text:
    The State Bank vs. Criswell.
    The Bank was not restricted hy its charter to dealing' in promissory notes only as collateral security.

      Error to Iza/rd Gvrcidt Court.

    The Hon. A. B. GbeeNwood, Circuit Judge.

      S. H. Hehpstead, for tbe plaintiff.
   Mr. Justice Soott

delivered tbe opinion of tbe Court.

Tbe Bank sued Criswell, maker, in assumpsit, on a promissory note for $1,228 JO, dated tbe lJtb of March, 184-2, payable at twelve months, at tbe l^atesville Branch, in Arkansas Bank paper. It was payable upon its face to Win. S. Hynson, who, on tbe day. of its date, as is alleged, endorsed'it to Aaron W. Lyon and Wm. M. Wolf, and they, on tbe same day, endorsed it to tbe plaintiff. Tbe writ having been quashed, and final judgment rendered against tbe plaintiff, tbe case was brought into this Court, where, at tbe January term, 1850, that judgment was reversed, and tbe cause remanded. (5 Eng. R., in note at p. 638.) When tbe cause was returned to tbe Circuit Court, four pleas in abatement were interposed, tbe issues upon which having been found for tbe plaintiff, tbe defendant filed eleven pleas in bar. After tbe determination of issues of law as to some of them, issues of fact were formed upon all except tbe foivrthplea. To this, tbe Court below overruled tbe demurrer that was interposed to it, and tbe Bank, refusing to answer further, and electing to stand on tbe demurrer, final judgment was rendered for tbe defendant, and tbe Bank brought error.

That plea is as follows, to wit:

“Because, be says that tbe said plaintiff bath not, by tbe act of incorporation, nor tbe laws of tbe land, authority to deal in such instrument of writing as tbe one described and set forth in tbe plaintiff’s declaration, unless the same was received by tbe plaintiff as collateral security, to secure some pre-existing debt due tbe said plaintiff. And this -defendant further avers that tbe said plaintiff never did receive tbe said instrument, in tbe plaintiff’s declaration mentioned, as collateral security, nor sbedoes not'now bold tbe same as collateral security. And tbe said defendant avers that tbe said plaintiff did not obtain tbe said instrument of writing in said declaration mentioned by any dealings authorized by the act of her incorporation, or the laws of the land, and this he is ready to verify,” &c.

The sixth section of the Bank charter, (Pamphlet Acts of 1836, p. IT,) in express terms authorized the Bank to “ deal in bullion, gold and silver coin, promissory notes, mortgages, bills of exchange, public stock, or any collateral'security.” No one can reasonably suppose that it was the design of the Legislature that the Bank should have power to deal in gold and silver coin, only by way of collateral security for debts that might be due the institution. Promissory notes are, in express terms, put upon the same footing. Indeed, such a transaction as this, would have been directly within general banking powers without the aid of such an explicit provision, and there is nothing in the liquidation act, which was passed after this transaction, inconsistent with it. In fact, the 31st section of that act expressly authorizes any debtor, upon the conditions expressed, to substitute others in his stead. {(Pamphlet Acts of 1843, p. 86.)

The plea was bad beyond all question, and the Court erred in overruling the demurrer, and in rendering the judgment it did. ^Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Hanly vs. Adams.
    A judgment of tie Circuit Court will be reversed, -where the record shows that the judge presiding was disqualified to sit.
    In a soiro facias to revive a judgment, it is error to render a new judgment for the debt or damages; also to adjudge that it be revived from the date of the issuance of the writ, where the lien has expired before the sueing out of the sci fa.

    Under our practice, the scire facias is in the nature of a writ of summons, and may be served as such.

      Error to Phillips CH/rcmt Cowrt.

    lion. Charles W. Adams, Circuit Judge.
    ENGlxsh, for the plaintiff.
    Should not a soi.fa. be served by copy? {Sec. 9, oh. 93, Pig.) See form of return in Evans’ Ea/rris.

    The judgment should have been for the revival of the original judgment; and that plaintiff have execution thereof; and not in the form of a new judgment, as in debt on a judgment. Eva/ns’ Ea/rris, Entries, 2dvol.,p. 361/ 3 booh Elaoh. Gom. 421.
    The'judgment is for an excessive amount.
    It give^ a lien from the date of the writ, when it should have been from the rendition of the judgment. Pig., oh. 93, seo. 13.
    The plaintiff in the suit, being judge of the Court, was incompetent to render the judgment, (Const., Art. VI, seo. 12,) as there was no waiver by the defendant.
   Mr. Justice Scott

delivered the opinion of the Court.

This was a proceeding to revive the lien of a judgment, on a writ of soi.fa., issued from the Phillips Circuit Court the 3d of October, 1851.

The judgment itself was recovered the 16th of April, 1843, and was for $819 92, damages and for costs. At the fall term, 1851, and at the spring term, 1852, the cause was continued, because, as is stated upon the record, the presiding judge, being •a party, was disqualified to sit; at the succeeding November term, however, although the record shows the same disqualification, by some oversight, doubtless, there was a judgment of re-vivor taken by default. This was, that the judgmentspecifiedin •the writ, and the lien thereby created be Revived, and that the lien be continued from the 3d day of October, 1851, (which was the date of the issuance of the writ,) for the period of three years next thereafter, and then followed, that “ said plaintiff do have and recover of and from said defendant the sum of eighteen hundred and nineteen dollars and ninety-two cents for his damages, and eight dollars and twenty cents for his costs, &c., &c., and that execution issue,” &c.

Besides the fatal objection that this judgment was taken when a judge was on the bench who was disqualified to sit, it is erroneous, because the lien was adjudged to be revived from the date of the issuance of the writ, instead of from the date of the judgment of revivor, as is expressly provided by the statute for cases where the lien has expired before the suing out of the sci/re facias, (Dig., ch. 93,p. 6-24, sec.. 13, latter clause,) and because anew judgment was rendered for the debt, which is not the object of a proceeding by sci. facias to revive a judgment or its lien, but to obtain execution of the j-udgment already obtained, (Greer vs. The State Bank, 5 Eng. R., p. 457,), and to continue, when it has not expired, or reinvest, when it has, the lien created by statute. Besides, this new judgment for the debt, had it been, regular, is for an excessive amount. No lawful computation of interest could swell the debt so greatly in such a period of time. Under our practice, the-sci. facias is in the nature- of a writ of summons, (Alexander et al. vs. Steele, use, &c., 13 Ark. R. 392,) and when no mode is specially pointed out for its service, it may well be served as other writs of summons.

The judgment must be reversed,, and the cause remanded..


author: Mr. Justice Walker

text:
    O’Neill vs. Henderson, Trustee, &c.
    Whenever a perfect title, according to the laws in force in the State in which it is made, vests property in the wife, or in trustees for her use, such title remains in her notwithstanding any change of the residence of the husband, who may exercise an apparent control and ownership of the property, or any act of fraud or negligence on the part of the trustee or the husband; nor is she required to do any act to protect her title. — such as recording in this State the evidence of her title.
    A trustee, who brings suit as such, is not required to offer proof of his acceptance of the trust — the bringing of the suit and acting as such, are sufficient.
    "Where the separate property of the wife was levied upon and sold for the husband’s debts, no demand is necessary to entitle the trustee to recover against the purchaser in an action of detinue.
    "Where interrogatories are filed under the 9th, 10th, 11th and 12th sections, ch. 55, Dig., and notice is given to the adverse party of the application for a commission, he is not entitled to notice of the time and place of taking the depositions.

      Appeal from, Drew Oi/rcwt Gov/rt.

    Hon. SheltoN WatsoN, Circuit Judge.
    S. H. HeMpstead, for tbe appellant.
    1. The depositions taken in Tennessee, should have been suppressed. The application was to take testimony in an action of replevin, and this was an action of detinue. 5 JEng. 420.
    .2. It was a proper enquiry as to whether the negro woman and her child were conveyed to Buck’s wife, to enable her husband to avoid payment of his just debts, and among them the debt due to the appellant. 5 Podge 586.
    3. Henderson did not show any right of action in himself. If any -one had such right, it was Burk and wife, and not this sham and pretended trustee, who, at all events, had nothing but a naked legal title. Digest 702.
    4. The Court should have granted a new trial for the reasons stated in the motion. O’Neill purchased at sheriff’s sale; and Burk, the husband, had such right as was subject to execution. 3 Eng. 302; 2 litt. 79/ 7 Ala. 32.
    Pike & Cummins, for appellee.
    No new trial can be granted, because the verdict is clearly in accordance with the merits of the case. Sjparlcs vs. Berner, 6 JEhg. 630; 7 IJ>. 651.
    No notice is necessary where depositions are taken on interrogatories. Bees. 9, 10, 11, a/nd 12, oh. 55, Rev. Slat.

    Perno val from one State to another, does not affect the character of a loan. Smith vs. Jones, 3 Eng. 109.
    No demand was necessary before suit. Beebe vs. BeBcnm, 3 Eng. 510; Prater vs. Frazier, 6 Eng. 249.
    Where property is conveyed in trust for wife, her possession is that of trustee, and so far from being inconsistent with deed, is according to the very objects of the transaction, and no presumption of fraud can be indulged.
   Mr. Justice Walker

delivered the opinion of the Court.

This was an action of detinue, brought by Henderson, as trustee for Nancy Burk and her children, against O’Neill, for a negro slave.

The trial was had upon the plea of the general issue, and a plea of property in the defendant. Judgment was rendered for the plaintiff. Yarious exceptions were taken to the opinion of the Court upon the trial, all of which were presented upon a motion for a new trial, which was overruled, and, upon exceptions to the opinion of the Court in overruling the motion, are made part of the record, and assigned as grounds of error in this Court.

As the correctness of the decision of the Court below, in giving the instructions asked by the plaintiff, and refusing to give those asked by the defendant, must depend upon the nature of the plaintiff’s title as trustee, and the effect of our statute of frauds upon it, we will proceed to examine the facts and settle the questions of law arising upon them.

In tbe year 1843, William Hack, a resident of tbe State of Tennessee, loaned a negro woman to bis sister-in-law, Mrs. Nancy Burk, wbo, with ber husband, John F. Burk, then, resided in tbe State of Mississippi. In tbe fall of 1846, or tbe winter of 1847, Burk and wife, having tbe woman slave still in possession, removed to Drew county, Arkansas; tbe woman, in tbe meantime, having born “ Joe,” tbe property now in dispute. On tbe 20th of April, 1847, Hack conveyed said woman and ber child Joe to tbe plaintiff, Simeon Henderson, in trust, for tbe sole use and benefit of Mrs. Burk during ber life, and to ber children after ber death, for their separate use, maintainance and support, wholly free from the debts and liabilities of the husband, and denying him tbe right to exercise any control whatever over said slaves,, or to hire or sell them. This conveyance by deed, of tbe date-above, was duly acknowledged and recorded in the county of Marshall, and State of Mississippi, the then residence of Henderson, tbe grantee. Burk and wife still continued to reside in Arkansas with tbe slaves in their possession, and apparently under tbe control of the husband and wife, in the performance of ordinary household duties, until tbe 26th of June, 1849, at which time tbe boy Joe was taken in execution to satisfy a debt contracted by Burk with O’Neill, the appellant, on tbe 27th of April, 1849,. for $66 47. The deed from Hack to Henderson was never recorded in Arkansas; nor was it known here that such conveyance-, existed. Under this state of facts, the question of law, intended to be raised by the instructions asked by tbe defendant, and refused to be given by tbe Court, is, whether the deed was or not void, under the 1th seo., oh. 104, Digest, as against creditors and purchasers for want of registry in this State.

. As between parties in interest, competent to assert and protect, their legal rights, it would seem clear that the grantee holding tbe title to tbe property, by suffering tbe property to remain in, the possession‘of a third person without notice of his title, could not hold against a creditor who had, upon the presumption that the title and true ownership were with the possession, given credit to bim wbo beld sucb property in possession, or against an innocent purchaser, wbo buys upon sucb presumption, and in good faitb pays bis money for tbe property. But in a case like tbe present, where tbe real party in interest is a feme covert, subject to tbe control of her husband, and for tbe most part, by reason of her coverture, without power to assert and protect her interest, and rights, tbe law has thrown around her its protection, and not only relieves her from acting, or from tbe consequences of her acts, but also protects her against tbe negligence, or tbe abuse of tbe trust by tbe trustee. If sucb was not tbe case, tbe trust would amount to nothing, tbe trustee having a mere naked legal title in tbe property, but which (as is tbe case in this instance) is not to remain either in bis possession, or under bis control, but to be used and enjoyed by a wife and helpless children, made by tbe law, as well as their helpless dependance, and their affection, subject to tbe control of tbe husband, over whose character for prudence and discretion, by tbe mere fact of executing sucb a deed, a shade of doubt is cast: wbo may, at pleasure, change bis residence, involve himself in debt or even sell tbe property. It would be hazardous to tbe interest of tbe wife, even with tbe greatest vigilance, on tbe part of tbe trustee, to require bim to follow up tbe trust property, and have bis interest in it made known of record; but even .then, if tbe statutq of frauds may be successfully pleaded against her rights, no vigilance on her part, or on tbe part of tbe trustee, would be sufficient to protect her interest, because tbe husband might remove tbe property, and contract with innocent purchasers and creditors to the utter overthrow of tbe rights of tbe wife.

That, under circumstances sucb as tbe present, and perhaps in this case, tbe husband may perpetrate fraud upon innocent creditors and purchasers, is very true, and it may seem wrong to protect tbe property against their equitable claim. But, then, when we consider tbe situation of tbe wife, bow utterly impossible it is for her., in view of her relation to her husband, to protect her rights, it would be equally wrong to bold her responsible for tbe acts of her husband. The most important question is, did the wife acquire an interest in the property as cestui que trust, by a full compliance with the laws of the State, in which the contract was entered into at the time it was executed. If so, we apprehend that no act of the trustee, or of the husband, nor would any apparent hardship, growing out of such act, divest her of her interest in the property. In the correctness of this position, we feel fully sustained by the opinion of the Supreme Court of the United States, (Bank vs. Lee et al., 13 Peters 107.) The facts in that case were: That, in 1809, Bichard Bland Lee,- then a resident of Fairfax county, Yirginia, with his family, conveyed several slaves to certain trustees, in trust, for the sole use of his wife; which deed was duly acknowledged and recorded in said county ; afterwards, Lee moved with his family to Washington City, in the District of Columbia, and took with him the slaves so conveyed in trust, and exercised ownership over them as his, and executed a deed of trust to the Cashier of the United States Bank for said slaves, to< secure the payment of $6,000, money borrowed of the Bank. The deed of trust executed in Yirginia for the use of Mrs. Lee, was never recorded in the District of Columbia, nor had the Bank any notice whatever of the claim of Mrs. Lee to the slaves until long after the deed was executed to the Bank, and after the death of Mr. Lee.

Under this state of case, it was contended for the Bank, that, notwithstanding Mrs. Lee’s title may have been perfect, and well' protected against the statute of frauds, under the registry act of Yirginia, whilst the property remained in the possession of Lee¿ in that State, yet when removed to the District of Columbia, the statute of Maryland, which requires all contracts for goods and' chattels, whereof the vendor shall remain in possession, to be recorded, or else to be void as to purchasers, operated' upon the Yirginia title of Mrs. Lee, and defeated it for the benefit of purchasers from the husband. When answering this- position, Judge OateoN, who delivered the opinion of the Court, said: “The statute has no reference to a case where the title has been vested by tbe laws of another State; but operates only on sales, mortgages, and gifts, made in Maryland. Tbe writing shall be recorded in tbe same county where tbe seller shall reside when it is executed. Tbe seller, Richard Bland Lee, residing in Virginia, it was impossible for Mrs. Lee to comply with tbe act; that tbe Virginia deed secured to Mrs. Lee tbe same right here, that it did in Virginia, we apprehend to be, to some extent, an adjudged question.” Tbe Judge then cited Smith vs. Burch, (3 Harr. & John.;) Crenshaw vs. Anthony, (Martin and Yerger 110;) and closes bis opinion thus: The deed vesting tbe property in Mrs. Lee’s trustees, having been duly recorded in tbe manner required by tbe statute, it was effectual, according to tbe laws of Virginia, to protect tbe title against subsequent creditors •.of, or purchasers from, Richard Bland Lee.”

'The case of Crenshaw vs. Anthony, was an action in detinue for a slave sold by a judgment creditor to satisfy a debt contracted by tbe husband, whilst tbe slave was in bispossession. Tbe deed <of trust, securing tbe property to tbe use of tbe wife, was executed in Virginia, and there duly admitted to record, all of tbe parties .•and tbe property then being in Virginia. Tbe husband moved tto Tennessee, with tbe slave in bis possession. Tbe deed never was recorded in Tennessee, nor bad tbe creditor any notice of tbe wifeis title.

The Supreme Court of Tennessee held, that tbe deed made in Virginia, separating tbe title and tbe possession, was of a character to be operated upon by tbe Virginia statute, andhad the deed mot been recorded there, as to creditors and purchasers, tbe title would have been deemed to be with tbe possession; but, having been recorded there, a title, fair and unimpeachable, vested in tbe trustee, and oestm que trust, and, being valid in Virginia, tbe statute of Tennessee could not affect it; and that tbe wife’s interests were not affected by her silence in regard to tbe title, which she held to tbe property. These decisions distinctly announce the principle, which we think must govern tbe decision of the case now before iis, which is, that if a perfect title is ae-quired in accordance witli tbe laws of tbe State in wbicb tbe parties reside at tbe time tbe contract is made, and where it is made, that such title is not affected by neglect or omission of tbe trustee, tbe husband, or tbe wife, to record such deed in tbe State to wbicb tbe property may be removed, or where it may be subsequently held. Some importance seems by tbe Court, in tbe case of Crenshaw vs. Anthony, to be attached to tbe fact that tbe deed was recorded in Virginia, and it is said, that, bad that not been the case, registry in Tennessee would have been necessary in order to prevent tbe operation of tbe statute of frauds in that State. If tbe Court intende.d to assert, that registry in Virginia was necessary in order to make tbe title in tbe trustee perfect, then this decision rests upon tbe ground assumed in the case of tlie Bank vs. Lee: That if tbe title is perfect, tbe wife is not bound to record such title in every State to wbicb her husband may remove, and if it is perfect in tbe State where it is made without registry, that it is a matter of no consequence to tbe creditors of another State, whether it was or not recorded in tbe State where it was executed, because it is very evident that it would be no notice to them and no compliance with tbe laws of tbe State to wbicb tbe projierty may be removed. We have remarked upon this part of tbe Tennessee decision, ■ that we may avoid the inference, wbicb might be drawn from silence, that we consider registry, in tbe State where the right accrues, essential to protect tbe rights of tbe wife only so far as may be necessary to make lier title perfect in the property. And it has been deemed tbe more necessary to this, from tbe fact that tbe Supreme Court of Texas has made this part of the decision of tbe Court, in tbe case of Crenshaw vs. Anthony, tbe basis of their decision of tbe case of Warren vs. Dickinson and Tutt, 3 Texas Rep. 460. In that case, Warren and wife resided in Texas, and had in their possession a slave belonging to the father of Mrs. Warren, whore-sided in tbe State of Mississippi, where be died, and by his will bequeathed this slave to bis daughter, Mrs. Warren. After tbe death of tbe testator, Warren (tbe husband) sold tbe slave to tbe defendant, who had no notice of the title of Mrs. Warren, (un-. less the recording of the will in Mississippi should be held such). Under this state of case, the Supreme Court of Texas decided against the title of the wife to the slave; not because of an y defect in the will, or that it was not in all respects a valid will accor-dingto the laws of Mississippi, where it was made; but upon the ground that the property and the claimant (the wife) should have been resident in Mississippi at the time the will took effect and was recorded.

Now it is evident, if this be the case, it cannot be for want of title in Mrs. Warren in the slave, unless it could be maintained that property cannot be devised unless it is actually in the date where the devise is made, and where it took effect, and where the devisee also resided; which is certainly not the law. But it must be upon the ground that registry, under the circumstances of the case, in the state of Mississippi, was equivalent to registry in Texas, in protecting the registry of the wife to the property there, and if so then as the will was registered in Mississippi before the sale of the slave to the defendant, it would seem to- follow that the Court should have charged them with notice of the wife’s title, and have decided in her favor; but as such was not the decision of the Court, and as it was held that the notice, to be effectual, should have been given whilst the property was ,in the State of Mississippi, and before the removal' of the wife to Texas, we must presume that the Court, in fixing-the notice at that date, considered it in some respects as essential to the validity of the title itself, when it took effect in- Mississippi, and by so considering that decision, it may be reconciled with the rule held in the Bank vs. Lee; and if considered otherwise we must dissent from it, in so far as it may conflict with the opinion already expressed: that wherever a perfect title, according to the laws in force in the State-in which it is made, vests property in the wife or in trustees for her use, such title remains in her notwithstanding any óhange of the residence of the husband, who may exercise an apparent control and ownership of the property or any act of fraud or negligence on the part of tlie trustee or the husband; nor is she required to do any act on her part to protect her title. But the law, in consideration of her limited rights as a feme cevert, so far throws around her title its protection as to protect it from the consequences incident to such negligence or abuse of trust.

It is very true that this rule may result in cases of hardship to creditors and innocent purchasers, who, finding the property in the possession of the husband, may well presume the title to be in him: but, then on the other hand, without this rule, the greatest wrong might result to the wife, who for .the most part is deprived, under the laws, of the power to hold a separate and distinct ownership, and who, on account of her marriage relations, public policy would not compel to expose the fraud perpetrated by her husband by gaining credit upon the faith of the property as being his. In view of these principles, a brief review of the facts of this case will enable us to decide the material question involved in it.

We have seen that the deed of trust was' executed in the State of Mississippi, the residence of the trustee, and was there duly authenticated and recorded. This, in our opinion, was sufficient to vest the legal title in the trustee for the use therein expressed. It is true that a few months before that tíme, Burk and wife had removed with the slave to Arkansas, but this we have said did not affect the validityof the title. Thedebt, for the satisfaction of which the boy was seized and sold, was not contracted until more than two years after the execution of the deed of trust. Under this state of case, even under the rule as held, in Warren vs. Dickinson, by the Supreme Court of Texas, if the slave had been in Mississippi, and the wife, the cestui que trust, had also resided there, when the deed was executed and recorded, the subsequent removal of the property to Arkansas would not have affected the wife’s title, and, if not there, would it if made a few months after? "Was the creditor in the first instance affected with notice of a deed recorded in Mississippi ? If so, why not when the deed was'recorded a few months after? There can certainly be no good reason, because the same rule of law that required him to look to a registry beyond the limits of this State at one time, would also at another, and as his contract was made long after the execution of the deed, he would be held to notice of it. But the truth is, that the registry of the deed in Mississippi was no notice to the creditor in Arkansas, no matter when made. At the time of the levy, the purchaser had notice of the title of Mrs. Burk; and, by a jury called to try the right of property, it was found not to be subj ect to the payment of Burk’s debts, so that he purchased with the fullest notice of the trust, but the question does not turn upon notice at the time of the levy and sale, but upon the question as to whether the trust title was void under our statute for want of registry in this State, and we have said that it was not.

From the view thus taken of the rights of the plaintiff as trustee, it follows that the 1st, 2d, 3d, 5th and tth instructions were properly refused by the Court below ; all of them growing out of the supposed effect of the statute of frauds upon the plaintiff’s title. It was not necessary, in order to maintain the action, for the plaintiff to offer proof of his acceptance of the trust; the bringing of the suit, and the acting as such were sufficient; therefore, the 4th instruction asked was properly overruled.

The 6th instruction was also properly overruled, because the property was tortiously taken from the possession of the feme covert, and although the tort was waived, and the suit brought in detinue, no demand was necessary to entitle the plaintiff to recover. Schulenburg vs. Campbell, 14 Miss. Rep. 491; Prater vs. Frazier and wife, 6 Eng. 249.

The remaining question relates to the admission of the deposition of a witness over the objection of the defendant. The principal ground of objection to the deposition is, that it was taken without notice to the defendant. The deposition was taken under the provisions of the 9íA, 10th, 11 th cmd 12th sections of the 55th ch., Dig., 433, which provide for the taking of depositions upon petition to the Court. The order was granted upon petition for leave to take depositions upon interrogatories and cross-interroga-torion. The 11 th section provides, that the interrogatories shall be drawn up and signed by the parties under the direction of the Court, and if either party shall refuse to join in such interrogatories, such refusal shall not prevent 'the issuing of the commission. Under the provisions of this statute, when the interrogatories are agreed upon by the parties and signed by them, or where one of the parties shall refuse to join, the effect of which is an abandonment of his right to file cross-interrogatories, there can be no necessity for notice of the time and place for taking the depositions, because the evidence is confined to the particular interrogatories propounded, and the officer, or person appointed by the Court to take the depositions, is charged with the due execution of the commission, and his conduct can in no wise be influenced by the presence of either party.

It seems that the delendant was duly notified of the application for the rule in this case, and thereafter must be presumed to have had notice of the further action of the Court upon the petition. TTis failure to file cross-interrogatories or to sign the interrogatories propounded by the plaintiff, could not, under the 11th section of said act, prevent the issuing of the commission, or become the grounds for objection to the depositions when taken. There was. no valid objection to the deposition upon this ground, but, even if there was upon this or either of the other grounds relied upon, it could in no wise change the final determination of this case, because, independent of that deposition, there was clear and conclusive proof, to which it was cumulative, of the plaintiff’s right to recover. And when this is the case, and the question is presented to the Circuit Court, as to whether the party should have a new trial, that Court may well refuse to set aside the verdict and grant a new trial under the rulé repeatedly recognized by this Court, that where upon the whole case, as shown by the evidence, irrespective of that objected to as inadmissible, the verdict is right, it should not, because of the improper admission of such evidence, be reversed. (Payne vs. Bruton, 5 Eng. 60.) Affirmed.


author: Mr. Chief Justice "WateiNS

text:
    Blagg vs. Hunter.
    'The acknowledgment of a deed of gift of slaves, before the clerk of a court, without the attestation of his official seal, is insufficient to admit it to record; nor is it evidence to prove the title of the donee — the possession remaining in the donor.
    The failure of the clerk of a court to attest, under his official seal, the acknowledgment of a deed of gift of slaves, executed and recorded prior to the passage of the act of 5th Januaay, 1843, was not cured by that act.
    If a person, under the influence of intoxication, so as to deprive him of the exercise of his understanding, makes a deed of gift of slaves, such deed is voidable at his election, or of any one claiming under him; but if he acknowledges the deed after regaining his reason, such act is a ratification of the deed.
    'The current report and understanding in the neighborhood, that a donor had made a deed of gift of slaves when drunk, and disavowed it when sober, is not admissible as evidence in an action for the slaves between the donee and one claiming under the •donor1; but the subsequent acts and declarations of the donor promptly made and persisted in upon a return of reason, repudiating the deed, would be competent to go an evidecce with other attendant circumstances illustrative of his mental condition.

      Appeal from Randolph Circuit Gowrt.

    Hon. B. H. Neely, Circuit Judge.
    BeveNS, for tbe appellant.
    The deed should have been admitted by the Court to go to the jury as an enrolled or recorded •deed; the certificate of the clerk should have been received, admitting it to record, thereby placing the plaintiff within sections 7 and 8, articled, chapter 153, Digest.

    As to the effect upon the plaintiff produced by the rejection of the deed, as an unrecorded deed, see 2 Bl. Com. 441/ 2 Kent Com. 354/ 1 Ark. Rep. 87/ 7 J. J. Marsh. 204/ Dig., ch. 73, sec. 6*/ ch. 153, sec. 7 and 8.
    Until the act of the Legislature of the 19th December, 1846, subsequent to the execution and acknowledgment of the deed ■offered in this case, there was no statute prescribing the mode of acknowledging deeds of personal property — the 16i/¿ section, eh. 37, Dig., relating entirely to real estate, and the provisions of this act, cannot, with propriety, be applied to conveyances of personal property.
    A deed, recorded in the proper office, is prima facie evidence that it was regularly proven and admitted to record: and so^ where the person taking such acknowledgment styles himself clerk of the Circuit Court, the certificate is prima facie evidence-that he is such. Lessee of Talbot vs. Simpson, Peters' O. G. R. 188/ Lessee of Willi/ng vs. Miles, lb. 429/ 4 Wash. Rep. 715.
    But if there was any defect in the certificate of acknowledgment, it wras cured by the act of the 5th-January, 1843.
    The subsequent declarations of the grantor against the deed were very clearly inadmissible. 11 Ark. Rep. 249/ 1 Ch. PI. 603/ 16 J. R. 110/ 1 Greenl. Ev., see. 23.
    The evidence as to the notoriety in the neighborhood of’the-grantee, that grantor repudiated his deed, was incompetent and inadmissible. 1 Greenl., sees. 137, 138/ Morewood vs. Wood, 14. East. 329/ 1 Stark. Ev. 30, 31.
    FaiRohild, contra.
    The deed did not appear to- have bee» acknowledged. There was a certificate of acknowledgment written out and signed by the clerk, but it was not authenticated by the seal, of the Circuit Court, or by any seal of office, without which there was no evidence' of acknowledgment. It was then-not entitled to record, and could not be read to the jury asa deed acknowledged and recorded.
   Mr. Chief Justice "WateiNS

delivered the opinion of the Court-

In an action of trover for a slave, the plaintiff claimed title by gift from one Lewis, and on the trial offered a deed of gift from Lewis to him, dated 10th of July, 1841, which purported to-have been acknowledged by the donor before the clerk and ex-officio> recorder of Randolph. county, and by him filed for record in his office, all on the same day. The acknowledgment is attested by tbe signature only of tbe clerk, not accompanied by his seal of office, or purporting to be sealed. Tbe validity of this deed was also assailed by tlie defendant, upon tbe ground that it was made by, and procured from, Lewis while in a state of intoxication, lie afterwards disowned the act, and remained in possession of the slave in controversy until bis death, in 1844. In April, of that year, he made and published his will, bequeathing his property, including this slave b3r name, to his wife, Phoebe Lewis, •who held him in her possession until May, 1849, when she sold him to the defendant Hunter.

The donor, being no blood-relation of the plaintiff, the alleged gift would not be upheld because made upon any good consideration, as between the parties to it, by any thing contained in the 6th section of tbe statute of frauds. Digest, p; 541.

Tbe judge presiding at tbe trial excluded tbe deed offered as a compliance with tbe statute concerning gifts of slaves, (Digest, Title, Simes,) because tbe acknowledgment was insufficient to admit it to record, but permitted tbe deed itself, without tbe accompanying certificates, to be read to tbe jury as evidence of a parol gift, if the plaintiff could prove that it was accompanied with a delivery of the possession. Slight as tbe proof was, that possession accompanied the gift, when contrasted with the opposing evidence that it remained with the donor, the plaintiff had the benefit of an instruction on that point. So that tbe real question is, whether tbe Court decided correctly in excluding the certificates of acknowledgment and record of the deed. The words of tbe statute are, “ No gift of any slave, shall pass or vest any right, estate or title in, or to, any such slave, in any person whatsoever, unless the same be made, first, by will duly proved and recorded; or, second, by deed in writing to be proved by not less than two witnesses, or acknowledged by the donor, and recorded in tbe county, in which one of the parties lives, within six months after the date of such deed. This act shall only extend to gifts of slaves, whereof the donors have, notwithstanding such gifts remained in possession thereof, and not to gifts of such slaves, as have come to the possession of, and remain with, the donee, or some person claiming under such donee.” This act does not, like the general statute concerning conveyances of real estate, passed during the same session of 1837, specify the officers before whom the acknowledgment may be made, or the mode of taking it, as for example, if taken before a clerk, that it shall be signed by him and attested by his seal of office, if there be one. Construing these statutes together, as part of one entire system of registry, it seems plain, that when the General Assembly have required, or authorized any deed, or'instrument of writing,, to be acknowledged and recorded, it. is understood that the usual mode provided for other cases is to be adopted, as well in respect of the manner of taking and. certifying the acknowledgment, (see also the statute concerning “Mortgages,”) as of the officers empowered to act in such cases! ’Without such a construction, it might be contended, that the clerk, in the present case, had no authority to take and certify the acknowledgment of a deed of this kind in any mode. The attestation then, of the clerk, without his official seal, was insufficient to admit it to record ; as much so, as if the deed, having two or more attesting witnesses, had been proved by the oath of only one of them. The plaintiff relies upon an act of January 5th, 1843, to the effect, that all deeds, bonds, mortgages, and other conveyances of real estate, theretofore recorded, whether duly recorded or not, under the provisions of the law in force at the time of recording, should not, after the passage of that act, be impeached for not being duly recorded, but.shouldhave thesame legal force and effect, as if recorded in the first instance; saving, however, to all persons any lien or right, in law or equity that might have intervened prior to the passage of that act. The only effect of this act (even supposing it to apply to chattels, mortgages and deeds of gift of slaves,) would be to legalize, from that time forward, the recording of conveyances, which had been spread upon the public record, notwithstanding some defect or informality in the acknowledgment of them, so as to make such records constructive notice to creditors, purchasers, and all third persons, wbo might subsequently acquire an interest in the property, of the existence and contents of deeds, valid in the first instance, and sufficient to pass the title as between the parties to them. But it could not have been designed by it to impart validity to deeds, which were void in their inception, or which had become inoperative to pass any title from the donor, because of the failure to comply with certain requisites prescribed by the statute. It may seem a harsh and severe construction of the law, by which the plaintiff is to lose the property, or be deprived of any right he might have had to it, because of an informality, not owing to any fault of his, but to an omission or neglect of duty in the clerk. The statute for authenticating gifts of slaves, where there is no delivery of them to the donee, was intended to guard against frauds, and any course of decision, by which its plain requirements might be qualified or explained away, would have a most mischievous tendency to the public at large, while in any particular case the person injured'by neglect of duty in an officer' has a remedy by action against him.

The Court instructed the jury, that if they found from the evidence, that Lewis made the deed of gift in question, under the influence of intoxication, so as to deprive him of the exercise of his understanding, the deed would be void, and they should find for the defendant. Although there was a conflict of testimony on this point, the jury would have been well warranted in finding, upon the whole evidence, that the donor, at the time he executed the deed, was so drunken, or so much under the continuing influence of previous intoxication, as to be devoid of reason and understanding, and incapable of comprehending the nature and effect of the act. The plaintiff’s father, who is shown to have been instrumental in procuring the deed, was present at the time it was prepared and executed. According to the tendency of the modern cases, see 2 Kent Com. 452; Barrett vs. Buxton, 2 Aikin 167; Gore vs. Gibson, 13 Mees. & Welsby 623; Smith on Contracts 232, where this question is discussed, a deed,.executed under such circumstances, would be voidable at the election of the donor, or any one claiming under liim. On the supposition that the acknowledgment was valid at the time, or might have become so, if made before a competent officer, and duly certified at any subsequent time, within six months from the date of the deed, the instruction should have extended as well to the time of the acknowledgment, as to the making of the deed; because if the donor was rational when he made the acknowledgment, it would be a ratification of his previous act, though done while in a state of actual intoxication, or of delirium Premen's. The Court erred in permitting the defendant to adduce evidence, to prove that it was currently reported and generally understood in the neighborhood that Lewis had made such deed of gift when he was drunk, and that when he became sober he disclaimed or disavowed it. Beputation or hearsay of matters which concern private titles, is not admissible, unless for a particular purpose, affecting a state of case which did not exist here. For example, if the deed had been regularly proved or acknowledged and recorded, evidence of such a common report, current in the neighborhood, might perhaps be admitted against one claiming to be an innocent purchaser from the donee, if shown to have been in the neighborhood when the report prevailed, and in a condition to have heard it, as a circumstance to charge him with notice. But as against the donee himself, the subsequent acts and declarations of the donor, promptly made and persisted in upon a return of reason, repudiating the deed, were competent to go in evidence with other attendant circumstances, illustrative of his mental con. dition, and as these appear to have been sufficiently proved, the judgment ought not, upon a motion for new trial, to be reversed for the error adverted to. In any view, the judgment would have to be affirmed, upon the first ground, that because of the invalidity of the deed, the plaintiff failed to show any title in himself; and it becomes unnecessary to notice any other exceptions reservedin the Court below or argued here. Affirmed.


author: Mr. Chief Justice WateiNS

text:
    Harsh vs. Hanauer.
    The act of limitation of 14th December, 1844, enlarging the limitation of actions on promissory notes from three to five years, though prospective, applies to causes of action thereafter accruing without regard to the inception of the contract if of an anterior date.
    Supposing the refusal to grant a continuance is assignable for error, this Court will not overrule the discretion of the judge at the circuit, unless the party excepting has placed upon the record an application coming fully within the statute in such case.
    Interrogatories that are suggestive of the answer desired, or assume the matter in dispute, are objectionable: and if they be in relation to a note, it should appear that the original note was before the witness, or a copy of it referred to as an exhibit annexed to his deposition.
    Where the question of variance depends upon inspection of the instrument, this Court will not undertake to determine it by a copy, or even a foe simile.

      Appeal from Randolph Owcuit Court.

    Before Hon. B. H. Neely, Circuit Judge.
    BeveNB, for appellant.
    Eaircbild, contra.
   Mr. Chief Justice WateiNS

delivered the opinion of the Court.

The appellant, on the 29th of January, 1852, instituted his action of debt against the appellees, upon a promissory note, alleged to have been executed by the firm of M. Hanuer &Sons, composed of M. Ilanuer and the appellees, on the 21st of Octo. ber, 1841, payable five and a half years after date ; to which the defendant, Daniel, pleaded nil debet, payment, tie statute of limitation of five years, and the statute of three years; and the defendant, Louis, pleaded nil debet, and also a plea under oath denying the execution of the note. The Court below overruled a demurrer to the plea of three years limitation; which was erroneous, because the statute of December the 14th, 1844, enlarging the limitation of actions on promissory notes from three to five years, though prospective, applies to causes of action thereafter accruing, without regard to the inception of the contract, if of an anterior date. But this error is immaterial as the action failed on other grounds.

The appellant complains that the Circuit Court refused to grant a continuance upon the application of his attorney. Supposing this to be a matter assignable for error, this Court will not overrule the discretion of the judge at the circuit, unless the party excepting has placed upon the record an application, coming fully within the statute in such case, and'especially is the plaintiff held to a strict showing, he having the privilege of going out of Court and commencing a fresh action, which, if brought within a year, saves the bar; while the discretion may be more liberally exercised in favor of the defendant, who, though in fault for not having used strict diligence, is to be concluded by the judgment. The application failed to disclose the name of the witness whose testimony was desired, and the omission is not excused by the neglect of a non-resident client to furnish his attorney with the necessary information. From the guarded phraseology of the affidavit, it may be inferred that the testimony sought to be obtained was either cumulative, or that the object of the application was to retake the testimony of witnesses then on file, and which it was admitted failed to establish, fully, the facts necessary to enable the plaintiff to recover.

At the trial, the Court below excluded the answers to certain interrogatories, in a deposition of a witness offered by the plaintiff, and which were objected to as leading. The 3d is, “Was M. Hanauer, his sons Daniel and Louis Hanauer, doing business together, in 1841, under the' style of M. Hanauer & Sons?” Answer, “They were.” 4th, “Are Daniel and Louis Hanauer sons of M. Hanauer?” Answer, “They are.” 5th, “Did you know anything relative to a note executed by M. Hanauer & Sons to Philip Harsh, at Cincinnati, Ohio, on the 21st of October, 1841, for three hundred and thirty dollars, payable five and a half years after date ? If so, state all you know about it — who did it — and who was considered at that time the sons of M. Ilananer ?” To this question the deponent answered, giving a detailed account of the manner in which such a note came to be executed by Daniel ITanauer, in composition of a debt the plaintiff held against the firm, not in itself objectionable; but inasmuch as it does not appear that the original note was before the witness testifying, or a copy of it referred to as an exhibit annexed to his deposition, the interrogatory was objectionable, not only for being suggestive of the answer desired, but because it assumed the very matter in issue. Where witnesses testify orally at the trial, the Court must have a discretion, varied by circumstances, in allowing or forbidding leading questions. But depositions as •a substitute for oral testimony, are not to be favored, and the examination being had out of the view and presence of the judge, in order to. determine whether questions are leading, he can only look to the scope of the interrogatories, and answers, when the deposition is taken in that form,'under a general commission.

The remaining assignment for error is, that the Court below excluded, upon the ground of variance, the original note, upon which the action was founded, when offered in evidence upon the issues between the plaintiff and Daniel Hanauer. Without adducing the note, the plaintiff could not have succeeded as against him upon the plea of nil debet, though his other pleas were by way of confession and avoidance. The variance in question related to the signature. The Court was of opinion, and so decided, upon inspection of the note, that it purported to be signed by a firm of a different name from that described in the declaration. As we have not the original note before us for inspection, and cannot undertake to determine a fact of this nature, by a copy, or £ven a fao smile, which would be in effect referring the question of variance to the clerk making out the transcript, the alleged error, if any, is not examinable on this record. TLe presumption is, tbat if tbe matter was doubtful or the plaintiff could fairly claim a surprise, the Court would have permitted him to be non-suit, with leave to set it aside on terms, and amend his declaration. Affirmed.


text:
    State Bank vs. Greer et al.
   The decision of this case follows that of Hanly vs. Carneal, (14 Ark.,) per Watkins, C. J.


author: Mr. Chief Justice WatKhsts

text:
    Mathews vs. Sanders as ad.
    The leading idea of the statute, (Dig. Titee; Evidence, secs. ‘J and 8) mating the hoot of accounts of a deceased person, when-proved to be regularly- and fairly kept, evidence for his executor or administrator, is that the books of original entries shall in all cases be produced.

      Error to Dallas Giromt Oowrt,
    Hon. J. C. Mukkay, Circuit Judge.

      CueeAN, for the plaintiff.
    Pise & CummiNS, contra.
    The admissibility of the proof under seo. Y, eh. 66, Rev. St, was a question of competency addressed to the Court. ■ Churchman v. Smith, 6 Whart. 146/ 2 'Oreenl. Ev. 143,4/ 2 Cow. & Mill’s notes, 682, Y01, which show the evidence to be competent.
   Mr. Chief Justice WatKhsts

delivered the opinion of the Court.

In an action of assumpsit by Sanders, as administrator of Martin P. Mathews, deceased, against Ballard D. Mathews, the only evidence, offered by the plaintiff on trial in the court below, consisted of an account, made out by the intestate, proved to be in his hand writing, and found among his papers after his death.

The account was thus stated:

B. B. MATHEWS, Dr.

To M. P. Mathews.

Por the year 184Y, April 15th.

For services rendered per self, months, at 25 dollars per month, $212 50

For the hire of Winnason, 125 00

For the hire of Andrew, Y5 00

For the hire of Sal, 20 00

For a grey horse let Alderson have, 60 00

For the use of carryall, 15 00

$502 50 ■

B. D. MATHEWS, Dr.

To M. P. Mathews.

For the year 1848, January 1.

For services rendered per self, Y months, at 25 dollars per month, $1Y5 00

10 months, hire, for Winnason and Andrew, at 10 dollars per month, 200 00

30 00 10 months hire for Sal, at $3,

15 00 Por the use of carryall,

$420 00

507 50

$927 50

Tbis is tbe Ml amount due me from B. D. Mathews, that has never been settled.”

Annexed to the paper, containing this account, was the affidavit of a third person, to the effect that he had seen the same in possession of the intestate before his death, and had found it among his papers immediately after his decease; and this witness also testified, and as it seemed, proved to the satisfaction of the Court, that the intestate in his life time had the reputation of keeping correct books. Whereupon, the Court admitted the paper to be read in evidence to the jury, against the objection of the defendant, who reserved his exception, but according to the practice heretofore settled, waived it by choosing to resort to a motion for new trial, in whieh the improper admission of testimony is not relied upon as one of the causes assigned. But the plaintiff moved the Court to instruct the jury, that unless they believed from the testimony, that the account read in evidence was a regular and fairly kept account of original entries of the deceased, Martin P., and that he was a person keeping running accounts for goods, wares and merchandize, or other property sold, or labor done, they should find for the defendant. Supposing the evidence, when admitted, to be competent, though it was as clearly incompetent, as would be proof, offered in an ordinary case, by a plaintiff, of his own declarations, there can be no reason why the defendant should not have had the benefit of the instruction, which the Court refused to give though couched in the language of the statute, and more favorable for the plaintiff than it might have been.

The leading idea of the statute is, that the books of original entries kept by the deceased person are in all cases to be produced, and may be admitted in evidence for his executor or administrator, when accompanied by an affidavit identifying them to be books of the testator or intestate, it being first established, to the satisfaction of the Court, that the deceased had the reputation of keeping correct books. Dig., title Evidence, sec. 7 and 8. The account produced was well enough as a bill of particulars of demand, if copied from a ledger, or extracted from a book of original entries, but it could be nothing more. As a detached piece of paper, with the items condensed in the manner above shown, the account itself was not an entry, or evidence for any purpose, although that may have been the mode in which the deceased kept his accounts. The statute contemplates that the books are to be “regularly and fairly kept.” The perfection of which is, where the items of debits and credits against, or in favor of various persons, with whom the deceased may have had dealings and kept running accounts, follow each other in regular order and succession of dates, without erasure or alteration, confirmed it may be, by being carried to the separate appropriate accounts in the ledger. It may sometimes be a question for the Court below to determine what constitutes a book of original entries, or whether it is authentic and therefore competent, but when admitted, the very appearance of it, and the manner of keeping it would be matter of observation for the jury, who, even if there was no opposing testimony, would have to decide upon the weight or credibility of the evidence.

Being disposed, for the benefit of the estates of deceased persons, to give a liberal interpretation to the statute, we do not wish to be understood as intimating that a book of accounts, kept after the manner of a ledger, would be incompetent if it be really a book of original entries, or that the operation of the statute may not extend to the kind of demands charged in the account here, though from their character we could suppose that they are susceptible of being readily established by original evidence.

Tbe judgment will be reversed and .the cause remanded, with instructions, to grant a new trial, and for further proceedings according to law and not inconsistent with this opinion.


author: ~Mt?.. Chief Justice Wateess,

text:
    The State vs. Hawkins.
    The whole scope of the first seven sections of the statute against gaming, is to prohibit what was then known and specified as banldng games and all devices of the like kind, and does not embrace the game of rondo: nor is the betting at such game, a common law .offence.

      Appeal from Grcmford Oi/rauit Oowrt.

    The Hon. A. B. G-keeNwood, Circuit Judge.
    CueNdeNIN, Attorney General, for the State.
    The question raised by the record in this case is as to the construction of section 1, of chapter 51, of the Digest of Arhcmsas.

    The State was not required to prove that the game specified in the indictment was a banking game, for any gambling device would subject the offender to indictment.
   ~Mt?.. Chief Justice Wateess,

delivered the opinion of the Court.

The indictment in this case charged that the appellee, on &c., at &c., did bet a large sum of money, to wit, the sum &c., with and against divers persons, to the jurors aforesaid unknown, at and upon a certain gambling device, adapted, devised and designed, for the purpose of playing a game of chance at which money and property might there and then be won ,and lost, denominated rondo. The fact of betting was proved, as charged] and it was further in proof, to the effect, that rondo is a game played with balls, by rolling them upon a billiard table, at which the players bet against each other, but not against the beeper or exhibitor of the table, who receives from the players a compensation, or commission upon the amount bet between them, for the use of his table; and heis in no other way concerned in the game. The Court below gave the first instruction asked for on behalf of the State, by which the jury were told to find the defendant guilty, and assess his fine at any sum not less than fifty, nor more than one hundred dollars, if they were satisfied of the fact of betting, and were also satisfied from the evidence, that rondo is a gambling device, adapted, devised and designed for the purpose of .playing a game of chance, at which money or property may be won or lost. The attorney for the prosecution also asked- the Court to charge the jury, that it was not nesessary for the State to prove that the game of rondo is a banking game; which was refused.

This indictment could not have been preferred under the 8th section of the statute against gaming, which applies only to games played with cards; where the act of playing by the persons engaged in it, constitutes the particular game upon which the money or property is bet. The only question is, whether it can be sustained by the evidence, upon any ligitimate construction of the first section. This Court has repeatedly held that the first section relates exclusively to the banking games, so called whether played with cards, or by means of any other contrivance, whether called by the names specified, or by any new name or device, and the distinguishing feature of which is, that they are set up or exhibited to bet against by all comers. It was for the suppression of this species of gaming, that the severe penalties of the statute are directed against all exhibitors of such prohibited games, and those who furnish money for carrying them on, or suffer them to be exhibited in their houses, or who bet against them. Stith vs. The State 13, Ark. 680, and the previous decisions there cited; Johnson vs. The State, ib. 685.

It would be a departure from those decisions, and a forced construction. of tbe first seven sections of tbe statute, to bold that they include such games as rondo was bere shown to be. TJpon tbe same principle, we would bave to bold that billiard tables, ten pin alleys, a fives court, and tbe like, are gambling devices, adapted, devised or designed for tbe purpose of playing any game of cbance, or at wbicb any money or property may be won or lost, liable to seizure and confiscation, and tbe owners or keepers of them denounced as vagrants, because tbe persons, wbo play at tbem for amusement, and pay for tbe use of tbe table, alley, or court, may also bet witb each other upon tbe issue of tbe game. Tbe whole scope of tbe statute is to prohibit what. were then known and specified as banking games, and punish all concerned in tbem, and all devices of tbe like kind, whether newly invented, or old ones reproduced under different names.

If it follows from this decision that betting at rondo is not an indictable offence, it is because the statute, which tbe Court has no power to enlarge, has failed to make provision for it. It is no more a common law offence than wagering by means of a raffle or lottery. Norton vs. The State, decided at January term, 1854. Affirmed.


author: Mr. Chief Justice "WatKINS

text:
    Jones vs. The State.

      Where a defendant, indicted for a misdemeanor, punishable by fine only, has been tried and acquitted, and on appeal or writ of error to this Court, the judgment reversed, and the cause remanded, he may be tried again, without any violation of the constitutional provision, “ that no person shall for the same offence be twice put in jeopardy of life or limb.”

      Appeal from Union Cvrcmt Oowrt.

    The Hon, SheltoN 'WatsoN, Circuit Judge.
    CakltoN, for the appellant.
    J. J. CleNDENIN, Att’y Gen’l, contra.
   Mr. Chief Justice "WatKINS

delivered the opinion of the Court,

The appellant was indicted for betting at cards, and on trial was acquitted, at the April term, 1852, of the TJnion Circuit Court. Upon appeal, prosecuted by the State, that judgment was reversed, and the cause remanded to the Court below for further proceedings, to be therein had according to law, and not inconsistent with the opinion of this Court, reported in The State vs. Quarles, (13 Ark. 307,) made applicable to this and other cases, in which the same question of law was presented. Upon the remanding of the cause, the defendant pleaded that former acquittal, in bar of any further prosecution upon the indictment. To this plea, which will be treated as regular and formal in all its substantial allegations, a demurrer was sustained; and by consent the issue upon the plea of not guilty, being submitted for trial, to the Court sitting asa jury, the defendant was convicted, and a fine of ten dollars assessed against him.

"When our former decision was pronounced, reversing and remanding this cause, it was done upon due consideration of the nature and grade of the offence charged, again noticed in Stewart vs. The State, (13 Ark. 749.) The punishment being a pecuniary matter only, and from which the defendant, though heldin custody for its payment, may at any time discharge himself, by applying for the benefit of the laws for the relief of insolvent debtors, (Digest, title Grimmal Proceedings, sec. 213,) the Court was, and is of opinion, that the statute of 1846, giving to the State the same right as the defendant to appeal, or prosecute her writ of error, from tbe judgment of inferior courts, in all criminal cases where tbe punishment does not involve life or limb, {II). see. 240,) is not in conflict with tbe spirit and meaning of tbe constitutional provision: “ That no person shall, for the same offence, be twice put in jeopardy of life or limb.” Such was the decided intimation by this Court, in the case of The State vs. Graham, (1 Ark. 434,) before the passage of the act referred to, their opinion resting on the general provision of the' act of 1838, (Rev. Stat., ch. 45, sec. 213,) allowing an appeal to the Supreme Court in all cases of final judgment, rendered upon any indictment, and the same distinction taken between felonies and misdemeanors, punishable by fine only. Affirmed.


text:
    The State and State Bank, Ex parte.
    "Where two complainants are claiming the same property — the one as purchaser at execution sale against the other — their interests are distinct and several, and' they will not he allowed to sue together as such for the purpose of divesting the title of a third party, also execution purchaser of the same party..
    The Bank of the State of Arkansas, upon a bill for injunction, will be required to verify the allegations of her bill, and give bond, like other suitors; and will not be allowed to prosecute her suit under cover of privileges which belong alone to the State, by uniting the State with her as complainant.
    The State, averring in her bill in chancery, that she bid off property at execution sale against the State Bank, but neither alleging that she paid the amount bid, or offered to pay it, but only that she was able and willing to pay, and that the Bank had the means and was able to pay, does not show such title as will warrant the granting of an injunction to restrain a purchaser of the same property, at a subsequent execution, sale, from asserting his legal remedies.

      Motion for a Mandmrms to compel the Oireuit Judge of Pulaski County to grant an Injunction.

    S. H. Hempstead, for the motion.
    3?IKE & CummiNS, contra. •
   Mr. Justice Walker

delivered the opinion of the Court.

This is an application for a mandamus to compel the judge of the Circuit Court of Pulaski county to grant to the complainants an injunction.

The judge, as appears from his endorsement upon the bill, refused to grant the injunction, because the State had no interest in the property described in the bill, and was not entitled to any relief in the premises, and because the Bank, the other complainant, who, in the opinion of the judge, had a right to equitable relief, refused to swear to the bill, or to give security according to law,‘in the sum of $6000, for the payment of damages in case the injunction should be dissolved.

This, the complainants refused to do, upon the ground, that the State is a party complainant; and, as such, is not bound to make such affidavit, or to enter into bond as ordinary suitors are. The defendants deny that the State has any such interest in the matter in litigation, as to entitle her to an injunction, and that the Bank, the other complainant, who, from the case made by the bill, is alone entitled to relief, is only entitled to it upon the usual terms imposed upon other suitors.

From the state of case presented by the bill, it is very evident that there is not only no community of interest between the complainants; but, on the contray, their respective claims are utterly irreconcilable with each other. Because, if the sale made by the sheriff to the State is valid, then the Bank, the defendant in execution, has no interest in the property, and if, on the other hand, the sales were fraudulent and void, the property still belongs to the Bank, and of course the State has no claim to it.

So far as the title of the State is concerned, every thing depends upon her sustaining the validity of her own title: because, unless she has title to it, it is a matter of no consequence with her, whether the sheriff and Newton perpetrated a fraud in the after-sale of the property or not. Having no rights under her purchase, of course none could be affected by the conduct of others. If the bid by the State, through her agent, became forfeited by a failure on her part to pay the sum bid to the sheriff, or for other cause, and the sheriff, in combination with others, perpetrated a fraud in the sale of the property, it must have been to the prejudice of the Bank, the defendant in execution, and for which she has a distinct cause of action; and so far from the State being made a party complainant, the Bank, under the circumstances, with far more propriety might have made the State a party defendant, denying the validity of her purchase as well as that of Newton’s, with an appropriate prayer that both titles be canceled. There is no identity of interest between the State and the Bank in this property, no reference is made to the interest or liability of the State as a stockholder, or as responsible for the capital upon which the Bank went into operation; nor does she claim as one interested in the property of the Bank, which, since the liquidation act, has been held by the Bank, to be disposed of for the benefit of her creditors ; but, on the contrary, the title set up in the bill is purely as purchaser, at judicial sale, of property which she alleges was sold as the property of the Bank. The complaint is, that a judgment was obtained against the Bank upon which execution issued, and was levied upon certain lots of land situate in the city of Little Rock, the property of the defendant in execution (the Bank,) which were exposed to sale according to law, and bid off by Euclid L. Johnson, as the agent of the State, for her, at the price of $205. That the sheriff knew that the State was able and willing to pay said bid, and that the Bank had the means to pay, and was well able to pay the same for the State, and all that the sheriff had to do was to call upon the State or the Bant for the same, and that it would be paid; that the State has at all times been willing to pay said bid; that afterwards, at the. request of Johnson (the agent), the sheriff executed and delivered a deed to the State, conveying the property with its appurtenances to her; and that the deed recites and admits the receipt of the purchase money, and by virture of all which the State becomes the lawful owner of the property, and so continues to - be. These, together with the farther allegation, that after the sale to Newton, the Bank, in behalf of the State, paid the balance of the debt due the plaintiff in execution, to Mr. Watkins, the attorney for plaintiff, and that whether paid or not, she has tendered the money to the sheriff, and is yet willing to pay the same; may be considered the grounds upon which the State rests her claim to equitable relief — grounds which, as we have said, are not only wholly independent of, but are also adverse to, those of the Bank. Where co-plaintiffs have interests in the subj ect of the suit, but such interests are distinct and several,, they will not be allowed to sue together as such, nor in ease one of the parties plaintiff has no interest in the subject matter in issue, can they be joined. This rule is folly recognized and settled by authority. 1 Danl. Ch. Pl. & Pr. 350; Story’s Equity Pl. 544; Boyd vs. Hoyt, 5 Paige 65.

And if not permitted to join in ordinary cases, where they have distinct rights, with much more reason would they be precluded ñ-om the right to assert privileges as suitors, which alone extend to one of them.

But, in the case before us, the parties do not stand in so favorable a position as co-plaintiffs do, who have distinct interests in the same subject matter, because the State, in this instance, fails to show any right whatever in the property, according to her own showing, because she neither paid the purchase money, nor did she offer to pay it, until after the day of sale, at which the property was bid off to her; and, when such is the case, the sheriff may treat the bid as forfeited,, and proceed under the statute to re - sell tbe property. Tbe allegation that tbe sheriff knew that tbe State and the Bank bad money, and were ready and willing to pay tbe bid, when applied to, is no sufficient excuse for not paying -or offering to pay, witbin reasonable -hours, on tbe clay of sale. A mere willingness or abibty to pay, -is not sufficient. "Willingness must be evidenced by payment, or an offer to pay. Tbe law knows no distinction between bidders at a cask sale; tbey are required to pay tbe money bid, or bold themselves ready, and offer to pay at tbe place of salé, if required. No vabd title passed to tbe purchaser, even by deed, unless tbe purchase money was paid. Until this is done, the sheriff has no right to make tbe deed’, be cannot charge himself with tbe amount bid, and make tbe deed, because this would be to substitute himself as debtor to tbe creditor. This, tbe policy of tbe law forbids, as was expressly held in The State vs. Lawson, sheriff, 14 Ark. R. 121. And so rigidly is this law enforced, that even where tbe sheriff bad received from tbe purchaser tbe larger part of the money bid, and credited him for tbe balance, tbe deed was set aside. Dickerson vs. Gilliland, 1 Cow. 498.

There is no averment that tbe purchase money was paid, or offered to be paid, on tbe day that the property was bid off by tbe State. Tbe averment, that “tbe deed recites and admits” payment, is clearly not an averment that the money was in fact paid, but only that it was so recited in tbe deed; and, from tbe guarded language, in which it is expressed : tbe deed recites and admits, &c., tbe averment of a tender after that time, negatives tbe idea that payment was in fact made. This being the case, it is evident that -the State, according to tbe case made in tbe bill, acquired no title to tbe property as purchaser, and as -she sets up no other title or claim to tbe property, tbe Bank, whose claim is of a very different nature, can derive no aid, from the mere fact that tbe State is named as party complainant in the suit, nor will she be allowed to prosecute her'suit under cover of privileges, which alone belong to tbe State as a suitor in tbe assertion of her own rights. That tbe Bank may be unable to give tbe security required, is a misfortune common to all poor suitors. It is not contended tbat sbe is not as mucb bound to comply with the terms imposed by the statute, as any other suitor, and if unable to do so, like all others, she must abide the consequences.

The application must be denied.

Mr. Chief Justice "Watkins not sitting in this case.


author: Mr. Justice WalKKR

text:
    The State Bank vs. Etter.
    ■Where an execution is issued to another county, and levied upon land, and the defendant dies and the execution is returned without a sale of the property, it is necessary to revive the judgment before the lien can be enforced.
    A judgment creditor, after levy of his execution upon the lands of the debtor in another county, and the death of the debtor, orders the execution to be returned without sale; but neglects to revive his judgment against the representatives of his debtor, or pursue his lien for two and a half years: Held. That the judgment creditor, under the circumstances, has displaced his lien, and cannot set it up against the title of one who had in the mean time purchased the property at a sale, under the statute, by the administrator of the judgment debtor.

      Appeal, from Hempstead Gircmt Court in CTumoerry.

    Hon. SheltoN "Watson, Circuit Judge.
    S. H. Hempstead, for the appellant.
    Piee & CummiNS, and Cursan, contra.
   Mr. Justice WalKKR

delivered tbe opinion of the Court.

This was a suit commenced in the Hempstead Circuit Court in Chancery, to enjoin the sale of certain lands under a judgment and process at law.

The material facts set forth in the bill are, that, on the 23d of April, 1847, the Bank recovered. a judgment, in the Pulaski Circuit Court, against John W. Cocke, upon which execution issued, on the 3d day of September, 1849, directed to the sheriff' of Hempstead county, and was by him levied upon real estate there situate, the property of the defendant. After the levy, the execution was, by order of the Bank, returned without a sale of the property. A few days after the levy, Cocke, the defendant, died, and in the due administration upon his estate, under an order of the Probate Court, the administrator, on the 25th of December, 1850, offered the land so levied upon for sale, and the complainant, being the highest bidder, became the purchaser-thereof, took a regular conveyance by deed, and entered upon and improved the property, well knowing, at the time of his-purchase, that the land had been levied upon to satisfy the aforesaid judgment.

Afterwards, on the 2d day of March, 1852, the Bank sued out a writ of vend, ex., directed to the sheriff of Hempstead county,, by which he was commanded to expose the lands to sale, and in obedience to which he advertised the property for sale. To prevent which, and to quiet his title, Etter, the purchaser at the-administrator’s sale, has brought this suit.

The judgment against Cocke was rendered in the Pulaski Circuit Court, and was, therefore, not a lien upon the real estate-of the defendant, situate in Hempstead county. The 21th see.,, eh. 67, Dig., makes executions a lien upon real estate, to which the judgment lien does not extend, from the time the writ is-, delivered to the officer to be executed. The levy, therefore,, created a specific lien upon the property taken in execution, but as no sale was made under that process, and as- the defendant died before the return thereof, and before an alias writ issued to sell the property levied upon, the question is, after the death pf Cocke, the defendant in execution, had the plaintiff a right to further process, to sell the property so taken in execution and returned unsold. This is a question of much difficulty, in view of the qualified interest acquired by the creditor in the estate, by virtue of his levy, and also of our administration law, which provides a general system for the payment of all debts, as well those judicially ascertained as those unliquidated.

It is very true that, by virtue of the levy, there was created a qualified interest in the property, in so far that it was held in custody of the law, and was prima facie a satisfaction of the1 judgment, but notwithstanding this, the legal title to the property still remained in the defendant until his death, and after that, it passed to the heir or devisee, subject to the qualified interest of the administrator, in case it should become necessary to sell the same for the payment of the debts of the testator or intestate.

If we admit it to be true, that the judgment creditor, by virtue of his levy, had acquired a lien upon this particular property for the satisfaction of his debt, it by no means follows that he should be allowed to assert such rights by enforcing his lien irrespective of the rights and interests of the heir and the administrator.

By the common law, all proceedings are stopped by the death of either party, until regularly revived in behalf of, or against, the party interested in the prosecution, or the defence of the suit; and by statute {Dig-, oh. 93, seo. 18,) it is provided that judgments or decrees may be revived against the administrator, if for money, &c., or the heir, if touching the realty. Therefore, whether by the common law or by statute, it was in any event necessary to revive the judgment, before the lien could be en- ' forced. Such was the opinion of the Stqn’eme Court of New York, in Stymets vs. Brooks, (10 Wend. 210,) where it was held, that after the death of the defendant, no execution can run either against the heir, or the personal representative, without scire facias, because, until the judgment is revived, there would be a discrepancy between tbe process and tbe judgment, and because tbe parties in interest have a right to day in Court, that they may show cause, if any, against tbe application of tbe property to tbe payment of tbe judgment. In Bently vs. Cummins’ Adm., (4 Eng. 487,) it was expressly held, by this Court, to be error, after tbe death of the defendant in execution, to sue out execution before tbe administrator is made a party.

The Supreme Court of Alabama sustains tbe issuing of a second writ offi.fa. after tbe death of tbe defendant, without reviving tbe judgment against the administrator or heir, in case tbe first writ was executed in tbe life-time of tbe defendant, upon tbe ground that it is necessary to do so in order to uphold tbe execution lien. Such was tbe decision of that Court in Horn vs. Collingsworth, (4 Stewart & Porter 237.) But this decision and tbe Alabama doctrine, were reviewed by Chief Justice Sharegy, in Davis et al. vs. Helm, (3 Sm. & Marsh. 34,) and expressly overruled. He denies that tbe question of lien or no lien has any thing whatever to do with tbe question of reviving by sei/re facias, and expressly rests bis decision upon tbe ground, that whether tbe lien is a judgment lien, or an execution lien, still tbe party in interest in tbe property should have day in Court, before tbe property is exposed to sale, that be may show payment, release or any other matter of defence, and that this defence is equally available whether there is a lien or not.

These authorities are clear and conclusive as to tbe question of reviving tbe suit by sci. fa., after tbe death of tbe defendant, before process can issue for satisfaction of tbe judgment, whether there is or is not a lien upon tbe property. And, as in this case, tbe execution issued against tbe defendant, Cocke, after bis death, and without revivor against tbe heirs or tbe administrator, there can be no doubt that tbe execution should have been quashed, or tbe plaintiff restrained from selling the property.

But there is another view, in which this question may be considered, which involves it in much difficulty, owing to tbe general provisions made by our statute for tbe payment of all debts against the estates of deceased persons. It is very evident that the Legislature intended to provide for every description of claims, whether judicially ascertained to be due or not, and to provide for their payment, giving preference to such as were esteemed most meritorious. Judgment creditors are specially provided for, .and where the judgment is a lien upon the real estate, the debt is placed in the third, which is a more favored class than that of -ordinary debtors. Such creditors are not, however, permitted to assert their right to exclusive satisfaction out of the estate, upon which the lien exists, but must take under the administration law. Thus, in Adamson et al. vs. Cummins’ Admr., (5 Eng. 549,) where judgment was rendered in the Circuit Court against the administrator, upon which execution issued, and was levied upon the property of the intestate, it was held that the execution irregularly issued, and should be quashed, for the reason that, after the death of the debtor, his whole estate passed to the administrator, or rather into the custody of the law, to be disposed <of under the direction of the Court, for the payment of debts yw rata, according to priorty of right to satisfaction. And the more recently decided case, (Walker, admr. vs. Byers, 14 Ark. Rep. 252,) in reference to the general scope and purpose of the statute, the court said, “In this system, two capital objects seem plainly In view, from the various provisions for their attainment: Firsts that the estate of every deceased person, after death, shall imme-diately pass to the custody of the law, to be administered for the benefit of creditors, and after the satisfaction of all claims presented, &e., the. residue to pass to the heir or distributees.”

Upon the authority of these decisions, if no levy had been made upon the property of the intestate before his death, we should not hesitate to decide that a sale under judicial process from the Circuit Court, would be irregular, and that the plaintiff might well be restrained from enforcing a sale of property under it. But what shall we say of the execution lien? If the sale had progressed, and been made at the return term of the writ, under which the levy was made, even though the defendant had after levy and before sale, died, there would be strong reason for holding . the sale valid; but after the return of the process, we have held, both upon principle and authority, that no further process can issue until the judgment is revived by soi. fa. against the parties in interest in the estate so levied upon, and the point of difficulty is, conceding, as we must do, that the levy created and held a lien when the writ was returned, what shall be the effect of the levy? Shall we give the plaintiff a right to revive the judgment, and sue out process for the sale of the property ? If so, it evidently evades the general provisions of the administration law, by permitting one judgment creditor to make his whole debt out of the estate of the debtor, to the exclusion of the r-ights of all others; or shall we place the judgment creditor upon the same footing that judgment lien creditors are placed? If we go beyond this, and give greater effect to the execution lien, and follow it up to sale of the property levied upon, how long a time shall the judgment creditor be allowed to revive his judgment, and how long will the execution lien hold the property? The statute is silent upon this subject. There is no law to fix their limits, or declaring what shall amount to a waiver of the lien. Judgment liens are by statute limited to three years, and we have held that mere delay to sue out process for satisfaction within that time, will not displace the lien; but here, where there is no limitation by statute, unless a different rule be applied to execution liens, they might remain an incumbrance upon the estate until the right to satisfaction of the judgment is barred by limitation. These difficulties are pressed upon our consideration in the case before us. On the 3d of September, 1849, a levy was made, and by the voluntary act of the plaintiff, the writ was returned without a sale of the property, and no steps taken to revive the judgment against the representatives of the deceased defendant, nor any process for the satisfaction of the judgment, until the 2d of March, 1852, two years and a half after the levy, and near fifteen months after the property had been sold by the administrator. The judgment debt was never presented to the administrator, nor filed for classification and allowance against the estate. Under these circumstances, we are of opinion that even conceding the right of the judgment creditor, who has had a levy upon the debtor’s property before his death, to revive the judgment against the representatives of the deceased, and follow up his lien for the satisfaction of his debt, that by the order and directions of the plaintiff, his failure to revive the judgment, and to sue out process for the length of time herein shown, was sufficient to displace his lien upon the property. And, in thus deciding, we are not to be understood as in any respect changing the rule- heretofore laid down with regard to- jugment liens; for as regards these, the statute has limited the continuance of the lien, but with regard to- execution liens, the statute is silent, and the court must necessarily determine, from delay and other circumstances, whether the lien has been waived or abandoned.

There is much good reason for placing jugdment creditors, who have liens by force of the jugdment, or the levy, upon the same footing after the death of the debtor; indeed it is difficult to preserve unimpaired the general provisions of the administration law in any other way, and particularly in cases where the property remains in the possession of the debtor, at the time of his death. The levy, in no case, changed the title to the property; and although a specific lien is thereby created upon it, the same general policy, which requires judgment lien creditors to give up the exclusive right to satisfaction out of the debtor’s property over other creditors, which the lien had conferred, may upon principle be applied to execution liens also. But be this as it may, in the cause now under consideration, we are satisfied that no execution, after the death of the defendant, could regularly issue until, the judgment had been revived against the representatives of the intestate, and that had this been done, and admitting the right of the plaintiff to- sell the property levied upon by virtue of his execution lien, which we think very questionable, that the plaintiff, under the circumstances of the case,, displaced his lien, and consequently cannot set it up successfully against the after acquired, rights of tbe complainant, let the decree be affirmed.

Mr. Chief Justice "WatKINS not sitting in this case.


author: Hon. S. H. Hempstead, Special Judge,

text:
    Pate et al. vs Johnson et al.
    Amicable and family settlements of the estates of deceased persons, among the several distributees, are to be encouraged; and, when fairly made, strong reasons must exist to warrant the interference on the part of a court of equity.
    A court of equity is competent to correct 'mistakes; but it will not do so on slight grounds, nor mere probabilities; nor unless-the mistake be established by the clearest and most satisfactory proof, in case it is not apparent.
    The recital of the consideration money, and its payment in a deed, is only prima facie evidence, and parol proof is admissible to contradict it — as where the recital is relied upon as evidence óf a sale to a child instead of a gift.

      Appeal from Hempstead Ci/reuAt Court i/n Oha/no&ry.

    Hon. JohN 'QuilxJN Circuit Judge.
    Pele & CuhmiNS, for the appellants.
    That although the deed for laud by a father to his son, may express a consideration, testimony'may be admitted to show that nothing was paid, and that the conveyance was given as an advancement. Beldm vs. Seymour, 8 Conn. 304/ Sparrow vs. Smith, 5 id. 113/ Clapp vs. Tvr-rell, 20 Pick. 247/ MeCrea vs. Purmat, 16 Wend. 460/ Meeker vs. Meeker, 16 Corm. 383/ PowelVs hevrs vs. Powell’s heirs, 5 Dana 168/ Stmwrt vs. State, 2 Harr. <& Gill 114/ and that the value of tbe property advanced will be estimated at tbe time of tbe conveyance. Barber et al. vs. Ta/ylor’s heirs, 9 Drnia 84.
    CueRAN, for tbe appellees,
    relied upon the consideration expressed in tbe deed, as evidence that tbe land was sold, not given; and contended that there was no proof sufficient to outweigh tbe recital; that tbe execution of tbe deed being established, tbe court was bound, under tbe circumstances, to bold it a sale according to Scott et al. vs. Henry et al., and Roberts vs. Totten, 13 Ark.

   Hon. S. H. Hempstead, Special Judge,

delivered tbe opinion of tbe Court.

Tbe object of tbe bill in tbis case, was to correct an alleged mistake, as to an item of eight hundred dollars, for a tract of land in Missouri, supposed to have been-given by Edward Johnson, Sr., to bis son James Johnson, and which, in a proceeding for tbe division oí tbe estate of the former among bis heirs, bad been charged as an advancement; and, hence, so much paid on tbe distributive share of tbe son in tbe estate of tbe father.

Tbe division of tbe estate of Edward Johnson, Sr., exceeding twenty thousand dollars in value, among numerous heirs, was an amicable proceeding in tbe Probate Court of Hempstead county, and may therefore be regarded in tbe light of a family settlement, without strict adherence to formal requisites, but conforming to tbe equity and justice of tbe case. All parties appeared to be perfectly satisfied with tbe division, tbe distributive shares were received, refunding bonds given, and no complaint heard from any quarter. Amicable and family settlements are to be encouraged, and when fairly made, as it is evident tbis was, strong reasons must exist to warrant interference on the part of a Court of Equity. 1 Story’s Eq. 132; 3 Swanston 463, 476. Tbe chief reason for it, in tbis instance, is alleged to be, that after tbe division bad been made, tbe report of tbe commissioner confirmed, and tbe distributive shares taken by tbe respective distributees, a deed was discovered among tbe papers of James Johnson, deceased, and wbo bad died before bis father, dated the 20th day of September, 1819, and whereby it appeared that Edward Johnson conveyed to James Johnson, in consideration of one thousand dollars, to him in hand paid, a tract of land in "W"ashington county, Missouri, with general warranty of title, and that this deed was not known at the time, and so that this land was improperly treated, and charged as an advancement, when in fact it was not a gift at all, but a purchase by James Johnson, the ancestor of the complainants, for a fair and valuable consideration.

It is not pretended that the commissioners were guilty of fraud, or of an intention to do injustice to the complainants, or that there was any fraud or unfairness in the division, except that the value of the land was improperly charged to James Johnson as an advancement, and that is the mistake sought to be corrected.

Now passing other questions of less importance, it is to be observed that a court of equity is competent to correct mistakes, and that this in fact is a part of its original jurisdiction, which we have no disposition to abridge. But to exert this power on slight grounds, or mere probabilities, would be intolerable, and wholly unwarranted. While therefore the power is unquestionable, it is placed within the influence of the wholesome restraint, that the mistake must be established by the clearest and most satisfactory proof, in case it is not apparent.

“Inferences, and presumptions, and prima facie proofs, are not sufficient.” “The mistake must be made out,” says Chancellor KeNt, “in the most clear and decided manner.” Lyman vs. United Ins. Co., 2 John. Ch. R. 632; Gillespie vs. Moon, 2 John. Ch. R. 585; Gray vs. Wood, 4 Black. 432; Carnall vs. Wilson, 14 Ark. 487; Marquis Townsend vs. Strangroom, 6 Veasey 328. The mistake must be proved to the entire satisfaction of the court. 17 John. 376; 5 Mason 577.

And this rule is founded in sound policy; because, otherwise, the court, in attempting to reform one mistake, might commit another.

Most of the authorities cited above, apply in terms to written contracts; but all the cases of this description, are embraced within the principle enunciated by them.

The Probate Oonrt had jurisdiction of the subject matter, and an amicable division was made, and the distributive shares received by the heirs, and the matter was closed to the satisfaction of all parties concerned. It surely requires no argument to prove that such an adjustment ought not to be reinvestigated, either in part or in whole, on any other than grounds quite as strong as those required to reform a written contract.

The recital of the consideration money, and its acquittance in a deed, is only prima facie evidence; and parol proof is admissible to contradict it. Kip vs. Denneston, 4 John. 23; Shephard vs. Little, 14 John. 211; Wilkinson vs. Scott, 17 Mass. R. 257; Gully vs. Grubb, 1 J. J. Marsh. 391, 392.

The principle of estoppel, it is said, does not apply to the consideration expressed, date of the deed, recitals of quantity, or value, or other recitals, to which the attention of the parties is supposed to have been but slightly directed. 1 Greenl. Ev., p. 90 note 1, and cases cited.

It has been often held that the usual clause in a deed of land, or other property, acknowledging the receipt, 'and declaring an acquittance of the consideration money, even although it is followed by a receipt of the same money endorsed on the deed, is not only inconclusive in an action for the purchase money; but some cases hold it to be evidence of the lowest grade; that it is a mere formal part of a deed, and that such receipts are given every day, when nothing has been paid. Bowen vs. Bell, 20 John. 338; 2 Phil. Ev., Cowen & Hill's notes, 217, and cases there cited.

The weight of authority, however, undoubtedly is, that the statement of the amount of the consideration in a deed, is prima facie evidence in an action for the purchase money; or in any proceeding where the deed-may be used as evidence. But it is nothing more, and hence it is competent to overthrow the prima facie cause by parol proof, or circumstances; and show that no consideration was paid at all, or a different one from that expressed. Tbis is of almost daily practice in the courts.

How stands the proof in this case ? The complainant adduced a deed reciting the payment of one thousand dollars to Edward Johnson by James Johnson, for the tract of land in Missouri, and that made a prmia faoie, showing that the land was sold and not given, and that was all the evidence relied on by them.

But to weaken, if not entirely destroy, the pri/tna faoie case thus made, we find (1) the denial in the answers that it was a sale; (2) the strong, probability that, if it had been a sale, it would have been spoken of as such in the family; (3) the statements made by members of the family to the commissioners at the division, that the land in Missouri had been given by the father to the son; (4) that through a long series of years, the land was understood to have been a gift, and was so treated by common consent; and (5) the testimony of Morrison to the effect that James Johnson, the ancestor of the complainants, had frequently said that his father had given him land in "Washington county, Missouri.

With these facts and circumstances against the prima faoie showing made by the deed, we think it may be safely assumed, that the case does not present such clear and satisfactory evidence, as to warrant a court of equity in granting. the relief sought by the bill.

To put the matter in the most favorable light for the complain- ■ ants, there is no more than a slight preponderance of proof to> show that the land was sold and not given. As we have seen from the authorities,-that is not sufficient, and it follows that the-decree must be reversed with costs, the case remanded with instructions to dismiss the bill.

Chief Justice WatKins not sitting in this case.

N. B. — The Hon. David Wai/kee was not present during the remainder of this term.