text:
    Bradley vs. Hume.
    A demurrer which, by relation, reaches back to the declaration, is a general demurrer; and if the facts alleged in the declaration can, by no manner of stating them, show a right of action in the plaintiff, the declaration is insufficient; otherwise, it is good. (6 Eng. 12; 1 lb. 215; 2 Ark. 115.)
    An action of forcible detainer will lie at the suit of a purchaser of land, which at the time of the purchase was in the possession of a tenant under a lease from the vendor, upon demand, etc., after the expiration of the term for which it was leased. (McGuire vs. Cook, 13 Ark. 448, approved, except so far as it may decide that the plaintiff can in no case sustain the action unless he has been in actual possession of the land.)
    The Statute (prior to the act of 19th July, 1855,) did not authorize an inquest of damages in favor of the defendant, in an unsuccessful action of forcible detainer. (Fowler vs. Knight, 5 Ark. 43.)

      Appeal from, the Circuit Court of Crittenden county.

    The Hon. George W. Beazley, Circuit Judge.
    Cummins for the appellant.
    On demurrer to plea, the Court can only regard such defects in declaration as are absolutely fatal. 2 Ark. Rep. 115.
    The assignee of a lessee is a tenant, and subject to the same remedies as the original lessee; and so the assignee of lessor is landlord and entitled to the same remedies as original lessor. 2 Eng. 329; Arch. L. & T. 69, 70; Com. L. & T. 257,258, 259.
    Act of January 19, 1855 cannot warrant assessment of damages on judgment for defendant. It can only apply to future cases. 1 Eng. 484.
    Fowler & Stillwell, for the appellee.
   Mr. Chief Justice English

delivered the opinion, of the Court.

On the 11th of December, 1847, Bradley commenced an action of unlawful detainer against Hume, in the Crittenden Circuit Court, by filing the following declaration, etc.

“ Thomas H. Bradley, by attorney, complains of Weden M. Hume, etc., Wherefore, he unlawfully detains the possession of the lands and tenements of the said plaintiff, situate in said county, after the expiration of the right of the said defendant, etc., to the possession thereof, etc.

“ For that the said defendant, on or about the 24th day of October, 1843, at the county aforesaid, leased, rented and obtained of one Allanson Morehouse, the possession of a certain tract or parcel of land, situate in said county, it being four hundred and thirty-five acres of a Spanish grant containing six hundred and forty acres, known as the John Grace confirmation lying at the mouth of Wappanocca. Bayou, on the Mississippi river, for and during the term of eight years from the day and year last aforesaid: and the said defendant, etc., acknowledged himself to be the tenant and lessee of the said Allanson More-house: and the said defendant and the said Morehouse, on the 9th day of November, 1846, canceled the said lease; and the said defendant agreed and bound himself in writing, under his hand and seal, to the said Morehouse, to relinquish, and did, on the day and year last aforesaid, relinquish all right and title to the said lease to him, the said Morehouse, and agreed with the said Morehouse to give him possession of the said land, on the day and year last aforesaid, to the first day of August, 1847, on which said mentioned day, the said defendant, by said agreement in writing was to give and surrender to the said Allanson Morehouse, complete and full possession of said lands, and every part thereof — his said lease being then totally at an end and fully determined: and the said plaintiff has, since the said agreement of 9th day of November, 1846, for the cancellation and expiration of said lease,'become the purchaser of the said lands, and the possession thereof from the said Morehouse, and was put in possession thereof. Yet, the said defendant, (although the time for which the possession of the said tract of land was let to him as aforesaid, has been fully determined and ended, by his said agreement of the 9th of November, 1846,) wrongfully, wilfully, and with force, holds over the said lands and tenements, after demand made in writing by the said plaintiff, for the delivery of the possession thereof to him the said plaintiff by the said defendant, since the expiration of the said lease — wherefore, the said plaintiff saith he is injured and aggrieved, and prays to be restored to the possession of said lands, and every part thereof.”

A writ was issued, and the plaintiff having executed the bond required by the statute, the sheriff put him in possession of the premises described in the declaration.

The defendant filed three pleas: 1st. That he did not detain the premises in manner and form as alleged, etc.; 2d and 3d. That he held possession of the lands under a parol contract to purchase them of the plaintiff, ete.

The plaintiff demurred to the pleas; the defendant conceded the demurrer as to the 2d and third pleas; and the Court held the first plea to be good; but the defendant insisted that the demurrer reached back to the declaration, and that it was insufficient; and the Court so decided, and sustained the demurrer as to the declaration; and the plaintiff declining to amend, judgment was rendered in favor of the defendant, for a restoration of the premises. Against the protestation of the plaintiff, the Court also caused a jury to be empanneled to assess damages in favor of the defendant; they were assessed at $1,-700, and final judgment was rendered accordingly. The plaintiff moved for a new trial, and in arrest of judgment; both motions were overruled, and he excepted and appealed' to this Court.

The demurrer was sustained to the declaration, and the damages assessed, etc., at the November term, 1855.

A demurrer which, by relation, reaches back to a previous pleading, is a general demurrer, and will cure a good title defectively stated; but will not cure a declaration where no title is shown. Outlaw et al. vs. Yell, Govr., 5 Ark. R. 468.

The demurrer in this case reaching the declaration by relation, and therefore, operating only as a general demurrer, if the facts alleged in the declaration could, by no manner of stating them, show a right of action in the plaintiff, the declaration was insufficient, otherwise it was good. Gordon vs. State, 6 Eng. R. 12. Cravens et al. vs. Mileham, 1 Eng. R. 215. Davis vs. Gibson, 2 Ark. 155.

The substance of the declaration is, that Morehouse leased the land to the defendant, and afterwards sold it to the plaintiff,. and that the defendant held over after the determination of his lease.

If the plaintiff could not maintain an action of unlawful de-tainer, unless he had been actually in possession of the land, and let it directly himself to the defendant, or to some one under whom he claimed, the declaration in this case is insufficient.

In McGuire vs. Cook, 13 Ark. R. 448, the declaration was held to be bad, because first, none of the counts alleged that the plaintiff was possessed of the premises; and, second, there was a misjoinder of causes of action. The language used in portions of the opinion is very broad and comprehensive, and would seem to import that the Court meant to decide that in all cases the plaintiff must allege that he was in possession of the premises.

If such be the proper construction of the statute affording a summary remedy for the possession of real property, where it is wrongfully withheld from the party rightfully entitled to it, the scope of its usefulness is greatly restricted.

Let it be assumed that the plaintiff can in no case maintain the action of unlawful detainer unless he has himself been actually in possession of the premises, and see what will be the result upon the remedy.

A, residing in Crittenden county, is the owner of a tract of land in Phillips, to which he has the undisputed right of possession, but has never actually occupied it. He leases it to B, for a term of one or more years, and at the expiration of the .term, B refuses to surrender possession to A, on demand. Here, although the relation of landlord and tenant exists directly between the parties, yet A, never having been actually in possession of tbe land, could not maintain unlawful detainer. This is but a single illustration of thousands of similar cases that might occur in this State, where there are so many persons owning lands and tenements which are under their dominion, but which are not actually occupied by them.

Again C is the owner and in possession of land. He leases it to D for a term, and then sells and conveys the land by absolute deed to E without reservation of the lease. D attorns to E, and pays him the rent until the expiration of the term, and then refuses to surrender the possession to him. Here, by the attornment, D becomes the tenant of E, and the relation of landlord and tenant between them is perfect; but E cannot recover the possession of the premises by unlawful detainer, because he never actually possessed them.

Moreover, F rents land, of which he is the owner, and possessed, to G, for a stipulated period. F afterwards dies, and the land descends, or is devised to his heir, or becomes assets in the hands of his executor or administrator for the payment of debts. Here, although the heir, executor or administrator stands precisely in the place of F, the landlord, and succeeds to all his rights, yet, if the tenant hold over after the expiration of his term, neither of them can turn him out by unlawful de-tainer, because he was never actually possessed of the land.

But, upon a careful examination of all the provisions of the statute relating to this form of action, there is not an expression in any section that is inconsistent with the right of action in cases like those above referred to, but the scope, spirit and manifest intention of the statute, as indicated by all its provisions, favor the right of action in such cases.

In the declaration now before us, there is no allegation that the defendant attorned to the plaintiff after he purchased the premises of Morehouse, the landlord, yet, upon the hypothesis that it was necessary for the plaintiff himself to have been actually possessed of the land to have entitled him to bring the action, such an allegation would not have bettered the declaration.

If the allegations in the declaration be true, and they must be so regarded on demurrer, the plaintiff succeeded to the right of possession of the landlord as against the defendant, who, under a general rule of law, was estopped from denying that he occupied the premises as a mere tenant.

On the trial of an issue to the declaration, if the plaintiff could prove the lease by Morehouse to the defendant, his occupation as a mere tenant under the lease, the determination of his term, the purchase by the plaintiff of Morehouse, and the refusal of the defendant to surrender the possession on demand in writing, as alleged in the declaration, we think the plaintiff would make out a prima facie case for recovery. If it be objected that the plaintiff would have to read in evidence his deed from Morehouse to make out his case, and the title would thereby be brought in question, the answer to the objection is, that the plaintiff would have the right to read his deed in evidence for the purpose of showing his right to the possession of the land, and the extent thereof, as provided by sec. 17 of the Statute Dig. ch. 71. For no other purpose can the title be adjudicated upon, or given in evidence.

The following adjudications upon statutes similar to ours, support the right of an heir, devisee, administrator, etc., or vendee of the landlord, succeeding to his rights, to maintain the action against the tenant holding over after the expiration of his term. Some of them are directly in point, and others are applicable on principle:

Mason vs. Bascom, 3 B. Mon. 269. Herndon vs. Bascom, 8 Dana 113. Turley vs. Foster, 2 A. K. Marsh. 204. Hildreth vs. Conant, 10 Metc. 298. Hollis vs. Pool, 3 Metc. 350. Rabe vs. Fyler, 10 Sm. & Mar. 440. Cummings vs. Kilpatrick, 23 Miss. (1 Cush.) 106, 6th vol. sup. U. S. Dig. 313. Allen vs. Gibson, 4 Rand. 470. Bowser vs. Bowser, 8 Humph. 23. Avery vs. Smith, 8 Black. 223. Stinsen vs. Gasset, 4 Ala. 171.

In some of the States whose decisions are cited above, the statutes embrace, in their terms, persons succeeding to the rights of the landlord, but there is nothing in our statute excluding them, and restricting the right of action to the landlord himself; and, as above remarked, it would be a narrow view of the object of the statute so to restrict its operation.

Missouri, however, goes the full length of restricting the right of action to the landlord, and denies it to his vendee, (Holland vs. Reed, 11 Mo. 605,) or his devisee. Picob vs. Masterson, 12 Ib. 303.

So much of the opinion of this Court in McGuire vs. Cook as declares the action in question to be merely possessory, and that, as a general rule, the plaintiff must have been possessed of the premises, to entitle him to maintain this form of remedy, and that he cannot recover upon mere constructive possession arising from his title; and that the action was not designed to be concurrent in all cases with ejectment is fully approved and confirmed. But so much of that opinion as may seem to decide that the plaintiff can in no case sustain the action unless he has been himself actually in possession of the land, we do not approve. On page 455 of the book containing the opinion, the exceptions to the general rule, which we have been discussing, were referred to; and on the succeeding page, the proper construction of the last clause of the third section of the statute, which authorizes the action of unlawful detainer, was expressly left open for future adjudication.

We think the great criterion of this form of action is the relation of landlord and tenant, actual or constructive, rather than the mere fact of actual possession of the land by the plaintiff.

Other objections are made to the declaration, but they are merely formal, and do not vitiate upon general demurrer.

The counsel for the appellee concedes that the judgment of the Court below upon the inquest of damages, must be reversed. The statute in existence when the action was brought, did not authorize the inquest of damages in favor of defendant, but left him to his remedy upon the plaintiff’s bond. Fowler vs. Knight, 5 Eng. 43. It is not insisted that the act of 19th January, 1855, (Pamph. Acts of 1854, p. 187) is applicable to this case.

Both the judgment upon the demurrer, and the judgment upon the inquest of damages, are reversed, and the cause remanded with instructions to the Court below to sustain the motion in arrest of judgment, and to permit the parties to amend their pleadings if they desire to do so, and that the cause proceed in accordance with law, and not inconsistent with this opinion.

Mr. Justice Hanly, not sitting.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Bender vs. Bridge & Co.
    It is error to issue a joint ■writ of garnishment against several, with allegations of a several instead of a joint indebtedness.

      Error to Pulaski Circuit Court.

    The Hon. John J. Clendenin, Circuit Judge.
    Watkins’ & Gallagher for the plaintiff.
    Bertrand for the defendants.
   Mr. Justice Scott

delivered the opinion of the Court.

This cause was brought here by writ of error to the Pulaski Circuit Court, sued out by Bender. The facts of the case, in all that is material to the point of law involved, are the same, as in the case of the Cincinnati and Little Rock Slate Co. vs. Bridge & Co., (17 Ark. R. p. ) following the cases of Thorn & Robins vs. Woodruff et al., 5 Ark. R. 55, and Moreland et al. vs. Pelham, 2 Eng. R. 338.

Upon the authority of these cases, the judgment in question must be reversed, and the cause remanded.


text:
    Miller vs. Barkeloo et al.
    The Supreme Court having adjudged, on motion to quash a supersedeas of a delivery-bond judgment, that such judgment was a mere nullity, all parties are bound by . the adjudication (Borden et al. vs. State use, etc., 6 Eng. 519;) and it was error in the Circuit Court to hold the judgment as still subsisting.

      Error to the Circuit Court of Pulaski county.

    Hon. William H. Feild, Circuit Judge.
    Watkins & Gallagher for the plaintiff.
    Cummins for the defendants.
   Mr. Justice Scott

delivered the opinion of the Court.

This was a scire facias, issued the 8th day of November, A. D. 1852, to revive a judgment recovered by Miller, against the defendants in error, in the Pulaski Circuit Court, the 14th day of November, A. D. 1840. The pleas interposed were:

1st. Nul tiel record.

2d. Payment.

3d. Set up the giving and forfeiture of a delivery bond, under the old forthcoming bond system.

4th. Set up the same facts with an an additional averment that, on the 8th March, 1841, Miller, on motion, took judgment in the Circuit Court on this delivery bond, which, it is alleged, remains in full force.

To the first plea, Miller replied that there was such a record as that recited in the scire facias, which he prayed should be inspected. To the second, he replied that the judgment was not paid. To the third he demurred; and to the fourth plea he replied; 1st. That after the rendition of the judgment upon the delivery bond, “ the execution of said judgment was perpetually and forever inhibited and superseded by the consideration and judgment of the Supreme Court of the State of Arkansas, which said judgment of said Supreme Court still remains in full force and effect.”

2d. That there is no record of said judgment on the delivery bond.

To the first replication, a demurrer was interposed; to the second replication issue was joined and tried by the Court, and upon inspection of the record found for the defendants, who were thereupon adjudged to go hence, and recover their costs. It does not appear that the other issues were in any way otherwise disposed of.

A bill of exceptions taken by the plaintiff shows that upon the trial of the issue formed upon the second replication to the fourth plea, the defendants, to maintain the issues on their part, read in evidence the judgment mentioned in said plea; and thereupon the plaintiff, to sustain said issue on his part, proved that afi.fa. issued on the judgment on the delivery bond mentioned in said plea, and was levied on certain property, and returned without sale. That a ven. ex. was afterwards issued, and on the 20th of October, A. D. 1845, the Hon. Williamson S. Oldham, then one of the Judges of the Supreme Court of this State, made an order directed to the clerk of said Supreme Court, reciting that as said judgment was rendered against said defendants without their appearance in said Circuit Court on the motion for judgment against them, and without service of process on them to appear, and without any other legal obligation upon them to appear in said Circuit Court, said Court had no jurisdiction over the persons of said defendants, and said judgment against them was absolutely null and void, and said writ of ven. ex. had improvidently and illegally issued; and awarding a writ of supersedeas to stay all further proceedings under said judgment; which writ of supersedeas was accordingly issued. And on the same day, the plaintiff. Miller, appeared in the Supreme Court in term time, and filed his motion praying said Court to quash said writ of supersedeas, because the same was issued improvidently, and without authority of law; which motion the Court refused and overruled. It was also admitted and agreed by the parties, as appears in their bill of exceptions, that the proceedings of the Supreme Court in the premises should be taken and considered as they appear reported in the third volume of English’s Reports, beginning at page 318, and that the facts stated in said bill of exceptions are to have and be taken with the same effect, as if the several records, by which they are to be established, had been produced and read, and then incorporated in the bill of exceptions.

From the argument of the counsel it is to be inferred that the Court below found the issue, that was tried, for the defendants, upon the ground that the proceeding in the Supreme Court, and of the Judge in vacation, which was thus recognized and confirmed, was itself a nullity; and that, consequently, the judgment upon the forthcoming bond was still in force.

That position is altogether inconsistent with the doctrines of the case of Borden et al. vs. The State use, etc., (6 Eng. R. 519,) ever since adhered to in this Court.

But the counsel contends that, although this may be so, nevertheless the judgment upon the delivery bond ought not to be considered as annulled and vacated; because, as they contend, the supersedeas ran only to the process of execution, and not to the judgment itself. But this Court, in that case, could not so have considered the action of the supersedeas; because, it distinctly appears in the report of the case in 3d Eng. R. p. 320, (which report is, by reference, expressly incorporated in the bill of exceptions as a part of the case at bar) that it was urged as a ground for quashing the supersedeas on motion, when both parties were in Court, that it loent to the judgment itself, as well as to the process of execution; for the counsel is reported as having said: “ The wiit of supersedeas in this case is to the judgment itself, and also to the process of execution based thereon. Can such a writ be legally issued? The plaintiff insists that it cannot, consistently with any known principles of law, and that it is without precedent.” (Same page.)

And when that motion was heard and determined, not only were both parties present by counsel, but there was also before the Court a transcript, not only of the process of execution, but also of the judgment, as appears by copies set out in the report of the case on page 319.

Whether these transcripts were presented voluntarily by the parties, or were brought in by the more regular mode of a writ of certiorari, does not appear.

And that the adjudication of the Court was upon the judgment as well as upon the process of execution, is to be inferred from the concluding language of the opinion delivered, which, after going into an examination of the record of the supposed judgment, and commenting upon it, concludes as follows, to wit: “We are clear, therefore, that the record in this case does not disclose such facts as the statute requires to constitute a constructive notice to the defendants, and that, consequently, the judgment rendered upon the delivery bond is a mere nullity.”

It is true that a formal quashal of the judgment in express terms does not appear, but inasmuch as, in legal contemplation, “void things are no things at all,” an objection predicated upon that omission, would savor more of form than of substance.

The operation of the doctrine of the case of Borden et al. vs. The State, cannot, therefore, be obviated on this ground, as the counsel seem to suppose.

The judgment upon the forthcoming bond having been thus held for naught by this Court, it was error for the Court below to hold it still subsisting.

Nor was the action of this Court in that case without precedent, as seems to have been supposed by counsel. In Judge Tucker’s Commentaries on the laws of Virginia, in treating of the writ of supersedeas it is said: “ It is in England an auxiliary process, and was used as the companion of the writ of error; but, in Virginia, it is in general a mode by which the record of the judgment of an inferior Court is removed before a superior jurisdiction, for the purpose of correcting errors in the proceedings or judgment. And when it is so, it corresponds, and is of the same nature with a writ of error, the principles governing the latter applying to the former.” Citing the case of White vs. Jones, 1 Wash. R. p. 163, where the Court of appeals, by President Pendleton says: “ A writ of supersedeas in England is merely an ancillary process; and so it is, to some extent, in this country. But, in general, it is a mode by which the record of a judgment of an inferior Court is removed before a superior jurisdiction.” And it appears in the Virginia Reports throughout, that the term “ inferior Courts ” is not used in these authorities in its technical sense, but in the popular; since, in practice there, as these reports show, the supersedeas and certiorari have almost entirely displaced the writ of error.

But we are not to be understood, by this citation of authority, to justify the former practice of this Court as to the writ of supersedeas, to indicate any thing more than that there was some precedent for it.

The judgment in this case must be reversed, and the cause remanded.


author: Mr. Justice Scott:

text:
    Barkeloo et al. vs. Miller.
   Mr. Justice Scott:

This was a sci. fa. to revive a judgment on a forthcoming bond. The case is the counterpart of that of Miller vs. Barke-loo, just decided, where the judgment that was revived in this case was held to have been annulled.

The judgment in this case must, therefore, be reversed.


author: Mr. Justice Hanly

text:
    State vs. Grider.
    In an indictment for betting on any one of the games named in the first section of the Gaming Act, it is sufficient to describe the game in the language of the act.
    But where the charge is for betting at a “ gaming table, or gambling device, or bank of the like or similar kind, or of any other description, although not named,” the indictment should aver, in addition to the name, that it was a gaming table or bank similar to one of the games named in the act, or else that the game was a device “ adapted, devised and designed for the purpose of playing a game of chancé, and at which money or property may be won or lost;” and so a charge that the defendant bet “upon and against a certain gambling device commonly called the Tiger,” held insufficient.
    On the trial of an indictment for betting at Faro, the Court instructed the jury that if they find from the evidence that the defendant bet upon a game called Tiger, and it is essentially different from Faro in the rules and principles of the game, so as to make it another game, they should acquit: Held that the State had no right to complain of the instruction.
    The rule, that this Court will not disturb the verdict of the jury where there is not a total want of evidence to support it, approved.

      Quere. Can the Circuit Court in any criminal cause, after a trial and verdict of acquittal, grant to the State a new trial, so as to subject the accused to another trial! Or can this Court, on reversing any criminal case at the instance of the State, award a second trial?

      Appeal from, the Circuit Court of Randolph county.

    Hon. Beaufort H. Neely, Circuit Judge.
    JoRDan for the State.
    Wm. Byers for the appellee.
   Mr. Justice Hanly

delivered the opinion of the Court.

The appellee was indicted at the November term of the Randolph Circuit Court, for 1854, for gaming, under the provisions of the first and third sections of the 3d art. of the 51 si chap, of the Dig. p. 365-’6.

The indictment contains four counts, as follows:

The 1st: Charging the appellee with betting a certain sum of money “ upon and against a certain faro bank, then and there exhibited,” etc.

2d. With betting a like sum of money “ upon and against a certain gaming table then and there exhibited, commonly called a faro bank,” etc.

3d. With betting a like sum of money “ upon and against a certain other gambling device commonly called the Tiger,” etc.

4th. And.with betting a like sum of money “upon and against a certain other gambling device then and there exhibited commonly called the Blind Tiger,” etc.

At the May term, 1855, the appellee moved the Court to quash the indictment for sundry reasons set out. The Court, on consideration of the motion, overruled it as to the first two counts, and sustained it as to the two latter; to which the State excepted. The appellee was arraigned on the first two counts, pleaded not guilty thereto, and was tried by a jury and acquitted.

A motion for a new trial was made by the attorney for the State, and on consideration thereof was overruled by the Court; to which the appellant also excepted, setting out all the evidence adduced at the trial, which we will state as far as material, when we come to treat on that branch of the case.

It appears also from the transcript that certain instructions were given to the jury by the Court, and exceptions taken thereto by the appellant, which we will hereafter also state when they are particularly and specially considered.

The cause was brought to this Court by appeal.

Several errors are assigned, questioning the judgment of the Court below in respect to the quashing of the last two counts in the indictment, as well as the giving of certain instructions, and the refusal to grant the new trial as moved for.

We will proceed at once to consider and determine these several questions raised by the assignment of errors in this cause.

1. Did the Court below err in quashing the last two counts in the indictment? The indictment in this cause was framed ■ under the 1st and 3d sections of our Gaming Act, which are in these words:

“Sec. 1. Every person, who shall set up,keep or exhibit, any gaming table, or gambling device, commonly called A B C, E O, roulette, rouge et noir, or any faro bank, or any other gaming table or gambling device, or bank of the like or similar kind, or of any other description, although not herein named, be the name or description what it may, adapted, devised or designed for the purpose of playing any game of chance, or at which any money or property may be won or lost,” etc.

“Sec. 3. If any person shall be guilty of betting any money or other valuable thing, or any representative of any thing that is esteemed of value, on any of the games prohibited by the first section of this act, on conviction,” etc. See Digest p. 366.

The first section of our Gaming Act has, therefore, been very ably and thoroughly construed by this Court in a series of cases commencing, we may say, almost from the date of its passage, and continuing to the present period; and we know of no case in the entire series in which the subject has been more fully elaborated than in Brown vs. The State, (5 Eng. R. 616), in which this Court said: “ In the first class of offences in the enumeration, the entire motive power and machinery of the game consists in the table itself, and that in the latter, the name and whole character of the game are directly derived from, and are wholly dependant upon the isolated idea of a bank, as stripped and disconnected from that of a table"

In a subsequent case, (Stith vs. The State, 13 Ark. R. 683), the construction of the first section of the gaming act again came up for consideration', under a state of facts differing somewhat from that presented in the case from which we have just quoted, in which this Court said: “Where the.betting is against one of the banking games, it is sufficient for the indictment to charge that the defendant bet against such bank or table,” etc. And to the same purport are the cases of Drew vs. The State, (5 Eng. R. 82.) The State vs. Eldridge, (7 Eng. R. 608.) Johnson vs. The State, (13 Ark. R. 684), and the cases of the two Barkmans, (13 Ark. R. 703 and 705.)

From the tenor of those decisions, there can be no doubt, we think, that when the charge is for betting upon any one of the games named in the first section of the act, all that is required to make the indictment effective and valid, is, to describe the game in the language of the act itself, as for instance ABC, E O, roulette, rouge et noir, or faro bank. But when the charge is for betting at a “ gaming table or gambling device, or bank of the like or similar kind, or of any other description, although not (in the act) named,” we hold that the indictment should aver, in addition to the name of the particular device, bank or table, that the game bet at was a gaming table or bank, similar to one of the games specified or named in the act, or else that the game .played at was a device, “adapted, devised or designed for the purpose of playing a game of chance, and at which money or property may be won or lost.”

In the case before ns the indictment does not aver that the games of “Tiger” and “Blind Tiger,” are either banking games or gambling tables. The word “ device ” used in the indictment is not sufficiently comprehensive or potent to designate the game bet at or upon, so as to enable the Court to determine whether the games were really banks or tables, or whether they belonged to that other class of games prohibited and punished under the provisions of the 8th section of the same chapter of the Digest, which are differently punished and require, different averments to charge them properly. "With the view of the law as we have expressed it, the conclusion upon our minds is irresistible that the Court below did not err in quashing the third and fourth counts in the indictment.

2d. The next question, which arises on the record, is the one growing out of the instruction which was given to the jury which tried this cause in the Court below, and which was excepted to by the counsel for the State. The instruction to which we refer is as follows: “ That if the jury should find from the evidence that the defendant had bet money in Randolph county, within twelve months next before the finding of the indietmeut, on or against a game of faro, they should find him guilty, and if they should find that the game, against which the defendant bet, was called by another name, to wit: Tiger, and if they should believe from the evidence that Tiger and faro are the same game in principle, although differing in some respects, yet, if the differences do not affect the rules and principles of the game so as to make them, in principle, essentially different games, although called by different names, they should find a verdict of guilty; but if they should find from the evidence that the defendant bet upon a game called Tiger, and it is essentially different from Faro in the rules and principles of the game, so as to make it another game, they should acquit.” By reference to the testimony brought upon the record by the appellant’s bill of exceptions, we think there can' be no doubt but that the instruction given was not an abstract one, but was one warranted by the evidence. We are, moreover, ol the opinion that the law is correctly laid down in the instruction, as applicable to the charge in the indictment, and the facts elicited upon the trial. It is as favorable to the State as she could have asked. If it is obnoxious to any complaint at all, it certainly does not behoove the State to be heard to complain against it; it might with more propriety come from the other party. But as we before remarked, we do not conceive that any serious objection could be taken to it, even by the appellee, had he seen proper to attempt it, and were he in a position to do so. We, therefore, hold that the Court below did not err in giving the instruction in question, as far as the appellant is concerned or affected.

3d. As to the third and last question presented for our consideration and adjudication; did the Court below err in overruling the appellant’s motion for a new trial? Before proceeding to determine this question we take occasion to remark that we waive any opinion as to the question, whether the Court below could, in any criminal cause, after a trial and a verdict of acquittal, grant to the State ,a new trial so as to subject the accused to another trial, and also, whether this Court ever since the passage of the act of 1846, (see secs. 240 and 241, chap. 52, Dig. p. 423,) allowing appeals and writs of en’or in certain cases in behalf of the State, on reversing the judgment of the Circuit Court, can in any case, where there has been a regular jury trial, and an acquittal of the defendant, grant a new trial to the State, and require a defendant to undergo a new trial in the Circuit Court; preferring, as we do, to consider these grave points, only when they are deliberately made by counsel, or necessarily arise in the cause we are considering. In the case before us, the necessity of a decision upon these questions is removed by the result, of our opinion upon the whole record before us. Waiving these questions, then, should the Court below have granted to the appellant a new trial? We will not attempt a statement of the evidence or testimony. We shall content ourselves by simply remarking, that there was evidence before the jury conducing to show that the game bet at by the appellee, was not the game of faro, but was a game of a different name, and so materially differing from the game of faro as to make it a question of identity, in respect to the game, to be determined by the jury in their return upon the entire body of facts before them. (See James Barkman vs. State, ubi sup. and the cases there cited.)

The rule, both in civil and criminal causes, under the facts above stated, is this; that where the statements of witnesses are contradictory, it is the province of the jury to determine which is entitled to credit, and to find accordingly; and this Court will not review the evidence for the purpose of passing upon the correctness of their conclusion as to the weight of evidence. It is sufficient that there is not a total want of evidence to support the verdict. See Mains vs. State, 13 Ark. R. 285. Funkhouser and wife vs. Pogue, Ib. 296. Hendrix vs. Sharp, same 306. Stanton vs. State, same 317. Bevens vs. State, 6 Eng. R. 463, and many other cases to the same point.

As we regard the case before us as strictly within the rule just laid down, we are forced to the conclusion that the Court below did not err in refusing to set aside the verdict and grant the appellant a new trial.

Finding upon the entire record no error of which the appellant had a right to complain, the judgment of the Randolph Circuit Court is therefore in al‘1 things affirmed.'


author: Mr. Justice Hanly,

text:
    Frank et al. vs. Hedrick.
    The case of McGuire vs. Cook, 13 Ark. R. 448, as modified by Bradley vs Hume, ante p.-, as to the allegations of the declaration in an action of unlawful detainer, approved.
    There can be no doubt that the pleas copied in the transcript, were legally filed in the Court below, where the clerk certified that they were “ filed in open Court, Oct. 9, 1855,” and the record entry, of the same date, states that the defendant, by attorney, filed his two pleas, No. 1 and 2.” .
    Ordinarily, it is irregular in practice to interpose a demurrer to the declaration after pleas in bar have been filed. But such irregularity will not avail the plaintiff, when the defect in his declaration is not only a substantial one, but of such a character that advantage might be taken of it, as well upon a motion in arrest, or writ of error, as upon demurrer.

      Appeal from, Chicot Circuit, Court.

    The Hon. Theodoric F. Sorrells, Circuit Judge.
    Fowler & Stillwell for the appellants.
    Cummins & Garland for the appellees.
   Mr. Justice Hanly,

delivered the opinion of the Court.

The appellants brought unlawful detainer in the Chicot Circuit Court, alleging in their complaint or declaration, that, on the 9th of August, A. D. 1855, the appellants were entitled to the possession of a certain tract of land and premises, situate in the county of Chicot, by virtue of a deed from Messrs. S. O. Nelson & Co. dated 20th June, 1855, and duly recorded in the Recorder’s office of said county: and that the appellants being so entitled to the possession thereof, on the 10th August 1855, at the county of Chicot, demanded possession of the same by notice in writing (as it was alleged) according to the statute in such case made and provided, but the said appellee, although -so requested to quit his possession, wholly refused to quit such possession, and deliver the same to the appellants, and has from thence continued unlawfully and forcibly to detain and hold the said land and premises from the appellants, etc. On the filing of the complaint with the affidavit and bond prescribed by the statute, the clerk issued the appropriate writ, returnable to the-second Monday in OctoberyA. D. 1855, that being the day on which the next term of the Chicdt Circuit Court was holden, after the commencement of the suiV

It appears from the transcript that on the 9th October, 1855, the appellee, by attorney, appeared, and filed his two pleas, described as No’s 1 and 2, and from the record, in which they are copied, are evidently the general issue, and the statute of limitations setting up three years as a bar. As there is a controversy between counsel in respect to the fact, whether or not these pleas were really filed in legal contemplation, we give the entries, or memoranda on the record, in respect to the subject, as follows: It is certified by the clerk, that those pleas were endorsed thus: “ filed in open Court, Oct. 9th, 1855,” and again, in that part of the record in which they are copied, immediately preceding the copies, there is the following entry or memorandum, to wit: and afterwards, to wit, on the 9th day of October, 1855, the defendant by attorney, filed his pleas, No’s 1 and 2, etc.”

It appears also from the transcript, that on the same day the above pleas were filed, as above shown, the appellee interposed a demurrer to the complaint or declaration of appellants, setting out sundry causes. On the same day the demurrer was filed, it was acted upon by the Court, and judgment rendered thereon in favor of the appellee, and that appellants answer oyer, which, it Seems, they declined to do, but rested upon their declaration. Judgment final was rendered for the appellee,— that the appellants take nothing by their suit, that the appellee have restitution of the lands and premises sued for, and recover his costs, etc.

The appellants appealed, upon which the cause is now pending in this Court.

The appellants assign for error the following, to wit:

1st. That the Court below sustained the demurrer of the ap-pellee to the appellant’s declaration.

2d. General assignment.

We will proceed to consider and determine the assignments in the order in which they occur.

1st. Did the Court err in sustaining the demurrer of the ap-pellee to the declaration of the appellants? We think this question has been put completely to rest by this Court, in McGuire vs. Cook, (13 Ark. R. 448 et seq.,) for it will be observed that the declaration fails, or omits to aver that S. O. Nelson & Co., from whom it is alleged the appellants purchased the premises in question, had ever had possession of them prior to the execution of the deed from them to the appellants: and more than this, there is no averment in the declaration to the effect, that the appellants themselves ever had actual or constructive possession of the premises, or that the appellee was lessee or tenant either of S. 0. Nelson & Co., before their sale to appellants, or of the appellants since they became the owners of the land and premises in controversy. As we have just declared in Bradley vs. Hume, that “ so much of the opinion of this Court in McGuire vs. Cook, as declares the action in question (unlaw-full detainer) to be merely possessory, and that as a general rule, the plaintiff must have been possessed of the premises to entitle him to maintain this form of remedy; and that he cannot recover upon mere constructive possession arising from his title; and that the action was not designed to be concurrent, in all cases, with ejectment, is fully approved and confirmed. But as much of that opinion as may seem to decide that the plaintiff can in no case sustain the action unless he has been himself actually in possession of the land we do not approve;” so we reiterate and again affirm here. The declaration in the case at bar, unlike the one in Bradley vs. Hume, is totally and utterly deficient in omitting to aver the existence of the relation of landlord and tenant, actual or constructive between the appellants and appellee, so as to constitute the holding over after demand, unlawful and wrongful on the part of the appellee, in the purview of the act under which the proceeding is warranted and had. We are therefore forced to the conclusion from the tenor and letter of the act in question, as well as upon the authority of the cases above referred to, that the Court below did not err in sustaining the demurrer to the declaration in this cause.

But it is insisted upon the part of the appellants, that the demurrer interposed to the declaration, which we have just considered, was waived on the part of the appellee by the interposition of his two pleas in bar filed on the same day. Without conceding this fact, it is maintained on the part of the appellee, that the record does not show that any pleas were really filed by him in the Court below, except so far as the filing order endorsed on the pleas copied in the transcript may indicate, insisting, as he does, that the mere endorsement of the filing on a plea, by the clerk, does not, in legal parlance, constitute the plea “filed.” There can be no doubt of the fact “ that every declaration, statement or other pleading shall be signed by the party filing the same, or his attorney: and the clerk shall endorse thereon the day on which it was filed, and if filed in term time, shall make an entry thereof on the minutes.” (See Dig. ch. 126, sec. 52, p, 804. Davis vs. Gibson, 2 Ark. R. 117. Cole & Stephens vs. Wagner ad., Ib. 154. Kittlewell et al. vs. Scull, 3 Ark. R. 474. Duke et al. vs. Crabtree, 5 Ark. R. 478.

On examination of the transcript we think there can be no doubt of the fact, that on the same day, and (the transcript shows from their positions) before the demurrer was filed, the appellee filed his two pleas, Nos. 1 and 2, as the entry expresses it; and the pleas themselves transcribed, manifestly give evidence of their character and purport; thus fulfilling the requirements of the statute in this respect, declared, as it has been by the adjudications of this Court to which we have above referred, to be a substantial requirement, and not one merely directory which may be omitted according to the caprice or discretion of the clerk without prejudice to the parties.

Conceding the question as to the filing of the pleas to be settled in accordance with the views already expressed on the subject — what effect do they have upon the demurrer of the ap-pellee to the appellant’s declaration?

Ordinarily, it is irregular, in practice, to interpose a demurrer to the declaration, after pleas in bar have been filed, or as it is better expressed, a defect in pleading is aided if the adverse party plead over to, or answer the defective pleading in such a manner that an omission or informality therein is expressly or impliedly supplied, or rendered formal or intelligible.” See 1 Chitty’s Plead. 671. McLaughlin vs. Hutchins, 3 Ark. R. 211. Woods, exparte, Ib. 532.

But with regard to a defect in substance, it seems that it cannot be impliedly cured by the mere effect of pleading over thereto. As for instance, if the defendant plead accord, and do not show satisfaction, and the replication merely deny the agreement, this traverse cannot cure the fault in the plea, namely, the omission to show a satisfaction to the plaintiff in regard to the cause of action. If, however, the adverse pleading expressly admit the fact, which ought to have been stated in the defective pleading, and which is substantially incorrect in omitting it, the error becomes, it is said, immaterial. See 1 Chitty’s Plead. 672 et seqr.

A pleading setting forth a good title defectively, will be cured by pleading over other matter; but a pleading setting up no title whatever, and showing no cause of action or ground of de-fence in the pleader, will not be cured by pleading over other matter. See Spear vs. Bricknell, 5 Mass. R.; Robbins vs. Luce, 4 same 476.

Applying these rules to the case before us, we are irresistibly forced to the conclusion, that the 'general rule, which we have laid down in respect to the effect of pleading over after demurrer, does not apply here, for the reason, that the defect existing in the declaration demurred to, was not only a substantial one, but of such a character as to render the declaration utterly and thoroughly defective for the reasons which we have before herein expressed, when treating of the demurrer. We therefore hold, that the Court below did right, when it disregarded the two pleas of the appellee and proceeded to consider and adjudicate the demurrer; for to hold otherwise in the case, would be, in effect, to require the Court to proceed to do that which would eventually result, as the cause has already done upon demurrer; for the defect in the-declaration is of such a character that advantage might be taken of it, as well upon a motion in arrest and writ of error as upon a demurrer.

Entertaining the views that we do, upon the whole record, we hold that there is no error in the judgment of the Chicot Circuit Court in this cause, and we therefore accordingly affirm the judgment.


author: Mr. Chief Justice English

text:
    Slocomb, Richards & Co. vs. Blackburn et al.
    Where personal property is levied upon, and, by direction of the plaintiff, the sheriff permits it to remain in possession of the defendant, and returns the execution -without a sale, the levy will not continue to be a lien as against intervening rights of other persons; and against other creditors is regarded as dormant and fraudulent.
    A judgment creditor issued execution which was levied upon slaves; the defendant gave a delivery bond (under the act of 29th March, 1839,) which was returned forfeited, but no judgment was taken on the bond: no further process was sued out upon the judgment for more than five years, when the plaintiff caused fi. fa. to be issued — taking no notice of the levy previously returned: after the lapse of more than seven years from the time of the return of the delivery bond forfeited, and after the death of the defendant, the plaintiff files a bill in equity, against a party in possession under claim of title, without showing diligence or sufficient excuse for the delay, to enforce a specific lien upon the slaves under the original execution and levy: Held that the claim to a specific lien was not well founded.

      Quere. Could a specific lien upon personal property, created by the levy of an execution in the life-time of the judgment debtor, be enforced by a Court of equity, after his death, without administration, or regard to our Probate Court system?
    Under the provisions of our probate system, upon the death of any person, his estate passes into the hands of the law, to be administered for the benefit of creditors, etc., according to their priorities: and no one creditor has a right to come into a Court of equity to set aside conveyances of property, made by the d eceased debtor, as fraudulent and void as against creditors, and subject such property to the payment of his own debt, without regard to our probate system, or the rights of other creditors.

      Appeal from Pulaski Circuit Court in Chancery.

    The Hon. William H. Feild, Circuit Judge.
    This cause was argued at length by the counsel on both sides upon points made as to the validity of the deeds of settlement.
    Thapnall for the appellants.
    Pike & Cummins, and Watkins & Gallaghek, for the appellees,
    also contended that there was no lien upon the slaves after the return of the execution and forfeited delivery bond: that the lien created by the levy was lost; that an execution is a lien only while it is in the hands of the officer unless the property is in his possession by a subsisting levy, (Rev. Stat. ch. 67, sec. 2; Biscoe etal. vs. Sandefur et al. 14 Ark. 568; 15 Ark. 274; Daniel vs. Cochran, 4 Bibb. 532; Malone vs. Abbott, 3 Humphrey's 532,) and it was only upon the footing of a lien upon the property that chancery would have jurisdiction, (Story's Eq. PL sec. 257; Mitt. Eq. PL by Jeremy 126, 187, 188; 1 Vern. R. 399:) that as the bill was filed after Marshall’s death, the only way a creditor could reach the property would be by an administration (Lemon's heirs vs. Rector et al. 15 Ark. 436.
   Mr. Chief Justice English

delivered the opinion of the Court.

On the 21st of March, 1848, Slocomb, Richards & Co., filed a bill in the Pulaski Circuit Court, against Samuel D. Blackburn, Eliza Marshall, widow; and James D. B., and John G. Marshall, infant beirs of Gilbert Marshall, deceased. The case made by the original bill is substantially as follows:

On the 21st March, 1837, Gilbert Marshall and David Tits-worth, who were then engaged as partners in the mercantile business, in Scott county, purchased of the complainants at New Orleans, a bill of goods, for which they' made their note for $1,372 57, due at twelve months, etc. On the 14th April, 1838, Marshall purchased another bill of goods of complainants, for which he gave his individual note for $370 52, payable at twelve months.

On the 1st July, 1839, the complainants commenced suit, in the Scott Circuit Court, against Marshall and Titsworth on the first note, and against Marshall on the second note: and on the 1st of October of the same year, obtained judgment in both suits, etc.

On the 28th of August, 1840, a Ji. fa. was issued on each of said judgments to the sheriff of Scott county, returnable to the September term following: which were levied on two slaves, Sam and Nathan, and some lots and land, in and near Boonville, as the property of Gilbert Marshall.

In the mean time, the bill alleges, Gilbert Marshall, on the 20th Dec., 1858, being deeply in debt and pressed by his creditors, and about to enter into marriage with Eliza Blackburn, conveyed to Samuel D. Blackburn, for her use, all his personal and real estate, leaving nothing to pay his debts, etc. In which conveyance was embraced the property levied on as above.

After the levy was made, Blackburn, as trustee in the deed of settlement, claimed the property; the sheriff summoned a jury to try the right of property, and they rendered a verdict • that the slaves were subject to the executions. The real property levied upon was sold by the sheriff for a small sum; but the time for selling under the executions had expired before the conclusion of the trial of the right of property, and the slaves were not sold for the want of time. ■

On the 2d of October, 1840, a venditioni exponas was issued on each of the judgments, to the sheriff of Scott county, commanding him to sell the slaves Sam and Nathan, etc., etc., returnable to the March term, 1841. The sheriff returned that he had surrendered the possession of the slaves, on the execution of a delivery bond by Marshall, etc., which had been forfeited, etc.

The bill further alleges that- shortly after the delivery bond was given, the slaves were removed from Scott county, by Sam’l D. Blackburn, and complainants were not aware what had become of them, until sometime in the year 1846, when they were informed that they were on a farm of Blackburn’s in Pulaski county, about twenty miles above the city of Little Rock. Whereupon, on the 14th Sept. 1846, complainants caused a ji. fa. to be issued on each of said judgments to the sheriff of said county, returnable to the October term following. That the slaves were kept out of the way of the sheriff, and though he made diligent search for them, being directed so to do, yet they could not be found, and the executions were returned nulla bo-na, etc.

Afterwards, Gilbert Marshall departed this life intestate and insolvent, and there was no administration upon his estate. In the year 1842, he removed from Scott to Pulaski county, and lived from that time until his death near the farm of Blackburn, and had the use or possession of the slaves Sam and Nathan. After his death, they were in possession of Blackburn.

Titsworth had also died insolvent.

The bill charges that the deed of settlement was made to hinder, delay and defraud the creditors of Gilbert Marshall, and was therefore void. That the levy of said writs offi. fa. on the slaves Sam and Nathan had never been disposed of: and still remained a specific lien on them; and that they were taken from Scott county, by Blackburn, as above stated, with a full knowledge of that fact, and for the purpose of defeating the lien.

The bill prays for a decree subjecting the slaves Sam and Nathan to the lien, and in satisfaction of the judgments.

Mrs. Marshall, in her answer, sets out the marriage contract entered into between Gilbert Marshall and herself, (then Eliza Blackburn) and exhibits the deed of settlement of 20th December, 1838, referred to in the bill — by which, in pursuance of the treaty of marriage, and in consideration thereof, Marshall conveyed to Samuel D. Blackburn, as trustee, for the use of said Eliza during her life, etc., the slaves Sam and Nathan, and two other negroes, and a tract of land, etc., remainder in common to Mary J. and William H., children of Marshall by a former marriage, and to any children that he might have by the said Eliza, share and share alike.

Mrs. Marshall furthermore states in her answer that when the deed was executed, nor at any time previous to her marriage with Marshall, had she any knowledge that he was indebted to complainants, or any other person. In view of his advanced age, she made it a condition of the marriage, that he should settle upon her, and any children that she might have by him, such property as would secure to them a comfortable support. She denies all fraud and intention to defeat the claims of the creditors of Marshall on her part, etc. Marshall died in October, 1847. His son, William H., mentioned in the deed, died before his father. But one of the issue of the marriage, the defendant John G. was living. The trustee always had possession and control of the property until the death of Marshall, since when she had controlled it. She denies that the levies were, or continued liens on the slaves, etc.

On the 9th of June, 1849, the complainants filed an amended bill, in which they set out more fully than in their original bill, the provisions of the deed of the 20th Dec., 1838: and also set out and exhibit another deed of settlement made by Marshall on the 27th of Sept., 1839, after the marriage, but purporting to have been executed in pursuance of the ante-nuptial contract, in which he conveys to Blackburn, as trustee, for the use of Mrs. Marshall for life, several other slaves and personal property, remainder in common to the two children of Marshall named in the first deed, and to any children of the marriage, etc. This deed, as well as the first, is charged to have been made in fraud of the rights of Marshall’s creditors; and the bill prays that both deeds may be decreed to be null and void, and the property embraced therein sold for the satisfaction of complainants’ judgments, etc.

Blackburn, the trustee, answered the original and amended bill at great length, but we deem it unnecessary here to state the substance of the answer. By agreement, the answer of Mrs. Marshall to the original bill was taken as an answer to the amended bill. A formal answer was also interposed for Mary J., and John G. Marshall, by their guardian ad litem.

On the 23d January, 1852, complainants filed a supplemental bill, stating that Mrs. Marshall had intermarried with one Blunt, and making him a party. That in April, 1851, she conveyed all her interest in the property embraced in the two deeds, to John G. and Mary J. Marshall, who were entitled to the remainder, after the termination of her life estate, under the provisions of the deeds. Prayer as in the original and amended bills.

Mrs. Blunt answered the supplemental bill, admitting that she had made a voluntary conveyance of her interest in the property, as alleged, etc.

On the 9th of December, 1852, her death was suggested and admitted.

The cause was finally heard in June, 1853, on the pleadings and evidence, and the bill dismissed for want of equity. Complainants appealed to this Court; after which, Sam. W. Williams, having intermarried with Mai’y J. Marshall, was made a party.

The life interest of Mrs. Marshall (or Blunt) in the property in controversy, having terminated, the contest is now between the appellants, as creditors of Gilbert Marshall, deceased, and his only surviving children, Mrs. Williams and John G. Marshall, who now claim absolute title to the entire property, under the provisions of the deeds of settlement, etc.

In the original bill, the appellants insist that they acquired a specific lien on the slaves Sam and Nathan, during the lifetime of Marshall, by virtue of the execution levies; that the levies remained undisposed of, and the lien continued and was in force after the death of Marshall, and when the bill was filed; and that therefore they had the right to proceed by bill in equity to enforce the lien, and subject the slaves to the satisfaction of their judgments at law, without administration upon the estate of Marshall, and regardless of the claims of other creditors.

Did the lien of the levies continue in force as insisted?

The delivery bond given by Marshall was returned forfeited, at the March term, 1841. The bond was executed under the provisions of the act of 20th March, 1839, (Dig. ch. 67, sec. 37 to 42,) and its forfeiture did not operate as a judgment, or merger of the original judgment, as under the law nowin force. Biscoe et al. vs. Sandefur, ad. et al., 14 Ark. R. 568. The plaintiffs had the right to proceed by motion, or suit, for judgment on the forfeited bond, or to sue out further process of execution upon the original judgments, as they might elect. Ib. 585.

The record fails to show that appellants obtained any judgment upon the forfeited bond, and therefore it must be supposed that the original judgments continued in force. But after the return of the bond forfeited, no further process appears to have been issued, until the 14th of Sept., 1846, a period of more than five years, when afi.fa. was issued upon each of the judgments to the sheriff of Pulaski.

The act of 20th March, 1839, (Dig. ch. 67, sec. 38.) provides that “ if the property be not delivered according to the condition of the bond, the levy shall remain a lien upon the property taken for the satisfaction of the judgment into whose possession soever the same may have passed.” And sec. 39, of the same act, declares that the officer may seize the same property wherever it may be found, or any other property of the defendant subject to the execution, and sell the same, if personal property, on five days’ notice, to satisfy the execution.” But how long the levy shall remain a lien upon the property, the act does not provide. The statute being silent as to this, the duration of the lien must be determined by reference to such analogous principles of law as may be applicable.

Our law does not favor the continuation of such liens for an unreasonable time. The lien of a judgment upon real estate is limited to three years. In State Bank vs. Etter, 15 Ark. 269 an execution issued from Pulaski to the sheriff of Hempstead, was levied on land, and returned without sale, by order of the plaintiff. The defendant died, and his administrator afterwards sold the land. The plaintiff afterwards attempted to enforce the lien of the levy by ven. ex., and this Court held that plaintiff having directed the return of the execution without sale after the levy, and taken no steps to revive the judgment against the administrator, and sued out no process for the satisfaction of the judgment for two years and a half after the levy, and near fifteen months after the land had been sold by the administrator, the lien of the levy was lost. The Court remarked that as to judgments: The statute has limited the continuance of the lien, but with regard to execution liens, the statute is silent, and the Court must necessarily determine, from delay and other circumstances, whether the lien has been waived or abandoned.”

Where personal property is levied upon, and, by direction of the plaintiff, the sheriff permits it to remain in possession of the defendant, and returns the execution without a sale, the levy will not continue to be a lien as against intervening rights of other persons. Whipple vs. Foot, 2 John. R. 422. Storm vs. Woods, 11 Ib. Kellogg vs. Griffin, 17 Ib. 276. Brown vs. Cook, 9 Ib. 361. Commonwealth vs. Stremback, 3 Rawle 341. Collins vs. Stanbridge, 5 Ib. 286. Snyder vs. Beam, 1 Browne 366. Such lien is regarded as dormant and fraudulent as against other creditors, etc. Cornell vs. Cook, 7 Cowen 315.

Perhaps, upon principle, where goods are levied on, a delivery bond taken, and returned forfeited at the return term, and the plaintiff permits, the next ensuing term of the Court to pass without taking out process to enforce the lien of the levy upon the goods, he might, by such neglect, lose his lien as against any intervening rights of other creditors or purchasers, etc. But be this as it may, in this case, the appellants sued out no process upon their judgments for more than five years after the return of the bond forfeited, and then they caused fi-f(i‘s to be issued, taking no notice of the levies previously returned. Nor did they file this bill to enforce their alleged lien in equity, until the lapse of seven years from the time the bond was returned forfeited; a period sufficiently long to bar an action at law for the slaves, had they acquired a title to them, instead of a lien upon them, by the levies, etc. Under,such delay, we know of no principle upon which the lien could be held to continue so long as against other creditors, or the parties here contesting.

The bill, however, alleges as an excuse for the delay, that Blackburn, the trustee in the deed of settlement, removed the slaves from Scott to Pulaski county, shortly after the execution of the delivery bond, and appellants were not aware of where they were until sometime in the year 1846, when they sued out the fi. fa's, etc. The appellants were non-residents of the State, and had perhaps no personal knowledge of the matter, but it does not appear that their attorneys, who resided here, and had charge oí their claims, used any diligence in the premises, or if any, what. The deed of settlement was executed, and recorded in Scott county before the appellants brought their suits at law against Marshall. The slaves were levied upon regardless of the deed. The beneficiaries in the deed did not consent to the levy, the trial of the right of property, or the execution of the delivery bond. At least the record before us shows no such consent on their part. The deed gave to Blackburn, as trustee, the possession and control of the slaves, for the use and benefit of the cestui que trusts. Upon the face of the deed, recorded as above stated, it was recited that he resided in Pulaski county, tie says, in his answer, that in the discharge of what he regarded as his duty, as such trustee, he removed the slaves from Scott to Pulaski county, and there openly, and without concealment, managed, controlled and employed them for the benefit of the beneficiaries. Marshall, himself, the bill states, removed to Pulaski county in the year 1842, and continued to reside there from thenceforward until his death. Under all these circumstances, it would seem that ordinary diligence on the part of appellants, or their attorneys, would have enabled them to ascertain the necessary information to commence proceedings at law or in equity, long before they did, to enforce their alleged lien. Blackburn denies any fraudulent removal or concealment of the slaves, on his part, and none is proven by the depositions read upon the hearing.

Upon all the facts of the case, we think the claim of appellants to a specific lien upon the slaves Sam and Nathan, as insisted upon in the original bill, is not well founded. '

If the appellants had a specific lien upon the two slaves, as insisted, whether they could have enforced it in equity, and condemned the slaves to the satisfaction of their judgments, without administration upon Marshall’s estate, and without regard to our peculiar probate system, we do not mean now to decide. See State Bank vs. Etter, ubi sup.

In the amended bill it is not pretended that appellants had acquired any lien whatever, during the life of Marshall, upon any of the property embraced in the two deeds of settlement, other than the slaves Nathan and Sam. The appellants, alleging the deeds to be fraudulent and void as against Marshall’s creditors, seem to have taken it for granted that they had the right to proceed by bill in equity to subject the whole of the property to the payment of their judgments, without regard to our probate system, or to the rights of other creditors.

It appears that Marshall died insolvent, but he left some property, which was not embraced in the deeds, and he was considerably indebted to other creditors besides the appellants. He failed in the mercantile business in Scott county, which it seems he carried on extensively, and perhaps most of his debts, which remained unpaid at his death, were contracted before, or about the time of his marriage with Miss Blackburn. None of the mercantile assets were embraced in the deeds. It is to be inferred from the depositions in the cause, that if the deeds were fraudulent and void as to appellants, they were also as to other creditors; and such other creditors would have an equal claim with appellants to the payment of their debts, out of any assets left by Marshall, subject to the demands of his creditors.

Under the provisions of our probate system, upon the death of any person, whether solvent or insolvent, his estate passes into the custody of the law, to be administered for the benefit of creditors, etc. All claims against the estate are allowed and classed in the Probate Court, and are paid according to priority, or pro rata, if the estate be insolvent, and in full of solvent, by the executor or administrator, under orders of the Court, and the balance, if any, is distributed, etc., to heirs, etc. Walker as ad. vs. Byers, 14 Ark. R. 252. Adamson et al. vs. Cummins, 5 Eng R. 541. State Bank vs. Etter, 15 Ark. R. 268.

In some matters touching the administration of estates, under this system, the Court of Chancery has a jurisdiction auxiliary to that of the Probate Court; in others a concurrent, and in some matters a supervisory jurisdiction. But distributees, creditors, etc., of estates are not permitted to convert the Court of Chancery into a Probate Court, disregarding the administration system, and the appropriate jurisdiction of the Probate Court, as established by law, under the provision of the constitution. See Lemon’s heirs vs. Rector et al., 15 Ark. 436. Pryor vs. Ryburn, 16 Ib. 671. Anthony vs. Peay, et al., 17 Ib. Barasien vs. Odum, Ib.

We think the case now before us falls within the principles settled by these decisions. If an administration had been granted upon Marshall’s estate, the appellants might have availed themselves of the auxiliary jurisdiction of the Court of Chancery to determine the validity of the deeds in question, etc. They might have filed a bill for the benefit of themselves and the other creditors against the administrator, the trustee and beneficiaries in the deed; and if the deeds had been adjudged to be fraudulent and void, the property might have been subjected, by decree, to the satisfaction of the claims of all the creditors, according to priority, etc., whose demands had been established, allowed and classed in the Probate Court, etc. See Clark adx. et al. vs. Shelton, 16 Ark. 475; Jordan ad. vs. Fenno, 13 Ib. 593.

We are not to be understood as deciding, upon the pleadings and evidence in the cause, that the deeds of settlement were fraudulent and void as against the creditors of Marshall. The questions above settled dispose of the case, and render it unnecessary to express any opinion upon the validity of the deeds.

The decree of the Court below is affirmed.