text:
    Redmond, as guardian vs. Anderson.
    Where a writ of certiorari has been issued from the Circuit Court to the clerk of the Probate Court; and the transcript, therein ordered to be certified to the Circuit Court, is filed therein, and the Court proceeds in the cause as if the writ had been regularly returned, though the transcript shows no return, this Court will presume, in favor of the regularity of the proceedings in the Court below, that the return has been omitted through neglect of the clerk in making out the transcript.
    In a proceeding by writ of certiorari the Court cannot look beyond the record certified.
    The presumption is in favor, of the regularity of the proceedings of Probate Courts— they being placed upon the footing of Superior Courts, (Borden ei al. vs. State use, etc., 6 Eng. 557); and nothing appearing in the record to the contrary, an order of sale and conveyance of a slave belonging to minors, will be presumed to have been authorized upon a sufficient showing, and for the benefit of the minors.

      Appeal from the Circuit Court of Monroe county.

    The Hon. George W. Beazley, Circuit Judge.
    Watkins & Gallagher and
    Cummins & Garland for the appellant.
    The Circuit Court has jurisdiction by writ of certiorari, (Car-nail vs. Crawford co., 6 Eng. 616; 7 Eng. 84;) though an appeal lay from the judgment of the Probate Court — the petitioners having suffered substantial injustice, and having lost their remedy by appeal without any laches of their own, they being minors. (15 Ark. 49; 1 Salk. 147; 2 Burr. 1040; 8 T. R. 544; 14 m. 35.)
    The Probate Court had no jurisdiction. Moss vs. Sandefur ex., 15 Ark. 351.
    The attempt to procure a confirmation of the sale by the Probate Court, was a fraud on its face; and the Court consenting thereto acted beyond its jurisdiction.

      The act of the guárdian did not affect the wards. 2 Vern. 268.
   Mr. Justice Scott

delivered the opinion of the Court.

Upon a sworn petition of the appellant to the Judge in vacation, a writ of certiorari was ordered in this case, which seems to have been regularly issued by the clerk of the Circuit Court, to the clerk of the Probate Court of Monroe county.

From an endorsement upon the writ, it appears that the sheriff of Monroe county, on the 28th of March, read it to one Edward A. Vance, in his presence and hearing. There is nothing in this inconsistent with the idea that the writ, nevertheless, may have gone into the hands of the clerk of the Probate Court, to whom it was sent, to be returned into the Circuit Court by him, together with the transcript of the record and proceedings therein ordered to be certified into that Circuit Court. The clerk’s return does not, however, appear on the transcript in connection with the writ sent to him. A transcript of the proceedings of the Probate Court, however, that seems to have been contemplated by the writ, does appear to have been after-wards certified by the clerk of the Probate Court as correct, and that transcript, by an endorsement thereon by the clerk of the Circuit Court, seems to have been filed in the latter Court, but by whom it does not appear.

The Circuit Court, however, appears to have proceeded af-terwards, as if the writ of certiorari, ordered by the Judge in vacation, had gone out, and had been regularly returned by the clerk to whom it was directed, and the proceedings of the Probate Court had thereby been removed into the Circuit Court. As there is nothing upon the face of the record to contradict this, we shall presume, in favor of the regularity- of the proceedings of the Circuit Court, that the certified transcript of the proceedings in the Probate Court was in response to the writ of certiorari; and that the formal return of the clerk to that effect, which should have been endorsed upon the writ, has been omitted by neglect of the clerk of the Circuit Court, in the transcript sent up to this Court.

The order of the Probate Court, which is sought to be quashed by this proceeding, is in the following words, as it appears in the transcript of the proceedings of the Probate Court certified into the Circuit Court, in response, as we have above presumed, to the writ of certiorari sent down, to wit:

“ And on this day comes Richmond F. Green, as guardian of the heirs of A. G. Evans, deceased, by his attorney, and presented his statement and petition showing that, heretofore, to wit: on the 9th day of Feb., A. D. 1849, Harriet L. Evans, late Green, did sell and convey to James Anderson, a certain negro man named Joe, for the sum of eight hundred dollars, of which he has paid the sum of four hundred and twenty dollars, leaving a balance due of three hundred and eighty dollars; that said Harriet L. Evans, late Green, has since departed this life, and that the said James Anderson refases to pay over the aforesaid sum of $380, unless, by an order of this Court, the title to said negro Joe is confirmed by the guardian of said heirs of A. G. Evans. Said petitioner, therefore, prays the Court to authorize him, as guardian as aforesaid, to confirm the aforesaid sale and conveyance as above specified. It is, therefore, considered and ordered by the Court that the said R. F. Green, as guardian aforesaid, be, and he is hereby authorized and empowered, as guardian aforesaid, to sell and convey, and pass deed to the said James Anderson for the said negro man Joe.”

In addition to the prder thus copied, the clerk certified that “ there was a petition in writing filed at the time of said application — that the same has been lost, as it cannot now be found in my office after diligent search therefor made,” — and that these proceedings so transcribed, and the petition thus accounted for, constitute the entire proceedings in the premises in the Probate Court.

The Circuit Court, after several continuances of the cause, finally heard it, and affirming the proceedings of the Probate Court, the petitioner below appealed to this Court.

There are several matters set out in the petition for the writ of certiorari, which, although they might attract the ear of the Chancellor, in an application to him for relief upon the ground that the infants in question have been defrauded, can cut no figure in the case before us, on proceeding by certiorari, and, therefore, need not be stated. The case presented to the Circuit Court, and which has been brought here by appeal, presents no point of difficulty. The record of the Probate Court, beyond which the Circuit Court could not look in this proceeding, shows a case within its jurisdiction, under the provision of the 16th section of the statute of “ Guardians and Wards,” (Dig. ch. 80, p. 566), and furnishes satisfactory grounds upon which to presume that it was lawfully exercised. As to presumption in favor of the regularity of these proceedings — Probate Courts are placed upon the footing of Superior Courts by the case of Borden et al. vs. The State, use, etc., (6 Eng. R., p. 551-'2.) And when tested by that standard, the order in question is not to be impeached. The order stands alone, preceded by the petition in writing, and is assailed by nothing brought upon the records of the Probate Court by bill of exceptions or otherwise. Under such circumstances, as the Court had jurisdiction, it is to be presumed that the sale authorized was upon a sufficient showing, and was for the benefit of the minors; and that their rights in the premises were not sacrificed, but guarded and protected —it being the peculiar province of that Court to take care of minors and their property, and hold guardians to strict accountability.

The judgment must, necessarily, therefore, be affirmed, without any regard to the true merits of the case, of which, in this proceeding, and upon the record, we can, of course, have no knowledge.

Absent, the Hon. Thomas B. Hanly.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Chitwood vs. The State.
    If the defendant, in preparing his bill of exceptions on the trial of an indictment for a criminal offence, state that the venue was proved as alleged, instead of stating what the witness testified as to the place where the offence was committed, he must abide by the concession.
    Where the verdict is not without evidence to support it and the Court below refuses to grant a new trial, this Court will not disturb the verdict.

      Appeal from the Circuit Court of Johnson county.

    The Hon. Felix J. Batson, Circuit Judge.
   Mr. Chief Justice English

delivered the opinion of the Court.

Russell B. Chitwood was indicted in the Johnson Circuit Court for an assault and battery upon John Armstrong] tried by a jury upon the general issue; verdict of guilty, and fined $10. He moved for a new trial on the grounds that the verdict was contrary to law and evidence; the Court overruled the motion, and he excepted and appealed.

The bill of exceptions taken by the appellant is as follows:

“ Be it remembered that on the trial of this cause, the State, to sustain the issue on her part, introduced John Armstrong, the party charged to have been assaulted, etc., who, being sworn, by his testimony established the time, venue and manner of the parties as charged; and who testified that he, in company with another person, had gone to a school house, where the defendant was, in search of ,a man named Reagan. That he had his gun with him when he went into the house, where the defendant and others were engaged in singing. That, when they stopped singing, he spoke to defendant and told him he had understood that defendant had threatened to whip his brother, and that if he should attempt to do it, he would have some older person to whip first, he, the witness, at the time holding his gun in his hand. Defendant replied by telling him to leave the house, and then rose to his feet. Witness refused to leave until he got ready, when the defendant caught the gun in one hand and with the other pushed witness back, and they both fell together over a bench, and were separated by the persons present. That witness made no attempt to inflict any injury on the person of said defendant before the defendant caught the gun. Witness did not recollect whether he pointed or drew the gun upon defendant or not. That if he presented the gun before defendant caught it, it was unintentionally done.

“ The State then called two other witnesses, who testified that they were present- at said difficulty. That defendant, themselves and others were present at said school house engaged in -singing when said Armstrong came there. That Armstrong came into the house, and set his gun down by the door, and walked back and forth across the floor until the singing ceased, when he stepped to his gun, picked it up, walked up in front of the defendant and accosted him as stated by said Armstrong. That defendant then told Armstrong to leave the house, and rose to his feet. Whereupon Armstrong threw his gun over in the position of a present; when defendant seized the gun in one hand, and with the other pushed Armstrong back, when they both fell over a bench, and were parted by the by-standers. That defendant made no attempt to strike or use violence upon Armstrong, until after he had drawn his gun as above stated. This was all the testimony in the cause,” etc.

The refusal of the Court below to grant a new trial is the only matter assigned for error.

The counsel for appellant insists that the venue was not proven. But the bill of exceptions expressly states that the State established the venue, etc., as charged, by the witness Armstrong. The counsel, however, submits that the bill of exceptions states a legal conclusion instead of the facts sworn to by the witness. If there be any force in this objection, it comes badly from the appellant. It is the-usual practice for the party who reserves a point, to prepare and tender the bill of exceptions for the signature of the Judge, who signs it, if it contains a correct statement of the facts, etc. It appears from the face of the bill of exceptions in this case, that it was prepared and tendered to the Judge by the appellant. If he thought proper to make it state that the venue was proven as charged, instead of stating what the witness testified as to the place where the offence was committed, it was a concession in favor of the State which he must abide by.'

It is, moreover, insisted by the counsel for appellant, that the verdict was not warranted by the evidence as to the assault and battery, etc.

If the jury believed the witness Armstrong, their verdict was not without evidence to sustain it. They might have found, upon the testimony of the other two witnesses, that appellant acted in self defence. It was clearly a case turning upon the weight of the evidence, and it was their peculiar province to judge of this. They having found the defendant guilty, upon all the testimony before them, and the presiding Judge, who likewise heard the evidence, having refused to grant a new trial, we shall not disturb the verdict.

The judgment is affirmed.

Absent, Hon. Thomas B. Hanly.


text:
    Jones vs. McLean, surv. et al.
    The rate of interest that a commission merchant may charge is regulated by legislative enactment, and not by the custom of merchants.
    The charge of a commission merchant for accepting a draft is but a legal compensa-, tion for the benefit of his name and credit and in consideration of his risk, and is not regarded as interest: But a charge for paying such draft at maturity is regarded as interest on the money advanced; and if the commission and interest together exceed the legal rate of interest, it will be deemed usurious.
    A mortgage or deed of trust, executed in this State to secure a usurious demand, would be null and void, and a Court of chancery would not entertain a bill to foreclose, against the plea of usury; but where the defendant by his answer does not insist that such mortgage, etc., be declared void for usury, but merely that it be opened and the transaction cleansed of the usurious charges, the Court should open the mortgage; cause the account between the parties to be re-stated, purging it of usury; and render a decree for such amount as is legally and equitably due.

      Appeal from the Circuit Court of Lafayette county in chancery.

    The Hon. Shelton Watson, Circuit Judge.
    Watkins & Cumian, and. Gallagher, for the appellant.
    Pike & Cummins, for the appellees.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was a bill to foreclose several mortgages, determined in the Lafayette Circuit Court.

The bill was originally filed in the names of James Dick, Harry R. W. Hill and Wm. J. McLean, as surviving partners of the firm of N. &. J. Dick & Co., against Isaac N. Jones, Jason C. Wilson and others. After the bill was filed, the death of James Dick was suggested, and the cause ordered to progress in the names of the surviving complainants. After this, Hill departed this life, and bis executors, John M. Bass and John Memfield, were made parties.

The original complainants were the successors and survivors of the firms of N. & J. Dick & Co., Dick & Hill, Hill, McLean & Co., and W. & J. Dick & Co., a commission house of New Orleans. The defendant Jones was a planter of Lafayette county, Arkansas.

The case made for the complainants is substantially as follows:

Jones commenced doing business with the house of complainants at New Orleans as far back as the year 1835, and continued to do business with it, up to and after the time of filing the bill in September, 1848. He shipped his cotton to the house, drew drafts, etc., upon it, and received supplies for his plantation from it.

There was a branch of the same house at Nashville, Tennessee, conducted under the style of H. R. W. Hill & Co., with which Jones had dealings before and after he commenced business with the New Orleans house. His dealings with the Nashville house were confined mostly to its making advances to him, by accepting or discounting his drafts, etc.

On the 28th January, 1837, his account with the Nashville house was closed to that date, and on crediting him with a draft for $29,014 73, drawn by him on that day upon the New Orleans house, there was a balance in his favor of $21,477 57, which balance the Nashville house transferred to his credit on the books of the New Orleans house.

It does not appear that he had any settlement with N. & J. Dick & Co-., the New Orleans house, from the time he commenced doing business with them until May, 1839, though it is more than probable, from the pleadings and evidence in the cause, that accounts current were made out and transmitted to him annually, showing the balances against him, etc.

About the 1st day of May 1839, James H. Wilson, an agent of the house, came to Arkansas, for the purpose of making a settlement with Jones, and securing the balance due from him, etc. At which time it seems the balance against him, upon an account as stated by the House, was $48,589 95. Upon this amiount, Wilson, in making a settlement with Jones, allowed him an absolute credit for $6,181 19, on account of notes, drafts, etc., turned over by him to Wilson for the benefit of the house, thereby reducing his indebtedness to $42,408 76. For $5,000 of this amount, Jones executed his bond with one Giles as security. To secure the payment of this bond and $37,408 76, balance due upon the account stated, Jones also executed to the firm a mortgage upon his plantation (improved public lands) in Lafayette county, and forty-one slaves employed in the cultivation thereof, conditioned in the following words, etc:

“ But this obligation is upon the express condition that if I, the said Isaac N. Jones, shall pay or cause to be paid to said James Dick, etc., etc., surviving partners of the firm of N. & J. Dick & Co., the sum of $37,408 76, the amount with and by which I stand indebted to the said firm, etc., upon an account stated between myself and said firm on the 1st of May, 1839, for divers goods, wares and merchandize before that time sold and delivered to me at my request: and for divers moneys laid out and expended for me, and in and about my business at my like request: and for divers sums of money loaned me and at my like request, all before said day: and also pay or cause to be paid to said James Dick, etc., etc., the further sum of $5,000, with interest on the first mentioned sum at the rate of eight per cent, per annum from the 1st of May, 1839, and interest on the last mentioned sum at the rate of ten per cent per annum, then this obligation, and also a note of hand commonly called a written obligation bearing even date herewith, given by myself and a certain James Giles to the said firm of N. &. J. Dick & Co., for the said sum of $5,000 last mentioned to be paid one day after the date thereof, with interest from the said 1st of May, and also said account stated, shall all be void and of no effect, etc.

The mortgage is not dated but it appears to have been executed on the 24th of May, 1839, the day on which the settlement between Wilson and Jones seems to have been finally made.

On the 14th January, 1840, Jones executed another mortgage upon additional slaves, to secure the same debts, as follows:

Know all men, etc., that I, Isaac N. Jones, of, etc., for and in consideration of my indebtedness to N. & J. Dick & Co., of New Orleans, upon an account stated between us, on the 24th day of May, 1839, and note of same date for $5,000, due one day after date, for securing which I executed a mortgage of that date upon sundry slaves, etc., etc., do hereby give, grant, sell and convey to the said N. & J. Dick & Co., etc., the following named slaves [here the names of eighteen negroes are stated,] to have and to hold, etc., etc. Provided, nevertheless, if I, the said Isaac N. Jones, etc., shall pay to he said N. & J. Dick & Co., the amount specified in said account stated, and also the sum of $5,000, with eight per cent, interest upon said account stated, and ten per cent, per annum interest upon said' sum of $5,000, then this obligation, said account stated, and also a writing obligatory, dated said 24th of May, signed by me and a certain James Giles, and payable to the said N. & J. Dick & Co., for $5,000, to be void.”

On the 12th day of March, 1841, Jones executed a deed of trust to Jason C. Wilson, reciting that he was indebted to the surviving partners, etc., of the firm of N. & J. Dick & Co., in the sum of $42,408 76, secured to be paid by the above mortgages, reciting them, and that a large portion of said debt remained unpaid, which he was desirous of paying out of the produce of the plantation, etc.: and conveying to Wilson the mortgaged property, and the horses, cattle, etc., etc., on the place, in trust to carry on the plantation, sell the crops and pay off said debt, only reserving enough every year to supply the place, and support Jones’ family. This trust not to interfere with the mortgages, or the right of the survivors, etc., of N. & J. Dick & Co., to enforce the mortgages and collect their debt, etc.

On the 22d February, 1843, Jones, having perhaps procured titles to the lands embraced in the first mortgage and in the deed of trust to Wilson, executed another deed to Wilson, conveying to him the lands, by their numbers, on the same trusts and conditions, as in the original trust deed to Wilson;

Tbe above deeds were all executed and recorded in Lafayette county, where Jones resided, and the property was situated.

The bill was filed on the 18th of Sept., 1848, setting out and exhibiting the mortgages and deeds of trust, and praying foreclosure and sale of the property for the payment of the balance due upon the debts.

Complainants also exhibited with the bill accounts current, numbered from 1 to 14, showing the state of Jones’ accounts with the House as conducted by the several firms successively from the year 1835 to the date of the first mortgage, and after, to the time of filing the bill, and showing the balance claimed to be due from Jones, etc.

Jones. admits, in his answer, the execution of the several deeds, etc., exhibited with the bill. He also admits that he was largely indebted to the firm of N. & J. Dick & Co., at the date of the first mortgage, but denies his indebtedness to have been as large as therein stated. On the contrary, he avers that when the mortgage was given, no settlement was made, and the actual amount due from him to the house was not ascertained: but a sum large enough to cover the amount was inserted in the mortgage, and the whole matter was to remain open subject to future adjustment. He then proceeds to allege and specifiy various errors, mistakes, omissions' of crtedits, improper charges, and charges for excessive and usurious interest in the several accounts current prior to the mortgage, exhibited with the bill; which errors, etc., etc., having been embraced in the amount of debt covered by the mortgage, he prays that the mortgages may be opened, and the accounts re-stated, etc.

The cause was finally heard upon the pleadings and evidence at the May term, 1853; and the Court holding that the mortgages were not successfully impeached on account of any of the matters alleged in the answer of Jones, refused to open them: but ordered the master to take and state an account of payments made by Jones upon the mortgage debts, etc., and to ascertain the balance due, etc.

The master, after allowing Jones credits claimed by him on account of proceeds of cotton, etc., shipped by him to complainants after the date of the first mortgage, less the value of supplies furnished him by complainants,reported abalance against him of $18,790 56, as of 2d Nov., 1853, at which time a final decree was rendered against him for that amount, the mortgages foreclosed, and the property ordered to be sold to satisfy the decree, etc.

From this decree both parties appealed to this Court.

The grounds upon which complainants appealed are noturged by their counsel here, and their appeal may be disposed of by a general remark, that there is no error in the decree of which they have any just cause to complain.

There seems to be no serious dispute between the parties as to the amounts with which Jones was-charged for supplies and credited by proceeds of cotton, etc., etc., subsequent to the first mortgage, by the master’s report, and the decree of the Court below.

The controversy here relates to the accounts current exhibited with the bill, which produced the balance against Jones, for which the first mortgage was executed.

1. The statement in Jones’ answer, that when the first mort-< gage was given no settlement was made, and the actual amount due from him not ascertained, but a sum inserted large enough to cover the amount: and that the whole matter was to remain opén subject to future adjustment's contradicted bythe deposition of James H. Wilson, the agent of the house of N. & J. Dick & Co., who made the settlement, and took the mortgage. It is also at variance with the recitals contained in the first as well as the second mortgage, and the deed of trust to Jason C. Wilson. Nor is there any intimation that such was the understanding of Jones in any of the letters read upon the hearing addressed by him to a member of the firm in reference to his indebtedness to the house after the execution of the first mortgage. It.is more than probable, as above remarked, from all the facts of the case, that accounts current had been annually transmitted to him by the house, showing the state of his indebtedness, etc., and that he made the settlement with James H. Wilson, and executed the first mortgage, upon an account stated to that time. Such is our conclusion, at least, upon the pleadings and evidence relating to this point, whatever may have been the truth of the matter. And this conclusion disposes of most of the objections made by Jones to the accounts.

2. There is one serious objection, hovvever, made to the accounts by Jones, which is not thus disposed of: that is, that upon the face of the accounts, it appears that he was charged with usurious interest, which was carried into the mortgage.

At the foot of the debit side of his account with the Nashville House, closing 28th Janury, 1837, there is a charge of “ interest in eur favor to date, $126 10,” but upon what item in the account it is charged, or at what rate, does not appear on the face of the account.

Upon the face of his accounts current with the New Orleans House, it plainly appears that he was charged with ten per cent. interest upon various items and the sanie rate of interest upon the annual balances against him, etc. He was also charged with two and a half per cent, commissions for accepting drafts drawn by him upon the house: the same per cent, for advancing money to pay them at maturity, and ten per cent, interest upon the commissions and sums so advanced.

It appears from depositions read at the hearing on the part of complainants, that, during the period of time covered by those accounts, it was the custom in New Orleans for commission merchants to charge planters two and a half per cent, commissions for accepting drafts drawn in anticipation of their crops, a like per cent, for advancing money to meet them at maturity, and ten per cent, interest, etc.

The rate of interest, however, is regulated by legislative enactments, and not by custom. We must therefore look to the statutes of Louisiana, where the accounts in question were contracted and to be paid, to determine what rate of interest was legally chargeable upon them. By agreement of the parties, these statutes are to be regarded as proven and in evidence.

From the civil code: “ Art. 2,895. Interest is either legal or conventional. Legal interest is fixed at the following rates, to wit: At five per cent, on all sums which are the subject of judicial demand,' whence this is called judicial interest; and on sums discounted by Banks, at the rate established by their charters.

“ The amount of the conventional interest cannot exceed ten per cent- The same must be fixed in writing; and testimonial proof is not admitted in any case.

“Art. 1,934. Interest upon interest cannot be recovered, unless it be added to the principal, and by another contract made a new debt. No stipulation to that effect in the original contract is valid.”

These statutes seem to have been in force in Louisiana from the time of the commencement of the accounts current in question, until after the date of the first mortgage. We shall look to the decisions of the Supreme Court of that State for the interpretation which they have received there.

It is manifest that the charge of interest at the rate of ten per cent, in the several accounts was excessive and usurious, being double the rate allowed by the statute.

It has been held by the Supreme Court of Louisiana, that the charge by a commission merchant of two and a half per cent, for accepting a planter’s draft is but a legal compensation for the benefit of the name and credit of the acceptor in the negotiation of the draft, and a consideration for the risk incurred by the acceptance: and such commission is not to be regarded as interest.

It is not usurious, therefore, for the merchant to charge two and a half per cent, for accepting the draft; and the highest legal rate of interest (or by agreement in writing, the highest conventional rate) upon money advanced by him to pay the draft at maturity. Lalande vs. Breaux, 5 La. Ann. Rep. 506.

“ But,” say the Court in the same case, “ in our opinion, the charge of two and a half per cent, commission for advancing, together'with eight per cent, interest from the date of the advance, stands upon a very different footing. Names do not alter the substance of things. To agree with a party that you will make an advance of money to him, (or to his creditor holding his draft, accepted by you for his accommodation in consideration of a commission of two and a half per cent, and which draft he has failed to pay,) and that he shall restore, first, the money with eight per cent, interest from the date of the advance, and besides, a commission of two and a half per cent, for advancing, is virtually and substantially to agree to lend him money at an interest of ten and one-half per cent. But this the law forbids: having fixed eight per cent, as the highest rate which can be lawfully stipulated. (By act of 1844, con vention interest was limited to eight per cent.) It must be observed that this charge of two and one-half per cent, for advancing, cannot be referred to the trouble or labor of the plaintiff in conducting the planter’s business,” etc.

The case, from which we have quoted, was between a sugar planter and his factor, and is similar, in many respects, to the one now before us. The planter was charged two and a half per cent, for advancing, and eight per cent, interest, which he secured by mortgage. The charge for advancing was held usurious. See, also, to the same point, Patterson vs. Leake, 5 La. An. R. 547.

In this case, Jones was charged two and one-half per cent, for advancing, and ten per cent, interest upon the sums advanced, which, according to the decisions referred to, was equivalent to twelve and a half per cent, interest; and this excessive and usurious interest, was carried into the sum secured by the mortgage.

Ten per cent, was the highest rate of conventional interest allowed by the law of Louisiana where the accounts were contracted, or by the statute of our State where the mortgage was executed. If, by the execution of the mortgage,- Jones could have ratified interest charged at the highest conventional rate upon the accounts, as insisted by the counsel for complainants, it can hardly be pretended that he could, or did ratify and make legal, interest charged at twelve and a half per cent.

The mortgages and deeds of trust having been executed in this State to secure a usurious demand, by our law they would be null and void, and the Court of chancery would not entertain complainants’ bill to foreclose and enforce them against the plea of usury. Ruddell et al. vs. Ambler, present term.

But Jones, in his answer, does not insist that the mortgages, etc., shall be declared void for the usury, and the complainants turned out of Court without any relief, but merely insists that the mortgages, etc., shall be opened, and the accounts cleansed of the usurious charges, restated, etc. This the Court below should have done, and so much of its decree as refuses to do this, must be reversed.

With a view to the rendering of such decree here as the Court below should have made, we have appointed J;he Clerk of this Court to act as Master in chancery with directions to purge the accounts 'of usury, restate them, and report the balance due complainants, allowing them legal interest according to the laws of Louisiana, only to the date of the first mortgage.

From his report, which we find to be correct, it appears that the balance due from Jones on the 1st of May, 1839, was $43,-148 68, instead of $48,589 95. From this balance deduct the absolute credits allowed by Wilson, $6,181 19, and the remainder is $36,967 49, instead of $42,408 76, the amount recited in the first mortgage. Regarding the bond for $5,000 as extinguished by this reduction, the master, under our directions, has treated the $36,967 49, as the true amount of debt secured by the mortgages, and allowed complainants interest thereon from the 1st of May, 1839, at the rate of eight per cent, per annum, this being the rate which Jones agreed by the terms of the mortgages to pay upon the amount due upon the account stated; After allowing Jones credit for all payments made by him after the date of the first mortgage by proceeds of cotton, etc,., less the value of supplies furnished him by complainants, it appears that the balance against him on the 2d of Nov., 1853, the date of the final decree in the Court below was $4,330 84,' which is' the amount that should have been decreed to the complainants.

A decree will accordingly be entered here in favor of McLean and others for that sum, as of the 2d of November, 1853, to bear interest from that time forward, at eight per cent, per annum until paid. The mortgages and deeds of trust will also be regarded as securities for this balance, and foreclosed with an order of sale, etc.

The decree rendered here will be certified to the Court below with instructions to enter it at its first term, etc., and appoint a commissioner to carry it into execution, and if the decree is not .satisfied by Jones, by payment of the debt, interest, etc., within thirty days of the next ensuing term of the Court, the property embraced in the mortgages and deeds of trust, or a sufficient amount thereof for the purpose, must be sold by the commissioner, after the usual notice, on the first day of said term of said court, etc., to satisfy the decree, etc.

Absent, Hon. Thos. B. Hanly.


text:
    Underhill et al. Adm’rs vs. Allen.
    A bill for the specific performance of a contract for the sale of land, where the contract is not alleged to be in writing, .must show a part performance — the allegation of the payment of the purchase money is not sufficient to take the case out of the statute of frauds.

      Appeal from the Circuit Court of Crittenden county in Chancery.

    The Hon. George W. Beazley, Circuit Judge.
    Cummins & Garland, for the appellants.
    That the payment of the purchase money is not sufficient to take the case out of the statute of frauds, referred to Lister vs. Foxcroft, 1 White & Tutor’s Eq. Cases 507, and the authorities there cited.

   Mr. Chief Justice English

delivered the opinion of the Court.

This was a bill for specific performance, brought by Wm. D. Allen, in the Crittenden Circuit Court, against the administrators of George W. Underhill.

The bill alleges that on the 21st of December, 1853, complainant purchased of George W. Underhill, through one John Martin, the agent of said Underhill, the $. \ of the S. E. £ of Sec. 33, T. 6 N., R. 4 E., situate in the county of Crittenden-That at the time he purchased said land, complainant paid to Martin, as such agent, the purchase money therefor, being $100. That Underhill had entered the land with swamp land scrip, and it was understood and agreed by and between complainant and said Underhill that the said Underhill should make to complainant a deed for the land, or should-transfer to him his certificate of entry for the same. That Underhill, afterwards, and before making complainant a deed for the land, or transferring to him the certificate of purchase and entry thereof, departed this life intestate; and that letters of administration upon his estate had been granted to his widow, Amia L. Underhill, and John L. Barnard, etc. That Underhill, at his death, left him surviving his said widow, and three children, George W., Frank and Virginia, his sole heirs at law, who were infants and without guardians.

The administratrix and administrator of Underhill are made defendants. Prayer for specific performance of the contract, and that they be compelled by decree to convey the land to complainant, and for general relief, etc.

The defendants demurred to the bill generally for want of equity; the Court overruled the demurrer, and the defendants declining to answer over, a decree was rendered against them, in accordance with the prayer of the bill, that they convey the land to complainant by deed in due form, etc., or assign to him in legal form the certificate of entry, etc.

Defendants appealed from the decree to this Court.

The bill being against the administrators of Underhill only, and not making his heirs parties, was perhaps filed under the provisions of sec. 166-7-8, ch. 4, Dig. p. 140, but it is, nevertheless, in the nature of a bill for specific performance of a contract for the sale of land.-

The bill neither alleges nor exhibits any contract in writing between Underhill, or his agent and complainant, for the sale and conveyance of the land: nor does it aver any such part performance as will take the case out of the statute of frauds. It alleges no part performance of the contract whatever but the payment of the purchase money, which is not sufficient to take the case out of the statute. Keatts vs. Rector. 1 Ark. 421. 2 Story's Eq. sec. 760-1. Adam's Eq. Marg. p. 86, note 1, top p. 263. Hatcher et al. vs. Hatcher et al., 1 McMullen's Eq. R. 317 Smith vs. Smith, 1 Rich. Eq. R. 131. Jackson vs. Cutright, 5 Munf. 308. Johnson vs. Glancey et al., 4 Blackf. 94. Had the bill alleged that the contract was in writing, or that complainant took possession of the land under and by virtue of his purchase, etc., the defendants would have been put upon plea or answer to the bill, etc. See authorities cited above.

The Court erred in overruling the demurrer to the bill, and for this cause the decree must be reversed, and the cause remanded with instructions to the Court below to sustain the demurrer, and permit the complainant to amend his bill if he desires to do so, otherwise to dismiss it for want of equity.

Absent, the Hon. Thomas B. Hanly.


author: Mr. Justice Scott

text:
    Moore et al. vs. Maxwell et al.
    Though the soldier was restricted in the sale of his bounty land, granted by act of Congress of the 6th May, 1812, until the patent had issued; yet no such restriction being imposed by the act of 22d May, 1826, nor those of 23d March, 1830 and 27th May, 1840, reviving and extending the benefits of the act of 1826, he had a perfect right, under our laws and usages, to sell at any time his light to re-locate, where he had relinquished the land originally located and surrendered the patent, as provided by the act of 1826.
    It would be irregular t® make a location of a claim to public land, after the death of the person entitled, under a power of attorney granted by him, unless such power were coupled with an interest.
    Parties and persons interested are competent witnesses in respect to the facts and circumstances necessary to lay a foundation for secondary evidence of a writing — as
    , that a search has been made for it, and it cannot be found; and where no suspicion hangs over the instrument, or that it is designedly withheld, all that ought to be required is reasonable diligence to obtain the original.
    An administrator is a competent witness to prove the existence, loss and contents of a bond for title, given by his intestate, for an interest in land sold by him in his life time; though the administrator has, in pursuance of law, executed a deed, with warranty, to the purchaser, in accordance with the bond.
    A party, who sells, for a valuable consideration, land for which no patent has been issued by the Government, giving his bond for title, holds the legal title, upon the issuance of the patent, as trustee for his vendee; and upon his death his heirs would hold it charged with the same trust; and so an act of the Legislature merely authorizing the administrator of the vendor in such case to execute a conveyance of the legal title to the purchaser, as provided in the bond for title, is not liable to the objection of unconstitutionality.
    This Court will not reverse a judgment in favor of the defendants below, where the case, as established by the testimony and the law, clearly shows that the plaintiffs were not entitled to recover to any extent, and the defendants have shown legal title sufficient on their part to defeat the action altogether, no matter what error may have been committed by the Court below.

      Appeal from the Circuit Court of White county.

    The Hon. Beaufort H. Neely, Circuit Judge 1

      Fowler for the appellants.
    Watkins & Gallagher and
    Wm. Byers for the appellees.
    It is true that the military bounty act of 1812, contained a prohibition against any sale or assignment by the soldier of his bounty, until after the issuance of the patent, and declared all such assignments void. But on the 22d May, 1826, an act of Congress was passed, authorizing the soldier to surrender and re-convey to the United States the bounty tract which had been patented to him, and to locate in lieu of it a like quantity of the public land within the military district, on proof to the satisfaction of the proper Register and Receiver that the tract originally patented to him was unfit for cultivation, and that his right to it had not been divested or incumbered by sale or otherwise; and in order to entitle himself to the benefits of the act, the soldier must have removed to the Territory of Arkansas, with a view to actual settlement on the land drawn by him. This act was revived and extended by various acts, until the act of the 27th of May, 1840, which revived and extended it for five years from that date. Such rights to locate were called “ floats,” and as proved in this case, and indeed a part of the public history of the country, were the common subject of sale and transfer. Neither the act of 1826, nor any of the subsequent acts extending it, contained any restriction whatever against alienation, and no presumption ought to be indulged in favor of a restraint on alienation, when no conceivable reason continued to exist, which might be supposed to have influenced the prohibition in the first instance. The soldier had become a settler, fully cognizant of all his rights, receiving his certificate of a floating right, not as a mere gratuity, but upon consideration of re-conveying to the Government the land originally patented to him. At the time McVey sold his right of float to Wm. Pelham, the act of 1830, authorizing such floats, was in force. If it was a power coupled with an interest, it did not cease after McVey’s death. But if it was a mere naked power, it did cease, and the location, etc., was void, and the plaintiffs, as heirs of McVey, cannot claim under it.
    This restriction against assignment in the bounty act of 1812, is not included within the terms, spirit or policy of the acts of 1826, 1830 and 1840, allowing floats. Here, the sale was not of the land drawn by the soldier, but of his floating right, a mere chose in action, (Mulhollan vs. Thompson, 13 Ark. 232); and after all the purposes of the act of 1812 had been accomplished. McVey, in receiving pay for the sale of his float, would be guilty of an immoral and fraudulent act, to attempt to repudiate it. Besides, according to the whole theory of our Government, laws restricting alienation are to be strictly construed, and not extended without an express intention appears. It is inconsistent" with the nature of property, if the individual owning property, or a right to property, has not the power to alienate it. 4 Kent Com. 479.
    The fact of the existence of the bond for title executed by McVey to Pelham is undeniable; was its loss sufficiently proven? Ordinarily, and when the case is free from suspicion, as in the present instance, the loss of a paper is sufficiently proved by the oath of the party interested in its preservation or production. See 1 Greenleaf’s Ev., sec. 349, and cases there cited.
    For the purpose of proving the loss of the bond, the deposition of Golden is admissible of course, and without any tenable objection to his competency on the score of interest. The loss of such a paper, after the lapse of so many years, and after it had fulfilled its office, and ceased to be of value to any one, might well be presumed.
    Where a bond has been surrendered to the obligor, the presumption is, that it has been destroyed, and parol evidence of its contents is admissible. Whitmore vs. Moore, 9 Dana 315; Bouldin vs. Massie, 7 Wheat. 122. In regard to the proof of the loss of an instrument, there is a distinction between such papers as have ceased to be of any value, or any evidence of title, and such as are muniments of title. As to the former, the slightest proof of loss is sufficient to entitle the party to give parol evidence of their contents; but as to latter, the rule is more strict. Jackson vs. Root, 18 John. Rep. 60. Nor does the strict rule ever apply where the loss was not occasioned by the fault or neglect of the party claiming a benefit under the lost paper, and who was entitled to the custody of it-. Even if Pelham, though not entitled to the custody of the bond after it had been fulfilled by the execution of the deed, had retained it, the case might be different. But here, the administrator and heirs of McVey, being in privity with him, the case stands precisely as if McVey had executed the deed, and taken up his bond for title, and failed to produce it at the instance, and for the protection of his vendee. Under such circumstances, suspicion, if there was any ground for it at all, would attach to him and not to Pelham. See Rcnnor vs. Bank of Columbia, 9 Wheal. 597.
    Where one is in possession of an instrument, under which he claims a benefit,- and to the custody of which he is entitled, and it is lost or destroyed, he is permitted to prove its contents, with reasonable certainty, by the next best evidence in his pQwer. Where no circumstances of suspicion appear, no great degree of strictness is, or ought to be, required, in establishing the lost paper. If, on the contrary, there are circumstances of suspicion, (and they are ever varying in their combinations,) the secondary evidence would be received with caution and weighed with jealousy. On the other hand, where a party is in possession of an instrument, under which, as against him, another claims a benefit, and the instrument is lost or destroyed, only slight evidence is required, of the contents of the lost instrument, from the person entitled to a benefit under it. and who is no wise responsible for its loss. Under some circumstances, every intendment would be against the party alleging the loss, and thus refusing to produce the instrument. Pelham surrendered the bond; and, by so doing, he, and those claiming under him, became fairly entitled to the benefit of the rule, as we have stated it. On this point, we refer the Court to the following authorities: Jackson vs. McVey, 18 Johnson 330; Thayer vs. Middlesex Co., 10 Pick. 329; Beits vs. Jackson, 6 Wend. 173;
      Jackson vs. Root, 18 John. 60; May vs. Hill, 5 Littell 309; M.cln-tyre vs. Funk, Lit. Sel. Gas. 427; 6 Watts 164; 7 Peters 99.
    As to tbe question of fact, whether the jury were warranted, from the evidence before them, in finding that the contents or . purport of the lost instrument were sufficiently proved, it really seems too plain to require argument. The jury have settled that by their verdict.
    The objection to the competency of the administrator of Mc-Vey as a witness, because he had given a deed with warranty of title, can be satisfactorily answered. From the necessity of the case, he was a competent witness to prove facts connected with the description, existence and loss of the instrument, not only before the Court, as a foundation for the admission of secondary evidence, but on the main issue, because the fact of loss remained to be proved to the jury.
    It is true that the administrator, in his deed, uses the words “ grant, bargain and sell,” which, under our statute, import a warranty, unless limited by other words in the deed. But the import of those words is limited by an express covenant of warranty, as against those claiming under his intestate, Allen McVey. So that the deed is really a quit-claim, and the utmost that can be made of it, according to its legal effect, is, that it would be, what is commonly termed, a special warranty, against the grantor, or those claiming under him.
    The reason why an executor or administrator binds himself, personally, in ordinary contracts relative to the estate, is, that he has no principal to act for, and whom he can bind, within the scope of his authority; that he is supposed to have received the consideration, and is liable, personally, for the debt created by him; no matter in what capacity he assumes to act, or how he describes himself as administrator, etc.
    But here, the deed was the fulfillment or completion of an outstanding obligation given by the intestate himself. At the time the deed was executed, there was an undoubted liability against McVey’s estate, in favor of Pelham, either for the price paid for the float, and interest, or for specific performance of the bond for title, according to its terms, whatever those terms may have been. And, by the general law, in force at the time, the administrator was the proper representative of the deceased to make title where the intestate had become bound, in his life time, in any contract for the conveyance of land. Digest, Title Administuation, section 160. Land is made assets in his hands for the purpose of specific performance, as well as for the payment of debts. In making such conveyances of land sold, or agreed to be sold, by the intestate, the administrator must necessarily act in his representative capacity, as much so as he would in suing upon a note executed to the intestate. If we look, then, to the act, the leading idea of it is a conveyance by McVey’s administrator. The deed recites the act, and expressly declares that it is made by Golden, in his capacity of administrator. Clearly, this is not a case, to which the authorities, holding an administrator personally bound, ought to apply.
    The act of Assembly authorizing the administrator of MeVey to convey, was passed after the issuance of the patent, and when the title was beyond the control of the Government, and so far as the legal title is concerned, the question is not whether the Legislature ought to have passed such an act, but the question is, had that body the power; just as the question is, whether a court has jurisdiction.
    This court has announced its determination not to declare an act of the General Assembly void, the highest conceivable exercise of judicial power, in a doubtful case, or in any case where the act can be so construed as to be upheld without clearly violating the organic law. Eason vs. The State, 6 Eng. 481. The State vs. Fairchild, 15 Ark. 690. See, also, Bennett vs. Boggs, 1 Baldwin Rep. 74; Stark ads. vs. McGowan, 1 Nott & Mc-Cord 401. Bradd vs. Bramjield, 2 Serg. & Watts 285, to show that the whole case turns on the inquiry, whether there is any constitutional provision, restraining the State from exercising the power in the particular instance.
    Acts of the character of the one now under consideration, and much stronger ones, are to be found upon the statute books of most of tbe States of the Union, and in States where there is the same division of the powers of the Government into three distinct departments. Such legislation has been frequent in our own State. See the cases of Edward vs. Pope, 3 Scam. 471. Watkins vs. Holman, 16 Peters 25. Shehari’s heirs vs. Barnetfs heirs, 6 Mon. 593. Coe vs. Douglass, 8 Blackf. 10. 12 Ala. 369. 2 Peters 660. 16 Mass. 326.
   Mr. Justice Scott

delivered the opinion of the Court.

This was an appeal from the law side of the White Circuit Court. The action was ejectment. The land in controversy was the N. E. quarter of section 10, Township 7 North of Range 7 West, containing one hundred and sixty acres.

All the parties claim under a patent for the land issued to Allen McVey, by the Federal Government, 24th of May, A. D.. 1842. This man, Allen McVey, was a soldier in the war of 1812, in Baker’s Company, 1st Regiment of Infantry. Having been entitled to bounty land for his services in the war, under the act of Congress, he drew a quarter section, under the act of the 6th of May, 1812, in the military district of Arkansas, which was patented to him on the 27th day of November, A. D. 1820. It was provided in this act of the 6th May, 1812, “ that no claim for the military land bounties aforesaid shall be assignable or transferable in any manner whatsoever, until after a patent shall have been granted in the manner aforesaid. All sales, mortgages, contracts or agreements, of any nature whatsoever, made prior thereto, for the purpose or with the intent of alienating, pledging or mortgaging any such claim, are hereby declared, and shall be held, null and void; nor shall any tract of land, granted as aforesaid, be liable to be taken in execution, or sold, on account of any such sale, mortgage, contract or agreement, or on account of any debt contracted prior to the date of the patent, either by the person originally entitled to the land, or by his heirs or legal representatives, or by virtue of any process or suit at law, or judgment of Court, against a person entitled to receive his patent as aforesaid.” (1 Vol. Land Laws, p. 215, secs. 2 and 4.

By an act of Congress, approved the 22d of May, 1826, it was made lawful for any soldier in the war of 1812, to whom bounty land had been patented in the Territory of Arkansas, and which land was unfit for cultivation, and “ who had removed, or should thereafter remove to said Territory with a view of actual settlement on the lands by them drawn ” to surrender the patent and release his interest to the government in the lands patented to him, and to locate another quarter section in lieu of the one surrendered; “ provided that such surrender and re-location shall be made on or before the 1st day of January, A. D. 1830.” (lb. p. 418, 419.)

This act imposed no restrictions whatever upon the right to sell the privilege secured to re-locate, or the land that might thereunder be located.

On the 23d of March, 1830, Congress passed another act continuing in force this act of the 22d of May, 1836, for the term of five years; arid extending its provisions to those having like claims in the States of Illinois and Missouri. (Id. p. 458.)

In the year 1832, Allen McVey was a resident citizen of Arkansas, and remained so until his death, which occurred in Independence county, in the year 1836. And on the 3d of January, 1837, administration upon his estate was regularly granted to Eli Golden.

It seems that, in 1832 or 1833, McVey ascertained by the assistance of William Pelham, who was a surveyor, and went with him upon the land, that the tract patented to him was unfit for cultivation, and that he took steps to obtain a float upon another tract, under the provisions of the above cited acts of Congress. And that at that time he made a conditional bargain to sell the float to Pelham. That afterwards, when he had obtained the float, and on the ^6th of January, A. D. 1834, he sold it to Pel-ham, for a hundred and fifty, or two hundred dollars, which was paid to him, and that he then executed to Pelham a bond to convey to him the land upon which the float might be located; and also executed a power of attorney to Pelham authorizing Mm to locate his floating right in his name, and to receive the patent therefor.

On the 27th of May, 1840, (5th vol. Stat. at Large,) Congress passed another act reviving the act of the 26th May, 1826, and continuing it in force for five years, and extending its benefits to those having like claims in the States of Illinois and Missouri.

In none of the several acts, after that of May, 1812, were there any restrictions upon alienation.

On the 1st of May, 1841, the Register and Receiver of the land office in Little Rock issued an official certificate to the effect, that from the original patent issued to McVey, in 1820, which he had surrendered, and other papers in the land office showing his relinquishment of all title to the land patented to him, and that he had otherwise fully complied with all the provisions of the several acts of Congress in the premises, he was entitled and is hereby authorized to locate another tract of land, in any portion of said tract appropriated, etc., in lieu of the tract surrendered, etc., agreeably to the said act of Congress.

In March, 1842, under authority of this certificate and these acts of Congress, the land in controversy was located in the name of Allen McVey, on an application in his name “by William Pelham, attorney in fact,” and was duly patented the 24th May, 1842. Under which patent, as we have said, all the parties in this controversy claim the land in question.

On the 26th day of December, 1842, the following copied act of the Legislature of Arkansas was approved by the Governor, to wit:

An act authorizing the administrator of Allen Me Yey, dec'd, to convey certain lands: — Whereas, Allen McVey, now deceased, was entitled to re-locate one quarter section of land, in lieu of the bounty lands previously patented to him as a soldier of the late war, and by his obligation dated the 6th of January, 1834, covenanted for a valuable consideration paid him, to convey in fee simple, to William Pelham, the lands which might be so relocated, as soon as a patent therefor should issue; arid whereas, said patent hath issued, and the said Allen McVey hath, since the making of said covenant, departed this life; Therefore, Be it enacted, etc., that the administrator of the said Allen McVey, deceased shall be, and he is hereby authorized and empowered to make, sign, seal, execute and deliver unto William Pelham, his heirs and assigns, a good and sufficient deed in fee simple for the quarter section of land so re-located and patented, describing therein the said lands agreeably to the patent, and the consideration paid to McVey in his life time.

Sec. 2. And be it further enacted, That said conveyance by said administrator shall have the same force and effect as if made by the said Allen McVey in his lifetime.”

On the 3d day of January, 1843, Golden, as administrator of McVey, conveyed the land in question to Pelham, by his deed of that date, in which the land is described, and in which deed there is the following clause, to wit: “ I do, by power granted to me by an act of the legislature of the State of Arkansas, approved the 26th of Dec., 1842, entitled “ an act authorizing the administrator of Allen McVey, deceased, to convey certain lands, for the consideration of one hundred and thirty dollars as aforesaid paid to the said Allen McVey during his lifetime, grant, bargain and sell unto the said William Pelham, his heirs and assigns, all the right, title and interest, property, and claim of the said Allen McVey, dec’d, in and to the said land before described; to have and to hold the same unto him the said William Pelham, his heirs and assigns forever, and I do hereby covenant to and with the said William Pelham, his heirs and assigns, as administrator as aforesaid of Allen McVey, dec’d, to defend the title to the said land to him the said William Pelham, from all and every one claiming under the raid Allen McVey aforesaid.”

On the 1st of June, 1847, Wm. Pelham and wife, regularly, by deed, conveyed the tract of land in controvesy to the defendant Israel Moore in fee, which deed was duly recorded a few days afterwards- The other defendants hold, under Moore, .separate parcels of the land in controversy. The town oí Sear-cy having been laid out upon the quarter section, these separate parcels are town lots obtained from Moore, the common proprietor.

On the other hand, the plaintiffs below claim under deeds to Maxwell & Walker, from several persons claiming to be the collateral kindred of Allen McYey, who, it is alleged, died without issue, and without lather or mother him surviving.

Upon the evidence adduced, and under the instructions given, the jury found all the defendants not guilty, and the cause was brought here by the plaintiffs below, by appeal. And here they insist upon various matters saved by exception during the course of the trial in the Court below.

Several of these matters it will be unnecessary to consider, as they relate merely to the extent of recovery, and pre-suppose that the case made by the plaintiffs upon the pleadings and evidence, to be sufficiently strong to authorize a recovery from the defendants. This latter, the defendants below deny, in to to, and submit that no matter what error, if any, may have been committed by the Court below, enough appears on the record to show that the appellants were not entitled to recover to any extent, and on the other hand, that they, the appellees, have showed right sufficient on their part to defeat the action altogether.

As to McVey’s right to sell his floating right and its fruits, we think no serious doubts can be entertained under our laws and usages, which allow such great scope to alienation, in the absence of express restrictions. The restrictions as to bounty lands under the act of Congress of 1812, did not extend beyond the issuance of the(patent for the land. After that, the soldier enjoyed the ordinary privilege of alienation.

Under the act of 1826, and the subsequent ones, which were passed from time to time to continue it in force and extend its benefits, no restrictions upon alienation were imposed. The full right of alienation had before attached to the land allowed to be released to the government, and this was fully recognized by these latter acts, in the provisions contained in them, guarding against such alienation previous to surrender and release to the government. These acts dealt with the soldier no longer as a minor, liable to squander his property, but as a citizen of the State or Territory, to which they contemplated he had removed, for the purpose of actual settlement, with the ordinary capacity of a citizen to take care of his own interest. They gave him new and substantial rights, in lien of those which, although perfect, were of comparative little value; and imposed no restrictions upon the alienation of these new rights. So totally inconsistent is it with the nature of property rights, that the owner should not be authorized to alienate them; and so much at war are such restrictions with the public policy of our day in this country as to property rights, that all laws imposing such restrictions are strictly construed; and of course can never be extended by liberal construction to cases not within their express provision.

Besides, in this case, when the appellants question the right of McVey to alienate his floating right, they thereby question the regularity of the patent under which they themselves claim; since it issued upon a location made after the death of McVey under a power in Pelham granted previously; which, if a naked one, must have ceased on the death of McVey, and could have lived afterwards only upon the ground that it was coupled with an interest conveyed to Pelham, the grantee of the power. But when considered in the latter view the regularity of the patent is beyond question, under the provisions of the act of Congress of the 20th of May, 1836, although issued upon a location made after the death of the patentee. (See, as bearing upon the point, the case of Galloway vs. Finley et al., 12 Peter's R. 296.)

Upon exceptions reserved by the appellant to the admission of evidence on the part of the defendant touching the alleged lost bond for title from McVey to Pelham, it is insisted that the existence and loss of the supposed bond were not sufficiently established to lay the foundation for secondary evidence of its contents.

The law touching the questions involved in this point, is expressed in such few words by the Supreme Court of Alabama, in one of the cases cited by the appellants’ counsel — that of Juzan et al. vs. Toulman, 9 Ala. R. 691—'2—we will extract it here before proceeding to notice the testimony in connection with these principles of the law.

“Parties and persons interested are recognized as competent witnesses in respect to the facts and circumstances necessary to lay a foundation for secondary evidence of a writing, as that a search has been made, and it cannot be found (3 Phil. Ev. Notes, C. & H. 1218-'19, and cases there cited.) No certain rule can be laid down as to the proof necessary to establish a loss; the degree of diligence must depend on the nature of the transaction to which the paper relates, its apparent value, and other circumstances.

“ The rigor of the common law, it is said, has been relaxed in this respect, and the non-production of instruments is now excused for reasons more general and less specific, upon grounds more broad and liberal than were formerly admitted. If any suspicion hangs over the instrument, or that it is designedly withheld, a rigid inquiry should be made into the reasons of its non-production. But when there is no such suspicion, all that ought to be required is reasonable diligence to obtain the original; in fact, Courts in such cases are extremely liberal. (3 Phil. Ev. Notes, C. & H. 1223-1233. 1 Stark Ev. 349 to 354. 1 Amr. Ed. Greenl. Ev. 593-'4.) In Moredecai vs. Beall, 8 Porter R. 529, the plaintiff proved that a deed under which he claimed had once existed, and traced it to the possession of a third person, who had intermarried with the grantee, a female; proved that it had been demanded of that person, who failed to produce it, and that he now resided in another State. Further, that search and inquiry had been made of others, who, it was supposed, might have the deed, but without effect. It was held that the preliminary proof was sufficient, and as it could not be intended that the plaintiff had any motive in withholding it, a copy from the records of the Court was admissible. To the same effect is Swift vs. Fitzhugh, 9 Porter R. 39. Beall vs. Dearing, 7 Ala. R. 124.”

In the case before us there are no facts or circumstances in proof to authorize any suspicion of the want of genuineness in the alleged lost bond, or that it was designedly withheld on the part of the defendants, or those under whom they claim. On the contrary, there is satisfactory testimony as to facts and circumstances, from which the very opposite is to be inferred. Charles H. Pelham not only testifies to the actual execution of the bond, but of the several matters which preceded it — the ascertainment by McVey that the land originally patented to him Was unfit for cultivation — his application for a float in consequence of that discovery — the conditional bargain of William Pelham with him for its purchase in case he should obtain the float — the actual purchase and sale of the float, when it was ascertained it could be had — the payment of the purchase money therefor — and the execution of the bond and power of attorney. This is all corroborated by other testimony, and especially by the deposition of James E. Pelham. Had the appellants by their counsel attended and cross-examined these witnesses as to the grounds of their knowledge of the facts about which they speak in their depositions, doubtless they might have reduced some of their general expressions to greater particularity, and might possibly have derived some benefit therefrom. But, as they did not think proper to do so, they cannot now be heard to complain of any fancied consequence of their own neglect; and the fact, that they did not cross-examine, author-rizes the inference that the more minute matter, that might have been sifted out, would have been against them, or at any rate would not have been in their favor. Besides this, the facts shown in evidence, that William Pelham gave up the bond upon the execution of the deed, and that Golden should have, without a suit, executed the deed in pursuance of the act of the Legislature, which was not mandatory to him, but merely authorized him to do so, both strongly speak for the genuineness of the bond. Golden, besides being the administrator of Mc-Vey, and thus sworn to protect the rights pertaining to his estate, seems to have been his relative and friend. And Pelham, had not the bond been genuine, would have more likely instructed it to have been destroyed, upon the execution of the deed, than delivered up to Golden. And the evidence even more satisfactorily proves that the alleged lost bond was not designedly withheld either by the defendants, or those under whom they claim; because it is almost conclusively established, by concurring witnesses, that it was actually delivered up to Golden; and that is the last account of it, although the most diligent search was made, on the part of the defendants, in all the places to which they could have access, where there was the least probability it-might be found, besides repeated applications to Golden, with requests to him to search his archives.

There can be no reason, then, upon either of these two grounds, why the case at bar should be supposed to be governed by the rules which demand the most rigid inquiry as to the alleged existence and loss of the instrument; on the contrary, the more liberal rule is clearly applicable, not only because exempt from all suspicion as to these two matters, but also because having been in effect surrendered to the obligor — his administrator — upon the execution of the deed it was designed to secure, it thus served its purpose; passed from the hands of those who, regarding it of value, would have been stimulated to take care of it; and laid a foundation on which presumption of its loss or destruction arises more violent than would have attached had it remained in the hands of the obligee, or those claiming under him.

Under these circumstances, we think it perfectly clear that the evidence adduced was amply sufficient. Indeed it is not easy to conceive how the nature of the case could have admitted of any better evidence than was produced to the points. This evidence was produced some ten years after the bond was delivered up to the administrator, when, it is reasonably to be supposed, the parties then interested considered the affair forever ended and closed; and it conduces to prove very distinctly that when the deed was executed before Kyler, the justice of the peace who took and certified the acknowledgment, the bond was produced, and that after the business was transacted some conversation arose as to who should take the bond. That Pel-ham desired Golden to take it® but he did not want it, though he was finally induced, by the joint suggestions of Pelham and Kyler, to take it, for the purpose of filing it among the administration papers of McVey’s estate, and that Golden then took the bond into his possession.

Besides the usual affidavit of the defendant, Moore, as to the existence and loss of the instrument, there was the affidavit of his counsel, Mr. Curran, not only as to a search for the bond in the office of the Secretary of State, where it was possible it might have been left when it was before the Legislature; but also of an application to Golden, the administrator, with a request to him to search among his papers for it: also an affidavit of McConaughey to the effect that he had gone to Clark county, (whither Golden had removed from the county of Independence,) at the instance of the defendant, Moore, and made another application to Golden for the bond, and for a search |'or it: also the deposition of Kyler, and finally the deposition of Golden himself, who testified as follows: “The deed was executed by me at the residence of John Kyler, of Independence county; said Kyler was then an acting justice of the peace for said county. At the time I executed the deed, James E. Pelham, who acted as the agent of his brother, William Pel-ham, produced the bond executed by McYey to William Pel-ham in his lifetime, and also said act of the Legislature, (I believe the purport of the bond was correctly recited in said act,) and that said bond is not now in my possession, nor do I know what has become of it. At the time I made and acknowledged the deed, said Kyler told me to take the bond, that it belonged to me; but if I took it from his office, I am unable to say what has become of it: I know that it is not in my possession or control.”

If the appellants, by their counsel, had attended and cross-examined Golden, when his deposition was taken, as to the grounds of his knowledge of the matter about which he testified, fled, it is not impossible that they have learned from him that he knew the bond was not in his possession or control, because he had made diligent search for it. That he knew it was executed by McVey, because he was acquainted with his handwriting, and had heard him say, in his lifetime, that he had executed such a bond to Pelham; and that he knew it was a bond, because it had a proper attestation clause, with a seal or scroll annexed to the signature.

We think it equally clear, also, that the jury were warranted, from the evidence before them, in finding that the contents or purport of the lost instrument was sufficiently proved. Besides the depositions of the two Pelhams and of Kyler, there was also the deposition of Lineberger, which was, in substance the same as Kyler’s, he having been present when the deed was executed, and attested it as a subscribing witness; and of Elias N. Conway, who, among other matters, testified as follows: “ I recollect of having seen and examined the bond for title from Allen McYey (I think that was the name) to William Pelham, for the land that might be selected and patented under his bounty float. The same claim was located on the north-east quarter of section ten, township seven north, range seven west. I think the bond referred to was before the Legislature at the time the act was passed authorizing McYey’s administrator to convey said tract to William Pelham. I do not know what ever became of said bond. I do not recollect the details oí the bond referred to, from McVey to Pelham, but I well recollect that the terms or conditions of it were substantially this: that upon payment of the consideration named in the bond, and upon, or after the issuance of the patent for the land that might be located with the float, McYey obligated himself to convey such land to William Pelham. I do not know anything further, material, except that a good many circumstances have impressed the foregoing facts upon my memory.”

■ Besides this testimony there was the power of attorney, contemporaneous with the bond for title, from McYey to Pelham, authorizing him to locate the float and receive the patent; the location of the float by Pelham, and the possession of the patent under its authority: the fact proven of the sale of the float to Pelham and that he had paid for it a full and fair price; the act of the Legislature, with the bond before that body; the simultaneous execution of the deed and surrender of the title bond, under the authority of that act; and an evident publicity, notoriety, and apparent fairness throughout the whole transaction.

With regard to the objection, that the evidence is defective and wanting in minuteness of details as to the terms, conditions and phraseology of the bond, and as to its supposed attestation "clause, and its sealing in fact, or by way of a scroll, that has already been incidentally noticed; but in this State, under our laws, and the common usages of our people in reference to the sale and transfer of such land-rights, in a brief, summary and comprehensive mode, regarding the substance more than form, (Smith vs. Robinson, 13 Ark. R. 539, Moore & Cail vs. Anders, 14 Ark. R. 693,) such minuteness of detail, in reference to legal technicality, would have full as much tendency to confuse and bewilder the jury, as connected with their practical knowledge of such matter, as to give them clearer light; nor, indeed, could the matter, as to whether the supposed bond was, in truth, in point of law, technically so or not, be of any great practical importance in any view, provided it was sufficient substantially to satisfy the statute of frauds in its provisions as to the sale of lands.

There are two other exceptions reserved relating to admissibility of evidence, which, it is insisted, may have improperly influenced the finding of the jury. The one, as to the competency of Golden’s testimony, and the other, as to the constitutionality of the act of the Legislature, and the admissibility of the deed executed under its authority.

With regard to the former, the authority already recited from 9th Alabama Reports 691, shows that, although Golden might have been interested, his testimony was competent in respect to all the facts and circumstances within his knowledge necessary to lay a foundation for secondary evidence of the lost bond, and when his deposition is closely scrutinized it is to be doubted whether there is any material matter stated therein that does not legitimately pertain to the establishment of the existence and loss of the instrument in question, either by way of identification, or as showing the foundation of his knowledge of the matter about which he testified relative to such existence and loss.

But upon the ground assumed, to wit, that Golden had warranted the title in his official deed to Pelham — it is, by no means, clear that in any view he was a legally incompetent witness, on the score of interest, to testify as he did, supposing him to have gone beyond the mere laying of a foundation for secondary evidence, under the peculiar circumstances of this case. Because, according to the authorities cited to the point by the appellants’ counsel, (Bird vs. Holloway, 6 Sm. & M. 203. Robinson vs. Jones, 14 Sm. & M. R. 169,) if Golden is responsible legally upon his warranty, it was for the double reason that it was in writing and upon a good consideration. And Mr. Rawle, in his woi’k on Covenants, p. 423, places it, in principle, upon the same ground, when he supposes that the effect of fiduciary vendors pledging their personal responsibility is to excite the confidence of purchasers and thus induce them to give an en hanced price for the property sold. In this case, however, there was nothing either paid, or received as between the grantor and grantee, and in that view the contract of warranty was totally without consideration. But in another view there was a consideration, in the fact that the alleged lost bond for title was delivered up, and the deed was in satisfaction of the same. But if that was not genuine, or was otherwise invalid and not binding legally upon the estate, still there would be no consideration for the warranty, and that also would be invalid. If, on the contrary, the bond was genuine, and of obligatory force against the estate, there would be a consideration for the warranty. And it so happened that it was in support of this latter proposition that Golden testified in his deposition, and thus his testimony tended to fix his own liability upon the supposed warranty, and was therefore directly against his interest.

There is another view, more general, in which the result is the same as to the competency of Golden, under the peculiar circumstances of this case..

If he could be held liable upon this supposed warranty, it would be, as we have seen, because it was a contract of his upon a sufficient consideration — whether beneficial to him or not, not being material. And being a contract, it is subject to the ordinary rules governing the construction of contracts. Here, the contract is in writing, and although in terms a warranty, those terms, as they appear in the clause of warranty in the deed, are not their own sole exponents in this case, as they would be had the previous colloquy between the parties been by parol, and not recited in the deed. On the contrary, for their exposition in this case we have authority, in the recitals of the deed, to look both to the act of the Legislature, and to the bond recited therein, in order to come at the true meaning and intent of both the parties to this contract; and when we do so, we can find no reason to suppose that the one contracting party intended to pledge, or the other to receive in pledge, the individual responsibility of the grantor in the deed; on the contrary, that it was but an effort, on the part of both of them, to do, and have done, an act that was purely fiduciary, in especial reference to that clause of the special act, which provided “ that said conveyance by said administrator shall have the same force and effect as if made by the said Allen McVey in his lifetime.” The grant and the warranty, by the terms of the deed, being expressly in virtue of the power and authority conferred upon the grantor by the act, which, it is fairly inferable, had been passed at the instance and for the sole benefit of the grantee to enable him to perfect his own title to the land in controversy, by obtaining what would be tantamount to the outstanding legal title, which was in the heirs of Allen McVey.

With regard to the objection to the act of the Legislature, under which Golden executed the deed to Pelham, for want of constitutionality — we are saved the necessity of considering any question as to the constitutionality of acts of the Legislature of that class, which authorizes the sale of the landed estates of deceased persons, and divests valuable property lights, although presented and discussed by counsel, because this act had no such operation.

According to the testimony in this case, upon the death of McVey, no such valuable property rights in the land in controversy vested in his heirs. In his lifetime, he had already divested himself of any such valuable rights in the land to be located by his float, and none such could be cast upon his heirs by descent. Had he lived until the land in controversy had been located by his float and patented in his name, he would have been but the trustee of the legal title to the land for the benefit of his vendee, and his heirs but derived the same from him upon his death, charged in their hands with the same trusts.

This results from what we conceive was the true intent and meaning of both the parties to the contract of sale and purchase in question, as the same appears by all the testimony in the case, when considered together and in the light of the doctrines established by this Court, in the cases of Smith vs Robinson and Moore & Cail vs. Anders, before cited.

In the very nature of the transaction there was something more than an executory contract. It was an actual present sale and purchase, when the consideration was paid, and so far as it was practicable, the possession of the thing sold, by means of the power of attorney and the bond as for further assurance, was surrendered to the vendee. There was no withholding, upon the part of the vendee, of anything pertaining to the subject matter of the contract, which it was possible to surrender up to the vendee.

What remained with the vendor was but a dry legal title, which had not yet emanated from the government and could not, until after the vendee should think proper to exert some of the rights he had purchased and paid for; and even as to the evidence of that, the vendor had cut himself off from its possession by the execution of an irrevocable power of attorney to the vendee to apply for and receive it from the land officer, as soon as it should have been issued by the government. To suppose, under such circumstances, that the possession of the land, which it was the object of all these arrangements to obtain, was intended to be retained by the vendor, would be to stultify common sense by hoary legal ideas, that have no place in such a transaction; because such legal ideas never contemplated such an interest in land, and if they had done so, peremptorily forbid its transfer to another. So far was the common. law from allowing one to sell land, before he had obtained it in actual possession, it was very loth to allow it even af-terwards. But the very reverse is the policy of the law in this country, generally; and, even more especially is it so in this State, where, under our statutory provisions, the right of alienation is without limit. Here, land rights, especially those inchoate and equitable ones which, under our land laws, are subject to be acquired before the emanation of the legal title from the government, are as freely the subject of trade and traffic, and are dealt with, in many respects, with almost as little regard to the form of the contract as personal property; and generally too, with as much adherence to possession, either actual or constructive; for the reason, that some of these rights live but in possession, and possession in all of them is a material element of value.

Hence, so far from there being any presumption that the possession is to remain with the vendor, when one of these land rights is sold and paid for, unless possession for the vendor be expressly stipulated for, the very opposite is the presumption here, whatever it may be in England or in New York, under different circumstances, upon a sale of an equitable estate in lands, or upon an executory contract for the sale of lands.

When, then, regarding the defendants’ case, established by the evidence in this light, there was no margin for any unconstitutional operation of the act of the Legislature in question. The appellants, nor those under whom they claim, had any valuable rights to be invaded. Nothing was taken from them that was held by them for their own benefit. Indeed, in strictness, nothing whatever was taken from them under the operation of that act, but it simply imparted to the defendants’ estate in the land, a grade of rank to which it has been now judicially ascertained they were entitled by law, which, for all practical purposes, would be tantamount to, and was henceforth to be as available to them as the outstanding dry legal title would have been if united to their equitable estate by a regular conveyance from those who, in legal contemplation, held it in trust for them.

The act, although it proceeded upon the ground that the contract of sale and purchase was valid in law, and that the purchase money had been paid, and that nothing remained to be done to complete the contract between the parties, but the conveyance of the dry legal title outstanding in trust, nevertheless, did not undertake judicially to ascertain these matters, and peremptorily decree accordingly.

On the contrary, it was permissive only, and left these matters open to be judicially determined. Had the administrator doubted as to the genuineness of the bond, or had not been satisfied as to the fairness of the transaction, the Courts were open to determine any such contested points between him and the party claiming the conveyance at his hands, under the authority of the act. It appears, however, that he, voluntarily, upon application, acted under the law, and as he must be presumed to have done his sworn duty, it is fair to infer he was satisfied as to all these matters, as ordinarily an administrator would be, before he would pay a debt claimed against an estate without previous judicial ascertainment of its obligatory character.

With these views of the case established by the testimony, and the law, we feel clear to conclude that no matter what error, if any, may have been committed by the Court below, enough appears in the record to show that the appellants were not entitled to recover from the defendants, or any of them, to any extent; and on the other hand, that the defendants have shown legal right sufficient on their part to defeat the action altogether, in the full, legal and equitable ownership, and consequent rightful possession of the land in controversy.

It will, therefore, be totally unnecessary for us to go into an examination of the exceptions to the instructions given, and those refused. As to which, however, we are free to say, after some examination of the points discussed upon them, that when considered altogether, no material error was committed against the appellants, and that they were quite strong as against the defendants.

The judgment will be affirmed, with costs.

Absent, Hon. Thos. B. Hanly.


author: Mi’. Justice Scott

text:
    Matlock vs. Purefoy.
    In an action of assumpsit, by the payee, on a promissory note, payable to J. M., or Si bearer, for value received, it is sufficient, in setting out the note according to its legal effect, to allege that the defendant made his promissory note, and describe it as payable to J. M. — omitting the words “ or bearer ” and “ for value received.”
    It is unnecessary to allege the place where a bill or note was made, unless made in a foreign country and the plaintiff seeks to recover interest or damages different from that allowed by the law of the forum.
    It is a fatal defect in a count upon an account stated, to allege a promise to pay the amount with 10 per cent, interest, without alleging the promise to be in writing; but such defect would be considered as amended under the statute (Dig. eh. 126, p. 806,) unless specially pointed out as cause of demurrer.
    A breach in assumpsit, that the defendant “ has not paid any of the said money, or any part thereof, or the said ten per cent, interest, or any part of the said interest,” is good enough, although not absolutely certain to every intent in every particular.
    When the declaration contains a count on a note and one on account stated, the note is not admissible in evidence, in proof of the account not charged to have been signed by the defendant, until its execution be first proven.

      Appeal from the Circuit Court of Ouachita county.

    The Hon. Abner A. Stith, Circuit Judge.
    Strain and Cummins & Garland for appellant.
    It was not necessary to allege that the note was payable to bearer, nor to state the words “value received” in the declaration — nor the place of its execution. Story on Prom. Notes, sec. 51; 2 Arch. N. P. 128. That the note could be given in evidence under the issue on the second count, see Jordan vs. Ford & Dixon, 2 Eng. 416; 2 Arch. N. P. 128; Pierce vs. Crafts, 12 J. R. 90. The plea was not verified by affidavit, and, therefore, the note could be given in evidence under the plea. Bank vs. Kirby et al. 4 Eng. 353; Dig. 812, secs. 104, 105.
   Mi’. Justice Scott

delivered the opinion of the Court.

The action was assumpsit on a promisory note. There was a special count on the note bearing ten per cent, interest, setting it out according to its legal effect, and a count on an account stated, alleging a promise to pay the amount named with ten per cent, interest. It was not alleged that the promise to pay this last named interest was in writing.

There was a demurrer assigning — 1. Because the note was not described as payable to John Matlock or hearer — 2d. Was not described as given for 'value received — 3d. Was not described as made at Camden, Arkansas — -4th. The breach was not sufficiently certain in its negative as to the ten per cent, interest.

The breach was, has not paid any of the said moneys, or any part thereof, or the said ten per cent, interest, or any part of the said interest.”

The note, which we will presume was given on oyer, although there is no entry to that effect in the record, was dated “ Camden, Arks.” — was payable to J. M. “ or bearer,” and “ for value received” was upon its face.

The Court sustained the demurrer to the first count, and overruled it as to the second. The fatal defect in the second count (Dig. Stat. of Interest, sec. 2, p. 614,) not having been pointed out in the demurrer, was, no doubt, considered by the Court as amended, as by striking out the words “ ten per cent, interest,” under section 62 of the statute of demurrers. (Dig. chap. 126, p. 806)

We think, however, that none of the supposed defects expressed in the demurrer, ought to have been regarded as sufficient to authorize the Court to sustain it. Not one of them pointed out a substantial defect, as we think. There was no effort to set out the note in haecverha. 1st. If the plaintiff had declared on a derivative title, and there was no endorsement, then, to show title to sue, he would have had to allege the note as payable to“J. M. or bearer;” but in this case, J. M., the payee, was himself the plaintiff. 2. The plaintiff alleged that the defendant made his promissory note.” A promissory note imports value received. Story on Prom. Notes, sec. 51. 3. In the case of Semon et al. vs. Hill ad., 2 Eng. R. 73, this Court cited with approbation the case of Houriet vs. Morris, 3 Campbell R., in which Lord Ellenborough held it unnecessary to state the place where the instrument was made. (See, also, Chitty on Bills, p. 564. Payne vs. Brittin exr., 6 Rand. 101.) Where a bill may have been made in a foreign country, and the plaintiff seeks to recover interest or damages different from that allowed by the law of the forum, then the place ought to be alleged, because, in that case, matter of substance. In general, however, if stated, it would not be traversible, and would be treated as surplusage. (Swinney et al. vs. Burnside & Co., 17 Ark. R. 38.) 4. As to the breach, although not absolutely certain to every intent in every particular that a sharp lawyer in sharp practice might conceive, it seems good enough. Because, it is easy to see that the plaintiff said that the defendant had paid no part of the money or interest that he had before alleged he had promised to pay him.

But although the Court erred in sustaining the demurrer, it is perfectly clear that the decision upon the other question was right; — that is, in excluding the note as evidence upon the second count, after the first was quashed, until its execution should be-first proven as at common law. Because then the declaration was not “ founded upon any instrument or note in writing charged to have been executed by the other party” (Dig. ch. 126, secs. 103-'4; Bank of the State vs. Kirby, et al., 4 Eng. R. 353,) but was upon an account stated, not charged to have been signed by the defendant.

Judgment reversed and cause remanded.

Absent, Hon. Thos. B. Hanly.