issued to him upon the estate, dated same day (but not signed by the clerk), filed for record July 1, 1872, and duly recorded.

Also, an entry from the record of the probate court, dated September 23, 1872, as follows :

“Estate of Robert B. Engles.

“On this day was presented the bond of James A. Carter as administrator of said estate in the sum of three thousand dollars, with Henry' C. Smith and John Bailey as securities, which bond was examined and approved by the court.”

Also, an entry from the record of the probate court, dated August 12, 1875, as follows :

“In the matter of the estate of Robert B. Engles, deceased :

“Now on this day comes James A. Carter and filed and presented his petition^ showing that no assets of said estate had ever come to his hands, and that he had never given notice to creditors of entering upon the discharge of his duties as such administrator, and asking leave of the court to resign his said administration and be relieved from any further liability as such administrator, and the premises being seen and fully understood, it is ordered and adjudged by the court that the resignation of said James A. Carter as administrator of the estate of said Robert B. Engles, deceased, be,and the same is hereby accepted, and that he and his bondsmen are discharged from all further liability as such administrator or upon his bond.”

Which was all the evidence introduced by Mrs. Engles, and to the introduction of all which the plaintiff objected as impertinent and incompetent, but the court overruled the objection, a.nd plaintiff excepted.

Upon the evidence the court found “that the claims of Henry C. Smith, in the petition mentioned, against the estate of Robert B. Engles, deceased, were not legally presented against said estate, more than two years from the first grant of letters of administration to the said James A. Carter having elapsed before said claims were presented to said administrator for allowance, and more than two years having elapsed before said claims were allowed and classed against said estate; and was of opinion that the judgment of the probate court refusing to grant an order for the sale of the land in the petition mentioned should be affirmed ;” and judgment was accordingly rendered refusing the order of sale, and against plaintiff for costs, etc.

Plaintiff took a bill of exceptions and appealed to this court.

Putting the case in the strongest view of the facts disclosed by the record for appellee, let it be conceded, as insisted by the counsel, that appellant was duly appointed and qualified as administrator of Engles, on the first of July, 1872; that he continued to be such administrator until the twelfth of August, 1875, when he resigned, and on the same day w7as reappointed, and that the claims of Smith were barred by the statute of non-claim because not presented to appellant for allowance within ' two years from the first grant of letters, but were presented within the period of the bar from the record grant of letters, and allowed and classed by the probate court, and that it was an error in the court to allow7 the claims thus barred, yet we can not treat the judgments of allowance as null and void when collaterally brought before us in this proceeding.

The allowance and classification of a claim iu the probate court has the force and effect of a judgment, and may be pleaded as a former recovery in bar of an action upon the same cause of action in the circuit court. Dooly et al. v. Watkins, 5 Ark., 705.

In Cossitt et al. v. Biscoe, 12 Ark., 94, it was held that when the probate court had allowed and classed a claim at one term, it had no power, at a subsequent term, to set aside its judgment, and place the claim in a different class. That the allowance and classification of a claim was a judicial and not a ministerial act.

In Montgomery et al. v. Johnson et al., 31 Ark., 83, Mr. Justice-Harrison forcibly and clearly formulated the previous decisions of the court,in saying:

“ The administration of the estates of deceased persons, is committed to the jurisdiction of the courts of probate, and upon the grant of letters testamentary, or of administration, the court acquires jurisdiction of the estate and proceeds in rent.

As a superior court, with general jurisdiction and plenai’y power over the matters committed to its peculiar cognizance, its judgment or order, when acting within the sphere of its jurisdiction, however erroneous it may be, is conclusive as to all persons, until reversed upon review by a higher tribunal or set aside in a direct proceeding for that purpose; for it is well settled that the judicial sentence of a superior court of competent jurisdiction over the subject-matter to which it relates, can not be attacked or impeached in a collateral proceeding, upon the ground that the court erroneously exercised its powers.”

The probate court had jurisdiction of the claims of Smith against the estate of Engles, with power to allow or reject them, and if.the claims were barred by the statute of non-claim, which is but °a statute of limitations, it was an error in the court to allow them, which might have been corrected on appeal, but the judgments of allowance are not void for such errors.

If the judgments were obtained by fraud and collusion between the creditor and the administrator, there may be a remedy in equity, for persons interested in the estate. Ragsdale et al. v. Stuart et al., 8 Ark., 268.

The court below ei’red in admitting the evidence introduced by appellee to prove that the claims were barred, etc.

Reversed and remanded for further proceedings.


author: Harrison, J.

text:
    Guy, McClellan & Co. vs. Walker & Johnson.
    Appeal from Justicb of the Peace : Justice compelled to perfect record. If a justice of tlie peace omits to sign his name .to the jurat to an affidavit for an appeal to the circuit court, he maybe compelled to sign it by rule of court.

      APPEAL from Franklin Circuit Court.
    Hon. W. L). Jaooway, Circuit Judge.

      Feilder, for appellant.
    Mansfield, contra.

   Harrison, J.

Guy, McClellan & Co. brought an action of replevin against Walker, Johnson & Co., before a justice of the peace for five bales of cotton. No return to the order of delivery was made by the constable, and it does not appear that the cotton was delivered to the plaintiffs, or ever taken from defendants; but the defendants, upon the trial, recovered judgment against the plaintiffs for $198.43.

The plaintiff's prayed an appeal. The defendants moved, in the circuit court, to dismiss the appeal, upon the ground that no affidavit for an appeal had been made. The only paper, in any wise purporting to be such an affidavit, wras the following:

u Guy, McClellan & Co., plaintiffs,^ vs. Walker, Johnson & Co., defendants.

“ We, Guy, McClellan & Co., do solemnly swear that the appeal taken by us in the above entitled cause is not taken for the purpose of delay, but that justice may be done.

“ Guy, McClellan '& Co.,

“ Poston.”

“ Sworn and subscribed béfore me, this the.twenly-fourth day of May, 1878.”

The court dismissed the appeal, and the plaintiff's appealed to this court.

Appeal fromJ P.:

Justice compelí e d to perfect record.

If the oath was in fact made, and the justice or officer administering it, omitted to sign the jurat, he might have been, at the instance of the plaintiffs, if the paper was otherwise sufficient as an affidavit, compelled to sign it, by a rule.of the court against him; but that was not done, and, without the signature of the officer, there was no authentication of the fact that the declaration contained in the paper was made under oath.

But if the signature had been attached, we¿ doubt if the paper could, by the most liberal construction, be held to be the affidavit of any one.

Other gross irregularities appear in the case, which need not be stated.

The court did not err in dismissing the appeal.

Affirmed.


text:
    Ullery vs. Town of Fort Smith.
    1. Circuit Courts : Jurisdiction in appeals from corporation courts.

    Circuit courts have jurisdiction in appeals from, corporation courts in botli civil and criminal cases.
    2. Criminal Pleading: Summons against sureties in appeal cases.

    The statute {sec. 1743 Gantt’s Digest) requiring a summons to issue against the surety of an appellant in a criminal case, does not contemplate a proceeding by scire facias, but intends that the record and proceedings in the case ag inst the principal shall be considered as the complaint or statement of facts constituting the cause of action.
    APPEAL from Sebastian Circuit Court.
    Hon. J. H. Rogers, Circuit Judge.

      Du Val Cravens, for appellant.

      Glendenin, contra.

   Harrison, J.

One Charlotte York, alias Annie Jones, was tried before the mayor of Eort Smith for a violations of an ordinance of the town, and was convicted and fined five dollars. Ske appealed to the circuit court, and James G. TJllery, as her surety, covenanted, in case of an affirmance, to pay the costs of the appeal, and also to pay the judgment which should be rendered against her. She was convicted again and fined fifteen dollars, and an execution having been issued on the judgment in one year from its rendition, and been returned unsatisfied, a summons was issued against the said Ullery upon his covenants. The summons was as follows:

“ The State oe Arkansas,

Sebastian County.

“ To the Sheriff of Sebastian County :

“You are commanded to summon James G. TJllery to appear in the Sebastian circuit court for the Eort Smith district on the first day of its next July term, which will be on the twenty-ninth day of July, 1878, and show cause why judgment should not be entered against him for fifty-nine dollars and ten cents, on account of his covenants to pay the judgment of the court rendered against Charlotte York, alias Annie Jones, on her appeal to the Sebastian circuit court for the Fort Smith district, from the judgment rendered by M. IT. Sandels, mayor of the town of Eort Smith, against her for fine of five dollars and costs.

“Witness my hand and official seal, this twentieth day of April, 1878.

“ [Seal.] John H. McClure, Clerk.”

TJllery filed, in defense, an answer in the nature of a demurrer, in which he objected: First, that the court had no jurisdiction of the cause; and second, that the summons did not state facts sufficient to constitute a cause of action.

Courts?dit

jurisdiction in apooarpor™ tion courts

2 Criminal Pleading:

Summons sureties in

The court overruled the objections, and rendered judgment against him in favor of the town for the sum mentioned in the summons. He appealed to this court.

Circuit courts have jurisdiction in appeals from corporation courts, and in both civil and criminal cases. Constitution, Art. VII, sec. 14, Act of December 16, 1874, amendatory of sec. 2101 of Gantt's Digest.

And the summons in eases like this is not, as is contended for the appellant, the same as a scire facias, serving the purpose of both complaint and writ, and setting forth, as a complaint, the facts constituting the cause of action.

Sec. 45 of the Act of March 9, 1876, for the incorporation, organization and government of municipal corporations, says: Appeals shall he taken from the mayor’s court to the circuit court in the same manner as appeals are taken from justices of the peace. .

It is required by sec. 2104, Gantt’s Digest, that when a defendant appeals from a judgment of a justice of the peace in a criminal case, he shall cause to be executed by a good surety a covenant to pay the costs of the appeal in the event-of the affirmance of the judgment; and if he desires to suspend the collection of the judgment, a further covenant to pay the judgment which may be rendered against him on the appeal.

If, upon a trial anew in the circuit court, judgment is rendered against the defendant, and an execution is issued thereon against him in one year thereafter, and is returned unsatisfied, a summons may be issued against the surety, to show cause why judgment should not be rendered against him on his covenants, which summons is to be directed, delivered, served and returned as an ordinary summons, and the cause is to be tried as an ordinary civil action.

The statute evidently does not contemplate á proceeding by scire facias, but intends that the record and proceedings in the case against the principal shall be taken and considered as the complaint or statement of .the facts constituting the cause of action.

The statute was strictly followed, and the judgment of the court below is affirmed.


author: Eakin, J.

text:
    Marks vs. McGehee.
    1. Replevin : Jtidgment in for mortgaged property.

    The circuit court should not order a sale of the mortgaged property recovered by a mortgagee in an action of replevin.
    2. Usury: Mortgage or note containing, void in toto. Not cured by crediting the usury.

    A mortgage or note in part usurious is void in toto; but a valid debt included in the note stands upon its original merits.
    A mortgage given to, secure a usurious note can not be validated by crediting the note with the amount of the usury.
    APPEAL from Dorsey Circuit Court.
    Hon. Met L. Jones, Special Judge.
    JRousseau, for appellant.

      Elliott, contra. .
   Eakin, J.

This is an action of replevin, brought by Mrs.- McGehee. a sole trader, against Marks, to obtain possession, after default, of personal property, mortgaged to her by the latter, with power of sale, to secure the payment of a note for $253, dated March 15, 1878, and clue the first of November following; and also to secure subsequent advancements to the extent of $100. The complaint sets-forth the terms of the mortgage, and a description of the property. There was an order for delivery, and defendant gave bond to retain.

IReplevin:

Judgment in for mortgaged property.

2. ‘Usury:

Mortgage or note containing.

The answer set up usury in the note and in the contract, for future advances, which were largely in money.

The cause was tried by the court sitting as a jury. His-Honor found as facts that the note was usurious, but the account was not; and adding to the account some preexisting indebtedness included in the note, found due the plaintiff, on the mortgage, the sum of $196.09.

Judgment was rendered in favor of plaintiff for possession of the mortgaged property, which she was directed to sell according to the terms of the mortgage for the amount so found due. A motion for a new trial was overruled and an appeal taken.

As a matter of practice, no order of sale should have been made. ■ The action was simply to enforce plaintiff’s right to take possession, under the terms of the mortgage. If that had been valid, and any part of the debt had remained unpaid, the court should simply have put plaintiff' in possession, which she would have then held under the mortgage and her sale would have been in pais, and not as commissioner of the court. There was no prayer for foreclosure, nor could be any in an action of replevin. If she had afterwards abused the possession, or refused to allow defendant to redeem, the latter would have had a remedy in chancery.

The meritorious question presented, concerns the validity of the mortgage. The evidence shows that the note was usurious, and that the execution of it and the mortgage were on the same day, anl all making one transaction, with the agreement for further advances. Non con-stat that plaintiff would have agreed to the advances,, but for the execution of the note and mortgage. The circuit judge endeavored by his findings and rulings to separate the note from the account; and the former debt, included in the note, from the new and usurious part, and seems to have considered that the mortgage might stand for such parts of the indebtedness as could be distinguished from those that were usurious.

Void ire toto.

Not cared by erediti n g the usury.

The statute is very broad and imperative. After prescribing the maximum per eentage of interest, it proceeds (see p. 146, acts of ’74-5): ‘All bonds, bills, notes, assurances; conveyances, and all other contracts or securities whatever, whereupon or whereby there shall be reserved, taken or secured, or agreed to be taken or reserved any greater sum or greater value for the loan or forbearance of any money, goods, things in action, or any other valuable thing than is prescribed in this act, shall be void.”

The note itself was avoided in toto, notwithstanding-its inclusion of a previous valid debt. (Jackson v. Packard, 6 Wendell, 415.) The latter stood upon its original merits. The mortgage was a conveyance and a security, and by it a greater sum or value was attempted to be secured than was allowed by law. That, by force of the statute made it void; and the court could n >t convert it into an instrument of different terms, so as to make it stand as a surety for the sums, from which the usury could be eliminated. The transaction was a whole thing, void in itself, but not affecting existing debts, either to invalidate or seen ie them.

It appears that the complainant had indorsed a credit on the note, with the purpose of remitting the usurious excess. This could not give vitality to the mortgage, which was void in its inception, nor did any future advances, although untainted with usury, have that effect. The mortgage, as now appears, was null, and. gave no right to the possession of the property. The go'od debts ■stand on their original footing, with only such securities as appertain to them, independent of the mortgage. \

Eor error in refusing a new trial, reverse the judgment, and remand the cause for further proceedings consistent with this opinion. j


text:
    Johnson et al. vs. Terry.
    Practice nr Supreme Court : Instructions must be in bill of exceptions.

    Instructions not brought into the record by the bill of exceptions will not be noticed in this court.
    APPEAL from Lincoln Circuit Court.
    I-Ion. J. A. Williams, Circuit Judge.
    McCain, for appellant.
    Jones, Tindall, contra.

   Eakin, J.

On the thirtieth of October, 1876, Terry, as landlord, and Johnson, as tenant, for rent of a farm for that year, claiming under a written agreement for a lease, the rent to be payable about the middle of the month of November. Upon affidavit that defendant was about to remove the crop without paying rent, and had removed a portion without consent, he obtained an attachment and seized it; whereupon, defendant gave bond to retain it.

At the April term, 1877, defendant filed his affidavit denying that he had removed a portion of the crop without" paying rent; and alleging that the plaintiff had waived any lien he may have had. There was a third paragraph, denying that the plaintiff was the landlord, and asserting that he was only the agent of Edward E. McG-ehee, trustee for Blanche B. McGehee, whose consent defendant had, to remove the crop. Upon this, he moved to quash the attachment.

At the fall term, 1877, Blanche B. Stokes (formerly McG-ehee), with her husband, filed an interplea for the property attached; setting up that the land in . question had been conveyed, in 1871, by Terry to a trustee, to secure a debt due from him to said Blanche of $5,200, and that he had delivered up to her the possession, on the first of January, 1876, in order that the rents and profits might be applied to the debt; that they had employed him, and he had agreed to act, as their agent in renting the land for 1876, which fact defendant, Johnson, knew when he rented; and that they supposed that Terry had, in good faith, acted for them until they learned of this suit. They state that, but for this agreement, they would have foreclosed, or taken some steps-to secure the rents and profits. That in the spring of 1877 they obtained an order to foreclose the mortgage, under which the lands were sold for $4,500, and that there is still due about $1,500. They say that Terry is insolvent, and that he acted fraudulently in mak-‘ ing the lease to Johnson in his own name, wherefore they claim the rents in court, and other relief.

Terry, in his answer, denies that he gave possession of the land, as alleged, or that he acted, in leasing, as the agent of interpleaders.

A trial, by jury, was had on the grounds of attachment; which resulted in sustaining the same..

Johnson then answered, setting up that he had rented from Terry as the agent of said Blanche, but that the written agreement, by accident or mistake, failed to show the character in which Terry acted ; and that said Blanche and her husband claimed the rent.

A trial, upon the remaining issues between the parties, was had at the April term, 1868, resulting in a general verdict for the plaintiff', Terry. "Whereupon, it was considered that the interpleaders should take nothing by their motion, and pay costs. A motion for a new trial was overruled, and they appealed.

No disposition of the fund appears to have been made, nor is there shown any judgment against Johnson. The questions presented arise on the interpleaders’ motion for a new trial. As to them, the judgment was final, and an appeal lies. The trial was, in fact, only on the interplea.

The contract for renting was in evidence. It was drawn by Johnson, and was executed by him and Terry as individuals, disclosing no agency. Johnson, in his testimony, says he does not know why he omitted this, but says,-in fact, that Terry told him before, and at .the time, that he had turned over the place to Stokes, and was acting as his agent; and that Stokes had requested him to rent to witness, and get him to sta3r on the place.

Johnson’s wife testified that, during the year 1875, she did a great deal of writing for Terry in his correspondence, and knew much of his business. That in September or October, she wrote a letter for him to McGehee (then Mrs. Stokes’ trustee), offering to turn over the place, but did not see the answer. Stokes came there in November, after which Terry told Johnson and wife that he had arranged matters, and turned over the place, and that he was to go to Memphis in a lew days and turn over the papers, He went to Memphis, and said, on his return, that he had fixed it all right with Stokes; and that the latter ha¿L requested him to rent the land to Johnson. He did rent as Stokes’ ■agent — said so, positively — repeated-it on many occasions, .and so all parties understood it when the contract was made.' She heard Terry say, also, that the draft on thp cotton could be turned over to Stokes for rent.

Bloeher testified that he heard Terry say, on his return from Memphis, in 1875, that he had turned over the papers to Stokes, and was acting as his agent; and that Stokes had requested him to rent the place to Johnson at $5 per acre.

The trust deed to McGehee was also in evidence, together with a decree in chancery foreclosing the same in 1877, which showed a sale, under the foreclosure, for $4,500, leaving a large balance due. The debt appears to have been due when the contract for renting was made.

Upon the other hand, Terry testified, saying, that he contracted for himself, and not as agent for any one. Denies that he ever told Johnson, or his wife, or Bloeher, otherwise; admits that he had ottered to turn over the place to Stokes on certain conditions, but nothing came of the proposition, and he never did so. This is all the material evidence, except that it appears that Johnson and Terry were not then friendly, and that Bloeher was, at the time he testified, a tenant of Johnson, living with his family.

The court properly instructed the jury that if they believed that Terry had turned over the possession of the land to Stokes, and afterwards rented to Johnson, acting ■as Stokes’ agent, they should find for the interpleader, and refused to instruct them that “ the admissions of the defendant against his interests are to be construed most strongly against him.” Stokes excepted to the refusal.

Practice in Supreme court:

tions^must exceptions,

The bill of exceptions then shows that three instructions against thq, objection of the interpleader were given upon the part of “defendant” Terry. Without transcribing them, it suffices to say that they have no application whatever to the issues on trial made upon the interplea, but were pertinent only to the issues made on the former trial upon the truth of the grounds of attachment; and that, if really given upon the trial now in question, they would have tended to confuse, if not utterly bewilder the jury. There have been several writs of certiorari, each of which has brought up a set of instructions, attended with no explanation, and to which there is no reference in the'bill of exceptions to identify them as the instructions actually ruled upon at the trial of the interplea.

Obviouslv, the clerk has been confused by the change of . . " . . • . , position ot lerry, who was plaintiff m the interlocutory trial, and defendant in the interplea, and having all the papers- before him, perhaps in confused order, has inserted the wrong instructions. The efforts to correct this by certiorari are futile. If not brought into the record by the bill of exceptions, the. instructions can not be noticed. This court, on appeal, can act upon the record alone, and must act on what appears there. Although entirely satisfied, as men, that his Honor, the circuit judge, did not give the instructions contained in the transcript, in the correction shown, and that he did give other instructions, which, whether erroneous or not, were certainly pertinent to the issue, we can not know it judicially.

It was error to give the instructions as they appear. They would mislead a jury, and confuse them so as to make it very hard to come to any intelligent understanding of the law applicable to the issues submitted.

Inasmuch as there must be a new trial, we deem it best to express no opinion as to the evidence, or the instructions brought up by certiorari.

Reverse the judgment, and remand the cause for further proceedings, with instructions to grant a new trial on the interplea.


text:
    Lemay vs. Johnson.
    1. Chancery Practice: Motion for new trial: Bill of exceptions.

    In equity cases all papers properly filed in the cause becoirfe, on appeal, parts of the record to be included in the transcript. No motion for a new trial is necessary; nor is a bill of exceptions, except where oral testimony has been used and not taken down and filed as depositions, or interlocutory transactions have occurred which would otherwise be excluded from the record.
    2. Same : Landlord may enforce lien on proceeds of crop in court.

    Where the proceeds of a tenant’s crop are in the hands of a receiver appointed by the court in a suit by a mortgagee to foreclose his mortgage on it, the landlord of the tenant may interplead and enforce his lien for rent upon the proceeds, whether the rent was to be paid in money or a portion of the crop, or other property, or services.
    3. Landlord’s Lien: Not prejudiced on balance by releasing part of crop.

    A landlord’s lien covers the whole and every part of the tenant’s crop; and his release of a part of it will not subordinate his lien on the balance to the lien of a mortgagee upon the crop.
    4. Alteration : Unauthorized insertion of date in contract.

    The unauthorized insertion of a date, or any other matter, in a blank, prejudicial at law to the maker of a contract, avoids it both in law and in equity, although the date, in equity, may be a matter of indifference. But where a mortgage on a crop to secure supplies was executed with a blank date before the crop was planted, and with an agreement to date and acknowledge it after the crop should be planted, and the supplies were furnished by the mortgagee, the insertion of the subsequent date by the mortgagee was not unauthorized, and the mortgage was valid in equity as of its actual date, notwithstanding the subsequent refusal of •■the mortgagor to date and' acknowledge it as agreed.'

      APPEAL from Lafayette Circuit Court in Chancery.
    Hon. A. Byrne, Special Judge.

      Williams <f- Battle, for appellant.

      Cook, contra.

   Eakin, J.

This cause brings again before the court the note and mortgage which were collaterally considered in the case of Lemay v. Williams, 32 Ark., 166. The question presented by the record in that case, was whether or not prosecution of an attachment suit' before a justice of the peace, based upon these instruments, and which had been dismissed, was malicious and without probable cause. The court stated hypothetically that if, in fact, the holder of the note had altered the date, without the consent of the maker, and to his prejudice, it was a forgery, and the note void. This was merely the statement of an undoubted abstract proposition. The court in that case left this out of the question as a matter of fact, and decided it on the want of jurisdiction in the magistrate, and the invalidity of the mortgage under the law, then in force, to give a right to proceed in an action at law to enforce it. The matters reappear in a suit in equity, upon independent evidence. This cause must be decided upon it3 own i-ecord.

Lemay, a merchant, filed this bill on tile fourth day of December, 1874, against Williams, a" renter on the plantation of John D. Parks, stating that on the seventh day of May of that year defendant executed to him, and on the twenty-fifth duly acknowledged a mortgage, which is exhibited. In consideration of the sum of one hundred dollars paid as advances by Lemay, it-conveys to him the entire interest of Williams in all the crop or crops planted and to-be planted and gathered on the Parks place that year, to be void if Williams should, on or before the twenty-fifth day of December, pay to Lemay all dues and demands which the latter might legally and justly hold against him. It authorized Lemay to take possession of the crops when the amounts should become due, and sell them to pay the debt; or to take possession of them when gathered and hold them until the debt should be due, and then sell.

The bill then sets forth and exhibits a note of defendant to Lemay, bearing date of May 7, 1874, and payable on the twenty-fifth of December following, for the sum of $158, to bear interest at the rate of 10 per cent, per annum from the first day of January, 1875, with a waiver of all rights under the exemption laws; which note is alleged to be a charge on the mortgaged property.

It proceeds to charge that "Williams had raised and gathered, on the Parks place, about 4,500 pounds of seed cotton, three bales of cotton, and about two hundred bushels of corn, which, or a large portion thereof, he had removed, and was about to remove or dispose of to the injury of complainant, and that he had refused to deliver said crop according to the agreement, to be held until the note should fall due.

The prayer seeks a decree for the debt and a foreclosure of the mortgage lien ; and that meanwhile a receiver be appointed to take and sell the property, and hold the proceeds ; besides general relief.

In response to the prayer a receiver was appointed for the cotton, alone, who took possession and reported a sale of the seed cotton for $162, and the bales for $181.29.

"Williams, in his answer, denies the acknowledgment of the mortgage on the twenty-fifth of May, or at any other time, but admits that it was signed and delivered to complainant on the thirty-first of March, 1874, with a blank date. He admits the execution of the note, but says it was on the seventh day of April, and bore that date. He says that, then, none of the crops of corn or cotton had been planted; and that complainant, afterwards, in order to obtain a lien at law, altered the date of the note by erasing “April” and inserting “May;” and altered the mortgage by inserting in the blank the date of May 7, and causing a fictitious acknowledgment thereof to be appended as of the date of the twenty-fifth of that month ; and that these alterations were without his consent. He therefore submits that the note and mortgage are not his acts and deeds; and that by them complainant took no lien.

John D. Parks, the landlord, was, on the sixth of January, 1875, admitted to interplead for his rents ; aud set up a contract of his tenant, "Williams, to pay him as rent for that year, one thousand pounds of lint cotton, ginned and baled, of the first picking, and one hundred bushels of corn, to be delivered on the first of November. He says the 4,500 pounds of seed cotton were of the first picking, and that, ginned and baled, it would have been worth $125. The corn was also worth $125. He. says he has not been paid, and claims his lien.

Complainant says, in reply to the interplea, that when the cotton was seized there were left on the place 700 pounds of lint cotton of the first picking, which remained there nearly a month; and that Parks,, knowing of this suit and proceedings, consented to and permitted the removal and disposition of it by Williams. Also, that two hundred bushels of corn were left upon the place, of Williams’ crop, and has there remained ; aud to the extent of one hundred bushels has been consumed by Williams, with the consent and permission of the interpleader.

The regular judge being disqualified, the cause was heard before a special judge, upon the pleadings, exhibits and a mass of evidence. Parks, meanwhile, had died, and Mary E. Parks been made administratrix ad litem.

The court found, amongst other things, that Parks had permitted Williams to use and consume the corn raised upon the place, without any effort to collect his one hundred bushels, for rent; that 1,000 pounds of the lint cotton s.eized was worth $125; and that the interpleader had a lien to that extent, alone, on the fund in court; that complainant had agreed to furnish Williams with supplies for the year 1874, to the extent of $100, and that the latter was to give a mortgage to secure the same, together with all other indebtedness which- might be owing to complainant on the first day of January, 1875 ; that upon the settlement of past indebtedness made, in pursuance of said agreement, on the seventh day of April, 1875, Williams was found indebted in the sum of $158 ; that he then executed the note in question bearing that date, and signed the mortgage with the date in blank, which was left in the custody of complainant, upon an understanding between them, that it should be consummated by execution, acknowledgment and delivery, after the crops should be up and growing ; that afterwards complainant refused to furnish the necessary supplies, as contemplated; whereupon defendant receded from the contract, and did not actually execute and acknowledge- the mortgage. Further, that afterwards, on the twenty fifth day of May, 1874, complainant, without defendant’s consent, filled the blank in the date with “May 7;” and without the authority, knowledge or consent of defendant, caused a certificate of acknowledgment to be appended thereto, and' had the instrument recorded. The court was of opinion that this, in appearance, changed the legal effect of the instrument; which, in fact, was a mere inchoate agreement; or, at most, would have been only an equitable mortgage inter partes, but for the unauthorized acts of complainant, and his refusal to furnish supplies; and that therefore the instrument was not the act and deed of defendant. Further, the court was of opinion that the change in the date of the note was immaterial and did not affect any substantial rights of defendant.

i. Chancetice: '

nowlc>tr¡ai: ceptions.

"Whereupon, the receiver was ordered to pay, out of the fund, to said Mary F. Parks, the sum of $125, with interest from January 1, 1875, and her co3ts; and to pay the residue to defendant, Willliams. A personal decree in favor of Lemay was rendered against Williams for $222.42, and his costs, excepting the costs and expenses attending the proofs.touching the mortgage, and the costs of the receivership, which were adjudged in favor of Williams against Lemay.

Both Lemay and Mary F. Parks, as administratrix ad litem, have appealed. The depositions are brought upon the record by bill of exceptions, which was wholly unnecessary. In equity cases, all papers properly filed in the cause become, on appeal, parts of the record, to be included in the transcript. No motion for a new trial is essential, nor is a bill of exceptions necessary, except where oral evidence has been used, and not taken down and filed as depositions, or interlocutory transactions have occurred which would be otherwise excluded from the record.

There was no error in rendering the personal decree against Williams. The debt was not, in effect, contested. The alteration in the date of the note, if made by Lemay, as charged, could not alter its effect in any manner, and, of course, was not to the prejudice of defendant. This Í3 conceded, and Williams does not complain.

land-

wll0le erop-

°fp/r°°peefp

Eirst: as to the appeal of the interpleader. The land-2. lord’s lien extended to the whole crop. The specific rents, in several kinds of produce, were agreed modes of satisfaction. If not paid,- the landlord’s lien for their value remained ; overflowing all the crops of • every kind. There was no agreement to take proportions of the several crops, hut "absolutely 1,000 pounds of cotton of the first picking, and 100 bushels of corn. It will not be seriously contended that if the tenant, after that, had used the land in the production of hay, potatoes, wheat, or any of the crops usual in the country, other than corn and cotton, the landlord would have lost his lien altogether. Unless he has done something to estop himself, he had a first lien upon all, or any part of the crop, for the full value of unpaid rent (Gantt’s Digest, sec. 4098), which continued for six months. “Rent” does not imply, necessarily, the idea of money. It is something rendered for the use of land or tenements, and may be in money,chattels, provisions, or labor. The statutory lien is given to secure not only the payment of money, but the delivery of other property, or the rendition of services. The application was made before the lien expired, but after the sale. It is contended by appellant, Lemay, that it followed the crop, and did not attach to the fund.

' At the time of the sale, by the receiver, Parks was a party to the suit, and if the property had been of durable value, such as land or anything not likely to be or deteriorate, there is no doubt but that he might have kept out, and followed it into the hands of a purchaser. Eor, in such case, it would not have been proper in the Chancellor to have ordered a sale pendente lite; and it would be unjust to deprive him of his vested right to a prior lien without-making him a party to the proceeding. But the property being cotton, mostly in the lint, and all of it of a nature to deteriorate, or be lost by fire, or other casualty, it was wise in the Chancellor, acting in rem, upon property under his control, to sell out the whole interest for the benefit of all concerned, and substitute the fund produced for the property itself. It was a mere change in the nature of the fund-^-a substitution of money for cotton. It was done to preserve the fund, and was for the benefit of all interested in it. There is no proof that it brought less than its full value, nor was there any order that it should be sold, subject to prior liens. Sales for preservation of perishable personal property which has come into court, partake of the nature of admiralty sales, so far as this: that whilst they may not divest titles out of strangers, they may make mere liens attend the conversion, and adhere to the fund produced. Otherwise, this means of remedial justice could not- be beneficially used, as purchasers would be too chary of bidding, and no fund might be produced, at all proportionate to the value. By holding the fund for the benefit of any who may be interested in it, and who may apply in apt form, and due time, the equities of all may be well adjusted. It is only necessary, however, in this case to hold that Parks had at least the option to apply to be admitted to the fund, and - this has been already determined by this court in the case of Mitchell et al. v. Badgett, 33 Ark., 387, where a landlord was permitted to come, for his rent, upon a firm which had purchased cotton from a tenant and sold it. The principle applies a fortiori to a receiver, claiming no interest for himself. The interplea was properly entertained.

-: Releasine part of crop. «

We think the Chancellor erred in limiting the extent of • 0 the claim to the value of the lint cotton. This is not a case of marshaling where a senior incumbi'ancef of two funds releases one to the prejudice of a junior incumbrancer of the other, alone. The equity of compelling the senior incumbrancer to postpone his lien upon the doubly-charged fund, to the extent of the value -of the property released, is based upon this, that by his release of the singly-charged fund he has out off pro tanto the junior’s right of subrogation, and left him helpless.

There is nothing to which he may be subrogated. Even then the senior is not obliged, to credit his debt absolutely. He is only postponed joro tanto in his. priority as to the doubly-charged fund, and if there be any left of it after satisfying the junior, he may come in for the balance.

The reason of the doctrine has no application to senior and junior liens upon the samq property, both in toto. The junior has his independent lien already upon every part, and needs no subrogation; His equities' can not be affected by allowing the senior to release a part and make his debt out of the remainder, because the junior lien upon the part released, so far from being thereby lost, becomes a first lien and he is compensated to the exact extent in which he may be detruded from the balance.

The landlord, whilst held t > refrain from doing active injury to a junior incumbrancer, is under no obligation to collect the debt of the latter, or take steps to keep it- secure. He may look alone to his own interest, and be content to see enough remaining for his security. It is for the junior incumbrancer to take care that enough be left for both, and upon him devolves the duty of husbanding the funds, to make them cover all. Eor this purpose he has the right of redemption and subrogation. In the case in judgment, Lemay might have made Parks an original party, and had the receivership extended to all the crops, or so much as would pay both. ITe could not sue for himself, seize a part, and force the landlord to exhaust the remainder. It would be to impose duties and risks upon the latter, from which his priority exempts him.

No laches is imputable to Parks from indulgence ofWilliams, and therefore the Chancellor erred in not admitting his administratrix to full payment out of the fund in court, to the extent of the value of the whole rent, less the value of about nine bushels of corn paid to Parks through Dob-son & Howell.

Upon the appeal of Lemay it appears that the mortgage in question was signed and delivered to him, by Williams, about the last of March or near the first of April, 1874. Williams, at that time, was indebted to Lemay for the balance of an account of the previous year, something over one hundred dollars, and received supplies on the new mortgage to the extent of about $23 or $27. It was given with the understanding, between them, that after the crops should be planted and growing, Williams would properly acknowledge it, and that the date, then left blank, should be filled up as of the date of the acknowledgment. It expressed the consideration of one hundred dollars, “to me paid as advances by Samuel B. Lemay,” and was to be void if the mortgagor should pay him on or before the twenty-fifth day of December, 1874, “all dues and demands which he may legally and justly hold against me on that day.”

About the middle of April of that year, Lemay refused the application of Williams to get a pair of shoes, of which he was greatly in need, and declined to extend him any further credits. Whereupon Williams refused to acknowledge the mortgage when applied to, on the iwenty-fifth of May, but did not deny the debt, nor that he signed the mortgage, and expressed his intention to pay it. The purport of his remarks was, that he .declined to acknowledge as of that date, and to give Lemay any advantage which might accrue from such acknowledgment. Whereupon the date of first of May was filled in by Lemay, upon consultation with the justice who went to take the acknowledgment, and the latter appended the certificate. Upon these facts defendant contends that the mortgage is not his deed.

i. Alteration:

Unauthorized inser? tion of date in contract

. At the time of the transactions, a mortgage upon a crop not planted was recognized only in equity. The object had in view by the parties in providing for a future date upon a future acknowledgment, was to give it the character of a legal mortgage,with more ready means of enforcement.

In this view the date was material, as, after planting the crop, it would change its nature and effect between the parties. And although a court of equity would .give a bona fide instrument of this character the same effect, regardless of date, it would take notice of an alteration meant to vary legal rights, and hold it to be annulled, upon the same grounds which would have that effect in a court of law. An unauthorized insertion of a date, or any other matter, in a blank, prejudicial at law to the maker, avoids it both in law and equity, although the date in equity may be a matter of indifference.

That the insertion of the date was, or might have been prejudicial at law, to Williams, is apparent. In the language of Lemay, it would “hold his corn,” although there was no cotton planted on the 7th of May. The question narrows to this : Was it unauthorized ?

The instrument, when given, was a good security in equity, and, as such, was fully executed and acted upon. Credit was partially extended. It could not be considered an escrow in the hands of the mortgagee. Reed v. Latham, 1 Ark., 66; Inglish v. Breneman, 5 Ark., 378; Scott v. State Bank, 9 Ark., 36.

The authority to insert a future date was expressly understood to be conferred, and that for the very purpose of changing it from an equitable to a legal mortgage. It seems to have been contemplated that this should be done by the magistrate at the time of taking the acknowledgment ; but the exact time was not material, after the crop was planted; ho'r was the particular hand by which the date was to be inserted. The substantial thing in view was that Lemay should have the benefit of some date after the crop was in. This was a power conferred for the benefit of Lemay, and could not be retracted.

The defendant afterwards refused to acknowledge, as intended.

Whether or not any harsh conduct of Lemay rendered this pardonable in morals does not become us to say, as it is not set up as a defense. As he had already enjoyed a partial benefit from the mortgage, he should perhaps have adopted some other mode of redress for any supposed injury. Suffice it to say that he rests his defense on the ground that the mortgage is not his deed.

There could, of course, be no dating of the time of acknowledgment. Lemay did not thereby lose his right, not only to hold it as an equitable security, but to have it changed to a legal mortgage. The insertion of the date was made with the knowledge and assent of the justice (as the proof, shows), and although wholly ineffective to have changed .the instrument, against the showing of the true date, yet the attempt was no less in pursuance of an agreement to that effect. This does not seem to come within the range of any of the principles upon which alterations of instruments have been held to avoid them. The court below should have given the mortgage the effect it would have had if bearing its true date of the last of March or the first of April, and as it originally stood between the parties. That would have given Lemay. a íúght to the payment of his note out of the fund, after satisfying the full reut remaining due the landlord. The balance, if any, should have been paid to Williams, after adjustment of costs.

So much of'the decree as renders a personal decree against Williams will be affirmed, and it will be in all else reversed. Let the cause be remanded, with directions to the court below to distribute the fund in court in accordance with this opinion, and take such further proceedings as may be required. The adjustment of costs will be in the discretion of the Chancellor.


author: Eakin, 3.

text:
    The State vs. Crawford, Auditor.
    1; Special Statute: Act for benefit of Johnson and Reynolds constitutional.

    The act of the legislature of the fifteenth of March, 1879,.to settle the debt of Reynolds and Johnson to the state of Arkansas, and her debt to them, is not in violation of any provision of the constitution, [See opinion for the act and the objections to it. — Rep,]
    2. Statutes : Passage of bills.

    A bill was regularly passed by the house of representatives and transmitted to the senate. It was there read twice and referred to a committee. During its pendency in the senate, a motion was made in the house to reconsider it; and it was recalled from the senate, and then the motion to reconsider was adopted. It was then again passed in the house and transmitted to the senate, and there read again — the third time— and passed. Held, that the bill was constitutionally passed.

      APPEAL from Pulaski Chancery Court.
    Hon. David W. Carroll, Chancellor.

      Attorney General, for the State.

      Pose, contra.

   Eakin, 3.

The general assembly of the state of Arkansas passed the following act, which was approved on the fifteenth of March, 1879 :

“An act to settle the debt due from the state of Arkansas to L. L. Johnson and D. H. Reynolds, and the debt due to her from them.'

“Whereas, The state of Arkansas was, on March 1,1872 indebted to Johnson and Reynolds in the sum of $38,032.45,’ in currency, for work done by them oh the public levees in Chicot county; and Johnson and Reynolds were, at that time, indebted to the state of Arkansas, on account of mortgages to the Real Estate bank, in the sum of $94,590.98, payable „in bonds of the state, then worth, in currency, the sum of $28,377.27, being an excess in favor of Johnson and Reynolds of the sum of $9,655.16, in currency, as ascertained by the Pulaski chancery court; andón April 1,1874, they paid on the debt due to the state the sum of $32,309.07,in Real Estate bank bonds, leaving due at this time, with accrued interest, the sum of $94,022.20, payable in bonds.

And, whereas, Johnson and Reynolds are willing to set off the debt due to them against the debt due from them, as of March 1,. 1872, and to remit the excess due to them ; and accept such adjustment as a final settlement of the matters between them and the state; and said offer is fair and should be accepted by the State; therefore, aBeit enacted by the general assembly of the state of Arkansas:

“Section 1. That the auditor be, and he is hereby authorized and directed to- issue to Johnson and Reynolds, certificates, in such sums as they may desire, on the treasurer, to the amount of $94,022.20, to be used by them in payment of debt due from them to the state of Arkansas; and upon the presentation of such certificates to the treasurer, he shall receipt therefor, and upon the presentation of such receipts to the Pulaski chancery court, said court is authorized and directed to cause the decrees for the debt due to the state to be satisfied as required by law, upon payment.

“Sec. 2. That the auditor be, and he is hereby, authorized and directed, to further issue to said Johnson and Reynolds certificates on the treasurer, in such sums as they may desire, to the amount of $32,309.07, in lieu of the bonds paid on the debt due the state on April 1, 1874, which certificates shall be receivable by the treasurer in payment of debts due to the state on lands mortgaged to the Real Estate bank.

“ Sec. 3. That the certificates, so to be issued, shall be in full of all demands of said Johnson and Reynolds against the state of Arkansas.

Sec. 4. That this act shall take effect and be in force from and after its passage.”

The auditor being about to issue the certificates, in pursuance of this act, the Attorney General filed this bill to enjoin him, upon the grounds that the act was unconstitutional. The cau3e was heard upon the bill, answer and exnibits, before the Hon. D. W. Carroll, Chancellor, who refused the injunction, and dismissed the bill.

The state appealed.

The written opinion of the Chancellor seems to have been well considered. It contains a clear statement of the ■case, and his conclusions commend themselves as sound in principle. "We adopt it as follows :

“ This is a petition, brought in the name of the state of Arkansas, by W. F. Henderson, Esq., praying for a re•fltraiuing order, directed to John Crawford, as auditor of the state of Arkansas, fo prevent and restrain said auditor from issuing certain certificates to Johnson and Reynolds, under the provisions of an act-of the general assembly of the state of Arkansas, entitled ‘an act to settle the debt due from the state of Arkansas to L. L. Johnson and D. H. Reynolds, and the debt due to her from them,’ approved fifteenth of March, 1879. The auditor appears and files his answer. This act was based upon proceedings had in this court in four certain cases therein pending for the foreclosure of" certain mortgages on lands which had been executed to tlie Real Estate bank, to secure the stock subscriptions of mortgagors. L. L. Johnson and D. H. Reynolds were the owners of the equity of redemption in all of the four cases. During the progress of the trial of these cases in this court, Johnson and Reynolds filed a set-off and counter-claim against the state for certain levee work done by them under contract with the state authorities. The court, upon the filing of this set-off and the counter-claim, deeming that it had no authority to entertain such proceedings, for the purpose asked by the said Johnson and ^Reynolds, but considering that, upon equitable principles, they should be allowed a fair and equitable settlement with the state, as to this indebtedness and the debt due by them under said stock mortgages, entertained the question of set-off, under the principle and in analogy to sec. 5, chap. 166, of Gould’s Digest, and referred the matter to a Master in Chancery to ascertain the truth of this set-off, and the amount reasonably due to said Johnson and Reynolds from the state for the levee work done by them.

“The court, in making this reference, declared that, in accordance with the principles of equity, this off set should be allowed, but that this court had no authority to adjudge the same against the state; that right vested only in the general assembly. The Master, afterwards, filed his report, accompanied by the testimony of competent witnesses, wherein it appears that the amount due to Johnson and Reynolds, on the first of Man h, 1872, was the sum of $38,-032.45, in currency, for the levee work. And, at that time, they owed the state of Arkansas $94,590.98, on the stock mortgages in the cases pending in this court, as above stated.

“ Upon the coming in of' this report the court ordered that a transcript of all the proceedings regarding the set-off, the orders of the court, the report of the Master, and the evidence accompanying the same, together with the opinions of the court, should be made out and certified to and transmitted to the general assembly for its action. The act of the general assembly, above referred to, was then passed.

“ The first point made by the petition now under consideration, is, that the act is a special act, and that no notice of the intention to apply therefor had been published, in accordance with sec. 26, of Art. V, of the Constitution, and of an act entitled ‘ an act to provide for giving notice of an intention to introduce local and special bills,’ approved December 4, 1874. The section of the constitution referred to, provides that ‘ no local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected shall be situated.’

“It seems to the court that this provision of the constitution does not apply to the bill passed by the general assembly, above referred to; but if it does so apply, the court is of opinion that the notice shown in evidence here to have been given, is sufficient.

“The second point made by the petitioner here, is, that the effect of the act of the general assembly, referred to, is to grant extra compensation to a contractor, after the services had been rendered, and contract made, and to appropriate money for the payment of a claim, the subject-matter of which had not been provided for by pre-existing laws; and that said bill was not passed by a majority of two-thirds of the members elected to each branch of the general assembly; and is, therefore, a violation of sec. 27, of Art. V, of the Constitution.

The court can not see that any extra compensation wras granted by this act to the contractors, Johnson and Reynolds, but, on the contrary, the amount found to be due them was for work done for the state, for which they had not been paid, under a contract with the state, through its proper officers. This work was done under the act of 1869, providing for the building of levees. It seems from the records and proceedings in this court, in the matter of the set-off’, that the levee bonds were exhausted whilst the contractors were progressing with their work, and that they had no source for payment for their work, but to look to the general assembly for relief.

' “ The payment for levee’ work had been provided for by pre-existing laws, and if the funds, out of which, this payment was to be made, bad been exhausted, it is nothing but equitable and matter of right that some provision should be made for its payment. The court does not think that this act of the general assembly is obnoxious to the charge of violating the provisions of the 27th section, of article 5. of the Constitution.

. “The third objection urged by the plaintiff is without foundation, as no general law could be passed to meet the objects sought to be attained in the act referred to.

“ The fourth objection is, that the act was not passed in accordance with sec. 22, of Art. V, of the Constitution, because the same was not finally passed by the house of representatives until the night of the twelfth of March, and no action was taken therein in the senate until the last day of the session of the general assembly within the meaning of said section. Reference is had to the journals of both houses of the general assembly. The copies of the journals certified to and filed with the petition are not the full proceedings of the two houses relating to the bill in question, as is admitted by the attorney general, but they are true as far as they go. The answer of the auditor discloses the full proceedings of the general assembly, and these proceedings appear on the journals,

“ It appears that this bill was introduced in the house of representatives on the twenty-fifth of February, 1879, and was referred to the committee on the ways and means, and that committee reported the bill back to the house,' and it was referred to the committee on judiciary; that on the fourth of March the bill was reported back from the committee on the judiciary with a recommendation that it do pass, and the bill was made the special order for the Monday following. On March 10 said bill was read a second time, and the rules were suspended and the bill read a third time and made the special order for the next day. On the eleventh of March the bill ~was taken up and placed upon its passage, and by a vote taken by yeas and nays and entered on the journal, the bill was passed. A motion was made to reconsider the vote taken on the passage of the bill.

“ It appears that the house ordered the bill to be transmitted to the senate for its action, and whilst in the possession of the senate it went through two readings, under a suspension of the rules, and was referred to the committee on finance. Afterwards the senate received a message from the house of representatives, requesting the house to return the bill in question. It was returned to the house, and there the motion to reconsider was taken up, and was decided in the affirmative. The bill was then passed by the house, by a vote by yeas and nays, and entered on the journals, and the house then directed the bill to be sent back to the senate, with the information that after reconsideration the bill had again passed the house of representatives; whereupon, on motion, the bill was taken up in the senate and read a third time, and placed on its final passage, and the bill was passed by a vote of yeas and nays and entered on the journal.

Sec. 22, Art. V, of the Constitution provides as follows: ‘ Every bill shall be read at length on three different days in each house, unless the rules be suspended by two-thirds of thé house, when the same may be read a second or third time on the same day, etc.

“It is conceded,oand it so appears, that the bill that passed the house the first time was sent to the senate, and went through two readings on the same day under a suspension of the rules, is the same bill that was recalled by the house from the senate and was by the house passed a second time, and sent back to the senate, and was there read a third time and passed.

“ The first message from the house of representatives to the senate transmitting the information that the house had passed this bill, must have been sent before the motion to reconsider had been made in the house. This must be presumed, as it can not he supposed that such a message would have been sent pending a motion to reconsider.

“ The court is of the opinion that the reading of this bill in both branches of the general assembly was had in substantial compliance with the provisions of the twenty-second section of Art. V of the Constitution.

“ The points of objection raised in the second and fourth paragraphs of the petition are intricate, and the court has found some difficulty in arriving at a correct conclusion, hut after a deliberate examination the result indicated above has been arrived at, and the court is of opinion that the act of the general assembly under examination has been passed by that body in compliance with the provisions of the constitution of the state.

The general assembly has seen proper to adjust and settle the mutual indebtedness between the state and two of her citizens upon the basis of equity, and the court can not see that this settlement can work a great and irreparable injury to the state.

“ The restraining order must be refused, and the petition dismissed.”

Let it be affirmed.