author: Mr. Chief Justice WatKIns

text:
    Dickinson et al. vs. Burr.
    The obligor, or maker of assignable paper, being notified that one or more of the assignments, through which a plaintiff deduces his title to the instrument, are forged, ought, for his own protection, as against the true owner, to interpose the defence; but he cannot deny the assignment for any purpose, so as to put the plaintiff on proof of it, unless the plea be supported by the kind of affidavit prescribed by the statute.
    The assignment of a writing obligatory to an agent for collection, does not divest the assignor of his interest in the instrument; but is merely an authority to the agent to receive payment: and the assignor, in such case, may sue in his own-name, striking out or disregarding the assignment, or show that the endorsement was merely for collection, where no injury would result to the defendant. Block vs. Wafer, approved: contra, Brown vs. Pwréy & Taylor, 4 Ark. 535.
    Although it is irregular to permit a party to read a paper referred to in the depositions taken by the opposite party, but not made a part thereof yet if it is only corroborative of other competent testimony, it is not ground of new trial.

      Appeal from Jadkson Cwcuit Gowrt.

    Hon. B. H. Neely, Circuit Judge.
    Byers & PatteesoN, and Jordan, for appellants.
    Fowler and Fairoheld, contra.
   Mr. Chief Justice WatKIns

delivered the opinion of the Court.

This cause was before this court at the January Term, 1846, reported in 2 Eng. 34, on appeal from Independence Circuit Court, and the venue, after the remanding of the cause, being changed to the county of Jackson, it was there finally tried and determined, upon the amended declaration filed by the plaintiff, Burr, such, of the previous pleas as were adjudged good by the decision referred to, and certain additional pleas interposed by the defendant, Enddell. It will only be necessary to state so much of the proceedings as will explain the points argued and relied upon for the appellants in this court.

Burr was the payee of the two covenants sued on, which were executed by the defendants for certain sums of money to be paid in Arkansas funds, and he claimed title to them by virtue of his. assignment to John Binggold, and a re-assignment of them from. John Binggold to him. Among the additional defences interposed by Buddell, were two pleas denying the assignment and delivery of the covenants in question, from Burr to Binggold, as alleged in the declaration. To these pleas, was appended an affidavit, to the effect that they were true in substance and in fact*. On the jdaintiff’s motion, they were stricken from the files, upon the ground, that the affidavit was not in conformity with the statute, which provides that the assignee, suing upon assigned paper, shall not be required to prove the assignment, “unless the.defendant shall annex to his plea, an affidavit denying such assignment, and stating in such affidavit, that he verily believes that one or more of the assignments on sn.ch instrument of writing was forged.” ¥e may suppose it to have been the intention of' this statute to make the possession of any assignable instrument,, purporting to be regularly assigned, a sufficient authority to justify the obligor in paying it to the assignee, or recognizing him as the holder, except in case that any of the assignments, through which the holder derives title, are forged. In such case, the obligor, leaving out of view the question whether he is, or is not, required in every instance to inform himself of the genuineness of the assignments, if notified of the forgery, would be bound, for his own protection, as against the true owner, to interpose the defence in the manner required by the statute. With that exception, which is a reasonable one, the policy of the law is not merely to relieve the plaintiff from the necessity of making certain proofs, but to exempt and separate the obligor from controversies between intermediate holders, respecting tbe validity ol* consideration-of any one or more of tbe contracts of assignment, to which he is a stranger, thus leaving any -such party aggrieved to pursue his ovra appropriate remedy. But it is not necessary to decide here, that the defence of the'obligor, when sued by ah assignee, is restricted to cases where an assignment, from or through which the plaintiff claims title, proves to be a forgery, and that the defendant has no further concern about the derivative title of the plaintiff; because, whatever may be the reason of the statute, -the construction to 'be given to it is unavoidable'’ that the defendants below, in the present suit, were precluded from denying the assignment for any purpose, so as to put the plaintiff on proof of it, unless the plea be supported by the kind of affidavit prescribed. The defendants also pleaded, in substance, that the plaintiff had assigned and delivered the writings obligatory In question to the Bank of the State of Arkansas, whereby they became liable to pay the same to the Bank, 'and the plaintiff, at the time of the commencement of the suit, had no interest in them, whatever; the plea being according to the precedent in Block vs. Walker, 2 Ark. 4, followed and adhered to in subsequent cases. The plaintiff replied traversing the fact of the assignment and delivery to the Bank, -as alleged in the plea. This, with other issues, was submitted to the jury, who found for the plaintiff; and the case being considered as if no exceptions were taken during the progi-ess of the trial to admissibility of evidence or instructions of the court, the only qtiestion upon the motion fob new trial, is whether the verdict was warranted by the'evidence.

It appears, that, before the obligations fell due, Burr deposited 'them with the Branch Bank at Batesville, of which TVTr. Ringgold was cashier, for collection; and, for that purpose merely, the Bank having no beneficial interest in them. Instead of endorsing the paper in blank, as was customary with notes left for collection, Burr made his endorsement a special one: “To the order •of J. Ringgold, Cash.” Shortly after protest, Mr. Ringgold, with the approbation of Burr, received a partial payment in Arkansas Bank notes, for which, he transmitted a certificate of deposit to a. firm in New Orleans, by direction of Burr. No further payments being made, the cashier subsequently re-delivered the writings obligatory to Burr, to whom they belonged, and who settled with the Bant the notarial fees and commissions for collecting. In June, 1843, Mr. Ringgold ceased; to be cashier, under the liquidation act passed at the session of 1842, and was succeeded by another person, who took charge of the assets of the Bank under-the title of Financial Receiver. In August, 1843, Burr struck out. his endorsement to J.. Ringgold, cashier; but, at some subsequent time, called upon Ringgold to re-assign the writings obligatory to him, which was done before the commencement of the-present suit.

The record shows that the only contest, upon the merits of the-case in the court below, was in regard to ’ the amount of various, partial payments in money and property, made by the defendants to the plaintiff, after the writings obligatory had ’been redelivered to him by the Bank, and which it is to-be- presumed was satisfactorily settled by the jury '; so that the judgment belongs to-that class, which appearing to be right upon the whole record, ought not to be reversed, because of the- refusal of the court below to grant a. new trial.

But, in consequence of the decision in Brown vs. Purdy & Taylor, 4 Ark. 535, summarily disposed of, on the authority of Block-vs.' Walker, it becomes necessary to notice those cases to which may be attributed the evident doubt and perplexity of the plaintiff, about the proper course to pursue, in order to recover, for a breach of the contracts in question. The foundation, on-which the decision in Block vs. Walker rests, is, that under the statute. of assignments, the assignee, having-the-legal title -and right of • action, may, and must sue, and cannot sue in the name of any-assignor, because it might have, the effect to deprive the obligor or maker of the assigned instrument of the benefit of any- equitable discounts or off-sets, or other defence he might have interposed against the last assignee, .who should-have been-plaintiff in. tbe suit, and which, defences are reserved to the maker or obligor by the terms of the statute. But iu Brown vs. Purdy & Taylor, where, to a plea, like that in Bloole vs. Walle&r, the plaintiff replied that the note, upon which he brought suit, had been endorsed as alleged in the plea, but without any consideration, and •for the purpose of collection merely, and was delivered to the endorsee as the plaintiff’s agent, and that he thereby acquired no beneficial interest in it whatever, with a traverse of the allegation in the plea, that the plaintiff had assigned all his interest in the note to the person named, and had no interest in the same at the time of suit brought. The court held the replication to be no answer to the .plea; because the assignor would only have been invested with the legal interest by a re-assignment, and that so long as the assignment from the plaintiff remained upon the note, no evidence was competent to show the legal interest to be in him. We are constrained to express our dissatisfaction with that •case, and think a distinction is to be taken between it and Block vs. Walker, upon which it was made to rest. No doubt an assignment to an agent for collection, is an authority to him to receive payment aiid give a valid acquittance, as an agent may do any other act within the scope of his authority. In that view, .the assignment to an agent is the same as if the owner of the paper had assigned it to himself, and a payment to the agent is a payment to the principal. The statute, which secures to the maker certain defences against the assignee, must intend that he is such assignee as acquired some beneficial interest in the assigned paper. Because, if he acted as agent, without deception or concealment, there is no reason why, as against him, the defendant should have any vested right of set-off, which he already has against the principal, and of which he could not be divested by any mere colorable assignment to an agent, or any third person without consideration, and for the purpose of cutting off some equitable defence. True the assignee, through an agent, may be prima fade the owner of the claim,. and having the legal right may recover in his own name, when it would not operate to the prejudice of tbe defendant, baying just defences against tbe principal. But we are at a -loss to understand wby tbe principal may not -sue in bis own name, striking out or disregarding bis endorsement to an .agent; or wby be should not be permitted to show tbat sucb was tbe üature of bis endorsement in any case, where no injury would result from it to tbe defendant. Tbe gist of tbe special plea in Block vs. Walker, as in the present case, assuming tbe facts pleaded to be true, is not tbat tbe plaintiff assigned tbe paper, because, before suit brought, it might have come to him again by assignment; but it is, tbat by such assignment, tbe plaintiff bad parted with bis title to the instrument, so that be bad no interest in it at tbe commencement -of tbe action. Here tbe issue was, whether there bad been sucb an assignment .from tbe plaintiff to tbe Bank; and tbe proof .abundantly shows that it was properly found in fayor of tbe plaintiff.

Tbe defendants below reserved an exception to tbe ruling of tbe court, allowing tbe plaintiff to read in evidence a letter or memorandum -from tbe cashier, addressed to Mr. Bun*, in October, 1841, apprising him of tbe state of tbe business, tbe amount collected, &c., -and tbe -amount be owed tbe Bank for fees and commission. Mr. Binggoid bad alluded-to this letter in bis deposition, given on behalf of tbe defendants,' but without incorporating or making it a part of tbe deposition as an exhibit. In point of law, tbe ruling of the court may have been irregular, but as a ground for new trial, tbe objection is not entitled to serious consideration. The letter was only confirmatory .of other competent testimony in tbe case, and tbe admission or rejection of it, either way, could not materially affect tbe result. Affirmed.


source: Caselaw Access Project

author: MR. Chief Justice WatKINS

license: Public Domain

text:
    Prince, Chace & Co. vs. Thomas.
    The defendant proposed to the plaintiffs to repair liis carriage, and enquired as to the ■ cost, and terms of payment: the plaintiffs replied that it would not cost less than $ 125, nor more than $150; and that the terms were cash, or 12 months credit,- if he gave his note: the work was commenced, hut the carriage taken away before it was quite-completed, and no offer to give the note: Held, That there was no special contract; but if so, it was abandoned by the parties; and that the plaintiffs were entitled to recover the fair value of the repairs actually put- upon the carriage, upon its completion, or acceptance by the defendant..

      Appeal from OuaoKi'a Girewit Oowrt., ,
    The Hon. SheltoN WatsoN, Circuit Judge;.
    PiKE & OuMMiNS, for appellant.-
    If there was any proof of an-agreement for time, that agreement- was dependant on an act of defendant — the giving bis note, which was not done. This failure-annulled'tbe contract for time, and the money became payable on completion of the work. Oh. Oon.ZIS ¡Hussellvs. Mwwr,^& Wend-659 / Ivpm et.. ál- m., Ma/rie et. al. 6 Wend. 77/ 2 Sail 345 / 17 PieJi. 606.
    There was no- acceptance of the- proposition- for. time; and therefore there never was any such contract. Oh. Oon. 12, 13.
    CuRRAN, for the defendant..
    The only and true point was, whether the action was not prematurely brought. It is true that one of the witnesses testified that Thomas was to give a note; but the second instruction gave the plaintiffs the full benefit of that evidence. The jury decided that the debt was not due till the 1st January, and that defendant was not to give a note. The evidence clearly justified them in that conclusion, and it was their province to decide upon the conflict of testimony.
   MR. Chief Justice WatKINS

delivered, the opinion of the Court

The declaration in this case contained the common counts in indebitatus assumpsit, for work and-labor, and materials bestowed in the repairing of a carriage, for the defendant. The evidence conduced-to show the following state of facts: that the defendant, having a-carriage out of repair, proposed to the plaintiffs to put in repair, and inquired of them what it would cost; to which they answered, that -it would cost him not less than one 'hundred and twenty-five, nor more than -one hundred and fifty •dollars. The defendant then inquired what were the terms of payment, and was told that the usual terms were cash, upon the -completion of the work; but, if he would give his note, he could .have twelve months credit: and the understanding of the plaintiffs was, that such note would bear interest, thoirgh that was not -so expressed at any tame in the presence of the defendant. The defendant then told them to take the carriage, ,and they accordingly removed it to their shop, to be repaired. Before the re■pairs were quite completed, that is, the carriage, lacking about fifteen or twenty dollars worth of work of being finished, but being in good running order, the defendant came to the shop, where the plaintiffs were, examined the work, -expressed himself entirely satisfied with it, took away the carriage, and used it, and •offered it for sale. No reason is shown why the work was not finished. Bor aught that appears, the carriage was taken away with the consent of the plaintiffs. They made no objection to its removal. Nothing was said, then or afterwards, about the defendant giving his note-or entitled to any credit. No request or demand was made upon the defendant to .give his note, but the plaintiffs immediately brought suit for the amount of the repairs which were variously estimated by the witnesses to be worth from '$85 to $120. The court below refused to give two instructions asked .for by the plaintiffs, predicated upon the supposition, that -a special contract hadbeen proved to do the repairs for an agreed price, and that in such case no evidence was admissible to reduce the verdict below the price agreed upon, unless to show that the repairs were not done in a workman-like manner. The court gave an instruction, on then- motion to the effect, that, if the j ury believed the defendant agreed to give his note for the work done upon the carriage-on the completion, and he failed or refused to do so^ when the work was completed, the amount agreed to be paid for the repairs became due- at once-, and that the burthen of proof was upon the defendant to show that he either gave such note or offered to do so, and the-plaintiffs refused to receive it. The j ury returned a verdict for the defendant, stating in it, for some unaccountable reason,, that they found for him, under the instructions of the court. The case comes up on exceptions to the decision of the. court refusing to-grant a new trial,, moved for upon the grounds that the court had erred in refusing to give the instructions asked for .on behalf of the plaintiffs, and that the verdict was against evidence.

The verdict can be sustained only on the supposition that the ' jury believed the plaintiffs had agreed to do the work on a credit, and without requiring any note to be given for the price, and therefore the action was prematurely brought; of which there was some, but very slight evidence, depending on the statement of one of the plaintiffs in a casual, conversation with a witness. Our impression of the evidence, is, that no special contract was established. The conversation amounted to no more than an assurance to the defendant that the repairs would not cost him beyond a certain sum. Nor did the defendant say or do anything clearly indicative of his acceptance of either alternative, to pay cash on completion of the work, or obtain credit, by giving a note. And if there was any special agreement, it was abandoned by the acts of each party; the defendant in accepting the carriage before the repairs were completed, and the plaintiffs by delivering it to him, without asking for the note. Notwithstanding what may have been said between the parties, the only construction to be put upon their conduct is, that they finally concluded to place the matter on the footing of a common undertaking to do the repairs for a reasonable compensation, and which would ordinarily be due and payable on tbe completion of tbe work, or its acceptance by tbe defendant. Tbe form of tbe declaration precluded tbe court from giving any sucb instructions as those wbicb were rightly refused; and tbe instruction given was improper, because inapplicable to tbe case made by tbe evidence; so that tbe correctness of it, in tbe abstract, need not b e considered. N evertbeless-, tbe verdict was wrong, and tbe court ought to have granted a new trial, because, according to any reasonable view of tbe testimony, taking it all as true, tbe plaintiffs were entitled to recover the fair value of tbe repairs actually put upon tbe carriage. Reversed.


author: Mr. Justice Soott

text:
    Moss vs. Sandefur, ex.
    It was the intention of the legislature (secs. 46, 41, 48, ch. 4, Mg.) to invest the Pro-hate Court with jurisdiction to compel a discovery on oath, &e., where persons were intrusted, in the lifetime of the deceased, with custody of his effects, or at or about, the time of his death, or soon afterwards, they come into their possession either casually or by design, and they continue to hold the same quietly and secretly, without color of lawful authority; but not to invest the Probate Court with jurisdiction of contested rights, and matters of litigation, as to the title to property, between the executor or administrator and others..
    Pike & CtrMMms, for tbe appellant.
    The-civil rights of a slave, were- merged in tbe master. Any donation or conveyance of property to a. slave, wbicb tbe master chooses to accept, vests-alone in tbe owner. “1 Bleb. Oom. 424/ 1 D&mcotfs Civil Z(m,jc>r 143, curb. 1. sec. 97 / 4 JDesscm. 266, 267. Property found by a negro, vests in tbe owner. 1 Stewa/rt- JRejp. 320/ 9 Mm.. 271/ 2-JPicJs. 424.
    Tbe Probate Court bad no jurisdiction. In any event, tbe ‘claim was an ordinary one for money bad and received, and not .a proceeding for specific property. Art. 3,sec. 10, -Const.; ch. 48, sec. 5, Bern,. Btat.

    Curran & Gallagher, contra.
    There can be no question but what the Probate Court had jurisdiction. That the statute is ‘constitutional, see Welch vs.. Lloyd? 5 Ark. Bep. 369.. The petition and affidavit bring the .case within the statute. (Big,, ch. 4, sec. 46,) and case cited.
   Mr. Justice Soott

delivered the opinion of the Court

This cause was brought here by appeal, from a judgment of the •Circuit Court of Hempstead county, affirming a judgment of the Probate Court, in the matter of .a summary proceeding against the appellant, at the .suit of the appellee, .as the executor of J ames H. Dunn, deceased, under the provisions of the statute authorizing the Probate Court, in certain cases, upon complaint of embezzlement or -.concealment, to cause the party implicated to come before the court and discover on oath, and be further dealt with, if convicted. Dig.? ch. 4, sec. 46, 47,48.

In the petition, which is verified in the manner prescribed by the statute, it is alleged that the petitioner “ has been informed, and believes correctly, that J ames Moss has in possession, and has concealed money, belonging to the estate of the said James H. Dunn, deceased. Tour petitioner, therefore prays, ” &c. Process of summons issued, commanding Moss to appear, and an-tswer a charge of concealing certain money, belonging to the •estate,” &c. The executor -filed a number of interrogatories in writing, some of which were very general, to which he desired the answer of Moss. Moss appeared in obedience to the summons and filed his answer in writing, in response to these interrogatories the substance of which is as follows, to wit: That theretofore, there had been born of a certain negro woman slave, named Mourning, who was owned by, and is the property of, the heirs at law and distributees of James Moss, deceased, a female -child, nfl.mp.fl Eliza.. That he had been informed, and believed it to be-true, that James H. Dunn, in his lifetime, at divers times, and to divers persons, had admitted he was the father of Eliza, and-recognized her as his child, and that he had made- application to the heirs of James Moss, deceased, or to- some of them, to purchase said child Eliza,, that he might manumit h^r. That he had been informed, and believed it to be true, that said Dunn, in his-lifetime, and some time before he-made and published his last-will and testament, “ had given, delivered, and placed in the-hands of said slave,.Mourning,” the sum of three hundred dollars, tobe applied to- the purchase and manumission of said child Eliza. That, several months before the death of Dunn, two-months at least, - — the said slave Mourning, at that time hired to and in the employment of said Dunn, brought to the respondent a sum of money in coin, which she said was three hundred dollars, and offered to leave the same in pledge with the respondent,, as an indemnity against the death of said child, Eliza, which respondent had refused to permit said Dunn to take with her mother to Fulton-,-because, of the then unhealthiness of that place;- and the-jeopardy of the life of said child from that source. That, at the-time of the death of Dunn, the slave Mourning was not hired to him ( Dunn,) nor living-with him; but was in the service of respondent. That Dunn died at Fulton, and respondent’s residence-at that time was- some twenty miles from that place. That respondent went to Fulton, some five or six days,: or a week after the death of Dunn, which was his first visit there after that event, and that was the first time, after that event, he had seen-said slave Mourning; and said slave, at that time, placed into the-hands of the respondent the sum of two hundred and eighty-two-dollars,jfor safe-keeping.. That this sum “is all the-money that said slave ever gave to the respondent, for'safe-keeping, ” “and that he now has and holds the same, for the use and benefit off him, her, or them, to whom it may pertain. ”

He' denies that said slave Mourning' took said ■ sum, or any ether sum, either from- the store- of the said Dunn, or from about his person, either about the time of his death, or at any other time, without his (the said Dunn’s) knowledge and consent. He denies that he, the respondent, “ on the day of said Dunn’s death-, or at any other time, ever received any sum of money whatsoever, as he knows or believes, which belonged to, or was owned by Dunn, at the tim$ of Ms death.” “ All of which said responses, allegations, and facts, in response to said general enquiries, this respondent avers and verily believes he can prove and establish, if permitted by the court, by competent and credible witnesses, except the offer of the said $300, as an indemnity for the life of said child Eliza.”

Having thus responded to the interrogatories, he makes answer to the allegations contained in the petition, in the following terms, to wit: “That it is not true, that he has in his possession, nor has he, this respondent, concealed any money which belonged, or belongs to the estate of the said James H. Dunn; nor is it true, that the said John B. has been or is correctly informed in regard to the same, as he, in his said petition, has alleged; but it is true, and so this respondent avers the truth to be, that, at divers times, this respondent has conversed with the said John B., in regard to the said sum of money, so by this respondent received from the said slave Mourning, as above stated, and always informed the said John B., of the material facts in regard to the same, and never denied to him, or any one else, the fact that he had received from the said Mourning, the sum by him received as herein above stated and admitted.”

He then denies the jurisdiction of the court in the premises, and insists that the remedy, if any, is in the Circuit Court; but submits that if the court retains jurisdiction, the law deducible from the facts is on the side of the respondent.

The entire response is verified by affidavit. Hpon ap. inspection of the petition, interrogatories, and answers, as is Stated in the record, that court was “ of opinion that said sum properly belongs to the estate of the said James B. Dunn, deceased, and the record proceeds to state, “It is therefore considered, ordered, •and adjudged, tbat tbe said Jobb B. Sandefur, as executor of the will of tbe said James H. Dunn, decased, have and recover of •and from tbe said James Moss, tbe aforesaid sum of two hundred and eighty-two dollars, so admitted by bim as aforesaid, and tbat tbe said Moss deliver tbe same up to tbe said John B. Sandefur, ¡as sucb executor.”

Tbe -appellant took a bill of exceptions, -showing tbat tbe court 'overruled bis 'objection to tbe jurisdiction in tbe premises, and upon tbe merits found and adjudged for tbe appellee.

It will be observed, tbat tbe appellant set np no claim to tbe money in question, either in bis own right -or in that of tbe heirs ¡at law-or distributees'of James Moss, deceased; but averred tbat be bad -and bold tbe same for tbe use and benefit of whomsoever It might rightfully 'belong to1; andas tbe Probate Court adjudged no costs against bim, It may be inferred tbat be was in tbat court regarded as presenting himself in tbe attitude of a stake-holder. "Whether or not be was tbe legal representative -of tbe estate of •James Moss, deceased, or was -one of the heirs at law, or distri-butees-of tbat estate, does not appear. But, as tbe judgment of the Probate Court in this proceeding, where neither tbe legal representatives, nor tbe heirs at law, or distributees of James Moss, deceased, were parties, -could not exonerate tbe appellant from -a suit for tbe money in tbat behalf, wherein it would have to be determined what right these parties bad to tbe money in •question, upon tbe foundation of tbe -ownership of tbe slave in •question, the appellant would have sufficient interest in the controversy to authorize bim to question tbe correctness of tbe proceedings and judgment.

Tbe first and. most important duty of an executor, or administrator, after bis induction into office, is to collect, and take into bis possession, and make and return an inventory of, tbe personal goods and 'chattels, moneys, books, and papers; and other evidences of debts belonging to tbe estate -of bis testator or intestate. And it was in aidofthis duty, that the jurisdiction in question,un-«1er which these proceedings were had, was invested in the Probate Courts.

This view of the provisions of the statute in question, was taken by the court in the ease of Welch vs. Lloyd, (5 Ark. R. 370;) and is supported as well by the language used as by the context. In the original enactment, the sections of the statute cited above, as those under which these proceedings were had, and which passed under the notice of the court in. the case cited, were numbered 47,48, 49, and 50, in a consecutive series numbered from 42 to 56, inclusive, all exclusively upon the subject, and making numerous provisions for the collection, inventory, appraisement, and return of decedents’ effects.

To aid in the performance of these important duties, the particular provisions in question invest the Probate Courts with authority to compel the attendance of persons charged, in the manner prescribed, either with concealing or embezzling any such effects, force them to make discovery on oath, and, if found unlawfully detaining any such effects, order their delivery to the executor or administrator entitled to receive them, and enforce obedience to the order by attachment.

The investment of such authority in these courts, was peculiarly appropriate in view of their functions in our Probate system, and doubtless the practical effects of its -exercise have been altogether salutary, in all those cases, not of unfrequent oc-curence where persons, who have been intrusted, in the lifetime of the deceased, with custody of his effects, or who, at or about the time of his death, or soon afterwards, coming into their possession, either casually or by design, hold quietly and secretly, without color of lawful authority, and evading any discovery of the truth in the premises, either by direct means or studied silence; all with fraudulent views, stimulated by the difficulty or impossibility of proof, on the part of the executor or administrator, either of ownership or identity..

In cases where the executor or administrator may have had no knowledge of the affairs of the deceased, in his lifetime, he might, by such means, be seriously obstructed in tbe performance of these important duties, and in proportion to bis want -of such knowledge, be hindered and baffled, and precisely in this ratio would the chances of escape from detection be increased, and such fraudulent designs stimulated. To meet such emergencies, the remedy adopted of forcing the moral offender who would rob the dead, to merge his moral into the .criminal offence of outright perjury, or let go his unrighteous hold, cannot be without efficacy. "Under its operation, the man of conscience, who may have quieted its voice, will hear it speak .again in spite of him, when he approaches this open crime; and the hardened offender will at least 'calculate his chances >of .escape from the pains and penalties of perjury. When .the authority in question is made to extend to the large class of cases, to which we have alluded, and the class must needs be large and .infinitely various, because, fraud itself is “infinite,-” as remarked by Lord Hakdwicx:, in.his letter to Lord Kaimes, manifesting itself as well in the suppression of the truth, as in the suggestion of a falsehood, it was a matter of sufficient importance, in point of mischief, to have attracted the attention of the Legislature, without .supposing any regard whatsoever was had to the very questionable policy of turning into Probate Courts, from their accustomed channel, a great stream of litigation touching contested rights to personal chattels, which these courts from their constitution are so little calculated to sustain. Nothing short of a much more distinct and emphatic expression of the legislative will, to that effect, conld authorize such a .conclusion.

In our opinion, "it "is clear enough, from the obvious mischief, and the expressed remedy, when viewedin connection with the subject matter, and reasonable scope of tbe provisions made, that such, was not the intention of the Legislature, hut that it was to -confine this jurisdiction to the class of cases above, which we have designated; or, at most, if it is to extend beyond to any •case where the discovery required shows lawful color of adverse claim, either of possession.or property, whether in the party ma-Mng the discovery, or in a third person, it would be of that class-of adverse claims wMcb the Probate Court could properly authorize the executor or administrator to extinguish, for the benefit of the estate; such,, for instance, as prior vested liens, like the-inn-keeper’s.

In the case before us, the discovery that was required, shows the money in question to be in such an equivocal attitudej as to-be reasonably a subject of litigation between the executor, or administrator- or distributees of James Moss, deceased, predicated upon the- ownership of the slave, who deposited it, for safe keeping,, in the-hands of the respondent, and the executor of Dunn, who claims, that it had been derived from his testator in his lifetime, or had been abstracted from his estate since his death, in some manner that did not divest his- right to- it. The case then,, shown by the discovery,, was not of either class to which the- authority of the Probate Court to make the order of delivery, extended; and, therefore,, the court erred in making-that order.

The judgment of the Circuit Court must be reversed, and the cause remanded to that court, with instructions: to reverse- the judgment of the- Probate, and enter up and certify to that court such a judgment a&ought to have been entered up there. (.Dig <£&, 4 see. 181,, 182.


author: Mr. Chief Justice Wateces

text:
    Herndon vs. Higgs, ad.
    Under the statute of assignments; the mailer of anote or obligation, being sued by am assignee, and having notice that one or more of the assignments are forged, ought,, for his own justification, and the protection of the rights of the real owner, to interpose the defence..
    But his position may be a hazardous one, and the defence- at law not being .complete, or adequate, he may elect to submit to judgment, and obtain, relief in equity, by-bringing all the parties in interest before the court.
    And in such case, if the- obligor has in good faith paid the debt to an intermediate-assignor or holder of'the instrument, he may pray for and obtain alternative relief^ that the amount so paid be refunded to-him in case it was wrongfully claimed anck received by tbe person, to whom he paid it..
    After dissolution, of an injunction) the complainant has the right to.proceediwith hfe suit to final hearing; and, upon a motion to dissolve, it is a gross irregularity for the-court to render a final decree against the complainant, granting affirmative relief to. a defendant who. has filed no-cross bill in the cause.

      Appeal front/ Lafayette Cvrcmb O'owvt im, QTicmeery.

    Hon. Sheetoh WatsoN, Circuit Judge, presiding..
    Pros & OumMINS, for appellant.
    After a cause is set for bearing and before a bearing, a party cannot by motion dismiss a* bill for want of equity, because there- may be a remedy at law.. 14ANA.358..
    • Nothing but tbe facts- on face of tbe-bib can-be- considered'here,. and these facts show jurisdiction.. 1- Sto.. Eg., see._28,. 33, 65,71..
    CabletoN, for appellee^
   Mr. Chief Justice Wateces

delivered' tbe opinion of the-Court..

Tbe bill of complaint exhibited by tbe appellant, sets- forth a-case of this description; That being-indebted to- one Hardy High;tower, be bad executed bis obligation for tbe same payable to bim; and in order to secure tbe payment of it, bad made bis deed of trust, to John 0. Hightower, of certain slaves and land in Lafayette ■county, to wbicb John O. and Hardy were parties, containing various stipulations, and tbe trustee, John 0., was authorized to sell tbe property upon tbe contingency, and in tbe manner prescribed, and apply tbe proceeds of tbe sale, first, to ££ extinguish tbe debt in question.” That tbe writing obligatory, along with tbe deed'of trust, bad been left in tbe custody of John 0. High-tower, the trustee; and be afterwards dying, it was found among Ms papers, purporting to be endorsed in blank by tbe payee, H. Hightower, and also by one James B. Hightower. That tbe endorsement of Hardy Hightower was a forgery, and tbe writing obligatory in truth belonged to biin. That tbe defendant, Higgs, as administrator of John 0. Hightower, claiming title under tbe successive assignments from Hardy to James B,, and from James B.- to tbe intestate, bad brought an action at law upon it against tbe complainant, who pleaded thereto denying the assignment from Hardy Hightower, and tbe action was dismissed. That tbe complainant bad paid and satisfied tbe amount of tbe obligation to Hardy Hightower, and taken a receipt from him wbicb was produced. That tbe defendant, Higgs, bad brought another action at law upon tbe writing obligatory, in tbe name of Hardy Hightower for Ms use, as administrator of John O., wbicb suit was pending. Tbe administrators of John O. aud Hardy Higb-towex’j were made defendants to tbe bill; upon tbe latter of whom process was not served, and no subsequent steps, by order of publication or otherwise, appear to have been taken against bim* The bill prayed for an injunction to restrain tbe administrator from prosecuting tbe action at law, and in tbe alternative for a deqree, making tbe injunction perpetual, and requiring tbe writing obligatory to be given up and cancelled, or if tbe complainant should be adjudged liable to pay tbe amount due upon it to tbe administrator of John O., then a decree that Hardy High-tower refund tbe amount, wrongfully received by bim, to tbe complainant; and for discovery and general relief. An injunction was granted in accordance with tbe prayer of tbe bill. Higgs, tbe' administrator of John 0., answered, to tbe effect, that, according to-bis information and and belief, tbe endorsement of Hardy Hightower was genuine, and for a good or valuable consideration to James B., and be bad assigned tbe same to John 0., in part payment of a quantity of land and some negroes bought of him, so that tbe writing obligatory came to be tbe individual property of bis intestate, John O. That John 0. and James B. were brothers, being tbe sons of tbe defendant Hardy Hightower. That James B. was tbe first administrator of-John O., and inventoried tbe writing obligatory in question, as part of tbe assets of bis estate, and defendant avers that complainant made a partial payment upon it, and took receipts of tbe administrator for tbe amount so paid. That James B. dying, tbe defendant was appointed administrator de lords non of John O., and tbe writing obligatory came to bis band in that capacity. He denies tbe alleged payment by tbe complainant to Hardy Hightower, and avers that such payment, if any, was made by giving a new note or obligation for tbe money, which remains unpaid; that tbe transaction between them was colorable merely, and collusive, with intent to defraud the creditors of John O., by withdrawing, from bis estate, a large amount of assets; which would otherwise be appropriated to tbe payment of them claims; and, by way of reserving tbe benefit of a general demurrer to tbe bill, insisted that tbe complainant bad an adequate remedy at law.

To this answer, replication was entered, and tbe cause- was set down for final bearing, with leave to either party to take depositions. At the succeeding term, the defendant, Higgs, moved to dissolve tbe injunction, because the bill disclosed no equity, and tbe complainant might have bad a remedy at law. He also moved for a final decree in bis favor, upon a suggestion, verified by affidavit and admitted to be true, that tbe complainant bad, in tbe meantime, removed bis property beyond tbe jurisdiction of tbe court, leaving no effects out of which tbe amount due upon the writing obligatory could be made on execution, and no security dor it except that upon tbe injunction bond. Tbe Circuit Court ¡sustained tbe motion, and proceeded to render a final decree, in •tbe cause, dissolving tbe inj unction with damages for delay, and-•decreeing that tbe complainant pay to' tbe defendant, as administrator of John 0. Hightower-, tbe amount of principal and interest ascertained by-computation to be due upon tbe writing obligatory in question.

Tbe proceedings disclosed upon this record, have been remarkably irregular. On tbe face of tbe bill, no reason is perceived why James B. Hightower was not a proper party defendant, and, on tbe coming in of tbe answer, it appeared that bis representatives, if any, were necessary parties, and tbe complainant should have been required to amend tbe bill. An injunction should not have been granted in tbe first instance, if, at tbe time of filing tbe bill, an action was pending,'unless tbe complainant would first submit to a judgment at law, upon wbicb tbe injunction would operate as a release of errors; so that, upon dissolution, tbe defendant could be remitted to bis execution at law. Although if tbe successive assignees took a beneficial interest in tbe assigned instrument, it is difficult, -since tbe decisions following Block vs. Walker, (2 Ark. 4,) to understand bow tbe administrator could sue again in the name of tbe payee for bis use, disregarding tbe assignments, and tbe defendant at law might have defeated that particular action, yet, if be choose to resort to equity, to have tbe rights of all tbe parties finally settled, tbe case was clearly one where it would be tbe proper practice to let tbe plaintiff at law proceed to judgment. (Conway vs. Ellison, 14 Ark. 367.) Without some showing of accident or other excuse, wbicb might authorize tbe court, in tbe exercise of its discretion, to extend the time, tbe motion to dissolve tbe injunction should regularly have "been made at tbe coming in of tbe answer on or before tbe second day of tbe return term. {Digest, title Injunctions, sec.'28,) And though irregularly made, it could -ohly have operated upon tbe injunction, because it was tbe right of the complaniant to have the cause progress to final bearing witb or without an injunction. Without a cross bill, the defendant could not have obtained any fl.-ffirma.ti ve relief, by decree against the complainant, for the payment of the debt in controversy. The carise appears to havebeen brought on for hearing upon the distinct' ground, that the bill disclosed no equity, and also that the complainant had removed his effects. The cause having been regularly set for hearing, that proceeding was a surprise upon the complainant, unless desiring to adduce evidence at the hearing he was in default for not having procured depositions. Nor does it appear that the bill was dismissed because of the delay of the complainant in taking the proper steps to bring the other defendant, Hardy Hightower, before the court; otherwise, he had a right to an answer from that defendant, or to a decree by confession against him for indemnity, if, upon the final hearing, the court should be of opinion that the money rightfully belonged to the administrator, and also of opinion that the complainant had paid it in good faith, and, as he believed, to the real owner of the writing obligatory.

In the most favorable aspect of the case for the appellee, that is, upon the question of jurisdiction, the court below should have proceeded to adjudicate the cause. Supposing it stood upon bill, answer and replication, the denials in the answer were upon information, and the averment according to'belief, except so far as the defendant may have had a knowledge of the fact of a partial payment to the preceding administrator! Being tested by the allegations contained in the bill, it would be substantially a case cognizable in equity. True, the defendant might have successfully resisted an action at law, upon plea under oath, denying the assignment. But chancery would also have jurisdiction, if the remedy at law was doubtful, inadequate, or hazardous; and the right to resort to chancery was not waived by any. attempt to defend the second suit at law. In the construction of the statute concerning assignments, see Dickinson vs. Burr, decided at the present term, this court has held that- the obligor or maker of .assignable paper, being notified that one or more of the assignments, through which a plaintiff deduces his title to the instrument, are forged, ought, for his own justification, and protection of the rights of the real owner, to resist payment of it, and interpose the defence; and this he may elect to do by plea at law. But it is obvious that his position, defending at law, may be a hazardous one, unless he defends upon indemnity from the real owner, who is not a party to the record, or bound by the decision. If the debtor voluntarily makes payment to either claimant, he may be said to take upon himself the responsibility of the act. But the case can be considered as though the complainant was resisting the demand of the holder, without having made payment to a third person claiming the debt; though the fact of such payment might, as we have seen, if made in error and in good faith, entitle the debtor to recover against such person wrongfully obtaining the money. The case had become complicated by the alleged fraudulent dealings of a trustee or agent, creating adverse interests between different parties, which could only be settled in one litigation, by bringing all Of them before a court of equity. It is not intended to intimate any opinion upon the facts or merits of the case. It will remain for the chancellor to decide, upon the evidences, which may be adduced before him, which of the parties has been guilty of the gross fraud by each one imputed to the other.

The decree appealed from, will be reversed, and the cause, under all its peculiar circumstances, remanded, with the following directions: That the complainant submit to a judgment at law; that he amend his bill so as to bi'ing the representatives of James B. Hightower before the court, or show some excuse for not doing it; that he take steps to obtain service of process, or notice by publication, against Hardy Hightower, and to compel an answer from him, or subject him to a decree; or, in default thereof, that the bill be dismissed; that the injunction.be continued until the dismissal or final hearing; and the security afforded by the injunction bond retained as a guaranty for the diligent prosecution of his suit by the complainant; and that the cause, in other respects, progress regularly to final hearing.


author: Mr. Chief Justice WateiNS

text:
    Bixby vs. The State.
    The court ■will, of its own motion, for the affirmance of the judgment, award a writ of certiorari, to perfect the record, where, the. venue has been, changed, to the court in which the cause originated.
    In the extenuation of a witness in a criminal case, he may be asked whether he had stated to certain persons that he was going to the trial “to have the prisoner hung, that he had lived long enough.”
    Exceptions taken to the admission or exclusion of testimony in a criminal case, are waived by a motion for new trial, not incorporating the matter of such exception as cause for the motion: but although such cause be assigned in the motion for new trial, this court will not reverse the judgment for such error, if there be other testimony sufficient to warrant the verdict.
    In motions for new trial, upon the ground of newly discovered testimony, some discretion is vested in the judge presiding at the trial, who has an opportunity of judging whether they are made for delay or in good faith. They ought to show that the newly discovered testimony would induce a different result; and the application ought to be corroborated by the affidavit of some disinterested witness.

      Error to Hempstead 'Owouit OovH.

    Hon. SheltoN "Watsoh, Circuit Judge.
    S. H. Hempstead, for the plaintiff.
    CleNdeNIN, Attorney General, contra.
   Mr. Chief Justice WateiNS

delivered the opinion of the Court.

This writ of error returnable to the present term, brings up the record of the conviction of David Bixby, in the Hempstead Circuit Court, of murder in the second degree, for which offence he was sentenced to, undergo confinement in the penitentiary for a term of years. The indictment had been preferred in the county of Pibe, where the offence was committed, and tbe venue changed to the county of Hempstead, pursuant to the statute, upon the application of the prisoner, setting forth a prejudice against him in the minds of the people of Pike county. The transcript returned with the writ of error failing to show the proceedings had in the Pike-Circuit Court, for the empanneling of the grand jury, by whom the indictment was found, and the court here presuming that such proceedings were had in the Pike Circuit Court, where the original record remains, ordered ex-officio, in accoi’dance with the intimation in Stewart vs. The State, 13 Ark. 745, and for the affirmance of the judgment, a special certiorari to the clerk of that court, to supply the omission. The copy of so much of the original record,, returned with the writ, showing a legally constituted grand jury, at the term at which the prisoner was indicted, obviates one of the errors assigned by him in this court.

During the progress of the trial, the prisoner, on cross-examination of one of the witnesses on behalf of the prosecution, proposed to ask him the following question, viz: “Whether he had stated to Hardy C. Crosnol, Joseph Nelson, and Augustus Leslie, or either of them, since he left home, to attend this1 trial, that he was coming to Washington, to have the defendant hung that he had lived long enough?” The attorney for the State objected, and the objection being sustained, the prisoner reserved his exception to the opinion of the court, refusing to allow the question to be put. This feature is the- only one of any serious difficulty in the cause, and if it had to be determined on strict exceptions in point of law, the court could not do otherwise than hold that an error had been committed against the prisoner, for which the judgment should be reversed. The witness himself could not have objected to the question, neither was it foreign or collateral to- the issue, but was proper to be answered for the benefit of the prisoner, as it might result in one of two ways. An affirmative answer would tend to establish a,fact from which the jury might infer prejudice or ill will, on the part of the witness, which ought to be taken into consideration by them in weighing- his testimony against the prisoner. If answered in the negative, a foundation would be laid for enabling him to impeach the witness, if he could, by proving the answer to be false.

But the prisoner moved for a now trial, the only grounds for which, assigned in the motion, are: 1st, That the verdict of the jury rendered in the cause was contrary to law. 2d, That it was contrary to evidence. 3d, Newly discovered testimony supported by the affidavit of the prisoner. Although upon the authority of Bivens vs. The State, 6 Eng. 457, the motion for new trial-would not be a waiver of any matter not specified in it, which appearing upon the record, would have been cause for motion in arrest, or might be assigned for error in this court, that case-admits the authority of Walker vs. The State, 4 Ark. 87, to this extent, that the effect of a motion for trial, in a criminal, as well as in a civil case, is to cut out all exception that had been put in during the progress of the trial, unless the matters excepted to be incorporated in, and thus renewed by, the exception, to the-decision of the court overruling the motion. See State Bank vs. Conway, 13 Ark. 354. And the court have uniformly held the motion for new trial to be a waiver of exceptions not thus-renewed. The presumption is, that the party placing them upon the record, chose to abandon them as unimportant or untenable.

However, if that error had been assigned as one of the grounds of the motion for new trial, it is doubtful whether it would be-sufficient to occasion a reversal of the judgment in the present case. In adopting that mode of bringing up his ■ case for revision, the evidence is set out upon the record at the instance of' the prisoner, and the object of this cannot be a mere matter of' form, but to serve some substantial purpose by enabling this-court to look into the whole record. It appears, from the bill of exceptions, that there were several witnesses for the prosecution, and that compared with the others, whose testimony is detailed, the witness to whom the excluded question was proposed,, was unimportant, so that his entire testimony might have been. stricken, out, without materially weakening the case made for the prosecution, or strengthening that of the accused.

In determining motions for new trial, upon the ground of newly discovered testimony, some discretion is vested in the judge presiding at the trial, because of his opportunities of forming, a correct opinion whether the application be made in sincerity and good faith, or whether it is the last shift resorted to by an unscrupulous criminal, to evade the punishment of an offence of which he is found guilty, after availing himself of all the means liberally provided by law for securing a fair and impartial trial. On the face of the application, two reasons appear why it ought not to prevail in this court; We are unable to conclude that the newly discovered testimony, if adduced before another jury would change the result; and the ground of the motion fails unless there is reason to believe that it would or ought to induce a different verdict. The full responsibility of this consideration devolved upon the Circuit Judge, and the presumption is that his discretion was rightly exercised. Further, the application was based upon the uncorroborated affidavit of the prisoner. If, as he alleged, the newly discovered witness, of whom he did not hear until after the commencement of the trial, lived at so great a distance, that it was impossible to procure her attendance, no excuse is offered for not producing the corroborative affidavit of some disinterested person, through whom the information was communicated to the prisoner, so that it could at least be seen whether it was derived from the witness, or was mere report, intangible and unreliable. It is not doubted but that the State-may, under some circumstances, adduce counter affidavits upon applications of this kind; but there can be no means of repelling the statements of the pi-isoner, so long as he relies only upon his own belief, and the sources of his information are kept concealed.

The judgment is not affected by the error complained of, in the allowance of certain items of costs, against the prisoner, which, if wrong, could be corrected by a motion for retaxation in the court below. Affirmed.


author: Mr. Justice Scott

text:
    Foster vs. Foster, use, &c.
    A writ of certiorari, directed to a justice of the peace, should be delivered to and returned by him, together with a transcript of the record therein ordered to be certified to the Circuit Court; and not served upon him like a writ of summons.
    The dicisions of this court, that, on a writ of certiorari, there should be a judgment of reversal or affirmance with an order remanding the cause if necessary, and not a judgment de novo for debt, damages and costs, approved.

      Error to Union (Ji/roiuit Oov/rt.

    Tbe Hon. ShbltoN "WatsoN, Circuit Judge.
    GarletoN, for tbe plaintiff.
    Tbe Circuit Court bad no jurisdiction to try tbe case on tbe merits, until tbe justice of tbe peace bad responded to tbe writ of certiorari, and where tbe Circuit Court acquiresjurisdiction on a writ of certiorari, it can render no other judgment than merely to quash tbe proceedings of tbe justice, or affirm them with an order to return them to tbe justice for executing tbe judgment. 1 A/rk. 480/ 4 ib. 473; 5 ib. 364/ 3 Eng. 115 / 4 ib 32/ 6 ib. 614.
   Mr. Justice Scott

delivered tbe opinion of tbe Court. ■

Upon tbe petition, with accompanying exhibits' of tbe plaintiff in error, a writ of certiorari to Grumbles, a justice of tbe peace, was ordered by a Circuit Judge in vacation, returnable into tbe Union Circuit Court, at tbe October term, 1851.

Tbe sheriff, instead of delivering tbe wilt to tbe justice, read it over to him, and himself returned tbe writ to tbe clerk, who bad issued it, with a like endorsement as .if be bad served a writ of summons. It does not appear that tbe certiorari was ever in any otherwise served upon tbe justice. Nor does it appear that tbe cause was ever certified info tbe Circuit Court by tbe justice. At tbe April term, 1852, tbe parties, announcing themselves ready for trial, tbe court, after bearing argument, and on “inspection of tbe, papers,” found “no material defect or error in tbe judgment and decision of tbe justice,” and thereupon rendered a judgment final, in favor of tbe defendant in error against tbe plaintiff in error, “for tbe sum of thirty dollars for bis debt, together with tbe further sum of one dollar and fifty cents damages, besides all costs” in that and in tbe justice’s court. Tbe plaintiff in error took a bill of exceptions, setting out tbe petition, and exhibits, and tbe final judgment of tbe court, and brought bis case here by writ of error.

If tbe judgment of tbe court could be sustained upon a presumption that tbe cause intended to have been removed, bad been in fact certified into tbe Circuit Court, in response to tbe writ of certiorari, we would indulge that presumption, and act upon it, but it cannot, because it is a judgment de novo for debt, damages and costs, and not a judgment of reversal or affirmance, with an order remanding tbe cause if necessary. Thorn vs. Reed, 1 Ark. 480; Pulaski County vs. Irvin, 4 Ark. 473; Anthony Ex parte, 4 Ark. 364; Sawger vs. Crawford County, 4 Eng. R. 32; Carnall vs. Crawford Co., 6 Eng. 614.

Tbe judgment of tbe Circuit Court must be reversed, and the cause be remanded.


author: Mr. Obief Justice ENGLisn

text:
    State Bank vs. Roddy.
    Whore one of several defendants pleads to tin action, and the plaintiff replies, and on motion of a co-defondant, the original writ of summons is quashed, and judgment “that he go hence,” there is no final judgment in favor of the defendant pleading, to -which a writ of error will lie.

      Writ of Error to JaeJoson Ci/rcmt Oowrt.
    S. H. Hemtsteax), for tbe plaintiff.
    Fowxee, for tbe defendant,
    moved to'dismiss tbe writ of error.
   Mr. Obief Justice ENGLisn

delivered tbe opinion of tbe Court.

Tbe Bank of tbe State brought an action of debt, in tbe Jackson Circuit Court, against Roddy, Tayman and Fulcher, upon a writing obligatory. At tbe return term, tbe death" of Tayman was suggested, and a sovre facias ordered for tbe purpose of substituting bis administrator. Roddy filed a plea of tbe statute of limitations, and tbe cause was continued. At tbe next term, tbe plaintiff replied to tbe plea of Noddy, and moved to quash tbe scwe facias issued to bring in Tayman’s administrators, and tbat tbe cause proceed against tbe surviving defendants. On tbe motion of tbe defendant, Fulcher, tbe original writ of summons was quasbed for tbe want of a seal, and judgment tbat Fulcher go hence — to which tbe plaintiff excepted. It does not appear, in tbe transcript before us, tbat any disposition was made of tbe cause, or final judgment, as to tbe defendant Noddy.

Tbe plaintiff brought error against Noddy, suggesting, in tbe writ of error; tbe cleatb of Tayman and Fulcher.

Tbe motion of tbe defendant in error to dismiss tbe cause for want of a final judgment as to bim, in tbe court below, must be sustained.


text:
    Robins Ex Parte.
    Where there is no subordinate court competent to issue a writ of Imheas corpus— as where the office of Circuit Judge in the proper county is vacant — this court will award such writ.

      Motion for Writ of Habeas Corpus.

    Tbe petitioner filed a motion for a writ of babeas corpus, to admit to bail bis negro man, who was in tbe custody of tbe sheriff of Pulaski county, on an indictment for murder. Tbe petition alleged tbat tbe office of Judge of tbe Circuit Court of Pulaski county was then vacant, and would continue so for some time, and prayed tbat this court would issue tbe writ, &c.

      Fowuee, for the motion.
   Mr. Justice Scott

delivered tbe opinion of the Court.

The showing, which, for the purpose of this application, will be taken as true, making it manifest (and being otherwise sufficient) that, from the accidental cause stated, there is no subordinate court competent to give the relief sought, and that without the interposition of this court in the exercise of its constitutional powers of superintending control, there will be a failure of justice, we think, in the exercise of this 'high discretion, that the application should be granted in pursuance of the doctrines heretofore laid down. Amour Hunt Ex parte, 5 Eng. R. 288; Carnall vs. Crawford Co., 6 Eng. R. 617; Marr Ex parte, 7 Eng. R. 92, 93; Allis Ex parte, 7 Eng. R. 101.


author: Wr. Chief Justice English

text:
    Pleasants vs. Heard.
    A 'general verdict of guilty, in an action of trespass for assault and battery, is good upon issues to the pleas of not guüty and son .assault demesne.

    The decision of the court below, refusing- to grant a new trial, upon the grounds that the verdict is contrary to evidence and the damages excessive, will not be disturbed, where there is no total want of evidence to sustain any material allegation in the ■declaration, and the amount of damages, upon all the facts of the case, does not shock one’s sense of justice.
    The affidavit of a juror, after verdict rendered, is inadmissible to impeach and set aside the verdict rendered by him, upon his solemn oath, upon the ground that he, with the other jurors, had acted illegally and improperly in the mode adopted by them in agreeing upon the amount of damages nor can the admissions and statements of a juror be received for such purpose.

      Appeal from the Oi/rcudt Oowt of Ora/wford County,.

    Hon. Beaufoet H. Neely, Circuit Judge, presiding-
    CueeaN, for tbe appellant.
    Puns & CUMMINS, for tbe appellee,
    contended’ that tbe jury might well have resorted to tbe mode here adopted of ascertaining tbe amount of tbe plaintiff’s damages, or to any other mode they might think proper, by way of compromising conflicting' opinions, in a case, like this, sounding in damages. That neither tbe affidavit of a juror, nor bis statements to others, is admissible in evidence to prove facts impeaching bis own verdict. Dana vs. Tuckem, U. S. 487/ Meade vs. Smith, 16 Gorm. Sep. 846/ Bennett vs. BaTc&r, 1 Ewmph. 399 / Willing vs. 'Swasey, 1 Browne 123 / Olamle vs. Bead,, 2 South. 486 / Vadse vs. Delrnae, 1 T. S. 11/ Owm et dl. vs. Wa/rbwrton, 4 Bos. c& Sul. 326/ Lessee of Sl/uggage vs. Swan, 4 Bi/im. 150/ Price Ex. vs. Wa/rrm,l Em. <& Mumf. 385. That tbe verdict is responsive to tbe issues Dyer vs.. Batch, 1 Arle. 339 / Wilson vs. BusJmell, 1 Arle. 465-
   Wr. Chief Justice English

delivered tbe opinion of tbe Court.

"William B. Heard brought an action of trespass, in tbe Crawford Circuit Court, against Joseph C. Pleasants, for an assault and battery upon bis person. Hie defendant pleaded not guilty, and son assault demesne. Issues were made up to these pleas, and submitted to a jury, who returned a verdict of guilty, assessing, tbe plaintiff’s damages at sis hundred and twenty dollars. A motion for a new trial was made by tbe defendant, overruled, a bill of exceptions’ taken setting out tbe facts, and an appeal to-this court.

Tbe first and second grounds urged in tbe motion for a new' trial, present tbe question whether tbe general verdict of guilty was responsive to tbe issues submitted to tbe jury.

Hie issues were to tbe pleas of not guilty, and son assault demesne. Tbe jury returned tbeir verdict as follows: "‘"We, tbe jury,-find tbe within named defendant,-Joseph C. Pleasants, guilty in manner and form as charged in tbe within declaration,, and we do assess tbe plaintiff’s damage to six hundred and twenty dollars. ”

A general verdict is held to be good on two issues, where tbe finding necessarily shows that tbe subject matter of both issues-was determined. Wilson vs. Bushnell, 1 Ark. R. 471; Dyer vs. Hatch, ib. 346; Woolford et. al vs. Isbel, 1 Bibb 247.

Tbe plea of son assault demesne, is a special plea of justification. It confesses tbe battery alleged, but avoids and justifies it on tbe grounds of self-defence. Tbe verdict, that the defendant' is guilty in manner and form as alleged in tbe declaration, necessarily negatives the justification set up by such plea..

Tbe third and fourth grounds urged in tbe motion for a new trial, are, that the verdict is contrary to tbe evidence; and that tbe damages assessed are excessive and unreasonable,

Tbe testimony upon tbe tidal, as set out in tbe bill«of exceptions,is, in substance, as follows:

Penm/wit, tbe first witness for the 'plaintiff, testified that bo-bad been in company with the plaintiff, on tbe bank of tbe Arkansas river, and they were walking across the-street (of Yan Bu-rén,) when they were met by tbe defendant, who spoke to tbe plaintiff, saying be wished to see Mm. Plaintiff and defendant walked off to one side, and witness continued on bis way. The parties conversed together a short time, when witness beard a noise, which attracted bis attention, and, on looking around, be saw tbe defendant striking at plaintiff with bis fist;- plaintiff, in tbe mean time, was retreating in tbe direction of tbe place where tbe witness was standing, and defendant, pursuing him. About tbe time plaintiff reached tbe opposite side of the street, near where witness was standing, be fell, but whether be stumbled, or was knocked down by the defendant, witness was unable to say. Defendant jumped on plaintiff as soon as he fell, and was in the act of beating Mm, when several persons inter-ferred, and separated them. Plaintiff was a small man, in bad health at the time, and very weak — 'defendant, a large, robust and athletic person. Plaintiff seemed to be badly hurt, and bled profusely from a wound inflicted above one of his eyes. Witness did not see the commencement of the difficulty, because he was not looking at the parties when the fight commenced.

This statement is corroborated by several other witnesses.

Dr. Brown testified that he was called upon to dress the plaintiff’s wound — the wound above one of his eyes, was a small one; but it occasioned the eye and the side of the face t#o swell very much. Both eyes became inflamed in consequence of the injury, and the plaintiff suffered a great deal. The bill of witness against plaintiff did not exceed $20.

One witness for the plaintiff testified to declarations of defendant made previous to the difficulty, in wMch he complained that the plaintiff had treated Min badly about the purchase of some lots.

Two witnesses were introduced, by the defendant. They do not contradict the statements made by the plaintiff’s witnesses, but they testify that, before defendant struck the plaintiff, they saw the plaintiff draw back Ms clenched fist, as though he were going to strike the defendant.

All the witnesses concur in the fact, that plaintiff retreated, from the time defendant first struck at him; that defendant pursued him; and that plaintiff appeared to be pretty badly hurt.

Upon the testimony introduced by the parties, without instructions from the court, the jury, in the exercise of their peculiar province of passing upon the weight of the evidence, found the defendant guilty of a trespass upon the person of the plaintiff, and assessed the damages at six hundred and twenty dollars. There is no total want of evidence to sustain any material allegation in the declaration, and there is nothing in the verdict, as to the amount of damages, upon all the facts of the case, that shocks our sense of justice.

Tbe decision, of tbe court below therefore, refusing to grant a new trial, upon tbe grounds above stated, will not be disturbed.

Tbe fifth, last, and most important cause, assigned in tbe motion for a new trial, is, that tbe jury, in assessing tbe damages, acted illegally and improperly, in this: that they agreed that each juror should set down in figures, tbe amount of damages be should be in favor of assessing, and that tbe aggregate of all tbe sums should be divided by twelve, and tbe quotient fixed upon as tbe damages; and that, in pursuance of sueh previous agreement, tbe jurors proceeded each to set down tbe amount be was in favor of assessing, and, after- all tbe jurors had thus set down tbe several amounts, they were added up, and tbe product divided by twelve, which gave tbe sum of $620, which was accordingly taken and inserted in tbe verdict of the jury.

In support of this feature of tbe motion for a new trial, several affidavits were made' and filed, which are in substance as follows:

William Wall&er, Esq., one of tbe defendant’s counsel, made an affidavit to tbe effect, that, immediately after tbe verdict was rendered by tbe jury, he was advised by bis colleague, Mr. Green, that Green B. Strawn, one of tbe jmors,- informed him that tbe damages had been assessed or fixed upon by the jury, in tbe manner set forth above. That affiant then visited tbe jury room, and found a copy of tbe acts of the General Assembly, upon tbe back of which be found a column of figures in pencil, which was added up, showing tbe amount of all tbe sums to be $7,450, which was divided by twelve, making tbe product $620; and that af-fiant exhibited said pencil marks to Hardin Eainey, one of tbe jurors, and, on enquiry of him, whether the damages assessed in the case had been fixed upon as above stated, he answered in tbe affirmative, and said that tbe calculation in pencil, on the back of said acts, was tbe one made by tbe jury. •

The affidavit of Green B. /Strcmn, one of the jurors, states, that, in assessing tbe damages, the jury agreed that each juror should state the. amount he was in favor of assessing, that tbe several amounts should be added up, and the product divided by the number of jurors, and that tbe quotient should be taken as tbe damages to be assessed in favor of tbe plaintiff; and that, in pursuance of said agreement, each juror stated tbe amount be was in favor of, wbicb was set down, and tbe whole added up, which amounted to the sum of $7,450, which, being divided by twelve, produced the sum of $620, which was taken and inserted in the verdict as the damages assessed by the jury. That the figures in pencil, made on a copy of the acts of the General Assembly, shown to affiant by ¥m. Walker, Esq., were the same made by Pickett or Wilcox, one of the jury, in setting down the several .sums, adding them up, and dividing the product as above stated. ”

It is stated, in the bill of exceptions, that a like affidavit was made by Eainey, another of the jurors, but no such affidavit appears in the transcript.

On the hearing of the motion for new trial, it seems that the ■copy of the acts, above referred to, was produced in court, and the figures admitted to have been made by Pickett, one of the jurors. They are copied in the bill of exceptions. The twelve •sums put down in a column, are 200, 2000, 500,1000,1000,1000, 500, 500, 50,150, 500, 150 — added up 7,450, and the product divided by twelve, making 620, with 10 remainder.

On the motion for a new trial, the affidavit of the juror Stra/wn, was produced with the view to impeach and set aside the verdict rendered by him, upon bis solemn oath, on the ground that he, with the other jurors, had acted illegally and improperly in the mode adopted by them of agreeing upon the amount of damages. Oaxr the affidavit of a juror bo received and considered for such purpose. ?

In the case of Stanton vs. The State, (13 Ark. R. 319,) which was an indictment for murder, a motion for a new trial was made by the prisoner, on the ground that one of tbe jury, while in the charge of the officer, and deliberating upon their verdict, absented himself from the jury room — which was sustained by the .affidavit of one of the jurors; that another juror, named, absen■ted himself from tbe room, provided for tbe jury at tbe hotel, without being in custody of the officer, who had charge of the jury; that the officer, being notified of his absence, went in search of him, but came back without him; that the juror continued absent for about two hours, and did not return to the room until near daylight. To rebut this, the attorney for the State filed the affidavit of the juror, whose conduct had been •thus impeached, explaining the cause -of his leaving the jury .room, and stating that, during his absence, he did not see or con. verse with any one. Mr. Chief Justice WatKXNS in delivering the opinion of this ¡court, in that ¡case,' said: It appears that the attorney for the State excepted to the opinion of the court, in allowing the first affidavit to be filed on behalf of the prisoner, and certainly the mode here resorted to -of impeaching the verdict by the affidavit of -one of the jurors who concurred in rendering the verdict, is subject to many serious objections. But -apart from that, and waiving any enquiry whether the affidavit on its face is sufficient to raise a presumption that the absent juror was exposed to improper influences, any such presumption is fully rebutted, and the absence explained by the .affidavit of the juror himself. ”

This opinion would seem to clisapprobate the receiving of the affidavit of a juror to impeach the verdict which he had con-icurred in rendering, but to admit of affidavits of jurors to uphold the verdict. In the case of Cornelius vs. The State, (7 Eng. 810,) the affidavits filed to impeach the verdict, were not made 'by members of the jury, but by other -persons, and in that case, .also, the affidavits of jurors were allowed to uphold the verdict.

In the case of Owen et al. vs. Warburton, (4 Bosanquet & Puller’s Rep. 326,) it appeared, from an affidavit made by one of the jurors, that the jury disagreeing as to whether their verdict should be for the plaintiff or defendant, decided the matter by lot; and on this affidavit, a motion was made to set aside the verdict. Lord MaNSKdeld said, “ "We have conversed with the other judges upon this subject, and we are all of opinion that the affidavit of a juryman cannot be received. It is singular, indeed,, tbat almost the only evidence, of which the case admits, should be shut out; but considering the arts which might be used, if a contrary rule were to prevail, we think it necessary to exclude such evidence. If it were understood-tobe the law, that a juryman might set aside a verdict by such evidence, it might sometimes happen that a juryman, being a friend to one of the parties, and not being able to. bring over his companions to his opinion, might propose a decision by lot, with the view afterwards to-set aside the verdict by his own affidavit, if the decision should, be against him.”

Lord IVCaNSjteld observed,, in the same case, that the authorities on the subject, were contradictory, and that it was proper to settle the question, and it was settled as above.

In Kentucky, it seems to be well settled that the affidavits of jurors, to prove such misconduct of the jury as will invalidate their verdict, or to question the purity of their motives, or to explain either the law or the facts which influenced them, with.the view to impeach their verdict, are not admissible. But, that suclx affidavits are admissible in' cases of mistake, &c., which do not subject the jury to any imputation of impure motives or palpable impropriety of conduct, See Taylor vs. Giger, 1 Hardin Rep. 536; Heath vs. Conway, 1 Bibb 398; Doran vs. Shaw, 3 Monroe 411; Steels's heirs vs. Logan, 3 A. K. Marshall 394; Johnson vs Davenport, 3 J. J. Marshall 390; Cain vs. Cain et al., 1 B. Monroe 213.

In Dana vs. Tucker, (4 Johnson Rep. 487,) affidavits of two of the jurors were read to impeach the verdict on ground similar to that which is urged against the validity of the verdict in this case,, and the court held such affidavits not to be admissible-

In Clum vs. Smith, (5 Hill's Rep. 560,) it was decided that affidavits of jurors could not be received to impeach the verdict for mistake or even in respect to the merits,.nor to prove irregularities or misconduct, either on their-own part, or that of their fellows.

In Connecticut, it seems that it has been adopted, as a universal rule, that where it is sought to to set' aside a verdict for the mistake or misconduct of the jurors, those jurors are mot competent witnesses to prove such mistake or misconduct. The State vs. Freeman, 5 Conn. R. 348; Meade vs. Smith, 16 ib. 356.

See, also, Willing vs. Swasey, 1 Browne (Pen. Rep.) 123; Price's ex. vs. Warren ad., 1 Hen. & Munf. 385; Shobe vs. Bell, 1 Randolph Rep. 59; which have a bearing upon the cjuestion before us.

See, also, on the same subject, the following authorities : Barlow vs. State, 2 Blackf. 114; Cluggage vs. Swan, 4 Binn. 150; Sehank vs. Stephenson, 1 Penn. Rep. 587; and numerous other cases collected in the 2 vol. United States Digest, under the title Jurors.

Though there are some conflicting cases, we think it may safely be decided, upon authority, and for many good reasons, that the affidavit of the juror Strcmn, was not admissible, in this case, to impeach the verdict rendered by him, for the cause stated in the affidavit. But we .are not to be understood as .deciding, that the .affidavit of a juror may, in no case and for no cause, be received to impeach a verdict rendered by him. We mean only to de-aide the case now before us.

Mr. Walher, in his affidavit, does not profess to have any personal knowledge of the manner in which the jury agreed upon the .amount of damages assessed by them; but simply states the admissions made by the .juror Strcmn, to his associate counsel, Mr. Green, and the admissions made by the jxxrox, Rainey, to him, after the verdict was rendered.

Every reason of public policy, which would render it improper to permit a juror to impeach his own verdict, for the misconduct of himself, or his fellows, by affidavit, would apply, with increased force, to admissions or declarations made by him out of doors, after rendering the verdict. To allow such admissions or declarations to be proven by others, for the purpose of invalidating verdicts, It seems 'to us would open a wide door, and temptation to tbe commission of frauds. The authorities are also against it. Burgess vs. Langley, 5 Manning & Granger, 721 (44 Eng. Com. Law Rep. 377;) Clum vs. Smith, 5 Hill's Rep. 560; Cain vs. Cain et al., 1 B. Monroe 213; Aylett vs. Jewel, 2 Blackst. Rep. 1299.

Disregarding the affidavit of the juror Strawn, and the admissions made by him, and the juror Bwiney, after the verdict, to» Walker and Green, and there is no legal evidence before us as to the manner in- which the jury arrived at an agreement upon the amount of damages assessed by them. It therefore becomes unnecessary for us to decide whether a verdict agreed upon in the manner stated in- the affidavits in question, should be set aside or-not. The authorities on this subject are in conflict.

The decision of the court below, refusing a new trial, is sustained, and the judgment affirmed.


text:
    Bennett et al. vs. Dawson et al.

    All claims against tile estates of deceased persons' must be exhibited, duly authenticated, to the administrator or executor, within two years after the grant of letters, as decided in Walker ad. vs. Byers, 14 Ark. 246.
    And such claim must be so exhibited, although the cause of action had not accrued at the date of the grant of letters of administration. If the cause of action arises at so short a time before the expiration of the two years, as to make the exhibition impracticable, the effect is not to let in the claim as against the administrator, but against the heir- or distributee.
    It is the duty of tho executor or administrator, at his official peril, to give the notice to creditors prescribed by the statute, but this is not a condition precedent to the exhibition of claims within the required period.

      Writ of Error to the Oi/rcuit Oowrt of Eot Spring Oowity.

    Hon. John C. Mubbay, Circuit Judge.
    CubbaN & Callagheb, for tbe plaintiffs,
    submitted that, as the-cause of action in this case did not accrue until within a few months before the expiration of the two years, this case does not come within the recent decisions of the court upon the statute. The legislature can limit the time for bringing actions without impairing the obligation of contracts, but cannot shorten the time unreasonably.
    The 1st and 3d pleas are insufficient, because they do not allege that the notice prescribed by the statute, was given to the creditors. 'Pea/rl vs. Gonley et al., 7 Smedes & Ma/rsh. 356/ Dowell vs.. Webber, 2 8m. <& Ma/rsh„ 452/ ib- 403.
    Ehglish, for the defendants.
    We submit that upon the state of the pleadings, the claim was clearly barred, and that there is no error in the judgment of the court below; and we rely upon sections 54, 85, chapter 4, Digest, and -the case of Walker ad. vs.. Byers, decided at the July Term of this court, 1853, which is directly in point, and overrules the case of Bwrton?s ad. vs. Lock-ert, 4 Eng. E. 411.

      This case was argued and submitted at the January Term, 1854.

   Mr. Justice Scott

delivered the opinion of the Court.

This was an action of debt, commenced in the Hot Spring Circuit Court, on the 7 th day of April, 1853. It is alleged, in the declaration, that the cause of action accrued on the 12th day of July, 1852.

The defendants filed three pleas:

Isi. That the plaintiffs did not exhibit the alleged demand,, duly authenticated by affidavit, within .two years next after the date of the grant of letters of administration.

2d. Eul tiel record.

3d. That although letters were granted, more than two years before the institution of the suit, to wit: on the 12th day of December, 1850; and although the demand accrued within two years next after said grant, to wit: on the 12th day of July, 1852, yet the plaintiff did not exhibit said demand, duly authenticated by affidavit, within two years next after the date of said grant.

To \ho jvrst plea, the plaintiff replied, that the demand accrued on the 12th day of July, 1852, and was exhibited, duly authenticated by affidavit, within two years next after it accrued. The defendants demurred to this replication, and the court found the law for them.

To the second,plea, the plaintiffs toot issue in fact.

To the third plea, the plaintiffs demurred upon the ground, that it was sufficient to exhibit the demand within two years after it accrued, without regard to the date of the grant of the letters. This the court overruled, and found the law for the defendants; and the plaintiffs declining to answer farther and electing to rest, final judgment was given for the defendants, and the plaintiffs brought their case here by writ of error.

The point of law involved was decided by this court in the case of Walker as ad. vs. Byers, 14 Ark. R., p. 246.

Two specific objections are made in this court to the third plea: First, That it shows that the cause of action accrued on the 12th of July, 1852, and that the expiration of the period of two years for the exhibition of claims, was the 2d day of December, of that year, leaving less than five months for the exhibition, whieh, it is insisted, is a period so unreasonably short that the law, if enforced, would impair the obligation of the contract. To this, it is a sufficient answer to say that the law was in force when the contract was made. But if a case should occur where a cause of action arose, from a dormant and contingent condition, at such an impracticable period, just before the expiration of the two years, as to make the objection tenable, the effect would not be to let in the claim, as against an executor or administrator, but as against the heir or distributee, as a superior equity to his in assets that might have descended or been distributed to him; the legislature having the undoubted power, in the advancement of a great public policy, to prefer or to postpone one creditor to another.

The oth&r objection is,, that the plea does not allege that, upon the grant of letters, public notice was given to creditors as the statute prescribes. Doubtless, it is the duty of the executor or administrator to give the prescribed notice at his official peril, but this is not made a condition precedent, by the statute, for the exhibition of claims within the required period. Judgment affirmed.

lion. E. II. ENGLISH, 0. J., not sitting in this case.