author: Mr. Chief Justice ENGlish

text:
    Grissom vs. Hill.
    It is not against public policy, nor the spirit of our laws, to donate, in perpetuity, a lot of ground for charitable purposes — as for the use of a religious denomination as a place of worship: and deeds for such purposes should be liberally construed, in order to uphold the trust.
    The trustees under such a deed, which provides that the “lot of land is never to be sold, or to be used iu any other way, only for the use of a church,” cannot create a charge upon the lot by a contract for the erection of a house thereon^ so as to authorize the mechanic to obtain a lien and sell the lot in payment thereof — they cannot do indirectly that which they are prohibited from doing directly.
    And if the trustees permit such a hen to be cheated upon the lot, and suffer it to- be sold, thereby defeating the object of the grant, the grantor, though there be no clause of forfeiture in the deed, may apply to a court of equity to set aside the sale, and divest the title and possession of the purchaser.

      Appeal from Ouachita Gvrcuht Court wi Chancery.

    Hon. SheltoN WatsoN, Circuit Judge.
    CuebaN & Gallaghee and Case, for appellant.
    Plke & CummiNS, contra.
   Mr. Chief Justice ENGlish

delivered the opinion of the Court.

In August, 1852, Ezra Hill filed a bill on the chan eery side of the Ouachita Circuit Court, against Arthur W. Simmons and others, alleging, in substance, that on the 8th of November, 1848, the complainant being seized in fee of a certain lot of ground, situated in the city of Camden, he, and his wife, by deed of that date, conveyed the same to Arthur W. Simmons, Berry Beard, Thomas W. Bruce, Levi Keeee and John L. Wells, as trustees, for the use and benefit of the Methodist Protestant Church, and their sue-cessors in office, for life. That tbe object of complainant, m making said conveyance, was purely charitable, and to promote religion and morality, and that he never received or demanded any other consideration therefor, than the implied and expressed stipulation of the grantees to carry out the obj ect of the said grant: and to the end that such should be the case, the conveyance was made upon the express condition, as set forth in the deed, that sedd lot of land was never to he sold, or to he used in any other way, only for the use of a ehureh, for the benefit of said Protestant Ohurch. "Which deed, with said condition plainly written therein, was, on the day of its execution, filed for registration in the office of the recorder of said county, and duly recorded.

' That shortly after the said donation was so made, said trustees caused a large framed house to be erected upon the lot, to be used, as complainant supposed, as a place of public worship, for the Protestant Methodist Church, in Camden, but, to the sui’-prise of complainant, and contrary to the object, spirit and intent of said donatioix, and without the assent of the complainant, a school was taught in said house during the most of the year 1849, to the great annoyance of complainant, and the immediate neighborhood.

That said building had been, for nearly three years, wholly deserted as a house of public worship.

That on the 12th of March, 1850, James S. Grissom, filed in the office of the clerk of the Circuit Court of said county, his account, sworn to, for the sum of $283 63, for the purpose of availing himself of the statutes, on the subject of mechanics’ liens, it appealing from said account that he, and his servants, apprentices and journeymen had built said house at the employment of the trustees. On the 3d September, 1850, a scire facias was issued thereon against the trustees, requiring them to show cause why Grissom should not have judgment for the amount of his lien, and execution thereon against the house and lot chai’ged,-which writ was returned by the sheriff, duly executed. That, at at the October term, 1850, of said^Cireuit Court, judgment was taken by Grissom upon default of the trustees, and a writ of en-quiry ordered, which was executed at the April term, 1851, and the jury assessed the damages of Grissom at $283 63, for which final judgment was rendered, and that he have his lien upon the house and lot, &c.

That, on the 21st July, 1851, an execution was issued upon the judgment, levied upon the property, which was duly advertised, sold by the sheriff at the court house door, on the first day of the return term, (29th September, 1851,) and purchased by Grissom, at $250, who obtained the sheriff’s deed therefor, which was duly acknowledged and recorded.

The deed from Hill and wife to the trustees, and a transcript of the proceedings of Grissom to enforce his mechanics’ lien, including the sheriff’s deed to him, are made exhibits to the bill.

The complainant further charges, that the abandonment of the house, as a place of public worship, for the Methodist Protestant Church, the converting of the same into a school house, and the permitting of it to be sold, under the supposed lien of Grissom, which, complainant alleges, was through the negligence, inattention and fraud of the trustees, were all gross and flagrant violations of the conditions and terms of the grant. That Grissom, before building the house, had full notice of the conditions upon which the title vested in the trustees; and' charged his lien upon the property with his eyes open, knowing at the time, that the very proceedings which he had adopted, would divest the title of the trustees.

That Grissom now (the time of filing the bill,) holds possession of the house, has locked it up, and refuses to permit the trustees, or complainant, to enter the same, which is in fraud and violation of the rights of complainant.

That by said action on the part of the tiustees and Grissom, the interest and title of the trustees have been, and are forfeited, and the same ought, in equity and good conscience, to be wholly divested out of them, and re-vested in complainant.

The trustees and Grissom are made parties, and the bill pray» that the title of the trustees be declared forfeited and re-vested in complainant; and that the title acquired by Grissom, be set aside and declared void, &c. >

The deed from Hill and wife to the trustees, is, in substance, as follows:

“ This deed of conveyance, made and entered into, this 8th day of November, A. D. 1848, by, and from Ezra Hill and wife,' &c., of &e., of the first part, and Arthur W. Simmons, &c., &c., trustees, for the use .and benefit .of the Methodist Protestant Church, and their successors in office, for life, of the second part, witnesseth, that the said parties of the first part, for, and in consideration-of one dollar, &c., have granted, bargained and sold, ■aliened and conveyed, and hereby grant, bargain and sell, alien ■and convey, unto the .parties of the second part, the following described lot of land, namely: {here the lot is described.) To have and to hold the above granted parcel of land and premises, unto the said parties of the second part, their heirs and assigns .forever. And .the .said parties of the first part, and their heirs, shall, and will warrant and forever defend the same unto the .said parties of second part, and to their heirs and assigns forever, .against the lawful claims of all persons, &c. But said lot of lemd is never to be sold,: or to be used in any other way, only for the use of a church, for the benefit of the said Protestant Church.”

Then follows a clause relinquishing the dower of the wife; ••and the usual formal conclusion, with the signatures and seals of the grantors.

The defendant, Berry Beard, filed a disclaimer, and the bill was dismissed as to him; the other defendants interposed a demurrer to the bill for want of equity; -the demurrer was overruled by the Chancellor; "the defendants rested, and final decree was rendered for the complainants in accordance -with the prayer ■of the bill; from which Grissom appealed to this -court.

The trustees having acquiesced in the decree of ,th.e court below, all controversy as to tbeir rights, as between them and Iiill, must be regarded as at an end, and the questions to be determined upon this appeal, arise between Grissom and Hill.

The lot was granted by Hill to to the grantees, and their successors, in trust, for the use and benefit of a Christian denomination, upon two conditions: 1st. That said lot was never tobe sold: and, 2d. That it was never to be used in any other way, than for the use of a Church, for the benefit of said denomination.

1. It is insisted by the counsel of the appellant, that the lot having been granted to the trustees, for the purpose of erecting thereon a house of worship, the power to encumber it with the cost of such erection, and subject it to the lien of the mechanic, and sale to discharge such incumbrance, necessarily followed as incidents of the trust.

2. That the provision in the deed, that the lot was never tobe sold, must be construed to apply to voluntary alienations by the trustees, and not to alienations by act of law.

3. That, in the absence of an express -clause of forfeiture in the deed, the lot could never revert to the grantor, on account of the violation of the terms and conditions of the trust. The second proposition will be considered first.

Settlements to the use of individuals, with restrictions upon alienation, are not favored by the law, and -deeds or wills making such restrictions, are strictly construed. Hence, it is held, in the English cases, cited by the counsel for the appellant, (1 Sim. 66; 2 Ib. 479; 1 Russ. & Mill. 69; 6 Term Rep. 684,) that where an annuity is settled upon an individual, with a provision against voluntary alienation, or incumbrances by him, upon his becoming a bankrupt, the annuity passes to his assignee, unless there is a provision in the will or deed that it shall determine upon his bankruptcy, &c. The same doctrine has been recognized in Hallett vs. Thompson, 5 Paige 583, where it was held, that where a legacy would pass to the assignees of the legatee, under the insol vent.act, &c., it might be reached by a judgment creditor by bill in equity, and applied to the satisfaction of his debt. The Chancellor in that case, remarked, that: “As a general rule, it is contrary to sound public policy, to permit a person to have the absolute and uncontrolled ownership of property for his own purposes, and to be able, at the same time, to keep it from his honest creditors.”

A summary of the English cases, on this subject, may be found in Hill on Trustees, p. 395.

'But, surely, in a Christian country like ours, it is not against public policy, or the spirit of our laws, for a man to donate to trustees, a lot of ground, to be held and appropriated by them and their successors, in perpetuity, for the use and benefit of a religious denomination as a place of worship. Such conveyances are favored and upheld by e/iap. 135, Digest, p. 840.

Deeds and wills creating trusts for charitable purposes, such as the one in question, are to be liberally construed, in order to uphold the trust, and carry out the intention of the donor. Hill on Trustees, 450, et seq.

The object of Hill, in making the deed in question, as is manifest from its provisions, was to donate and secure to the perpetual use of the Protestant Methodist denomination in Camden, a lot of ground, upon which to erect and maintain a house of worship, and hence he provided that the lot should never be sold, or appropriated to any other purpose.

If the trustees could, by improvident contracts, involve the property in debt, and thereby subject it to be sold under execution, the intention of the donor might be defeated in'that way, as "well as by a voluntary sale on their part, because the purchaser could appropriate the lot and church, in either case, to his own private purposes, and prevent the use of it, for religious purposes, as it seems was done in this case. The trustees would hardly be allowed to do, indirectly, that which they have no power to do directly.

Even where a deed does not prohibit the sale of the trust estate, if the sale of it would defeat or prejudice the object of the charity, tbe trustees have no power to sell it. “It is plain/’ says Mi\ Hill, “that, in ordinary eases, a most important part of the duty of the trustees is to preserve the trust property, and it lies with those who seek to support a sale by them, to show that the transaction in question was beneficial for the charity. In the absence of such proof, and a fortiori, if there be any evidence showing that the sale was improvident, or prejudicial to the charity, it will be treated as a breach of trust, and set aside.” Hill on Trustees, 463.

The nature of the donation in this case, is such, that a sale of the propertv would necessarily defeat the object of the charity.

“The trustees of a charity will not be justified in placing the funds under the control of other persons, who were not contemplated by the creator of the trust.” Hill on Trustees, 466.

If the appellant has obtained a valid title to the lot in question, he might appropriate it, and the house upon it, to secular purposes, foreign to the objects of charity contemplated by the donor.

It is not, however, to be understood, that the deed secures the lot from any and all transfers by act of law. Unless exempted by law, it would, like other property, be subject to sale for public taxes and charges: provisions for the support of government being paramount.

1. Having thus disposed of the second point made for the appellant, there is no difficulty in determining the first.

The conditions contained in the deed from Hill to the trustees, are to be regarded as prior incumbrances upon the property; and the deed being recorded, the appellant, in making his contract with the trustees to build upon the lot, was bound to take notice of, and contract in reference to the provisions of the deed. Digest, chap. 105, secs. 20, 27.

In Brown vs. Morrison et al., 5 Ark. Rep. 221, Mr. Justice Laoy, delivering the opinion of the court, said: “The Legislature possesses no power to divest legal or equitable rights previously vested. The legal or equitable estate may be charged with the lien, provided that does not interfere with other paramount interests or duties. The vested rights of third persons, who are neither parties nor privies to the contract between the tenant in possession and mechanics, cannot be prejudiced or sported away by their agreement. To allow this, would be to expose the whole estate to utter ruin, or onerous burdens, that would materially impair its value. The law makes it the duty of all persons,-who contract, to ascertain the nature and extent of the interest they acquire. This rule imposes no greater hardship or inconvenience on mechanics than on other individuals. He who has the fee, or is tenant in possession, can be compelled to exhibit his title to the premises on which he wishes to build, and even should he refuse, the records of the courts, which are always open for inspection and examination, will readily show it and all prior incumbrances, with which the estate stands charged.”

In this case, the appellant, having proceeded with a full knowledge of the provisions of the deed, and the condition of the lot, can consider it no hardship to'be required to look to the persons who employed him to erect the church upon the lot, for his pay.

3. If the estate vested in the trustees by the deed, be regarded strictly as an estate upon conditions, “it is usual,” says Mr. KicNt, (4 Com. 123,) “ in the grant, to reserve, in express terms, to the grantor and his heirs, a right of entry for the breach of the conditions ; but the grantor or his heirs may enter, and take advantage of the breach by ejectment, though there be no clause of entry.”'

A vested devise of lands to a town, for a school house, provided it be built within one hundred rods of the place where the meetinghouse stands, was held to be valid as a condition subsequent ; and the vested estate would be forfeited, and go over to the residuary devisee as a contingent interest, on non-compliance in a reasonable time with the condition. Hayden vs. Stoughton, 5 Pick. Rep. 528.

So, if land be given, on condition that the public buildings of the parish be erected thereon, it has been held to revert to the donor if the seat of justice of the parish be removed, under the sanction of an act of the Legislature passed subsequent to the grant. Police Jury vs. Reeves, 18 Martin’s Lou. Rep. 221.

These cases are cited by Mr. Kent, (4 Com. 125, 126,) as examples of the forfeiture of estates upon conditions, for failure to observe the conditions of the grant.

So it was held in Lessee of Sperry vs. Pond, 5 Ohio Rep. 241, that a conveyance, on condition that the grantee shall beep a saw-mill and grist-mill doing business on the premises, is a valid one, and if the grantee fails to perform the condition, he forfeits the estate.

But whether this is technically an estate upon conditions, such as, upon failure to observe the conditions on the part of the trustees, the lot will absolutely revert to the donor, and thereby cutoff, on accouut of the acts of the trustees, the beneficial interest of the cestui que trusts — the denomination for whose use the trust was created — it is not necessary to decide, as no one is representing, or claiming any thing for them on this appealj unless it be Hill.

It appears from the allegations of the bill, that the trustees not only permitted the property to be sold, but that Grissom, the purchaser, locked up the house of worship erected upon the lot, and refused to permit it to be entered. In other words, that it had been converted into private property: and thus both conditions of the deed were violated.

That Hill, who made the grant for the use of the church, and who was entitled to have the property appropriated to the charitable purposes of the grant, had the right to apply to equity to set aside the sale to Grissom, and divest his title and possession, there can be but little question. Hill on Trustees, 521, 522. On this appeal, no other question is properly presented, and inasmuch as the appellant has no cause of complaint, the decree must bq .affirmed.

Absent, Mr. Justice Hanly.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Dunnegan et al. vs. Byers.
    In ordinary suits at law, where a motion for a new trial is overruled, and the party making the motion does not except, he is presumed to have acquiesced in the decision, and will not be heard to question its correctness on error or appeal. Quere Does not the same rule apply in gai-nishment cases ? '
    Where a garnishee has had reasonable time to ascertain whether his creditor still holds, or has parted with, the evidence of his indebtedness, ho will not be allowed, after judgment of garnishment has been rendered against him, a new trial, unless he shows that ho has used due diligence.
    Our statute of garnishment is broad enough to cover debts due after the issuance and service of the writ; and if not due at the time the garnishee answers, the court would have the power to continue the case until maturity of the debt, or render judgment with stay of execution.

      Appeal from Independence Ovreuit Oourt.

    Hon. BeaueoírtJEL Neely, Circuit Judge.
    Fowler & 'Stillwell, for the appellants.
    War. Byers, contra,
   Mr. Chief Justice English

delivered the opinion of the Court.

It appears' from the transcript in this case, that, on the 20th of M,arch, 1855, 'William Byers recovered judgment in the Independence Circuit Court, against James Dunnegan, Sr., for $150, debt, $10 12 damages, and for costs. That, on the 28th of July of the same year, he sued out a writ of garnishment againt James Dun-negan, Jr., and William Hargiss, reciting said judgment, and alleging that they had in their hands and possession, goods and chattels,' moneys, credits and effects, belonging to the judgment debtor, &c.

At the return £.erm of the writ, (September, 1855,) allegations and interrogatories were filed by Byers, in accordance with the statute, against the garnishees; to which they answered, among other things, that on or about the 1st of March,. 1855, they purchased of said James Dunnegan, Sr., a stock of goods, of the value of, from $1650 to 1700. That the terms of the purchase were a credit of twelve months, with interest, with the privilege of other twelve months, if desired by them, at ten per cent, interest. That they executed their promissory note for the whole amount of the purchase money, (the precise amount not remembered) payable to said James Dunnegan, Sr., or order, and delivered the same to him ; since which time they had no knowledge where it was, who owned it, or anything about it, other than as stated above. That they had paid nothing upon the note, owed the whole of it to the owner, but it was not due.

The following is the record entry of the submission of the cause, and judgment of the court, 8&pii6tnber, 1855.)

“Tins cause was submitted to the court (by the parties) upon the allegations and interrogatories of the plaintiff, and the answer of the defendants, and the evidence in the cause, and the court, after hearing all the evidence, and being sufficiently advised in the premises; found for the plaintiff, that said defendants at the time of service of the writ of garnishment upon them in this pase, were indebted to the^ggid James Dunnegan, Sr., in a greater sum than the amount of the' said judgment in favor of said Byers against said James Dunnegan, Sr., and which becomes due on the 1st of March, 1856; that the said Byers, on the 20th day of March, 1855, recovered judgment against the said James Dun-negan, Sr., as alleged, &c., for the sum of $150 as his debt, and $10 12 as his damages, with his costs, and that said debt, damages and interest thereon amount to the sum of $164 00. It is therefore considered by the court, that the said plaintiff do have and recover, of and from the said defendants as garnishees of the said James Dunnegan, Sr., the said sum of $164, with interest thereon, at the rate of six per cent, per annum, from this date until paid: and that execution in this case shall not issue until the 1st day of March, A. D. 1856, and that the costs of this suit, which have now accrued, be paid out of said sum when collected.”

The garnishees filed a motion asking a new trial orhearing, on the following grounds:

“ That, at the time they filed their answer to the interrogatories, &c., they did not know, and consequently did not state, whether the note they had given to the judgment debtor, James Dunnegau, Sr., and which was mentioned in said answer, had been transferred, or whether the same was held or owned by him at the date of the service of the said garnishment or not.' They state, that since' the rendition of said judgment against them, at the present term of this court, they have been informed, and believe that said promissory note was transferred by the said judgment debtor, who was the holder and owner of said note prior to the date of said service of the writ of garnishment, and ■that, in another trial, they could show the fact so to be. This discovery has been made since the trial herein had.”

The motion was sworn to, and filed on the next day after the judgment was rendei’ed.

The court overruled the motion.

No bill of exceptions whatever was taken to any decision of the court, and it does not appear what evidence was introduced upon the trial of the cause, othermise than by the record entry of the submission and judgment above copied.

Defendants appealed to this court.

1. It is assigned for error, that the court overruled the motion of appellants for a new trial.

In .ordinary suits at law, where a motion for a new trial is overruled, and the party making the motion does not except, he is presumed to have acquiesced in the decision, and will not be heard to question its correctness on error or appeal. Hopkins et al. vs. L. B. & C. M. Dowd, 6 Eng. Rep. 627; Sawyers vs. Lathrop, 4 Ib. 67; Danley vs. Robbin’s heirs, 3 Ark. 144. We Jmow of no good reason why this rule should not apply in garnishment oases; but if it does not, the showing made by the appellants was not sufficient to entitle them to a new trial.

The writ of garnishment was executed on them 31st of July,, and the trial was had on the 18th September following. They had over a month and a half to ascertain whether their note had been transferred by Dunnegan or not, and yet they do not show that they had used any diligence to ascertain the fact. They chose to answer at their peril. Cross vs. Haldeman, 15 Ark. Rep. 203. The showing was deficient in other respects. See White et al. vs. The State, present term.

2. The only other assignment of errors is the general one, that the judgment was in favor of the appellee, when, by law, it should have been for appellants.

It appears from the face of the record, that the debt was not due when the writ of garnishment was issued, nor when the judgment was rendered, but the court stayed execution until it became due. We say until the debt became due, because the legal presumptions are in favor of the finding and judgment of the court, the evidence not appearing of record.

The appellee having put in no denial of the answer, the court,, doubtless, treated it as true, (Digest, chap. 78, sec. 5,) and the-finding of the court was not contradictory of the answer, as to-the maturity of the debt.

The answer states that the appellants purchased the goods of Dunnegan on twelve months credit, with interest, with the privilege of other twelve months if desired by them, with ten per cenfi interest, and that they executed their note for the purchase money. But it is not stated in the answer, that the “privilege of other-twelve months ” credit was inserted in the^note, as one of the stipulations of the written evidence of the contract: nor did the -appellants, in their answer, state that they desired additional credit, or insisted upon it as a right. We must presume, there1-fore, that the court ascertained from the evidence introduced upon the trial, that the agreement for additional credit was not inserted 'in the note, or that it was waived by the appellants.

"Whether the court allowed the appellants three days of grace upon the note, in staying execution until the 1st of March, 1856, we have no means of determining. The answer states that the goods were purchased on or about the 1st of March, 1855, on a ■credit of twelve months, &c., and a note given for the purchase money. The court found upon the evidence that the debt was due on the 1st of March, 1856, and if the appellants were entitled to grace, we must presume the court gave it to them, as the contrary does not affirmatively appear.,

The only question, really, which is legitimately presented upon the record, for our consideration is, whether the appellants were subject to the process of garnishment until after the debt was due.

In cases of attachment and garnishment, either before a justice of the peace or in the Circuit Court, the statutes contemplate that the garnishee may be summoned before the debt is due, and provide for a stay of execution until after its maturity, where it is not due when the judgment is rendered. Digest, chap. 16, secs. 16, 20; chap. 17, secs. 26, 37.

The statute providing for judicial garnishments, (Digest, chap. 78,) is silent on this point; but it is equally as broad and comprehensive as the statutes above referred to, as to what effects of the principal debtor may be reached in the hands of the garnishee. It provides that: “In all cases where any plaintiff may have obtained a judgment, &c., and shall have reason to believe that any other person is indebted to the defendant, or has in his hands, &c., goods and chattels, moneys, credits. and effects belonging to such defendant, such plaintiff may sue out a writ of garnishment,” &c. Sec. 1.

Again: “ The plaintiff, &c., shall file allegations and interrogatories, &c., upon which he may be desirous of obtaining the answer of such garnishee, touching the goods and chattels, moneys, credits and effects of the said defendant, and the value thereof, in his hands and possession) at the time of the service of such writ, or at a/ny time thereafter.” See. 3.

In Massachusetts, under a statute not more comprehensive in its terms than this, it is well settled that a debt, certainly payable at some future day, and not dependent upon a contingency, is subject to garnishment or trustee procéss, as it is called there. Dans et al. vs. Ham et al., 3 Mass. Rep. 33; Wentworth vs. Whitmore, 1 Ib. 471; Willard vs. Sheafe et al., 4 Ib. 235; Wood vs. Patridge, 11 Ib. 488; Clark vs. Brown et al., 14 Ib. 271; Thorndike vs. De Wolfe et al., 6 Pick. 120; Tucker vs. Clisby et al., 12 Ib. 22; Stone vs. Hodges et al., 14 Ib. 81.

In Childress vs. Dickens et al., 8 Yerger Rep. 113, it was held, that by the statutes of Tennessee, a debt which was not due, could not be attached in the hands of a garnishee. That the garnishee was only required to answer, what he was indebted at the time of the summons.

But, by our statute, the garnishee is required to answer as to his indebtedness, &c., at the time of the service of the writ, or at a/ny time thereafter.

We think the statute is broad enough to cover debts falling due after the issuance and service of the writ: and if not due at the time the garnishee answers, being, to some extent, in the nature of an equity proceeding, (Walker vs. Bradley, 2 Ark. 593,) the court would have the power to continue the case until the maturity of the debt, or render judgment with stay of execution.

There is no good reason, why a debt not due, should be subject/ to the process of attachment and garnishment, and not to judi-j cial garnishment.

The debtor has no cause of complaint. It merely fixes a lien upon the debt in his hands, in favor of the plaintiff in the garnishment : he is allowed the privilege of answering; the benefit of all just defences; is not subjected to costs, and not required to pay the debt until it is due. A more rigid and narrow construction of the statute would restrict its usefulness. The judgment is affirmed.

Absent, Mr. Justice Hauly.

Note. — The Hon. Thomas B. HaNlt, Judge, was absent during the remainder of this term.


text:
    Jones vs. Austin.
    ■Where the matter in issue arises out of the sale of an improvement upon, the public land, there is not such question or controversy in respect to the title to land, as would, under the decision in Mizgerald ei al. vs. Beebe, 2 Eng. Rep. 308, exclude the jurisdiction of a justice of the peace, where the sum in controversy is less than one hundred dollars.
    Where the verdict is not entirely without evidence to support it, and the evidence is applicable to the instructions, which are not contrary to the law, the verdict and judgment thereon will be sustained.
    Where a contract is obtained from a party, who is unable to read or write, by fraud, the jury may disregard it.
    To procure the execution of an instrument of writing by a party, who is unable to read or write, without his knowing its contents, or when he believed its contents were different from what they, on account of the fraudulent representations of others, really were, is such a fraud as would avoid the instrument.

      Ajpjpeal from Drew Circuit Court.

    Hon. Theodokic F. SoRRels, Circuit Judge.
    CummiNS, for appellant.
    HarrisoN, for appellee.
   Mr. Chief Justice English

delivered the opinion of the Court.

Fountain C. Austin sued Willis Jones, before a justice of the peace of Drew county, on a note for $100, executed by Jones to Austin, on the 5th of January, 1854, and due the first of January, 1855. Judgment in favor of the plaintiff before the justice, and appeal to the Circuit Court of said county by defendant.

In the Circuit Court, the cause was submitted to a jury, Jones relying, it seems, upon the defence of failure of consideration.

- After Austin had read in evidence the note sued on, and closed, Jpnes introduced the following instrument, proving by one of the subscribing witnesses, that Austin made his mark thereto, &c. •

“DREW COUNTY, ARKANSAS.

Know all men by these presents, That I, F. C. Austin, has bargain cm sold to Willis Jones, all the improvements on the north half of section nine, and south half section four, for the sum of five hundred dollars, four hundred dollars to be paid at March court, one hundred to be paid the first day of Jaiiuary, 1855. I furthermore bind myself to give to the said Jones possession this day, January, 5th, 1854.

his

F. C. N AUSTIN.”

mark

O’Neill, one of the. subscribing witnesses to the above instrument, testified that he was one of the arbitrators selected by Austin and Jones to settle a controversy between them in regard to an improvement; and his recollection of the final agreement between the parties (to carry which into effect, Jones gave the note sued on and another for $400, and Austin gave the above instrument) was, that Austin had sold to Jones all his (Austin’s) improvements on the two half sections of land named in the instrument, and no other improvements or claims. Witness did not read the instrument at the time, or before Austin signed it, but explained to him what the agreement was, as settled by the arbitrators, and which was as above stated, as witness understood it. Austin could neither read nor write. "Witness was under the impression that the instrument was not read to Austin, but was signed by him after witness explained the agreement to him. Witness thought the instrument read, as he understood the agreement, and did not suppose it included the improvements of Gaddie, or any one else, on,the lands. Witness had attended to the matter throughout, and made the compromise for Austin in his absence. He supposed Austin was only selling his own improvements on the lands. Nothing was said of the improvements of other persons being on the lands. Jones said he wanted the instrument, which was written by himself, to show to his neighbors and father-in-law in Mississippi, to remove a false impression which had got abroad, that he had entered the improvement of Austin, and refused to pay him for it: he gave no other reason for wanting it. Witness did not know whether Jones knew that Gaddie and Ethridge had improvements on said lands or not. He had lived there for some time before that, and ought to have known that their improvements were partly on the lands. The object of the instrument being given was not to operate as a conveyance, but to be used by Jones to clear his character. When it was presented to Austin, he objected to signing it, because he could not give a deed for public land. Witness explained it to him, telling him it was not a contract to convey the lands, nor his improvements thereon, but to show that Jones had paid him for his improvements, and to vindicate Jones’ character. Jones read the instrument to witness, and Dear, the other subscribing witness, but not to Austin. Witness did not recollect anything of the word “all” occurring in it: or 11 all the improvements:” for, if he had noticed it, he would have objected to it. Jones was, at the time, living on the Gaddie improvement. Possession was delivered to him of Austin’s improvement within an hour or two after the instrument was given, and he expressed himself satisfied. '•

Halley testified, that about the time Jones and Austin were making the trade about the improvement on the two half sections named in the above instrument, he went round with them as they run the lines of the land. The line included some ten acres of the improvement of Gaddie. When they came to this part of the line, witness asked Austin if he claimed all the land in that half section included by the line? He said he did; that he bought it from Evans, and intended to have it. Witness asked him if he did not intend to pay Gaddie for it ? He said he would; or clear as much land on Gaddie’s tract for him. The improvement of Gaddie, included within the line, was worth about $40. The improvement of Ethridge, included within said half sections, consisted of six or eight acres, and was worth $20 or $30. Austin claimed all the improvements on the two half sections. Witness was also present when the above instrument was executed. The arbitrators were in one room, and witness and Austin in an adjoining one. When the arbitrators seemed to have agreed, they sent for Austin, who went in to them, and witness distinctly heard O’Neill’s voice, he thought, stating what the agreement was: that Austin was to sell Jones all the improvements on said two half sections. Witness did not, at the time, hear the instrument read, or see it, but a few days afterwards he called on Jones and asked him to show it to him, which he did; and it then read as it now does in every respect. His reason for asking to see the instrument was, that it was reported in the neighborhood that Austin had undertaken to sell part of the improvements of Gaddie and Ethridge.

Wood testified, that he was one of the arbitrators to settle the controversy between Austin and Jones. That on the day or night before the notes and agreement were given, when the arbitrators were considering the subject, Jones finally said he would give Austin $500 for the improvements, if Austin would give him a writing that he had sold him all the improvements on the two half sections named in the agreement. The arbitrators said it should be done next day. Next day, Austin was informed of this. Witness was present when the instrument was explained to Austin before he signed it, and it was explained as he had above stated the contract to be.

Qaddie testified, that he had an improvement, eight or ten acres of which, cleared and fenced, were within the north half of section nine, referred to in the agreement. That before the agreement was made, Jones had rented from him his entire improvement for so much per acre, and lived at his house, and on his improvement (part of which extended into the north half of section nine, as aforesaid,) at the time said agreement was executed. He afterwards arranged the rent as to all said improvements, except that part extending on to the north half of section nine, which he refused to pay for. Witness still claimed the improvement made by him, and would insist on pay for it from some one.

Holland testified, that he was along when Jones and Austin ran the.lines of said lands, and Austin claimed all the land on the north half of section nine. It was asked at the time by Jones or Austin, how far Graddie’s claim would extend on the north half of section nine, and witness showed them by reference to a tree top.

Ethridge testified, that he had made an improvement, some six or eight acres of which lay on the north half of said section nine. He still claimed said improvement, and would insist on payment therefor. Jones had not, as far as witness knew, been in possession of that part lying in section nine.

The above being all the evidence offered" or introduced by the parties,. Jones moved the court to dismiss the case for want of jurisdiction in the justice of the peace, and in the Circuit Court on the appeal, of the subject matter of the suit, because it appeared from the evidence, that titles to real estate were involved, &c. The court overruled the motion.

The court charged the jury: 1. That the contract of Austin, read in evidence, was prima facie evidence, and prima facie valid; but, if they believed from the evidence, that said instrument was obtained from Austin by fraud, then they might wholly disregard the same.

2. If the jury find from ,the evidence, that the signature of Austin was procured to said instrument, without his knowing its contents, or when he believed its contents were different from what they, on account of the fraudulent representations of others, really were, this would be such fraud as to avoid the instrument, and in that case, the jury have a right to disregard said instrument.

3. If the jury, however, find said instrument executed by Austin was valid, and further that one or more, or part of one or more of the improvements on the lands in said contract mentioned, never belonged to Austin, and Jones never got them, then, they should deduct from the note sued on, the value of such improvement as Jones was thus deprived of.

4. If they found said contract to be fraudulent and void, they might find the amount of note and interest for Austin.”

The jury returned a Yerdict in favor of Austin, for the amount of the note sued on, and interest, and judgment was rendered accordingly.

Jones moved for a new trial, on the ground, that the verdict was contrary to law, evidence, and the instructions of the court: that the court erred in its instructions to the jury, and in not dismissing the case for want of jurisdiction. The court overruled the motion, Jones excepted, and appealed to this court.

1. The counsel for the appellant insists that the court below should have dismissed the ease for want of jurisdiction, on the authority of Fitzgerald et al. vs. Beebe, 2 Eng. Rep. 308, where it was held 'that justices of the peace have no power to entertain an action for use and occupation, where the title of the plaintiff may be disputed, and drawn into question and controversy by the occupant: in other words, that they have no jurisdiction “-of any action where the title to any lands shall come in question.” Digest, chap. 95, part 2, sec. 5, p. 641.

The case before us, is not like the one cited. Here, neither the instrument read in evidence by Jones, nor the parol testimony introduced by the parties, conduced to show that Austin had contracted to sell or convey to Jones, any title to the lands, not even a pre- emption, but merely improvements upon what we suppose, from the testimony, to have been public lands. The main point in controversy, seems to have been, as to whether Austin sold his own improvement only, or such portions of the improvements of Gaddie and Ethridge also, as extended over upon the tract of land on which Austin’s improvement was situated.

The note sued on did not exceed $100, and was within the jurisdiction of the justice, and we find nothing in the testimony upon which the court below could have held that the jurisdiction was defeated.

2. The verdict is not entirely without evidence to sustain it: nor were the first and second instructions given by the court to the jury, which are the onty ones complained of here, altogether abstract, as contended by the counsel for the appellant. There were portions of O’Neill’s testimony, to which they were, to some extent, applicable. No other objection is made to them.

The parol testimony in explanation of the written contract read in evidence, took a tolerably latitudinous range, but neither party seems to have objected to it.

Upon the whole record, no error has been pointed out for which we think the judgment should be reversed, and it is • affirmed.


author: Mr. Chief Justice ENGLISH

text:
    Palmer, use &c., vs. Hicks.
    The plaintiff, for whose use a suit is brought, is liable under the statute, for the costs; and, if a non-resident, is required to file a bond for cost before the institution of the suit.
    ■Where a non-resident plaintiff brings a suit without filing bond for costs, and the defendant pleads that fact in abatement, but cannot prove the non-residence of the plaintiff, he is entitled to discovery from the plaintiff.

      Ajppeal from, Phillips Circuit Cou/rt.

    Hon. G-eo. W. Beazely, Circuit Judge.
    Palmer and WateiNS & Gallagher, for appellant.
   Mr. Chief Justice ENGLISH

delivered the opinion of the Court.

This was an action of debt brought by John C. Palmer, for the use of John JB. Woodfin, against Lucretia M. Hicks, in the Phillips Circuit Court.

The action was founded on a writing obligatory, payable to Palmer, for the use of Woodfin.

The defendant filed a plea in abatement, alleging that Wood-fin, for whose use the suit was brought, was a non-resident of the State, at the time the suit was commenced, and that no bond for costs was filed. The plaintiff took issue to the plea.

The defendant filed a petition for discovery, alleging the non-residence of Woodfin, but that she knew of no witness by whom she could prove the fact; and interrogating both Woodfin and Palmer in regard thereto.

The plaintiff interposed a general demurrer to the petition, &c. The court overruled the demurrer, and the plaintiff rested thereon. Thereupon, the court made an order, that both Palmer and Woodfin be required to answer the interrogatories, &c., con-tamed, in tbe petition, by tbe next term, or they would, be taken as confessed; and tbe cause was continued.

At tbe next term, no answer having been filed, the allegations, &c., contained in tbe petition were taken as confessed; tbe issue to tbe plea in abatement submitted to tbe court, and finding and judgment for tbe defendant. Tbe plaintiff appealed.

Tbe appellant insists that a court of equity would not compel. a discovery to sustain a plea in abatement; and, therefore, tbe defendant was not entitled to tbe discovery sought by her petition, under tbe statute.

Tbe statute provides, that: “Either party to a suit in any court of record shall be entitled to a discovery from tbe other party, of all matters material to tbe issue in such suit, in all cases where tbe same party would, by tbe rules of equity, be entitled to a discovery in a court of equity in aid of such suit.” Digest, chap. 126, sec. 93, p. 810.

As a general rule, the defendant in any civil action 'may file a bill of discovery, to aid him in tbe defence of such action, where tbe discovery sought is shown to be material. Story's Eq. Pl., sec. 324, a. 319, 845; Lane vs. Stebbins, 9 Paige 692; March vs. Davison, Ib. 580; Many vs. Beekman Iron Company, Ib. 188; Adams' Equity, 1 to 22, And the defence at law cannot be established by the testimony of a witness, or without the aid of tbe discovery sought. Leggett vs. Postly, 2 Paige 549; 1 American Chancery Digest, p. 293, et seq.

"We have not been able to find any case where it was decided that a defendant in a suit at law was not entitled to a discovery in support of a plea in abatement. The authorities cited by the counsel for appellant are not in point. These authorities show, that as a general rule, a plaintiff in equity is entitled to a discovery from the defendant of tbe matters charged in tbe bill, provided they are necessary and proper to ascertain facts material to the merits of the plaintiff’s case, and to enable him to obtain a decree. And so tbe same rule is stated by Stoet, in his Equity Pleading, sec. 845.

But the rule in reference to obtaining a discovery in chancery, in aid of a defence at law, is generally stated in the books as we have given it above.

It is true, that the law court does not favor pleas in abatement, as they are not treated as pleas to the merits; and, perhaps, they are not more favorably regarded in a court of equity! But, though the failure of a non-resident to file a bond for costs before bringing suit in our courts, is treated as a matter in abatement, we are not warranted in saying that the defence is not meritorious. If there is any merit in the statute, there is merit in the defence.

The statute requires a bond for costs to be filed in all suits in law or equity, when the plaintiff, or person for whose use the action is commenced, is a non-resident of the State. Digest, chap. 40, sec. 1; State, use &c., vs. Lawson, 5 Ark. Rep. 665. The party for whose use the suit is brought, is liable for the costs. Same chapter Digest, sec 27.

The filing of the bond for costs is a pre-requisite to the right of the non-resident to sue in our courts; and if he chooses to commence a suit without filing such bond, and thereby to disregard the law, we know of no good reason why he should not be compelled to discover his non-residence3 where the defendant is unable to prove it by a witness, as alleged in this case.

No other objection is made to the petition for discovery. It seems to be in good form, and sought the discovery of a matter material to the issue made up upon the plea. We think the court did not err in overruling the demurrer to the petition.

The question, whether Palmer, to whom the bond was made payable, for the use of Woodfin, and in whose name the suit was brought, was also liable for costs, does not legitimately arise in the case. The judgment is affirmed.


text:
    Oliver vs. The State.
    A constable in the execution of civil process, is not restricted to the township in which he resides: and it is sufficient in an indictment for resisting process in the hands of a constable, that it state that the resistance was made in the county where he resides.
    An indictment for resisting an officer in the execution of process is sufficient if the charge be made in the language of the statute (Digest, page' 359,) without stating the manner of resistance.
    As to the necessary averments of an indictment descriptive of the offence charged, see the case of Slicker vs. The State, 13 Ark. 397.
    We have no law authorizing the court to sit as a jury in the trial of a criminal case ( Wilson vs. The State, 16 Ark.; Bond vs. State, at the present term.)
    In an indictment for resisting process, the justice, who issued the process, is a competent witness to prove his own official character.
    On the trial of an indictment for resisting process of execution, upon which the officer has made return of “no property found,” it is not contradictory of the return — in the sense in which the truth of a return of an officer is not permitted to be disputed. — to prove acts of the defendant preventing the levy of the execution.
    The defendant may well prove, in such case, that the property upon which the officer attempted to make the levy, being in his possession, was his own, and not the property of the defendant in the execution.

      Appeal from Seott Cvrcuit Oowrt.

    Hon. Felix-J. Batson, Circuit Judge.
    Fowler & Stillwell, for tbe appellant.
    JordaN, Attorney General, contra.
   Mr. Chief Justice English

delivered tbe opinion of tbe Court.

Oliver was indicted in tbe Circuit Court of Scott county, as follows:

Tbe grand jurors, &c., &c., present that Richmond Oliver, on the lOtb clay of February, A. D., 1855, in the county of Scott aforesaid, did, then and there, knowingly and wilfully resist Iiiram Glover, who was then and there the constable of Washburn Township in the county aforesaid, in the attempt to execute a certain execution issued by Bobert N. Smith, an acting justice of the peace, within and for the township ,and county aforesaid, in favor of Stephen IT. Chism against James Hays, against the peace and dignity,” &c.

The defendant moved to quash the indictment, and the motion 'being overruled, he rested thereon, and refusing to plead further, the court directed the plea of not guilty to be entered for him. Neither party requiring a jury, the cause was submitted to the court sitting as such, and the court found the defendant guilty upon the evidence, assessed his fine at fifty dollars, and rendered judgment accordingly. The defendant moved in arrest of judgment, which was overruled, and he appealed to this court.

The first objection taken to the indictment is, that it does not charge that the process was resisted within the township of which Glover was constable.

This was not. necessary, because a constable, it seems, is not restricted to the limits of his own township in executing civil process. See Digest, chap. 35, secs. 26, 27, 31, chap. 95, part 2, secs. 16, 17, 145, 146.

The fourth objection is, that the manner of resistance was not charged.

This was unnecessary. It is 'sufficient to charge, in the language of the statute (Digest, chap. 51 part 7, curt. 4, sec. 2, page 359,) that the defendant resisted the officer in the execution of the process. The particular mode of resistance or obstruction is properly a matter of evidence. U. S. vs. Bachelder, 2 Gallison Rep. 14; McQuid vs. The People, 3 Gilman's Rep. 76.

The other.objections taken to the indictment, are answered by the decision of this court, in the case of Slicker vs. The State, 13 Ark. Rep. 397; and although the indictment does not describe the process alleged to have been resisted, with the particularity observed in the English precedents, yet, upon the authority of the aboye case, we must hold it to be substantially good.

We have no law authorizing the court to sit as a jury in the trial of a criminal case, as held in Wilson vs. The State, 16 Ark. Rep. and Bond vs. The State, at the present term: and for this error the judgment must be reversed.

Pending the.trial the defendant excepted to several decisions made by the court, and it is perhaps proper that we should decide the questions reserved, as they may arise again upon another trial of the cause after it is remanded.

1. The court permitted Smith, the justice of the peace, who issued the execution charged to have been resisted, to prove his official character, that he was such justice, &c., against the objection of the defendant. There was no error in this. 1 O^reenUs. Rv., secs. 83, 92.

2. The State read the execution in evidence, and the defendant read the return of “no property found, ” endorsed thereon by Glover, the constable. The court then permitted the State to prove by Glover, that, on the day the execution came to his hands, he went in company with Chism, the plaintiff in the execution, to the house of Oliver, the defendant in the indictment, for the purpose of levying the execution upon a mare then in the possession of Oliver. That, when they arrived at the house, they found Oliver sitting on the mare out-side of his yard fence. Chism told him they had come to levy on the mare as the property of Hays, the defendant in the execution. Oliver said the mare was his own property, and he would not have her levied upon. Glover then started towards the mare, and Oliver took out his pocket knife, holding it down in his hand, without opening either blade, and told Glover not to come to him, and that if either he or Chism touched the mare, he would cut Mm. Glover still walked toward the mare, and Oliver turned her round and rode inside of his yard, and told a boy to bring him his butcher knife. ^He got the knife, and swore he would not have his mare taken. Glover told him he would have him arrested, and he then turned the mare and rode off as fast as she could gallop. He was sitting on the mare all the while, &c.

To this evidence, Oliver objected as incompetent, on the-ground-that it was contradictory of the return of the constable on the execution, of no property found.

There is nothing in this objection : the evidence does not contradict the return, in the sense in which the truth of such returns is not permitted to be disputed. The constable might, perhaps, have returned the particular facts: that the plaintiff in the execution pointed out a mare in the possession of Oliver, to be levied upon: that he attempted to do so, but the levy was resisted by a show of arms, and then by flight — running off the animal. But the return of no property found was a short mode of stating the result of the efforts of the constable to satisfy the execution ; and it was hardly necessary for him to detail, in his return, his unsuccessful adventures in search of property, &c.

3. The defendant, Oliver, proposed to prove that the mare, upon which the constable attempted to levy the execution, belonged to him, and was not the property of Hays, the defendant in the execution, but the court excluded the evidence.

The constable, it seems, found the mare not in the possession of the defendant in the execution, but in tbe possession, and at the house of Oliver. If she belonged to him, the constable was invading his rights, and a trespasser, in attempting to levy upon her. Elder vs. Robinson, 10 Wend. Rep. 128; Mitchell vs. The State, 7 Eng. Rep. 55; Overby et al. vs. McGhee, 15 Ark. Rep. Without intending to decide that Oliver was justifiable in making a flourish of knives to resist a mere levy upon the mare, even if she belonged to him, when the law points out more peaceful remedies, yet we must hold, upon the above authorities, that the court should have permitted him to prove that the mare was his property, and not subject to the execution. Reversed.


author: Mr. Justice Soon

text:
    Nunn et al. vs. Matlock.
    A court of equity is competent to relieve against an ordinary Judgment obtained in a court of record by means of fraud; and the statutory judgment springing into being upon the forfeiture of a forthcoming bond, cannot stand upon any higher ground: And so, where there is fraud in procuring an execution to be levied upon property not subject to execution; and in procuring the bond given for its delivery, to ,be forfeited, and so returned by the sheriff, the court will grant relief by perpetual injunction.

      Appeal from Ouachita Circuit Court.

    Hon. SheltoN "Watson,'Circuit Judge.
    Gallagher, for appellants.
    WatKINS & Curran, for appellee.
   Mr. Justice Soon

delivered tbe opinion of .the Court.

Samuel Nunn, one of the appellants, having a judgment in the Ouachita Circuit Court, against Spartan G. Goodlett, Hugh W. Ashley, and Eobert H. Atkins, sued out an execution against them, which was levied upon certain personal property of Good-lett, consisting of 50 head of hogs, two head of horses, 1 wagon, two saddles, 3 beds and furniture, 1 grind stone, 1 steel mill, 4 ploughs, 2 pair of geer, 6 head of cattle and one ox yoke.

The execution, in virtue of which this levy was made, was returnable on the first Monday after the fourth Monday in September, A. I). 1849, an<l the levy was made the 21st of that month. That day, Goodlett, with John Matlock as his security, executed a forthcoming bond for the delivery of the property so levied upon, to the sheriff, at the residence of Goodlett, on the first day of October following.

Immediately afterwards, one Thomas, claiming the property levied upon, as trustee, under the provisions of a deed in trust executed bjr G-oodlett, on the 26th April, A. D. 1847, for the benefit of Matlock & McCollum, which by that firm had been transferred to the individual benefit of John Matlock, gave notice in writing thereof to the sheriff, under the provisions of the statute, (Digest, chap. 67, secs. 32, 33, 34, 35, 36,) and demanded a trial of the right of property.

The sheriff proceeded accordingly by jury, who failed three several times to agree on a verdict. The last mis-trial was on the day appointed in the forthcoming bond for the delivery of the property levied upon, and so claimed, and, by previous advertisement of the sheriff, for the sale of the same. The sheriff* then proceeded to the place appointed for the delivery and sale of the property, and Goodlett there pointed out to him, and offered to surrender all of it to him, except the 50 head of hogs, and the 6 head of cattle. The sheriff refused to accept this partial surrender of the property levied upon, and, at once, returned the forthcoming bond, forfeited.

At the return term of the forthcoming bond, no motion was made to quash it and the execution out of which it had sprung, although it seems liable to objection in the fact, apparent upon the face of the bond, that the sheriff had improperly united two several and distinct judgments in favor of two several plaintiffs; in the forthcoming bond, thus improperly blending the separate rights of different and unconnected plaintiffs, in vexatious if not in inextricable confusion.

At the next succeeding term — that to which the execution upon the statutory judgment was returnable — -a motion to quash the forthcoming bond was made, for various alleged causes: the irregularity pointed out, not being one of them, and was overruled; but no exception appears to have been taken, or writ of error sued out; the motion, doubtless, having been considered out of time.

This last mentioned execution appears,, from the return of the sheriff, to have been arrested in its progress by a writ of injunction, which a master in chancery had assumed to order, upon a bill in equity filed to this term, by Matlock against Nunn, praying relief against the forthcoming bond by injunction and otherwise. In this bill, Matlock alleges, that the joroperty levied upon, was not subject to the execution, and that, knowing this to be so, he executed the forthcoming bond, as the security for Goodlett, with the full expectation and belief that the sheriff would, in the mode provided by the statute, try the right of property interposed in his behalf, by the trustee, Thomas, and make this manifest. And he charges that the proceedings of Nunn and the sheriff in the premises, and in procuring the bond to be forfeited, and so returned by the sheriff, were fraudulent to his injury.

This, Nunn at first denies in his answer* but then proceeds by way of cross-bill, under the statute, and charges, in substance* that Atkins and Ashley falsely and fraudulently represented to the sheriff previously to any levy of the original writ of execution, and while it was in his hands for levy against all the original defendants therein, that they, Ashley and Atkins, had paid the debt, interest and costs, and had full authority from the respondent, Nunn, to control the said execution, and direct the said sheriff’s action and proceedings thereunder, as in the name of Nunn; all of which was false. And that the sheriff, placing frill confidence in the false and fraudulent representations, obeyed the instructions of Ashley and Atkins throughout, from the levy to the final return of forfeiture of the forthcoming bond. And, at their special instance and request, levied the execution upon the alleged trust property, and continued to insist upon that levy, and resisted as aforesaid, the claim of Thomas, as trustee, in behalf of Matlock, after that claim had been interposed up to the return of forfeiture upon the forthcoming bond.

The answer of Nunn then proceeds as follows, to wit: “And this defendant further says, that the said Hugh "W. Ashley and Hubert Atkins have intermeddled with the business of this defendant herein, without permission from him, his agent or attorney, and false]y and fraudulently assumed to control said execution, >and to direct the said Green L. Grant, as such sheriff, in tbe execution and satisfaction thereof, and falsely and fraudulently represented that they, or one of them, had paid and satisfied said execution, when in truth and in fact, they had not, nor had either of them paid the same, or any part thereof: and by their said false and fraudulent representations and conduct, have subjected this defendant to great costs, damages and expenses, in regard to the said several trials of the right of said complainant to said property. ' Wherefore, this defendant prays that the said Hugh W. Ashley and Robert H. Atkins may be made parties to complainant’s said bill, and that they, upon their respective corporal oaths, may answer the interrogatories hereunto annexed, and that .this defendant may have a decree over against them, the said Ashley and Atkins, for all costs and damages occasioned by the levy of the said original execution upon said property, and in case said injunction should be perpetuated, that this defendant may have a decree of this court over against the said Ashley and Atkins, for the debt, interest and costs, in said original execution specified, together with all the said costs and damages, which this defendant may have sustained by reason of the levy of the said original execution on said property claimed as aforesaid, by said complainant, and such other and further relief,’-’ &c.

In obedience to process ordered by the court, Ashley and Atkins appeared by their solicitor, and not only consented to be made parties, as prayed by Nunn, but also that the allegations of Nunn’s answer, by way of cross-bill, should'be taken against them as confessed to be true, and the relief prayed against them decreed accordingly.

Afterwards, the case was finally heard upon the bill and exhibits, the answer and exhibits, both as such, and as a cross-bill, an^d the whole of the proceedings of record on the law side of the court, including the forthcoming bond, and the several executions and returns thereupon made by the sheriff. Whereupon, the court decreed that the forthcoming bond, and the sheriff’s return of forfeiture thereof, and the execution issued upon the same, should be null and void, and that Nunn should be perpetually enjoined from further proceeding on the same by execution, or in any other wise whatsoever. That Atkins and Ashley should pay all the costs of the proceedings in the trials of the right of property, and also the costs in this cause; and that Nunn should be remitted back to his judgment at law in the Circuit Court, against Goodlett, Atkins and Ashley, and have execution of the same.

From this decree, Nunn, Ashley and Atkins, appealed to this court.

In several particulars, these proceedings are quite irregular and open to observation; but we have no concern with any thing that does not operate to the prejudice of the rights of the appellants.

As to two of them, Ashley and Atkins, it is entirely clear in our opinion, that they have no ground of complaint whatsoever. It is not possible that they should have expected to have been allowed in a court of equity, any benefit from a judgment directly resulting from their own falsehood, misrepresentation and fraud, which they openly, by their solicitors, admit upon the record.

It would be strange, indeed, if, by a judgment so superinduced, they could be discharged from their liability to Nunn on his judgment against them and Goodlett.

The decree against them for costs we think equitable and just. But, although all this may be so, unless the statutory judgment arising upon the forfeiture of the forthcoming bond can be properly held as invalid in a court of equity under the facts and circumstances in this cause shown, as against Nunn, and in favor of Matlock, these two parties, (Ashley and Atkins,) although not entitled to relief, would enjoy it so far as the original judgment against them was concerned. There can be no doubt, however, of the competency of a court of equity to relieve against an ordinary judgment, obtained in a*court of record by means of fraud, and tbis statutory judgment cannot possibly stand upon any bigber ground. Matlock charges in bis bill that it was so obtained; and although Nunn, in bis direct answer to Matlock’s bill, denies tbis, yet, when bis entire answer, including that which he makes by way of cross-bill, is considered together, be virtually admits it to be true. And the same may be said of Matlock’s other allegation, that the property levied upon was not liable to the execution, because Nunn substantially presents the very fact as an independent ground of relief against Ashley and Atkins for costs and damages, to which they have, as he alleges, subjected him by fraudulently intermeddling with his execution, and causing it to be levied upon the property in question; and this not by way of alternative relief, as he also prays shall be decreed him in case the injunction of Matlock should be perpetuated, but absolutely and in any event.

Matlock is in no manner upon this record shown to be in fault, nor in any degree implicated in the fraudulent practice and proceedings which Nunn charges, and Ashley and Atkins admit, finally resulting in this statutory judgment against which Mat-lock seeks relief.

Thus Nunn, in effect, insists as against Matlock, that this judgment shall be held valid, and at the same time alleges it to have been obtained by the fraud of Ashley and Atkins, and on that ground seeks relief against them for the costs and damages to which he alleges they have subjected him by means of their frauds. Certainly, in a court of equity, he ought not to be allowed any benefit from a fraud against an innocent party, which he repudiates and seeks redress for as against the fraudulent. It would be to adopt a wrong, and claim benefit from it. It does not appear that Ashley and Atkins-are insolvent; hence, no probable injury to Nunn is apparent from this source, while Matlock being a mere security, must be inevitably injured, if held bound, because it does appear that G-oodlett is insolvent.

Upon the whole case, we think the decree rendered ought to be affirmed.


author: Mr. Justice Scott

text:
    Platenius as ad. vs. The State.
    The act of the íth December, 1854, entitled “An act further to regulate the manner of bringing’ suits against the State,” is constitutional and within the competent powers of the Legislature.

      Writ of Error to the Oireuit Gov/rt of PulasTd Ooimty.

    The ITon. JohN J. CleNDBNIN, Circuit Judge.
    Pike, for the plaintiff.
    S. H. Hempstead, for the defendant.
   Mr. Justice Scott

delivered the opinion of the Court.

This was an action of covenant instituted by the plaintiff in error, against the defendant, under the provisions of the statute put in force, by the proclamation of the Governor, on the 20th of March, A. D. 1839. Digest, chap. 157, page 961.

The declaration was filed in the Pulaski Circuit Court, on the 21st day of November, A. D. 1854, and a writ of summons was issued the same day returnable to the next succeeding Juné term, which was regularly served upon the Auditor of Public Accounts.

The following is a copy of the declaration: (omitting four hundred and ninety-nine counts like that copied, except that each is on a different and distinct bond for the same amount, dates, &c.)

“IN THE PüLASKI ClROuiT CoXTRT, 1

To the December Term, A. D. 1854. )

“William A. Platenius as, and in his capacity of administrator, ad eollAgend/um, of all and singular the goods and chattels, rights and credits, which were of James Holford, deceased, who died testate, by attorney, complains of the State of Arkansas of a plea of covenant broken.

For that whereas, heretofore, to wit: on the 1st day of January, A. D. 1810, at Little Eock, in said State of Arkansas, tinder and by virtue of the act of the General Assembly of said State, entitled: “An act to establish the Eeal Estate Bank of the State of Arkansas,” approved the 26th day of October, A. D. 1836, and of the other act of the said General Assembly, entitled: “An act to increase the rate of interest on the bonds of the State, issued to the Eeal Estate Bank of the State of Arkansas,” approved the 19th day of December, A. D. 1837: and of the other act of said General Assembly, entitled: “An act to authorize the Stockholders of the Eeal Estate Bank of the State of Arkansas to establish a branch in the western part of this State,” approved the 24th day of February, A. D. 1838, and under the fifth section of said last mentioned act, and the second section of said second mentioned act, and the tenth section of said first mentioned act, for the ends and purpose in said last mentioned act specified. to wit: to enable said bank to raise the residue of the capital provided for by said first mentioned act, and put said! branch' in the western part of this State, in operation, the said State of Arkansas made and executed, and to the said Eeal Estate Bank of the State of Arkansas, delivered her certain bond and writing obligatory, dated the said 1st day of January, A. D. 1840, sealed with the great seal of said State, then thereto caused to be affixed by his Excellency, James S. Conway, then Governor of said State, signed by said Governor, and countersigned by-John Hutt, then the Treasurer of said State, and which, with the endorsements thereon, hereinafter mentioned, is now her© shown to the court, and the caption whereof is as follows, that is to say:

UNITED STATES OF AMEEICA, )

State of ARKANSAS. j

One thouscmd dollars, Arkansas State Bond; £ stg. 225 — Wo. 1: C. Frs. 5600: Real Estate Bank of the State of Arkansas: Under an act of the General Assembly of the State of Arkansas, entitled: “An act to establish the Real Estate Rank of the State of Arkansas, .approved October 26th, 1836: and an act supplementary thereto, entitled: “An act to increase the rate of interest on the bonds of the State, issued to the Real Estate Bank of the State of Arkansas,” approved the 19th December, 183T: ” and an act entitled: “An act to authorize the Stockholders of the Real Estate Rank of the State of Arkansas to establish a bra/nch in the western part of this State.f approved February 24/th, 1838.”

To the payment of wbicb bond by said last mentioned act of Assembly, tbe faith and credit of said State were irrevocably pledged: and thereby the said State of Arkansas then and there acknowledged herself to be indebted to said Neal Estate Bank of the State of Arkansas, in the sum of one thousand dollars: and thereby covenanted and agreed with said Neal Estate Bank of the State of Arkansas, that she would pay the said sum of one thousand dollars, in current money of the United States, to the President, Directors and Company of the said Neal Estate Bank, on the 26th day of October, in the year of Our Lord one thousand eight hundred and sixty-one, and also, that she would pay half yearly, on the first day of January, and the first day of July, in each year, interest on said last mentioned sum of one thousand dollars, at the rate of six per cent, per annum, at the place to be named in the endorsement upon said writing obligatory, until the payment of said principal sum; which said writing obligatory, being in law payable to said Neal Estate Bank of the State of Arkansas, and said covenant therein contained, being made with said bank, by its description of “The President, Directors and Company of said Bank,” the said Neal Estate Bank, afterwards, to wit: on the 1st day of January, A. D. 1840, by its endorsement on said writing obligatory, then made in the first person, by William E. Woodruff, the President, and Carey A. Harris, tbe Cashier of said bank, for value received, assigned, transferred and endorsed the said writing obligatory, under and by virtue of the powers, by the 10th section of said act of Assembly establishing said Eeal Estate Bank, in the said President and Cashier vested, to the said James Holford, who was then living; and thereby directed the said sum of money, and the in-stalments of interest therein mentioned, to be paid to him or his order; and therein, they did, by virtue of the act of Assembly last aforesaid, and the other acts above mentioned, and the authority to them thereby given, fix the place at which said principal and interest should be paid, to be in the city of London, (which was, and is in the Kingdom of Great Britain, beyond seas,) at the counting house of Messrs. Frederick, Huth & Co., in said city of London, and so made the said principal and interest there payable to the said James Holford, at the rate of four shillings sixpence sterling per dollar, or four dollars and forty-four cents per pound sterling; the said interest to be paid on presentation and delivery of certain dividend warrants (or coupons) thereto annexed by said bank, being memoranda of the amount and time of payment of each semi-annual instalment of interest: and said principal to be paid on presentation and delivery of said bond, on the day when it should become due, and then there bound said State to the payment of said interest and principal/-and then there delivered said last mentioned bond, so endorsed to said assignee, James Holford, who then thereby became the endorsee and assignee thereof, and the plaintiff is now the holder and owner of the same, as such administrator as aforesaid. "J"

And the said plaintiff in fact saith that the said State of Arkansas hath not paid at sail banking house of said Frederick Huth & Co., in said city of London, or elsewhere, the said several instalments of interest, at the rate of six per cent, per annum, which have become due and payable since the making of said writing obligatory, upon said last mentioned sum of one thous- and dollars, or two hundred and twenty-five- pounds sterling, on the 1st day of July, in tbe year 1840, and upon tbe 1st day of January and tbe 1st of July, in each and every year thereafter, up to, and including tbe present year, 1854, to wit: tbe sum of thirty dollars, or six pounds, fifteen shillings sterling on each of said days, to tbe said James Holford, or to any other bolder of said bond, or person authorized to receive tbe same, either upon those days, or at any other time or times whatsoever, according to the form and effect of said writing obligatory and covenant, and said endorsement thereof, or either of said sums, or any part of either, although often requested so to do; but the said State, the said several sums of thirty dollars, or six pounds fifteen shillings sterling each, unto the said James Holford, in his life-time, or to the plaintiff since his death, or to any other holder of said bond, or person authorized to receive the same, at the end of the said respective terms, or ever as yet, in whole or in part, to pay hath altogether omitted, neglected and refused; nor hath she ever made any provision for the payment of any of said instalments,' or ever had or placed any money at said place of payment, to pay and meet any of said instalments, nor hath any other person, nor said bant done it for her; nor ever been there ready to pay the same, so that it hath always been useless there to present any of said dividend warrants for payment, or to demand payment there, of any of said instalments of interest, against the form and effect of said covenant and writing obligatory, and of the said endorsement thereof: and so the said plaintiff saith that the said State, although often requested, hath not kept her said covenant, so by her made as aforesaid, and hath broken the same, and to keep the same with the said James Holford, and with the plaintiff as such administrator, hath hitherto wholly refused, and still doth refuse; nor hath paid the difference of exchange, or any part thereof, on any one or more of said instalments of interest, between Little Eock, and the city of London, in favor of London, as it hath since the making of said writing obligatory, hitherto ever been:” [Note,: Here follow 499 other counts in the declaration, which are omitted.)

“ By means of wbicb said several breaches of said several covenants of said State of Arkansas, in tbe several counts of this declaration herein above alleged and assigned, the said plaintiff saith that he, as such administrator as aforesaid, is injured and hath sustained damage to the sum of one million of dollars; and therefore, in his capacity of such administrator as aforesaid, he sues; and he here brings into court an authenticated copy of the letters of administration, ad cdllAgendum, of all and singular the goods and chattels, rights and credits, which were of the said James Holford at the time of his death, and which letters were, after the death of the said James Holford, to wit: on the 20th day of May, A. D. 1854, granted to the plaintiff by the Hon. AlbxaNdee W. Bradford, Surrogate, with probate jurisdiction, of the county of New York, in the State of New York, one of the United States of America, in due form of law, and give sufficient evidence to the said court of the said grant of administration to the said plaintiff.”

At the return term, to wit: the 25th of June, 1855, the Attorney General, with whom was the special attorney retained by the State, filed the following motion, to wit:

“The said State, by attorney, moves the court to require the plaintiff to file the bonds mentioned and referred to in the declaration, according to act of Assembly of the 7th December, 1854, and if the same are not filed, that the suit be dismissed.”

The court taking time to advise until the 9th of July following, on that day ruled that the plaintiff should produce and file the bonds in court, which the plaintiff, as is shown by the bill of exceptions, in open court declined to do, whereupon, the court immediately sustained the motion, and dismissed the cause; the plaintiff thereupon excepting, and having his bill of exceptions sealed and made a part of the recod, afterwards brought his cause into this court by writ of error. .

Hei’e, he insists upon the single point, that the act of the Legislature, under the provisions of which the Circuit Court dismissed bis suit, was unconstitutional, and ought to have been disregarded.

It was provided by the act under which these proceedings were commenced, that such suits, when commenced, be conducted to final judgment, in the same manner as actions by and against individuals: And when judgment should be rendered, it should be the duty of the Auditor of Public Accounts, to transmit a copy of it to the General Assembly, which should make an appropriation for its satisfaction. That appeals and writs of error should be allowed, and that nothing in the act should preclude any claimant from making application to the General Assembly for the satisfaction of his claim, in the first instance, without any resort to such proceedings.

It is provided by the act under which these proceedings were dismissed, which is entitled: “An act further to regulate the manner of bringing suits against the State,” (act approved by the Governor, December 7th, 1856. Pamph. Acts of 1855, p. 17.)

Seo. 1. “That in every case in which suits, or any proceeding has been instituted, to enforce the collection of any bond or bonds issued by the State of Arkansas, or the interest due, or which shall be due on any such bond or bonds, before any judgment or decree shall be rendered in any court, such original bond or bonds, as the case may be, shall be produced and filed in the office of the clerk of the court, and shall not be withdrawn until the final determination of such suit or proceedings, and the full payment of such bond or bonds, and all interest thereon, and the same may then be withdrawn, canceled and filed with the State Treasurer by order of the court, but not otherwise.”

Seo. 2. “ That in every case in which any suit or proceeding has been, or shall hereafter be instituted, upon any bond or bonds of this State, or for interest which may or shall be due thereon, the court, at the first term after the commencement of suit or suits, proceeding or proceedings, whether the same be at law or equity, and whether the same be by an original or cross-bill, shall require that tbe original -bond or bonds be forthwith produced and filed, as required by the first section of this act, and in case such original bond or bonds be not forthwith produced and filed in the manner, and to remain so filed as aforesaid, it shall be the duty of the court, on the same day, to dismiss such suit, proceeding-or cross-bill.” .

Sec. 3. That all laws and parts of laws contrary to this act, be, and the same are hereby repealed, and this act shall take effect and be in force from and after its passage.”

It is argued that this latter act impairs the obligation of the contract proceeded upon in this cause.

Judge Story says, in his commentaries on the Constitution of the United States, (vol. 2, Book 3, sec 1380, p. 232): “It seems agreed, that, when the obligation of contracts is spoken of in the Constitution, we are to understand, not the mere moral, but the legal obligation of the contracts. The moral obligation of contracts is, so far as human society is concerned, of an imperfect kind, which the parties are left free to obey or not, as they please. It is addressed to the conscience of the parties, under the solemn admonitions of accountability to the Supreme Being. No human law given, can either impair or reach it. The Constitution has not in contemplation any such obligations, but such only as might be impaired by a State, if not prohibited. It is the civil obligation of contracts which it is designed to reach; that is, the obligation which is recognized by, and results from the law of the State in which it is made.”

In the next succeeding section, he says: “ Nay, there may exist (abstractly speaking,) a perfect obligation, in contracts where there is no known and adequate means to enforce them. As, for instance, between independent nations, when their relative strength and power preclude the possibility, on the side of the weaker party, of enforcing them. So, in the same government, where a contract is made by a State with one of its own citizens, which yet its laws do not permit to be enforced by any suit or action. In this predicament are the United States, who are not suable on any contracts made by themselves: but no one doubts that these are still obligatory on °the United States. Yet their obligation is not recognized by any positive municipal law, in a great variety of cases. It depends, altogether, upon principles of public or universal law. Still, in these cases, there is a right in the one party to have the contract performed, and a duty on the other side to perform it. But, generally speaking, when we speak of the obligation of a contract, we include in the idea, some known means acknowledged by the municipal law to enforce it.”

" So, in section 1385, (jp. 236,) he says: “Although there is a distinction between the obligation of a contract, and a remedy upon it, yet, if there are certain remedies existing at the time when it is made, all of which are afterwards wholly extinguished by new laws, so that there remain no means of enforcing its obligations and no redress: such an abolition of all remedies, operating in presentí, is, also, an impairing of the obligation of such contracts But every change and modification of the remedy do not involve such a consequence.' No one will doubt that the Legislature may vary the nature and extent of remedies; so, always, that some substantial remedy be in fact left. Nor can it be doubted that the Legislature may prescribe the terms and modes in which remedies may be pursued, and bar suits not brought within such periods, and not pursued in such modes, -x- * * * * And a State Legislature may discharge a party from imprisonment, upon a judgment in a civil case of contract, without infringing the Constitution: for this is but a modification of the remedy, and does not impair the obligation of the contract.”

¥e have made these extracts as a more convenient mode, than citing the cases upon which they are based, and statipg their substance, of presenting the principles of law, which, we think, govern the question we have to decide.

According to these principles, had the remedy in question been a perfect one for the broken contract, and had therefore afforded adequate means, as by execution, for enforcing its preexisting obligation, tbe objection taken could not bave been maintained so long as a like substantive one remained to tbe party. And it was upon tbis foundation that tbe constitutionality of tbe act of our Legislature, exempting tbe debtors of tbe State Bank, from tbe process of garnishment from courts of law, was upheld by tbis court in tbe case of Danley et al. vs. The State Bank, 15 Ark. Rep. 16.

Much more, then, is tbe objection to be disallowed under like circumstances, when, as in tbe case at bar, the remedy in question, was, in truth, but an imperfect one, precatory in its nature, and living but in entreaty; and, consequently, totally inadequate to enforce peremptorily tbe duty of performing tbe contract. And that tbe remedy in question was of this nature, and, that if it bad been repealed, instead of having been modified, as it was, that another one, substantially as effective, would bave remained, seems clear enough, when it is remembered that tbe proceedings in question were but a mode of application to tbe Legislature for tbe satisfaction of tbe claim; and that, without resorting to them at all, tbe same statute allowed direct application to that department of tbe government for tbe like purpose. Tbe judgment of tbe court in tbe one case, ascertaining tbe fact of its indebtedness, and its amount, as tbe finding of an accounting officer of tbe government might do in tbe other; when, as to both, tbe matter would come to a stop, unless tbe Legislature should think proper to satisfy tbe claim: tbe courts having no power to force satisfaction of their judgments against tbe State.

Tbe remedy in question, at best, can scarcely be regarded as any means of legally enforcing tbe duty of performing tbe obligation of tbe contract proceeded on; and, therefore, although tbe plaintiff in error might be considered as having had a right to bring suit and obtain judgment in tbis way, and that the enactment of tbe 9th of December, 1854, materially obstructed and impaired those rights, it cannot be’ doubted, in view of these principles, but that it was within tbe competent powers of tbe Legislature so to obstruct and impair them: because, thereby, no means of enforcing the duty of performing the contract, recognized and enforced by law, was taken away, and necessarily, the obligation of the contract remained the same.

We think that the objection ought not to be allowed. The judgment of the Circuit Court will, therefore, be affirmed, with costs.


text:
    Platenius ad. vs. State. Beers use of Platenius as ad. vs. State. President and Directors Bank of Washington vs. State. Same vs. Same.

      Error to PulasTd Ci/rewit Court.

      E/rror to PulasTd Oi/rewit Gourt.

      Appeal from PulasTd Qhcmo&ry Oowrt.

      Appeal from PulasTd Oha/neery Oowrt.

   Affirmed: The principles involved being the same as in the preceding case of Platenius as ad. vs. The State.


author: Mr. Justice Soott

text:
    Memphis and St. Francis Plank Road Co. vs. Sullivan.
    This case comes within the rule laid down in State Sania vs. Oonway, 13 Ark. Eep¡ 344.

      Appeal from Orittmden Oireuit Qourt.

    Watkins & Gallagher, for tbe appellant.
   Mr. Justice Soott

delivered tbe opinion of tbe Court.

Tbis case originated before a justice of tbe peace, and was taken by appeal to tbe Circuit Court of St. Francis county, where it was tried, de novo, upon tbe merits, by tbe court sitting as a jury, and verdict and judgment were rendered for tbe defendant. Tbe other party excepied generally, and took a bill of exceptions setting out all tbe testimony, but made no motion for a new trial, excepted to no ruling of the court in admitting or rejecting testimony, nor took any steps to have tbe opinion of tbe court declared on any point of law during the progress of tbe case. In a word, as tbe appellant has failed to save, by exception, any alleged error of law, in any specific ruling or decision of tbe court below, and thus enable himself in tbis court to “ put bis finger ” upon any such alleged error, but has left every thing at large, so as to make it impossible for this court to know, whether the court below erred in matter of law, or erred in matter of fact, there is necessarily no case that tbe court can look into: tbe presumption in favor of the correctness of tbe proceeding below, remaining unexpelled.

Therefore, as has been often ruled here, tbe judgment in tbis case must be affirmed, under the law, as declared in State Bank vs. Conway, 13 Ark. Rep. 344, and always since adhered to.


text:
    Owen vs. Arrington & Co.
    This court will not reverse a judgment, for the failure of the record to state that a motion, in the court helow, to set aside the judgment, had been disposed of; but will presume in favor of the regularity of the proceedings of the Circuit Court, that the motion had been abandoned.
    The blank endorsement and delivery ‘of a promissory note,’ constitute such a transfer of the interest in the paper as to vest in the transferee the right of action and recovery. (Worthington vs. Curd & Go., IS Ark. 508.)
    Independent of the ordinary presumption, in favor of the regularity of the proceedings of the Circuit Court, this court will presume that the cause was regularly tried by the court on all the issues — being issues of fact — though not so stated of record, where the judgment recites a finding by the court of all the facts necessary to sustain the judgment.

      li/rror to Union Oi/rcuit Oov/rt.

    Hon. Thomas Hubbard, Circuit Judge.
    Quillin and "Watkins & Gallagher, for plaintiff.
    Carleton, for defendants.
   Mr. Justice Scott

delivered the opinion of the Court.

This was an action of assumpsit, in the Union Circuit Court., upon a promissory note, for $706 90, payable the 1st March, 1851, to the order of John Ford, at the office of Robins, Arring-ton & Co., No. 19, Bank Place, New Orleans, which was endorsed in blank by Ford, and at maturity was at the instance of B. C. Adams, the then holder, protested for non-payment.

The defendant filed six pleas, on which the plaintiffs took issue-in short upon the record, by consent, to wit;

1st. Non assumpsit.

2d. Tbe legal interest in tbe cause of action is not in tbe plaintiffs.

3d. Tbe legal title to tbe promissory note, is not in tbe plaintiffs.

4th. The legal interest in tbe cause of action is in one B. C. Adams, .and not in plaintiffs.

5th. Payment in full to plaintiff before tbe commencement of this suit.

6th. Payment to Robins, Arrington & Co., while they were in possession, and tbe owners of tbe note sued on, and before it came to the bands of the plaintiffs.

At a subsequent term, it appears that tbe court refused tbe motion of the defendant below for a continuance, and immediately following the entry thereof, tbe record proceeds : “ And tbe said defendant, Ezra PI. Owen, saying nothing further in bar or preclusion of tbe said plaintiffs’ action; and it appearing to tbe court that said action is founded on a promissory note, executed by tbe defendants, payable to tbe order of John Eord, at tbe office of Robins, Arrington & Co., No. 19, Bant Place, New Orleans, for the sum of seven hundred and six dollars and ninety cents, due on tbe first day of March, 1851, and dated November 6th, 1850. And it appearing to tbe court, that said note is entitled to credits, amounting to tbe sum of two hundred and two dollars and sixty-two cents, and one for tbe sum of forty dollars. Which said note is endorsed by John Eord. And it appearing further to tbe court, that the said plaintiffs have sustained damage by reason of tbe non - performance of the said defendant’s promises, in the sum of six hundred and sixty dollars and fifty-four cents, and the plaintiffs discontinuing this suit, as to the said defendant, John Y. Arrington, who is not served with process herein. Therefore, it is by the court considered that the said plaintiffs, Nicholas O. Arrington, and Robert Arrington, late partners in trade, and doing business in the firm name of N. 0. Ar-rington & Co., do have, and recover of, and from the said defendant, Ezra M. Owen, the aforesaid sum of six hundred and sixty dollars and fifty - four cents, besides all their costs herein expended.”

Afterwards, during the term, the defendant below filed a motion and an affidavit in support of it, to set aside the judgment already entered. It does not appear, from the transcript, that any action, whatever, was taken in the premises, nor is there any exceptions in the record in reference thereto.

It is insisted, that this latter is sufficient for the reversal of this judgment. We do not think so. Because, it is incumbent upon the party complaining of error, to show that it has been committed by the court. This has not been done as to this point. In the absence of something in the record to the contrary, we are authorized to presume in favor of the regularity oí the proceedings, that the motion was abandoned.

It is next insisted, that it ought to appear, in order that the judgment shall be sustained, that the blank endorsement had been filled up previously to its rendition.

That point we considered in the case of Worthington vs. Curd & Co., 15 Ark. 508; and, upon the weight of authority held, that according to the commercial law, (which we there applied to a wilting obligatory, payable in property, as to its transfer) : (‘The blank endorsement and delivery of the instrument, constitute such a transfer of the interests in the paper, as to vest, in the transferee, the right of action and recovery.” The same rule had been several times before applied in this court to bonds and notes, payable in money absolutely, as will be seen from the cases there cited.

The remaining position, that some of the issues were not disposed of, although somewhat plausible on a slight examination of the transcript, will be found, upon a more thorough one, to be equally untenable. Because, independent of the ordinary presumption in favor of the regularity of a judgment, in the absence of matters in the record to the contrary, it is apparent upon the face of this one, in what is stated to have been made to appear to tbe court, tbat tbe cause was regularly tried by tbe court, under tbe provisions of our statute, neither party requiring a jury, although not so stated in terms.

Finding no error in the record sufficient to authorize its reversal, the judgment will be affirmed, with costs.