author: Mr. Chief Justice ENglish

text:
    Mooney vs. Brinkley.
    A defendant in chancery having submitted to answer the whole bill, and not having, by demurrer, nor by answer, objected to the jurisdiction of the court over any of the matters set up in the bill, cannot, upon the hearing, nor upon appeal, object to the jurisdiction, unless the court was wholly incompetent to grant the relief sought by the bill.
    A mortgager having the right of possession of the mortgaged premises, under the terms of the mortgage, until the time of payment limited thereby, cannot be dispossessed by an action at law before the time limited for payment.
    But if the mortgager of real estate acts so improperly as to cause damage or waste, whereby the debt of the mortgagee may be jeoparded, the remedy of the mortgage© would be by a bill in equity, to place the mortgaged property in the hands of a receiver, and not by an action at law of forcible entry and detainer.
    And if ho resorted, illegally, to such action at law, and thereby subjected himself to an action of trespass; and to relieve himself from liability for such tresspass, had to ask the interposition of a court of equity, he should bear all the costs growing out of such illegal action on his part.
    where a mortgagee, for the purpose of taking care of mortgaged property, incurs expenses after he comes ligitimately into possession, he will be allowed them in the settlement; but if he obtains such possession illegally, and thereby unnecessarily incurs such expenses — as where, by an illegal action of Forcible entry and detainer, the mortgagee obtains possession of a tannery and incurs expenses in working out the hides in tan, which was the proper business and trade of the mortgager — he ought not, in equity, to be allowed such expenses, at the cost oí the mortgager.

      Appeal from Cla/rh Circuit Cou/rt in Chancery.

    Tbe Hon. SheltoN WatsoN, Circuit Judge.
    BlaNAgiN & CummiNS, for appellant.
    "WatKINS & Gallagheb, for appellee.
   Mr. Chief Justice ENglish

delivered the opinion of the Court.

On the 14th of September, 1848, John S. Brinkley filed a bill on the chancery side of the Clark Circuit Court, against Lazarus B. Mooney and James R. Rogers, to foreclose a mortgage, and for other purposes.

The allegations of the bill are, substantially, as follows

That, on the 21st of May, 1846, Mooney purchased of Rogers a tract of land lying near Arkadelphia, containing four acres, for $120, giving his note therefor, payable on the 15th November,' 1847, and taking Roger’s bond for title.

About two years before the filing of the bill, complainant being a merchant in Arkadelphia, and Mooney being poor and destitute of capital, but complainant having confidence in his honesty, industry, and believing he would prosper, if assisted, at the request of Mooney, furnished him with means to establish and carry on a tan-yard upon the tract of land bought by him of Rogers.

On the 28th of January, 1847, complainant and Mooney had a settlement in respect of the money, merchandize, stock, &c., furnished by complainant for the purpose aforesaid, and it was found that Mooney was indebted to him $1003 08, for which he executed to complainant his obligation, due one day after date, with interest at six per cent., with the privilege of discharging the same “in leather, boots, shoes, and any other trade that might be agreed on by the parties, at cash prices, according to custom.” To secure the payment of which, Mooney, on the same day, executed to complainant a mortgage, or trust deed, upon the tract of land aforesaid, and all the improvements thereon; also 168 beef hides; 50 deer skins, and 13 kip skins, a portion of which hides were then in tan; also one wagon, one yoke of oxen, and all the1 hides of any description which might come into the tan-yard between the date of the deed, and 1st of March, 1848, Mooney reserving the right of retailing leather in the usual course of trade. The property was conveyed to complainant in trust, and upon condition, that if Mooney should pay the amount of the above obligation, “whichmight be discharged in trade as specified in the face of the note,” with interest, &c., on or before the 1st day of March, 1848, complainant was to re-eonvey to Mooney the premises; but on default of such payment, complainant was empowered to advertise and sell the property for the payment of the debt, &e. The bond and mortgage are exhibited.

That, though the debt was due when the mortgage was executed, yet for the purpose of favoring and indulging Mooney, so as to enable him to pay the debt out of the proceeds and profits of the tan-yard, without a sale of his property, the mortgage was so drawn as not to be subject to foreclosure until the first of March, 1848.

That, without the assistance of complainant, Mooney could not have established and carried on the tan-yard — complainant having furnished all tools, implements, provisions, &c., necessary to support the family and hands of Mooney, and paid the wages of the laborers engaged in establishing and carrying on the yard.

That, after the execution of the mortgage, complainant continued, as before, from time to time, to furnish such supplies as were necessary to support the family of Mooney and carry on the tan-yard; and the supplies so furnished amounted to $219 49, a bill of the particulars of which is exhibited.

After the yard was put into operation, complainant delivered to Mooney two lots of hides to be tanned on the shares one-half for the other — the first lot consisting of 200 cow hides; 21 kip skins; 81 deer skins, and one goat skin, for which Mooney’s receipt was taken, dated 6th February, 1847, and is exhibited: The second lot consisting of 13 cow hides and 2 calf skins, as per receipt of 10th March, 1847, which is exhibited. That Mooney received hides from divers other persons to be tanned on the same terms, which were in process of tanning when the yard came into the hands of complainant, as hereinafter stated.

That by proper industry and attention to business, Mooney might have paid the sums due complainant out of the proceeds of the tan-yard, without a sale of the mortgaged property, but after the execution of the mortgage, he became dissipated, was constantly intoxicated, loitered about the dram-shops in Arka-delphia, and was utterly incapable of attending to any business. Finding that, in consequence of his dissipation, he was neglecting the tan-yard, permitting the hides to spoil and daily become damaged,complainant became convinced that Mooney was actingin bad faith towards, and had formed a settled design to defraud,Jiim. He was utterly insolvent, and unless complainant secured the mortgaged property he would lose his debt. That after the season for procuring tan-bark had passed, Mooney, in pursuance of his design to defraud complainant, sold, or contracted to sell, all tanbark taken and preserved by him for the use of the yard for that year, to a neighboring tanner, and made an arrangement to transfer all the hides in his tan-yard, to another tan-yard; and was on the point of carrying such design into execution. Complainant, under these circumstances, for the purpose of protecting his rights, and preventing Mooney from carrying his fraudulent designs into execution, on the 16th of June, A. D., 1847, brought an action of unlawful detainer against him, in the Clark Circuit Court, for the property mentioned in the mortgage,■ together with the tan-yard, all implements, tools, apparatus, and all property of every description, attached to, or in any way connected with said tan-yard ; and on the same day, by virtue of the writ issued therein, complainant was put into possession of the premises by the sheriff. At the return term, September, 1847, Mooney demurred to the declaration for misjoinder of causes of action; complainant offered to file an amended declaration, which the court would not permit him to do, unless he would restore the personal property delivered to him under the writ; he declined to do this, and judgment was rendered in favor of Mooney on the demurrer. He then moved for restitution of the property, which the court refused, and both parties brought error. A transcript of the proceedings is exhibited. See Brinkley vs. Mooney, 4 Eng. Rep. 445, 449.

That complainant, after thus obtaining possession of the premises, finding the hides spoiling for want of attention, and deeming it necessary to secure the amount due him by Mooney, &c., kept possession of the tan-yard, &c., hired hands and proceeded, at bis own expense, to have all the hides, of every description, found in the yard, finished off' and made into leather, which process of tanning and finishing was completed about the 15th July, 1818, and all the leather so finished held subject to the order of the court.

That upon taking possession of the yard, complainant employed a competent person to take charge thereof, and superintend the same, who kept a correct account of the expenses incurred by complainant in carrying on the yard, and completing the tanning of the hides, which amounted to $888 62, an account of which is exhibited, and he claims an allowance thereof, &c.

That'by the neglect of Mooney, while he was in possession of the yard, many of the hides being tanned therein were damaged, and among them those placed there by complainant to be tanned upon the shares. That after the process of tanning was completed, complainant caused the damages, which had so occurred to his share of the hides delivered by him to Mooney to be tanned, to be estimated by competent judges, and they were assessed at $72 92. That 53 of the hides, of. the value of $3 per hide, amount-ting to $159, and 75 deer skins of the value of $75, placed by complainant in the hands of Mooney, were not to be found when complainant came into possession of the yard, but that Mooney had fraudulently converted them to his own use. An account of the damages so assessed, and of the value of the missing hides, amounting in the aggregate to $306 92, is exhibited, and complainant insists that upon an account being taken in the premises, he should be allowed that sum.

An inventory of all the hides found in the yard, when complainant took possession of it, and finished by him, showing which belonged to the yard, which to complainant and which to other persons, with an estimate of the damages which had occurred thereto, by the neglect of Mooney, is exhibited. That of these, 15 sides of harness leather, 228 sides of upper leather, 63 deer skins and 21 kip skins, belonged to the yard, being the tanner’s share, were embraced by the mortgage and subject to the payment of the mortgage debt. That 15 sides of harness, 83 sides of sole, 35 sides of upper leather, ■— deer skins, and — kip skins belonged to complainant, being his half of such of the remaining hides placed there by him to be tanned ás were found in the yard when it came into his possession. And 266 sides of leather belonging other customers.

That the names of the several customers} and the hides which belonged to them respectively, could be ascertained by a book kept by Mooney% and still in his possession, in connection with the marks upon the hides ; and complainant prays that Mooney may be compelled to produce the book, so that the hides belonging to the customers, might be delivered to their proper owners, who were becoming clamorous therefor.

That on the 1st of January, 1847, Mooney hired a negro riian of Duncan'for one year, to cook in the tan-yard, at $-and eorm plainant went his security upon a note for the hire. "When the' mortgage was executed, by agreement, the amount of this note, less interest} was charged to Mooney and embraced in the debt secured by the mortgage, complainant executing his obligation to Mooney to pay the note to Duncan, and save him harmless. That the negro was engaged in the tan-yard when complainant obtained possession, and he employed him therein until the expira-tion of the time for which Mooney had hired him, say six months- and a half, and then delivered him to Duncan.

Complainant avers that he did not obtain possession, or dispossess Mooney of any personal property, except the hides above described ; a lot of tanner’s tools of the value of $ , alist of which is exhibited: said negro boy, and about 35 cords of tan hark, worth $35, which was used in tanning the hides, That all of said property except the negro, which had been delivered to Duncan, and the tan-bark, which had been consumed in finishing the leather, was still in possession of complainant and subject to the oi*der of the court.

That the drunkenness of Mooney, his neglect of the tan-yard, damaging' of the hides, fraudulent design to sell the tan-bark, transfer the hides, &c., &c., forced complainant to resort to the action of unlawful detainer to obtain possession of the premises, &c., in order t'o protect his rights, &c.

That Mooney had recently brought an action of trepass against complainant in the Clark Circuit Court, charging him with taking and converting to his own use, 500 beef hides, 150 deer skins, 100 cords of tan-bark, 1 bark mill, 4 fleshing knives, 2 currying knives, 2 sets of instruments used for fleshing leather, 2 sets of gearing, 4 shovels, 4 spades, 4 mattocks, -50 hides of leather, 10 vats of leather, or hides in tan, one negro man, and one barrel of train oil, the alleged property of Mooney, of the alleged value of $3000, to his damage, as averred, of $5000, which action was [rending for trial; a transcript whereof is exhibited.

That said complainant had not, at any time, taken any property from said Mooney, except that above stated, and in the manner and under the circumstances above detailed; and that said action of trespass was founded upon the supposed trespasses committed by the complainant in obtaining possession of said property as aforesaid, and none other.

The transcript of the trespass action shows that complainant in~ terposed three pleas to the action : 1st. Not guilty; and 2d, and 3d, attempts to justify under the proceedings in the unlawful detainer suit, to which last two, demurrers were sustained, and issue taken to the first.

That-Rogers had sued Mooney for the purchase money of said tract of land, obtained judgment, issued execution, caused the land to be levied upon and advertised by the sheriff for sale, and complainant was compelled, in order to protect his rights under the mortgage, to pay the judgment, which he did, on the 11th September, 1848, amounting to $136 25, and took Rogers’ receipt therefor, which is exhibited. Tie insists that Rogers, should be compelled to make Mooney a deed to the land, which he had not done in accordance with his bond for title; and that upon an account being taken between Mooney and complainant, he should be allowed the sum so paid by him to Rogers to remove the in-cumbrance from the mortgaged premises, with interest, &c.

The bill prays that an account may be taken of the amount due complainant upon the mortgage debt; of the supplies, &c., furnished Mooney by complainant after the execution of the mortgage ; of the damages upon complainant’s hides occasioned by the neglect of Mooney; of the value of the missing hides ; of the expenses of complainant in carrying on and completing the tanning of the hides; of the amount paid Rogers by complainant. That Mooney be required to paj'- to complainant the amount found to be justly due from him to complainant, upon the account so taken and stated ; and in default thereof, that the mortgage be foreclosed, and the property specified therein, together with such other of said property in possession of complainant as aforesaid, as may he liable thereto, be sold for that purpose. That Mooney be perpetually enjoined from further prosecuting said action of trespass, and from instituting or prosecuting any other action at law against complainant in respect of the property aforesaid. That Rogers be compelled to execute to Mooney, or the person to whom the same may be sold under the foreclosure, a deed to said land, &c. That a receiver be appointed to take charge of the leather and other personal propeity in possession of complainant as aforesaid, with instructions to deliver to the customers of the yard such portions of the leather as belonged to them, and to sell the remainder of the leather, and other personal property, at public auction for cash, and hold the proceeds thereof subject to the further order of the court. That Mooney be required to produce and place in the hands of the receiver the tan-yard books, &c., and for general relief.

On the filing of the bill, a temporary injunction and restraining order were granted, as prayed, and a receiver appointed to take charge of the personal property, &c.

At the March term, 1849, Mooney filed his answer to the bill.

lie admits that he purchased the said tract of land of Rogers, at the price and on the terms alleged in the bill; that Rogers had obtained judgment, and issued execution against him for the purchase money, and complainant had paid off the judgment, though not at respondent’s request. Avers that he was a tanner by trade, and purchased the land for the purpose of establishing thereon a tan-yard, and carrying it on for his own benefit, and immediately after the purchase, commenced improvements thereon for that purpose.

That prior to the 28th January, '1847, he had the tannery in operation; had $1000 worth of leather in the book, and a considerable amount of hides on hand not placed in tan, for which he was then preparing vats, &c. Tie had made improvements on the land about the yard to the value of $1200; the hides and leather on-hand were worth'$1200, and the tools, &c., and materials for tanning on hand, were worth $60.

Admits that he was poor and possessed of no considerable amount of property, except his interest in the tan-yard, but attributes his continued poverty and inability to pay his debts to the unjust and fraudulent conduct of complainant, &c. Denies that he solicited complainant to set him up in business, but avers that complainant voluntarily offered to advance him $400, to aid him in setting up the tannery, to be repaid in leather within two years. He availed himself of the offer, and used the means farmished by complainant in putting the tan-yard in operation.

Aclmits'that they had a settlement on the 28th January, 1847, and he fell in debt to complainant $1003 08, the principal part of which was used, by respondent in establishing the tannery; but included the hire of Duncan’s negro boy for the year 1847, for which complainant was bound as security, &c. That he executed to complainant his bond and mortgage to secure the debt, as alleged in the bill.

After the execution of the mortgage, and before respondent was dispossessed by complainant, he had paid about $40 on the mortgage debt; received many hides by purchase, and to be tanned on the shares, in the usual course of business, and had parted with little or no part of the leather, or stock, except in the payment of the $40 to complainant.

That by the terms of. the mortgage respondent was entitled tc1 possession of tbe premises, to carry on business, and to retail bis leather in tbe usual course of trade, until tbe 1st of March, 1848.

That tbe supplies, tools, provisions, &c., and everything furnished to respondent by complainant, except tbe cash to establish and carry on tbe tan-yard, were sold to him by complainant on credit, as a merchant, at a profit, and were all included in tbe mortgage debt.

He denies, however, that complainant furnished every tiling-used in establishing and carrying on tbe tannery, and avers that be obtained considerable means from other persons, and used them for that purpose.

That it was fully understood between complainant and respondent, when the advances were made, that the latter bad no resources of re-payment, except bis labor in, and the profits of, tbe tan-yard, and that no profits could be derived therefrom for about two years after it was established, it being tbe custom of tbe country to tan bides upon the shares, &c.

That from tbe time tbe yard was established until respondent was dispossessed, bides were continually coming in to be so tanned, &c. That the retailing of leather was a source of great profit, &c., and the confidence of the community in his efficiency, &c., in business, was of great value to respondent, &e. That but for the fraudulent conduct of complainant in seizing upon the tan-yard, dispossessing respondent, and depriving him of all means of carrying on the business, he would have been able by the 1st of March, 1848, to have paid for the land, discharged his indebtedness to complainant, and still have had on hand as large a stock of hides and materials as when the mortgage was executed. Such was respondent’s calculation when the mortgage was made, and such the reasons why complainant voluntarily agreed to extend the time of payment until 1st March, 1848.

He admits that after the execution of the mortgage, he continued to purchase of complainant supplies, provisions, &c., on credit for the support of his family, and the carrying on of the tan-yard; disputes some of the items in the bill exhibited by complainant therefor, and admits the correctness of .others.

He admits that complainant delivered to him, to be tanned on shares, the hides and skins mentioned in the bill, and described in his receipts therefor exhibited with the bill. That he received many hides from other persons to be tanned on the same terms, which hides were in the tannery when complainant seized it, &cl

ITe positively denies that after the execution of the mortgage, he wras habitually unfit for business from intoxication, or did, from any cause, neglect the business of the tannery, so as to suffer the hides to be damaged, &c. That no hides or leather were injured from neglect, want of skill, or inattention on the part of respondent or his hands, from the time the mortgage was executed, until the seizure of the premises by complainant. That in 1846, about thirty sides were somewhat injured, but none afterwards, ■while respondent controlled the tannery. That hides, in tanning, will often become more or less injured by worms, even with the utmost attention, and some of the hides may have been slightly injured from this cause. '

He admits that he was sometimes intoxicated about the time stated in the bill, but avers that his habits before and after the execution of the mortgage were the same, and that he was not, from this or other cause, incapable of attending to his business, and did not.neglect, or fail to conduct the tannery, &e., with proper skill and attention.

Ho expressly denies all the fraudulent conduct and designs alleged against him in the bill. Denies that the hides in process of tanning were suffering any damage from neglect; or that he sold, or intended to sell the tan-bark ; or that he contracted to sell, or made any arrangement to sell, dispose of, or remove from the tannery, any hides, implements or other property connected therewith, except the ordinary retail trade in the tan-yard, of the leather made therein, the right to do which was expressly secured to him by the mortgage. That all such allegations of fraud and misconduct, were fabricated by comjffainantas a pretence for his unlawful proceedings to dispossess respondent, deprive him of the means of paying his debts, and reap himself the profits of the tan-yard, &c.

That for these purposes, and not for the false reasons alleged in the bill, complainant brought said action of unlawful detainer, and thereby obtained possession, not only of the land and tan-yard, but of all the personal property connected with, or used in the tannery, and the negro man hired to work therein. That in such action, the sheriff nor any one else had a right to interfere with the personal property, but by the fraud and contrivance of complainant the sheriff was induced to put him in possession thereof.

That since the filing o't the bill, the Supreme Cmirt had reversed the judgment of the Circuit Court in said action, and remanded the cause, with leave to complainant to file an amended declaration therein.

That respondent had not been in the tan-yard since complainant obtained possession of it, and knew nothing of his hiring hands or working out the leather, &c.

But he submits that inasmuch as complainant turned him out of possession of the tannery, deprived him of the means of carrying on his trade, to which he had been educated, of supporting himself and family, and paying his debts, &c., he nor his property ought to be charged with any of the alleged expenses incurred by complainant in consequence of his fraudulent seizure and possession of the tan-yard, &c. That the account for $888 62, exhibited and claimed by complainant, as the amount of expenses incurred in preserving and finishing the leather, &c., was false and fraudulent, and trumped up to swindle the respondent, &c.

lie avers that all the hides, &c., delivered to him by complainant to be tanned on shares, were in the yard in process of tanning when complainant took possession thereof, and positively denies that respondent ever converted or disposed of any of them, as alleged in the bill.

Admits that the inventory exhibited with the bill contains about a correct account of the kip and deer skins in the tannery when he was dispossessed, but not of the other hides and leather. That there was in the yard, when he was dispossessed, at least 1000 sides of hides and leather, besides the hip and deer slcins. Denies the estimated value of the leather contained in said inventory to be correct; 'that any damage had occurred to the hides, &c., while he was in charge of the yard, and that all such damage occurred after the seizure of complainant, &e,, .

That complainant had stopped the trade* and broken ,up the custom and credit of the yard, &c.

Admits that he hept a booh showing the names o.f customers and the hides that belonged to them, which he had turned over to the receiver. Doubts not but that the customers are anxious to get their leather, but is apprehensive that complainant will defraud them. Complainant had refused to surrender the pro-pertyr, &e., to the receiver, as ordered by the court at the previous term.

That the hire of Duncan’s negro included in the mortgage debt was $162. Complainant took possession of him when ‘he seized the yard, &c., and kept him for the remainder of the time for which he was hired, but respondent did not know how he employed him, whether in the yard or otherwise. He had indemnified respondent against the note for the hire, as alleged, &c.

That by said action' of unlawful detainer, complainant got possession of the tan-yard, implements, all hides and leather placed there to be tanned on shares, including his own, all the leather, materials, &o.} &c., belonging to respondent — said negro man, &c.

He admits that complainant had not, otherwise than by means of said action, taken possession of any property of respondent.»

That respondent’s habits were well known to complainant, and there was no change in them after the execution of the mortgage. That, when absent from the tan-yard himself, he had a competent man employed to superintend the tannery, &c. Denies the truth of any causes alleged by complainant for resorting to said action of unlawful detainer to dispossess him, &c.

Admits that he had brought an action of trespass against complainant in the Clark Circuit Court, which w.as pending there for trial, as alleged. Insists that, inasmuch as complainant fraudulently, and without authority, seized said personal property, respondent has the right to prosecute said' action, and recover exemplary damages, &c. Admits that the action was founded upon the seizure of complainant of the property under the action of unlawful detainer, and not upon other or different trespasses.

Admits that Rogers had not made him a deed for the land; and submits that respondent is not responsible to complainant for the money paid by him to Rogers on account of the land.

Admits his intention to prosecute his action of trespass, &c.

Having fully answered, he prays to'be discharged.

Rogers filed an answer admitting that the allegations of the bill, as to him, were true, and expressing a willingness to make a deed to the land, to such person, and at such time, as the court might order, &c.

Mooney filed the affidavit of the receiver, (March 2Ttb, 1849,) stating that complainant had not delivered to him the property which he was ordered to take charge of, though he had made demand therefor, 25th September, 1848, &e. ■

Mooney also moved to dissolve the injunction upon the denials, &c., of his answer, &c.

Complainant obtained a continuance of the motion to dissolve, upon a showing that he could procure depositions, to support the allegations of the bill, by the next term. He also made affidavit that all the leather which he offered, in the bill, to surrender, had been safely kept in his ware-house, since the filing of the bill: and that, within twenty days after the order was made, appointing the receiver, he had offered him the key of the warehouse. That on the 28th of March, 1849, he had turned over to the receiver all the property which he was ordered to take charge of, and taken his receipt therefor, which was produced and filed.

Replications to the answers were filed, and the cause set down for hearing at the next term.

At the September Term, 1849, Mooney filed a motion to compel complainant to elect which suit he would prosecute; the action of unlawful detainer, or bill in chancery.

Complainant, thereupon, asked leave to file a supplemental bill, showing, that since the original bill was filed, this court had reversed the judgment of the Circuit Court in the action of unlawful detainer, and remanded the cause, with leave to complainant to file an amended declaration. That complainant did not take out the mandate, (but that Mooney did,) and had taken no steps in the case since the filing of the original bill, and intended to take none, the whole subject being before the Court of Equity, where all the matters in controversy between him and Mooney could only be properly adjusted and settled. He offered to account in the chancery cause for the rents of the said real estate, while in his possession, and to surrender it to the receivei’, to be leased pending the suit in chancery. Praying that Mooney might be restrained from requiring him to proceed in the action at law.

The court refused to permit the supplemental bill to be filed, and complainant excepted.

At the March term, 1851, the cause came on to be heard, (the parties having taken the depositions of about sixty witnesses,) and the court being unable to render a decree without a statement of accounts between the parties, refei’red the accounts, with the evidence, to the Master, to state, adjust and report upon the same, directing him to ascertain:

The amount of the mortgage debt, with interest:

The amount of supplies, &c., furnished by Brinkley to Mooney, after the execution of the mortgage, and before he was dispossessed :

The amount paid by Brinkley to Kodgers, purchase money of the land:

The amount of í'easonable and economical expenses incurred by Brinkley, in woi’king out the stock on hand, when he took possession of the yard; taking into consideration the value of the hire of the negro boy for, the residue of the year, after Brinkley took possession of him, &c.

The reasonable profits of the tan-yard, for each year, after Brinkley took possession of it, giving Mooney credit therefor, and making annual rests, &c., and to report the balance, &c.

The Master made his report at the September term, 1851. He charges Mooney with:

The amount of the mortgage debt, $1,003 08, and interest, &c.

Bor supplies, &c., furnished by complainant, after execution of mortgage, &c., $178 29, with interest, &c.

Amount paid Bogers by complainant, $136 25, and interest, &c.

For expenses, &c., incurred by complainant in working out the stock, after he took possession, $727 90, without interest.

The Master credited Mooney with :

Malue of hire of Duncan’s negro, for remainder of year, after complainant took possession of the yard, &c., $87 75.

Hire of Hart’s boy, for getting bark, &c., 18 75.

Profits of tan-yard from 16th June, 1847, the time complainant took possession, until the date of the Master’s report, at $250 per annum, applying these credits annually, so as to stop interest in favor of complainant, &c.

The Master reported against allowing complainant any thing for damages done his hides by Mooney, or for missing hides; thinking the proof left it in doubt, whether the damages, &c., occurred before Mooney was turned out, &c.

Both parties filed numerous exceptions to the Master’s report.

The cause was finally heard at the March term, 1852.

The court, upon the facts established in the case, was of opinion, that the complainant was entitled to the relief sought by the bill; that it had jurisdiction of the matters in controversy; that complainant was entitled to occupy the position of a mortgagee, and was not a trespasser in view of a court of equity: and that even if a court of equity had not cognizance of the matters in controversy, Mooney had failed to take the objection in apt time, and in proper form.

That Mooney be perpetually enjoined from farther prosecuting his action of trespass, or instituting or prosecuting any action at law, against complainant, in respect of the property aforesaid: and that the said action of trespass, and the said action of unlawful detainer be both dismissed, and the costs of each of said actions be charged upon the mortgaged property, &c.

That the said tract of land be sold by a commissioner, &c., the receiver to act as such, &c., and conveyed to the purchaser: and that Sogers also make a deed to the purchaser. That the receiver sell the leather and other property placed in Ids hands under the previous order of the court; and that he have the money arising from such sales in court, by the next term, &c.

That the money arising from the sale of the mortgaged property, be applied: First, To the payment of the costs of this suit: Second, To the costs of said actions of trespass and unlawful de-tainer : Thwd, To the payment of the amount which might be found due comjdainant from Mooney, in respect of the matters charged in the bill, &c., and the residue be paid to Mooney.

The court, upon the exce¡3tions taken to the master’s report, decreed as follows:

That complainant, instead of being charged with $250 per an-num, profits of the tan-yeard, from the 16th June, 1847, as reported by the master, should only be charged with the sum of $100 per annum, on account of the rents and profits of said tan-yard, from the 15th of July, 1848, the day the stock on hand when he took possession, was finished up — annual rests being made — that sum being the amount the testimony in the case showed to be just and proper. That complainant was not chargeable with rents and profits of the yard during the time he used the same in tanning out the stock on hand.

That complainant was entitled to interest on the $727 90, amount of expenses incurred by him in finishing up the stock on hand from 15 th July, 1848.

That the matter of damages to complainant’s hides, while in charge of Mooney, was not referred to the master, but that com’ plainant was entitled to an allowance for any such, damages as may have occurred, and that the master, upon the subsequent reference, should ascertain and report the same, &c.

That complainant was entitled to credit for $18, paid by him for Mooney to ITart, for negro hire, &c.

All the exceptions taken by Mooney, to the report of the master, (extending to all the items in it,) were overruled, except the one founded on the objection that the master had not credited him with the value of the tools which came into the possession of complainant, but were not embraced in the mortgage. And the court ordered that the master should take an account of the value of such tools, and credit Mooney with the value thereof, as of 16th June, 1847.

The matters of account were, therefore, re-committed to-the master, with directions to correct and re-st-ate the same, in accordance with the principles above settled, and the directions aforesaid, and that he report at the next term of the court, &c.

Mooney appealed from the decree to this court.

The testimony conduces to prove that complainant was an honest, correct business man. That Mooney, after purchasing the land of Hogers, went industriously to work, and by the assistance of complainant, who furnished the means, established the tan-yard, erected a dwelling and other improvements upon the land. I£e was in the habit of taking a “ spree” occasionally; but when at home, was usually sober, hard-working,.and attentive to business. Before, and about the time he was dispossessed, he seems to have become quite dissipated — was frequently seen drunk in Arkadelphia, sometimes lying upon the benches about the dram-shop doors, and occasionally in the streets; and, though, when at home, and sober, he was generally found industriously occupied in his business, perhaps a portion of the hides in the yard were damaged to some extent, for want of proper care and attention. On this point, however, there is a conflict of testimony. He had hands employed, who were in charge of the yard, &c., in his absence. When he was dispossessed, he and his family were turned out into the woods, and complainant put into the possession of the premises: and he hired hands, furnished materials, and completed the process of tanning and finishing into leather all the hides in the yard. The appraisers summoned by the sheriff, at the time the writ of unlawful detainer was executed, valued the land and improvements at $1,000, and the personal property, including all the hides in the yard, tools, hire of Duncan’s negro, &c., at $1,000. Other witnesses made a lower estimate of the value of the land and improvements. The profits of such a tan-yard were variously estimated. The witnesses examined- by the master, supposed it would produce, with the number of vats sunk by Mooney, $1,000 worth of leather per annum, at a profit of 25 per cent-., or $250. That the rent would be worth about $100 a year.

This is merely the outlines of the testimony, which is quite voluminous, but a detailed statement of it is not deemed necessary.

1. The defendant submitted to answer the whole bill, and did not, by demurrer, nor in his answer, object to the jurisdiction of the court of equity over any of the matters set up in the bill. Having thus submitted the cause to the cognizance of the court, it was too late for him upon the hearing, and it is too late here, to object to the jurisdiction, unless the court were wholly incompetent to grant the relief which complainant sought by the bill. Ludlow vs. Simonds, 2 Caines’ Cases in Error, 40, 56; Underhill vs. Van Cortlandt, 2 Johns. Ch. Rep. 369; Hawley vs. Cramer, 4 Cow. 727; Grandin vs. Leroy, 2 Paige Ch. Rep. 509. It is better for both parties, after protracted and expensive litigation, that all the matters in controversy between them, connected with the mortgage and embraced by the bill, should be finally settled.

2. It is manifest, from the face of the mortgage, that Mooney was entitled to the possession of the land, improvements thereon, and other property embraced in the deed, with the right to carry on the tanning business, retail leather in the usual course of trade, &c., until the 1st of March, 1848. He bad no other means of discharging the debt, and no other resources seem to have been relied upon by the parties. On the maturity of the mortgage, the complainant had the power of sale, if the defendant was in default.

The complainant had no legal right, therefore, on thé 16th of June, 1847, by the action of unlawful detainer, to dispossess the defendant, as he did, of the premises, and take them into his own possession. The action was premature, as to the real property, and wholly unwarranted as to the personal property. 1 Ala. Rep. 729; 4 Ib. 746, and authorities cited.

If the defendant was guilty of intoxication, inattention to business, and the mortgaged property was suffering damage or waste from his neglect, &e., as alleged, the remedy of the complainant was by application to a court of equity, to place the premises in the hands of a receiver, and he had no right to seek redress by an unwarranted and abusive use of the action at law, to which he resorted. Cooper vs. Davis, 15 Conn. Rep. 556.

Had the complainant come lawfully into the possession of the premises, after the maturity of the mortgage, and default of payment, he would have been accountable for reasonable rents, and would have been allowed the costs of necessary repairs, until foreclosure, &c. 4 Kent. Com. 166. And, doubtless, upon principle, if he had completed the process of tanning and finishing the stock of hides on hand into leather, for the benefit of the defendant, he could have been entitled to reasonable and necessary expenses, incurred, in so doing.

But in this case, the complainant took upon himself the responsibility of unlawfully thrusting the defendant out of the premises, and taking them under his own charge, some eight months and a half before the maturity of the mortgage, thereby depriving the defendant of the privilege of working out the stock by his own labor, and of all other profits which he mighty have dei-ived from the tan-yard. Some of the witnesses supposed the defendant could have made as much as $1,000 a year. Thus the complainant placed himself in the position of a trespasser: of one in possession without any legal right or color of title. Under such circumstances, we know of no principle of law or equity which gives him any just claim to be allowed the expenses which he thought proper to incur, in connection with the position which he had so assumed.

We must hold, therefoi*e, that the court below erroneously allowed him the $727 90, for such expenses, with interest.

3. The court below, also, most clearly erred in taxing the costs of all three of the suits upon the proceeds of the mortgaged property, which was, in effect, charging upon defendant all the expenses of the litigation. Had the complainant prosecuted his action of unlawful detainer to final judgment, it is manifest that he must have failed therein, and been taxed with costs. It is equally clear, that defendant would have succeeded in the action of trespass, or at least, that he had good grounds to bring the action, and might have recovered his costs therein, had he not been enjoined by complainant.

It is, moreover, manifest that complainant was compelled to resort to equity, and filed this bill, mainly, for the purpose of relieving himself from the- embarrassments and responsibilities consequent upon his illegal steps to dispossess the defendant. 'We think, therefore, that he ought, in justice, to be taxed with the costs of all three of the suits.

In all other respects, we think the decree of the court below is correct, and will be affirmed. But so much of the decree as is above held to be erroneous, must be reversed and the cause remanded for further proceedings.

Hon. C. C Scot r, .Judge, absent.


source: Caselaw Access Project

author: Mr. Chief Justice ENGLisi-i

license: Public Domain

text:
    Meadows vs. Rogers.
    It is within the power of the Circuit Court, in the exercise of a sound discretion, to disallow to tho plaintiff any costs which he has caused unreasonably and unnecessarily to be accumulated, and the judgment of tho court below, in the exercise of such discretion, should not be overruled by this court, except in cases of manifest error and abuse of power.
    It is the duty of the clerk of the Circuit Court, to embrace in one subpoena all tho witnesses directed by one party to be summoned. But this rule is not absolutely mandatory — as where the party, after ordering a subpoena for witnesses, ascertains that it is necessary for him to have others summoned.

      Appeal from the Clarlt Circuit Court.

    Hon. ThoMAs TIubbaRD, Circuit Judge.
    FlaNNAGIN, for appellant.
    CuMMiNS, for appellee.
   Mr. Chief Justice ENGLisi-i

delivered the opinion of the Court.

Meadows brought an action of trespass against Rogers in the Clark Circuit Court; and, upon a trial of the cause, obtained verdict and judgment for $15 damages, and for costs. The grounds of the action were, that a flock of the plaintiff’s hogs invaded the defendant’s corn field, and he chased them with his dogs and killed one of them.

The plaintiff subpoenaed ten witnesses, nine of whom were present, and examined. The defendant filed an affidavit, alleging that most of them were summoned to accumulate costs, vex and harrass him, &c., praying the court to allow the plaintiff the costs of but one or two witnesses to each fact, &c. The plaintiff filed a response, verified by bis affidavit, stating wbat he had each witness subpoenaed to prove, &c.

It was admitted, upon the hearing of the motion, that the plaintiff ordered subpoenas at the same time for six witnesses, for whom three subpoenas were issued. That the clerk was not directed to issue ;one or three subpoenas, but that he put the names of the six in. three subjioenas, for the reason that the blanks in the printed subpoenas were not large enough to insert more than two ■names in each. That the subpoenas for the four other witnesses were ordered separately at different times.

The court ordered the clerk to tax in favor of the plaintiff' tho «costs of one subpoena with circular mileage and service, for summoning five o.f the witnesses, subpoenaed and sworn on the part of the pain tiff, and their claim for attendance, and to disallow all costs for other subpoenas sued out by the plaintiff, &c. ’

The plaintiff excepted, took «a bill of exceptions, setting out tho .testimony given by each witness upon the trial, the facts proven -on the hearing of the motion, -&c., and appealed to this court. 'The defendant examined but one witness.

1. Under our statute, the plaintiff in an aetion of trespass, or other action, recovering judgment is entitled to costs, unless the damages recovered fall below the jurisdiction of the court, &c. Digest, chap. 40, sec. 12, 20.

But this means the «reasonable, proper and necessary costs incurred in the prosecution of the cause. It was not the intention of the act, that tho defendant should be taxed with unnecessary ■and vexatious costs. 11}., section 30. It is, beyond doubt, within the power of the court, in the exercise of a sound discretion, to disallow to the plaintiff any costs, which he has caused unreasonably and unnecessarily to be accumulated, and the judgment of the court below, iu the exercise of -such discretion, should not be overruled by this court, except in cases of manifest error and abuse of the power.

The judge, who presided in the trial of this cause, heard all the witnesses examined, saw the manner and extent o.f the examination of each, understood what they severally proved, and was fully advised of the character of the whole case, was more competent to give proper directions about the taxing of the costs than we can possibly be.

2. The 1st section, chapter 171, Digest, directs that a “subpoena shall contain the names of all witnesses for whom a subpoena is required by the same party in the same cause, who reside in one county.”

The fact that the blanks in the clerk’s printed forms were not large enough to contain more than two names, was no valid excuse fo.r the failure to insert the names of all six of the witnesses applied for at the same time by plaintiff, in one subpoena, as directed by law. It wTas the duty of the clerk to write the process or procure printed forms with larger blanks. If the clerk, and not the plaintiff, was at fault in this instance, it is a matter between them, but the defendant is not to be taxed with unnecessary costs on account of their failure to follow the law, without any sufficient ex-cuso.

Nor wras the showing, that plaintiff ordered the subpoenas for the four remaining witnesses at different times, sufficient excuse for issuing a separate subpoena for each. There may have been no necessity or good reason, for ought that appears in the bill of exceptions, for ordering the-subpoenas at different times.

We would not hold that this statute is absolutely mandatory., and to be followed under all circumstances.

It might often happen, -tha-t-a party, after ordering a subpoena for witnesses, might -ascertain 'that it was necessary for him to have others summoned whose materiality was not known to him before. In-such case, the court would hardly refuse to allow him the costs of the additional subpoenas.

We find in the transcript before ns, no evidence of such error or abuse -of discretion on the part of the court below, as to warrant us in reversing its direction in reference to the taxing of the costs in this case. Affirmed.

Mr. ¿Justice Scott, absent.


author: Mr. Chief Justice English

text:
    Cincinnati and Little Rock Slate Co. vs. Bridge & Co.
    It is error to join several garnishees in the same writ of garnishment, without allegations of joint liability or indebtedness. (Thorn & Bolins vs. Woodruff et al, 5 Arle. 55; kforeland et al. vs. Pelham, 2 Png. 338.)

      Writ of Error to Pulaski Circuit Cou/rt.

    Hon. John J. Clendenin, Circuit Judge.
    "W"ÁTKiNS & Gallagher, for the plaintiffs.
   Mr. Chief Justice English

delivered the opinion of the Court.

Bridge & Shepherd sued out of the Pulaski Circuit Court, a writ of garnishment, reciting that they had recovered a judgment in said court, against Dyer, &c. “And, whereas, it is alleged by said plaintiffs, that they have reason to believe, that David Bender, Mrs. Bebecca Graham, and the Cincinnati .and Little Bock Slate Company, have in their hands and possession, goods and chattels, moneys, and credits and effects, belonging to the said Dyer.” The sheriff was, therefore, commanded to summon the said garnishees to appear, &c., “ to answer what goods, chattels, moneys, credits and effects, they may have in their hands or possession, belonging to said Dyer,” &c.

The writ was returned, executed upon the garnishees.

At the return term, the plaintiffs filed separate allegations against each of the garnishees, in the form following: “And the plaintiffs, by attorney come, and show and suggest to the court here, that said garnishee has in her possession and control, divers moneys, &c., and therefore, propounds to said garnishee, the following interrogatories,” &c. Then follow interrogatories.

The garnishees made default, and the plaintiffs took separate judgments against Bender and tlie Slate Company, for the amount of their judgment against Dyer, dismissing as to Mrs. Graham. The Slate Company brought error.

It was error to join the several garnishees in the same writ, without allegations of joint liability or indebtedness, &c., as held in Thorn & Robins vs. Woodruff et al., 5 Ark. Rep. 55; Moreland et al. vs. Pelham, 2 Eng. Rep. 338.

The judgment is reversed, and the cause remanded, &c.

Absent, Mr. Justice Soott.


author: Mr. Justice IIanly

text:
    Cannon et al. vs. The State.
    On the trial of a scire facias on recognizance for appearance in a criminal case, the hail bond and record entry of forfeiture are competent evidence, and sufficient to fix tho hail, if the recognizance he in form, and taken by the proper officer, and the scire facias follows, substantially, tho recognizance.
    To a plea of former recovery to a scire facias on recognizance, the State replied, in substance, that the trial and former recovery pleaded by the defendant, was not a trial and recovery upon the merits, but was only a judgment in bar, rendered upon a question of law, not involving the facts or the merits of the cause: Held, That tho replication was a good response to the matter of the plea.
    A substantial compliance with the statutory form (sec. 61, chcvp. 52, Digest,) in a scire facias on recognizance of bail in criminal cases, sufficient.

      Appeal from, Tell Oiremt Court.

    Hon JohN J. CleNdeNIN, Circuit Judge.
    WalKee & GeeeN, for appellants.
    JoedaN, Attorney General, contra.
   Mr. Justice IIanly

delivered tbe opinion of tbe Court.

Tbis was a proceeding by seire facias, determined in tbe Teli Circuit Court, at tbe- September term, 1855. A scire facias issued from that court,, on tbe 2d day of May, 1855, reciting that,. “Whereas* Richard IL Lewellen, as principal, and John W. Cannon, James M. .Bass, John C. Barrett- and James E. Millard,, as his sureties, on the- 6th day of April, 1854, before John.' C. Herring, sheriff in and for the county of Yell, and State-©f Arkansas, acknowledged themselves to owe and be indebted to tbe State of Arkansas, in the full and just sum of three hundred dollars: that is to say, the said Richard II., in the sum of $300, and the said John W., J. M., J. O. and J. E., in the like sum,, to be levied of-their respective goods and chattels, lands and tenements : to be void upon condition, that the above bounden Richard H, should well and truly make his personal appearance before the Judge of our Circuit Court of Yell county, on the first day of our then next September term, at a court to be holden at the court house, in the town of Danville, on the 4th Monday of September,, then next, then and there to answer the said State of Arkansas, of an indictment preferred against him, for obtaining property under false pretences, and that he should not depart therefrom, without leave of said court; and, whereas, on the said 4th Monday of September, 1854, the said Richard II., wholly failed to kee¡3 the- condition of said recognizance, in this: that, although called, he failed to appear and answer the charges, and not thereafter depart said court without leave thereof, whereby the condition of said recognizance became, and was forfeited, as appears of record, in said court,” with the usual summons appended. This writ of sci. fa. was regularly directed to the sheriff of Yell county, and was duly executed by him, on all the parties named therein, except the said Richard II., the principal recognizor. At the return term, it appears from the transcript, that a nolle jproseqm was entered by the attorney for the State, as to the party not served, Richard II. Two of the defendants,, Bass and Barrett, moved to quash the sei. fa. on the ground of a misjoinder of parties, which was overruled, and the other defendants pleaded: Millard, a plea of former recovery: Cannon, nul tiel record, nul tiel recognizance, and nul tiel forfeiture. Replication to the plea of Millard, averring that the former recovery was not upon an issue to the merits, and averring, that the court, in such judgment, awarded an alias soi. fa. against the party on the recognizance on which this proceeding is had. To this replication, the defendant, Millard, demurred, and joinder therein by the State. The State took issue upon the three pleas of Cannon. The demurrer to the State’s replication to Millard’s plea overruled, and exceptions. The issues upon the pleas of Cannon were tried by the court, and a finding thereon for the State.

On the trial of the issues formed on Cannon’s pleas, the State produced and read, against the objection of the defendant, a. bond in these words:

“We, Richard IT. Lewellen, as principal, and John W. Cannon, J. M. Bass, J. C. Barrett, and James E. Millard, as securities, acknowledge ourselves to owe and be indebted to the State of Arkansas, in the full and just sum of three hundred dollars: that is to say, the said Richard IT., in the sum of three hundred dollars, and the said John W., J. M., J. C. and J. E., in the like sum, to be levied of our goods and chattels, lands and tenements. To be void,” &c. Conditioned, as the law requires, and in the manner recited in the sei. fan as above, which purports to be signed and sealed by the parties, with this endorsement at the bottom thereof, to wit: “Approve of the above securities,” signed by the sheriff of Tell, in his official capacity.

The State furthermore read, against the objection of the defendant, the following entry from the record of the Tell Circuit Court, purporting to have heen entered at the September term, 185é, to wit: “ Comes the State by her attorney, and the defendant, Richard H., being' solemnly called, comes not, but makes default, and the sureties (who are named as above,) also being called, but likewise make default. It is, therefore, considered by the court here, that the said recognizance bond be, and the same is, hereby forfeited, and the State recover,” &c. To the reading of which bond, and entry as above, the defendant excepted, and set them out in his bill.

Judgment final was rendered by the court, upon the finding and ruling of the court, as above, for the State, and against the defendants, for the sum of $300.

The cause was brought to, and is now pending in this court on appeal.

Several points are relied and insisted on by the appellants, for the reversal of the judgment of the court below, to wit:

1st. The finding of the court is not sustained by the proof.

2d. The court erred in permitting, the bail bond and forfeiture to be read as evidence.

3d. The court erred in overruling the demurrer of Millard to the replication of the State, to his plea of former recovery.

éth. That the court erred in refusing to sustain the motion to quash the sci. fa.

"We will proceed to consider and dispose of the points relied on, in the order in which they occur.

1. The only evidence before the court upon the issues to Cannon’s pleas of nul tiel record, nul tiel recognizance and nul tiel forfeiture, were the recognizance bond, and the entry upon the record of the forfeiture of such recognizance. The question is, does that evidence sustain those issues? It is insisted, on the part of the appellants, that there is a variance between the recognizance recited in the sci. fa., and the one produced in proof, in this: that in the said sci. fa., the parties, both principal and sureties, are charged to be jointly bound in the penal sum of $300: whereas, the recognizance itself shows that the principal, Lewellen, is bound in the sum of $300, an,d the securities in the like sum. We have examined this objection, together with the various authorities to which we have been referred, and cannot discover the potency of the objection, or the application of the authorities to the particular case before us. We think the sci. fa. follows, substantially, the recognizance. We, therefore hold, that the proof was sufficient to authorize the finding, if the sci. fa. and recognizance were in due form; and the officer, who took the latter, had the authority under the law to do so.

2. The determination of the first error assigned disposes, virtually, of the second. "We will, therefore, not notice this assignment further.

3. It is insisted, that the replication of the State, to the plea of Millard, is defective, for the reason that it does not contain matter of estoppel, nor does it traverse, or confess and avoid the matters set up in the plea, and we are referred to 1 Chitty's Plead. 648, 650, and 659, in support of this position. There can be no doubt, but that it is a rule of pleading, that the replication must either, first, present matter of estoppel to the plea, or secondly, must traverse, or thirdly, confess and avoid the matter pleaded by the defendant. See 1 Ghit. PI. 648. And, it seems, from the brief of the attorney for the State, in this instance, that this is not controverted. It is insisted, however, on the part of the appellee, that this rule has been observed in reference to the replication we are considering. It cannot be controverted but that the replication at hand, is somewhat inartificially prepared, and is made to partake, to some extent, of the office of a demurrer. But when divested of these artificial defects, we think there is enough of substance left, to show the evident object of the pleader, as well as to inlonn his adversary of that object. The response to the plea, made by the replication, shorn of the redundant matter to which we have alluded, is simply this: that the trial and former recovery pleaded by the defendant, was not a trial and recovery upon the merits, but was only a judgment in bar, rendered upon a cpiestion of law, not involving the facts, or the merits of the cause. This, we apprehend, was a good response to the matter of the plea, the law being in such case, that, “if a former recovery for the same debt, or a plea of set-off on a recognizance of record, be pleaded, the replication was to be nul tiel record/ and to a plea of judgment recovered, the plaintiff might new assign, that his action was for the breach of different promises.” 1 Chit. Pl. 582; Snider vs. Cray, 9 Johns. Rep. 327. But the^ appellee, in liis replication* did net technically new assign, but pleaded by way of confession and avoidance, that the judgment, set up in tbe plea of the defendant, as a bar to. the sei. fa., was not a judgment recovered on the merits; and, in this,, we- think, he was clearly sustained by the authorities and precedents. See 1 Chit. Pl. 198; Knox vs. Waldoborough, 5 Greenl. Rep. 185; Gilmer vs. Rives, 10 Peters Rep. 298; Wilbur vs. Gilman, 21 Pick. Rep.; Hampton vs. Broom, Miles Rep. 241. We are, therefore, of opinion, that the court below did not err in overruling the appellant’s demurrer to the-appellee’s replication.

4. In support of this assignment, the appellants have-referred us to Gray vs. The State, 5 Ark. Rep. 265, and Hicks vs. The State, 3 Ark. Rep. 313. These cases were very good law, at the-time they were respectively determined. We not only recognize, but fully approve of the principles determined in those-cases, and would not hesitate to act upon them, and hold the sei. fa., in this case, bad, were it not for the statute which was passed since the decisions in the above cases were made. It seems, the act to which we refer, was passed with a view of settling, from thenceforward, the difficulty experienced in procuring a form for a soi. fa., which would meet the requirements of the statutory enactments, in respect to recognizances of bail in criminal causes. The 61 st section, of the 53,d chapter of the Digest, under the head of “ CRIMINAL FkooeediNGS,” prescribes a form for soi. fa’s in such cases, and the one pursued in the instance we are considering, is substantially a compliance with that form-.

We have, therefore, to hold that the court below did not err-, in overruling the appellants motion to quash the sei. fa. in this, cause.

This disposes of all the errors assigned, and we, finding no. error in the record, and proceedings in the Tell Circuit Court, in this cause, affirm the judgment thereof, in this behalf rendered, at the cost of the appellants.

Absent, Mir. Justice Scott.


author: Mr. Justice Hanly

text:
    The State vs. Williams et al.
    Where the defendant interposes' a demurrer, -which was argued and submitted, and the-record then states, “that the parties came by their attorneys, and the plaintiff saying nothing' further in reply to the defendant’s demurrer, the court doth render judgment against said plaintiff,” and then follows a final judgment in the cause, this court will hold, that the demurrer was disposed of before final judgment was rendered..
    Where one of several defendants interpose a demurrer, going to the right of the plaintiff to recover and not to the personal discharge of the party pleading, and it is adjudged in his favor, it enures to the benefit of his co-defendants.
    The provision of the statute, that the recognizance of bail, for the appearance of a party, to answer for a criminal offence, shall name the nature'of the offence charged, is sufficiently complied with, by stating that he shall appear and answer the “ State upon a charge of ltilling one Thomas Wheeler: ” which will be construed to mean a felonious killing.

    It is not necessary that a recognizance of bail should recite all the facte, which prove-that the officer, before whom it was acknowledged or executed, had, jurisdiction to act in the particular case, if it is conditioned to do some act, for the doing of which, such an obligation may properly be taken.
    As to the form of a recognizance an0. scire facias thereon, see Ccmnon ei'al vs. The Stats, ante.

    Where the scire facias purports to issue upon a- recognizance taken before one justice-of the peace, and the recognizance given on oyer, appears to have been taken before two justices of the peace, it is a fatal variance — the demurrer presenting the variance being treated as a plea of ml iiel record,.

      Quere: Is a demurrer the proper mode of taking advantage of a variance between a recognizance of bail and the scire facias thereon ?

      Writ of Error to Independence Oireuii Oowrt„
    Hon. Beaufort H. Neely, Ciren.it Judge.
    JoedaN, Attorney General, for plaintiffs.
    ¥m. Byers, contra.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was a soi. fa. on forfeited recognizance, determined at the September term of the Independence Circuit Court.

On the 18th day of September, 1854, a judgment of forfeiture was entered; and on the 1st of November, thereafter, a writ of soi. fa. issued, which was returned, executed on Byers and Bat-tan, and non est as to WilUams.

At the September term, 1855, Byers appeared, and craved oyer of the recognizance mentioned in the soi. fa., which was granted, by filing the original recognizance, which is as follows:

STATE OF ARKANSAS,) County oe Independence, f

We, Norman W. "Williams, as principal, and William Byers and John Y. Rattan, as securities, do hereby acknowledge ourselves to owe and be indebted to the State of Arkansas, in the sum of two thousand dollars, to be made and levied of our respective goods and chattels, lands and tenements, and to the use of the said State rendered; but to be void upon condition, that the said Norman W. Williams, shall well and truly make his personal appearance, before the Judge of the Circuit Court of Independence county, in said State, at the court house thereof, on the first day of the next term of said court, then and there to answer unto said State, upon a charge of killing one Thomas Wheeler, late of the county of Independence, and State of Arkansas, and not depart from said court, without leave thereof, else to remain in full force and virtue.

Given under our hands and seals, at said county, this 11th day of July, 1854.

NORMAN W. WILLIAMS, [seal.]

WM. BYERS, [seal.]

JOHN Y. RATTAN, [leal.]

The above and foregoing l’ecognizance was taken, acknow~ ¡edged, and signed, sealed and entered into before me, on the day of the date thereof.

JESSE SEARCY, J. P.

JOHN L. ERALEY, J. P.

The writ of soi. fa. substantially describes this recognizance, except that it alleges that it was before Jesse Searcy, a justice of the peace, &c., (alone) that the defendants entered into it; and that "Williams should appear on the first Monday in September, A. I). 1854, to answer, &c.

Byers demurred to the recognizance and soi. fa., and assigned as cause:

1. That the soi. fa. and recognizance are wholly defective and insufficient, in this; that the said recognizance required the said Norman W. Williams to appear and answer said “ State upon a charge of hilling one Thomas Wheeler, late of the county of Independence., and State of Arha/nsasf as appears by said recognizance, and said sci. fa.; and, as neither the said recognizance or sci. fa. shows that the said Williams was required to answer any criminal charge — nor do they show that the said Williams was under any legal obligation to appear before said Circuit Court, at the time named in said recognizance and sci. fa.

2. The recognizance is void upon its face, as it does not appear that it was taken by, or before any officer, authorized by law to take recognizance, or that there yas any criminal charge against said Williams, or that such facts existed as to give the persons taking said recognizance authority to take the same.

3. Both said recognizance, and sci. fa. are informal, irregular and void.

The State joined in the demurrer, and the same was submitted to the court, and by the court sustained, and the State saying nothing further, final judgment was given for the defendants.

The defendants insist that the demurrer was correctly sustained :

1st. Upon the ground that there was a substantial variance between tbe recognizance and the soi. fa., in this; that the recognizance given on oyer, appeal’s to have been taken before Jesse Searcy and John L. Fraley, two justices. The soi. fa. purports to issue upon a recognizance taken before Jesse Searcy, J. P.

2d. Because it does not appear by said recognizance, or the record, that said Williams was under any legal cause or liability, to enter into recognizance: as that the said Searcy and Fraley, or either of them had -any authority to take it.

The State brought-error, and assigns asna-uses, the following:

1. The court erred in rendering judgment against the State '■without disposing of the demurrer filed by the defendant, Byers, to the soi. fa. and recognizance.

2. In rendering judgment in favor of the defendant, Battan, without any plea-or defence interposed by him.

3. The-grounds set forth in said demurrer, -a-re insufficient to -sustain the same, and -it should have been o-verruled, and judgment given 'for the plaintiff.

We will consider and dispose of these assignments, in the order ‘in which they are presented.

1. As to this assignment, its determination depends upon the ‘fact, whether its assumption is sustained by the transcript in the cause. By reference to the transcript, we find, under date the 14th September, 1855, the following entry, to wit:

“And, now, on this day came the parties, by their attorneys, and the ‘said plaintiff saying nothing further in reply to said defendants demurrer, the court doth render judgment against said plaintiff. It is therefore, considered,” &c.

This entry,-coupled with the additional fact, that the transcript shows, the demurrer of the defendant, Byers, was filed, argued- and submitted, renders it almost conclusively certain to our minds, that the court 'below did not proceed 'to render judgment final against the State, until after the demurrer had been disposed of, by being sustained. Indeed, we hold the entry, which we have copied, is a virtual disposition of the demurrer, whilst it also ■embodies matter and substance which ’make -it a judgment final ■against the State. It is true, that it is usual, in such cases, for the record to show more than one entry, as for instance: 1. The submission of the demurrer to the court with or without argument. 2. The disposition of such demurrer by the court, including a judgment of respondeat ouster. 3. A final judgment, if the party will not -answer over in pursuance of the preceding-order. "We, therefore, hold that this assignment is not sustained by the transcript in point of law-and fact.

2. It is 'true, that it does not appear from the transcript, that the defendant, liattan, made -any -appearance to the sei. fa. in the court below, and that the court, upon sustaining the demurrer of Byers to the sci. fa., for the causes therein set forth, and the refusal of the State to answer over, proceeded to, and did render judgment final, in favor of both Byers'&nd liattan. This assignment questions the propriety of the judgment of the-oourt below, on this account.

In Gordon vs. The State, use &c., 6 Eng. Rep. 12, it was held by this court-that, where several --are sued upon an obligation, a successful plea by one discharges the other defendants, unless the nature of the plea is of a character going to the personal discharge of the pleader, of which the others could take no advantage, as infancy, bankruptcy, &c. This, we believe, is a universal principle, recognized and -acted upon in the administration of the law in all courts, where the practice of the English common law courts is pursued or adhered to.

"We, therefore, hold that there-is no error in the judgment of the court bel-ow, in respect to this assignment.

3. In considering this assignment, we shall have to recur., necessarily, to the demurrer of the defendant, Byers, to the sei. fa. in this cause, and in doing so, shal-l-consider the causes set down in such demurrer as they appear.

1. It is insisted by the demurrer, -that the sci. fa. and recognizance are 'both defective in this; that the recognizance -required Williams, the principal, to appear and answer “the State upon a charge-of hilling one Thomas Wheeler,” &c~, .averring that tbis statement does not, either in substance or fact, amount to a naming of the “nature of the offence charged” in the purview and meaning of the act in such case made and provided.

In support of this position, we have been referred to several provisions of our statute on the subject, and a number of adjudications of the courts of other States. "We will proceed to consider of those citations, as well as those with which we have been furnished by the Attorney General.

Digest, chap. 52, sec. 57, provides that: “Upon an indictment preferred, or to be preferred, in all criminal and penal prosecutions, recognizances for the appearance of the party charged with an offence, shall be made payable to the State of Arkansas, and may be entered into before the court in which the prosecution is had, or before any judge of any court of record, or justice of the peace, in such sums as may be deemed necessary to secure the appearance of the party, conditioned that he will appear on the first day of the next term of the Circuit Court in which the indictment is preferred, or to be jn’eferred, “ naming the county and State, the time and the place of holding the court, and the nature of the offence charged, and that he will not depart therefrom, without leave of the court.”

There can be no doubt, from the above provision of our statute, that it is necessary the recognizance should state “ the nature of the offence charged,” and it seems that this is in accordance with the decision in The State vs. Smith, 2 Greenl. Rep. 62, and the other cases referred to by the appellees on this branch of the subject. But it is insisted, on the part of the appellant, that this has been substantially done in the case under consideration. It is unquestionably true, we think, that all that is required in this respect, to render a recognizance valid, is, that it should state substantially the charge^which the principal is required to answer; and such seems to be the doctrine held and maintained in The People vs. Blankman, 17 Wend. Rep. 255, in which NelsoN, Chief Justice, in delivering the opinion of the court, said : “It is not necessary to set forth the charge in the warrant, mittimus ox recognizance, with all the particularity or detail required in an indictment. *' * * * * * In the mittimus, it is necessary to allege the particular crime, with convenient certainty, but considerable latitude is allowed in this respect, &c. * * * * Greater certainty in the description of the offence should not be required in a recognizance of bail, than in a warrcmt or rrdtti-mus, &c. * * * “ * * The recital is substantially in the words of the statute, and enough appears in connection to imply the criminal intent.'1'1 The recognizance in this instance requires Williams, the principal, to be and appear, &c., “to answer unto said State upon a charge of killi/ng one Thomas Wheeler,” &c. The construction and interpretation which we give to the word “killing,” used in the recognizance, in the connection in which it is used, is the same as if the recognizance had contained the word “feloniously11 prefixed immediately before the word “Mll-ingfi so as to have made the phrase in which it occurs, read thus: That the said Williams be, and appear, Sc., to ansioer unto the said, State upon a charge of feloniously killing one Thomas Wheeler, &c.; for we hold, the word killing, as used in the recognizance, imports a charge oí felonious killing against Williams ; for the law presumes, and holds, that every killing of a human being (which is nothing more nor less than a homicide) to be a felonious killing, until the contrary appears. See Foster 255; Archb. Cr. Pl. 486; Wharton's Amr. Cr. Law, 359, 360. It was sufficient, therefore, for the recognizance to' recite, as we have held it virtually .does in this instance, that the party, Williams, should appear to answer to the charge of feloniously killing one Thomas Wheeler, without designating whether the felony was rn'ivrder, either in tho first or second degree, or manslaughter in one of the several degrees of that species of homicide, as defined by our law; as it seems, from the 40th section of the 52d chapter of the Digest, it is simply the dirty of a justice of the peace to determine, when he is investigating a criminal charge against any one, whether there is probable ground for believing that an offence has been committed by the person charged; and, if so, to determine whether it is of such grade as to entitle him to bail under the Constitution and Laws, and to fix the amount thereof. He does not determine, in case of homicide, whether the act amounts to any crime below murder in the first degree, and excusable homicide. The fact of his requiring bail of the party, is evidence that he does not consider the crime murder in the first degree, or excusable homicide. The extent and grade of the offence, in practice, is most usually manifested by the amount of bail which is required of the party. "We, therefore, hold that the demurrer should have been overruled upon the first ground.

2. In support of this ground, we have been referred to The State vs. Smith, 2 Greenl. Rep. 62; Bridge vs. Ford, 4 Mass. Rep. 641; State vs. Edwards, 4 Humph. Rep. 226; Com. vs. Daggett, 16 Mass. Rep. 447; Goodwin vs. The Governor, 1 Stew. & Port. 465, and Andres vs. The State, 3 Blachf. 108. We have examined these cases together with the dissentient opinion of Beardsley, Justice, in The People vs. Kane, 4 Denio Rep. 534, et seq., in which the same grounds are taken, as maintained in the above cited causes, and we are inclined to the opinion, as expressed by the court in The People vs. Kane, in which, BroNSON, Chief Justice, ably reviews, and overrules, or repudiates most of the cases cited above, and in the course of which, he said : “ But when the recognizance has a condition to do some act, for the doing of which such an obligation may be properly taken, and the officer, before whom it was acknowledged, had authority, by law, to act in cases in that general description, I think the recognizance is valid, although it does not recite the special circumstances under which it was taken.” And again in the same case, the learned Chief Justice, said : “Of course, these cases” (referring to most of the cases relied on by the appellee in this case) “prove nothing upon the present question. This recognizance was taken by an officer who could let to bail in all bailable cases. And it was a case where bail might by law be taken. * * * * * As the recognizance must be conditioned to do some act, for the doing of which an obligation could properly be taken, it will, to that extent, show the cause of its caption. But it need not recite all the facts, which prove that the officer had jurisdiction to act in the particular case.” The views of BeoNsof, Chief Justice, seem to be more thoroughly sustained by both principle and authority, than those expressed in the cases to which we have been referred by the counsel for the appellees in this cause. We are, therefore, inclined, as we do, to hold with the decision in The People vs. Kane. See, also, to the same purport, Rex vs. The Duchess of Kingston, Cowp. 283; Rex vs. Marks, 3 East 163; Archbold's Cr. Pl. 40, 134, 163, 317; State vs. Wellman, 3 Ham. Ohio Rep. 14; Tyler vs. Greenlaw, 5 Rand. R. 711; McCarty vs. The State, 1 Blackf. 338; Adair vs. The State, Ib. 200; Andres vs. The State, 3 Ib. 108; Long vs. The State, Ib. 344; Fowler vs. The Com., 4 Mon. Rep. 130; Cone vs. Kimberlin, 6 Ib. 434; The People vs. Van Eps, 4 Wend. Rep. 387; The People vs. Stager, 10 Ib. 431; The People vs. Huggins, Ib. 464; The People vs. Gay, Ib. 509; The People vs. Blankman, 17 Ib. 252.

Upon principle, as before remarked, and the preponderance of authority, we hold that it is not necessary, that a recognizance of bail should recite all the facts which prove that the officer, before whom it was acknowledged or executed, had jurisdiction to act in the particular case, if it is conditioned to do some act (as in this case) for the doing of which such an obligation may be properly taken. We, consequently, hold that the demurrer of the defendant, Byers, should have been overruled as to the second ground or cause assigned.

3. We have already determined the formality of the recognizance in this case. The only remaining question to consider under this cause of demurrer is, that part of it which pertains to the form of the sei. fa., and this we have fully considered in another case, Cannon et al. vs. The State, the opinion in which has just been delivered. We hold, therefore, in this, as we held in that ease, that the soi.fa. being strictly in conformity to the form prescribed by the 61 si section of the 52d chapter of the Di~ gest, is all that can be required;..and, consequently, that tbe court should have overruled the demurrer on the ground set out in this ground.

This disposes of the entire grounds covered by the tJwrd error assigned, which we have been considering, holding as we have done, that the court below should have overruled the demurrer of Byers upon all the grounds set out specially therein.

But, as the appellees insist that the demurrer should have been sustained on a cause not specially set out therein, to wit: “Upon the ground that there is a substantial variance between the sei. fa. and recognizance, in this — that the recognizance given on oyer, appears to have been taken before Jesse Searey and John L. Fra-ley, two justices: the sei. fa., purports to issue upon a recognizance taken before “Jesse Searey, J. P." We consider this such a variance as to render the sei. fa. defective, and we will sustain the judgment of the court below for this cause alone, treating the demurrer as performing the office of a plea of rml tiel record. 2 Tidds’ Prac. 1106.

Whether a demurrer is, or is not, the proper plea to be interposed in a case, presenting the facts that this does, has not been considered in this cause, for the reason that it seems to be assumed on the part of the appellees, and not controverted by the counsel for the appellant, that a demurrer in such case answers the same office that a plea of nul tiel record usually does. Hence, we have not, on our own suggestion, considered the question in this aspect.

We will not consider this case as a precedent, in another case where the question is directly presented, whether the points we have been considering can be raised by demurrer.

For the cause above stated, the judgment of the Independence Circuit Court will be affirmed.

Absent, Mr. Justice Scott.


author: Mr. Chief Justice ENGijsh

text:
    Cummins vs. Rapley et al.
    A debtor, having executed a deed of trust for the benefit of his creditors, filed a bill in chancery to enjoin one of the creditors from enforcing his judgment at law, and to coerce his acceptance of the deed of trust, depositing in court the amount then due, according to its provisions, for the payment of the judgment: the creditor refused to receive the money, except as an unconditional payment, or to accept the deed of trust, or to become a beneficiary under it: upon the heaving, the bill was dismissed: Held, That the complainant had a right to withdraw the money so deposited.

      Appeal from Pulaski Circuit Court in Chancery.

    Hon. William Ii. Ficild, Circuit Judge.
    Pike & CuhmiNS, for appellant.
    A deposit in court is an absolute payment pro tanto. The appellant could, but the appellees never could withdraw it. 1 Wencl. 197; 7 J. B. 315; 3 Cow. 338; 5 Mass. Bep. 365; 2 T. B. 645; 1 Saund. Bep. 33 c. n. e. and f; 2 Salk. 397 and notes; 2 Str. 1027; 1 J. B. 202; 1 Bos. dk Bull. 332; 10 Bast 48.
    Courts deal summarily with deposits. 2 Hill N. Y. 538; 3 Dan. Ch. Pr. 2028.
   Mr. Chief Justice ENGijsh

delivered the opinion of the Court.

At the June term of Pulaski Circuit Court, 1851, Cummins filed a petition on the chancery side thereof, stating in substance, as follows:

That on the 28th July, 1848, Charles and Abraham Bapley, filed a bill in said court, against petitioner and others, alleging, among other things, that petitioner, on the 26th April, 1848, had recovered a judgment against them, on the law side of said court, for $989 93, upon a note, &c. That one third of said debt was due and payable, according to tbe tenor of a certain contract and deed <of trust made by them oa the 18th of October, 1848, to secure said debt with others. That they had always been ready to pay the same, according to the terms of said deed, and thereby offered to do so: praying an injunction against the collection of said judgment, and that petitioner should he compelled to receive the same, only according to the terms of said deed, they offering to comply with the terms thereof. That afterwards, when said first instalment of one-third of said debt became payable, according to the terms of said deed, or about that time, the complainants in said bill deposited in said court, with Peay, the clerk thereof, the sum of $3é8 50, being one-third of said debt, and the first instalment thereof, falling due according to the terms of said deed. That afterwards, on the 7th August, 1849, on the final hearing of the cause, complainants proved, as part of the evidence in the cause, the fact of such deposit of said money, and had the benefit thereof upon the hearing, and the further proceedings therein. That petitioner refused to receive said money under said deed, as a constructive admission that he was bound by the terms of said deed, but offered to take the same as an absolute payment on the debt. That upon the hearing, the injunction theretofore granted therein, was dissolved, and the bill dismissed: and on appeal to the Supreme Court, by the complainants in said bill, the decree of the court below was affirmed. See Rapley et al. vs. Cummins et al., 6 Eng. Rep. 689. That after the appeal was taken, Peay, the clerk of the court, permitted said Charles Rapley to withdraw, and use the money so deposited, without any leave ©f the court. Petitioner submits that the court should have ordered, and should still order the money to be paid to him on said judgment; praying a rule upon said Peay and Charles Rapley, to show cause why the money-should not be restored, and paid over to petitioner, on said judgment, with interest, &c.

Peay and Rapley filed a joint response to a rule issued against them, to show cause, &c. They admit that the facts are correctly set forth in the petition. That Abraham and Charles Rap-ley made a deed of trust, to secure their creditors certain debts due by them, and among them, the debt due to Cummins, as-signee, &c. That he refused to accept said trust, and the said Abraham and Charles exhibited their said bill against said Cum-mins, in the Pulaski Circuit Court, to compel him to do so, and with said bill tendered and paid to said Peay, clerk of said court, the said sum of $348 50, &c., but said Cummins refused to receive said sum so tendered and paid, in writing, which writing is exhibited. That Cummins answered the bill; and, on final hearing, it was dismissed; and on appeal to the Supreme Court, the decree was affirmed, &c., and the said Abraham and Charles, finding that they could get no relief in the premises, and their bill being dismissed, they applied to Peay, and withdrew the said sum of money. Respondents insist that Cummins is entitled to no relief in the premises, and pray to be discharged, &e.

The following is the written refusal of Cummins to accept the money, on the terms proposed, &c., referred to in the response:

“Little Roce, Are., Feb. 5th, 1849,

GobdoN N. Peay, Cleric of Pulasld Gireidt Court:

Sir — I am -informed that Mr. Charles Rapley has deposited some money in your hands, in some case or cases, where I am agent for the claimants. My clients have expressly rejected and condemned the deed of trust or assignment made by the Messrs. Rapley, to secure their creditors. I allude to the deed of record in your office, in w'hich Ringo and Trapnall are trastees. My clients claim nothing, and will accept nothing under that deed: nor will they receive any payment which may be construed an implied or express approval of, or claim under that deed. 1 wish you to inform Mr. Rapley of this fact; and furthermore, that unless the money is paid unconditionally, without regard to said deed, no deposit will be recognized or allowed in any way, to stop interest on the debt. My clients are Messrs. Price, Newlen & Co., and Tracy, Irwin & Co.

Tour ob’t serv’t,

E. CUMMINS, AtfyP

On the hearing of the petition, it was argreed by the parties, that the above letter was shown to Kapley about the date thereof, and that he declined to permit the money to be withdrawn by Cummins, on the terms expressed in his letter, but insisted that if the money was taken out, it should be an acquiescence in the deed of trust. That this all occurred in the vacation of the court, and no motion or application ever was made to the court to withdraw the money by any one. That long before the decision of the Supreme Court was delivered, Kapley withdrew the money; Peay, the Clerk, agreeing thereto, upon Kap-ley giving security that the money would be returned whenever the court should order it. The receipt of Peay to Eapley for the money when deposited, dated 17th October, 1848, was read in evidence. Also the decree in the chancery cause.

The court dismissed the petition, at the costs of Cummins, and ho appealed to this court.

The authorities cited by the appellant do not sustain his right to have the money brought again into court, and paid over upon the judgment.

No doubt, where a defendant brings into court, and deposits so much money as he admits to be due the plaintiff, on a demand sued for, it is a payment pro tanto, and he has no right to withdraw it, &c.

But here, the complainants in the chancery suit, deposited with the clerk, in vacation, a sum of money, for a specific purpose, subject to be accepted and withdrawn by Cummins, on the terms and conditions upon which it was deposited. Pie declined so to accept it. On the hearing, the bill was dismissed, and thereby, the object for which the deposit was made by complainants, was defeated.

Cummins refusing to accept the money on the terms proposed, and the court denying the relief sought, we think the Kapleys had a right to withdraw the money.

The judgment of the court below is affirmed.

Absent, Mr. Justice Scott.