text:
    Orr vs. The State.
    The act of 22d January, 1855, intended, doubtless, to dispense with the necessity of stating, in an indictment under the 8th section of the Gaming Act (Digest 367,) the names of the persons by whom the game was played. (The State vs. Parnell, l 16 Arle. 506; Medloclc vs. State, ante.)

    Several counts for distinct offences, being misdemeanors, of the same nature or class, and subject to the same judgment, may be joined in one indictment.
    The mode of examining a witness, who is personally present at the trial, is very much under the control and sound discretion of the presiding judge; and no objection can be perceived to the general question whether the witness had seen the defendant play the game charg'ed in the indictment at any time within twelve months, etc.
    Where a person is indicted for betting at any game of cards embraced by the provis- < ions of the 8th section of the Gaming Act, (Digest 367,) it is sufficient to charge the betting on a game of cards, naming the game; and it is not necessary to charge that the game of cards named is a game of hazard or skill; but if so charged, it will be considered as surplusage and need not be proved. ■ ,
    But where a person is indicted for betting on a game not embraced within the 8th section, but embraced by the 2d section of the act of January, 1855, it is necessary, it would seem, to charge the game bet upon as one of hazard or skill.

      Appeal from Marion Circuit Court.

    The Hon. William 0. Bevbns, Circuit Judge.
    Jordan for'the appellant.
    Johnson, Attorney General.
   Mr. Chief Justice English

delivered the opinion of the Court.

James Orr was indicted in the Marion Circuit Court for gaming. There were two counts in the indictment. The first count charged: “ That James Orr, late of, etc., on, etc., at etc., unlawfully did bet a large sum of money, to wit: the sum of one dollar, on an unlawful game of hazard commonly called pocre, then and there played with cards, contrary to the form of the statute,” etc.

The second count charged: “ That James Orr, etc., on etc., at, etc., unlawfully did bet a large sum of money, to wit: the sum of one dollar, on an unlawful game of skill called draw pocre, then and there played with cards, contrary,” etc., etc.

The indictment was found at the April term, 1856.

The defendant filed a motion to quash the indictment for alleged want of certainty in the description of the offence, etc., which the Court overruled.

The defendant then moved the Court to compel the State to elect upon which count in the indictment she would put him upon trial, alleging as grounds of the motion that in each count a separate and distinct offence was charged. In support of the motion, the defendant introduced as a witness, one Wm. Coker L., who professed to be skilled in the matter, and who testified that pocre and draw pocre were distinct and different games at cards, and stated the manner of playing each, and the difference between them. But the Court, after hearing his statement, overruled the motion.

The defendant then pleaded not guilty, and the case was submitted to a jury. The State introduced Wm. Coker L., as a witness on her part, and the Prosecuting Attorney asked him “ if he had seen the defendant bet money on a game of pocre or a game of draw pocre at any time within one year next before the finding of the bill of indictment in this case, in the county of Marion and State of Arkansas?”

To which question the defendant objected upon the ground “ that there was no identity of the offence in the indictment, and that the State should be required to confine the enquiry to some one transaction, and not be permitted to fish through the whole year, and through the county, and with- every person, to make out an offence against the defendant.”

But the Court overruled the objection, and permitted the witness to answer the question.

Thereupon, the said Wm. Coker L. testified that he was acquainted with the defendant, and had seen him bet money on a game of pocre played by Robert E. Trimble, Davis R. Lutt, jr., and the defendant, in the county of Marion, State of Arkansas, within one year next before the finding of the bill of indictment in this case. Which was all the testimony introduced.

The defendant moved the Court to instruct the jury as follows:

“ 1. That, as it was alleged in the indictment that it was a game of hazard, it must be proved that it was a game of hazard, in order to authorize a conviction.

2d. That unless they are satisfied from the evidence that the defendant did bet on a game of hazard called pocre in the county of Marion, within one year next before the finding of the bill of indictment'they should find for the defendant

“ 3d. That if the jury are satisfied the defendant did bet money on a game of pocre within the county and within one year before the finding of the bill, unless they also find from the evidence that said game of pocre was a game of hazard, they should find for the defendant.”

Which instructions the Court refused to give, but upon its own motion charged the jury “ that if they found from the evidence that the defendant bet money on a game called pocre, within this county, within one year next before the finding of the bill of indictment, they should find the defendant guilty, and assess his fine at whatever sum they thought proper between ten and twenty-five dollars.”

The jury returned a verdict against the defendant of “guilty in manner and form as charged in the indictment,” and assessed his fine at ten dollars.

The defendant excepted to the several decisions of the Court above indicated, and took a bill of exceptions setting out the -facts; and appealed to this Court.

1. The only objection made to the form of the indictment by the counsel for the appellant here, is, that it does not set out the names of the persons by whom the game at cards, upon which the appellant was charged with betting, was played; citing Barkman vs. The State, 13 Ark. 704, etc.

In the case cited, and in a number of previous cases, this Court held that in an indictment under the 8th section of the Gaming Act, {Big. p. 367,) it was necessary to set out the names of the persons by whom the game was played, as matter of description of the offence, and that the proof must correspond with the allegation. But this rule was found to be so inconvenient in practice, that the General Assembly, by act of 22d January, 1855, intended, doubtless, to dispense with the necessity of stating the names of the persons by whom the game was played. The State vs. Parnell, 16 Ark. 506. Medlock vs. The State, present term. Though such intention as to games embraced by the section of the Gaming Act above referred to, is not clearly expressed.

The Court did not err, therefore, in refusing to quash the indictment.

2d. Nor did the Court err in refusing to compel the State to elect upon which of the two counts of the indictment she would put the appellant on trial. If pocre and draw pocre be really distinct and different games, and the indictment intended to charge the appellant with two distinct offences, one in each count, the offences both being misdemeanors of the same nature or class, and subject to the same judgment, the State had the right to join them in one indictment, and the appellant had no right to compel the Prosecuting Attorney to make an election, etc. 1 Chitty’s Cr. Law,p. 253-4.

3d. The objection made by the appellant’s counsel to the question put by the State to the witness Wm. Coker L. is that it was too general, and not sufficiently specific. No authority is cited to sustain the objection. It is not insisted that the question was a leading one; nor can we conceive how the appellant could have been prejudiced by such a general inquiry of the witness. The mode of examining a witness, who is personally present at the trial, is very much under the control and sound discretion of the presiding Judge, so that questions be not leading, etc. Pleasant vs. The State, 15 Ark. 649.

4. The only remaining question is, did the Court err in refusing to instruct the jury as moved by the appellant, that the State was bound to prove that pocre was a game of hazard?

The 8th section of the Gaming Act is as follows:

If any person shall be guilty of betting any money or other valuable thing, on any game of brag, bluff, pocre, seven up, three up, twenty-one, vingtun, thirteen cards, the odd trick, forty-five, whist, or at any other game at cards, known by any name now known to the laws, or with any other or new name, or without any name, he shall, on conviction, be fined in any sum not less than ten dollars, nor more than twenty-five dollars.” Dig. ch. 51, part 8, art. 3, sec. 8, p. 367.

The first section of the Gaming Act relates exclusively to what are known as banking games, etc.; and the 8th section provides for the punishment of betting on games at cards only. And hence, it was held by this Court in Norton vs. The State, 15 Ark. 71, that it was no offence to bet upon a raffle; and in The State vs. Hawkins, Ib. 259, it was decided that betting at rondo was not an offence within the provisions of either section of the Gaming Act.

The act of 22d January, 1855, which was passed after these decisions were made, is as follows:

“Sec. 1. If any person shall be guilty of betting any money or any valuable thing on any game of hazard or skill, he shall, on conviction, be fined as prescribed in sec. 8, art. 3, chap. 51, title Criminal Law, of the Digest of the Statutes of Arkansas.

“ Sec. 2. In prosecuting under the preceding section, it is sufficient for the indictment to charge that the defendant bet money, or other valuable thing, on a game of hazard or skill, without stating with whom the game was played.”

The 8th section of the Gaming Act embracing nothing but betting on games played with cards, it was manifestly the intention of the 1st section of the act of 22d January, 1855, to enlarge the prohibition against betting, and to extend the penalty of the 8th section of the Gaming Act to betting on any game of hazard or skill, except the banking games, etc., embraced by the first section, etc., of the Gaming Act.

Where a person is indicted for betting at any game of cards embraced by the provisions of the 8th section, it is sufficient for the indictment to charge the betting on a game of cards called pocre, seven up, etc., naming the game of cards, if it has any, etc. But it is not necessary to charge that the particular game of cards named is a game of hazard or skill.

But where a person is indicted for betting on a game not embraced within the 8th section, but embraced by the 1st section of the act of January, 1855, it is necessary, it would seem, to charge the game bet upon to be one of hazard or skill, as provided by the 2d section of the act last referred to. See State vs. Grider, present term.

In the indictment now before us, the first count charges the betting upon a game at cards called pocre, and the second count charges the betting upon a game at cards called draw pocre. Both of these games are clearly embraced by the 8th section of the Gaming Act, and it was, therefore, wholly unnecessary for the indictment to charge, as it did, that the first was a game of hazard, and the second a game of skill. These words of description, in this indictment, were merely surplusage.

. Being surplusage, it was not necessary for the State to prove it. 1 Chitty's Cr. Law, p, 295, and cases cited in Note 1, 5th American,from the 2d London Edition..

The judgment is affirmed.

Absent, Hon. C. C. Scott.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Very vs. Watkins et al.
    To an action upon a recognizance, entered into on appeal from a judgment of the Circuit Court, which was affirmed, the defendants pleaded, that the plaintiff had filed a bill in chancery to foreclose a mortgage given by the defendant in the judgment to secure the payment of the same bond on which the action at law was founded and the original judgment recovered, and in the decree upon that bill the Court compelled the plaintiff to execute and perform an agreement, which his agent had previously made, with the defendant, to take goods, etc., in satisfaction of the mortv gage debt: and the debt by the terms of the decree was so discharged and extinguished: held, that the effect of the decree was to extingush the debt upon which the judgment at law was rendered; and that the plea was a good defence to the action upon the recognizance.
    A creditor may proceed by bill in equity to foreclose a mortgage given to secure the payment of a bond, and at the same time by action at law upon the bond: and though he can have but one satisfaction, he is entitled to his costs in both Courts.
    The plaintiff, in an action upon an appeal recognizance, assigned as breaches the nonpayment of the debt and interest, and also of the costs on the appeal: the defendants pleaded payment, and also a special plea showing satisfaction of the debt and interest only: ‘ held that the plaintiff might have taken a default for the costs, subject to the final judgment on the plea of payment; but that he is not entitled to a reversal because of his own failure to obtain such judgment.

      Appeal from the Circuit Court of Pulaski county.

    The Hon. William H. Feild, Circuit Judge.
    Fowler for the appellant.
    Watkins & Gallagher contra.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was an action of debt upon an appeal recognizance, brought by Martin Very against George C. Watkins and Ebe-nezer Cummins, in the Pulaski Circuit Court.

The declaration alleged, in substance, that on the 18th day of June, 1849, the plaintiff recovered a judgment in the Pulaski Circuit Court, against Jonas Levy, in an action of covenant, for $2,680 17 damages, and $12 79 costs. That Levy appealed from the judgment to this Court, and entered into an appeal recognizance with the present defendants, Watkins and Cum-mins, as securities, in the penal sum of $3,500, conditioned according to law, etc., which is the recognizanc declared on.

Special breach — That on the 18th of Oct., 1851, this Court affirmed the judgment, with costs against Levy, amounting to $16 37. And that neither he, nor the defendants, had paid the damages and costs adjudged against him in the Circuit Court, nor the costs adjudged against him by this Court.

The defendant interposed four pleas:

1st. Payment by Levy of the judgment of the Circuit Court, interest and costs, and the costs in this Court, etc.

2d. A special plea, as follows: “ Actio non, etc. Because they say that heretofore, to wit, on the 12th day of December, 1847, the said plaintiff filed his bill in chancery in the Circuit Court of the United States for Arkansas district, against said Jonas Levy (wherein, also, by an amendment, George C. Watkins was made co-defendant,) and therein and thereby, amongst other things, prayed to have an account taken of the amount and balance of principal and interest due said plaintiff on and in respect of the same identical writing obligatory and cause of action, whereon and in respect whereof, said judgment, in said recognizance mentioned, was rendered: and on, and in respect of a certain mortgage, given by the said Jonas Levy to secure the payment of said writing obligatory and interest; and that said Jonas should be decreed to pay said plaintiff such balance as should be found due: and in default thereof all equity of redemption in the property mortgaged should be foreclosed and barred, and that the mortgaged premises might be sold to satisfy such sum as should be found due, with interest and costs, and for general relief — and said Jonas was impleaded in said Court on and in respect of the premises aforesaid, and appeared and filed his answer therein, and made his defence: and such proceedings were had in said cause, that on the 15th day of July, 1850, it was, among other things, adjudged and decreed by said Court that by his, the plaintiff’s, agreement, bearing date the 3d day of March, 1843, made by his agent and attorney in fact, John L. Davis, with said Jonas Levy, whereby he agreed to receive in goods, such as jewelry, etc., the balance unpaid on the obligation and mortgage of the said Jonas, assigned to said ■plaintiff by Darwin Lindsley, to be delivered to him, or any agent of his, at Little Rock, Arkansas, at reasonable prices, at said Little Rock, to bé called for within twelve months from the date of said agreement, as also by the conduct of himself and his said agent in the premises, said plaintiff became bound in equity to accept and receive of said Jonas Levy, in satisfaction of the unpaid residue of the demand in that behalf in controversy, goods such as were mentioned in, or contemplated or embraced by, said agreement, if said Jonas had such goods at his residence, store or place of doing business at Little Rock for that purpose, ready to be there delivered to said plaintiff or any agent of his at reasonable prices, etc. And that under the circumstances said plaintiff was precluded and estopped in equity from repudiating the act of his said agent in making said agreement: and that it was sufficiently proven therein that said Jonas did, within twelve months from the date of said agreement of March 3d, 1843, have and set apart at his residence and place of doing business, at Little Rock aforesaid, for the satisfaction of said unpaid residue of the principal and interest of said demand, a sufficiency of goods, etc., as contemplated by said agreement: and thence forward had kept the same ready for delivery as aforesaid, until they were at that time placed in the hands of the receiver of that Court, subject to the order and control of said Court; but the value of the goods so set apart not being sufficiently proven, it was further ordered and decreed that an account should be taken of the amount of such unpaid balance of said demand, on the 3d of March, 1844, after deducting the credits, and also that an inventory and account should be taken of said goods, etc., so set apart, and their value, according to the terms of said agreement on the 3d day of March 1844; and that the master should strike a balance between the value of the goods so placed in the receiver’s hands, and such residue and balance of said debt; and Luke E. Barber was appointed the master in said cause to take such account and inventory, and report to the Court in respect thereof — and such proceedings were further had in said Court, that, heretofore, to wit, on the 29th July, 1850, the master in chancery in that Court, before then duly appointed for that purpose, filed his report in that cause, whereby it appeared and was made manifest, that on the 3d day of March, 1844, the amount due said plaintiff, in respect of said writing obligatory, and interest, was the sum of $2,002 59, and the excess in value of goods and property tendered, held and placed in the hands of the receiver of that Court, by said Jonas, to meet and pay said sum and interest, in pursuance of an agreement and contract therefor made, and which goods and property were, by the terms of said contract, to have been paid and delivered on the 3d day of March, 1844, and were then tendered, and ever after held in readiness by said Jonas for that, purpose, over the amount of such principal and interest due in respect of said writing obligatory, was the sum of $774 40 — which report was by the order and decree of said Court confirmed — and in a further report of said master in chancery, in pursuance of an order of said Court in that behalf, filed in said Court, on the 13th August, 1850, the said master set apart specifically and fixed the amount and value of the goods and property so tendered, and in the hands of the receiver of said Court, in that behalf duly appointed, of sufficient value to equal and pay, and extinguish the entire balance of _ principal and interest due on and in respect of said covenant, or writing obligatory, on said 3d day of March, 1844; which report was, by said Court, also, in all things confirmed. And after-wards, to wit, on the 15th day of August, 1850, in said Court, and by the consideration, decree and judgment of said Court, it was decreed and declared, among other things, that the goods specified in said last mentioned report of the master should be delivered to the said plaintiff on demand, by the receiver of said Court, and that said plaintiff should receive the same in satisfaction and full discharge of the residue unpaid on the said bond and mortgage, upon which that suit was founded, to wit: the said sum of §3,002 59, found to be due and unpaid on said bond and mortgage on said 3d day of March, 1844; and that the bond and mortgage aforesaid were discharged and satisfied, and that 'by such satisfaction the property mortgaged was absolved and released from the lien of said mortgage and liability aforesaid, and that the relief prajmd should be denied, and that the said bill should be and was thereby dismissed; and that the plaintiff, (complainant in that suit) should pay the said Jonas all his costs in and about said suit laid out and expended, to be taxed by the clerk, as will more fully and at large appear by reference to said proceedings, which decree remains and stands in full force and effect, not in anywise reversed, set aside or annulled. And so said defendants in fact say that the said judgment of said Circuit and Supreme Courts, and said recognizance, are fully extinguished and satisfied, and said plaintiff by the decree and proceedings aforesaid, is estopped and debarred from suing upon, prosecuting or recovering the same or any part thereof. And this they are ready to verify; wherefore they pray judgment, etc.”

3d Plea, — nul tiel record.

4th. A special plea beginning thus: “ and as to the said declaration, and so much thereof as alleges, as a breach of the condition of said recognizance, the non-payment of the judgment, interest and costs of said Circuit Court, and claims to recover the same, said defendants say actio non, etc.; because they say,” etc.

Then the plea sets out the proceedings and decree in the Circuit Court of the United States, by whioh Levy was discharged from the obligation, etc., on which the judgment of the Pulaski Circuit Court was founded, etc., substantially as alleged in the third plea, and concludes as follows;

“ And so said defendants further say, that said costs of said suit in said Circuit Court in said recognizance mentioned, were fully paid said plaintiff before this suit was instituted, to.-wit: on the-day of February, 1852.

“ And said defendants say that said judgment, costs and interest of said Circuit Court, have been, by reason of the premises, fully paid, discharged and satisfied. And this they are ready to verify; wherefore they pray judgment,” etc.

Replications were filed by the plaintiff, and issues made up to the first and third pleas. The plaintiff demurred to the second and fourth pleas: the Court overruled the demurrers: and the plaintiff declining to reply to the pleas, and electing to rest upon the demurrers, final judgment was rendered discharging the do-defendants.

The plaintiff appealed to this Court.

1. The principal objection made by the demurrers to the 2d and 4th pleas, and urged by the counsel for the appellant, here, as a fatal objection, is, that the matter set up by the pleas should have been interposed by Levy as a defence to the original suit in the Pulaski Circuit Court; and he having failed so to do, the judgment was conclusive; and the matter, if available as a defence at all to the securities in the recognizance, would have to be asserted by a bill in chancery upon proper allegations of equitable circumstances such as fraud, mistake, etc., ete.

The authorities cited by the counsel for the appellant establish the familiar general rule, that where a pary is sued at law, if he neglects to interpose any available legal defence which he may have to the action, he cannot afterwards resort to a Court of equity to be relieved against the judgment at law, on the grounds of the matter of such legal defence which he so neglected to interpose, etc. See Hempstead et al. vs. Watkins adr. 1 Eng. R. 317. Burton vs. Hynson et al. 14 Ark. 32.

But it appears from the allegations of the declaration, that the original judgment of the Pulaski Circuit Court against Levy was rendered on the 18th of June, 1849; and the pleas allege that the decree in the United States Circuit Court in chancery, relied upon as extinguishing the judgment at law, was finally rendered on the 15th of August, 1850. The decree therefore being subsequent to the judgment, of course Levy could not have pleaded the decree as a bar to the recovery of the judgment.

If the counsel for the appellant means to insist, as he does perhaps, that the agreement (an executory accord, etc.,) between Very and Levy, upon which the decree was founded, and which it compelled Very to execute, should have been interposed by Levy as a defence to the original suit in the Pulaski Circuit Court, the answer is, that it would seem that such agreement was strictly of equitable cognizance, and would not have been available as a legal defence. See Levy vs. Very. 7 Eng. R. 148. Burton vs. Hynson et al., 14 Ark. 32.

The substance of the defence set up by the pleas, is this: that Very filed a bill in the Circuit Conrt of the United States in chancery to foreclose a mortgage given by Levy to secure the payment of the same bond on which the action at law was fonnded and the original judgment recovered: and in the decree upon that bill, the Court compelled Very to execute and perform an agreement, which his agent had previously made with Levy, to take goods, efic., in satisfaction of the mortgage debt; and the debt, by the terms of the decree, wasao discharged and extinguished.

The effect of this decree was to extinguish the very debt upon which the judgment at law was founded. It was rendered, as above observed, subsequent to the recovery of the judgment, by a Court of competent jurisdiction, and must be regarded as conclusive upon the parties, etc.

If Very had obtaind a decree of foreclosure and sold the mortgaged property for the full amount of the debt, it would not more effectually have extinguished the judgment at law based upon the same debt, than did the decree which was rendered by the Court, compelling him to take thd goods, etc., in satisfaction of the debt, according to the terms of his agreement.

Very had a right to bring an action at law upon the bond, and to proceed also, in equity to foreclose the mortgage, but he could have but one satifaetion of the debt.

The original judgment (for the debt and interest) being thus satisfied and extinguished, the appeal recognizance, upon which the appellees in this case were sued, being but an incident to the judgment, was also thereby extinguished pro tanto, and the appellees were no longer liable thereon for the payment of the debt, etc.

2d. The second, and only further objection taken to the pleas, is, that' they do not answer so much of the breach assigned in the declaration as alleges the non-payment of the costs of the Circuit and Supreme Courts, and especially the latter, for which, it is insisted, the appellees are liable at all events upon the recognizance.

As above remarked, the appellant had the right to bring an action at law against Levy upon the bond, and at the same time to proceed by bill in equity to foreclose the mortgage given to secure the bond. 1 Lomax Dig. 397. Smith et al. vs. Robinson, 13 Ark. 538. Sullivan vs. Hadley et al., 16 Ib. 144. And, though he was entitled to but one satisfaction of the debt, yet having the right to bring his action at law as well as to file his bill in chancery, he was entitled to his costs in the action: and of course to the costs adjudged to him on affirmance of the judgment by this Court. Porter vs. Ingraham, 10 Mass. 88.

The second plea was, therefore, virtually no answer to so much of the breach as alleged a non-payment of the costs of the Circuit and the Supreme Courts, and, as to this plea, the appellant had the right to take a default for such costs.

The 4th plea alleges the payment, by Levy, of the costs of the Circuit Court, before the commencement of this suit, but does not aver the payment of costs of the Supreme Court.

As to this plea, therefore, the appellant had the right to take a default for the costs of the Supreme Court.

The right to the several defaults, it seems, is upen the principle that, under our practice, the pleas are independent: but the defaults so taken would not have been absolute in this case, because the appellees had interposed a general plea of payment, to which the appellant had taken issue, and the defaults would have been subject to the final judgment rendered upon disposing of the issue to this plea. Wheat use, etc. vs. Dotson, 7 Eng, 714.

But it does not appear that the appellant claimed any default for the parts of his demand not answered by the pleas, nor did he have the issue to the plea of payment disposed of, but rested upon his demurrer to the second and fourth pleas, and appealed. As he took no steps, therefore, to obtain judgment for the costs in the Court below, he is not entitled to a reversal here, because of his failure to obtain such judgment. Denton et al. Exr. vs. Robinson adr. 17 Ark.

The judgment is affirmed.

Absent, Hon. C. C. Scott.


author: Mr. Justice Hault

text:
    The State of Arkansas vs. The President and Directors of the Bank of Washington.
    If the defendant file several pleas setting up precisely the same grounds of defence, though differently stated, the Court may require him to elect upon which he will rely, then strike out the others, (14 Arle. 186; 17 lb. 89:) but the court would have no right to strike out either plea without allowing the defendant to make his election. (5 Arle. 140; 1 Eng. 198; 14 Arle. 411.)
    On an issue to the plea of nul tiel corporation' to a suit in the corporate name of a Bank, it appeared that the charter of the Bank had expired by limitation, but that she had made a general assignment of her assets to Trustees, who were authorized by law to sue in the corporate name of the Bank upon all choses in action, etc., due to her: Held, that the Bank was so far a corporation as to make it competent on the part of the Trustees to sue in her corporate name on any of the choses in action transferred to them, notwithstanding the expiration of the charter.
    A general deed of assignment to trustees does not vest in them the legal title to the bonds held by the assignor, so as to authorize them to sue thereon in their own names. (6 Eng. 106; 7 lb. 74; 4 Ark. 361; 5 lb. 536.)
    The State is not liable for interest on the semi-annual instalments of interest upon the bonds issued by her to the State Bank and Real Estate Bank, upon default of the payment of such interest.
    [But if the State were liable for interest upon the overdue instalments of interest upon such bonds, the rate would be 5 per cent, upon the bonds bearing 5 per cent. interest, and not the rate fixed by law upon contracts generally, per Hanlv. J.]
    It is not necessary that the holders of the State bonds issued to the State and Real Estate Banks, should prove a demand of payment of the interest thereon, at the place stipulated in the endorsements of thebondsfor payment: if the State had funds at the place of payment to meet the instalments of interest it should be made to appear by way of defence. (14 Ark. 191.)

      Writ of error to the Circuit Court of Pulaski county.

    Hon. William H. Feild, Circuit Judge.
    S. H. Hempstead for the plaintiff.
    Interest on interest is not allowable. 8 Mass. 455; 4: Rand. 406; 23 Pick. 169; 5 B. & JL 34; 1 Veseyjr. 99; 1 J. C.R. 13; 1-7 Conn. 243; 7 Barb. 632; 11 Paige 231; 2 Cush. 97; 17 Mass. 417; 11 Mctc. 210; 7 Greenl. 48; 6 J. C. R. 313; 2 A. K. Marsh. 335; 5 Paige 98; 3 H. & M. 89.
    Pike & Cummins, for the defendant,
    as to the right of the corporation, and not the trustees, to sue, cited the several acts of Congress in reference to the Bank; and upon the point, that the Court below properly allowed interest upon the semi-annual instalments of interest overdue on the bonds, and for which suit was brought, admitting that the cases of Ferry vs. Ferry, 2 Cush. 92; Hastings vs. Wiswall, 8 Mass. 455; Dean vs. Williams, 17 id. 417; Yon Hemert vs. Porter, 11 Mete. 218; Wilcox vs. Havland, 23 Pick. 168; Doe vs, Warren, 7 Greenl. 48; Connecticut vs. Jackson, l J. C.R. 314; Van Benschoton vs. Lawson, 6 J. C. R. 314, were against the point, cited the following authorities as outweighing them: Pierce vs. Rowe, 6 N. liamyj. 179; Drew vs. Drew, id. 40; Sedgwiek on Dam. 407; Kennonvs. Dickens, 1 Taylor 131; Wr’ght vs. Wright, 2 McCord’s Civ Rep.
      202; Rhodes vs. Bythe, 5 B. Mon. 33G; Bowles & wife vs. Dray-ton, 1 Dessau. 489; Watkinson vs. Root, 4 Hamm. 373; Hollings-worth vs. The City of Detroit, 3 McLean 472; Austin vs. Imus, 23 Verm. 291; Gihbes vs. Chisholm, -1 Nott & McCord 38; Singleton vs. Allen, 2 Strobh. Eq. 172; Doig vs. Barkley, 3 Richard. 126; and contended that the inducement to both capitalists and persons of small means, "to invest in these bonds, as in other States) was the punctual payment of the interest. Of many stocks and funds, it is not expected that the principal will ever be paid. A man invests so much in stocks, that he may derive therefrom a fixed and certain income, precisely as if, with the same capital, he purchased an annuity The State cannot redeem and pay off its bonds at pleasure. The holders have a vested rjght to receive the interest regularly during the whole time fixed for the bonds to run. Bonds with the principal redeemable at pleasure would not sell at all.
    The contract, in all such bonds is, in effect, to pay so much money every six months, and so much at a definite period. The semi-annual payments are really as much principal, as is the principal sum itself. The interest on public stocks is like the annual rents of land — a semi-annual payment, which the State agrees, with a pledge of her faith and honor, that she will pay with punctuality. If she does not pay punctually, and after long delay declines to pay interest on these semi-annual payments, she violates her plighted faith*.
    When a man invests his capital in stocks, it is the dividends or payments of interest that compose his fortune,
    When suit is brought on such bonds, for overdue instalments of interest, the judgment is not given for such interest as incident or accessary of the debt. The debt is not due. Judgment is not given for the interest, by way of damages for the detention. of the debt, for that is done only where the debt is unjustly detained, contrary to the contract. What is unjustly detained, contrary to the contract, are the instalments of interest themselves. The instalments of interest stipulated to be paid are themselves independent principal sums.
   Mr. Justice Hault

delivered the opinion of the Court.

This is an action of covenant brought by the defendants in error — plaintiffs below — on fifty-two State bonds, partly five per cents, issued to the State Bank, and partly six per cents, issued to the Real Estate Bank — the interest on each being payable semi-annually. The plaintiffs below claim title to the bonds declared on by assignment from the obligees therein named through several by due course.

The State, at the return term of the writ, appeared to the action, and interposed her eleven pleas in bar thereof, which were, in substance, as follows, to Avit:

1. Nul tiel corporation.

2. Inducement that the charter of the Bank of Washington expired 4th July, 1844, .and contained no provision authorizing it to sue after that time — with traverse, mil tiel corporation.

3. That on the 3d July, 1844, the Bank of Washington assigned her assets, including the bonds, to one James Adams, and he to eight trustees; by which the legal title to the bonds in question vested in such eight trustees; with traverse of title in the plaintiff below.

4. Assignment by the Bank of Washington to the eight trustees named in the third plea, on the 3d July, 1844, with like traverse as in third plea.

5. That the Bank was not holder and assignee of the bonds as alleged.

6. That the plaintiffs below did not demand payment of the instalments of interest as they fell due, at the places where they were payable, averring that, as a consequence, the defendant below became and was released and discharged from all liability thereon.

7. As to the 5 per cents, no demand on the Bank of the State, and no notice to the State of the non-payment by the, Bank was given to the State.

8. As to the 6 per cents, no demand on the Real Estate Bank, and no notice to the State of the non-payment by the Bank.

9. No suit against the Banks to recover the interest, nor were they prosecuted to insolvency.

10. Payment of all the interest due on the bonds at the time suit was brought.

11. Covenants performed. .

The 2d and 5th pleas were stricken out, on motion of the plaintiffs below, and exceptions therefor by the defendant. Issue was taken to the 1st, 4th and 10th pleas. Demurrers were interposed and sustained tojhe 3d, 6th, 7th, 8th, 9th and 11th pleas, and exceptions by the defendant below in consequence thereof.

The cause, upon the issues thus formed, was submitted to a jury, who found each issue for the plaintiffs below, and assessed their damages at'$52,513, for which judgment was rendered by the Court.

The State, by her attorney, moved the Court'for a new trial on the following grounds, to wit:

1. That the Court permitted the plaintiffs to give improper evidence to the jury, against the objection of the defendant.

2. That the Court gave the instructions asked for by the plaintiffs, against the objections of the defendant.

3. That the Court refused to give the six instructions asked for by the defendant.

4. That the verdict is contrary to law.

5. That the verdict is contrary to the evidence and not warranted by it.

6. That the damages found by the jury are excessive.

7. That the Court, against the objections of the defendant, allowed the plaintiffs to fill up the blank assignments, on said bonds, at the trial, and after the jury had been sworn.

This motion being considered by the Court, was overruled, and the defendant, by her attorney, excepted, setting out, in her bill, all the evidence given at the trial, the facts relative to the filling up the several blank assignments on the different bonds set forth in the declaration, the several instructions given at the instance of the plaintiffs below, and those asked for by. the defendant and refused by the Court, the several pleas stricken out, and such other facts as may be involved in the various grounds set forth in the motion for a new trial. We shall only set forth such facts as may be necessary to illustrate the several points upon which the judgment of this Court is invoked by the assignment and briefs of counsel, and, in doing so, shall introduce them at the time those points are respectively being considered.

The defendant below brought error, upon which the cause is pending in this Court. Sundry errors have been assigned; but several of them seem to have been abandoned, or else waived by counsel in their respective briefs. We propose, therefore, only to consider those to which our attention has been specially called and directed by the counsel at bar.

1. It is insisted by the defendant below that her second plea should not have been stricken out; whilst it is maintained by the plaintiffs that such plea was properly stricken out, for the reason, that it was substantially a repetition of the first plea.

The doctrine on this subject may be thus stated: Where the defendant files several pleas, setting up precisely the same grounds of defence, though differently stated, the Court may require him to elect upon which he will rely; and when the election is made, then strike out the other. See Sumpter vs. Tucker, 14 Ark. R. 186. Davis vs. Calvert, 17 Ark. R. 89.

We apprehend the Court, without allowing an election of pleas, would have no power or right to strike out either, on account of the same facts being set up in each. See Sullivant & Thorn vs. Reardon, 5 Ark. R. 140. Wilson & Turner vs. Shannon & wife, 1 Eng. R. 198. Sanger et al. vs. State Bank, 14 Ark. R. 411.

We therefore hold that the Court below erred in striking out the second plea of the defendant, without allowing him to elect between that and the first one.

2. It is also insisted by the plaintiffs in error that the Court below erred in sustaining the plaintiffs’ demurrer to her third plea.

The motion set up in this plea is, in effect, that the defendants in error had no title to the bonds declared on. Assuming it to be true, as the parties in the Court below seem to have conceded, that the several acts of Congress, abstracts from wbicb are stated below, are private acts, and as such should be proved as other material facts in the cause, we think there can be no doubt, but that the third plea is good in substance and form, and consequently an effectual bar to the action to which it applies, if confessed, as it is, in effect, by the demurrer. We, therefore, hold that the Court below erred in sustaining the demurrer to this plea.

3. It is further insisted by the plaintiff in error that the Court below erred in giving the instructions asked for by the plaintiffs below, and refusing to give those moved for by the defendant below.

Those given on the part of the plaintiffs below, are as follows:

1st. That if it appears to the jury that there is by act of Congress such a corporation as the President and Directors of the Bank of Washington still in existence for the purposes of this suit, the jury must find for the plaintiffs on the plea of no such corporation; and it is sufficient evidence of that fact, if the trustees of that Bank are authorized to sue in the name by which the Bank was incorporated, notwithstanding its charter had expired.

2d. That if the jury find there was no such assignment by the said Bank as to vest the property of the Bank in the trustees in such manner as to require them to sue in their own names, but they might by such suit use the name by which the Bank was incorporated, then the jury will find for the plaintiffs on the plea of assignment.

3d. That if the plaintiffs are entitled to payment, they are entitled, as a part of the damages, to recover interest at six per cent, upon the amount of interest on each bond falling due half yearly from the time when each should have been paid to the time of trial, in addition to the sums of half yearly interest.

4. That the bonds in the declaration mentioned did not so pass by a general deed of assignment to the trustees as to pass the legal title to them, and require them to sue in their own namesi

Those instructions proposed by the defendants below, and refused to be given by the Court, are as follows:

1. That unless it has been shown by the evidence, that the plaintiffs, as holders of the bonds mentioned, demanded the payment of interest semi-annually at the place named in the endorsement of said bonds respectively, the plaintiffs cannot recover in this action.

2d. That unless it has been proved to the satisfaction of the jury that the plaintiffs, as holders of said bonds offered in evidence, demanded the payment of interest semi-annually at the places where the endorsements made the interest payable, and gave the State notice of such non-payment, the plaintiffs cannot recover in this action.

3d. That on the law of the case the plaintiffs are not entitled to recover in this action, and the jury should find as in case of a non-suit.

4th. That the acts of Congress put in evidence by the plaintiffs, are not sufficient to prove there is such a corporation, for the purposes of this suit, as alleged in the declaration, and the jury should find that issue for the defendant.

5th. That unless it has been proved to the satisfaction of the jury, that the provisions of the act of Congress extending the charters of the District Banks, approved 17th June, 1844, were accepted by the Bank of Washington, the plaintiffs in this suit cannot avail themselves of the benefit thereof; and if the jury should further find from the evidence that the assignment was made as alleged in the 4th plea, they should find for the defendant.

6th. That if the jury believe from the evidence that an assignment was made as alleged in the 4th plea, they should find for the defendant.

We propose to consider the several instructions given at the instance of the plaintiffs below, as well as those refused by the Court proposed by the defendant, in connection with the evidence to which they relate, and in reference to each other in their order on the record.

As to the first instruction given at the instance of the plaintiffs:—

The plaintiffs introduced as evidence in support of the issues on their part sundry acts of Congress, in substance, as follows:

By act'of 15th February, 1811, (2 Stat. at Large 625,) a Banking corporation was created in the District of Columbia by the name and style of “ The President and Directors of the Bank of Washington;” and the charter was to continue for ten years from the 4th of March, 1811. By the 21st section it was declared that the act should, to all intents and purposes, be deemed and held a public act.

On the 2d of March, 1821, by act of that date (3 Stat. at Large 618,) the said act creating that corporation was extended and limited to the 3d day of March, 1836, and by sec. 20, the act was declared to be a public act.

By act of February 9th, 1836, (5 Stat. at Large) the act of incorporation of the Bank of Washington was “renewed, continued in full force and limited ” to the 1st day of October, 1836.

By act of July 2d,- 1836, the same charter was extended till the 4th of July, 1838. 5 Stat. at Large 69.

By act of 31st May, 1838, the same charter was extended to the 4th day of July, 1840, on certain conditions. 5 Stat. at Large 232.

By the act of 25th May, 1838, the charter of the Union Bank of Georgetown was extended till the 1st of July, 1842; and the stockholders were authorized to elect not more than three trustees to have the same powers as the President and Directors, and to whom all the property, choses in action, rights and interest of the corporation should be conveyed in trust. It was provided that suits by or against the corporation should not abate or discontinue, and that there should be no necessity for revi-vor, and that in all actions, legal and equitable, and in all process by and against said corporation the name and style thereof should be the same. The President and Directors were to file a declaration of assent in writing, in the office of the Secretary of the Treasury, within six months after the passage of the act, accepting its provisions, and the act was declared to be a public act. 5 Stat. at Large 229.

By act of July 3d, 1840, the provisions of the last cited act were extended to the Bank of Washington; it being provided that wherever the 1st of July, 1838, occurred in that act, it should be read the 4th of July, 1840, and wherever the 1st of July, 1842, occurred, it should be read the 4th of July, 1844; by which provision the existence of the Bank was continued to this latter day. 6 Stat. at Large 802.

On the 25th of August, 1841, by act of that date, the charter of the Bank of Washington was revived, and all the rights, powers^ privileges, immunities, limitations, prohibitions and restrictions contained in it, were renewed, extended and made applicable to said Bank, and to its President, Directors and other officers and stockholders in the same manner and to the same extent as was granted and provided by said charter, and the laws in force on the 1st of January, 1838. Provision was made for the election of nine Directors, a President and other officers, to hold their offices in the same manner as if the charters had not expired, and as if such officers had been chosen at the annual election. The act was to continue in force until July 4th, 1844. And the act of 24th May, 1838, to extend the charter of the Union Bank of Georgetown, was extended until July 1st, 1847. 5 Stat. at Large 449.

By act of June 17th, 1844, it was provided, that all suits then or afterwards commenced, by or against either of the Banks of the District of Columbia, whose charter was to expire on the 4th of July, 1844, should not abate or be estopped by reason of the expiration of the charter, but should proceed*to ‘ final judgment and execution as though the charter continued in existence.

And it was also provided, that the Trustee or Trustees, as-signee or assignees, receiver or receivers, who might be appointed to collect and receive the assets of any Bank whose charter should so expire, and to adjust, settle and liquidate its debts, should have full power to commence and institute all necessary actions, suits or other proceedings, in law or equity, in the name of said Bank, and prosecute the same to final judgment and execution. 5 Stat. at Large 677.

Under the provisions of the act of the 3d July, 1840, extending the provisions of that of May 25th, 1838, (concerning the Union Bank of Georgetown) to the Bank of Washington, and other Banks in the District of Columbia, an assignment was made to Trustees of all the assets of the Bank of Washington, on the 3d July, 1844, as was shown by the defendant in the Court below. The trustees, under this general assignment, it is manifest from the evidence furnished, by the record before us, in bringing this suit, have used “ the name of the Bank” as they seem to have been expressly authorized to do by the act of the 17th June, 1844; that corporate name of the Bank being The President and Directors of'the Bank of Washington;” and we think there can be no doubt of the fact, from the evidence furnished by the record, that, at the time this suit was commenced, the President and Directors of the Bank of Washington were so far a corporation as to make it competent on the part of the Trustees to sue in that name on any of the dioses in action transferred to them by the general assignment given in evidence at the trial, as appears by the transcript, under the act of Congress before herein specially noticed. The fact, that the charter of the Compan)*- had expired by limitation, makes no difference. The Legislature, in anticipation of its expiration, on the 17th June, 1844, seems to have expressly authorized the Bank to do what was absolutely performed by them on the 3d July, 1844, and declared thus in advance, that the Trustees, to whom the assignment was contemplated to be made, should possess the powers claimed for them in this suit.

Entertaining the views expressed on this point, we see no valid objection to this instruction, and therefore hold that the Court below did not err in giving it to the jury.

As to the second instruction given at the instance of the plaintiffs:—

The question involved in this instruction has, virtually, been determined when considering and disposing of the first one. In addition to what has already been said on the subject, we may here add that the general deed of assignment from the Bank did not invest in the Trustees the legal title to the bonds sued on so as to authorize them to sue thereon in their own names. The most that the Trustees could claim under the deed of assignment, independent of the acts of Congress in question, is an investiture of an equitable interest in the choses in action belonging to the Bank at the time, and thus secure to them an interest which a Court of law could only respect and protect, but which could only be enforced and be made fully effectual to them in a Court of Equity. This we regard as the well settled doctrine of this Court, and is not now open to controversy or question. See Biscoe et al. vs. Sneed et al., 6 Eng. R. 106. Roane et al. vs. Williams et al., 7 Eng. R. 74. Conway ex parte, 4 Ark. R. 361. Buckner et al. vs. Real Estate Bank, 5 Ark. R. 536. We, therefore, hold there is no error in this instruction.

As to the third instruction given at the instance of the plaintiffs:—

The legal effect of this instruction was to direct the jury in the computation of damages, in case they should find the breaches and issues for the plaintiffs, to allow interest upon the interest found due on the bonds declared on, semi-annually, from the times that each and every instalment of interest should have been paid to the time of the trial and date of the computation. The bonds in question do not warrant this instruction. The State only obligates herself by them to pay, semi-annually, five and six per cent, interest on the amount of each bond bearing the particular rate of interest.' No obligation is imposed by the terms of the bonds to pay interest upon interest, even if the State were a private person. It has been said by this Court, on a former occasion, that the State is not liable for interest in any case, unless by express agreement she makes herself so. See State vs. Thompson use, etc., 5 Eng. R. 61. But regarding the State as an individual or citizen, and we apprehend, as before intimated, she cannot be held liable upon these bonds for interest upon interest; for it seems to be the better opinion that a contract entered into, in advance of the accrual of interest, to pay interest upon it, should it not be paid at the time agreed, will not be enforced, for the reason, as it is said, that Courts will not lend their aid to enforce the payment of compound interest unless upon the promise of the debtor made after the interest, upon which interest is demanded, has accrued; and this rule is adopted, not because such contracts are usurious or savor of usury, unless very remotely, but on grounds of public policy, in order to avoid harsh and oppressive accumulations of interest. See 2 Parsons on Cont. 430, and cases cited in notes. Wilcox vs. Howard, 23 Pick. 167. 11 Paige R. 228. 1 Barb. R. 627. 8 Blackf. R. 158. 2 Cush. R. 92. Doe vs. Warren, 7 Greenl. R. 48. 1 Amer. Lead. Cases, 341, 371, and cases there cited; also the cases cited by the defendant’s counsel in his brief.

But, in the case we are considering, there is no contract in express terms to pay interest upon interest. If the bonds in question impose any such obligation, it can only be derived from implication, or the eifect of the contracts viewed in reference to the law as it existed at the time the bonds in question were made. In such case, we apprehend, but few adjudicated cases can be found, even in this country, holding that compound interest may be collected. We are aware that the spirit of the law is somewhat undergoing modification on the subject, but the modification, which the Courts seem disposed to make, does not go farther than to enforce contracts, in express terms to pay interest upon interest, made in advance of the accrual. See 2 Parsons on Cont. 430. Pierce vs. Rowe, 1 N. H. R. 183. Pawling vs. Pawling, 4 Yeates R. 220. Kennon vs. Dickens, Taylor’s R. 235. Gibbs vs. Chisolm, 2 Nott & McC. R. 38. Taliafero's exr. vs. King’s ad., 9 Dana. R. 331; also the cases cited in the plaintiffs brief.

We do not feel ourselves authorized or warranted to go in advance of the reform, if it may be justly considered such, in the law, indicated by those latter cases, but must be content to endeavor to administer the law as we find it in the elementary books, and the reports oí the decisions of a majority of the highest Courts of the Union, supported, as they evidently are, by a uniform and almost unbroken current of authority from the Courts of Great Britain. If the law, as we find it, is discovered to be impolitic or oppressive upon the citizens, the arguments addressed to us by the counsel for the plaintiffs might be effective of some good, if addressed to the law making power of the State, whose duty it is to weigh such considerations, and deal with questions involving such inquiries. We hold, therefore, in this case, regarding the State as a citizen or individual, that no obligation is imposed on her, by the terms of the bonds declared on, to pay interest upon interest, and that, therefore, the Court below erred in instructing the jury as manifested by the one we are now considering.

The instruction, however, is clearly erroneous upon principle, on another ground, in my opinion. The jury were instructed that they might allow six per cent, interest by way of damages, upon the computation of the interest due on all the bonds, as well those bearing five, as those bearing six per cent, interest. If the State had obligated herself in advance to pay interest upon the interest, in case it was not paid at the time appointed, without expressing what rate of interest she would pay in that event, (conceding the proposition that this contract would be enforced under the law as it is generally administered,) I apprehend that no greater rate of interest would be allowed upon the interest in arrear than that allowed upon the principal by the terms of the bonds themselves; for, in my opinion, the law would intend in such case, that the parties having fixed by contract, the rate of interest for the forbearance of the principal, would establish the same rate for the withholding or the forbearance of the interest accruing thereon; for the reason, that it could not be presumed that the - forbearance in the one case would be more deleterious or advantageous to the creditor or debtor, than in the other, and consequently where the rate of interest for the forbearance of the principal was fixed at five per centum semi-annually, it was also agreed, by implication, that if the interest should not be paid at the stated times, that the amounts of interest withheld should only draw interest at the same rate, that is to say, five per centum semiannually. Thus leaving the interest on the interest to be determined by the contract of the parties instead of the effect and operation of the law on the subject of interest. It is but just to the Chief Justice that I should say that the opinion expressed on this latter view of the subject, is my individual opinion, and for which the Court is in no wise responsible. My apology for obtruding my individual opinions upon the professional public in the case before me, is derived from the novelty of the question itself, and its peculiar appropriateness in this connection, coupled with the desire on my part, that the attention of the bar should be directed to it, in the hope, that if another occasion should arise the question would be so presented to the Court as to require of them an expression having the sanction of an adjudication, when, aided by the learning and researches of counsel, my mind would be either confirmed in its present impressions, or else disabused of them.

We hold the instruction as unwarranted by the law, and therefore erroneous.

As to the fourth instruction given at the instance of the plaintiffs:

We have already disposed of this when considering the second instruction, and therefore hold as to this, as we have held in reference tq that.

As to the instructions proposed by the defendant below, and which were refused by the Court, we will proceed to consider and dispose of them in their order, so far as they have not already been disposed of whilst considering and passing upon those given at the instance of the plaintiffs.

As to the first instruction offered by the defendant, and refused by the Court:

No demand of the interest on the bonds declared on, accruing semi-annually, was necessary to be made at the place where the payment of the interest was fixed by the terms of the contract, before the State could be sued, as assumed by this instruction.

As held in Curran vs. the State and State Bank, 15 How. U. S. R. 304, the State, by the terms of the bonds sued on, is the principal, and, indeed, only primary debtor. No demand of either principal or interest was therefore necessary to fix the liability of the State in a suit on those bonds. See Pryor vs. Wright, 14 Ark. 131. Story on Prom. notes, sec. 228.

If the State had really made a deposit of funds where the interest was payable, and those funds had been permitted so to remain, without producing any thing to defendant, from that time to the period of the trial, and those facts had been made to appear by proof, then there can be no doubt, we think, that the plaintiffs could not have recovered interest from the State. But this concession does not establish the proposition, that demand of interest was necessary to fix a liability to pay interest on the State. In the case we have supposed, it would have been a defence against the demand of interest based on equitable principles; such, however, as the laws recognize, and are ever ready to enforce and protect.

As to the other instructions moved for by the defendant, and refused by the Court, they have either been disposed of in the foregoing, or else seem to have beén waived or abandoned by the counsel for the defendant in his brief. We do not, therefore, purpose noticing them more at length.

It may not be amiss for us to state, before dismissing the entire cause, that the record presents several minor points which we have not noticed in this opinion. Our apology for not doing so is derived from the fact that the counsel have not seen fit to press them upon the consideration of the Court, but on the contrary, appear rather to have abandoned them, relying upon the more important and imposing ones which we have just considered and disposed of.

On view of the whole record, and the several errors held to exist therein, the judgment of the Pulaski Circuit Court is, therefore, reversed, and the cause remanded with directions that a new trial be awarded the defendant below, and that the cause be proceeded in consistent with this opinion.

Let tbe judgment be reversed and the cause remanded for a new trial, etc.

Absent, Mr. Justice Scott.


text:
    Nelson vs. Waters.
    An action will not lie, under the statute, Dig. ch. 77, to recover property lost on a bet or wager, against a third person, to whom the winner has sold it.
    In an action to recover property lost on a horse-race it is incumbent upon the plaintiff to prove that the race was not a turf race.

    Motions for a new trial, on the ground of surprise, because the party’s witness swore upon the trial contrary to his expectation, are addressed to the sound disci'etion of the Court: and should not be granted, unless the party shows proper diligence on his part to prevent surprise by taking the precaution to converse with the witness before the trial: nor unless he produce the affidavits of the witnesses by whom he expects to make out his case on a second trial; or, at least, their names.

      Appeal from the Circuit Court of Johnson county.

    The Hon. Felix J. Batson, Circuit Judge.
    May for the appellant. ’
   Mr. Chief Justice English

delivered the opinion of the Court.

This was trover for the conversion of a clay-bank, sway-backed horse, brought by William Nelson against James Waters, in the Johnson Circuit Court.

The defendant pleaded not guilty, and the cause was submitted to a jury upon the following evidence:

“ N. C. Pryor, a witness for the plaintiff, testified that the horse described in the declaration was the property of the plaintiff, and worth about $40. Witness was at a horse-race a short time before this suit was brought. Plaintiff and defendant were also there. That horses ran 440 yards.

“ Andrew Thompson, a witness for plaintiff, testified that he was at a horse-race a short time — not two months — before the commencement of this suit. That he requested the defendant to bet his horse on the race. That defendant got upon his horse and rode around to where the plaintiff was. Defendant bet his horse on the race against plaintiff’s horse, and gave ten feet the advantage. Defendant said he would be willing to stand to the contract. Witness came up to where the plaintiff and defendant were, and told defendant that he would make the bet himself, and did so, according to the agreement between plaintiff and defendant. That the horse he bet on only beat the other ten feet. That if the plaintiff objected to his taking plaintiff’s horse after the race was over, he did not know it. That he was not certain that plaintiff was present when he got the horse, but thinks he was. That he sold the horse he won of plaintiff the next morning to Wm. Frazier, and on the same day, Frazier sold him to the defendant. That the horses ran 440 yards at the horse-race. Plaintiff’s horse worth about $40. Witness got $40 for him. Defendant was present at the t.im witness won plaintiff’s horse.

“Wm. Frazier, witness for plaintiff, testified that he was present at the horse-race. That he knew plaintiff and defendant. That one horse, at the race, beat ten feet, or that the judges so decided it. That he bought of Andrew Thompson the horse that plaintiff had sued for, on the next morning after the race, and sold him the same day to defendant. Defendant kept the horse for some time afterwards, (he does not think as long as sixty days,) and then sold or traded him for another horse.”

The above being all the testimony offered or introduced, the jury returned a verdict in favor of defendant of not guilty.

The plaintiff moved for a new trial on the ground that the verdict was contrary to law and evidence: and on the further ground of surprise, supported by the following affidavit:

“ That he was taken by surprise on the trial of this cause. That Andrew Thompson, who testified as a witness in the cause, was present at the time plaintiff and defendant made abet or wager of their horses upon a'horse-race; and plaintiff concluded, very reasonably, from what said witness said and did, that he could prove by him that he, the plaintiff, made a bet or wager with the said defendant, on a certain horse-race; that the plaintiff bet his horse against the defendant’s horse upon the event of said race. That the defendant took possession of the plaintiff’s horse afteffthe race vims over. That the horse bet by the defendant was the property of defendant, and that defendant afterwards converted plaintiff’s horse to his own use. That the plaintiff can prove by two or three witnesses that he made the bet with defendant, and that he agreed to, and did stake his horse against the defendant’s horse upon said horse race, and not with the witness as said witness has testified, and that consequently he was taken by surprise; and that plaintiff believes that he can obtain the testimony of some two or three other witnesses by the next term of this Court, whereby he will be enabled to establish the above facts. That the same are material for him in the prosecution of his said suit against defendant. That he could have procured the attendance of other witnesses, but did not think it necessary, he having been misled by the said Thompson, thinking he could prove as much or more by said witness, with regard to the foregoing facts, having had full confidence in said witness, but that he has been most wofully misled and deceived by him; and that said witness stated to plaintiff the day after the race was run, that the defendant had won the plaintiff’s horse fairly.”

The Court overruled the motion for a new trial: the plaintiff excepted, took a bill of exceptions setting out the evidence, etc., and appealed to this Court.

Any person losing money or property at any game or gambling device, or any bet or wager whatever, may recover the same by action of debt, if for money, and if for property, by action of detinue or trover, against the person winning the same: but such suit must be instituted within ninety days after the paying over of the money or property so lost. Dig. ch.'ll,sec. 1.

The same remedy is given to the heirs, executors, administrators or creditors of the losing party. Ib. sec. 2.

Nothing in the two preceding sections is to be so construed as to enable any person to recover back any money or property lost on any turf race. lb. sec. 3.

In this case, the proof clearly failed to sustain the action of the appellant on two points. 1st. It seems, from the evidence, that the witness, Thompson, won the horse of the appellant on the race, and not the appellee. Thompson won the horse, sold him to Frazier, and he sold him to the appellee. The action, therefore, under the statute should have been brought against Thompson instead of the appellee.

2d. The appellant having shown that he lost his horse on a horse-race, should have shown further that it was not a turf race, in order to entitle him to recover back the horse; which he failed to do.

The verdict of the jury was not, therefore, contrary to the evidence, and the Court below did not err in refusing the appellant a new trial on that ground.

Was the affidavit of the appellant that he was surprised on the trial by the testimony of Thompson, sufficient to entitle him to a new trial?

It has been held, as a general rule, that a new trial will not be granted, because a witness swore contrary to the expectation of the party that introduced him. Hewlett vs. Cruchley, 5 Taunt. 277. Graeter vs, Fowler et al., 7 Blackf. 554. Cummins et al. vs. Walden, 4 Blackf. 307, and cases cited.

Exceptions to this general rule, however, have been allowed on good and sufficient showing. In Levy vs. Brown et al., 6 Eng. 16, on a trial before the justice, the witness swore that the contract sued on was usurious, and in the Circuit Court, on appeal, he swore differently; and this Court held that the defendant, who had relied on the testimony of the witness; was entitled to a new trial on the ground of surprise, etc.

All such motions, however, are addressed to the sound discretion of the Court, and the judgment of the Court upon them is not to be overruled here unless it is clearly wrong.

The affidavit in this case was insufficient to entitle the appellant to a new trial, for several reasons:

1st. The appellant does not state in the affidavit that he had taken the precaution to converse with the witness, Thompson, before the trial, and ascertain from him what he would swear. This was necessary to show the exercise of proper diligence on his part to prevent surprise. See Theobold vs. Hare, 8 B. Monroe 39.

2d. The affidavit does not state the names of the witnesses, or of any witness, by whom the appellant expected to prove that the appellee, and not Thompson, won his horse upon the race. It has been held that the party applying for a new trial on the ground of surprise, ought to produce the affidavits of the witnesses, by whom he expects to make out his case on a second trial, in support of the motion. Phenix vs. Baldwin, 16 Wend. 62. Riley vs. State, 9 Humph. 654. Cummins et al. vs. Walden, 4 Blackf. R. 307. But see Levy vs. Brown et al., 6 Eng. 16. Be this as it may, the names of the witnesses at least should be stated.

3d. The affidavit does not state that appellant could prove upon a second trial, that the race upon which he lost his horse, was not a turf race, which he failed to prove on the first trial, and without which the testimony, which he proposed to procure on the other point, would have been unavailing.

Upon the whole case, we see no such abuse of the sound legal discretion of the Court below in overruling the motion for a new trial, as to warrant us in reversing the judgment.

The judgment must therefore be affirmed.

Absent, Hon. C. C. Scott.


text:
    Gilchrist vs. Patterson.
    On the maturity of a mortgage debt and default of payment, the mortgagee has, at law, a right of action for possession of the property against the mortgager, or one holding under him (Kannady vs. McCarron, ante.)

    Where a mortgage is given upon personal property to secure the payment of a debt due by note, the assignment of the note and mortgage, whether the assignment be under seal or not, vests in the assignee the right of action in the mortgage.

      Appeal from the Circuit Court of White county.

    The Hon. Beaufort PI. Neely, Circuit Judge.
    McCohaughey, for the appellant.
    1st. Are mortgages assignable?
    A mortgage is a conveyance of title upon a condition, and if the condition be not performed, the title becomes absolute in laio, and nothing remains to the mortgagor but the right to redeem in equity — 1 Lomax Digest 329; Story Eq. sec. 1031; — and the mortgagee is entitled to the possession of the mortgaged property — 4 Kent Com. 138, 159; 2 Verm. 78; Story on Bailm. sec. 287; Story's Eq. Jur. 1031; Flanders vs. Barston, 18 Maine 357; Pickard vs. Low, 15 Maine 48; Brackett vs. Bullard, 12 Metcf. 308; Coty vs. Barnes, 20 Verm. 78; 2 Eng. Rep. 310; — and if the mortgagor retains possession of the mortgaged property, he remains only as tenant at will or sufferance of the mortgagee, and the latter may obtain possession by action at law — Story’s Eq. Jur. sec. 1017; 1 Lomax Dig. 327; Milliard on Mort., 149; — and if the mortgage has been assigned, so may the assignee sue for possession — 1 Lormax Dig. 327, 328.
    The debt is the principal, and the mortgage an incident, and until foreclosure dr possession, remains a chose in action, and is properly assignable — 4 Kent Com. 193, 7 Greenl. 377; 8 Greenl. 278; 10 Verm. 293; Jackson vs. Willard, 4 Johns. 43; Wilson vs. Troupe, 2 Cow. 195; McCan vs Marshall, 7 Humph. 121; Thayer vs. Campbell, 9 Mis. 280; Dudley vs. Caldwell, 19 Conn. 218; 1 Hilliard on Mort. 164.
    2d. How are mortgages assignable?
    The assignment of a note, secured by mortgage, may be by delivery only without endorsement thereon — 1 Lomax Dig. 333 to 335; Barnes vs. Lee, 1 Bibb 526; King vs. Harrington, 2 Aik. 33; 2 Day 425; 3 John. C. 322; 1 Root 218; 6 8m. & M. 139; 4 Blackf. 539; 1 John. R. 580; — and the assignment of the note carries with it all the rights of the mortgagee in the mortgaged proper-to — Langdon vs. Keith, 9 Verm. 299; 4 Kent. Com. 194; Smith et al. vs. Robinson, 13 Ark. 533; — and need not be under seal, especially if of personal property, since the mortgage itself is not required to be sealed — Despatch Line vs. Belamy Co., 12 N. Hamp. 205; 7 Mete. 244; 1 E.L. & E. 584; — the entire interest of the mortgagee passes by the assignment of the mortgage debt— 1 Lomax Dig. 333, sec. 23; Crosby vs. Brownson, 2 Day 425; Stevenson vs. Block, Saxton 338; — no written assignment of the mortgaged deed is necessary — the assignment of the note and the delivery of the mortgage deed is sufficient — 1 Lomax Dig. 135, sec. 32; 4 Kent Com. 193 and 194; Green vs. Hart, 1 John. 580; Pratt vs. Bank, 10 Verm. 294; Keys vs. Wood, 21 Verm. 331; Hil-liard on Mort. 171.

      3d. Can the assignee of the mortgagee sue?
    The assignee must sue in his own name — Hilliard on Mort. 179, sec. 50 and 51; 6 Mass. 239; Burdett vs Clay, 8 B. & Mon. 287; Walker vs. Tate, lb. 532; Miles vs. Gray, 4 B. & Mon. 417; Dick vs. Mawry, 9 Sm. & M. 448; Lewis vs. Starke, 10 Sm. & M. 120; Henderson vs. Ward, lb. 631; McConnell vs. Hodson, 2 Gilm. 640; HU. on Mort. 173, sec. 28; Roberts vs. Holstead, 9 Barr 32; 5 N. Hamp. 420; 13 N. Hamp. 247; 1 Lorn. Dig. 327, 328.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was replevin in the detinet, for a slave named Westley, brought by Monroe Gilchrist against James W. Patterson, in the White Circuit Court. The action was commenced 24th March, 1856. Under the writ, the slave was taken by the sheriff, and delivered to the plaintiff.

The defendant pleaded non detinet, property in himself, and property in John P. Bearden. Issues weie made up upon the pleas, the cause submitted to a jury, verdict for defendant, and judgment in his favor for return of the slave, and damages assessed by the jury.

Pending the trial, the plaintiff took a bill of exceptions setting out the following facts, etc.

On the trial, the plaintiff read in evidence a note made by John P. Bearden and A. J. Jones to W. B. Norman, or bearer, for $1,150, dated Dec. 25th, 1854, and due and payable at twelve months, with eight per cent, interest from date. Upon which note was an assignment by Norman, the payee, to B. K. Rogers, and an assignment by him to the plaintiff.

The plaintiff also read in evidence a mortgage executed by John P. Bearden on the 6th of January, 1855, to Norman, upon the'slave named in the declaration, to secure the payment of the above note, conditioned for its payment at maturity; which was duly acknowledged, and filed for record in the office of the recorder of White county, on the day it was executed.

Upon which mortgage were the following assignments:

“For value received, I assign and deliver the within to B. K. Rogers. WM. B. NORMAN.

January 1th, 1856.”

For value received, I assign and deliver the within to M. Gilchrist. B. K. ROGERS.”

The plaintiff also proved the possession of the slave by the defendant; demand and refusal, etc., and that the slave was re-plevied from defendant within the county of White. That Norman sold and transferred to Rogers, and Rogers to Gilchrist, all the right, title and interest of Norman under the mortgage, etc.

The plaintiff moved the following instructions:

“ 1st. If the jury believe from the evidence that the note for $1,150, bearing 8 per cent, interest, made to Norman by Bear-den, to secure the payment of which the mortgage was made by Bearden, had fallen due and remained unpaid at the time of the transfer of the note from Norman to Rogers, and from Rogers to plaintiff: and that defendant had possession of the negro after the time when the condition of said mortgage expired and was broken, and refused to give the negro into possession when demand was made by the plaintiff, they will find for the plaintiff.

■ “ 2d. If the money in the note specified in the mortgage was not paid to Norman when due, he, Norman, was entitled to the possession of the negro.

“ 3d. If the jury believe that Norman transferred and conveyed to Rogers all his (Norman’s) right, title and interest, in and to said negro, Rogers had the same right of possession that Norman had before him.

“ 4th. If Rogers transferred and assigned all his right, title and interest in and to said negro to Gilchrist, he (Gilchrist) obtained the same right of possession that Rogers and Norman had before him.

“ 5th. That if Norman was under the mortgage entitled to the possession of the negro, he could transfer his right under the mortgage by written or verbal contract, and that a written conveyance, acknowledged and recorded, was not necessary to convey to the assignee his rights — the original mortgage to Norman being duly acknowledged and recorded before Patterson (defendant) hired the negro.”

The Court gave the 1st, 2d, 3d, and 4th of the above instructions, but refused to give the 5th — and plaintiff excepted.

The defendant asked the Court to instruct the jury as follows:

“ 1st. That unless the plaintiff has shown a legal right to the possession of the slave, they must find for the defendant.

“ 2d. That the assignments on the mortgage from Norman to B. K. Rogers, and from Rogers to Monroe Gilchrist, do not vest the legal interest in Gilchrist to said slave.”

Which instructions the Court gave against the objection of the plaintiff, and he excepted.

And the Court also instructed the jury: — “That, in order to vest in the plaintiff a title sufficient to sustain this action, the conveyance and assignment of the entire right and title of said Norman to Rogers, and from Rogers to Gilchrist, must have been by assignment under seal and duly acknowledged, or witnessed and proved.”

To-which the plaintiff excepted.

The plaintiff appealed.

On the maturity of the mortgage debt, and default of payment, Norman, the mortgagee, had, at law, the right of action for possession of the slave against Bearden, the mortgagor, or one holding under him, etc. In equity, the mortgagor had the right of redemption. See Kannady vs. McCarron July T. 1856. Fitzgerald vs. Beebe, 2 Eng. R. 311.

Being a mortgage upon personal property, the assignment of the note and mortgage by Nornlan to Rogers, and by him to the plaintiff, vested the right of action in the latter. Dig. ch. 15. 1 Lomax Dig. 335. Southerin vs. Mendum, 5 New H. 420. Rigney vs. Lovejoy, 13 Ib. 247. Jackson vs. Blodget, 5 Cowen 202. Johnson vs. Hart, 3 Johnson’s Cases 322.

It was not necessary that the assignment of the note or mortgage should have been under seal. 1 Parsons on Cont. p. 197. The note being payable to Norman or bearer was transferable by delivery.

So much of the 5th instruction, moved by the plaintiff, as asked the Court to declare that Norman might transfer his right of action by verbal contract, was abstract, because both the assignments upon the note and mortgage were in writing. In other respects the instruction is not objectionable.

The Court erred in giving the 2d instruction moved by the defendant. Also in giving the last instruction copied above, which appears to have been given on its own motion.

The judgment is reversed; and the cause must be remanded with instructions to the Court below to grant the plaintiff a new trial.

Absent, Hon. C. C. Scott.


text:
    Thompson vs. Kirkpatrick.
    A writ of garnishment cannot be issued from the Circuit Court upon a judgment rendered by a justice of the peace, and filed in the Circuit Court under the statute. Dig. ch.95, parts, see. 129,140.
    Where the plea is an answer to but a part of the plaintiff’s demand, and he demurs to the plea instead of taking judgment for the part unanswered, he does not thereby discontinue his action.

      Error to the Circuit Court of Tell county.

    The Hon. John J. Clendenin, Circuit Judge.
    Holliwell for the plaintiff,
    Williams & Williams for the defendant.
   Mr. Chief Justice English

delivered the opinion of the Court. On the 6th of March, 1856, Simeon Kirkpatrick commenced an action of debt against Robert Thompson, in the Yell Circuit Court. The action was founded on a writing obligatory for $300, executed by the defendant on the 26th December, 1853, to Jonathan Smith (next friend to W. D. Smith,) due 1st January, 1856; and by the said Jonathan Smith assigned to the plaintiff on'the 12th March, 1855.

At the September term, 1856, the defendant, Thompson, filed a special plea in bar of part of the plaintiff’s demand, setting up substantially the following facts:

On the 11th February, 1856, one Thomas J. Waters recovered a judgment before a justice of the peace of Yell county, against John H. Jones and Simeon Kirkpatrick, the plaintiff in this suit, for $100 debt, $3 50 damages, and for 75 cents cost. On the 11th of August, 1856, Waters filed a transcript of this judgment in the office of the Clerk of the Yell Circuit Court: and the next day the clerk issued a writ of garnishment thereon against defendant Thompson, returnable to the following September term of said Circuit Court; which was served upon defendant, on the 16th August, 1856. That on the 1st day of the return term, Waters filed his allegations and interrogatories; to which defendant answered that he was indebted to the said Simeon Kirkpatrick, plaintiff in this suit, in the amount of the writing obligatory sued on, etc., and that he had instituted suit thereon against defendant, etc. That by virtue of said garnishment, etc., defendant had become liable to pay to said Waters the amount of his said recovery before the justice of the peace, and that he was entitled to judgment therefor, against defendant, in said Circuit Court, upon said garnishment, etc. And that the plaintiff in this suit (Kirkpatrick) ought not further to maintain his action against defendant as to so much of his demand, etc.

The plaintiff demurred to the plea; the Court sustained the demurrer, and the defendant resting, final judgment was rendered against him for the amount due upon the bond sued on; and he brought error.

Any person recovering a judgment for more than $10 before a justice of the peace, may obtain and file a transcript thereof in the office of the clerk of the Circuit Court, etc., and cause it to be entered upon the docket for judgments and decrees, etc. Dig. ch. 96,par^2 sec. 139.

“ Every such judgment, from the time of filing the transcript thereof, shall be a lien on the real estate of the defendant in the county, to the same extent as a judgment of the Circuit Court of the same county, and shall be carried into execution in the same manner, and with the like effect, as the judgments of such Circuit Court; but no execution shall be sued out of the Circuit Court thereon, until an execution shall have been issued by a justice, and returned that the defendant has no goods or chattels whereof to levy the same.” Ib. sec. 140.

The object of this statute was to enable the plaintiff in a justice’s judgment to obtain satisfaction thereof by a sale of the real estate of the debtor, which cannot be done by an execution issuing front the justice. Neither this, nor any other statute, authorizes the issuance of a garnishment from the clerk’s office upon such judgment; nor the determination of such garnishment in the Circuit Court.

The plea was therefore bad in substance on this ground, to say nothing of any other, and the demurrer thereto properly sustained.

But it is assigned for error that, inasmuch as the plea was an answer to but part of the plaintiff’s demand, by demurring thereto, instead of taking judgment for the part unanswered, the plaintiff discontinued his action. This is not regarded as the law under our practice. Sterling vs. Sherwood, 20 John. R. 206. Beebe vs. Sutton, 2 Eng. 40. On the filing of the plea the plaintiff might have taken a default for so much of his demand as was not answered by it. But it was just as well for him to take judgment for the entire demand, as he did, after the demurrer was sustained to the plea, and the defendant rested. Very vs. Watkins et al., present term.

The judgment is affirmed.

Absent, Hon. C. C. Scott.