author: Mr. Justice Scott

text:
    Brunson vs. Martin.
    Where a defendant elects to use his claim against the plaintiff for damages, hy way of recoupment, he cannot have a balance found in his favor, as in case of set-off.
    To an action by an overseer and manager of a plantation and negroes for his wages as such, the employer may recoup any damages he may have sustained hy an imperfect performance of the contract on the part of the overseer — as where- he has violated the contract in its terms and spirit.
    In sach action the claim for damages being .on account of the killing of one of the slaves of the employer by the overseer, to authorize recoupment for such damages, it must appear, from ihe evidence, that the killing arose from the overseer's mismanagement — that he killed the slave negligently and without necessity.
    At common law, a party could not maintain an action for damages arising out of a. felony, until after a trial upon a criminal prosecution; hut our Legislature has changed this rule. {Dig., p. 428.)

      Appeal from Hempstead ''Circuit Omrt.
    Hon. Shelton Watson, Circuit Judge.
    Cukean & Gallagher, for appellant.
    S. H. HeMpstead, for appellee.
   Mr. Justice Scott

delivered tbe opinion of tbe Court.

Martin sued Brunson, in tbe Hempstead Circuit Court, to recover, in assumpsit, the value of services rendered as overseer, in tbe year 1853. The latter pleaded ■non-assumpsit, and with, bia plea, filed a notice to the plaintiff, as follows, to wit:

“Take notice, that at, and upon tbe trial of this cause, I shall introduce testimony, and prove that you did not keep and perform tbe contract between us, in said suit-specified, but on the contrary, did break and violate the same, in this ; that you, with* out necessity, and contrary and against your diity, as my overseer, and manager upon my farm, did wrongfully kill and destroy my property, then under your care and control, as my overseer and manager, by virtue of the contract in said suit specified, to wit: a negro slave named Nathan, of great value, to wit: of the value of fifteen hundred dollars, and that I shall cut-off, and keep back, the entire sum claimed by you in the suit aforesaid, for the damages by me sustained in this behalf, and take ¡judgment against you for the balance to which 1 am entitled on account of the same, when and where you can controvert my claim to damages in this behalf, if you think proper.

ROBERT Aw BRUNSON.”

Although there is no question upon the record as to this notice, it may be remarked, in response to observations about it by the counsel bn both sides, that it seems proper that'it should be filed at the same time that the plea of non-assumpsit, which it accom-pañíes, is filed ; as it appears was done in this case. If the plain-tiff1 should, in fact, be surprised by the notice, it would, of course, be a ground upon which he might apply to the court for a continuance, to enable him to prepare to repel the defence.

"With regard to so much of the n otice as we have marked in italics, it may be further remarked, that it has been held in New York, (Batterman vs. Price, 3 Hill’s Rep. 171,) that, where a defendant elects to use his claim by way of recoupment, he cannot have a balance certified in his favor, as in case of set-off; but he must be content to have it go in abatement, in whole or in part of the plaintiff’s demand: And in Alabama, (McLane vs. Miller, 12 Ala. Rep. 643,) and New Hampshire, (Britton ve. Turner, 6 N. H. Rep. 481,) that after making such election, he cannot after-wards bring his cross-action for damages.

The cause was tried by a jury, who, after having heard the evidence, and receiving the instructions of the court, rendered a verdict for the plaintiff, Martin, and judgment was given accom dingly.

' Brunson, moved for a new trial upon the ground, that the instructions given on the motion of the plaintiff, were improper, and that the finding of the jury was contrary to law, and to the instructions, and to the evidence, and was without evidence to support it. The court overruled his motion, and taking a bill of exceptions, in which ’all the instructions given to the jury, and all the evidence produced before them, are contained, appealed to this court.

■ The matter of the instructions may be as well considered, under the circumstances of this case, before the evidence is stated, as afterwards. There were but three given to the jury ; two of them upon the motion of the plaintiff, and the other upon the motion of the defendant. The former were both excepted to, and it is 'upon them that the only question of law, as to the instructions, arises in the cause. They were as follows, to wit:

1st. “ That to enable the defendant to recoup, it must appear to the jury that the death of the negro was the result of the plaintiff’s mismanagement, as overseer for the defendant.

2d. In order to enable the defendant to recoup, it must appear from the testimony, that plaintiff, negligently and without necessity, killed the defendant’s slave.”

The instruction given on the‘defendant’s motion was, “if the jury believe, from the evidence, that Martin did not perform his contract to oversee and manage for Brunson the slaves and farm bf Brunson, but did break and violate the sanie in its terms and spirit, they should recoup the damage sustained by Brunson in that behalf, from the amount of the plaintiff’s claim against Brunson, for overseeing.”

These instructions distinctly informed the jury, when they are all taken together : lsi. That, if from the evidence, they should believe, that the plaintiff violated his contract with the defendant, in its terms and spirit, the former was liable to the latter, and that tbe latter was entitled to recoup the damages arising trom such breach of the plaintiff’s undertaking: 2<7. That in reference to the alleged violation of the contract, as connected with the killing of the slave, in order to authorize them to find the con-' tract so violated, it must appear from the evidence that that arose from the plaintiff’s mismanagement as overseer. And 3d. That unless it did appear from the evidence that the plaintiff, negligently and without necessity, killed the slave, the defendant was not entitled to recoup.

Thus, the jury were not only instructed that a negligent killing of the slave authorized recoupment, but they were instructed strongly inferentially, that a killing without necessity would constitute such negligent killing.

We think it clear enough, that there is nothing in these instructions of which the appellant can complain; because, so far as they maybe considered erroneous at all, that error is in his favor. And we can but find it very difficult to say that they are erroneous at all, in view of the just protection of the slave, which the common law of slavery, as it has grown up in the slave States of this Union, humanely affords to him. And yet, while we cannot see that we can safely displace that word “necessity,” as it appears in the charge of the court, with any other word, the stern mandates of that same common law of slavery, does, in truth, mitigate it in that connection, of some of its absoluteness of signification, in the absolute right it recognizes, not only of the master or his representative, but also of a stranger, as against the slave, to overcome by proper means, graduated upon principles of humanity and law, the slave’s rebellion against the lawful authority of his master. See Austin vs. The State, 14 Ark. Rep. 567, as to the last point considered in that case. And in that. sense, doubtless, the court and jury understood the word, or the verdict and the judgment could not have been rendered, nor the tion for a new trial have been overruled.

To determine from the evidence, whether the means used for overcoming the rebellion in this case, were graduated upon the principles of humanity, was the appropriate province of the jury, as matter of fact and law, of which latter, necessity in the slayer, as thus understood, was given them by the court as a standard.

And although we cannot but say that we would be'Ioath to subscribe to the verdict, it is still more difficult to say, that it is totally unsupported by the evidence, when we regard the legitimate "province of the jury to judge exclusively of its weight.

In support of the verdict and judgment, the facts, which the evidence in the record conduces to prove, maybe thus stated: 1st. Those preceding the killing of the slave. The slaves of the defendant “were a hard set to manage,” and often found idle, in the absence of the overseer. The overseer of the previous year had found it necessary to flog some of them for idleness and other faults common to negroes, and he also had found them “harder to manage than some negroes he had managed.”

In the morning of the d:.y of the killing (which occurred in the afternoon of that day) the plaintiff said, at a store in the neighborhood of the plantation, in a conversation about the management of negroes on a farm, that he “had a rough and saucy set of hands to manage, and that, after that, if he ever overseed again, he would make the negroes obey him, or he would kill them.” This was about 11 o’clock, and he appeared perfect^ calm and in no way excited. Another witness stated that he remained at the store until two or three o’clock, and “was drinking,” but “seemed to be in a good humor, and laughed and talked a good deal,” and among other things, said, he was going to prove a mule for his employer, which had been taken up as an estray. Another witness, however, proved that, at three o’clock, the plaintiff showed no signs of being intoxicated.

The killing seems to have occurred about, or soon after this hour, and the facts attendant are, 2d. about, in substance, these : The plaintiff, having his whip in his hand, went into the field where the hands were picking cotton, and when approaching near to them, said to Nath, the slain, that he had “come for his shirtto which, Nath replied, that he “had pulled off his shirt to the last overseer.” The plaintiff, drawing a revolver, repeated to him that he ‘‘had come for his shirt, and intended to have it or hurt him.” To which Nath replied, “shoot and be damned,” the plaintiff simultaneously exploding a cap in his first effort to shoot, and at the same moment Nath commenced advancing upon the plaintiff, with some cotton in onehand, and nothing in the other, the plaintiff firing his pistol upon him, three or four times ; until, at the last fire, Nath was near enough to knock the pistol up— Nath at the same moment himself falling down. The physician, who was called in, states, that there were upon the person of Nath, the wounds of three balls. “One, passingnear his privates, lodged in his right thigh, on its way slightly wounding the penis. Another hit him near the left hip joint, but a little above and behind it; and the third struck him on the left side of the abdomen, and ranged rather down. This latter ball produced his death.” And the same witness further states as his opinion, formed from the examination of the person of Nath, that “all the shots were made by some one, on the left side of the negro. The wounds could not have been made upon -one swho advanced directly to the shooter; if at all, while advancing, it must have been done while advancing with his left side to the shooter.

It was also proven, that Nath was a stout negro, weighing about 200 pounds, “ with bodily strength enough to crush the plaintiff down,” while the latter, it seems, was at the time “ a cripple,”, and that it was the general custom of overseers to carry weapons.

In other respects the testimony makes, out, fully, the case for the plaintiff, and that for the defendant' — showing the plaintiff to have rendered services as an overseer for the defendant, from the spring of the year, from about the first of March, until he was discharged by the defendant, upon the killing of Nath, which was about the 15th of October: That they were worth from two hundred and fifty, to four hundred and fifty dollars; and that the value of Nath, at the time when he was killed, was from twelve to fifteen hundred dollars.

Brunson also read in evidence, without objection, a paper which was admitted by the plaintiff to have been signed by himself, which was in words and figures, as follows, to wit: “ This is to certify, that I only claim of B. A. Brunson, two hundred and fifty dollars, as my wages for overseeing for him in the year 1853. This 15th- day of May, 1854.

JAMES MARTIN.”

There was also evidence to the effect, that Brunson’s crop was, in the year 1853, a tolerably good one, although it did not turn out as well as the crops upon the adjoining farms. There was no testimony, otherwise, conducing to show that Martin had been negligent, of had otherwise imperfectly discharged his duties as overseer.

Under such a state of proof, we do not feel authorized to disturb the'verdict, upon the ground that it is not supported by.the evidence, in view of the province of the jury to judge exclusively of the weight of that adduced before them without exceptions to its competency; no question as to which latter was made on the motion for new trial.

As to the validity of the defence attempted to be sustained on the part of the defendant, it could not have been maintained upon the principles of the common law, until after the slayer had been first tiled upon an indictment for the homicide ; the excellent policy of that law preventing the person injured by the trespass, from seeking his own redress, until it should be first ascertained and determined by the proper tribunal what the justice of the State requires of the accused for the deed. If the law were otherwise, the common law supposed that persons injured would often obtain compensation for such trespasses, upon an agreement not to complain of the public wrong; and reparation would be made for the civil injury, to escape the justice of the country. Morgan vs. Rhodes, 1 Stew. Ala. Rep. 70; Middleton vs. Holmes, 3 Porter's Rep. 424. But our Legislature has changed.this rule, and th¿ civil injury is no longer merged in the felony. Our statute provides, that/'in no case shall the right of action of any party, injured by the commission' of a felony, be. deemed or .adjudged to be merged in such felony; but damages sustained thereby may be recovered in an action brought for that purpose. Dig., chap. 53, sec. 269, page 428.

The only remaining doubt would be, , whether, although the owner could maintain his action for the value of his slave, he could insist upon it by way of recoupment. And as to this, there can be no doubt, we think, but that the principle upon which recoupment proceeds, is amply broad enough to • sustain the defence. The latter was unquestionably basdcl upon a supposed breach of one of the stipulations of the contract, upon which the plaintiff, sought to recover. Van Buren vs. Diggs, 11 How. U. S. Rep. 475. And it has been frequently held in other courts, that-where an overseer sues for his -wages, the employer may recoup any damages he may have sustained by an imperfect performance of the contract on the. part of the overseer. Hunter vs. Waldron, 7 Ala. 753; McLane vs. Miller, 12 Ala. Rep. 643; Jones vs. Deyer, 16 Ib. 221. And in Pennsylvania it was held, in the case of Hicks vs. Shener, 4 Serg. & Raw. 249, that, in an action to recover compensation for services as house-keeper, evidence that the plaintiff had been guilty of the malfeasance of embezzling the goods of the defendant, might be given to defeat the action : Chief Justice TilgioiaN remarking, in that case : ‘‘whatever be the nature of the services for which the plaintiff demands compensation, I may show that those services were ill performed; for by such evidence, I do no more than meet the plaintiff in his own allegation. I prove that he did badly, wdiat he ought to have done well.

“The plaintiff claimed compensation for services as a housekeeper. It is.the duty 6f the house keeper to take care of the house-hold goods. The defendant offered to prove that the plaintiff did not take care of his goods, and to show the particular manner in which she violated her trust, viz: that she sent sundry articles to her daughter’s house, and suffered her to make use of them. How is neglect of duty to be shown, but by showing the particular acts of negligence or malfeasance ? ” And Mr. Justice GibsoN, said: “I grant that a mere tort, unconnected with the plaintiff’s conduct as house-keeper, cotdd not have any effect on her claim in that character. But the evidence rejected went to show, that, during the time she was in the defendant’s service, she gave away various articles belonging to him, without his knowledge, &c. This was a breach, on her part, of the contract implied by the law, that she would behave herself in the execution of her office or trust with integrity and fidelity. 3 Com. 163. It, therefore, appears unjust that he should be compelled to treat her in the first instance as a person having faithfully executed her trust, and be turned round to an action against her, for a breach of her part of the agreement. This unnecessary circuity ought to be avoided. The merits of the defence can be tried in this form with as much convenience to the parties, as in a separate suit, and the judgment, if pleaded with proper averments, would be'a bar to another action for the same cause.” See, also, Crowninshield vs. Robinson et al., 1 Mason 93; Austin vs. Foster, 9 Pick. 342; The Allair Works vs. Guion, 10 Barb. Sup. Ct. Rep. 55.

Upon the whole record, then, we find no error of law, for which the judgment ought to be reversed ; and sustaining the verdict of the jury as we have done, there was no error in the court below, in refusing the motion for a new trial. Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Duncan et al. vs. Clements.
    To an action upon a promissory note, the defendant pleaded that it was given for the purchase money of a tract of land; and that, by agreement, a deed was to be made for the land, on payment of the note, averring that the payee had not made or offered to make such deed: upon demurrer, held, that the contract, or agreement, set out in the plea, must be taken to be an obligatory one, and being within the statute of frauds, and not averred to be in parol, must be intended, against the pleader, to be in writing, and it ought to have been so alleged with profert.
    Such plea, as it impeaches the consideration, in the allegation that the party had failed to make the deed, should be sworn to.

      Writ of Error to Clark Circuit Court.

    Hon. Thomas Hcjbbaed, Circuit Judge.
    Flanagin, for tbe plaintiffs.
    The only point in this case is, whether the demurrer should have been sustained to the amended plea. The question is decided, that the plea is good, by this court, in Smith vs. Henry, 2 ling. 207.
    Cummins, for defendant.
    Where a party pleads a contract required by the statute of frauds to be in writing, the presumption is that it is so, and the party is bound so to plead it and make profert. 1 Ch. PI. 566, 254-, 332/ and the omission of profert is cause of demurrer. Sec. 66, ch. 126, Rev. St at.; 1 Ch. PI. 464, 465; 3 Arle. 339, 478, 592; 6 ib. 402, 529.
   Mr. Justice Scott

delivered the opinion of the court-

This was an action of assumpsit upon a promissory note. The defendants pleaded in an amended plea, “that the said promissory note in writing, was giveu in consideration of the purchase by the defendant of a tract of land described, which was the property of the said Josephine, then Josephine Buckner: and he avers, that by agreement, a deed was to be made upon the payment of the said promissory note; and he avers that the.said Josephine, while single, did not, nor has she and the said Robert, since their marriage, made or offered to make deed for said land to this defendant, and this he is read}*- to verify,” &c.

The plea was not verified by affidavit.

The plaintiffs first moved to strike it out, which the court overruled. They then demurred to it, and assigned for cause:

1st. That it does not set forth and state the terms of the alleged contract of sale, or make profert of such contract, so'as to enable the court to pass upon the true construction thereof.

2d. It does not show any bar or defence to the action.

3d. It is uncertain and insufficient in other respects.

The court sustained the demurrer, and the defendants saying nothing further, the court rendered final judgment for the plaintiffs, and the defendants brought error, and assign here, only the ruling of the court upon the demurrer, as error. The single question raised then, is as to the sufficiency of the plea.

The contract set up in. the plea, must, of course, be taken to be an obligatory one, and, as it is not averred to be in parol, and is within the statute of frauds, it will be intended against the pleader to have been in writing.

At common law, a contract, not under seal, but within the statute- of frauds, was not required to be declared upon, as in writing. Because, although in writing, the action was not considered as based upon a written contract, but upon a mere parol one, of which the writing wras but evidence. And it is not necessary in pleading, to state that which is merely matter of evidence. Tucker’s Pleading 168, 174. Or, as expressed by Mr. Gould: “The writing required by the statute, is not regarded as an instrument creating the right asserted in the declaration; but as a mere evidence of a parol contract.” Gould's Plead., ch. 4, sec. 43, p. 191. “But, (proceeds the same author,) if any agreement within the statute of frauds, be pleaded in lar of an action, the plea, it is held, must show that the agreement, or some note or memorandum of it, is in writing.” Ib. seo. 46. Because, as the plea confesses the cause of action alleged in the declaration, it can only avoid it by a substituted claim, which is, itself, shown to be such as will support an action. Ib. sec. 41.

So, at the common law, a profert is required of no other instrument than deeds. These being the only private writings, which, by the original principles of the common law, are considered as instruments, on which an action or defence can be directly founded. And, consequently, he who pleads a writing not under seal, is not bound to make profert of it. Bor, written contracts, not under seal, are regarded by the common law, not as instruments on which actions are founded, but merely as sim-' pie contracts, or as evidence of parol contracts. Ib. part 2, chap. 8, sec. 39, p. 440.

Our statute, however, has obliterated this distinction as to sealed and unsealed written contracts, by raising the latter to the dignity of the former, and placing them both upon a basis of perfect equality, for all the purposes of maintaining an action, or making a defence upon them, by the several provisions:

1st. Enacting that, “ When any declaration, petition, statement or other pleading, shall be founded upon any instrument or note in writing, whether the same bo under seal or not, charged to have been executed by the other party, and not alleged therein to be lost or destroyed, such instrument shall be received in evidence, unless the party charged with having executed the same, deny the execution of such writing by plea, supported by the affidavit of the party ¡heading; which affidavit shall be tiled with the plea.” Digest, chap. 126, p. 812, sec. 103.

2d. Enacting that, “In all suits, founded upon any instrument or note 'in writing, under the seal of the person charged-therewith, the defendant may, by special plea, impeach, or go into the consideration of such writing in the same manner as if such writing had not been sealed.” Ib. sec. 75.

And, 3d. By tbe enactment that, “An action at law may be maintained on any instrument of writing, whether under seal or not, notwithstanding it may be lost or destroyed; and in every such action, no profert of such instrument, shall be required,” &c. ^

The consequence is, that under our law, an action or defence, when setting up an unsealed written contract, is as much “directly founded ” upon such unsealed contract as it would be upon a sealed contract, if setting that up. And, therefore, with us, a written unsealed contract is to bo regarded as an instrument creating the right asserted in the declaration, or set up in the plea, in the same sense that the sealed contract is, and was so considered at the common law. Hence, our practice, long ago established, of requiring profert of unsealed written contracts, when counted upon, or when set up in a plea, precisely as profert would be required of a sealed contract.

Nor is profert, íd such cases, an idle ceremony; because, what such a contract means, is a question of law. It is the court, therefore, that determines its construction, and gives it to the jury as matter of law. 2 Parsons on Cont. á.

“The construction of all written instruments belongs to the court alone, whose duty it is to construe all such instruments, as Soon as the true meaning of the words, in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the court, either absolutely, if there be no words to be construed as words of art, as phrases used in commerce, and no surrounding circumctances to be ascertained; or, conditionally, wheh’those words or circumstances are necessarily referred to tliem. Unless this were so, .there would be no certainty in tbe law; for a -misconstruction by the court is the proper subject, by means of a bill of exceptions, of redress in a court of error, but a misconstruction by tbe jury, cannot be set right at all, effectually. Per PaRjke. B.,'in Nelson vs. Hartford, 8 M. & W. 806, 823.

Such a contract, then, ought to be alleged as in writing, with profert, that tbe court may have a view of it, pass upon its effect, and determine whether it furnishes the defence claimed for it.

The case of Smith vs. Henry, 2 Eng. Rep. 207, does not conflict with these views, because, in that case, the plea expressly set up a parol contract, under which, by intendment, the defendant was in the possession of the lots purchased, and the court, proceeding to construe that parol contract, held, that as “the promise to execute the deed was not in writing, that most clearly showed that it was the intention of the parties that the deed should be executed at the same time the money should be paid.” Ib. p. 213.

We think the court erred in refusing to grant the motion to strike out the plea, because, according to the matter therein set up, the consideration of the note sued on, was two-fold. That-is to say, one, the sale and purchase of the land, which was executed; and the other, the agreement'to make title to it, upon the payment of the note, which was executory; and the plea alleged a failure as to the latter. Hence, quoad the latter, the plea impeached the consideration of the note.

Such a plea, under the provisions of our statute, must be verified by affidavit. Digest, chap. 126, sec. 76, p. 808. Of this error, however, the plaintiffs in error cannot avail themselves, because, not to tlieir injury. But there was no error in sustaining the demurrer.

The judgment must, therefore, be affirmed.


author: Mr. Justice Scott:

text:
    Branch vs. Bolton.

      Error to Desha Ovrcidt Court.

    Hon. Theodoeic F. Sorrells, Circuit Judge.
    Piee & Cummins, for the plaintiff.
    Tell, contra.
   Mr. Justice Scott:

The only question in this case is determined by the point just decided, in the case of Clements vs. Duncan et al.

The judgment of the court below must, therefore, be affirmed.


text:
    Edmondson vs. Carnall.
    A plea in abatement, in an attachment suit, is not bad on demurrer, because it prays judgment both of the declaration and writ, the matter set up in the plea being to the entire proceedings, and not to so much as is a proceeding in rent.

    A plea, that the affidavit filed by the creditor before the issuance of the writ of attachment, was not taken before any judge, justice of the peace, or clerk of any of the Circuit Courts within and for this State, is good on demurrer.
    An affidavit taken within the county of Sebastian, and State of Arkansas, before “John E. Wheeler, Mayor,” was taken before one utterly unknown to our laws.

      Writ of Error to Sebastian OirGwit Court.

    Hon. Felix J. Batson, Circuit Judge.
    Fowler & Stillwell, for the plaintiff.
    S. H. Hempstead, contra.
    The utmost strictness is required pleas in abatement, and no intendment will be made in their favor. 2 Saund 209, C. / 1 Eng. 103/ 4 Eng. 388.
    The plea in this case, having prayed judgment of the writ and declaration, was bad, and the demurrer to it was properly sustained. 5 Arh. 460/ 3 Arle. 502 / 1 Mg. 460 / 3 T. R. 185/ 13 Wend. 495/ 2 Hen. ds Munf. 308.
   Mr. Justice Scott

delivered the opinion of the Court.

This was a proceeding by attachment in the Sebastian Circuit Court. The declaration was in debt on a promissory note for $132 40. The writ and return, as well as the bond and affidavit are copied in the transcript. The latter is in words and figure following, to wit:

“STATE OF ABN ANSAS.

COUNTY OF SEBASTIAN.

I, John Carnall, plaintiff in the above and foregoing declaration, do solemnly swear, that Samuel Edmondson, the defendant therein, is justly indebted to me in the sum of one hundred and thirty-two dollars and forty-four cents, and that the said Samue Edmondson is, as I verily believe, about to remove out of the State of Arkansas.

JOHN CABNALL.

Sworn to and subscribed, this 28th day of October, 1854, before me.

JOHN F. WHEELER, Mayor.”

The writ was levied upon lands, and served upon the defendant by reading it to him.

At the return term, the “defendant came by attorney and filed his plea in abatement,” in words and figures,following, to wit:

STATE OF ARKANSAS, >

COUNTY OF SEBASTIAN. )

In the Circuit Court of said county, February Term, 1855.

Samuel EdmoNDSon,

Advs. In debt.

JohN CaRNAll,

) Defendant. > ) Plaintiff.

And the said defendant by his attorney comes and praysjudgment of the said writ of attachment, and the declaration on which the same issued in this behalf; because he says that the affidavit by the said plaintiff, filed with said declaration in this behalf in the office of the said clerk of the Circuit Court of Sebastian county, in the State of Arkansas, on the 28th day of October, 1854, was not taken before any judge, justice of the peace, or clerk of anj1' of the Circuit Courts within and for the State of Arkansas. And so, the said defendant in fact says, that the said writ of attachment in this behalf, issued by the clerk of the Circuit Court of Sebastian county, was issued by him as such clerk, on the day and year aforesaid, without authority, and in papable violation of law, and this', he, the deiendant, is ready to verify; wherefore, he praj's judgment of said declaration and writ, and that said writ may be quashed.

SAMUEL EDMONDSON, Defendant.

By his attorney, W. D. Reagan.

This plea was regularly verified by the affidavit of Edmondson before the judge.

The plaintiff filed his demurrer, in whicli the defendant joined. The court held the demurrer well taken ; and the defendant refusing to answer over, and electing to rest on his plea, the court rendered final judgment in favor of the plaintiff, for the debt, and damages, and the defendant appealed to this court, assigning for error the action of the court upon the demurrer, and insisting that the plea set up matter sufficient to abate the proceeding.

The appellee, by his counsel, insists that the plea was bad, because it prayed “judgment of the declaration and %orit,” instead of praying merely that “the attachment he quashed.”

Conceding the principle of law. contended for by appellee’s counsel, as to the severe scrutiny to which pleas in abatement are to be subjected, it will nevertheless appear from the construction given by this court to our statute of attachments, in the case of Childress vs. Fowler, 4 Eng. Rep. 159, that the plea in question is not obnoxious to the objection thus taken to it.

That construction was : 1st. That die proceeding authorized, was, in its character of one suit, as an entirety, a compound proceeding, combining a proceeding in rem, with a proceeding in personam, each having, a distinct identity, but liable to be transformed, before a final judgment, into a proceeding solely ,i/nper-sonam. That, as a whole, it was constituted of “declaration, bond, affidavit and writ, in harmonious combination.” That if, as such, it should “be defective, as it would be in case the affidavit, the bond, or the writ should not be in conformity with the statute, or either should vary, the one from the other, in so much as to disturb the harmony of the whole, as one suit, the entire proceedings, if appropriately assailed, would necessarily fall. Because, being unknown to the common law, and a mere crea* tion of the statute, with prescribed pre-requisites and fixed limits, it must necessarily stand or fall upon its couformit}T or non-conformity with the terms, upon which, by the statute, it was permitted to be set on foot.” page 163. The statute in express terms en-l acting “on the requisites herein-before prescribed being complied with,” &c. Dig., ehap. 17, see. 6.

2d. That in this character, when viewed in this light, it was substantially a new form of action “ set on foot bj1- the Legislature not in a condition of isolation, but in harmonious connection with our entire system of jurisprudence, as a whole, of which it was itself to form a part.” And hence, like the other remedies or forms of action already known to the law, its want of propriety or efficiency may be questioned, and made to appear by the regularly established course oí pleading, applicable to other actions of law, unless in points where the statute, which gave it existence, otherwise provides. Page 165.

3d. That such of the provisions of this statute as establish or provide for means of defence against this remedy, ought to be liberally, and not strictly construed ; because, “to apply the principles of strict construction, which are usually applied to the enforcement of remedies derogatory to the common law, to provisions of the statute for resistence to this class of remedies, would be.felo de se, and an utter perversion of this conservative doctrine.” Page 165.

étñ. That this being understood and applied, “'a defendant under the provision of section 15, without any aid from section 29, would have the undoubted right to plead any abateable matter within the time, and according to rules fixed by law for defending against other actions at law, and that such matter, pleaded in due form and apt time, would go to the entire proceedings.” Page 166.

5th. That section 29 was not designed to impair, or take away any of these rights and privileges; but confers upon the defendant new facility, or means of abating, not the entire proceedings, but so much of them only as is a proceeding in re/m,. Page 166. This new means for abating so much of the proceedings only as is of the latter cast, being that of summary exceptions ” to the affidavit, whereby the defendant may insist upon abateable matter, in this mode and for this purpose only, under extraordinary circumstances: that is to say, extraordinary, in so much as that it may be used “in that condition of the case in its progress through the court, when, by the ordinary rules of law, dilatory pleas could be no longer made available,” (p, 164,165.) inasmuch as he can only avail himself of this extraordinary means of defence upon the condition precedent, that he makes his “common appearance” and “pleads to the plaintiff’s action not a dilatoiy plea, but a plea to the merits.” Page 167, 168, of the statute, section 29.

This construction of the statute of attachments, although it went beyond any construction that had been given to it by this court, in any decision previous to that of Childress vs. Fowler, did not, however, actually conflict with any such previous decisions ; nor has there been any decision made since that time, conflicting with this construction. And maintaining this one, it follows that it was not improper for the plea before us to pray judgment both of the declarationsand the writ; inasmuch as the matter set up in it, went to the entire proceedings, and not to so much of it, merely, as was a proceeding, in rem; the same having been presented by plea in abatement, verified by affidavit, interposed before common appearance to the action, and within the time allowed by the ordinary rules of law for interposing dilatory defences in every form of action.

No other question has been raised by counsel.

As to the sufficiency of the matter set up, the plea seems good upon its face. The statute declares that the affidavit “may be taken before any judge or justice of the peace within the State.” Dig., chap. 17, sec. 4. The plea alleges that the affidavit “was not taken before any judgeMor justice of the peace, or any clerk of any Circuit Court, within and for the State of Arkansas.” The demurrer admits this to be true.

The affidavit, as it appears in the transcript, was taken before John F. Wheeler, Mayorf and it also appears to have been taken within the county of Sebastian, and State of Arkansas.' If Wheeler was the Mayor of the municipality indicated by this caption, lie is utterly unknown to our laws; if, of some other, there is no indication in the record, of what city, town or district, either within this State, or beyond its limits.

We think, then, that upon this record, the plea upon its ^ace was good until avoided. The result is, that the court below erred in sustaining the demurrer, and for this, the judgment rendered must be reversed, and the cause remanded, &c.


text:
    Bond vs. The State.
    The issue to a plea of not guilty to an indictment for assault and battery,' cannot, by consent of parties, be tried by the court. (Wilson vs. The Slate, 16 Ark. Sep.)

      Appeal from the Circuit Court of Scott County.

    Hon. Felix J. Batsoh, Circuit Judge.
    Fowler & Stillwell, for the appellant.
    JORDAN, Attorney General, contra.
   Mr. Justice Scott

delivered the opinion of the Court.

This was an indictment for an assault and battery. The defendant pleaded not guilty, and the State joined isáue. By consent of the parties, tliis issue was'tried by tlie court sitting as a jury. Upon hearing the testimony the court found the defendant guilty, and assessed a fine of ten dollars, rendering judgment accordingly.

The defendant moved in arrest of judgment, which, upon being overruled by the court, the defendant excepted, setting out all the evidence in his bill of exceptions, and appealed to this court.

The only point made by the appellant, is, that the issue joined can only, by the law of the land, be tried by a jury. The Attorney General makes no point in the case, conceding, as is true, that it is within the influence of the decision in the case of Wilson vs. The State, 16 Ark. Rep., decided at the last term.

The judgment must be reversed, and the cause remanded to be proceeded with.