author: Mr. Justice Walker

text:
    Baker vs. Calvert & Thompson.
    The Circuit Court lias no jurisdiction to try, as an appeal case from a justice of tho peace, where only a copy of the judgment and the note sued on are filed: but should either dismiss the case, or upon proper showing cause the justice rendering the judgment,j,or his successor, or other person having custody of his docket, to certify a full transcript of the record.

      Writ of Error to the Gi/rcwit Gourt of Polk Gownty.

    Hon. Shelton Watson, Circuit Judge.
    Mr. Fowler, for the plaintiff,
    referred to sections 181, 182, chap. 95, Digest; Watts vs. Hill, 2 Eng. 203.
   Mr. Justice Walker

delivered the opinion of the Court.

It appears from the transcript sent from the Circuit Court, that a paper, of which the following is a copy, was placed upon the files of that court and docketed as an appeal case from a justice s court: j

CALVERT & THOMPSON vs. B. R. BAKER.
Came to hand July the 18th, 1810. Judgment against B. R. Baker for debt and damages and costs.
$31 50 Debt,
1 00 Justice’s fees,
3 50 Constable’s fees.
JOHN DATIGHEBTY, J. P”

And with this paper was also filed a writing obligatory, of which the following is a copy :

“One day after date, I promise to pay Calvert & Thompson, or order, thirty-one dollars and fifty-one cents, to bear ten per cent, interest until paid, for value received. Given under my hand and seal, January, 1st, 1840.
B. R. BAKER,” [Seal.]

These two papers, without certificate or evidence of authenticity, seem to have been taken and acted upon by the Circuit Court as an appeal case, certified from a justice’s court to that court.

The paper copied above, in its présent condition, is evidence of nothing. We may infer from it that a proceeding had been instituted before the justice, in which judgment had been rendered, and costs to the justice and constable had accrued. The note was the proper subject of litigation before a justice’s court, and judgment may have been rendered upon it in that court, and an appeal prayed and taken to the Circuit Court; but if such was the fact, there is no evidence of it furnished by the record. The Circuit Court clearly had no jurisdiction of it, as an appeal case, and should have ordered it stricken from the docket, unless upon petition, and a proper showing, that a judgment had been rendered in the justice’s court, and an appeal prayed and granted, ' the court should in its discretion have retained the case, and ordered the justice to certify a perfect record of the proceedings in his court. This, it seems, the Circuit Court did, upon the motion of the appellant, but upon what showing, does not appear. The justice, however, failed to respond to the rule; and after repeated efforts, on the part of the appellant, to have the appeal perfected, all of which failed, and without having taken any steps to compel the justice to respond to the rule, the Circuit Court assumed jurisdiction of the case, and rendered judgment against the appellant, for the amount of the note, with interest and costs. In this, we think the Circuit Court erred.

That court could render no judgment until after it had acquired jurisdiction of it as an appeal case; and the jurisdiction of the court was only retained upon the suggestion of a diminution of record, for the purpose of compelling the justice to send up the judgment and appeal, if in fact, as suggested, such was the fact. The Circuit Court, therefore, should in its discretion cither have compelled the justice to respond to the rule, or have dismissed the proceedings for want of jurisdiction.

The judgment of’the Circuit Court must be reversed, and the cause remanded with instructions to that court to enforce the rule upon the justice, and compel him to certify the true state of the records and proceedings had before him; so that it may determine -whether it has jurisdiction of the case or not; and, if so, proceed to try the case upon its merits. So long as the justice is within roach of the process of the court, he may, and should he compelled to respond to the rule, or if it should be made appear that he is out of office, or beyond the reach of the process of the court, then the process may be directed to his successor, or other person in custody of the justice’s docket, or the rule discharged, and the case dismissed for want of jurisdiction.


source: Caselaw Access Project

author: Mr. Justice "WalKeb

license: Public Domain

text:
    Whitlock et al. vs. Kirkwood.
    Tho plaintiff, in Ms declaration in attachment, claims the amount of the debt sworn to, with interest and “current exchange,” on the place where tho debt, duo on promissory note, is payable; and the writ of attachment commands the sheriff to attach, &c., to satisfy the debt and interest, but is silent as to the exchange: there is not such a variance as will abate the writ.
    Nor is there a fatal variance where the affidavit for an attachment claims tho interest due upon the debt; and the attachment bond is silent as to such interest.

      Appeal from Lawrence Circuit Court.

    Hon. Beaufort H. Neely, Circuit Judge.
    CummiNS, for tbe appellant.
    Tbe pleas in abatement and exceptions to affidavit are merely frivolous.
    The exchange was no part of tbe demand. 2 II. Bl. 378; 3 B. <& P. 335; 10 Mete. 375; 2 McLean 581.
    Tbe contract for exchange is merely what is implied in any contract to pay in a particular place; that is. that tbe party will pay tbe value in money in that place. 1 McLea/n 423/ Story Conflict of Laws, sec. 509, and notes.

    Tbe reference to exchange is merely made to enable tbe party to recover it, if anything. 1 McLain 522.
    Tbe truth of the affidavit cannot be controverted. 4 Mig. 378.
    Byers, for appellee.
    Our statute states that “ the a/moimb of which dema/nd shall be stated i/n such affidavit.”

    Now tbe amount of this demand was not stated in tbe affidavit; because they demanded tbe exchcmge between tbe place where paid and New York City, and do not state tbe amount of that exchange; therefore, the amount of the demand was not stated in the affidavit.
    The action by attachment, according to our statute as we understand it, partakes of two distinct characters: is in rem and in personam. That the attachment clause of the writ is in rem. To give jurisdiction to such writ, there must be an affidavit filed, setting forth, with certainty the amount of the demand — and the writ commands the officer to attach sufficient to secure that demand as sworn to, with interest and costs, and if there is no personal service, and the party does not appear so as to make it a proceeding in personam judgment cannot be rendered or property condemned to a greater amount than the demand certain as sworn to. Because the court would have no jurisdiction to go beyond the sum certain sworn to.
    The proceeding by attachment is in derogation of the common law, and should be construed strictly. Hughes vs. Martin, 1 Arle. Rep. 388/ Didier vs. Galloway, 3 Arle. 502/ Childress vs. Fowler, 4 Eng. 163. If we apply the rules in this case, the judgment of the Circuit Court must be sustained.
   Mr. Justice "WalKeb

delivered the opinion of the Court.

This was an action of debt upon a promissory note, dated 27th of May, 1853, due twelve months after date, for $537 91, and made payable at the office of plaintiffs in New York, where made, “with current rate of exchange on New York.”

Farnham, who described himself as agent of the plaintiffs, swcars that the debt is due, payable on the 27th May, 1854, with interest from due, and the current exchange on New York, between the place where the same may be paid and that city: that defendant is about to remove himself and his goods and effects out of this State, as affiant was informed, by credible persons having ample opportunities of knowing the facts, and his intentions, and as he has good reason to believe, and does verily believe.

The condition of the attachment bond described the action to be “for a debt, as sworn to, of $537 91, with current rates of exchange on New York.”

The writ of attachment commanded the sheriff to summon the defendant to appear and answer an action of debt for $537 91, with the current rate of exchange thereon, between said county of Lawrence and the City of New York in favor of said city.”

This may suffice to show the grounds of variance relied upon by the defendant, who filed two pleas in abatement.

In the first plea, the variance is averred to consist in this: that the plaintiff claims $537 91, with interest and current exchange dt Weio York, in his affidavit; and in the writ of attachment, the sheriff is commanded to attach, &c., to satisfy the debt of $537 91, with interest and costs, but is silent as to exchange.

The second plea is for an alleged variance between the affidavit for an attachment, and the attachment bond, and consists in this: that in the affidavit interest is claimed — in the bond it is omitted.

With regard to the first plea, it may suffice to say, that although true, that the omission is made in that part of the writ directing the sheriff to attach, &c., not in the after part of the writ in which the sheriff is commanded to summon the defendant to answer the complaint, there is no variance whatever, and the demurrer should have been sustained.

The ground of objection set up in the second plea, is wholly untenable. It is unnecessary, however, to discuss the questions argued by the counsel, or refer to the decisious upon which they rely, because in a recent case (Ellis vs. Cossitt et al., 14 Ark. 222,) the same questions were raised, and the same cases cited and relied upon, and it was there held, that defects of this class were not sufficient to abate the writ.

The Circuit Court erred in overruling the plaintiff’s demurrer to the defendants’ pleas in abatement; and for this error, the judgment must be reversed, and the cause remanded for further proceedings therein to be had according to law.


author: Hon. Thomas Johnson,

text:
    Dempsey vs. Fenno, surv.
    The lOffi, llth, and VUh secs, of chap. 148, Digest, embrace guardian’s bonds; and the securities in such bonds, may well apply, by petition to the Probate Court to require tho guardian to give a new bond.
    It is not necessary to give tho Circuit Court jurisdiction on appeal from the Probate Court, that a bill of exceptions should have boon filed, where tho record itself presents every thing necessary to a full adjudication of the case.
    There can bo no question in respect to the constitutionality of the law granting the right of appeal from the Probate Court, and authorizing a trial de novo in tho Circuit Court.
    Where a demurrer, involving merely a question of law, has been sustained by the Probate Court, and on appeal to tho Circuit Court, the j^jigment of the Probate Court is reversed: the Circuit Court ought to remaud the cause to the Probate Court, that a trial may be there had upon the merits.
    The charge that a guardian is not solvent and responsible; or that he keeps possession of¡ and uses the slaves of his ward instead of hiring them out according to law, is sufficient to sustain a petition, on tho part of his securities, to be relieved from further liability on his bond.

      Appeal from the Circuit Court of Pulaslci County.

    Hon. ¥m, H. Feild, Circuit Judge.
    Tliis was a petition filed in the Probate Court by James Lawson and Joseph Fenno, who are the securities of the ajipellant in a guardian’s bond, setting forth that he is not solvent and responsible ; and that he has in his hands five or six slaves, the property of his ward, which he does not hire out, as he ought to do, but keeps them in his own employment, and for his own use; averring, that they are unwilling, and refuse absolutely longer, to remain bound on his bond; and praying that they may be discharged from said bond; that he give bond with other securities, or be discharged from bis guardianship. The guardian demurred to the petition, and his demurrer was sustained. The securities appealed to the Circuit Court. The judgment of the Probate Court was set aside, the demurrer-overruled, and final judgment forthwith rendered in accordance with the prayer of the petition.
    Bertrand, for the appellant.
    S. Williams, for the appellee.
   Hon. Thomas Johnson,

Special Judge, delivered the opinion of the Court.

This was a proceeding instituted in the Pulaski Probate Court, to compel the appellant to execute a new bond, or to submit to a revocation of his authority as such guardian. The proceeding is supposed to have béén predicated upon the 10th, 11th, and 12th sections of chapter 148, of the Digest. It is contended that this class of bonds is not embraced within the provisions of the act referred to; and, that consequently, the courts, through which this case lias passed, have acquired no jurisdiction over it. Much stress has been laid upon the terms “office ” and “officer,” and considerable argument has been employed to show that the place of a guardian is not an office, and that, as a matter of course, he himself is not an officer, within the meaning of the act in question. True it is, that this class of bonds is expressly excepted out of the operation of the two first sections of the act; but this, we presume, ivas not from any indisposition, on the part of the Legislature, to relieve securities in such bonds, but simply because the remedy therein provided, in cases of private contracts for the direct payment of money, or the delivery of property, could not be made to apply to such instruments. The fact, then, that they were excepted out of the operation of the two first sections, can afford no evidence that they were not intended to be embraced within the subsequent provisions of the act. True it is, that the special act, under the title of Guardians and Wards, and chap ter 80 of the Digest, provides for the removal of guardians, for good canse shown; and also, for the ruling of the guardian to additional security. It will be perceived, that this act looks alone to objections which may bn urged, either against the guardian himself or his securities, and not to such as might be urged of a nature entirely personal to the security. This being the state of case, it was very natural that the Legislature, in passing an act for the relief of secmities in official bonds generally, should have intended to embrace the class under consideration. This act, for the benefit of securities, is purely remedial in its nature; and is, consequently, entitled to a fair and liberal construction, and although the term “guardianship” might not, in a strict and technical sense, convey the idea of an office, yet, in a more enlarged and comprehensive point of view, it most clearly would do so. Indeed if there could be a doubt upon this subject, it would vanish upon a reference to the 1 ^th section of the special act already referred to, as it is there distinctly denominated an office. We think, however, that it cannot be very material, under which act the securities intended to proceed, as either is broad enough for the case, as made by the petition, and certainly the appellant cannot justly complain, since he has had a fair and ample notice of the intended application; and, also, of the facts charged against him. No more could have been done under either act, and so much having been done, he has no just cause of complaint. But it is insisted, that although the proceeding may have been properly instituted, yet the law regulating proceedings in the Probate Courts has not been complied with, so asto bring this case within the jurisdiction of the Circuit Court; and that, consequently, none has attached to this court. The ground assumed, is that the only mode, by which an appeal can be prosecuted from the Probate to the Circuit Court, is by a bill of exceptions, and that there being no such bill in this case, no jurisdiction could attach to the Circuit Court; and, asa necessary consequence, none could be legally exercised by this Court. It is conceded, that the 17Qthsection <if chapter 4 of the Digest, provides, that in all cases where appeals are allowed, tbe party appealing, bis agent, or attorney, may tender to the court, during tbe term at which tbe appeal is asked, a bill of exceptions, specially setting forth each item, tbe allowance or rejection of which is objected to, and the decision of tbe court. Here is merely a power to save tbe facts necessary to be brought upon the record by a bill of exceptions; but it, by no means, follows that no appeal will lie where tbe record itself presents everything necessary to a full adjudication of tbe case. Tbe whole proceedings in this case consisted of a petition, demurrer, and joinder, and a judgment of the Probate Court upon the issue formed. Hero, then, there was no office to be performed by a bill of exceptions, since the record itself presented every fact, and tbe decision of the court as to tbe law arising upon those facts. There can be no doubt of the correctness of this construction, since the passage of tbe act of January 4th, 1849, even admitting that there could have existed a doubt before that event. But it is objected that the Circuit Court acquired no jurisdiction to try the case de novo, as it would be a virtual transfer of the constitutional jurisdiction of the Probate Court, to that of the Circuit; and even admitting that it had rightful jurisdiction, yet, it was error to pronounce final judgment upon the overruling of the demurrer. In respect to the first proposition, it is sufficient to remark, that under the constitution the Probate Court lias no exclusive jurisdiction whatever. The 10th section of that instrument, provides that it shall have such jurisdiction in matters relative to the estates of deceased persons, executors, administrators, and guardians, as may be prescribed by law, until otherwise directed by the General Assembly. There can be no question, therefore, in respect to the constitutionality of the law granting the right of appeal and authorizing a trial de novo, in the Circuit Court. The second, it must be conceded, is not altogether free from difficulty, but we are of opinion that it is well taken. The 181si section of chapter 4 of the Digest, provides that, “on every appeal the Circuit Court shall determine the points made to the decision, to which exceptions have been filed; and if the Circuit Court should be of opinion that the court of probate erred in relation to any material question of law or fact, the Circuit Court shall try the matter de novo ; and such court shall make the same order and decision, that ought to have been made by the court of probate.”

Now what was the question presented here? Most clearly a question of law; and, of course, under the statute, that and no other was the matter to be tried de novo, and in regard to which alone the same order and decision was made that the Probate Court should have made. The question then is, what order should the Probate Court have made upon the question of law raised by the demurrer. ¥c think that it should have overruled the demurrer, and have put the appellant to answer ; and, if so, it is clear that the only order this court can now make under the statute, is one of like effect. Ve think, therefore, that the Circuit Court erred in proceeding to render judgment upon the merits of the case, which were not properly before it, but that it should have corrected the error of law, and have remanded the case for further proceedings. This case bears no analogy to the class of cases provided for under the 4eth chapter of the Digest. Indeed, the right of appeal, in a case like this, is not granted by it, and the act extending the jurisdiction by appeal, embracing this class of cases — makes no provisions for trial, but leaves the manner of proceedings to be governed by the law as it then stood, and when applied to the particular cases therein enumerated, it must be done with proper allowance for the nature of the case presented by appeal. This will be seen, at once, by reference to the proceedings under chapter 4, section 179, which provides, that bills of exceptions shall set forth each item allowed or rejected, and the decision of the court upon it, referring directly to the cause for which appeals were allowed by statute; so that the mode of proceeding in section 181, was directly in reference to accounts, items of charge, &c., which were matters of fact, and the law arising upon them, and not to applications like the present. This was a final judgment upon demurrer, and is embraced by the lsi section of the act of 1849, at page 59, which extends the right of appeal from the Probate Court. This act simply refers to the maimer of proceeding under the 4dh chapter of the Digest, as alike applicable to the appeals therein allowed; but, of course with due consideration of the case appealed from, and the matter put at issue before the Circuit Court. The petition presents two distinct charges against the guardian; and we think that both are sufficient in law. There can be no doubt about the first, as no man can be held responsible against his will for a guardian, who is utterly insolvent and irresponsible. The second is also believed to be a violation of the undertaking of the guardian, and to amount to mismanagement of the estate. True it is that there is no statute directly requiring guardians to hire out the slaves of his minor, yet it is believed, from the analogy between them and executors and administrators, and also from the act of 29th December, 1852, that they have no discretion upon the subject 'without an express order of the Probate Court. See Weleh m. Cole, 14 Ark. D. 401. The Isi section of this act provides “that guardians at law having the custody and control of negroes, slaves for life, the property of their wards, -shall not be required to hire the same out atpnblic vendue, but may hire the same out at private hiring; observing, in all instances, a due regard to the preservation and proper use of the property and best interest of the ward.” "We think that this act implies a plain negation of his power to keep them at home, and in his own employment without the express order of the Probate Court. The Circuit Court, therefore, decided correctly in overruling the demurrer, but erred in proceeding to render final judgment upon the merits. The judgment is therefore reversed, and the cause remanded, tobe proceeded in according to law, and not inconsistent with the opin-son herein delivered.

Mr. Chief Justice ENG-lish, not sitting in this case.


author: Mr. Chief Justice ENGlish

text:
    The State vs. Adams.
    An indictment, charging that the defendant on a certain day, in the county where the indictment was found, “did then and there keep a public tavern, without having first procured a license from the County Court of his county,” &c., is sufficient.

      Appeal from, the Circuit Court of Johnson County.

    Hon. Felix J. BatsoN, Circuit Judge.
    Mr. Attorney General JORDAN referred to sec. 23, et seq., oh. 160, Digest ¡ Moffat vs. State, 6 Eng. 169 ; State vs. Mclridge, 7 Eng. 608.
   Mr. Chief Justice ENGlish

delivered the opinion of the Court.

Adams was indicted in the Circuit Court of Johnson county, as follows: “The grand jurors, &c., &c., in and for the body of the county of Johnson, upon their oath, present that William Adams, on the 10th day of April, A.D. 1854, in the county aforesaid, did then and there keep a public tavern without having first procured a license from the County Court of his county for that purpose, against the peace and dignity of the State of Arkansas.”

Upon the motion of the defendant, the indictment was quashed, but upon what ground does not appear from the record. The State appealed to this court.

The indictment was doubtless drawn under the 4dh section of chapter 159, Digest, which declares that “all persons keeping a public tavern, whether they retail spirituous or vinous liquors or not, shall first procure a license for that purpose fi om the County Court of his county.”

The 5th, 6th, and 1th sections of the same chapter, prescribe regulations for the government of the county court in granting such license, and the 14th section fixes the penalty for the violation of certain provisions of the act, and among them the 3d section.

The indictment is drawn substantially in the language of the 3d section, which embraces in its terms, the material ingredients of the offence designed to be punished. Gabe vs. The State, 1 Eng. R. 519; Smith Bill vs. The State, 5 ib. 536; Moffatt vs. State, 6 Eng. 169 ; State vs. Eldridge, 7 ib. 608.

The indictment charges that the defendant kept a public tavern in Johnson county, without procuring license from the County Court of “his county.” If the word said had been used in place of the word his, the offence would have been charged with more technical certainty, but it follows the language of. the statute, and we think is substantially good.

We are not aware that any serious doubts of the constitutionality of this statute are now entertained. See Washington vs. The State, 13 Ark., p. 760, 761.

Finding upon the record no substantial cause for quashing the indictment, the judgment is reversed, and the cause remanded for further proceedings, &c.


author: Mr. Chief Justice ENGLISH

text:
    Reed vs. The State.
    It is sufficient, in an indictment for murder, to charge that tlio deceased was a “Wyandott ludían, whoso name is to tho jurors unknown,” without averring that the deceased was a human being.
    Where an indictment for murder describes tho deceased as a Wyandott Indian, the description is material, and the race of tho deceased must be proved as alleged.
    Such description may be proved by reputation; and although it would not be sufficient if the witness stated that “he did not know except from what he had heard; ” that the deceased was a Wyandott Indian, yet tho jury would be warranted in finding the fact, where a witness stated “that ho hoard from those, with the Indian that was killed, that ho was a Wyandott Indian,” when it was in proof that there was a band of Indians encamped together, of whom the deceased was one.
    Where, upon tho trial of an indictment for murder, the bill of exceptions purports to set out all tho evidence, and fails to show that it was in proof that the* act was committed in tho county where the indictment was found, the judgment will be reversed. (Sullivant vs. State, 3 Eng. 400; McBVroy vs. State, ib. 451; Holeman vs. State, 13 Ark 110.)

      Appeal from the Circuit Court of Desha County.

    Hon. Theodokio F, Sokbells, Circuit Judge.
    Yell, for the appellant.
    There is no evidence in this case but the admissions of the party: but it is a well settled principle that the admissions of a party, when given in evidence, must be taken together, as well what makes in his favor as what makes against him. Stover vs. Gowen, 6 Shep. 174/ Howard vs. Newson, 5 Miss. 523/ Reese vs. Ha/rdy, 7 Miss. 343/ 1 Phillips Ev. 397/ 4 JBlackstom 357/ Roseoe’s Cripi. Ev. 38 to 44.
    The allegation in the indictment is, that the defendant killed a Wyandott Indian. The prooí as to this, is that one of the witnesses heard an Indian say that the deceased was a Wyandott. This, I presume, is no proof at all. Phill. on JEv. 197/ Boscoe’s Grim. Ev. 22.
    The allegation was, that the name of the deceased was, to the grand jurors, unknown. Carter says he was one of the grand jurors that found the indictment; the grand jury tried to find out the name of the deceased, but he don’t think they knew it. Wharton's Am. Grim. Law 218, 104 to 108, 110. This allegation must be proven, for it is material.
    In the case of Bex vs.-, B. B. 489, that an indictment against a defendant, describing him as & person, to the jurors unknown, without some other designation as to whom the grand jury meant, would be an insufficient indictment. See note B. American Grim. Law 108.
    In this case the indictment does not allege that he is a person. A variance in the name or identity of the party laid as injured, will entitle the party to an acquittal. 2 Hale’s Pleas of the Grown.

    Indian is the name of a river in Asia. It applies as well to the persons who inhabit the Indies, east or west, as it does to aborin-gines of America; but, with the adjective "Wyandott attached to it, it has no fixed signification to it known to the English language, and to decide that a term or phrase' the signification of which is unknown to the English language, means a human being in an indictment, where the greatest particularity is required, would be to set a precedent in criminal proceedings that might hereafter lead to bad consequences.
    Mr. Attorney General JobdaN, for appellee.
   Mr. Chief Justice ENGLISH

delivered the opinion of the Court.

Heed was indicted in the Desha Circuit Court, for the murder of “a certain Wyandott Indian, whose name is [was] unknown to the grand jury.” Tie was tried upon the plea of not guilty, convicted of manslaughter, and sentenced to the penitentiary for four years. Motion in arrest of judgment and for a new trial overruled, and appeal to this court.

The motion in arrest of judgment, was upon the grounds that the allegation in the indictment, that the name of the Indian was unknown to the grand jury, was insufficient; and that there was no allegation in the indictment, that any human being was killed by the defendant, and that the court could not" judicially know that the words “Wyandott Indian,” meant a human being.

If the name of the party deceased beknown, it should be stated. 1 Chitty's Crim. L. 212, 213; Cameron vs. The State, 13 Ark. R. 712. But if the name of the person killed cannot be ascertained, an indictment for the murder “of a certain person, to’ the jurors unknown,” will be valid. 1 Chitty's Crim. L. 212; 3 ib. 733; 2 Hale 181.

In this case, the indictment alleges the killing “of a certain. Wya/ndott Indian, whose name is unknown to the grand jury, in the peace of the State,” &c. The words Wyandott Indian are surely as certain, and indeed more descriptive of the deceased, than the general term “person” used in the precedents.

It is not alleged in any indictment, in terms, that the party slain is a human heiny. This is to be inferred from the character of the accusation and the descriptive language employed in the tenor of the indictment.

It wouid hardly be going too far to say, that the court judicially knows that a Wyandott Indian is a human being, and especially when it is alleged that he was in the peace of the State, and was murdered. 1 Greenleaf’s Rv., sec. 4, 5, 6. If there could be any serious doubt of this, the verdict, upon the plea of not guilty, would cure the defect, as the court below would hardly have received from the jury a verdict of manslaughter, unless it had been proven upon the trial that the deceased was a human being. The learned counsel could hardly have been serious in urging that the word Indian might have referred to a river, which he says bears that name. It would be a glaring want of judicial knowledge, in any court, to suppose that a man was indicted for tbe murder of a river, or that a jury would return a verdict for mcm-slaughter in such case. An indictment for selling liquor to an Indian of tbe Miami tribe, whose name was to tbe jurors unknown, was held good. State vs. Jackson, 4 Blackf. 49.

Tbe motion for a new trial is based upon tbe grounds, that tbe verdict was contrary to law and evidence, and that tbe court admitted incompetent evidence upon tbe trial.

It is urged by tbe prisoner’s counsel, that tbe proof was not sufficient to sustain tbe allegation in tbe indictment ■, that tbe name of tbe decased was unknown to tbe grand jury. Tbe only evidence on this qioint, was as follows: Carter being introduced and sworn, on tbe part of tbe State, was asked by the prosecuting attorney, if tbe grand jury knew what was tbe name of tbe deceased Indian ? He answered, “I don’t think they knew it: they tried to find out what bis name was; I was a member of tbe grand jury.”

Tbe allegation in the indictment, that the name of the deceased was unknown to tbe grand jury, was a material one, to be proven to tbe satisfaction of tbe jury as any other fact, and they were judges of tbe sufficiency of tbe evidence. As to what degree of certainty would be legally sufficient to establish tbe fact, was well enough settled in the case of Cameron vs. The State.

Upon tbe sufficiency of the evidence ¡pipón this point, as well as that connecting tbe prisoner with tbe killing of tbe deceased, which consisted entirely of tbe statements of tbe prisoner to tbe witnesses, we deem it improper to express any opinion, as tbe case must be sent back for a new trial.

Tbe attorney for tbe State asked tbe witness, Grace, if tbe deceased was of tbe "Wyandott tribe of Indians. He' answered that he did not know, except from what be bad beard. Tbe prisoner’s counsel objecting to such evidence, tbe court overruled tbe objection, deciding that as to whether tbe Indian was a "Wyandott or not, could be proven by common reputation, and tbe prisoner excepted.

The'unlawful killing of any human being is a crime. Had the indictment charged the killing of a certain person whose name was to the grand jurors unknown, we know of no rule of law requiring any proof of the race of the deceased. But here the indictment charges the murder of a certain Wyandott Indian, whose name was unknown to the grand jury. The allegation that he was a Wyandott Indian, was matter of description and identity of the person slain.

This mode of identification was adopted by the draftsman of the indictment, and we think the State thereby took upon herself the burthen of making some proof of such descriptive matter.

The object of the allegations in an indictment, descriptive of the deceased, is to inform the accused of the particular crime with which lie is charged, that he may prepare to meet it, and to put upon record the necessary identification of the offence to protect him against a second indictment for the same crime. The name of the deceased is the legal mode of description; and must be stated in all cases where it can be ascertained by the grand jury. But -where the name cannot bo ascertained, or where an infant is murdered before it has received a name, the criminal is not, on that account, to go unpunished, and the law permits of other modes of description. 1 Chitty’s Cr. I. 112 to 217. If there be a material variance between the name of the deceased, alleged in the indictment, and that proven upon the trial, it is fatal. Roscoe Cr. Ev. 694 to 697. Or if the State omits to prove the name as alleged, the evidence is deficient. Gabe alias Santa Anna vs. The State, 1 Eng. R. 540. So we think upon principle, where the indictment undertakes to identify the deceased by his race, as in this case, the State should make some proof of the descriptive matter. The addition or occupation of the deceased, if alleged, need not be proven, (3 Chitty’s Crim. L. 733) because these have reference to liis political or social condition merely, and are not personal marks of identity, as his race is. And though, as above remarked, the race of the deceased need not be alleged, yet if alleged, it should be proven, as the State takes upon herself the proof of it as descriptive of the offence. The distinction between tbe races of men, is- strongly marked, in their personal appearance, language, habits, &c., and there is but little difficulty in determining, by some competent evidence, the peculiar race of an individual when alleged. And if a man is charged with the murder of an Indian, or a negro, the record would afford him no protection against a subsequent indictment for the same offence, alleging the deceased to have been a white person. In other words, the record would not bear upon its face, any evidence that the two accusations were for the same offence. No more than if a man were charged in one indictment with killing John Doe, and in the other with the murder of Richard Roe.

The court below was right in deciding that it was competentto' pi’ove by common reputation, that the deceased was a Wyandott Indian. The people of this country being generally Anglo-Saxon, a person coming into any community, of a different race, bears upon him such peculiar marks of his nationality, as to enable the community very soon to form an opinion in reference to it, sufficiently 'certain for all the purposes of legal identity. See 1 Greenl. Ev. sec. 103, 104, 105. It stands upon the same footing with the proof of pedigree.'

The -witness, Grace, was asked if the deceased was of the Wy-andott tribe of Indians, and he answered that he did not know except from what he had heard; and it does not appear from the bill of exceptions that he answered further on the subject. He did not state whether he had heard that he was or was not, or from whom he had heard it. Whether from one individual, or from a sufficient number of the community to constitute it common reputation. His evidence, therefore, amounted to nothing.

The witness, Sexton, stated “that he heard from those with the Indian that was killed, that he was a Wyandott Indian,” and,to this evidence the defendant objected, and excepted to its admission by the court. This statement, if taken by itself, is not satisfactory, but when taken in connexion with the testimony of the other witnesses who testified on the trial, it was doubtless competent evidence. It appears that a party of Indians, passing through the country, it may be inferred, encamped near Sexton’s residence, and remained there for some weeks. The prisoner was prevailed upon by some white men, to go with them to the camp one night, to play the fiddle for them, that they might have a frolic with the Indian women. The Indians, during the night, were offended at the conduct of the white men, and drove them off, but insisted that the prisoner, who it seems was a negro, should remain, and he did so. During the night he got into a difficulty with one of the Indian men, in whose tent he slept, and killed him.

Understanding Sexton to have referred to the declarations of the party of Indians, so encamped in the neighborhood, the deceased being with them, and constituting one of their number, we think that their declarations, as to the tribe to which they belonged, or as to the tribe to which the deceased belonged, made under ordinary circumstances, in response to inquiries on the subject, such as would be commonly made of a party of Indians passing through the country, were competent. It would, be of as high a grade of evidence as general reputation in the community where the Indians had encamped, that they were of the Wy-andott tribe, because such reputation would ordinarily be derived from the declarations of the Indians themselves, in response to inquiries on that subject.

Diese remarks are made in reference to the competency of the testimony. The jury were the judges of its sufficiency, upon this point, as upon others.

The bill of exceptions purports to contain all the evidence that was offered or introduced upon the trial by either party, and it does not appear that any proof was made that the offence was committed in Desha county. This was a material allegation in the indictment, and required to be proven by the State. Sullivant vs. The State, 3 Eng. R. 400; McCoy vs. State, ib. 451; Holman vs. The State, 13 Ark. Rep. 110.

For the total want of evidence upon this point, the judgment of the court below is reversed, and the cause remanded for a new trial.


author: Mx-. Chief Justice ENGLISH

text:
    The State vs. Parnell.
    An indictment, charging that the defendant, “on Sunday, the 2d day of April, 1854/ in the comity where the indictment was found, “did sell to divers persons, a large quantity of ardent spirits, to wit,” &c., without setting out the names of the persons to whom the spirits were sold, or that they were sold to some person, to the jurors unknown, held sufficient.

      Appeal from tbe Ci/rcvÁt Coiort of Boott County.

    Hon. Felix J. BatsoN, Circuit Judge.
    Mr. Attorney General JobdaN, for tbe State.
    Tbe indictment pursues the language of the statute; and is, in substance, good. It is wholly unnecessary to set out the name of the person to whom the spirits were sold. Digest Ark., chap.f51, sec. 3; Moffatt vs. Tbe State, 6 Eng. 169; Bhover vs. State, 5 Eng. 259; Brown vs. State, 13 Ark. 96; The State vs. Eldridge, 7 Eng. 608.
   Mx-. Chief Justice ENGLISH

delivered the opinion of the Court.

Parnell was indicted in the Circuit Court of Scott county, as follows : “The grand jurors, &c., &c., in and for the body of the county of Scott aforesaid, upon their oath, present that Bichmond P. Parnell, on Sunday, the 2d day of April, A. D. 1854, in the county aforesaid, did sell to divers persons,' a large quantity of ardent spirits, to wit: one quart of whiskey, against the peace,” &c.

The defendant moved to quash the indictment, on the grounds that it did not allege to whom the spirits were sold, or that they were sold to some person, to the grand jurors unknown: and that it was not alleged thattlie offence was committed in Scott county.

The court sustained the motion, and the State appealed.

The indictment is for the violation of section 5, article 5, part 8, chapter 51, Digest, p. 370, which declares, among other things, that every person who shall, on Sunday, sell or retail any spirits or wine, shall be deemed guilty of a misdemeanor, &e.

The venue is well enough alleged.

Was it necessary to aver filenames of the persons to whom the spirits were sold, or that the names were unknown to the grand jurors?

It is a general rule, that in indictments for offences against the person or property of individuals, the name of the party injured must be stated, if it-is known, or can be ascertained, and if not, it may be alleged that the injury was to a certain person or persons to the jurors unknown, or something equivalent. 1 Chitty C. L 212; Cameron vs. State, 13 Ark. 712; Reed vs. State, present term.

In the case at bar, the gravamen of the charge is a desecration of the Sabbath — an offence against public morals, and not against an individual.

If it is necessary to state the name of the person or persons to whom the spirits are sold, it could only be as matter of description. Is it requisite for this purpose?

It was held by this court, in a number of cases, that in indictments for betting at cards, under the 8th section of the gaming act, (Digest, chap. 51, part 8, art. 3, sec. 8,) it was necessary to set out tho names of the persons by whom the game was played, as matter of description of the offence, and that the proof must correspond with the allegation. Barkman vs. The State, 18 Ark. Rep. 703; Johnson vs. The State, ib. 684; Jester et al. vs. The State, 14 Ark. 552; Drew vs. State, 5 Eng. Rep. 82; Parrott vs. State, ib. 572; Moffatt vs. The State, 6 ib. 169; Stith vs. The State, 13 Ark. Rep. 680.

This rule was found to be so inconvenient in practice, that the General Assembly, at its recent session, passed an act, intending doubtless to dispense with the necessity of stating the names of the persons by whom the game is played. Acts 1854, 1855, p. 270.

A similar question arising now, under a different statute, for the first time, we are not disposed to treat the decisions above referred to, as conclusive upon the point; though upon principle, analogous to some extent.

The decisions of the courts of our sister States on this subject, arc conflicting. See Wharton's Crim. Law 713, where they are collected.

In State vs. Munger, 15 Vermont Rep. 290, Bennett, Judge said: “The general requisites of an indictment require it to be framed with so much certainty as to identify the offence, that the grand jury may not find a bill for one offence, and the prisoner be tried for another; and that he may know what accusation he has to meet, and the jury be able to give a verdict upon it, and the court to see such a definite crime that they may apply the punishment which the law has prescribed, and the prisoner be able to plead his conviction, or acquittal, in bar of a second prosecution for the same offence. It is said that the indictment is bad, because it is not averred to whom the liquor was sold, or that the person or persons are unknown. It is of no importance that the indictment should contain such an averment. The offence complained of works no injury upon the individual rights of the person to whom the sale was made, and none are supposed to be violated. It has no analogy to an indictment for theft, to which it was likened by the counsel, where the violation of private rights enters into the very essence of the crime. * * * The statute upon -which this indictment is founded, gives but one penalty for a single violation, and it is immaterial whether the sale is to one or divers individuals.”

So in The People vs. Baker, 17 Wendell Rep. 475, NelsoN, Chief Justice, said: “It is to be remarked that the offence upon the statute consists in the act of selling the spirituous liquors without license; and, therefore, the designation of the persons to whom sold, is iii no way material to constitute it. The question is simply one of pleading, whether certainty to a common intent, requires the names of the persons to be given to whom the liquor was sold. The precedents appear to be all the other way. Our statutes on this subject appear to correspond substantially with the English acts of parliament, and were undoubtedly taken from them forbidding the sale of ‘ distilled spirituous liquors, or strong water,' as will be seen from a collection of them in 2 Burn's Bus-Mee 185, and onward. 4 Wentworth 504 contains the form of an information upon these statutes, for selling without license, in which the mere act of retailing the liquor without a license, is averred; the persons to whom it was sold, are not mentioned, or in any way referred to. The same remark is applicable to an information and complaint before justices, for selling ale without license. 1 Burn's 28, 25. There is a precedent in 2 Ghitty's Grim. Lam 434, for selling ale and beer on Sundays, in which the sale is charged as made to divers idle and ill-disposed persons, whose names to the jurors aforesaid are yet unknown. Here, though the persons are mentioned as unknown, yet, from the manner in which it is stated, it is, I think, to he inferred that the names were not deemed material, as in the precedents where they are so considered, it is indicated by the form. In 4 Went. 525, a precedent is given for selling hard soap in a shape different from that required by the statute of 24 G. 8, chap. 48, see. 14, in which the names of the persons are not mentioned, or in any way referred to. The case is strictly analogous to the one under consideration, so far as respects the question involved. The precedents are clearly with the pleader in this case, and upon a question, the decision of which depends so much upon the opinion of the court as to what amounts to certainty to a common intent; -these afford, perhaps, as safe a guide as can be found.”

In Commonwealth vs. Smith & Burwell, 1 Grattan 553, it was held, that in an indictment for selling ardent spirits to slaves, without the consent of the master, &c., it was not necessary to state the names of the owners of the slaves to whom the liquor was sold.

So in Commonwealth vs. George Dove, 2 Virginia cases 26, it was held,-that in an information for retailing spirituous liquors without a license, it was not necessary to name the persons to whom the liquors were sold.

In Ells vs. The People, 4 Scammon 508, Ells was indicted for harboring a certain negro slave, owing service to Chancy Eur-kee, &c.; and it was held that it was not necessary to state the name of the slave, as this omission could not, in any degree, affect the rights of the defendant.

In indictments for misdemeanors, the same technical particularity in the averments is not required, as in indictments for the higher grades of crime. If the names of the persons, to whom spirits are sold, were required to be stated, it would lead to inconvenience, in practice, rather than tend to promote the ends of justice. It would be often difficult for the grand jury to ascertain them, or the State to prove them as alleged. When a number of persons step into a dram shop for the purpose of obtaining . ardent spirits, or wines, a significant nod or tap upon the counter, is sufficient to indicate to the keeper their purpose; and, in many cases, an observer might swear that there was a sale upon the Sabbath, but it might be difficult for him to state, with requisite certainty, the name of the particular individual who made the purchase.

Upon the whole, we think the indictment in this case is substantially good, and ought not to have been quashed.

The judgment is, therefore, reversed, and the cause remanded for further proceedings.


author: Hr. Chief Justice ENGLISH

text:
    Hensley vs. Brodie.
    TV. sold to B. certain machinery attached to a mill, and delivered possession; subsequently, he entered into a 'written contract, under seal, for the sale of the lot and mill-house: Held, that he was a competent witness, in a suit between B. and one claiming under the contract of sale, to prove the previous sale of the machinery, and that, at the time of the sale of the lot, there was a special reservation, by parol, of the machinery; though he might be estopped in a suit between himself and others, growing out of the contract of sale, from proving a parol reservation of any thing attached to the freehold.
    The sale of an engine and apparatus, fitted up in a mill-house for the purpose of driving a mill, accompanied by delivery of possession and exercise of ownership by tho vendee, clearly amounts to such a severance of them from the realty as to make them personal property and entitle the vendee to bring replevin for them.

      Error to tho Oircidt Qoivrt of PulasM Oormty.

    Hon. William H. Feeld, Circuit Judge.
    A. Fowlee, for tbe plaintiff.
    S. H. HeMpstead, for tbe defendant.
   Hr. Chief Justice ENGLISH

delivered tbe opinion of tbe Court.

On tbe 22d of February, 1850, George Brodie brought an action of replevin in Pulaski Circuit Court, against Larkin Hensley for tbe following property: “One steam boiler and standpipe, one governor to a steam engine, and appendages thereto attached, one large band wheel and shaft, one large force pump with its appendages, and all tbe copper pipe thereto attached, which belonged to the engine, as erected by one Darwin Lindsey, one lifting cold water pump, with all the copper pipe thereto attached, one large flour bolting chest, steam-engine timbers, bolts, boiler door, and detached copper pipe, and two wrenches.”

The declaration was in the detinet, describing the property as above, alleging a bailment thereof by the plaintiff to the defendant, and a refusal to re-deliver on demand.

The defendant pleaded non detinet, and property in himself, to which pleas, issues were made up, the cause submitted to a jury at December term, 1851, and verdict and judgment for the plaintiff. The defendant excepted to the opinion of the court, in giving and refusing instructions to the jury, took a bill of exceptions, setting out the evidence and brought error.

It appears from the bill of exceptions, that upon the trial the plaintiff proved, by William E. Woodruff, that some four or five years before then, he being the owner and in possession thereof, sold to the plaintiff the boiler, pumps, and machinery connected with the steam engine mentioned in the declaration, which were then in a steam saw, and grist mill belonging to the witness, and which had been previously erected and worked by Darwin Lindsey, on the north-half of fractional block No. 108, in the City of Little Nock, and which fractional block witness had purchased of Lindsey, and was, at the time of the trial, the owner, and in possession thereof. Witness sold the engine, apparatus and pumps to the plaintiff for $500, received the consideration, and delivered them to him. Thinks he did not give a bill of sale, but plaintiff had the right to take the property, and did afterwards remove some of the articles of the engine away, and at all events it belonged to the plaintiff', who exercised ownership and control over it after the sale. Witness did not sell the bolting chest to plaintiff — knew nothing about it; there was none there when he sold the engine to the plaintiff. The machinery so sold to the ■ plaintiff, was then in the mill, and witness delivered it to the plaintiff, as above stated, who still let a portion of it remain in the mill; and had not taken away such portion when witness, afterwards, conditionally, sold the lot or block, on which the mill was situated, to Iioyt and Johnson. Witness contracted to sell them the lot, and executed to them a title bond therefor on the 1st of October, 1848, and delivered the possession to them, (the boiler and other machinery of the engine mentioned in the declaration, being then still in the mill.)

The title bond referred to, was shown to the witness, identified by him, and is copied in the bill of exceptions as part of the evidence.

After this title bond had been so proven, the court permitted the witness to testify, against the objection of the defendant, that at the time he sold said lot or block, with the mill on it, to Hoyt and Johnson, and executed to them said title bond, he specially reserved, by parol, the engine, boiler, machinery, &c., in controversy, as the plaintiff’s property, and that Hoyt and Johnson so distinctly understood it.

The defendant excepted to the opinion of the court, so permitting the witness to testify as to such parol reservation, when the contract was reduced to writing under seal.

Woodruff further testified, that Hoyt and Johnson, under said contract with him, used the saw and grist mill and the boiler, engine, and machinery, in controversy, that defendant acquired possession of the same under Hoyt and Johnson, and also used the mill and boiler, engine, and machinery in the mill, and was in the use and possession of them when this suit was brought. That Hoyt and Johnson never paid witness any part of the purchase money, agreed to be paid to him ; and, under the contract, forfeited all right. That after they had run away from Little Bock, the defendant told witness that he had not paid them anything on accoimt of his purchase of the lot and mill from them; but v itness afterwards understood, from some source not remembered, that defendant got the notes, which he had given to them from A. E. Thornton.

Bennett testified, on the part of the plaintiff', that the defendant was in possession of the mill, at the time the articles in controversy were replevied by the sheriff; they were in the mill-bouse, and defendant in the use of them. The boiler had been rolled out and repaired, and some of the articles of the machinery had been taken down, and others had not, but were in their proper places. The defendant was running the mill, and it could not have been run without the machinery mentioned in the declaration, or similar articles; the bolting chest was also fixed up in the mill. Defendant had refused to deliver the property in controversy to the plaintiff, on demand, before suit. "Witness was present when the sheriff executed the writ, &g. The articles mentioned in the declaration, and sued for by the plaintiff, constituted only a part of the steam engine originally in the Lindsey mill; the plaintiff having taken part of it away, after he purchased the engine from Woodruff. Witness helped plaintiff' to take it down. That when Iioyt and Johnson had the mill, the witness put in for them a part of a steam engine owned by him, which in connection with the part left by the plaintiff, and sued for by him, enabled Hoyt and Johnson to use the mill; and that both parts were there, and came into the possession of the defendant when he took possession of the property. Hensley, the defendant, lived with his family in a dwelling house on said lot or block, after Hoyt and Johnson left the premises.

The witness, on being asked by the plaintiff what he had heard the defendant say respecting the boiler and apparatus sued for, replied, in substance, that after the contract between Hoyt and Johnson and the defendant, and before this suit, he, the witness, heard defendant say that he would do what was right about it, or words to that effect, but did not mention the plaintiff, or any other person’s name.

Plaintiff proved by Robert Brodie, that about three years previous to the time of the trial, and before suit, he heard the defendant say to the plaintiff at the penitentiary: “ I understood the boiler and machinery in the mill is yours. I am poor, and not able to buy it, and I will pay you the same rent for them that Hoyt and Johnson were to pay you,” or words to that purport and substance. Plaintiff at the time had charge of the penitentiary,

Mercer testified for the plaintiff, that he first saw the bolting chest in controversy, at the plaintiff’s residence, and helped to haul it from thence to the penitentiary, and then to the steam mill above referred to. That about three years ago (before the trial) Hoyt and Johnson took possession of the steam mill, and witness helped to take the boiler, &c., to the penitentiary to be repaired, and they were then returned to the mill, and the plaintiff had the bolting chest taken to the mill, whilst Hoyt and Johnson were in possession of it.

The défendant then was permitted to prove the execution of, and read to the jury, against the objection of the plaintiff, the agreement between Woodruff and Hoyt and Johnson, for the sale of the lot or fractional block, upon which the mill was situated, the agreement of sale from Hoyt and Johnson to the defendant, and his four obligations to them for the purchase money with the endorsements thereon.

The agreement between Woodruff and Hoyt and Johnson, bears date 1st October, 1848. It witnesseth, that in consideration of $1, &C., and in further consideration of five obligations executed by them to him, whereby they agree to pay to him $212 on the 1st October, 1849, $224 on the 1st October, 1850, $236 on the 1st October, 1851, $248 on the 1st October, 1852, and $260 on the 1st October, 1853, with interest, &c., he covenants, on full payment of said obligations, &c., to make to them, their heirs, &c., a deed with, usual covenants of warranty, to the fractional block before mentioned, “being the same fractional block on which the steam mill and dwelling house formerly belonging to Darwin Lindsey, are now situate, &c., together with all the rights and privileges thereto belonging.” Hoyt and Johnson covenanted on their part to pay the obligations, as they severally fell due, with taxes, &c.; and it was further expressly agreed by the parties that if said obligations, &c., or either of them should not be fully paid within ten days after maturity, Woodruff was not to be bound to convey said fractional block or any part thereof to Hoyt and Johnson, and thereupon all payments previously made by them, were to become absolutely forfeited to Woodruff, and from tbenc-e, and forever thereafter, the said block of land was to be absolutely re-invested in him, and by him again re-entered upon and repossessed as fully and effectually as if this agreement had never been entered into, and the same was to remain forever null and void as against Woodniif, who was thereupon to be fully authorized to sell, or otherwise dispose of the same, in any form or manner that to him might seem right and proper.

The agreement was signed an i sealed by the parties, acknowledged by them on 13th, and filed for record on the 15th December, 1848, in the Recorder’s Office of Pulaski county, and duly recorded, as appears from the appended certificates.

The agreement between Hoyt- and Johnson and defendant, bears date 18th December, 1848, and is, substantially, in the same from as that between Woodruff and Hoyt and Johnson, except that it provides for the payment of the obligations given for the purchase money in the grinding of grain to . e furnished at the mill by Hoyt and Johnson, at a stipulated price per bushel. It refers to the agreement with Woodruff in describing the premises.

Hensley’s obligations were for $930, $885, $840, and $795, payable at one, two, three, and four years from date. They are endorsed by Hoyt and Johnson to A. E. Thornton, 12th January, 1849, and by him endorsed to H nsley, without recourse, on the 19th of February, 1849.

Defendant proved by Fowler, that some time after Hoyt and Johnson had run away, he was called in to the State Bank, then occupied by Thornton, who then had in his possession the four obligati ns above referred to, and who stated that he had acquired them from Hoyt and Johnson, and acknowl ged that Hensley had satisfactorily arranged with him, Thornton, and in the presence of witnesses, signed the transfer to Hensley, endorsed on each of said obligations, and then delivered them to Hensley. Witness did not know how Hensley had settled them with Thornton, further than that they both then said that Hensley transferred some lands to Thornton, by a deed of mortgage, or deed of some kind, in the adjustment of said obligations.

Plaintiff then proved by parol evidence, and by the records of the court, that on the 25th March, 1850, Woodruff brought an action of unlawful detainer against Hensley, in Pulaski Circuit Court, for the same fractional block, conditionally sold by Wood-ruff to Hoyt and Johnson, and by them to Hensley, upon which the mill was situated, and recovered final judgment therein against Hensley, on the 3d day of January, 1851, and under which proceeding Woodruff obtained, and continued to retain possession of the premises.

Defendant, conceding these facts to be proven, objected to the competency and relevancy of this testimony, and excepted to the opinion of the court refusing to exclude it.

At the instance of the plaintiff, the court instructed the jury as follows : “That if the jury believe, from the evidence, that the engine and machinery, and articles sued for, were the property of the plaintiff, and had not been sold or disposed of by the plaintiff, he has the right to recover in this action.”

The defendant moved the following instructions: 1st. That even if the jury believe, from the evidence, that plaintiff in fact owned the machinery and property in controversy, yet, if he permitted the said Hoyt and Johnson to hold the same in their possession, and use it in their mill as their own, as a part of the machinery thereof, and that the defendant purchased the same with the mill without notice of the plaintiff’s claim, he is entitled to hold it against the plaintiff, as a bona fide purchaser from said Johnson and Hoyt.

2d. If the jury believe, from the evidence, that the articles of property’ in controversy were fixtures, attached to the steam mill, in possession of said Hensley, at the time of the institution of this suit, the plaintiff is not entitled to recover them in this form of action.

3d. That in order to constitute an article of property, a fixture in land, it is not always necessary that it be fastened per-manen tly to the ground, or to the building where it is used; but where a mill stands' upon land, it constitutes in law a part of the land, and any machinery annexed to it, where it is necessary to its use, is a fixture, and becomes thereby also a part of the freehold.

Mh. That if the jury believe, from the evidence, that the articles of property mentioned in the declaration, and replevied under the said writ, were fixtures, and a part of the machinery of said mill, then although, at the time of their said seizure by the sheriif, under the said writ, they may have been temporarily detached from the mill, for repairs, or other purposes, yet they did not thereby lose their character and quality of fixtures.

6th. That the action of replevin only lies for personal property, and cannot be maintained for real estate, or for that which partakes of the realty, by being so attached thereto as to constitute it a fixture.

6th. That in law, a fixture is an article qf property, originally personal, but so fixed to the freehold or realty, that it cannot be severed therefrom without damage to the realty, and thus become a part of the realty.” Which instructions the court declined to give.

“Whereupon,” the bill of exceptions states, “the court declared to the counsel, engaged in the cause, in the presence of the jury, before they retired, that the said deeds read in evidence, show no title in the defendant to the property therein mentioned, on which he can only rely as a defence to this action, and before he could so rely upon them, he would have to prove the performance of the condition mentioned in said deeds, and that they were not forfeited.”

“And, thereupon, instructed the jury that all of the instructions, moved for by the said defendant, touching the question or ■subject of fixtures, are abstract, and have nothing at all to do Avith the case on trial; and that the doctrine or question of fixtures, does not arise in the case at all.”

The defendant excepted to the opinion of the court, giving and refusing instructions as above.

1. It is insisted, on the part of tlie plaintiff in error, Hensley, that tbe conditional conveyance by "Woodruff to Iloyt and Johnson, of the lot of ground on which the mill house was situated, being a contract reduced to writing, and under seal, the court erred in permitting Woodruff to prove a parol reservation of the machinery in'controversy, which it is submitted, passed by the deed, from the vendor to the vendees, with the premises, as fixtures.

Assuming that the machinery constituted fixtures, and remained the property of Woodruff, at the time of the contract of sale with Hoyt and Johnson, this would doubtless be the law as between the vendor and vendees, the parties to the contract. But is this rule applicable to the case at bar?

Mr. G-keexxeae says: “ When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing, and all oral testimony of a previous colloquium between the parties, or of conversations or declarations, at the time when it was completed, or afterwards, as it would tend, in many instances, to substitute a now and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected.” 1 Greenf. Ev., sec. 275.

But again he says: “The rule under consideration is applied only in suits between the parties to the instrument^ as they alone are to blame if the writing contains what was not intended, or omits that which it should have contained. It cannot affect third persons, who, if it were otherwise, might be prejudiced by things recited in the writings, contrary to the truth, through the ignorance, carelessness, or fraud of the parties; and who, therefore, ought not to be precluded from proving the truth, however contradictory to the written statements of others.” Ib., sec. 279.

Brodie was in no way a party, or privy to the deed in question. It seems from the evidence, that he purchased the machinery, paid for it, received it into his possession, and under his control, and removed a portion of it from the mill house, before the deed was executed ; and in no way holding under the deed or a party to it, he could not be estopped by its recitals. A portion of Woodruff’s testimony related to the sale of the machinery to Brodie, which was a separate and distinct contract from that entered into by the witness with Hoyt and Johnson. Another portion of his testimony related to the latter contract, in which he stated that he distinctly informed them, at the time of the sale of the premises, that the machinery in controversy (except the bolting chest) had been previously sold by him to Brodie, and that they purchased with a full understanding of that fact. Though in a suit between Woodruff and Hoyt and Johnson, growing out of this contract, the former might be estopped by the deed from proving a parol reservation of anything attached to the premises, and which by law,, without a reservation in the deed, would pass with the land; yet, surely Woodruff could not, by failing to insert such reservation, divest Brodie of property, which he had previously sold to him, and especially where the purchaser is notified of the previous sale.

In Gibbons vs. Dillingham, 5 Eng. R. 9, this court held that an absolute deed in fee of the soil passed the growing crop, and that a reservation of the crop could not be established by parol, but in that case it was proven by parol testimony, that before the vendor conveyed the land, he had leased it to another, and that the growing crop belonged to the tenant; and the court held that the crop of the tenant did not pass to the vendee by the deed, but merely the right of the vendor to the rent. If the tenant had paid the rent in advance, it can hardly admit of doubt, but that notwithstanding the conveyance of the soil by his landlord without reservation, the tenant would have been entitled to the crop, free of the payment of any rent to the vendee. The conveyance of the landlord could neither cut off the tenant’s vested right in the crop, nor subj ect him to a second payment of the rent, nor could he possibly be estopped by the deed of his landlord to the vendee, from proving the lease and payment of the rent. The case now at bar is analogous in principle.

So, as between the parties to the deed, where certain premises were leased, including a yard, described by metes and bounds, and the question was whether a cellar, under the yard, was or was not included in the lease ; verbal evidence was held admissible to show that at the time of the lease, the cellar was in the occupancy of another tenant, and therefore that it could not have been intended by the parties that it should pass by the lease. So, where a house, or a mill, or a factory is conveyed, eo nomine, and the question is as to what was part and parcel thereof, and so passed by the deed ; parol evidence to this point is admitted. 1 Greenl. Ev., 4 Pick. 239; 6 Greenl. Rep. 354.

The court below, therefore, did not err in permitting W oodruff to prove tire previous sale of the machinery to Brodie, and the reservation of it in the subsequent sale of the premises to Hoyt and Johnson.

2. The instruction given to the jury on the part of Brodie, the 2d, 3d, 4th, 5th, and 6th, proposed for ITensley, and refused, and the remark of the court to the jury, that they were abstract, and that the question of fixtures did not arise in the case, present the important inquiry, whether upon all the facts of the case, Brodie, though the owner of the machinery, could maintain replevin for it, notwithstanding it was so fitted up in the mill-house as to answer the purpose of running the mill.

The position assumed for Hensley is, that the machinery was so affixed to the premises as to constitute it a part of the realty, and that it could not be recovered by a personal action.

If Brodie could not recover the property by the action of re-plevin, upon the facts of the case, he could not recover it in any form of action. It is not shown that he had any claim to the possession of the premises, upon which the mill house was situated, and therefore could not bring ej ectment, and recover the machinery as an incident. Ejectment for a steam engine, boiler% bolting chest, dec., belonging to the plaintiff, but fitted up on the premises of another, would be a novelty unknown to the law books. Deti-nue lies for personal property in specie only, and trover for its conversion. If replevin will not lie upon the facts of this case, Brodie is in the singular predicament.of having a.legal right to property, without a legal remedy to recover it.

T-T-is position may be illustrated by a case that might not unfre--quently occur in this age of invention, and the use of machinery for propelling purposes in thousands of various forms.

Suppose .A to be the owner of a let with a mill or manufacturing house erected upon it. He rents from B a steam engine and apparatus for an agreed term, with the understanding that it is to be fitted up in the house for propelling purposes, and so used during the term, and then to be restored to the owner. It is accordingly fitted up, employed, and at the end of the term, A refuses to surrender the machinery to B on demand. If by being fitted up upon the premises of A and affixed to his mill or manufacturing house, it becomes, under such circumstances, a fixture in law, and part of the realty, how is B to recover his property in specie? Must he lose it, or resort to an action for damages upon a breach of the contract, and take the chances of the solvency of the defendant ? Or is the property, though in some sense a fixture in fact, not a fixture in law, under the circumstances, and may it not be recovered as personalty by replevin or de-tinue ?

The proof in this case conduces to show that Hoyt and Johnson rented the machinery of Brodie, and that Hensley, shortly after he purchased the premises, stated to Brodie that he understood that the machinery belonged to him, and offered to pay rent for it, and afterwards refused to surrender it upon demand.

¥e are not prepared to say, upon examination of authorities, that if this were a case arising between a vendor and purchaser of the premises, or an heir and executor, the machinery being fitted up for the purpose of running a mill upon the premises, it would not have belonged .to and followed the soil. But it is clear that if the case arose between landlord and tenant' — if Brodie for instance bad leased the lot and mill house from Woodruff, and being the owner of the machinery, had fitted it up in the house for purposes of trade, he would have had the right to remove it as personalty at the end of the term, and a conveyance by Wood-ruff of the premises during the lease, would not have vested a right to the machinery in the vendee. See Elwes vs. Maw, 3 East R. 38; 2 Kent Com. 342 to 348; Holmes vs. Tremper, 20 Johns. R. 29; Walker vs. Sherman, 20 Wend. R. 636; Farrar vs. Stackpole, 6 Greenl. R. 154; Vann Ness vs. Pacard, 2 Peters 137.

The case at bar is not one arising between a landlord and tenant of the premises, but it is upon principle more analogous to that class of cases, than to the other classes of cases, in which the law in relation to fixtures is more rigid.

Folsom vs. Moore, 19 Maine R. 252, was trespass for entering the plaintiff’s close, and carrying away a stove affixed to I1Í3 dwelling. The plaintiff had conveyed the premises to Small, and afterwards recovered possession of them again under a mortgage aken for the purchase money. When he sold the premises to Small, he represented the stove as constituting part of the improvements, hut afterwards sold it to Randall as personal property. Randall sold it to Small, and Small to the defendant, who entered the premises and took away the stove after the plaintiff had come back into possession under the mortgage; the stove having remained all the while unmoved in the dwelling. It was argued for the plaintiff’, that the stove was a fixture, and its character could not be changed by selling it as personal property. WestoN, Chief Justice, delivering the opinion of the Court, said: “The better opinion is, upon the authorities, that the stove in question being fitted, adapted and designed for the use of the house, would pass by a conveyance of it, as part of the real estate. But it was doubtless competent for the owner to sell it as personal, and if the purchaser or any under him thereupon takes it away, the former owner has no just ■cause of complaint. '' * * * A fence is part of the realty, but it may be sold or reserved as personal property. Ropps vs. Barker, 4 Pick. 230.” The opinion proceeds to decide that the plaintiff by selling the stove severed it from the realty, though it was not in fact removed, and that it would be against every principle of justice to permit him, after having sold it as personal, to turn round and reclaim it as part of his real estate.; and that the defendant had the right to enter the premises and remove the stove as his personal property, and was therefore no trespasser.

If the effect of the sale oí' the stove was to sever it from the realty, in contemplation of law, so as to make it personal property, and entitle the purchaser to enter the premises peaceably and remove it, as held in this case, can it be doubted upon principle, that he could have recovered it by detinue or replevin? Where a man buys goods, and pays for them, and the seller refuses to deliver them, the purchaser may recover them by detinue, because by the sale and payment, the property is in the buyer. 1 Arch. N. P. 287; Bul. N. P. 50.

In Holmes vs. Tremper, 20 John. R. 29, the defendant erected a cider mill and press, at her own cost during her tenancy, for the purpose of making eider on the farm which she had leased. After the expiration of her term, she removed the mill and press, and the plaintiff deriving title to the premises from the landlord, brought replevin for them, contending that the mill and press were such 'fixtures, as the tenant could not remove; but Spen-oee, Chief Justice, said : Tt is immaterial whether the mill was let into the ground or not. The tenant, in my judgment, had an unquestionable right to remove it as personal property.”

Heaton vs. Findlay, 2 Penn. R. 304, in its principal features, is much like the case at bar. Q. & M. were the owners and occupiers of a furnace, blown by a cast iron cylinder, which was affixed to the furnace, and absolutely necessary to its use. They sold the cylinder to Findlay, who perhaps temporarily detached it, but it was afterwards put back into its place and used as before. At the time Findlay purchased the cylinder, there was a judgment against Q. & M., which was alien upon the premises to wbicb the cylinder was attached, and afterwards Heaton purchased the premises under an execution issued upon ment, and Findlay brought replevin against him for tl Bell, Justice, delivering the opinion of the Court, sai these circumstances can the plaintiff recover ? It is obj< the right of property in a chattel, which has become si anee from the freehold, cannot be determined in r other transitory action. But this obtains only where of the thing severed is deduced from an averment of title to the freehold, and to be established by a trial of that title. The present case, putting it on the ground presented by the plaintiff, is not therefore within the principle of Mather vs. The Trinity Church, 3 S. & R. 509, and Powell vs. Smith, 2 Watts 126, but is covered by that ascertained by Cresson vs. Stout, 17 John. R. 116, where it was ruled that machinery, severed by the owner of the realty, became personal property and a proper subject of reple-vin. This technical difficulty is thus put aside, and we are brought unimbarrassed by it, to the leading question in the case, is the plaintiff the owner of the cylinder?”

The court proceeded to decide that Findlay was not the owner of the cylinder, because, at the time he purchased it of Q. & M., the judgment constituted a lien upon the premises, to which the cylinder was attached as a fixture, and that the sale by them to Findlay did not divest the lien, but that the purchaser under the execution obtained the title to the cylinder as part of the premises.

It can hardly be doubted but that- the machinery in controversy, including the bolting chest, under the facts proven in the case, would have been subject to execution and sale as the personal property of Brodie. See Taffe vs. Warwick, 3 Blackf. 111.

Though, as above intimated, perhaps the engine and apparatus, fitted up for the purpose of driving the mill, might have passed, on a sale of the premises by Woodruff, without reservation, to his vendee as fixtures, (Sparks vs. State Bank, 7 Blackf. 469), yet the sale of them by Woodruff to Brodie, the delivery of possession and control to him, and the subsequent exercise of ownership over them bj him, established by the evidence, amounted clearly *?0 such a severance of them, in law, from the realty, as to make them his personal property, and entitle him to bring replevin for them, against the defendant, who had recognized his title to them and offered to pay him rent for them, but afterwards refused to surrender them upon demand.

This view of the case determines all the questions arising upon the record. The proof does not show that Hensle} was an innocent purchaser, without notice, and if it did, the property being personalty, the rule caveat emptor applies.

The admission by the court of proof of the recovery of the pre" mises by "Woodruff in the action against Hensley, whether erroneous or not, is immaterial, as Brodie was entitled to recover independent of Woodruff’s claim to the possession of the lot, and Hensley cannot be regarded as having been prejudiced by the admission of such evidence.

Upon the whole record the judgment of the court below is right, and must be affirmed.


author: Mr. Justice Scott

text:
    Welch vs. Welch.
    Service of the subpoena, in a hill of divorce, by reading’ the same to the defendant, is not such a legal service as will bind him to appear to the suit: and it is error, on such service, to adjudge the defendant in default, and take the bill as confessed. ¡ A decroe pro confesso is not sufficient, without evidence to sustain the allegations of the complainant’s bill, to authorize the court to decree relief from the bonds of matrimony.

      Appeal ^from the Circuit Court of GoT/umhia County m Chancery.
    Hon. ShbltoN WatsoN, Circuit Judge.
    CueRAN & Gallagher, for appellant.
    1. Can a decree pro confesso be rendered in an application for a divorce, a vinculo matrimonii, without some proof being adduced in support of the allegations of the bill ? Viser vs. Bertrand, 14 Ark. 282.
    2. Is a service of subpoena in chancery by reading, a sufficient service to warrant the rendering of a decree pro confesso? Sec. 10, chap. 28, Digest.'

   Mr. Justice Scott

delivered the opinion of the Court.

This was a bill for divorce, filed in the Columbia Circuit Court, by the wife, against the husband, alleging wilful desertion for the space of more than o::a year, without reasonable cause, and praying relief by divorce, a vinculo matrimonii, and for maintenance and alimony, and for injunction. The subpoena was served upon the defendant, by reading the same to him at his place of abode; and upon this service a decree, pro confesso, was taken against him, and upon that, all the relief prayed by the complainant below, was decreed to her, without any further testimony to sustain the allegations of her bill. At the next succeeding term of the court, within the time allowed by the statute, the defendant appeared and moved to set aside this decree, and all the orders made consequent upon it; and, upon oath, denying all the matters charged against him in the bill, offered to prove by witnesses then in court, that the proceeding was but a scheme to wrong and defraud him, and submitting that he was ready and willing to answer the bill. But the court overruled his motion, and he appealed to this court.

The service of the subpoena was insufficient. Under the provisions of the statnte, {chap. 28, sec.. 10,) it could have been served, properly, only by delivering a copy to the defendant, or by leaving one at his usual place of abode, with some free white person of his family, over the age of fifteen years, and informing such person of its contents.

Hence, it was error, under the facts of this case, as to the supposed service, to adjudge the defendant in default, and to take .the complainant’s bill as confessed against him.

But had this service been regular, the decree,pro confesso, was not sufficient, without evidence to sustain the allegations of the complainant’s bill, to authorize the court to decree her the relief it did, from the bonds of matrimony; because the marriage contract in the language of one of the judges-of this court, in the case of Viser vs. Bertrand, 14 Ark., at p. 282,) “unlike ordinary contracts of business, is one which the public, as well as the individuals contracting, is interested in preserving unbroken, unless for such causes as are specially set forth in the statute, and these causes must in fact exist, and must be shown to exist by evidence. No admissions of the defendant, whether by answer or by failure to answer, will supercede the necessity of proof of the truth of the allegations in the bill.” And in the same case another one of the judges said (id., p. 278): “The marital tie, although a civil contract, in the eye of the law, differs from all other civil contracts in one essential particular, . The parties can never annul it by means either direct or indirect. Hence, the inflexible rule of law that the confessions of either party are wholly incompetent as evidence. Nor does our statute, which directs that ‘like process and proceedings shall be had in divorce cases, (Digest, chap. 58, p. 402, see. 3,) as are had in other cases on the equity side of the court,’ or in any other of its directions or provisions, in any way alter or modify this vital rule of evidence, touching the dissolution of the marital tie. Parties, by their mutual consent, if of proper age and capacity to receive the sanction of the law, may make the marriage tie, but they can never break it, according "to the rules of law, and the sound morals upon which they rest, by any express confessions, much less those implied by a default to answer a bill for divorce.”

Adhering to these views, we hold that it was error to overrule the defendant’s motion, and refuse him leave to answer. '

The whole decree, therefore, in this case, is erroneous, and must be reversed, and the cause must be remanded to be proceeded with in accordance with law, and not inconsistent with this opinion.


text:
    Barnett vs. The State.
    In proceeding, under the statute, against the reputed father of a bastard child, it is not necessary that there should be other pleading than the mere denial of the defendant to authorize the Circuit Court to submit the matter, whether he is the father or not, to a trial by jury.
    And in such proceedings the defendant should not be allowed, on cross-examination of the mother of the child, a witness for the State, to ask her as to the number of times, the place where, the time of day when, he had connection with her, or the mode of pi meeting for such purpose, unless such questions be confined to some definite time within which the child might have been begotten.
    But the defendant may well ask the witness in such case: how do you know that the defendant is the father of the child?

      Appeal from the Gireuit Court of Union County.

    Hon. Thomas Hubbard, Circuit Court.
    QuilliN, for the appellant.
    JoedaN. Attorney General, contra.
   Mr. Justice Scott

delivered the opinion of the Court.

This was a proceeding under the Bastardy Act (chap. 24, Dig., p. 210) commenced before a justice of the peace of Union county, and taken by the appeal of Barnett to the Circuit Court of that county, where, after an unsuccessful motion on his part to quash the proceedings, the issue, whether or not he was the father of the child in question, was submitted to a jury, who found the verdict against him, upon which the court rendered judgment and made the usual consequent final orders, and Barnett appealed to this court.

From the bill of exceptions it appears that the mother of the at leged bastard, was the only witness introduced on tbe trial of this issue. She swore that she was a white woman; that she had never been married; that on the 13th of July, 1854, she was delivered of a girl child in said county of Union; that the child was still living, and that the defendant below was the father of the aforesaid child. The State here announcing that the evidence on her part was closed, the defendant proposed to ask the same witness the following questions:

1st. How many times did the defendant have connexion with you — if more than once say so ?

2d. Did he and you meet out accidentally, or by agreement —or meet out at all ?

3d. "Where did he have connexion with you — give one place ? '

4th. What time did the connexion take place — in the day or night ?

5th. How do you .know the defendant is the father of the child %

The State objected to all these questions, and they were ruled out, and Barnett excepted.

He afterwards moved in arrest of judgment and for a new trial, upon the ground that the complaint and warrant were not sufficiently certain, and, therefore, the court ought to have granted the motion to quash; that there was no regular issue formed by the pleadings, and the jury were not sworn to try any such ; because the court ruled out the questions, above copied, that were proposed by him to be profounded to the witness ; and because, the verdict was contrary to law and evidence.

Both motions were overruled, and he took his bill of exceptions, setting out the whole proceedings and evidence in the cause, the whole of which we have already copied.

The complaint and the warrant are as certain as the statute; and the proceedings before the justice, were in strict conformity with its provisions. The statute does not require more than a mere denial, that the defendant is the father of the alleged bastard, to authorize the Circuit Court, without any formal pleading, to submit that matter to the trial of a jury, (Dig., chap. 24, sec. 18), and the record shows that the jury “were duly elected, em-panneled and sworn in the case.”

Under the statute {seo. 22,) the mother of the alleged bastard was a competent witness upon the trial of the matter submitted to the jury, and the defendant had a clear right to cross-examine her, and to invalidate her testimony, if he could, according to the general rules of law in reference to cross-examination, and to the issue, and to what was involved in it. To have made the first four questions relevant to the issue, they should have been limited to a periodof time in which it was probable the child in question was begotten. In the terms in which they were proposed, they were too latitndinous as to time, to be relevant to the issue. The evidence, as to its relevancjq should be confined within the period of time, when according to the course of nature, the child in question could have been begotten Walker vs. The State, 6 Blackf. Rep. 1.

The fifth question, however, was, clearly proper to be answered by the witness. She having sworn that the defendant was the father of the child, he had the right to interrogate her as to the grounds of her knowledge as to this. The very point in issue, and the only point, was whether or not the defendant was the father of the child. And as in most cases it would be utterly impossible for the party charged to prove negatively, that he was not the father, he would be deprived of the only means posi-sible to falsify the charge against him, if he should not be permitted to cross-examine the witness as to the ground of her knowledge, or to show that another person was the father of the child, or might have been, and thus make it probable that the witness was mistaken. Nor would evidence of the latter class be incompetent because of its indecency and of its affecting the feelings of third persons, because it is directly relevant to the issue to be tried, which involves a civil right. And for the same reason it could not be obj ectionable on account of its tending to cast discredit upon the testimony of the witness : because, although it is the general rule that yon can only attack the general character of a witness, and cannot show particular discreditable acts for this purpose, on the ground that every one is supposed capable of supporting a general character, but is not prepared to answer as to any particular matter without notice ; yet here, so far as the general character and behavior of the witness are brought in question by the proof of such acts, it is not incidentally and collaterally done so, as is generally the case with respect to witnesses, but is directly involved in, and material to the issue to be tried. (See the opinions of both Beooee and RoaNE, as to this point, in the case of Fall vs. The Overseers of Augusta, 3 Munf. Va. Rep., p. 502, 504, 505.)

We think, therefore, that the court erred in ruling out this question, and on this ground the appellant ought to have been granted a new trial. The judgment of the court will conseqently be reversed, and the consequent orders set aside, and the cause will be remanded to be proceeded with to another trial and judgment.


text:
    Henderson et al. vs. The State.
   Mr. Justice Scott

The two questions presented by this record, have been settled in the cases of Fleteher and others vs. The State, 7 Eng. 169, and Washington vs. The State, 8 Eng. 752. The judgment of the Circuit Court of Prairie county must be reversed, and the defendants discharged from prosecution.