text:
    John W. Childress against John Foster.
    ERROR to Independence Circuit Court.

    Covenants are to be so expounded as to carry into effect the intention of the parties; and this intention is to be collected from the whole contents of the instrument, so as to make an entire and consistent construction of the whole; and should be such as to support, rather than defeat the transaction.
    The breach should be assigned in the words of the covenant, either negatively or affirmatively, or in words co-extonsive with the import and effect, if, in so doing, a breach is shown.
    When any thing is to be done by the plaintiff, before his right of action accrues on the covenant, performance of that thing must be averred in the declaration.
    No technical words are necessary to make a condition precedent or subsequent. Whether a condition be one or the other is to be determined by the intention and meaning of the parties, as it appears on the instrument, and by the application of common sense to each particular case; to which intention, when once discovered, all technical forms must give way.
    Where the right of action depends upon the performance of a condition precedent by the plaintiff, if the declaration does not allege performance, the omission is not cured by verdict.
    Where a covenant is that, as A has obtained judgmexrt against B, the books of A shall, at any time, he examined by B, or any person he may choose, for the years 1836 and 1837, containing B’s account with A; and if it should appear on examination that there are any errors or mistakes on the books in B’s account, he should be credited for them on the judgment; and the breach is, that he did not permit his books to be examined by the plaintiff or any person he might choose; the defect was fatal after verdict.
    There could he no right of action, without an averment that B requested A to permit him to examine the books; or that he gave him notice that he, or the person he had chosen, was ready and willing to examine them, and that he offered to do so, or some equivalent averment.
    This was an action for breach of covenant, on bond, with penalty for the performance of the covenant. The plaintiff, in his declaration, sets oat the condition: “Thai myself and Paxton Tucker have this day obtained judgment in the circuit court for said county against said Foster; and I agree with said Foster that my books shall, at any time, be examined by said Foster, or any person he may choose, for the years, A. D. 1836, and’37, containing the said Foster’s account with myself and said Tucker, and if it does appear, upon examination of the whole account, that there are any errors or mistakes in the same, Foster shall be allowed the same, and credited with the amount of any errors or mistakes, in any of the charges against him, upon said judgment. And the said Childress agrees not to issue any execution upon said judgment, unless there is great danger of losing said debt, until the first day of May, A. D. 1839.” The assignment of breaches is in the language of the condition: “ That the defendant did not, at any time, permit his said books to be examined by the said plaintiff or any person he might choose.” And, “ That the said defendant, although there was no great danger of losing his said debt, did issue execution upon said judgment, before the first day of May, A. D. 1839.” To this declaration the defendant demurred, and the demurrer was overruled. He, therefore, pleaded four pleas, to one of which a demurrer was sustained, and issue taken upon the other three; upon which, there were a verdict and judgment in favor of the plaintiff, and an appeal taken by the defendant.
    The pleas were, first, that he was ready and willing to have his books examined; second, there was great danger of dosing the debt, and the execution was issued by his attorney without his knowledge; third, there was great danger of losing his debt; and fourth, he 'did. not issue execution. At the trial on the issues to the 1st, 2d, and 3d pleas, the court instructed the jury that the penalty of the bond was to be taken as stipulated damages. After the verdict the defendant moved for a new trial, and then in arrest of judgment. Each motion was overruled, and he appealed.
    Walker and Fowler, for appellant:
    The sufficiency of the declaration was put in issue by the demurrer of the plaintiff to the second plea of the defendant; the defendant did not plead over, and it was the duty of the court to have rendered-judgment for the defendant; if the declaration be defective, the action should have been debt, not covenant. See Revised Statutes of Arkansas; page 609; sections 1, to 8. The bond is without consideration and void. The condition of the bond was that the defendant would permit the plaintiff to examine his books, at any time. The breach, without giving time or place, and without averring a-request and refusal, simply alleges that the defendant did not permit the plaintiff, at any time, to examine his books. It is insisted that the act to be performed by the defendant, in the very nature of the transaction, was dependent upon the demand or request of the plaintiff.

      The breach is also defective in this: that, in order to subject the defendant to an action on his covenant, the declaration should have contained a positive averment,.with time and place; that the defendant was not in great danger of losing his debt, for, although he might not have been in great danger at one time, still if he was, at the particular time of issuing the execution, he had a right to do so. The breach does not allege that the penalty has not been paid.
    It is insisted that the judgment of the court is defective in this: the statute requires that the judgment should be rendered in debt, and execution issue upon the amount of damages assessed by the jury. See same page and sections, for this cause. The court should have sustained the motion of the defendat in arrest of judgment.
    The instructions given by the circuit court, to the jury, were clearly erroneous. The Statute, 609, section 5th, positively directs that in such cases, the breaches shall be assigned, and a recovery had of the real amount of damages sustained. In 2d J. J. Marshall, page 399, it is decided that, in the action of covenant, judgment connot be rendered for the penal bond in covenant.
    Thomas Johnson, Contra:

    The first objection raised to the record and proceedings in this case is, that the declaration is substantially and fatally defective. I presume that no rule of pleading is better and more universally settled than that where a party demurs to a declaration and is overruled, and then pleads over, that he never can, at any other stage of the case, raise the same objection. This doctrine has been recognised by this court in the case of Jarret vs. Wilson, 1 Ark. 137; and the authorities there cited. But an exception to the general rule is attempted to be set up in this case, on the ground that a demurrer was also filed by Foster, to the pleas of Childress and that said demurrer was sustained to one of said pleas; and it is therefore urged that, although the court had once pronounced the declaration sufficient, by overruling the demurrer, and that although the defendant below had waived all objections to said declaration by pleading over, yet, when the demurrer was filed to the pleas, the court should have gone back to the declaration and passed again upon the same points raised upon the first demurrer. If the defendant had put in his pleas to the declaration, without demurring, and the plaintiff had demurred to said pleas, there can be no question but that the court would then have examined the declaration, and, in case the declaration should have been found to be defective, would have decided in favor of the defendant, and correctly too, upon the ground that a bad plea is good for a bad declaration. But I contend that the court had no right to investigate that matter upon the demurrer to the pleas. By reference to 1st Chitty,s Pleadings, page 325, the court will perceive that the breaches are amply sufficient, and, in case there should still be doubts upon the subject, the court will please refer to the Revised Statutes, by Ball and Roane, page 635, Sections 118 and 119, and to notice, in a special manner the ninth cause specified in the 118 section. The court will perceive by reference to Ball and Roane, page 637, and section 127, that if there be one good count, and the damages be entire, the verdict shall not be disturbed. The second objection is, that the writing sued on is a nudum pactum. I conceive it unnecessary to argue this point, as it is‘perfectly apparent, upon the face of the contract, that there was a sufficient consideration to bind both parties, and admitting that there was none, it is a sufficient answer to say that Childress put his seal to it, and has failed to impeach the consideration at the proper time and place. The third objection is, that debt, and not covenant, should have been brought in this case, and, in order to support the objection, he refers to the “Revised Code,” page 608, which the court will at once perceive, has reference to bonds strictly penal, and none else. The court will perceive by reference to ls£ Chilly's Pleadings, page 109, and also to Comyn on Contracts, page 42, Lowe vs. Peers, that covenant will be on a sealed instrument for a liquidated sum — the verdict in the above case being £1000 damages. The fourth objection is, that there is no allegation in the declaration, that the appellant ever broke the said covenant. I do not consider it necessary to argue this point, as it is only a repetition of the objection first made. The fifth objection is, that there is no allegation in said declaration, that said appellant has not paid said penal sum of one hundred and fifty dollars. This objection is answered in the first part of this argument. The sixth objection is, that the issues joined are immaterial. 1 do not conceive it necessary to discuss a point which is apparent upon the record, and more especially when no reason is assigned in support of the objection. The sixth assignment is, that the name of but one juror appears in the record. This objection has been waived upon the record, consequently it is not necessary to discuss the point. The eighth assignment questions the correctness of the instructions of the court to the jury. I apprehend it is too late to urge this objection after amotion in arrest of judgment has been made and overruled by the circuit court; and more particularly when that motion was founded upon the same reasons set forth in the bill of exceptions. The law is, that a party may demur, move in arrest of judgment, or sue out a writ of error. Now 1 do not deny that this court can decide whether the circuit court should have granted a new trial or not, but I do. deny that this court can reverse and correct the judgment of the inferior court, upon a motion in arrest of judgment. If there is any thing in the record and proceedings in this case, that would have authorised the circuit court to have arrested the judgment, the defendant had his election, to move in arrest of judgment, or to sue out a writ of error; but if he chose to submit the motion, and call upon the circuit court to decide the question, he thereby precluded himself from all advantages that he would have had in this court. However, I hold this argument to be wholly unnecessary, as the instructions of the court are strictly correct, and fully warranted by a fair and rational construction of the covenant. The rule of construction in such cases is, the intention of the parties at the time, and that intention can only be collected from all the circumstances of the case. I would ask how it is possible to read the covenant in this case, without being directed to the proper criterion of damages? I can conceive of no other interpretation which the instrument will legita-mately bear, than that Foster claimed a credit of one hundred and fifty dollars upon the judgment of Childress, and that Childress agreed .that in case he should issue execution upon said judgment before a certain time, that then it should be considered the amount of said credit, and that he would pay the same. If the covenant had merely contained a condition that, in case he should issue execution upon a judgment, and had not set forth the circumstance that Foster claimed credits, it might have been insisted with some degree of plausibility, that the contract was merely to secure Foster against any sacrifice which might result from having his property sold by the sheriff, or to give him all advantages that might arise from the advance in its value; but when the contract shall be subjected to a critical examination, it will be found that no such considerations could have influenced the parties, and that they had nothing else in view but the credits to which Foster was entitled. The court will readily perceive that this is the only fair and rational construction that can be placed upon the instrument, and that necessity requires such a construction. The plaintiff in this suit was not obliged to commence his suit before the 1st day of March, 1839; and if he commenced it after that time he could not have claimed a view of the books of Childress. If there be any difficulty or hardship in this case, the defendant brought it upon himself, as he deliberately entered into the contract, and voluntarily and wrongfully committed a breach of if. There is no principle of law more generally recognised or more just in its spirit, than that no man shall take advantage of his own wrong. I think the court will be irresistibly driven to the conclusion that the parties foresaw the consequences of a breach of the covenant and assessed the damages themselves; the law is clear that they may do it. See Comyn on Contracts, 4, to 49. The next objection is, that, the circuit court refused to grant a new trial. The court will perceive by reference to the record that the only cause assigned why a new trial should have been granted is, that the court instructed the jury contrary to law. If this be a sufficient cause for a new trial, admitting it to exist, yet the defendant waived the advantage when he filed his motion in arrest of judgment and assigned the same causes, as the basis of said motion. The court will please refer to Pothier on Obligations, vol. 2, at the bottom-’ of page 81 to 86, and more especially to the remarks of Mr. Justice Heath, on page 85, and also to the decision of Mr. Justice Chambers, who lays it down, that though in point of form the action was for damages, (which I presume have been concurrent,) yet if the parties are to be considered as having stipulated for certain damages, the jury ought to be directed to find damages to the amount of the whole sum agreed for, and the effect of the case must have been the same as if the plaintiff had declared in debt for a penal sum. The court is also referred to 15 Johnson’s Reports, 201, Hashrouch vs. Tappan, and they will there find that covenant is the proper remedy, the verdict being in damages. If the court will take the eight first sections of the act concerning penal bonds, in the 609th page of Ball and Roane, it will be seen that bonds strictly penal, and not those where the damages are liquidated, are exclusively contemplated, as judgment in all is required to be entered for the penalty which shall stand as a security for all future breaches. It must be obvious to the court that such would not be the effect of a judgment where the damages are liquidated, as the plaintiff is entitled to his execution forthwith for the entire sum. I feel fully assured that, upon a critical examination of all the authorities referred to, that this case will be found to be clearly a case of stipulated damages, and that the instructions given by the circuit court to the jury, are fully warranted by the strict principles of law.
   Dickinson, J.,

delivered the opinion of the court:

As far as the parlies pleaded over, the demurrers are virtually withdrawn; but to the plea, to which the demurrer was sustained, it is different; for, a demurrer, in whatever stage of the proceedings it is taken, reaches back, in its effect, through the whole record, and, in general, attaches ultimately upon the first substantial defect in the pleadings, on which ever side it may occur. Thus, if the declaration is ill in substance, and the plea frivolous, as is contended by the plaintiff, and so decided by the court below, and demurrer joined on the plea, judgment must be given for the defendant. For, though the issue is upon the plea only, and though that is worthless, yet a bad plea is sufficient for a bad declaration. Com. Dig. Pl. M. 1, 2; 2 Salk. 519; 1 Saund. 285; n. (5); 1 Strange, 303; 2 Wils. 150; 10 Wheaton, 287. Covenants are' to be so expounded as to carry into effect the intention of the parties, and this intention is to be collected from the whole contents of the instrument, so as to make one entire and consistent construction of the whole; and be such as to support, rather than defeat the transaction. Now, what is the reasonable and common-sense construction of the deed?. That Childress and Foster had obtained a judgment against Foster, upon an unliquidated claim, and to save further litigation, it was agreed that Foster himself, or any other person whom he might select for that purpose, should examine the books for the years 1836 and ’7. And that the errors, if any, should be rectified. That, in the meantime, execution should not issue upon the judgment previous to the first of May, 1839, unless there was imminent danger of the debt being lost, by the insolvency of Foster, or otherwise. The deed itself, sealed by the party, carries with it evidence of consideration, and has for its object, not the performance of an act, malum in se, but the prevention of litigation and the advancement of justice. The question now is, are the breaches well assigned? It is not usual in covenants to set forth the penal part of a deed, though we are not prepared to say it vitiates the pleadings so far as to render the defect fatal. In setting out a contract, it is sufficient to state it according to its legal operations and effect. The allegation of breach must be governed by the nature of the stipulation. It should be assigned in the words of the covenant, either negatively, or affirmatively, or in words co-extensive with the import and effect of it, if, in so doing, a distinct breach is thereby shown. It is an established rule, that where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he can. And when any thing is to be done by the plaintiff, before his right of action accrues upon the covenant, performance of that thing must be averred in the declaration. It has been settled by a long series of modern decisions, that no technical words are necessary to make a condition precedent or subsequent. And that the question, whether they are the one, or the other, is to be determined by the intention and meaning of the parties, as it appears on the instrument, and by the application of common-sense to each particular case; to which intention, when once discovered, all technical forms must give way. Where the right of action depends upon the performance of a condition precedent, by the plaintiff, if the declaration omits to allege performance, the omission is incurable, by verdict, 6 T. R. 710; Com. Dig. Pleader C. 69; 1 Saund. 320; 2 B. and P. 447; 7 T. R. 125. For,in every case of the kind, performance of the condition, or what is equivalent thereto, is of the gist of the action, and is, moreover, a distinct fact, which cannot be inferred or presumed from the other facts necessary to be alleged. If performance, or what is equivalent thereto, be not alleged, the defendant may plead non-performance of the conditions precedent, in bar of the action, or take advantage of it on demurrer, or in arrest of judgment, if the omission appears on the record. It is true, that the breaches are set out, in the declaration, in the language of the covenant. But was there any act to be done by Foster before he was entitled to his action? Childress covenants that Foster, or any other person whom he may choose for that purpose, may examine his books for the years 1836 and ’7, and that the errors there, if any, shall be rectified. As no time is stipulated, Foster would have until the first day of January, 1839; for it is evident, the issuing of the execution was to be deferred only to give time for the examination. There is no averment that Foster ever requested Childress to permit him to examine his books, or that he gave him notice that either he, Foster, or the person he had chosen, was ready and willing, and offered to make the examination, nor does he show any equivalent thereto. The breach is clearly insufficient, and, as the judgment must, on the whole, go against him who commits the first substantial fault in pleading, we are of opinion, that the judgment, upon the demurrer to the second plea, ought to have been, not for the plantiff, but for the defendant. The judgment is reversed, with costs, and this case remanded, with instructions to permit the parties to amend their pleadings, if leave is asked.


source: Caselaw Access Project

author: Ringo, C. J.,

license: Public Domain

text:
    Clary & Webb against Morehouse, Adm’r of Latting.
    Eeeoe to Chicot Circuit Court.

    An endorsement, in writing, upon a declaration, signed by the defendants, by which they state that they acknowledge service, and waive the necessity of any process in the case, is a mere simple agreement entered into by them, which cannot dispense with a service of process, and will not authorize a judgment by default.
    Where a note is given, bearing interest at the rate of ten per centum per annum, the . payment of the interest, as well as the principal, must be negatived in the breach, or it will be too narrow.
    The defendant in error, on the thirtieth day of April, 1838, filed, in the office of the clerk of the circuit court of Chicot county, his declaration in debt, against the plaintiff in error, with an endorsement, signed by them, as follows: “We, David Clary and Albert W. Webb, the within defendants, do hereby acknowledge service of the within declaration, and waive the necessity of any process issuing thereon. Given under our hands, this 23d day of March, 1838.”
    The declaration is entitled of the term of the court, to be holden on the first Monday after the fourth Monday in April, 1838. No writ was issued in the case, nor was any appearance to the action ever entered by Clary and Webb, or either of them; but they being called, and not appearing, final judgment was given against them for the debt mentioned in the declaration, with interest and costs of suit.
    The declaration was founded on a note bearing ten per cent, interest; and no interest was demanded, nor was the non-payment of interest averred in the breach.
    TrabnalIj and Cocke, for plaintiff in error:
    The declaration does not sufficiently describe the character in which the plaintiff sues, and falls within the principle settled by this court in the case of Brown vs. Hicks, 1 Ark. 232.
    The obligation declared on was for the payment of ‡310, with interest thereon at the rate of ten per cent, per aunum, from the lime the same became due, until paid. The breach is, that the plaintiffs have not paid the said sana of $310, or any part thereof, without any averment that they had not paid the interest thereon. Yet the court rendered judgment for the sum of $310, with interest thereon, to be computed at the rate of ten per cent, per annum, from the time due, until paid. The breach is not co-extensive with the contract, and therefore bad. See 1 Chilly, 365-368. Nor can the court, upon a judgment by default, presume the interest was not paid, since the defendant has not complained of or alleged a breach of the contract, in this respect. We therefore maintain, the judgment of the court was erroneous, and ought to be reversed.
   Ringo, C. J.,

delivered the opinion of the court:

The plaintiffs allege that there was no sufficient service of the writ to authorize a judgment in this case against them. The question thus presented by the record and assignment of errors, though somewhat novel in its character, is by no means difficult to decide; because it is apparent, upon the first view, that no such proceeding is warranted by the common law, nor is it within any statutory provision in force in this State. Our statute provides for the institution of suits at law in the circuit courts of this State, by filing in the office of of the clerk of the circuit court in which the suit is instituted, a declaration, petition, or statement, in writing, setting forth the plaintiff’s cause of action; and, by the voluntary appearance of the defendant, or by filing such declaration, petition, or statement, in such office, and suing out thereon, a writ of capias ad respondendum against the person, or of attachment against the property, of the defendant. Rev. Stat. Ark. 619, S. 1. The requisitions of the statute do not appear to have been observed or complied with; for, as before remarked, no writ was ever issued, nor was there any voluntary appearance to the proceeding on the part of either of the defendants named in the declaration. The proceeding was, therefore, not authorized by law; nor were the plaintiffs, in error, under any legal obligation to appear, because they had not been required so to do, in any manner authorized or prescribed by law; and therefore, their failure to appear when called, cannot be regarded as such a default as authorized the court to give, or justified it in giving, judgment against them. The endorsement on the declaration, purporting to have been signed by Clary and Webb — being nothing more than a simple agreement, by which they acknowledge service of the declaration and waive the necessity of any process issuing thereon — could not be regarded by the court for any purpose; nor could it, in any manner, subject them to the same legal consequences as if they had failed to appear in the action, upon the service of a valid writ, requiring such appearance; because the law does not regard such acts or agreements of the parties to a suit, not made in the presence of the court, or entered on the record, as possessing, in themselves, such absolute verity as the official acts of the accredited officer of the court, whose duty it is to execute and return the process, and whose return cannot be controverted, as between the parties to the proceeding, so far as regards the truth of the facts therein stated, and therefore, as well as upon reasons of public policy, the legal consequences of not appearing in obedience to the mandate of a valid writ, requiring an appearance, legally executed by the proper officer, on the party whose appearance is required or enjoined, are essentially different from those attached to a like failure to appear in pursuance to the terms of agreement entered into and signed, as in this case, by the parties so undertaking to appear. In the former, the legal consequence is, thatjudgment may be given, upon such default, against the parties so bound to appear; in the latter, the failure to perform an agreement, if valid, may subject the parties so undertaking, to a new action upon the agreement; but the court is not thereby warranted in proceeding to adjudicate the case, or to pronounce any judgment upon the rights of the defendants; but the adjudication must, in such case, remain suspended, until the defendants are legally served with some valid process, requiring their appearance in court to answer to the action, or they, by some action done in court, voluntarily appear and make themselves parties to the proceedings. And here it may be proper to remark that we are aware that this proceeding was commenced before the revised statutes were in force, but the judgment was not given until they were in full operation as law; but this proceeding, whether determined by the law existing at the former or latter period, is equally unauthorized, irregular, and illegal; and for this reason only, we deemed it unnecessary to refer to the statutory provisions which must have governed the proceeding at the former. It is also insisted that the declaration is insufficient, in law, to authorize or uphold the judgment, because it discloses a contract, in writing, for the payment of three hundred and ten dollars, with interest at the rate of ten per cent, per annum, from the time the same became due, until paid;but fails to notice, or in any manner negative the payment of the interest, as stipulated by the contract, and therefore the breach, as laid in the declaration, is not commensurate with the stipulations contained in the contract; but is too narrow and insufficient. The breach must, in every instance, be governed by the nature of the stipulation; and it is a general rule, especially where the contract is specific to door forbear some particular act, that it should be assigned in the words of the contract, either negatively or affirmatively, or in words which are co-extensive with the import and effect of it; and, in general, if a breach be assigned in words embracing the sense and substance of the contract, though not in the precise words of the contract, it is sufficient. But if the breach vary essentially from the sense and substance of the contract, and be either more limited or larger than the stipulations of the contract or covenant, it will be insufficient on general demurrer. 1 Chitty's Plead. 291-92-93.

By the application of these principles to the case under consideration, it will be discovered that the breach, as laid in the declaration, is insufficient, because it is more limited than the stipulations of the contract, as set out in the declaration; upon every stipulation of which the plaintiff below sought to recover, and has actually obtained judgment, notwithstanding his failure to allege any breach of the express stipulation to pay interest at the rate of ten per cent, per annum, without which such interest would be unlawful, and could not be recovered, it is therefore,an essential stipulation of the contract; for it affects materially the legal rights of the parties to it. It confers upon one the right to demand, and imposes upon the other the legal obligation to pay, a larger sum than would otherwise result from the simple promise, or obligation, to pay the principal debt, and therefore, the plaintiff, to show a legal title to this additional sum, must aver a breach of the stipulation, which alone entitles him to it. The judgment is reversed, and the case remanded, under the rule in Gilbreath vs. Kuykendall, and with leave to the plaintiff to amend the declaration.


author: Dickinsojí, J.,

text:
    Watkins, Adm’r of Byrd, against McDonald, and others.
    EkroR to Pulaski Circuit Court.

    Where an administrator sues upon a cause of action belonging to him in his represen, tative character, if the declaration commences, “ A. B. administrator, &c., complains, &e., of a plea that they render unto him the sum; and the breach alleges no refusal to pay him as administrator, he cannot be considered as suing in his repre. sentative character.
    As in such case the plaintiff does not show that he sues in his representative character, either in stating the cause of action, or in the breach, it is bad on demurrer.
    In such case, on demurrer sustained, a judgment for costs, de bonis propriis, is proper.
    This was an action of debt, upon a note executed to Ann L. B. Byrd, in her life time. The declaration commenced as followsí “Robert A. Watkins, of said county of Pulaski, administrator of all and singular the goods and chattels, righls and credits which were of Ann L. B. Byrd, late of said county, deceased, at the time of her death, who died intestate, plaintiff in this suit complains,” &c., in the deiinet alone. It then set out the note. The breach then negatives its payment either to “ Ann L. B. Byrd in her lifetime, or to the said plaintiff,” &c., setting out the grant of administration,) and concludes with averring the refusal to pay to the said plaintiff, administrator as aforesaid, to the damages of the said plaintiff as administrator as aforesaid, &c.
    To this declaration a demurrer was sustained, and the plaintiff failing to file a sufficient declaration, the suit was dismissed.
    The same state of case existed, and the same decision in both courts was given, in the case of Watkins, adm'r., vs. Inglish and others.

    Ashley and Watkins, for plaintiff in error:
    We claim this suit to have been correctly brought by Robert A. Watkins, as administrator of the estate of Ann L. B. Byrd, deceased, against the defendants in error, and that it appears from the declaration that he sued in that capacity. The suit was brought upon a writing obligatory, made by the defendants in error, to the plaintiff’s intestate in her lifetime. The declaration is in exact conformity with the most approved precedents in Chilly’s Pleadings, Harris’ Entries, and other books of forms and entries. 2 Chitty’s Plead. 109, 140; Harris’ Mod. En. 553, 567. The commencement of the declaration is in the detinet, and not in the debet and detinet. The plaintiff then sets out the making of the writing obligatory, by the defendants, to his intestate in her lifetime, coupled with the allegations of the grant of letters to him, and concludes with the breach, that they have not paid the money either to his intestate in her lifetime, to the plaintiff since her decease, to the damages of the plaintiff as administrator as aforesaid, and therefore he brings his suit, &c., and a manifest of his letters.
    The decision of this -court in the case of Brown Exe. of Phillips vs. Hicks Adm’r of Phillips, 1 Ark. Rep. 232, that an executor, administrator, assignee, or the like, who sues in his representative character, in order to do so, must aver that he sues as executor, or as administrator, or as assignee, and that nothing by intendment can supply that allegation, and which is made upon authority, is not applicable to this case. By reference to that case, and all the cases there cited in support of it, it will be perceived that they were actions brought by executors or administrators, upon promises alleged to be made to themselves, whereas in the case now before the court, the action is founded upon a contract made with the decedent; and it appears from the body and substance of the declaration, that the plaintiff sues as administrator in his representative capacity, because by law, he could not in such case, sue in his individual right. So that although it be law that “An executor or administrator should describe himself as suing in that character, and in stating the debt and promise to him, the words executor or administrator should be inserted, or the omission will be fatal even after verdict,” 2 Leigh’s Nisi Prius 997; 1 Saund. 112; Henshall vs. Roberts, 5 East 150: Yet, “ the rule is, that when the action is on a contract with the decedent, or for a tort to the goods, before they have actually come to the executor’s possession, it can be maintained by him only on the decedent’s title, and consequently only in a representative character; but where it is on a contract express or implied, which has sprung up or been created since the decedent’s death, or for a tort to the goods in the executor’s possession, or for converting or detaining them, having escaped from his possession, or for the price of them having been sold by him, it can be maintained by him only in his own right, and the naming himself, executor, will not change its nature.” Leigh Nisi Prius 999, Note 1; Kline vs. Guthart 2 Pen. Rep. 491; Kendall vs. Lee, 2 Pen. Rep. 485; Boggs vs. Bard, 2 Rawle 102; Adams vs. Campbell, 2 Vermont Rep. 447; Stiles vs. Couster, 2 Gill & John. 49; Turner vs. S. Cowden, ib. 455; Lassaer vs. Walker 5, ib. 102.
    It seems then, that where an executor or administrator sues upon a contract or promise made to his testator or intestate, if the contract be correctly described, and his right to demand the debt set forth, it necessarily appears that he sues in his representative capacity, without using the technical phraseology as administrator, or as executor, and in the precedents before referred to in Harris’ Entries, those expressions no where occur.
    But it is difficult to bring under any certain general rule, the cases where an executor or administrator is bound to sue as such, and aver his representative character. According to the cases decided, where a contract or promise is expressly made to an executor or administrator, as such, he should sue upon it as executor or administrator, and no more. Henshall vs. Roberts, 5 East. 150; 1 Chitiy Pl. 204. But on the other hand it is held, that when a promisary note or bond is given to one, as executor or as administrator, though given to him as expressly such, he must declare on such a bond or note, in his own name; and so strong is this rule, that the executor or administrator cannot join a count on such note or bond made to him as executor or administrator, to a count in a promise or debt due to his testator or intestate; and the reason given is, that the taking the bond or note, would extinguish the original debt, and it would not when recovered be assets. So money also received to the use of an executor, after the death of the testator, gives a different cause of action to the executor, from that which accrued to the testator, by the receipt of the money in his lifetime. In the latter case, the executor must necessarily sue as such, and is not liable for costs, if he fails in the action; but in the former case he would not sue as executor, but may bring the action in his own name, and if he does sue as executor, he is liable for costs, as any other person is. 1 Ld. Raym. 437, Nicholas vs. Killegrew, 2 Ld. Raym. 1215, Willis vs. Lewis; 2 T. R. 447, Smith vs. Barrow; 2 Saund. Rep. 117 c., 117 d; 10 Mod. 316, Betts vs. Mitchell; 3 Bos. and Pul. 7, Hosier vs. Ld. Arundel; 1 Pen. Rep. 167; 10 Pick. 154; 8 Wend. 305.
    In regard to this case of Brown vs. Hichs, in view of the foregoing; quere, if the slave mentioned in the declaration had been taken or detained from Hicks’ intestate, and had never come to his possession as administrator, clearly he should have sued as administrator, and so averred; but if the slave had come into his possession as administrator, and subsequently taken or detained from him, he would not only have had the right to sue for the slave in his individual character, but it would have been improper for him to have sued in his representative capacity; and an averment that he did sue in his representative capacity would not make it so, or exempt him from the payment of costs de bonis pro-priis, if he failed in the suit. As to the case now before the court, we argue that, from all the authorities and precedents, the declaration is sufficient in the particular for which it was demurred to; that it appears from the whole declaration, that the plaintiff sued in his representative capacity, upon a bond made to his decedent, and that, in any event, the literal allegation that he does so sue, appears upon the declaration, and if it did not so appear, such literal and technical allegation is only necessary in the small class of cases, of suits brought upon contracts or promises made to the executor or administrator as such; and in such case if the contract or promise be a bond, note, or “ instrument in writing,” the person who is executor or administrator, must sue as an individual; so also, he would sue as an individual for torts to, or the taking or detaining the personal property of his decedent, after thé same had once come into his possession. But we apprehend the judgment in this case will be reversed, on account of the error in dismissing the suit in the court below, instead of entering judgment against the demurrer. It is also a ground of reversal, that the court below gave judgment against the plaintiff for the costs of suit.
    The court below by its decision of the demurrer, declared that the plaintiff had sued as an individual upon an obligation made to his intestate, and the inference is, that the judgment is against him de bonis propriis.

    Trapnall and Cocke, Contra:

    This demurrer the court very properly sustained, in obedience to the decision of the Supreme Court, in the case of Brown vs. Hicks, 1 Ark. Rep. 232. As all the authorities were carefully examined and reviewed by this court, in that case, it is not necessary here to refer to them.
    The plaintiff, however, hopes to exclude this case from the operation of the principle settled in the case of Brown vs. Hicks, because he has alleged in the conclusion of his declaration, that the said defendants have neglected and refused, and still neglect and refuse to pay the said sum of money, or any part thereof, to the said plaintiff, administrator, as aforesaid to the damage of the said plaintiS', as administrator as aforesaid, &c. &c. To this we would answer, that the plaintiff, not having been described as suing in his character as administrator, there is no antecedent to which the words as administrator as aforesaid, in the conclusion of the declaration, can have appropriate reference. And these words, of themselves, do not amount to a substantive averment, that the suit was brought by the plaintiff in his representative, and not in his individual character.
    , It is a well settled rule of pleading, that the declaration must state, with certainty, who are the parties to the suit, and not leave them to be made out by inference or conjecture. 1 Ckitty, 230. It is to the commencement of the declaration, and not to the conclusion, that we must look for a statement of the names of the parties to a suit, and of the character in which they are to sue or be sued. “ What is termed the commencement of the declaration, follows the venue in the margin, and precedes the more circumstantial statement of the cause of action.' It contains a statement of the names of the parties to a suit, and if they sue or be sued in another right, or in a political capacity (as executors, assignees, qui tarn, &c., &c.,) of the character or fight in respect of which, they are parties to the suit. 1 Chitty, 254. It is also a well settled rule of pleading, and one too familiar to every member of the profession, to require the citation of authority in support of it, that a party must recover in the character in which he sues, or he cannot recover at all. Inasmuch, therefore, as the plaintiff in this suit, has declared in his individual character for a cause of action, 'that could only have accrued to him in his representative character, the court below decided right in sustaining the demurrer. Nor can the words at the conclusion of the declaration “ as administrator as aforesaid,” cure the objection; 'for it is itself error to declare as Robert A. Watkins, and demand that damages should be assessed to him in a representative character; for he can only have judgment in the character in which he sues.
   Dickinsojí, J.,

delivered the opinion of the court:

The interest in all the goods, chattels, rights and credits, at the death of the party, is vested in his executor or administrator, as the case may be, whether he has reduced them into his actual possession or not. The interest which such representative takes in the property of the deceased, is very different from that which belongs to him in his own right. Instead of being an absolute interest it is only temporary and qualified: he is entitled to it in auter droit only, and is entrusted merely with the custody and distribution of the effects. Com. Dig. Adm'r B. 1, 2, 10; 9 Co. 88 b. As the representative, he may maintain an action on simple contract, in writing, or not in writing, either express, or implied, made with the deceased, whether the same became due and payable before, or after death. But he must sue in his representative capacity, and expressly name himself as such. 1 H. Black, 528; Portman vs. Cane, 2 L. Raym, 1413; Cockerill vs. Kynaston, 4 T. R. 278; 1 Bac. Ab. 91; Rutland vs. Rutland, Cro. Eliz. 377; Com. Dig. Adm. B. 1, 3; D. 1, 2; Toller on Exec. 439. The authorities as to the character in which the plaintiff should sue, are well calculated to create doubt and confusion. Yet the lines of distinction are strongly marked and well defined, and, when once discovered, must carry conviction of their correctness. In contradistinction to the cases in which the plaintiff must bring his action, strictly in his representative character, it is laid down in 5 T. R. 234; 2 T. R. 477; 5 Wend. 36; and other reporters, that if the defendant receives money, belonging to the estate, after the death of the testate or intestate, or on a bond executed to him after his death, to secure a debt, due by simple contract, they account to the plaintiff, personally, and not in his representative character.

The declaration in this case is, u That Robert A. Watkins, administrator,” &c., complains, &c., of a plea u that they render unto him the sum;” &c., nor does the breach allege that they refused to pay him as administrator.

The plaintiff no where shows that he sues in his representative character, either in stating his cause of action, or in the breach for the non-performance of it. In the case of Brown vs. Hicks, 1 Ark. R. 242, the court says: “ There is a striking difference between the' averment in the declaration, executor, or being executor as aforesaid,” and the words u as executor as aforesaid. In the one instance, executor, or being executor as aforesaid, are mere words of description, having exclusive reference to personal, identity. In the other, the term as executor as aforesaid, has but one meaning which is fixed by law, and is that the party sues, or is sued in his representative character.” This principle laid down in the case last referred to, is fully sustained by abundant authority, and not only applicable to the case before us, but correctly decided.

The judgment is not so formal as it might be; for, upon.sustaining the demurrer, in which there is no error in the court below, it should have been for the defendant, in bar of the judgment. It is, however not so irregular as to justify a reversal. The plaintiff, failing to file a sufficient declaration, as the court says, (for it does not appear whether leave was asked to amend or not;) the case is dismissed, and judgment entered, de bonis propriis, &c., we think, correctly, for, as the plaintiff did not bring bis suit as administrator, in the absence of any legislative provision, he must pay the costs. The judgment, of the circuit court is affirmed.


author: Dickinson, J.,

text:
    Henry A. Engles, Sheriff &c., against Day and others.
    Appeal from Independence Circuit Court.

    ■That provision of the Revenue Law, in section 45 of the chapter in the Revised Statutes on Revenue, which imposes a tax where any person shall commence merchandising, or bring in a new stock of goods during the year, was intended to tax the whole amount' of merchandise introduced into the State at different periods, and not merely the actual cash capital invested, or the original stock of goods.
    Every new stock therefore, brought in during the year, must be taxed, whether purchased with cash or on credit.
    Where the declaration commences, “A. B. Sheriff1, See., complains, &c., that they render unto the said plantiff,” &c., it is a suit brought by him as an individual, and not in his official character: and if the gravamen of the action is the non-payment of taxes, the declaration is bad on demurrer.
    This was an action of debt instituted by “ Henry A. Engles, Sheriff and Collector of the revence for the county of Independence,” against Day and others. The declaration alleged that on the 28th of June, 1839, the defendants brought into the county of Independence, a stock of merchandise worth $10,000, but did not report the same to the Sheriff for taxation^ and claimed eight hundred dollars, as the tax upon the stock of goods.
    To this declaration the defendants filed three pleas. The defence set up in each, was substantially the same, and amounted to this: That immediately after the first of January, 1839, the defendants having entered into partnership, with a capital of six thousand dollars, gave in that capital for taxation to the plaintiff as Sheriff; and were taxed therefor, for the year 1839, that they afterwards employed no additional capita], nor brought any further capital into the county; and that the stock of goods mentioned in the declaration was bought with the same capital.
    To these pleas the plaintiff demurred. His demurrers were overruled, and final judgment given against him.
    R. W. JohnsoN, Atto. Gen. for the appellant:
    In the month of January, 1839, the defendants, merchants, imported a stock of goods, in which was vested a capital of six thousand dollars, and afterwards, in the month of June, of the same year, the defendants imported a certain other stock of goods, in which was vested the self-same capital used for the purchase of the January stock.
    By provision of the Revenue Law of the State of Arkansas, (See Rev, St. p. 679, sec. 45.) “ When any person shall commence merchandising,” &c.
    The defendants gave in, for taxation, the capital of six thousand dollars, invested in the January stock of importations. The defendants having disposed of the January stock, by a prompt and easy sale, in June following imported a new stock of goods, investing therein $6,000 more, which they aver to be the self-same capital taxed under the January importation, and they refused, upon the new stock imported in June, to pay the tax demanded by the collector.
    A question of construction here arises upon the 45th section of the Revenue Law. Does the statute contemplate a tax upon the actual capital invested in merchandise, or a tax upon the merchandise itself imported, referring to the capital merely as a medium through which that tax may be rendered uniform and certain?
    The defendants imported in January, $6,000 capital in merchandise; in June they imported, with the same capital, another $6,000 worth, in merchandise. These, it is clear, are transactions to the amount of $12,000, by means whereof, there are $12,000 worth of merchandise in the State of Arkansas, between the 1st of January, and the latter part of June.

      It follows clearly, that it is $12,000 of capital invested in merchandise, which is a subject of taxation somewhere; and it being the intention of the law to impose an equal tax, the only reasonable construction of this transaction is, (if capital be the object of taxation,) that the sale of the $6,000 January importation, was a sale of the privileged capital, (that is, capital upon which tax is paid,) and that any future investment in merchandise, to be imported, must be regarded as the investment of new capital, so far as the revenue law of Arkansas is concerned. If this be not the construction to he given to the term capital, as it exists upon the statute, the law leads clearly to many vices, and much that is absurd. By placing $6,000 capital in the hands of a third person, a capital of $50,000 dollars, or more, may be used in merchandise, clear of taxation, in the face of the Statutes of Revenue, and its officers. A is a merchant of this State, B invests a capital of $6,009 in merchandise, and after importation, and tax paid, sells his stock to A. This capital of $6,000 is now privileged ; hejj imports, by contract, for all the old merchants, and sells to them as fast as he can transmit from the borders of the State, and an unlimited amount of capital is invested in merchandise, free from taxation. Since, how could you collect tas upon A on those articles purchased of B, the tax upon the whole capital is already paid; or it would be proper to tax the second capital invested in the same goods. Does not the tariff upon the first purchase fall upon the second, and should the second pay tariff twice ?
    The capital of the defendants, in their June importation, if termed the same original capital used in the January importation, is then a privileged capital: (provided the law contemplates taxation of capital rather than merchandise — a privileged capital, to fetch and carry — a vessel of fraud upon the revenue; a violation of the manifest design of the Legislature, and the dear intent and meaning of the constitution, (p. 38. sec. 2 of R. S.), which provides, “ that all property subject to taxation, shall be taxed according to its value* making the same equal and uniform,” and further, “ that no one species of property, for which a tax may be collected, shall be taxed higher than another species of property of the same value.” And which then makes a special exemption against merchants, but certainly not with a view that they should be spared from taxation; and we see that merchants pay tax upon goods, by the same rule that governs in all other matters of taxation. Bee R. S. p. 673, S. 2.
    If then the statute contemplates a tax to be laid upon the capital invested in importing goods, the subsequent sale of the goods must be construed to be a sale of the capital itself, upon which the tax was paid; or a third person (not already a trading merchant), who purchases those goods to commence trade upon, must pay a second tariff for the honor of becoming a merchant, and, at the same time, a privileged capital must be created, through which, ten fold its own value may be smuggled in, for the benefit of men already merchants, and from whom no tax could be collected for goods imported under the privileged capital, to the destruction of the revenue of the State, and the violation of the clear intent and meaning of the constitution.
    The true construction of this'Statute on Revenue (it is with deference suggested), is that merchandise itself is the object of taxation, and not the capital invested therein; that capital, as used in the statute, is referred to, merely as an- accurate medium through which the tax upon the merchandise may be rendered uniform and certain, not as the prime object of taxation itself. Nor does this construction lead to any result unconstitutional in its character, as for instance, the levy of a second annual tax, upon the same piece of property, nor does it thereby become an engine of injustice to the defendants, (for they reaped the fair profits of their first stock), or to any party whatever; nor does it lead to any after complication of construction to avoid destruction of the State revenue, nor to any unequal or, inconsistent action of the laws of the State, upon our own citiaeos engaged in commercial pursuits.
   Dickinson, J.,

delivered the opinion of the court:

The object of the Legislature was to raise a revenue upon each and every new stock of merchandise brought into the State. The act under which the assessment is made, though loosely worded, is sufficiently explicit. Such a construction as is contended for by the defendants in error, would, in a great degree, defeat the object in view. A question as to what is capital would, from the great diversity of opionion entertained upon it, involve us, at once, in doubt and difficulty. We shall not therefore, attempt to elucidate it. Credit, with a merchant, is all-important; and, with improperly regulated and preserved by promptness and punctuality, he can operate effectually to any extent he desires. The fact is of frequent occurrence, that men with a knowledge of business, accompanied with industry, frugality, and integrity, successfully engage in merchandising, and introduce large stocks, relying wholly upon their sales and returns, to meet their liabilities. If a merchant was subject to tax merely upon the actual cash capital which he employed during the year, it would place him, who purchased upon a credit, in a better situation than him who paid down, and enable the artful to introduce merchandise to an indefinite amount, and thereby enjoy greater advantages than one whose operations were limited to his actual cash capital. Again, a man known to possess funds to a large amount, could keep them in his pocket, or use them in some other way, and, from his acknowledged wealth, purchase upon credit, and evade the payment of any tax upon the ground that he had no capital employed. Or a person with $6,000, by buying and selling at short periods, and re-purchasing, could, from time to time, during the year, introduce merchandise and supply all other dealers. If called upon for the tax, he would answer that he commenced with but $6,000 capital, upon which, he had paid the tax, that the new importation was the proceeds of the same $6,000 with which the first goods were purchased. If this argument was to prevail, he might sell the new stock to another person, who would, upon the same principle, be also exonerated. For, if the fact of the capital having originally been taxed, is a defence to the one, it is to the other. Such a construction would be unfounded in reason and justice, and cannot be sustained by sound argument, or a fair and reasonable interpretation of the act by which the tax is imposed; for, it would, at once, destroy the degree of equality and uniformity upon which the constitution requires the revenue to be based. The 45th Sec. Rev. St. Revenue, 679, is, “ When any person shall commence merchandising, or bring in his new stock of merchandise into any county in this State,” &c.

And the 46th Section, further declares that, “If any sueh person shall not, within thirty days after the time of commencing merchandising, or bringing in his new stock of merchandise, report,” &c. If it had been intended to refer to the cash capital alone, actually used or employed, but few words would have been necessary so to confine it.

But as, on the contrary, the merchandise introduced at the commencement, as well as subsequent new stock, for the continuation of business during the same year, are expressly mentioned, we cannot doubt but that it was the amount of merchandise which was to be taxed, and not merely the amount of funds actually paid at the commencement. As without revenue, the State would be unable to provide the means for protecting its citizens, while engaged in their lawful pursuits, the act must be so construed, that none shall be permitted to elude it: for it is only by each one paying his due proportion towards the necessary expenditures, that the State is enabled to keep up that perfect system of police, in the administration of its laws, so necessary in all well regulated governments. That proportion must depend upon the nature of the pursuit, the degree of protection and assistance required, its profits, advantages, and privileges. He whose business operations are extended far and wide, and embrace many objects, deriving a benefit from each and every one, should, upon principles of equity and justice, as regards the extent of his dues to government, be placed upon the same footing of equality with him whose means are more limited. We are of opinion, that it was the intention of the General Assembly, to tax the merchandise introduced during the year, and that the defendants in error are liable upon the new stock introduced by them. The plaintiff in error, having demurred to the defendant’s pleas, and relied upon his demurrer, the rule-that the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it, here applies; and it becomes necessary to ascertain, first, if the declaration is good, for, if not, a bad plea is a sufficient answer to a bad declaration. The object of all judicial proceedings is, to arrive at legal certainty, and by this is meant, certainty as to the names and characters of the parties that sue, or are sued; certanty in the cause of action, in the breaches assigned, the issues, the verdict, the judgment, and all its incidents. This can only be arrived at by a fair and reasonable interpretation of the words used, and their intendment, of the context, and the subject matter in dispute, of the evils complained of, and the remedies to be applied. It follows, then, from these rules, that the plaintiff must show whether he sues in his own right, or in his representative character; if in the latter, he should be named in his declaration by his title of office. For instance, a suit by a sheriff, a collector, by a guardian, an heir, an executor or administrator; for, without such an allegation, or one of equal certainty, a party cannot maintain an action in his representative or official character. Hicks vs. Brown, 1 Ark. 239; 1 Salk. 296; 2 Bos. and Pull. 421; 1 Com. Dig. adm'r F. 20. The same principle holds as to defendants. The words sheriff, collector, administrator, executor, &c., without introducing the other words, showing that the suit is brought as such, would be considered as surplusage, simply a description of the person, as idle and unmeaning words. The declaration is, u Henry A. Engles, Sheriff and Collector of the revenue, for the county,” &c., “ complains,” &c., that u they render unto the said plaintiff the sum,” &c., and nowhere in the breach is he named, other than “ the said plaintiff.” It is evident that there is no averment or allegation in the declaration, that Henry A. Engles, as Sheriff, &c., sues, or any words tantamount or equivalent thereto. And, it is equally certain that unless there is some such allegation, he cannot maintain an action in his representative or official character. The term, as Sheriff, is not a term of form but of substance; essentially entering into the nature of the averment, and constituting the gist of the action. The difference between “ the Sheriff and Collector,” and the direct averment as Sheriff and as Collector, must be too plain to require further illustration. In the one instance, Sheriff and Collector are mere words of description, identifying the person; in the other, the terms as Sheriff, and as Collector, have but one meaning which is fixed by law, and that is, that the action is brought in his official or representative character. The judgment is affirmed.


text:
    Fulton, Adm’r of Holt, against John W. Hunt.
    Where suit was brought, and judgment rendered below, on throe instruments of writing, one of which was for a sum less than a hundred dollars, a remittitur may be entered as to the count upon that note, in this court, after errors joined, argument and submission to the court.
    And this may be done, although not the original record, but a mere transcript, is before this court.
    Such remittitur will be entered, upon the payment, by the defendant in error, of all costs on the writ of error, if the writ is no further prosecuted after the amendment. If no further prosecuted, the judgment is affirmed, deducting the amount remitted; other, wise, the defendant pays the costs of the amendment, and the other costs abide the event of the suit.
    The amount so remitted can never be recovered in any other action.
    This was an action of debt instituted upon two obligations and one note, in which the defendant recovered against the plaintiff's intestate, the aggregate amount of the several writings, with damages equal to the interest which had then accrued upon them. The declaration counts separately upon each instrument, one of which is for the sum of twenty-one dollars only. The judgment was given by default, and the plaintiff in error insists that the circuit court had no jurisdiction of the demand for twenty-one dollars, and erred in pronouncing judgment. After the assignment of errors had been joined, and the case argued and submitted, the defendant in error, by leave of the court, filed a motion for leave to enter a remittitur upon the judgment of the circuit court, for the amount of the writing obligatory set out in the second count of the defendant’s declaration, twenty-one dollars, with interest and damages, whereby the error in the judgment, if any, might be amended and obviated.
    Trapnall and Cocke, for the motion;
    Ashley and Watkins, Contra:

   Ringo, C. J.,

delivered the opinion of the court:

Upon consideration of the motion, it is the opinion of the court, that the right of the defendant to enter the remittitur in the circuit court, is unquestionable; this right has been held to extend, not only to the amount of damages, but also to several causes of action, distinct debts, distinct acres of land, and distinct pleas. Tate vs. Whiting, 7 Mod. 196; Morris vs. Gelder, &c., 1 Ld. Raym. 317; Mulcarry and - vs. Eyres et als. Cro. Car. 512; Cutforthay vs. Taylor, T. Raym. 395; Andrews vs. Delahay, Hobart, 178; Thwaites et ux., &c., 5 Mod. 212, 213, 214; Duppa vs. Mayo, 1 Saund. 283; 2 Arch. Pr. 221. And this right is recognised as existing at a term subsequent to that in which the judgment was signed, and even after error brought while the case is pending in the court above. Pickwood vs. Wright, 1 H. Black, 642; Rees vs. Morgan, 3 T. R. 349; Petrie et als. vs. Hannay, ib. 649; Doe ex. dem. vs. Perkins et als. ib. 749; Dunbar vs. Hitchcock, 3 M. & S. 591; Coster vs. Phœnix, 7 Cowen 524; Hemmenway, et al. vs. Hicks, et al., 4 Pick. 495; 2 Archb. Pr. 224. In addition to the authorities here cited, there are others in which the same principle, in regard to amendments and remittitiur is recognised and acted upon, as well in the courts of England as of the United States, as also some conflicting decisions which we have not considered it necessary to cite, as, in our opinion, the principles which we have stated, have decidedly the weight of authority, and more substantial reasons, in their favor. But the principal difficulty arises from the consideration that the original record is not before us, but a transcript only, for the amendment of which, in this court in any matter of substance, there is no express authority conferred by any statutory provision within our knowledge; yet, in the case of Dunbar vs. Hitchcock, above cited, which was commenced in the court of common pleas, and removed into the king’s bench, by writ of error, and there determined, and afterwards taken before Parliament, by writ of error to the king’s bench, the latter, after the errors were assigned in Parliament, notwithstanding the original record was not before it, but remained in the common pleas, amended the record in the very matters which had been assigned as error in Parliament; and Ld. Ellen-borough, C. J., in delivering the opinion of the court of king’s bench, upon the rule to amend, uses the following language: “ I find, by reference to the minutes of proceedings, in this court, that this court is in the habit of granting leave to make this sort of amendment. I find that it is ordered thus: Let it be referred to Mr.-- to amend the record, according to the several proceedings in the inferior courts to be perused by him.” So that it appears that, in that instance the court, in the exercise of its discretion, ordered the materials to be brought before them, in order to make the amendment. Whether the transcript be carried to the House of Lords, or not, if, in this case, the amendment is warranted by the statute of amendments, it is our duty to make such amendment. Certainly, this is no greater latitude of amendment than was allowed in Short vs. Coffin, where the court thought itself authorised to amend a judgment against an executor by making it de bonis testaioris si, &c., instead of de bonis propriis, as the mistake of the clerk. And in the' case of the Bank of the Commonwealth of Kentucky vs. Ashley, and Ella, defendants, an action of debt, in which the defendants in error, in the declaration, purported to count severally, upon sixty-eight bills, or bank notes of the bank of the Commonwealth of Kentucky, and had recovered a judgment for $6,350, with interest, being the aggregate amount of said notes; upon examining the declaration, it appeared, that one of said bills had been omitted, and, of consequence, the declaration made out a less sum, and one debt less in number than the writ claimed, or the judgment gave, which was admitted to be error; the supreme court of the United States permitted the defendants in error to amend and obviate the error, by entering, in that court, a remittitur of the debt so omitted, and damages, pro tanto, and then affirmed the judgment, without costs. 2 Peters’ R. 327.

With these precedents, of such high authority, before us, calculated, as we conceive, to advance the ends of justice, by means more expeditious and convenient, and less expensive than those which the defendant in error has an undoubted right to resort to, to accomplish the same object, we consider ourselves authorised to allow the amendment to be made, and the remittitur to be entered in this court, upon the payment, by the defendant in error, of all the costs upon the writ of error, if the same shall not be further prosecuted after the amendment is made; in which event, the judgment will be affirmed, deducting therefrom, the amount so remitted; otherwise, the defendant will pay the costs of the amendment, and the residue of the costs abide the issue of the suit, to be adjudged as in other cases.

In adopting this practice, the spirit and design of the several provisions of law, authorising such amendments in the court, where the original record is, are, in our opinion, as fully accomplished, in a manner much more expeditious and beneficial to the parties, than they would be by suspending the judgment of the court, to give the defendant time to obtain an amendment of the record, by entering the re-mittitur in the circuit court, and then removing the record into this court, by writ of certiorari, notwithstanding more precedents may be adduced in support of this practice, than of that which we have adopted, although the latter cannot, in any view which we have been enabled to take of the subject, in any manner impair, or endanger the legal rights of either party, as the circumstances which authorise such an amendment as the present, in either court, must, in every instance, necessarily appear, upon an inspection of the record itself, and cannot, in any instance that we are aware of, be justified by any thing dehors the record, which may be presented or made to appear; beside which, the redress sought by the plaintiff in error, so far as relates to the illegal excess of the judgment against him, is fully obtained, without costs, and in a manner more advantageous to him, than if the judgment was reversed, for that error,leaving him subject to a recovery of the amount so remitted, in the same or some other action, from the recovery of which, the defendant, by his remitter, will be for ever precluded.


text:
    Brown, Executor of Phillips, against Fleming, Assignee.
    Error to Crawford Circuit Court:

    A special judge appointed by the Governor, to sit in a certain court, in cases where the regular judge is incompetent to sit, cannot hold a special term; and all proceedings had before him at such a special term,are coram non judice.

   Ringo, C. J.,

delivered the opinion of the court:

The record affirmatively states the proceeding to have been had “at a special term of the circuit court of Crawford county, began and held at the Court-House of said county, on the 23d day of December, A. D. 1839, before Nathan Haggard, special judge of said' circuit court.” The regular term, as fixed by law, of the circuit court, was the "first Monday in December, and we are not aware of any statute by which the special judge was authorised to hold a special term. It does not appear to have been at, or during the continuance of the regular term, nor at a special session to which the circuit court had been adjourned, by any previous order of the court, or of the judge. Revd. St. 233. The law, under which the appointment is made, contemplated that the judge would attend at the regular term of the court, as less inconvenient to the community, whose attendence may be required, as witnesses, jurors, &c., and less expensive to litigants. The whole proceedings therefore, before the special judge, were coram non judice, and utterly null and void. As the suit was commenced in the county court, from the judgment of which, an appeal was taken to the circuit court, and no disposition has been made of it, this case now stands for trial in the circuit court, and the parties occupy the same position they did at the time the appeal was taken. The question as to the holding of the special term was so fully discussed in the case of Dunn vs. the State, 2 Ark. 229, that further comment is deemed unnecessary. The writ of error must therefore be dismissed.