text:
    Medlock vs. The State.
    The day, on which the offence, charged in an indictment, is alleged to have been committed, is not, in general, material; and the facts charged may be proved to have occurred upon any other day previous to the finding of the indictment.
    Where the proof is, that the offence was committed during the term of the Court at which the indictment was found — neither the precise day on which the offence was committed, nor that on which the indictment was found, appearing in the record— this Court will not set aside the verdict of the jury, who are the judges of the weight or preponderance of testimony, because the proof does not clearly show that the offence was committed before indictment found.
    Where an indictment for gaming charges the offence to consist in betting money, it is not necessary to prove that the defendant bet the precise amount alleged in the indictment — proof of the betting of money is sufficient.
    It is not necessary, under the act of 22d January, 1855, in an indictment for betting on any game of hazard or skill, to state the name of the person or persons with whom the game was played.
    Though it is a rule in criminal pleading that the facts constituting the offence should be stated with certainty and precision, it is sufficient, ordinarily, in indictments for offences created by statute, to charge the offence in the words of the statute.

      Appeal from the Circuit Court of Bradley county.

    The Hon. Theodoiuc F. Sorrells, Circuit Judge.
    Watkins & Gallagher for the appellant.
    Mr. Attorney General Johnson for the State.
   Mr. Justice Hanly

delivered the opinion of the Court.

At the September term of the Bradley Circuit Court, 1855, the appellant was indicted for unlawfully betting the sum of twenty-five cents, in money, on the 15th September, 1855, in the county of Bradley, “ upon a certain game of hazard, to wit: a game at cards called draw pocre.”

At the March term, 1856, the appellant was arraigned upon this indictment, pleaded not guilty, was tried by a jury, convicted and fined. Judgment accordingly.

It appears from the record that there was but one witness, who testified in the case. His testimony was, in effect, that he knew appellant, had seen him during the session of the Circuit Court for that county, in September, 1855 — being the September term for that year — play at a game of cards, in said county, with himself, the witness, and several other persons — that the game thus played at was called draw pocre — that several dollars were then and there bet on said game, and that said game of cards was a game of hazard.

The appellant asked the Court to instruct the jury as follows:

1.“ That unless the State shall have proved that the defendant bet the precise amount of money alleged in the indictment, the jury will find for the defendant.”

2.“ That, unless the State shall have proved the identical persons, by and between whom said game of cards was played, as alleged in the indictment, the jury will find for the defendant.”

Which the Court refused, and the appellant excepted.

After the verdict had been rendered the appellant filed his motion for a new trial, and in arrest of judgment. The grounds of the motion for a new trial are:

1. “ The verdict is contrary to the law and evidence, and the instructions of the Court.

2. Because the Court refused to give the, instructions asked for by defendant.

3. Because the proof does not sustain the allegations in the indictment.”

The grounds of the motion in arrest are:

1. “ Because the indictment does not allege with, and by whom the game therein mentioned was played.

2. Because the indictment does not charge the offence therein attempted to be charged, with sufficient legal certainty.

3. Because said indictment does not charge any offence known to the laws of the State of Arkansas.”

These motions were severally overruled by the Court, and the appellant excepted, setting out in his bill the evidence and instructions proposed, as above stated, and the action of the Court below with respect to the motions for new trial, and in arrest.

Medlock appealed, and assigns for error:

1. The overruling his motion for a new trial.

2. The overruling his motion in arrest.

We will proceed to consider and determine these questions.

I. In determining the first assignment, we propose, as it questions the overruling the appellant’s motion for a new trial, to take up each ground relied on in the motion, and dispose of them seriatim.

1. In considering this ground we will assume, for the time being, that the indictment is sufficient in law, reserving the consideration in respect to its legal sufficiency, until we shall come to determine the legal propositions — including that embraced in the motion in arrest.

Therefore, is the verdict rendered in this case contrary to the evidence?

The indictment charges the betting to have occurred on the 15th Sept., 1855. The proof is, that it occurred at, or during the session of the Bradley Circuit Court, September term, 1855. The counsel for the appellant insists that this Court judicially knows that the September term of the Bradley Circuit Court for 1855, commenced on the 17th September, and argues from this that the betting in proof does not sustain the betting charged against the appellant in the indictment.

Conceding that the betting established by the proof, occurred on the 17th September, 1855, does this fact in legal contemplation make or constitute a variance between the proof and the indictment? We think most clearly not. The day and year on which facts are stated in the indictment or other pleading to have occurred, are not, in general, material; and the facts may be proved to have occurred upon any other day previous to the preferring of the indictment. See Archb. Cr. Pl. 94, 40. Whart. Am. Cr. L. 220. 1 Phil. Ev. 203.

The transcript before us does not show on what precise day in the September term, 1855, of the Bradley Circuit Court the indictment was preferred by the grand jury and filed in the Court. The record professes to contain all the evidence upon which the jury found their verdict. There is no positive evidence upon the record as to the fact whether the betting proved occurred before or after the indictment was preferred. The proof of the fact that the betting was before the finding of the indictment, as we have already shown, was essentially material. The record fails to state whether the Court did or did not instruct the jury upon the law of the case. The presumption is, that if the Court gave the jury any instructions, and they are not shown, that the instructions given were such as the law warranted and authorized. That the jury were told that if they should believe from the evidence that the betting proved, was after the indictment was preferred, they should acquit— the fact of betting being proved; the extremes of time within which the proof shows it occurred being also in proof. There is no evidence on the record of the precise day or time within the September term, 1855, on, or at which the indictment was preferred. The jury could have as well inferred or presumed from these facts that the indictment was not returned into Court until the last moment of its duration at the September term, 1855, as they could that the betting did not occur until after the finding of the bill. They were the exclusive judges of the weight or preponderance of testimony, and it was within their province also to draw legitimate inferences from facts already-proven, taking into consideration as well the manner of the witnesses deposing before them, as the substance or matter deposed to. - This.Court will not award a new trial in any case, criminal or civil, if there is enough testimony to support the verdict, so that it cannot be said to be without evidence in any essential ingredient in the finding. This is the settled and uniform doctrine and practice of this Court. See Bevens vs. The State, 6 Eng. R. 463. Stanton vs. The State 13 Ark. R. 317.

In the case before us, there is not a total want of testimony to support the verdict, but, on the contrary, the evidence is almost conclusive upon every material point except the one just noticed. We therefore hold, that the Court below did not err in overruling the motion for a new trial on the first ground.

2. Did the Court err in refusing to give the instructions asked for by the appellant?

We think most clearly not. 1st. Because the charge in the indictment was for better money-twenty-five cents- and the prdof showed that money was bet; but to the amount of dollars. This is sufficient. 2d. Because this one assumes a fact to exist which is unwarranted by the record. The indictment does not charge the betting with any one.

The Court did not err therefore in refusing the new trial on that ground.

3. Are the allegations in the indictment sustained by the proof.

We have already answered this question in the affirmative. This disposes of the entire motion for a new trial:- and upon the whole we hold that the Court below did not err in overruling the motion for a new trial.

We will now proceed to consider the second assignment of errors arising upon the motion in arrest of judgment.

II 1. Was it necessary that the indictment should have alleged the persons with whom the game was played?

The indictment at bar was evidently framed under the act of 22d January, 1855, which is as follows:

Sec. 1. That if any person shall be guilty of betting any money, or other valuable thing, on any game of hazard or skill, he shall, on conviction, be fined as prescribed in section 8, article 3, chapter 51, Title, Criminal Lam, of the Digest of the Statutes of Arkansas.”

Sec. 2. That in prosecuting under the preceding section, it is sufficient for the indictment to charge that the defendant bet money, or other valuable thing, on a game of hazard or skill, without stating with whom the game was played!”

It is manifest, beyond all doubt, that under this act it was not necessary the indictment should specify or state the name of the person or persons with whom the game was played. We therefore hold that the Court did not err in refusing to arrest the judgment for this cause. ,

2. Is the offence in the indictment, in this instance, charged with sufficient legal certainty?

It is an universal rule in criminal pleading, that not only must all the facts and circumstances, which constitute the of-fence, be stated; but they must be stated with such certainty and precision, that the defendant may be enabled to judge whether they constitute an indictable offence or not, in order that he may demur, or plead to the indictment accordingly— that he may be enabled to determine the species of offence they constitute, in order that he may prepare his defence advisedly— that he may be enabled to plead a conviction or acquittal, upon this indictment, in bar of another prosecution for the same of-fence — and that there may be no doubt as to the judgment which should be given if the defendant be convicted. See Archb. Cr. Pl. 43. Rex vs. Horne, Cowp. 675.

But it is sufficient, ordinarily, in indictments for offences created by statute, to charge the offence in the words of the statute, and if this is done, the verdict under our statute, which is very similar to the English statute of 7 Geo. 4, ch. 64, sec. 24, will not be disturbed. See Dig. ch. 52, sec. 98, p. 422. Archb. Cr. Pl. 51.

In the case before us, the charge against the appellant, in the indictment, is in the very words of the statute. We think it, therefore, substantially sufficient, at least after verdict, and hold, consequently, that the Court below did not err in refusing to arrest the judgment on this ground.

3. Does the indictment charge an offence against the appellant known to the laws of this State?

This question we have virtually answered, when considering and disposing of the second ground assigned in the motion for arrest.

There is no error in the proceedings of the Court below, refusing to arrest the judgment on this ground.

Having thus considered and disposed of all the questions of law raised by the record, and finding no error therein the judgment of the Circuit Court of Bradley county rendered in this cause, is, in all things, affirmed.


source: Caselaw Access Project

author: Mr. Justice Hanly

license: Public Domain

text:
    Ruddell et al. vs. Ambler.
    Although the statute (Dig. ch. 90 see. 7,) makes all bonds, bills, notes, assurances, conveyances, and all other contracts or securities whatsoever, taken upon a usurious consideration, void: yet if the debtor comes into a Court of chancery to set aside such contract, on account of usury, he must, before he shall be entitled to relief therefrom, whether the usury be established by the answer, or other proof, pay or Offer to pay the principal actually borrowed, or advanced to him, with legal interest.
    A mortgage with power of sale, or deed of trust, given to secure the payment of money advanced or loaned upon a usurious contract, is void, and will be so decreed by a Court of equity; but where the debtor comes into Court to set aside such conveyance, the Court will hold the property pledged, as a security for the payment of the sum actually loaned with legal interest.
    Where the debtor comes into a Court of equity to be released from a usurious contract, or to set aside the securities given therefor, he must pay, or tender the whole amount of principal and interest; or the Court will, upon demurrer, dismiss his bill: but if the defendant answer the bill generally, the Court will proceed to render such decree as may be consistent with equity and good conscience.

      Appeal from, the Circuit Court of Independence county in Chancery.

    Hon. Beaufort H. Neely, Circuit Judge.
    JordaN for the appellants.
    The complainant was not entitled to the relief prayed for in his bill,“for the reason that he did not bring into Court, or offer in his bill to pay the amount really due, with legal interest thereon; and his bill should have been dismissed with costs, etc. 1 Story’s Eq. Jur. sec. 64; Fanning vs. Dunham, 5 J. C. R. 122; Eagle vs. Shotwell, 1 J. C. R. 536; Rogers vs. Rathburn, 1 ./. C. R. 367; Tupper et al. vs. Rowell, lb. 436; McRaven et al. vs. Forbes, 6 Row. (Miss.) Rep. 569; 15 J. R. 555; 2 Dess. 341; 1 Paige Rep, 544; 4 Bibb 460; 5 Dana 83.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was a bill in chancery, brought by the appellee against the appellants, in the Independence Circuit Court, praying, among other matters, that the appellant, Ruddell, might be enjoined or restrained from proceeding to recover judgment against the appellee, on the law side of the Court, upon a cer- , tain money bond, on the ground that it was usurious and void; and that the appellants might further be restrained from foreclosing, by sale, a certain deed of trust, which had been made and executed by the appellee to the appellant, Byers, as trustee for his co-appellant, Ruddell, to secure the payment of the alleged usurious money bond, upon which the action sought to be enjoined, was alleged to be founded.

Both appellants filed separate answers, and on the coming in of their answers, the appellee filed an amended and supplemental bill, in which it was charged that, since the exhibition of his original bill, the appellant, Byers, had proceeded to foreclose and sell the land named and specified in the deed of trust made to him, as trustee for his co-appellant, to secure the payment of the usurious debt set forth in his' original bill; that appellant, Ruddell, had become the purchaser of the land, under such sale, for the price, of four hundred dollars, which sum was entered as a credit on the usurious money bond; and praying, among other matters, that the sale by Byers to Ruddell, under the deed of trust, might be cancelled and declared void — that the possession of the land might be divested out of Ruddell and restored to ap-pellee, and that both appellants might be perpetually enjoined from further proceeding under the deed of trust, and the assertion of title under the sale and purchase of the land thereunder.

The appellants filed separate answers, also, to the amended and supplemental bill. Issue was taken to the several answers of the appellants, by replications in short, by consent.

The pleadings being thus made up in the cause, it was set down for hearing upon the original, amended and supplemental bills, the answers of the appellants to each, and the replications of appellee to those answers, and the several exhibits made by the parties respectively.

The cause was heard on the 26th March 1855, when, the record shows, the following facts, in substance, were elicited:

That on'or about the 21st March, A. D. 1854, the apellant, Ruddell, at the pressing solicitations of appellee, let him have in cash the sum of $350, and agreed to pay, and did afterwards pay, for him, certain liabilities, judgments and costs, amounting in the aggregate to the further-sum of about one hundred and fifty-six dollars, which, added to the other sum loaned him in cash, makes the aggregate sum of about five hundred and six dollars — appellant Ruddell, at the same time, agreeing with the appellee to hold him harmless against the liabilities, judgments and costs assumed, and that, at the time of the advance of the sum of $350, and the agreement to pay the residue, to wit, on the 21st march, 1854, the appellee, in consideration thereof, executed and delivered to Ruddell his waiting obligatory or money bond, of that date, payable to Ruddell, four months thereafter, for $600, bearing interest alter due at the rate of ten per. centum per annum; and that on the same day, and of the same date, the appellee, to secure the payment of the writing obligatory or money bond, executed and delivered to the appellant, Byers, a deed of trust on a tract of land lying in Independence county, with full power to sell the same to the highest bidder, and with the proceeds to pay off and extinguish the writing obligatory or money bond. That the deed of trust so executed was duly acknowledged and recorded in the county of Independence, as the law in such cases directs and requires, and that under the power to sell contained therein, Byers, in conformity therewith, on the 31st August 1854, sold the land, and Ruddell became the purchaser for the sum of $400. That Byers conveyed the land, so sold and purchased, to Ruddell, by deed dated 2d Sept. 1854, which was also duly acknowledged and recorded in the county of Independence, and that Ruddell had commenced an action of debt, on the law side of the Independence Circuit Court, to coerce the collection of the balance due on the writing obligatory or money bond, after the credit of - the $400 was given thereon, as the price and value of the land sold by Byers to Ruddell, under the deed of trust as above.

On this state of facts, the Court below, upon the hearing, decreed that the consideration, for which the writing obligatory and deed of trust had been executed, was usurious 'in the purview of the statute in such case made and provided, and as such that those securities were void in law and equity: declaring, also, that the sale by Byers to Ruddell, under the deed of trust, was also void, and that the conveyance should not,, and in conscience ought not to invest the latter with any right or title to the lands therein described and specified, and directed that the writing obligatory, the deed of trust made to secure it, and the deed from Byers to Ruddell, should be.given up to be canceled: that Ruddell be perpetually injoined from proceeding with his action at law to collect the residue of the debt set forth in the writing obligatory or money bond," and forever restrained and inhibited from setting up his title under Byers to the land sold and purchased under the deed of trust, and that he forthwith quit possession of the tract of land, and yield it to appel-lee, and that both appellants pay the costs of the suits.

We think proper to remark, at this place, that, notwithstanding there was a prayer for an injunction in the original bill, it does not appear that application was ever made to the chancellor for an injunction in accordance with the prayer of the bill: nor does it appear that an injunction was ever awarded in the cause, until the final hearing, and the final decree was rendered.

Rudd ell and Byers prayed an appeal, upon which the cause is now pending in this Court.

The appellants insist that there is error in the decree, in several respects; which we will proceed to consider and determine.

Usury is defined by the books to be, the taking of more interest, for the use of money, than the law allows. And to constitute the offence of usury, therefore, there must be an agreement, that he, who has the use of the money, shall pay the owner of it more than lawful interest: that is, more than the law permits to be paid for the use of money. See 2 Parsons on Cont. 384-5.

The law of this State provides that creditors shall be allowed to receive interest, at the rate of six per centum per annum, when no rate of interest is agreed upon, for all moneys after they become due by an instrument of the debtor in writing; on money lent, or money due on settlement of accounts, from the day of liquidating or ascertaining the balance due thereon; on money received for the use of another and retained without the owner’s knowledge of the receipt thereof; on money due and withheld by an unreasonable and vexatious delay of payment, or settlement of accounts; and on all other moneys due, and to become dus, for the forbearance of payment whereof an express promise to pay interest has been made.

The parties may also agree in writing for the payment of interest, not exceeding ten per centum per annum, on money due, or to become due upon any contract, whether under seal or not. See Digest ch. 90, sec's. 1 & 2,p. 614.

It is not unlawful' therefore, in this State, for persons to contract in writingfor the payment of interest at ten per centum per annum, for the use or forbearance of money, by way of a loan or advance.

It is further provided by our statute, that all bonds, bills, notes, assurances, conveyances and all other contracts, or securities, whatsoever, whereupon or whereby there shall be reserved, taken or secured, or agreed to be taken or reserved, any greater sum, or greater value for the loan or forbearance of any money, goods or things in action than is prescribed, shall he void. See Digest ch. 90, sec. 7. p. 615

This statute seems to be very similar, in its provisions, to the English statute of 12 Anne Stat. 2 ch. 16, except that, in that, the rate of interest authorized to be taken or demanded was only five, per centum per annum:. so that the English adjudications upon that statute are entitled to great weight and consideration, by the Courts here, in determining questions arising under, and growing out of, the construction of ours.

There can be no doubt, we apprehend, from the case made by the pleadings and proof in this cause, that the transactions between Ruddell and the appellee were thoroughly usurious; for it is manifest beyond dispute, that the gross amount advanced in cash to, and assumed by Ruddell for andón account of appellee, was only $506, whilst the bond taken to secure that amount was for the sum of $600, payable at four months from its date. It is as equally clear that the deed of trust, made by the appellee to Byers, was made to secure this usurious bond. The question arises, on this state of facts, what relief the ap-pellee was entitled to, and what should have been decreed to him by the Court below.

1. It is said that when a statute makes the usurious contract void, or forfeits apart of the principal, or legal interest, by way of penalty, the creditor, of course, must lose this, for the debtor may interpose this defence however inequitable it may be. See 2 Parsons on Cont. 403-4; Ambler vs. Ruddell, 17 Ark. R. 138, and authorities there cited.

But if the debtor make himself a plaintiff, and seek relief against a contract for its usury, it is held, in equity, that he must pay, or tender the whole amount of principal and legal interest. See 2 Parsons on Cont. 404. Scott vs. Nesbit, 2 Brown's Ch. R. 642. Ex parte Skip, 2 Vesey 489. Banfield vs. Solomons, 9 Vesey 84. Rogers vs. Rathburn, 1 Johns. Ch. R. 363. Tupper vs. Powell, ib. 439. Fanning vs. Dunham, 5 Johns. Ch. R. 122. Fulton Bank vs. Beach, 1 Paige 429. Morgan vs. Schermerhorn, ib. 544 McDaniels vs. Barnum, 5 Verm. R. 292. Jordan vs. Trumbo, 6 Gill & Johns. 103. Thomas vs. Mason, 8 Gill 1. Anonymous, 2 Des. Ch. R. 333. Stone vs. Ware, 6 Munf. 541. Shelton vs. Gill, 11 Ohio R. 417. Day vs. Cummings, 19 Verm. R. 496. Bolinger vs. Edwards, 4 Ired. Eq. R. 449. Phelps vs. Pierson, 1 Iowa 121. Wilson vs. Hardesty, 1 Ma. Ch. Dec. 66. Hindle vs. O'Brian, 1 Taunt. 413. Roberts vs. Goff, 4 B. & Ald. 92. And it is said that this rule is predicated upon the maxim or principle in equity “ that he who seeks equity to obtain relief, must do equity.” See Trumbo exr. vs. Blizzard and Jacobs, 6 Gill & Johns. R. 24; 1 Story's Eq., sec. 64, p. 77; 1 Tucker's Com. 371.

It will be seen, in the sequel of this case, that notwithstanding the appellee has omitted to tender with his bill, or offer to pay the amount actually borrowed from the appellant, Rud-dell, we have not seen fit to dismiss the bill, for the reason that the appellants did not demur for that cause, but saw fit to waive the defect by their answer. If a demurrer had been interposed in the first instance, or they had insisted on the omission in their answer, to be considered at the hearing, we should have had no discretion but to have dismissed the bill without relief to either party, in case no amendment should have been made, on leave granted for that purpose.

In Fanning vs. Dunham, ubi sup., the Chancellor said: “ The equity cases speak one uniform language, and I do not know of a case in which relief has ever been afforded to a party seeking relief against usury, by bill, upon any other terms. It is the fundamental doctrine of the Court. Lord Hardwick (1 Vesey 320) said that in case of usury, equity suffers the party to the illicit contract to have relief, but whoever brings a bill, in case of usury, must submit to pay principal and interest due. Lord Eldon (3 Ves. & Bea. 14,) after an interval of more than sixty years, declared precisely the same rule.”

We have said that our statute declaring usurious contracts void, seems to be quite similar to the English statute of Anne on the same subject, except in the particular before mentioned. The authority of such names as Haedwick and Eldon, when treating on that statute, should have much weight with our Courts, when considering ours. We have examined the reports of the several States of this Union, as far as we have been able to have access to them, and have found but few adjudicated cases in which the dbctrine has not been maintained as we have stated it above. So that we may safely say, we think, that the doctrine of the Courts in this country is generally consistent with the English rule on the same subject, as shown from our references above. -

The few adjudicated cases which we have found, in which the rule that we have laid down is not fully sustained, are most-1 to be met with in the Virginia Reports, and possibly one case in Mississippi. The rule is only qualified — not repudiated — by those cases. The qualification is, that the debtor, where he is plaintiff, and seeks to set aside a contract on account of usury, will only be required to pay the principal debt, without any interest. See Young vs. Scott, 4 Rand. R. 415. Clarkson's ad. vs. Garland, 1 Leigh R. 147. Turpin vs. Povall, 8 Leigh R. 93. Marks vs. Morris, 4 Hen. & Munf. 463. Also Boone vs. Poindexter, 12 Sm. & Marsh. (Miss.) R. 640. And these cases were made to rest upon the fact that the borrower came into equity full-handed with proof (as it is termed) of the facts of usury— seeking no discovery of that fact from the lender, but placing his relief upon the naked fact of usury to be established by proof outside of the defendant’s answer. See 1 Tucker’s Com. 370, and the review of the several cases above referred to by the author.

We may safely, therefore, lay down tbe”rule, under our statute, to be as we have shown it elsewhere exists; that is to say, when a debtor comes into a court of chancery to set aside a contract, on account of usury, he must, before he shall be entitled to relief therefrom, pay, or offer to pay the principal actually, borrowed, or advanced to him, with interest at six per centum per annum.

We have been thus particular in showing the rule of equity on this subject, because the appellee, in the case before us, has sought by his bills to have all the securities taken by the appellant, Ruddell, and infected with usury, declared void and ordered to be canceled without offering to pay anything, and because such was, in effect, the decree rendered by the Court below.

The appellee seems not to be represented in this court, but we propose to treat the subject as fully as a careful research will enable us, to the end that the opinion herein expressed, may be supported by, at least the weight of authority.

Primarily, the rule, which we have laid down, was only applied to cases where debtors made applications to Courts of Chancery to be relieved against judgments at law rendered upon usurious contracts or securities, under warrants of attorney, etc. See Fanning vs. Dunham ubi sup.

But more recently, it has been extended by the Courts, so as to make it embrace cases such as the one we are now considering. Chancellor Kent, in Fanning vs. Dunham, on this branch of the subject, said: “ The same objection and difficulty occur in the case of a mortgage taken to secure an usurious loan, with the power to sell annexed to it, by means of which the creditor forecloses his mortgage by an act in pais, without calling on any Court to assist him. The debtor has no relief in that case, but by applying to this Court (Chancery,) and then he must comply with the terms of paying what was actually advanced. He deprives himself in that case, by the power to sell, as he does in the other, by warrant of attorney to confess judgment, of an opportunity to appear and plead the usury. These are cases in which the party, by his own voluntary act, deprives himself of his ability to inflict upon the creditor, the loss of his entire debt. Many other cases may be stated in which the same result will follow. The party is in the same situation, if, instead of resisting the usurious claim, he pays it. »He cannot then expect assistance to recover back more than the usurious excess.” See 5 Johns. Ch. R. 145.

If the appellants were applying to a Court of Chancery, and were endeavoring to enforce any of the securities made by the appellee, and the appellee had set up and made out the usury, as he has done in the case before us, by way of defence, the remedy would have been obvious. The securities would be declared void, and ordered to be given up to be canceled. But the appellants have not resorted to chancery. They have caused judgment to be entered at law, and besides this have a deed of trust with the power of sale, which is equal and tantamount to a decree of foreclosure of an ordinary mortgage, which they have absolutely proceeded to foreclose, by sale of the property, under the power contained in the deed, and it is the appellee, the debtor, who is compelled to resort to chancery and ask for relief, which he cannot get at law, against the judgment, and other securities infected with usury by means of the original transactions and responsibilities which they were intended to cover.

Perhaps it is sufficient for the purposes of public justice and public policy, that the law has enabled a debtor, in every case in which he does not of his own accord deprive himself of the means, to plead the statute in discharge of his usurious contract and of his obligation to pay even what was received, and that in all cases he can, by paying the actual principal received and the lawful interest, be relieved from the usurious exaction.

In view of the foregoing, we therefore hold that there is error in the decree of the Court below in this, that it does not require the appellee to pay back to the appellant, Ruddell, the sum of $506, the amount really and absolutely advanced and loaned to the appellee, with interest on that amount from the time the advance or loan was made, at the rate of six per centum per annum; and for this cause the decree of the Independence Circuit Court is reversed. And this Court, under the practice in such case, will proceed to render such decree in the premises as ought to have been rendered by the Court below, that is to say: That it is hereby declared that the writing obligatory or money bond, the judgment thereon rendered on the law side of the Circuit Court of Independence county, the deed of trust made to secure the payment of the bond, as well as the deed made by Byers to Ruddell in the pleadings and proof in this cause mentioned, are, and each of them is, tainted or infected with usury; and as such, should be declared void and of none effect. And it is further declared to be the settled practice and doctrine in equity, in this State, that the plaintiff, who seeks the aid of a court of equity to set aside a judgment at law, or other legal security on the ground of usury, cannot be entitled to relief, whether the usury be established by the proof, or admitted by the answer, except upon the terms of paying the principal and interest lawfully due thereon after deducting every usurious excess. And that the bond, the judgment, the deed of trust and the conveyance from Byers to Ruddell, mentioned in the pleadings, are to be deemed and taken as securities only for the balance that may be due after such deduction; and, if such balance be not paid by the time the decree, to be entered by this Court in conformity herewith, is certified to the Circuit Court of Independence county in chancery, that, when the same shall be so certified, the said Court is hereby required to enter up an order in said cause requiring the appellee herein to pay the amount found to be due the appellant, Ruddell, by the decree of this Court within 90 days thereafter, and in case of his default so to do, and in anticipation of such default, that the Court below appoint a commissioner to sell the land named in the pleadings, for cash in hand, at a time to be by that Court appointed, and on such sale to make conveyance to the purchaser, which shall convey all the right, title and interest which vested in the appellee, and that appellants be perpetually enjoined, thereafter, from asserting any title thereto under said usurious judgment, deed of trust or conveyance from Byers, which are required to be given up to be canceled on payment of the amount found due Ruddell, as above directed.


text:
    Randle vs. Williams ad.
    A writ of certiorari will be quashed by the Court, on the motion of a party, or of its own motion, at any stage of the proceeding, if the Court becomes satisfied that it ought not to have issued.
    If the assessment and levy of taxes upon the property of an individual be excessive, the appropriate remedy is by appeal to the County Court to have the assessment corrected.
    The Circuit Court has no jurisdiction, by writ of certiorari, to correct the assessment and taxation of property by the sheriff and collector, nor to revise his commissions and charges in the collection of the revenue.

      Appeal from the Circuit Court of Clark county.

    The Hon. Shelton Watson, Circuit Judge.
    Flanagin for the appellant.
    The petitioner had his remedy by application to the County Court, under sec. 4, p. 55, Acts of 1852, to correct his taxes if they were overcharged; and having neglected that, he was without remedy. See Asborn vs. The Inhabitants of Dow?'iss, 9 Pick. Rep. „
    If the petitioner had been compelled to make the payment, he had his remedy against the sheriff for money paid by compulsion. 12 Pick. 7; 21 lb. 64; lb. 75.

    Jordan for the appellee.
    It is submitted that the petitioner sought the proper and only remedy for relief in the premises, by an application to the Circuit Court for a supersedeas and certiorari.
    That the Court had authority to grant the writs and properly exercised it, the following authorities are submitted. Carnall

      vs. Crawford County, 6 Eng. 604; Roberts vs. Williams, 13 Ark. 355; Couch, Ex parte. 14 lb. 337; Marr, Ex parte, 7 Eng. 84; Buckner et al., ex parte, 4 Eng. 73; Pike vs. The State, 5 Ark. 204.
    And if the Court, in the exercise of its superintending control over inferior Courts and their process, had not jurisdiction to perpetually supersede so much of the amount required to be made by sale of the lands and town lots, as was illegally and wrongfully charged, appellant virtually admitted the jurisdiction by failing to plead to it. Vide authorities above cited.

   Mr. Justice Hanly

delivered the opinion of the Court.

It is somewhat difficult to ascertain the precise character of the proceeding before us; because, it seems to have commenced at law, and ended in a decree in chancery; thus uniting chancery and law proceedings in the same controversy, or suit, and producing thereby an abundant harvest of error, and inextricable confusion. As a chancery proceeding it would be wholly unwarranted and unauthorized. We shall, therefore, regard it as having been intended to invoke a remedy at law, through the instrumentality or agency of the common law writ of certiorari, issuing from the Circuit to the County Court of Clark county, as such appears to have been the design of the appellee in setting the proceeding on foot. The fact is, the counsel for the appellee seems to combat the idea with apparent warmth, that it ever was intended, or can be considered, as a chancery proceeding in any sense whatever.

The petition, in substance, complains that appellant is sheriff and collector of Clark county; that there is an excess in the assessment and taxation of certain tracts of land, and fifty-six town lots, situate in Clark county, for the year 1853, and belonging to the estate of Samuel Moore, deceased, of which ap-pellee is the administrator. And it also complains that the appellant, as sheriff and collector of that county, had charged more fees or commissions than he was entitled to by law, and also had paid the printer, for advertising the said lands and lots for sale for taxes, more than he could rightfully or lawfully charge; that appellant was about to sell the said lands and town lots for the taxes, penalty and costs, so illegally charged thereon, and the petition, among other things, prayed that a certiorari be issued to bring up the record and proceedings of the County Court relative to the assessment of the taxes on the said lands and town lots mentioned, for the year 1853, and that the same might be quashed, and the sale thereof superseded.

The petition showed that no part of the taxes or costs had been paid, but stated that, after the advertisement for sale, a tender was made to the appellant, as collector, of the amount of tax, fees and costs, that petitioner considered to be justly due; but that the appellant, as collector, refused to receive in satisfaction a less sum than the whole amount he had charged.

The application was made, and the writ issued in vacation. The record was returned on certiorari, and the sale ordered to be superseded. When the case was finally disposed of in the Circuit Court, it was “ ordered, adjudged and decreed ” by the Court, that the supersedeas be set aside as to $44 68, and perpetuated as to $36 68, and that the appellant pay the costs expended: and from which he appealed to this Court.

1. It is well settled, that if the Court becomes satisfied, at any stage of the cause, that the writ of certiorari ought not to have issued or been granted, it may be quashed, on the motion of the party, or by the Court of its own motion; because, otherwise, a Court might be forced to proceed, if neither party should see fit to make a motion of the kind, although it might discover that a wrong was about to be committed. See Rex vs. Wakefield, 1 Burr. 485. The People vs. The Supervisors of Alleghany, 15 Wend. R. 198. The People vs. The Supervisors of Queens, 1 Hill’s R. 200.

It resembles a case, where a Court will, of its own motion, dismiss a proceeding at any stage of the cause when a want of jurisdiction is discovered. See Tunstall vs. Worthington, Humph C. C. R. 662. The State vs. Kingland, 3 Zabr. (N. J.) Rep. 85.

And this will result from the fact, that, at common law, the writ of certiorari is not a writ of right, but will be granted or denied in the discretion of the Court, according to the circumstances of each particular case. Its issuing in cases where it properly may issue, is discretionary with the Court, and it, therefore, becomes a duty to quash it, whenever it plainly appears that such discretion has been improperly exercised. It was said in the case in 1 Hill 200, above cited, that the Court will retrace its steps, by quashing the writ, notwithstanding a return has been made, and the merits of the case gone into. And in 1 Burr. 485, the writ of certiorari was superseded, the return ordered to be taken from the files, and the order of the justices, which had been removed by the certiorari, was remanded to the justices again.

2. By the act of 1853, the assessors throughout the State are required to file the assessment lists in the office of the county clerk on, or before the 15th April, and give notice of the fact in each township in the county. And the same act provides, that any person aggrieved by such assessment, so required to be filed, may appeal to the County Court, at the next term thereof after the assessment is so filed, and have the assessment corrected, if it should be found to be incorrect. The manner and mode in which such .appeal shall be taken to, and conducted by, the County Court, are also prescribed by the act. See Pamph. Acts of 1853, p. 55, secs. 3 and 4.

Hence, if it be true, as alleged in the petition, that the assessment and levy of taxes on the property therein mentioned was excessive, no proposition can be dearer than that the appropriate remedy was by appeal, to the County Court, under the statute, to have the amount erroneously assessed and levied corrected and adjusted in that respect. And it does not appear, nor is it pretended, that the appellee was deprived of the right of appeal without fault or negligence on his part. See Roberts vs. Williams, 15 Arh. R. 48.

If the sheriff and collector charged more fees and commissions than the law allowed, he was liable to the injured party in a civil suit, in case they were paid, for the amount illegally charged, and five dollars for each item illegally demanded, and was also subject to a criminal proceeding in the form of an indictment for extortion. See Digest 527.

We are, therefore, of the opinion that the writ of certiorari was improvidently issued in this case, and that the motion of the appellant to quash the same, and set aside the supersedeas ought to have been sustained.

The judgment of the Clark Circuit Court rendered in this cause, is, therefore, reversed, and the same remanded to said Court with directions that the certiorari granted herein be be quashed, and supersedeas awarded thereon be set aside.


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    Blackburn vs. Morton et al.
    It is purely a matter of practice, whether depositions can be taken, iu a case at law before the issues are made up: and in the absence of any rule upon the subject, depositions are not rendered irregular by being taken before issue is joined in the cause to which they apply.
    Where the certificate of the clerk, attesting the official character of the justice of the peace before whom depositions were taken, has no locus sigüli, and the Court below permits them to be read, against general objections, this Court will presume, in favor of the judgment of the Court, that the defect was occasioned by the omission of the clerk in making the transcript.
    A general objection to adeposition reaches the relevancy, competency, or legal effect of . the testimony only; and will not be considered as extending to any matter of form, or question of regularity, or authority in respect of the taking of such deposition.
    Where a party, by his counsel, concedes that an instruction given bythe Court below in his favor, is erroneous, this Court will not look into it to determine whether the concession be properly or improperly made.

      Where no question is made in respect to the joinder of several plaintiffs in the action, this Court will consider any objection for such cause, if it exists, as having been waived: and if no notice be taken, in the brief, of an instruction objected to in the Court below, the objection will be considered as having been abandoned.
    The defendant, in an action of detinue for a slave, having proved five years possession, the Court instructed the jury that if they should find certain facts showing a right of property in the plaintiff, “they should find for the plaintiff, unless they should also find that the defendant had, before the commencement of this suit, held five years peaceable possession of said slave: ’ ’ Held, that there was no obj ection to the instruction that could militate against the defendant in view of the proof.
    Where an instruction is erroneous and calculated to mislead the jury; and the verdict would have been different had the instruction not been given, a new trial will be awarded.
    When parties bring themselves within the territorial jurisdiction of our Courts, and one of them applies for redress, they must be held as submitting to all the laws that have been passed for redress of such grievances as are complained of: and so, in such case, the statute of five yeai’3 possession {Dig- eh. 153, sec. 3,) will be held to vest a good title to the property, though the possession may have been without the territorial limits of our State.

      Appeal from the Circuit Court of Crawford county.

    The Hon. Felix J. BatsoN, Circuit Judge.
    S. H. Hempstead, for the appellant.
    The depositions ought to have been excluded because taken before issue joined. Digest 431.
    The depositions from Alabama were not authenticated by the certificate and seal of the clerk of a Court of record, and should have been excluded. Dig. 434.
    The instructions given to the jury were improper. Three years is the limitation in an action of detinue: and this may be relied on under the general issue. Sand. PI. & Ev. 434; 3 J. J. Marsh. 365.
    The plaintiffs not showing a joint right could not recover. 5 Eng. 223; 4 Russ. 225; 10 Paige 459.
    The continuity of possession was not broken by trespass or theft. 2 Caines'' Rep. 153.
    Walker & Giieen for the appellees.
    The objection to the depositions was general. No intrinsic objections are apparent upon their face. A general objection reaches the relevancy, competency or legal effect of the testimony only. Garvin vs. Luttrell, 10 Humph. 16; Hoyes vs. Nance, 1 Swan 57.
    We admit that the second instruction is erroneous; but it could not have prejudiced the defendant’s case, and therefore not a ground for reversal. Bayless vs. Davis, 1 Pick. 206; Lane vs. Crombie, 12 id. 177.
    The proof shows that the defendant resided and held possession of the negro in the Cherokee Nation ever since he bought him. Can a title to property be acquired, by possession under the statute of this State, by one who has never been within its territorial limits? It is a maxim of international jurisprudence that no State or nation can, by its laws, directly affect or bind property out of its own territory, or bind persons not resident therein. Story’s Conf. of Laws, sec. 20. A conveyance or transmutation of property by mere .operation of law, operates only upon the property within the territory of the Legislature. {Id. 411.) To acquire title to property by prescription, the possessor and the property must continue within the jurisdiction of the Legislature during the whole of the prescribed period. {Sec. 582.) Title by five years possession cannot, be acquired by a person residing in the Indian Nation, because the owner cannot assert his claim in time.
   Mr. Justice Hanly

delivered the opinion of the Court.

This is an action of detinue, commenced in the Crawford Circuit Court, on the 5th February, 1855, for a slave, at the suit of Allas J. Morton and Harriet his wife, and Elizabeth Alice Smith, an infant, by Wm. Walker her next friend, against the appellant. Plea, non detmet, and issue. Trial by a jury, and a verdict and judgment for appellees. Motion for a new trial, assigning for grounds: 1st. That the Court permitted illegal evidence to go to the jury. 2d. That the Court misdirected the jury. 3d. That the verdict was contrary to the instructions of the Court, and excessive.

The motion for a new trial was overruled, and appellant excepted, setting out the testimony and the instructions given to the jury.

The following is the testimony:

John Shields, of Dallas county, Alabama, by deed of the 16th October, 1846, in consideration of the natural Ipve and affection he bore to his son-in-law, Girard J. Smith, and his daughter Harriet, wife of Girard J., conveyed the slave sued for, among others, to the said Girard J. — but in trust as follows:

“ 1. The said party of the second part (Girard J. Smith) is to hold possession of said slaves, and be entitled to the management and control of them, and to receive their labor and the profits arising from their labor for the support and maintenance of the said party of the second part, and Harriet his wife, during their joint lives, and during the life of the party of the second part, should he survive his said wife; and in case she should survive him, then for her support and maintenance, and that of her children by the present, or any subsequent husband during her life.

2. That the said party of the second part (Girard J. Smith) is to hold the legal title to said negroes, in trust for the use and benefit of Elizabeth Alice and Felix, the children of the said party of the second part, and Harriet his wife, and any other children which the said Harriet may have, either by the present or any subsequent marriage, to be equally divided between them, share and share alike, at the death of the said party of the second part, should he survive his wife, or at the death of Harriet, should she survive her husband.

Girard J. Smith left Dallas county, Alabama, in 1848 or 1849, and came to this State, bringing with him the slave in controversy, together with several others of the slaves mentioned in the deed of trust, and died in the city of New Orleans, in the latter part of 1849, or in the early part of 1850, leaving Harriet, his wife, in the deed of trust named, and three children, viz: Elizabeth Alice, Felix and Hermion, him surviving. In July, 1851, Harriet, the widow, intermarried with the appellee, Morton, and in 1852 Felix and Hermion, the Uyo youngest children of Girard Smith and Harriet, died before they attained their majority, and without issue, leaving the appellee, Elizabeth Alice Smith, the only surviving issue of Girard Smith and Harriet, them surviving. The slaves mentioned in the deed of trust belonged to John Shields, the donor, at the time of the execution thereof, and Girard J. Smith held them in his posses-' sion, under the deed of trust, down to the time of his leaving Alabama.

The above facts were established by the deed of trust itself, and the depositions of John Shields, the donor named in the deed of trust, and William B. and Edward T. Shields his sons.

Edward T. Shields, in addition to the facts above stated, deposed that after Smith’s death, say in the summer of 1852, he, as the agent of his sister Harriet, one of the appellees, went to Fort Smith, in this State, in quest of the slave Tom, in controversy in this suit, who is the same boy Tom in the deed of trust described as being named Tom, and aged fifteen years; and on his arrival at that place, ascertained that he was in the possession of the appellant, Blackburn, who resided in the Cherokee ■ Nation of Indians, That both appellant and the slave being beyond the reach of civil process, he was induced by the attpr-neys whom he consulted, to hire a man to bring the slave to him, and by that means he obtained possession of the slave, whom he knew to be the identical same boy Tom mentioned in the deed of trust, and started on his return home with him, when he was arrested at appellant’s instance, and taken to Yan Burén, and whilst on his way, with the slave, from Yan Burén to Fort Smith, to answer the charge made by appellant, appellant, accompanied by several others, took the slave out of his possession. His understanding was, that the slave was taken from him by virtue of a writ of replevin, or some other process. At all events appellant directed the seizure and capture of the slave. The slave was worth then $1,000. Morton, One of the appellees, is the husband of his sister Harriet, the widow of Girard J. Smith, and appellee, Elizabeth Alice, is the only surviving child of the said Harriet. He further stated that appellant told'him he-bought the slave in controversy from Girard J. Smith.

Appellees also proved that the hire of the slave in question was worth from $100 to $125 per annum. This was all the proof adduced on the part of the appellees.

Appellant then proved that Girard J. Smith, by bill of sale, bearing date 26th October, 1849, sold the same slave to him. That at the time of the execution of the bill of sale, the slave was aged about 15 years, and that he was, at the time of the trial, worth $800. That the appellant has resided in the Cherokee Nation of Indians ever since he purchased the boy of Smith, and has during all that time, had the slave in his possession in the Nation. That Edward T. Shields obtained possession of the slave, in the manner by him stated above — that he was arrested upon a charge of larceny, for the act, and whilst under the arrest, the boy was replevied out of his possession at the suit of appellant; and that, at the time the slave was so reple-vied,_ Shields refused to say, in answer to an interrogatory propounded, that he recognized or knew the negro, but said he thought he knew him.

The appellant objected to the reading of the depositions of the witnesses on the part of the appellees, all the proof on their part being presented in the form of depositions, some of them having been taken in Dallas county, Alabama, whilst others were taken in Missouri. The objections to the depositions were general, and were overruled by the Court, and he excepted.

Certain instructions were given to the jury, at the instance of the appellees, which were also objected to, at the. time, and exceptions taken by the appellant, when they were given. The instructions, as given by the Court, were as follows:

“ 1. That if the jury believe from the evidence, that the negro man mentioned in the declaration, is one of the negroes mentioned in the deed of trust executed by John Shields to Girard J. Smith, and that he was in defendant’s possession at any time before the commencement of this suit, and that he claimed him under purchase from said Smith, and that, before the commencement of this suit, Girard J. Smith in that deed of trust named, hás died, and his widow, Harriet, one of the plaintiffs intermarried with plaintiff, Morton, and that at the time of the commencement of this suit, the plaintiff, Elizabeth Alice, was the only surviving child of the said Harriet, they should find for the plaintiffs, unless they should also find that said defendant had, before the commencement of this suit, held five years peaceable possession of the said slave.

2d. That in order for the defendant’s possession to give him a title to the negro, it must appear that the possession was continuous: and that if the jury find from the evidence that the said negro was in the possession of the plaintiffs, or their agent, within five years next before the commencement of this suit, they will disregard the evidence offered to prove title by possession.

3. That the variance between the names of the plaintiffs apparent in the declaration, and depositions, is of no consequence so that it appears that they are the same persons.”

Blackburn, the defendant below, appealed, and assigns for error:

1. That the Court below admitted improper evidence against the objections of the appellant.

2. That the Court below overruled the motion of the appellant for a new trial.

3. General assignment.

We will dispose of the errors assigned in the order in which they severally occur.

1. Did the Court below admit improper evidence against the objections of the appellant?

The record in this case shows that, before the return term of the original writ, application was made to the clerk of the Court below for leave to take depositions in behalf of the appellees, and that a rule was entered accordingly, and after notice given, the depositions, which were the only evidence offered, on the part of the appellees, in the Court below, were taken under a regular commission, etc. It is insisted by counsel on the part of the appellant, that these depositions were not admissible, because taken before any issue was made up in the cause.

There seems to be no provision of our statute requiring issues to be made up in law causes before a rule is entered to take depositions. It is therefore a matter purely of practice, and we are not advised that there has been any uniform rule of practice established on the subject. In the absence of such a rule, we are constrained to hold, as we do in this case, that depositions are not rendered irregular by being taken before issue is joined in the cause to which they apply. If taken before issue is formed, they are, as a matter of course, taken at the peril of the party who takes them; for if they should be found inapplicable to the issues when made up, as a consequence, they would not afford evidence for the party in consequence of the application and operation of the principle, that the allegata and probata must agree. With this qualification depositions taken under the circumstances are admissible, if regular in other respects, as much so as if taken after issue formed.

It does not appear from the record before us, that the certificate of the clerk of the Probate Court of Dallas county, Alabama, which attests the official character of the justice of the peace before whom the depositions in that State were taken, is authenticated under the seal of that Court, as contemplated by the statute in such cases.

It appears, however, that the certificate of the Clerk to the depositions, concludes thus: “ In witness whereof I have hereunto set my hand as such clerk, and affixed the seal of said Probate Court of Dallas county, the same being a Court of record, at office in the town of Cahawba, etc.”

It is insisted, on the part of the appellant, that these depositions should have been excluded as evidence for the appellees, on account of this omission. This Court will presume in favor of the regularity, and in support of the judgment of the Court below, and this presumption is so violent in favor of the proceedings of the inferior Court, that when a defect is observed to exist in the record, which would affect the judgment of such Court, that the defect was occasioned rather by the omission of the clerk — a ministerial officer — than by the solemn act of the inferior Court. See Broom’s Leg. Max. 729. Briggs vs. Clark, 7 How. (Mi.) Rep. 457. Robinson vs. Francis, same 458. Smith vs. Berry, 1 Sm. & Mar. 321. Pender vs. Felts, 2 same 535.

Applying the principle thus stated, we are forced to intend in this case, that the certificate of the Alabama clerk was authenticated by his seal, in the absence of affirmative proof to the contrary, and that the omission, in the transcript before us, was occasioned by the clerk of the Court below in failing to annex a locus sigilli to the transcript, where the seal to the original document was affixed.

But it was really quite unnecessary for us to have considered or determined these objections to the depositions before us, for the reason, that the objection to the depositions was simply general, the counsel for the appellant in the Court below failing to make his objection specific or special. The rule in such case being that a, general objection to a deposition reaches the relevancy, competency or legal effecr of the testimony, only. See Garvin vs. Luttrell, 10 Humph. 16: in which case, McKinney J., in delivering the opinion of the Court, said: “We hold that a general objection to the reading of the deposition, as in the present case, will be construed in this Court as referring merely to the competency, or relevancy, or legal effect of the testimony contained therein; and will not be considered as embracing or extending to any matter of form, or question of regularity, or authority in respect to the taking of such deposition. If it be liable to objection upon either of the latter grounds, the specific exception must be pointed out with reasonable precision and certainty: and if overruled in the inferior Court, must be set forth in the bill of exceptions, and no exception, not thus taken and set forth in the record, can be raised or assigned as error in this Court. To hold otherwise would, not unfrequently, enable a party to obtain a reversal perhaps on some ground merely formal or technical, not made in the inferior Court, and which, if it had been taken there, might have been easily obviated.” See also, Duval vs. Ellis, 13 Mo. R. 203. Hughes vs. Nance, 1 Swan R. 57. Sexton vs. Brock, 15 Ark. R. 345, 348.

We have no hesitation, therefore, in holding that the Court below did not err in admitting the depositions taken in this cause, to be read at the trial thereof. .

2. Did the Court below err in overruling the motion of the appellant for a new trial?

The counsel for the appellant seems to have abandoned the third ground assigned in his motion for a new trial, relying in this Court upon the one we have just considered, embraced in his first assignment, and the remaining one viz: “ that the Court misdirected the jury.” We will, therefore, in determining the question lastly propounded, proceed to consider it in reference to each of the three instructions given by the Court below at the instance of the appellees and against the objection of the appellant.

As to the first instruction. There being no question made, either in the Court below, or in this Court, in respect to the joinder of the plaintiffs in this action, we will consider the objection upon that score, if any exists, as having been waived by the counsel. Conceding then that the appellees, under the proof, had such a joint interest in the subject of the suit as entitled them to join in an action for its recovery, we will at once proceed to determine the propriety of this instruction.

The peaceable possession of slaves, acquired after the 19th Dec’r, 1846, for the space of five years, shall be sufficient to give the possessor the right of property thereto, as against all persons whatsoever, and which may be relied on as a complete bar to any suit in law or equity. See Dig. ch. 153, sec. 3 p. 943.

With the concession above assumed, we can discover no objection to this instruction, which could militate against the appellant, in view of the proof shown upon the record. We therefore hold, as far as the appellant is concerned, that the Court below did not err in this instruction.

As to the second instruction — ■

It is conceded on the part of the counsel for the appellees, that this instruction is erroneous. We shall not look into it to determine whether the concession was properly or improperly made.

As to the third instruction—

The objection to this instruction, if objectionable at all, seems to bave been abandoned in tbis Court by the counsel for the appellant. No notice is taken of it in his brief. It was therefore, on this account, that we omitted, in the statement of the case, to designate the supposed variance between the names of the appellees, as apparent in the declaration and depositions. We will therefore pass this, and proceed to consider the other ground for a new trial, set forth in the motion.

3. Was the finding of the jury contrary to the instructions of the Court?

We are of opinion that the jury were warranted in finding for the appellees under the second instruction, which their counsel has conceded to be erroneous. This instruction being erroneous, and calculated to mislead the jury, we are irresistibly forced to the conclusion, that if this instruction had not been given them, their verdict would have been diffez’ent — certainly for the appellant.

This disposes of the assignments and the questions growing out of them, except in relation to one point made by the counsel for the appellees in their brief. It is insisted that the statute of five years possession cannot be successfully invoked by the appellant under the facts shown by the record; for the reason, that the appellant has resided with the property in controversy, beyond the territorial limits of this State, in the Cherokee Nation of Indians, ever since he bought the slaves in question from Smith, in October, 1849, when his possession commenced, averring that our statute — the one making five years peaceable possession of slaves, give to the possessor the right of property against all persons — did not commence to operate upon the subject matter, or the parties to this suit, until they were brought, or voluntarily came, within the territorial limits of this State, and, consequently, within the influence of the laws thereof. In support of this position, we have been referred, by the counsel, to the work of Judge Story on the Conflict of Laws. We have noted the citations made, and conceive the counsel has misapprehended the force and meaning of the passages referred to. If the learned author is not misunderstood by us, we can say on the subject with Parker Ch. J.: “ That the laws of any State cannot, by any inherent authority, be entitled to respect extra-territorially, or beyond the jurisdiction of the State which enacts them, is the necessary result of the independence of distinct sovereignties.” (See Blanchard vs. Russell, 13 Mass. R. 4.) In applying the principles we have laid down in reference to the possession of the slave by the appellant, under the circumstances indicated by the record, we have not called to our aid any foreign or extra-territorial laws or statutes; but on the contrary, the principle has been proclaimed, and the doctrine maintained: “ that the recovery must be sought and the remedy pursued .within the time prescribed by our own law — the lex fori— without regard to the place where the cause or its merits originated.” (See Story's Conf. Laws, 487.)

And further, as held in McElmoyle vs. Cohen, (13 Peter's R. 312,) that, “ prescription is a thing of policy growing out of the experience of its necessity: and the time, after which suits or actions shall be barred, has been, from a remote antiquity, fixed by every nation, in virtue of that sovereignty by which it exercises its legislation for persons and property within its jurisdic-diction.”

Applying these principles and authorities to the case before us, and the result is inevitable, that the parties having brought themselves within the territorial jurisdiction of our Courts, to which one of them has applied for redress, they must be held as submitting to all the laws, which have been passed for the redress of such grievances as are complained of; as much so, and to the same extent as if they were citizens of this State, and had resided here continuously and uninterruptedly since the cause of action in this behalf accrued. (See 22d Ala. R. 339.) And we are rather confirmed than shaken in the conclusion just expressed, by the cases of Bulker vs. Roache, (11 Pick. R. 36,) and Leroy vs. Crowningshield, (2 Masons R. 151.)

In conclusion, therefore, we are forced to hold that there is error in the judgment of the Crawford Circuit Court in respect to the matters hereinbefore pointed out.

On account of these errors, the judgment is reversed, and the cause remanded, to be proceeded in, etc.


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    Hill & Co. vs. Jayne.
    The rule, that this Court -will not disturb the verdict of the jury, unless there is a total ■want of evidence to sustain it, (15 Ark 403; 542) approved.

      Appeal from the ■ Circuit Court of Ouachita county.

    The Hon. Abner A. Stith, Circuit Judge.
    Watkins & Gallagher for the appellants.
    C'jmmins & Garland for the appellee.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was assumpsit, brought by the appellee against the appellants, in the Ouachita Circuit Court, to the Fall term, 1855, for so much goods, wares and merchandize sold by the appellee to appellants. Damage laid at $1,500.

At the return term of the writ of summons, the appellants appeared by attorney and filed their two pleas, to wit:

1. Non assumpsit.

2. Tender before suit was commenced of $32 94 cents, which, by their plea, they professed to bring into Court, and denied any further indebtedness. Similiter to the first plea, and replication to the second, traversing the tender therein set up, concluding to the country, and similiter thereto by the appellants.

The issues being thus made up, a trial was had before a jury on these issues, and a verdict was rendered for the appellee for the sum of $193 68 cents, for which amount judgment was rendered by the Court.

No exceptions seem to have been taken by the appellants during the progress of the trial.

After the verdict, as above, had been rendered, and the judgment entered in conformity therewith, the appellants, by attorney, filed their motion for a new trial, on the following grounds.

1. The finding of the jury was contrary to law and the evidence.

2. Because the finding of the jury was contrary to the evidence.

The motion for a new trial was considered and overruled by the Court; for which, the appellants excepted at the time, and prepared and tendered their bill of exceptions, setting out all the evidence given at the trial; which bill of exceptions was signed and sealed by the Court, and admitted of record, and from which we derive the following facts:

It was testified, on the part of the appellee, by Brown, that he was , and had been book-keeper ior appellee, who was engaged in the drug business, in the city of Philadelphia, for some considerable time — that he knew, of his own knowledge, that the account of the particulars of the appellee’s demand against the appellants and filed in the cause, was correct, and that the items therein charged had been furnished them by the appellee, at their instance and request, and that the balance of $346 50 cents, as shown by the account, was still due and owing to the appellee, by the appellants.

Harper, a witness ior the same party, proved one item in the bill of particulars, amounting to $63 48 cents.

Matlock, another witness for appellee, testified that he was agent for appellee; in Camden, and knew that the. charges, in the bill of particulars shown him, were in accordance with the usual rates for such articles. He further testified that an item in appellee’s bill of particulars, for the further sum of $35 02 cents, was correct, as evidenced by a letter of appellant’s agent produced to him, in which this amount was acknowledged, in addition to the amount proved by Harper. He' also proved that the order, accompanying the letter for merchandize to the amount of $105, was also in the hand writing of appellant’s agent. He also proved a credit paid him on account of appel-lee, by the appellants, of $146 33 cents, made in December, 1852, which should go as a credit on the account of appellee, exhibited as his bill of particulars. This payment was made by return of merchandize furnished them by appellee and returned by his order. This seems to have been all the evidence offered at the trial on the part of the appellee.

The only testimony offered on the part of the appellants, was that of Peter Connelly, who stated that he was book-keeper for appellants, at the time appellee’s account against them purports to have accrued, and from thence forward to the time of deposing; that he was cognizant of all the transactions between the parties to the suit, and that appellants were only indebted to appellee, on account of those transactions, in the sum of $32 94 cents, and no more. When asked, on cross-examination, how it was that appellee’s account had been reduced to the sum stated by him as the balance due, he stated that “ he supposed it had been done by remittances, as the agents of appellee were required to remit every six months.'''’ Pie further stated, on cross-examination, that appellee was in the habit of keeping accurate and correct accounts with his agents.

Hill & Co. appealed, and assign for error the overruling of their motion for a new trial.

And this we will proceed to consider.

It is a rule of universal practice and application in this Court,' that the decision of the Court below, refusing to grant a new trial, upon the grounds that the verdict is contrary to the evidence and the damages excessive, will not be disturbed when there is no total want of evidence to sustain any material allegation in the declaration, and the amount of damages, upon all the facts of the case, does not shock one's sense of justice. See Pleasants vs. Heard, 15 Ark. R. 403. Russell vs. Cady, surv. Ib. 542.

So far from it being the case, in the instance before us, that there was a total want of evidence to sustain the verdict, we think the facts presented manifest very clearly that the verdict is sustained by the weight of the evidence.

The jury were certainly justified in finding the amount returned by them, in favor of the appellee. If they had even returned a larger amount of damages than they did, we should not have felt ourselves authorized, under the uniform practice of this Court, to have disturbed the verdict.

Finding no error in the judgment and proceedings of the Ouachita Circuit Court in this cause, the same is, therefore, in all things affirmed, with damages át 10 per cent, on the amount of the judgment below.