text:
    Bauman vs. Bauman.
    In decrees for divorce, and the orders to be made touching the care of the children, and the alimony and the maintainance of the wife, there is no discrimination in the statute (Dig, ch. 58,) between divorces a mensa et ikoro and a vinculo matri-monii; and the wife is entitled to alimony both pendente lite and permanent, on either kind of divorce.
    The section of the statute allowing alterations to be made in whatever provision might have been made touching the alimony allowed the wife, is applicable to divorces from the bonds of matrimony as well as from bed and board.
    In the exercise of jurisdiction of matters of divorce the Chancery Courts ought to employ the same rules of law which the Ecclesiastical Courts do, except when they are unsuited to our Courts, or in conflict with constitutional or statutory provisions, or the general spirit of our laws.
    ' A wife who has obtained a decree for divorce cannot by bill, or a proceeding in the nature of a bill of review, procure an alteration in the original decree on the ground that any allowances therein made her were inadequate: Her remedy was by appeal from the original decree.
    A Court of Chancery in estimating the allowance to be made the wife, pendente lite, on a bill for divorce, will take into consideration her expenses to be incurred during the progress of the suit; and where an allowance has been made her, it will be presumed that her counsel’s fee was considered in fixing the amount.
    A summary application to the Court is sufficient, under the provisions of the statute for enforcing decrees in such cases, to afford the wife relief where her allowance is in arrears, without a bill for that purpose.

      Appeal from, the Circuit Court of Pulaski county, in Chancery.

    Hon. William H. Feild, Circuit Judge.
    Pike & Cummins, for the appellant.
    From the nature of the subject, it would seem impossible to ■ err in respect to the intention, and scope and extent of the provision of the statute {sec. 12, ch. 58, Dig.,) authorizing alterations in the allowance of alimony. See Miller vs. Miller, 6 J. C. R. 93.
    In England, the matter of alimony, whether temporary or permanent, is always subject to modification according to the varying circumstances, in the sound discretion of the Court, upon a view of all the facts. Poynter on Mar. and Div. 264 to 270, and cases cited; Rogers vs. Vines, 6 Iredell 393; 2 Barb. Sup. C. R. 377.
    The duty of the husband to support the wife during life, seems in no respect to be affected by the provisions of law, allowing divorces, a vinculo matrimonii. 1 Bl. Com. 442. Even where the divorce results from the fault of the wife. Ib. 441; N. 34; McQueen on Hus. and Wife 213.
    Under our law nothing is left to inference, in respect to alimony — so far as it might be supposed to be affected by a difference between our law, authorizing a divorce a vinculo, and the English law, which held the contract indissoluble. Secs. 8, 10, 11 and 12, {Dig. ch. 58), expressly provide for such alimony, and the means of enforcing its payment.
    No distinction can be drawn between the provisions for alimony and the remedies for enforcing it, where a divorce a vin-culo is granted, and a case where permanent separation a mensa et thoro is decreed. In both cases, a continuing duty is recog-nised.
    In the amount of alimony allowed, the courts are governed by the estate of the husband. 2 Dessau. 45; 4 ib. 165; 3 Paige 267; 10 ib. 26; 4 Hen. & Munf. 515; 6 J. C. R. 93.
    But this proposition needs no citation of authority to sustain it. 7 Hill 207; 1 .Barb. Ch. R. 77; 7 Hump. 440; 5 Day 352i

      A sum will always be allowed to enable wife to employ counsel and pay costs. This is a necessary, which the husband is bound to furnish. It stands on the same footing as a mere support. Without it, wife could never have justice done her, but would be forced to submit to perpetual wrongs of her husband. .1 J. C. R. 108,374; 6 J. C. R. 91; 4 Paige 516; Poynt. on Marr. & Div. 247, 250, 258, 259, 260; Bissell vs. Bissell, 1 Barb. S. C. R. 420; 8 B. Monr. 50; 1 Barb. Ch. R. 241; 2 Barb. Ch. R. 72, 75; 3 ib. 628; 2 Barb. 8. C. R. 480; 8 Ben. Monr. 50; and other authorities before cited.
    S. H. Hempstead, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court.

This cause was brought here by appeal from the Chancery side of the Pulaski Circuit Court.

The bill was filed the 29th day of July, 1852. It recited that, on the 19th of September, 1849, the appellant filed her bill for divorce, alimony and other relief against her then husband, the appellee. That afterwards, she filed an amended and supplemental bill, bringing in another party, to whom the husband had made fraudulent conveyances of his property to defeat her suit, and to have a receiver appointed to take charge of the property. That service was had. That the appellee answered, and filed a cross bill, which was answered, and issue formed. That the supplemental bill was also answered, and issues formed. That upon reference to the master, the 11th August, 1851, to ascertain the value of the appellee’s possessions, he reported that he had improved property in the city of Little Rock, valued at $3,500; — unimproved lots, valued at $1,100 — household furniture, valued at $197 78, and cash in hand to the amount of $5,000. That there was then due the appellant, on account of alimony pendente lite, $43 75; and that from the 1st of January, 1851, she had supported Edwin, the minor son of the parties, at an expense of $75, up to the time of the report. That the causes upon the bills and cross bill were the same day heard and determined, and the Court decreed:

1st. A dismissal of the cross-bill.

2d. That the bonds of matrimony should be absolutely dissolved.

3d; That the conveyances of property made by appellee to Lincoln, should be canceled, and the titles thereof re-invest in the appellee.

4th. That appellee should pay appellant the $43 75, balance of alimony pendente lite; also, the $75 already incurred for support of the child; the further sum of $150 per annum for the further support of the^hild, so long as he should remain in the charge and control of the appellant; and that from that day the appellee should also pay her every year during her natural life $250, in quarterly payments, with interest at 6 per cent, on all such not paid at maturity.

5th. That all of said sums should be created a lien upon the whole property of appellee.

6th. That a receiver, Hutchings, be appointed to take charge of the property and manage it; sell the personal property, and out of the proceeds of the sale and rents pay costs, taxes, and necessary repairs, as well as said allowances, and the future amounts to accrue for the support of the child, and for the alimony decreed — the said support in monthly payments, and the alimony in quarterly.

7th. That the lien so fixed might be discharged, and the property restored to the possession of the appellee, upon his giving bond and approved security to make the payments according to the decree.

It is further alleged that the bond had never been given or offered, and that the appellee had absconded beyond the limits of the State with his money. That the real estate still remains in the hands of the receiver. That he had sold the personal property for $180 18 net, and had managed the real estate to the best advantage, expending of the proceeds only what was necessary for taxes and repairs, and that on the 17th July 1852, he had filed his report, which had been confirmed, whereby it appears that there was due her, up to that date, for the support of her son and for her alimony, $163 33, besides interest, while there was a balance in the receiver’s hands of only $15 92, which was covered by demands upon the property. That the income of the property was insufficient to pay its necessary expenses, and the sums coming to her under the decree, and that only by a sale of the property could she ever be paid. That ever since the decree she had entirely supported her son out of her own means. That the allowance made to her for that purpose was meagre in the extreme, and as he increases in age will be less and less sufficient to educate and bring him up. That extraordinary expenses, then recently incurred by his severe illness, ought to be allowed out of the property in question. That the allowance to her by the decree was equally meagre, barely furnishing subsistence, if promptly paid, leaving her wholly without means of giving her counsel compensation for their services in prosecuting and defending the aforesaid suits, as well as this one, amounting in all, as reasonably she supposed, to $300, which she submits and insists is a just charge against the appellee, who ought to be compelled to pay the same out of the property now in the hands of the Receiver: concluding with prayer that the decree be carried into effect and full execution, and to that end that said real estate be sold: that out of the proceeds, in lieu of said allowances, a gross sum be paid to her equal to these annuities: also, that reasonable attorney’s fees, as well as the expenses incurred in the sickness of her son, be paid out of said proceeds; and for general relief.

Upon proof of publication, a decree pro confesso was taken, on the 9th of July, 1853, and upon reference to the master for that purpose, he reported, on the 12th of December following, that a reasonable allowance for attorney’s fees in the former suits would be $300, and in the case now before the Court $50.

On the 8th February, 1854, the Court took up the case, and holding that the appellant was not entitled to the relief prayed, dismissed her bill, and she appealed.

In the various provisions of our statute, there is a great blending of the two kinds of divorce — a mensa et thoro and a vinculo matrimonii, which, in the English law, were quite distinct. Perhaps, such may be the legitimate result of the wear of public sentiment, enlightened by the experience of centuries. That all marriages, lawfully entered into, should be indissoluble, was perhaps, one of the extremes to which the human mind has a tendency to go. Such a sentiment, however, may be greatly excused when the obvious mischiefs are considered, which must inevitably ensue upon the wearing of the matrimonial obligation loosely. And yet, common sense could but revolt at compelling a woman, clear of fault, to cohabit with a man who might be seeking her life, or was openly living in adultery with another woman. Nor could such a wife be without just sympathy, who had been basely deserted by her husband, and left to her daily toils for the support of herself and her lawful offspring. For the latter ill, this well-grounded sympathy produced the very inadequate remedy of a suit for the restitution of conjugal rights. For the former, the still more inadequate one of a divorce a mensa et tlwro — a compromise, a sensible writer says, “ between good sense and good doctrine, which is but a demoralizing mock-remedy for matrimonial ills:” and which Lord Stowell condemns, because it “ casts out the parties in the undefined and dangerous character of a wife without a husband, and a husband without a wife:” and which judge Swift says, “ places them in a situation, where there is an irresistible temptation to the commission ol adultery, unless they possess more frigidity, or more virtue, than usually falls to the lot of human beings;” and in the language of Mr. Bancroft “ punishes the innocent more than the guilty.”

So early as the reign of Edward the VI of England, the evils of this extreme sentiment, and the inadequacy of these remedies were felt; and a commission of ecclesiastics appointed to en-quire into the subject, reported to the crown, as the result of their deliberations, the opinion that “in cases of adultery, malicious desertion, long absence, or capital enmities, the marriage should be dissolved, with liberty to the injured party to marry again; and that the remedy of divorce a mensa et thoro should be entirely abrogated and done away.”

But the changes thus proposed were not adopted; it is said, however, “not from any want of confidence in their utility, but in consequence of a series of disasters, the principal one of which was the death of the King.” (Bishop on Mar. and Div. sec. 278.) In that country, proverbial for cautious legislation, the law on the subject has not since been materially changed. And the result is said to be, that “ second marriages without divorce, and adulteries and the birth of illegitimate children are of every day occurrence, and that the crime of polygamy is winked at, although a felony upon the statute book.” (Ib. sec. 285.) It is true that divorces from the bond of matrimony are sometimes had in that country, on application to Parliament; but in rare instances only, and at enormous expenses, — some three or more thousand dollars — quite beyond the ability of the mass of the people.

The effect in most of the States of this Union has been to lessen these evils, by removing some of the difficulties in the way of procuring divorces from the bonds of matrimony. The legislation, however, has been extremely various, the laws of scarcely two States being precisely alike. “ In most of them, judicial divorces from the bonds of matrimony are allowed for adultery, and in many of them, for a considerable number of other causes; while divorces from bed and board are allowed in a portion of them, and in another portion, they are unknown.” Ib. sec. 279.

In this State, so thoroughly have these barriers to divorce from the bonds of matrimony been removed by legislation, that but little scope is left for divorces from bed and board, save only in the option of a party, who, proceeding for redress, might prefer this to a final separation, in the hope of reformation and ultimate reconciliation. The causes enumerated in our statute, (Dig. ch. 58, sec. 1,) which authorize the one kind of divorce, equally authorize the other; and they, in the aggregate, are apparently broad enough not only to cover the ground of the ecclesiastical suit for the restitution of conjugal rights — which seems never to have been used in any of the States — but also the whole of that upon which divorces from bed and board were granted; and indeed goes beyond both; because, as was held in Rose vs. Rose, 4 Eng. R. 507, the fifth cause of divorce specified in our statute gives to our Courts a broader jurisdiction tban that exercised by the Ecclesiastical Courts for legal cruelty: since “ the intolerable condition contemplated by the statute need not go the full extent of rendering it impossible to discharge the duties of the married life, as legal cruelty did in contemplation of law: but to the extent only of rendering it improper, for reasons which the public wisdom approves, to require or compel the performance of those duties, under such continuous, extreme and unmerited suffering.” Ib.p. 516, 517.

But it is not only in the section of our statute above cited, that these two kinds of divorces are blended; in all the others, they are so; except that in the second section relating to the legitimacy of children, where divorces from the bonds of matrimony must necessarily be implied; and in the 6th and 13th sections that kind of divorce is expressly referred to — the one section requiring twelve months residence within this State, unless the injury complained of was committed here, as a pre-requisite for the filing of the bill; and the other re-vesting in the wife all the property, undisposed of, she may have brought into the marriage. In all the provisions touching the proceedings to be had, with the exception just pointed out, and relating to the decree to be rendered, and the orders to be made touching' the care of the children, and the alimony and maintenance of the wife, both pendente lite and permanent, there is no discrimination in the language employed. Hence, according to rules of construction of common application, the legislature must be understood as intending to discriminate between these two kinds of divorce, no farther than they have expressed in the language of the act, or is necessarily to be implied therefrom when considered in reference to the subject matter.

And if we leave the letter, and go into the spirit of the law, the light thrown upon our path by the history of this matter, at which we have rapidly glanced above, and the course of legislation, both in England and in the greater number of the sister States, our conclusion will not be different.

In England it was by no means unusual for Parliament to require the husband to make a settlement upon his wife, as a condition of the legislative divorce from the bonds of matrimony, (2 Bright’s Husb. and wife sec. 15,p 368.) And in many of the States either alimony, or something in the name of alimony, although differing in its legal nature, as known in the ecclesiastical law — as a fair division of the property in specie— is allowed to be decreed to the wife upon the dissolution of the bonds of matrimony. And in others of the States, in addition to alimony, the wife is allowed, as in this State, whatever property, remaining undisposed of at the filing of the bill, she may have brought into the marriage.

And the practical effect of construing the several sections, relating to permanent alimony and maintenance, to apply exclusively to divorces from bed and board, would be, to offer a premium for that kind of divorces, which, as has been seen, it was the policy of the general course of legislation on this subject to diminish; while, at the same time, it would ¿urn over to the charity of friends, or “turn out to prostitution and starvation” every woman divorced from the bonds of matrimony, who had brought no property in the marriage, or whose property may have been wasted by her husband, although his own might remain. Besides, it would be in the face of the general understanding in this State, as shown by the general course in the Courts for many years past. We conclude, therefore, that under our laws the wife is entitled to alimony, both pendente lite and permanent, as well when divorced from the bonds of matrimony, as from bed and board.

It has been suggested, however, that the 12th section of the act which authorizes “ the Court, upon application of either party, to make such alterations, from time to time, as to the allowance of alimony and maintenance, as maybe proper” ought to be'held as applying exclusively to divorce from bed and board: inasmuch as, when the parties are divorced a vinculo, whatever hung upon the vinculum thus snapped, ought to fall with it. It doubtless was the theory of alimony, as that provision was administered in the spiritual Courts, that the wife received it as wife, and that it was from the husband as such; and that it ended when the relation of husband and wife ceased. But in this respect, the provision made for the wife by the statute, on the divorce a vinculo, although under the name of alimony, is different in its nature; essentially, hoiyever, its nature is the same, because, it is still a maintenance for her, growing out of the obligations of the marriage, which the legislature has allowed to be dissolved on this condition. Or, perhaps more accurately to speak, the legislature has permitted the marriage status of the party to be annulled by a judicial sentence, upon the condition annexed, that so much of the contract, out of which it grew, as shall secure the wife the maintenance provided, shall remain in force. The power of the legislature to do this cannot be questioned, although the particular mode of securing this maintenance may be objected to as inconvenient. It was a matter, however, of legislative discretion, which, in different States of the Union, has been exerted in the adoption of various modes for arriving at substantially the same thing — the support and maintenance of the divorced wife. In some of the States a reasonable proportion of the husband’s property is given to the wife, and the matter ends. In others, an annuity is fixed, which is not afterwards subject to be changed. In this State, however, as in some others, our legislature, in analogy to the alimony of the spiritual Courts, have thought proper to allow alterations, to be made in the sound discretion of the Court, in whatever provision might have been before made touching the alimony allowed the wife, upon the application of either party. At least, such seems very plainly expressed in the section of the statute in question; and it would seem to be going a great way to hold this section as applicable to divorces from bed and board only, unless all the other sections relating to alimony, were so held also; and we have seen the difficulties of so holding as to them.

It would seem to be better for the legislature to interpose, if inconveniences are too great, or abuses or other evils are likely to arise from this state of the law.

It appears from the case of Miller vs. Miller, 6th Johnson's Ch. Cases, p. 91, where a divorce a vinculo matrimonii was decreed for adultery on the part of the husband, that Chancellor Kent inclined to the opinion, on tbe statute of New York, which, so far as cited by him, does not appear so broad and distinct as ours, that it would be in the power and discretion of the Court to vary the annual allowance thereafter, if the future circumstances of the parties should dictate such a course. In that case, it appeared from the report of the master that the aggregate value of the real and personal estate of the defendant was $4,550; of which all except $800 was real estate, and that the joint annual product of both was $325. Upon this state of facts the Chancellor proceeded to remark: “It appears to me that in this case, an allowance of one hundred dollars a year would not be unreasonable, and not more than sufficient to render the aged plaintiff comfortable: and perhaps it may be in thepower and in the discretion of the Court to vary the allowance hereafter, if future circumstances in relation to the parties, or either of them, should dictate such a course; for the statute speaks of such maintenance or allowance as to the Court shall “from time to time seem just and reasonable.” He accordingly decreed that sum “to be paid to the plaintiff during her natural life, or until further order of the Court;” and provided in the decretal order “ that either party be at liberty to apply, upon a future change of circumstances in the parties, or either of them, for such variation or modification of this order, touching the said allowance, as their future circumstances may dictate to be just.”.

With this understanding as to the law, we proceed to an examination of the merits of the case presented; premising, however, that in the exercise of jurisdiction of matters of this sort, the chancery Courts ought to employ the same rules of law which the Ecclesiastical Courts do, except in so far as they be found unsuited to our Courts, or in conflict with specific, constitutional or statutory provisions, or the general spirit of our laws. Bishop on Divorce and Marriage, sec. 21, p. 18.

I. In so far as this bill seeks any alteration in the original decree, upon the ground that any of the allowances therein made were meagre and inadequate; it is clear enough that no foundation is thereby laid for any relief. Because, if there was any ground for that complaint, tbe complainant ought to have appealed. Such decrees are doubtless within our statute regulating appeals. And having failed to seek that remedy there can be no rational pretence, in the allegations of this bill, that any foundation is laid for relief on that ground by any proceeding in the nature of a bill of review.

II. It is equally clear that no foundation is laid for any such alteration, upon the improved faculties of the defendant, for no such improvement since the decree is alleged. On this point, Doctor Lushington, in giving judgment in a case before him in the Ecclesiastical Court, observed: “ Where there is a material alteration of circumstances, a change in the rate of alimony may be made. If the faculties are improved, the wife’s allowance ought to be increased; and if the husband is lapsus facul-tibus, the wife’s allowance ought to be reduced. Applications of this sort are of rare occurrence. I only remember two instances where applications of either kind have been successful; the case of Fowlkes vs. Fowlkes, for an increase, and Cox vs. Cox, for a reduction. Applications to change the amount of alimony once fairly settled, ought, evidently, to be carefully scrutinized.”

III. With regard to the attorney’s fees, — that is alleged in the bill as showing the inadequacy of the allowances made by the decree, and upon that ground to impeach it; and, therefore, in that aspect, has been already responded to. It is to be further remarked, however, as to that matter, that in the usual course, it is considered in fixing the amount of alimony pendente lite, and embraced therein; or else is, in terms, allowed in addition thereto, as money to defray the expenses of the suit or defence. The bill before us is silent as to whether or not, in the original suit, this was done in either mode, otherwise than by dubious inference. What amount of alimony pendente lite was allowed is not stated. It does appear, however, that at the time of the final decree there was “ a balance of $43 75,” which was decreed to be paid, and as the Court below must be presumed to have done its duty in this particular, the law must presume— and especially so in the absence of any direct allegation to the contrary — that the attorney’s fees were considered in fixing the amount of alimony pendente lite. For aught that appears in the bill to the contrary, the Court might have done this, and the complainant received the money, and did not pay her lawyer.

In the case of Fischli vs. Fischli, 1 Blackf. Rep. 360, the Court in Indiana considered that the Court in Kentucky had already passed upon the subject matter upon which the bill before them sought adjudication, under circumstances more favorable to the complainant than in the case before us. The case was, that a wife had obtained a decree for divorce with an allowance for alimony of a certain sum of money, and the use for life of one-third of her husband’s real estate within that State. And upon allegations that the avails of that decree, after paying the expenses of litigation, were insufficient for her comfortable support, she sought from the Courts of Indiana a further decree for one-third part for life of her husband’s lands in that State. That Court refused all relief; putting their judgment upon the ground that it was to be considered that these Indiana lands had been taken into the account by the Kentucky Court, when estimating the amount of alimony; although they conceded that the Kentucky Court could not -have controlled the lands of the defendant situate in Indiana; and although it appeared that a majority'of the Court of appeals in Kentucky had decided that the division of the real estate was to be confined to the State of Kentucky, from which one of the Kentucky Judges dissented, being of opinion that the real estate in Indiana should be taken into the estimate also. The Indiana Court saying: “ A sufficient part of the husband’s property lay in Kentucky to constitute an adequate provision for the wife, and the Court, with a view to all the property, might have given a proper proportion to the wife and allotted her that portion in Kentucky and applying the principle that when a matter has been finally determined by a competent tribunal, it ought to be considered at rest, say that, “ that principle not only embraced what actually was determined, but also extends to every matter which tbe parties might have litigated in the case. 5 Bac. 439, and authorities there cited.” '

IV. With regard to the allegations in reference to the allowance made to the complainant for the support of the child, there is no foundation laid for any relief. The bill does not state his age, and this had not increased a full year from the decree until the filing of this bill. If the allowance for his support was inadequate, the complainant need not have undertaken it at all. The father was liable at law for necessaries for him. It does not appear but that the father would have taken him and reared him up, if the mother had consented. Nor does it appear in any way that the father was unwilling or unfit for that duty. The decree, so far as it is shown, does not give the custody of the child to his mother exclusively, but simply allows her $150 per annum for his support during the period he may remain in her charge. If these terms, which really seem reasonable enough, are onerous, the complainant need not embar-ass herself by keeping him at all.

V. Nothing remains in the bill having any approach to equity, except that, at the end of not quite one year from the rendition of the decree, the sum of $163 33, besides interest, remains unpaid to the complainant, of the aggregate of all the allowances made to her, for which under the decree she has a lien upon the property of the defendant, as well as for such sum as may in the future fall due to her.

There was no necessity for a bill for the redress of this grievance; a summary application to the Court was sufficient under the ample provisions of the statute for enforcing such decrees.

Finding no error in the record the decree rendered in the Court below will be affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Bennett et al. vs. Dawson adx. et al.
    A demand against an estate, barred by tbe statute of non-claim and regularly adjudged at law to be so, cannot afterwards be successfully prosecuted to recovery in equity, either against the representatives, or the heir or distributee, to whom assets may have descended or been distributed.
    All demands subsisting at the time of the death of the testator or intestate, whether matured or not, capable of being asserted in a Court of justice, whether of law or equity, must be exhibited within two years; also all coming into existence at any time after the death and before the expiration of the two years — without regard to questions of hardship, inconvenience, or diligence, unless they challenge a want of constitutionality in the operation of the non-claim statute, as applicable to a particular case. ( Walker ad. vs. Byers, 14 Ark. 247.)

      Appeal from the Hot Spring Circuit Court in Chancery.

    The Hon. Theodoric F. Sorrels, Circuit Judge.
    Watkins & Gallagher for the appellants.
    Williams & Williams for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court.

This cause was brought here, by appeal, from the chancery side of the Hot Spring Circuit Court. It is upon a bill filed against the administratrix and heirs and distributees of Henry F. Dawson, deceased, who had, in his life time, become security of Owens and others, in an injunction bond executed by them, in a cause against the present appellants, to enjoin the collection of a judgment at law. During the progress of the injunction suit, Dawson, the security in the injunction bond, died, and letters of administration were granted upon his estate on the 2d day of December, 1850. So that the two years allowed by law for the presentation of claims against his estate, would not expire until the 2d of December, 1852. The injunction suit was decided on the 12th of July, 1852, at which time the injunction was dissolved, and damages assessed, and it was thus ascertained that Dawson’s estate had become liable on the bond. This, it will be perceived, was nearly five months before the expiration of the two years allowed by law for the presentation of claims against his estate.

On the 3d day of January, 1853, (one month after the expiration of the two years from the grant of letters of administration), this claim, regularly probated agreeably to the statute, was, for the first time, presented to the administratrix for allowance against the estate of her intestate, and was rejected by her. Upon which an action at law was commenced against her, in her representative character, which she defending upon the ground that the demand had not been presented to her within the two years, was finally decided in her favor by this Court, at the January term, 1854. (Bennett et al. vs. Dawson et al., 15 Ark. R. 412.) The appellants then filed this bill in chancery, to which a demurrer was sustained in the Court below, and the suit dismissed, and they have appealed.

It is not deemed necessary to set out more minutely the allegations of the bill, further than to say that no special grounds of equitable interposition are apparently insisted upon, beyond that, that the complainants exhibited their claim to the admin-istratrix as soon after the rendition of the decree, ascertaining the liability of the intestate, as it could be reasonably ..done; and that there were ample assets, either in the hands of the administratrix, or of. the heirs and distributees, to satisfy this and all other demands that were against the estate.

It cannot be that a demand, that was barred by the statute of non-claim against an estate, and regularly adjudged at law to be so, as this was, can be afterwards successfully prosecuted to recovery in equity, either against the representative of the estate, or the heir or distributee, to whom assets may have descended, or been distributed.

No one can doubt the power of the legislature to enact the bar; and in its terms it cuts off “ all demands not exhibited as required, by the act, before the end of two years from the granting of the letters.” It is insisted that the demand in question ought not to be considered as embraced in these wide terms, because it was not a subsisting one, but contingent and inchoate, until within five months next before the expiration of the term of two years fixed by law for the exhibition of claims under penalty of being “ forever barred;” and that two years ought to be allowed from the time of its accrual. Let it be considered as granted, as to the first branch of the proposition, still, was it not a clear, legal, subsisting demand against the estate from, and after its accrual, and for five months thereafter, before the expiration of the two years? And why should such a demand be exempted from presentation for two years after its accrual, when the statute of non-claim runs against no demand from the day of its accrual, but against all demands from the day of the issuance of letters.

It is true that so much of the opinion of the Court, in the case of Walker vs. Byers, (14 Ark. R. 253 and 259), as pronounced on the former page, and repeated on the latter, that not only demands subsisting at the time of the death of the testator or intestate, whether matured or not, capable of being asserted in a Court of justice, whether of law or equity, must be exhibited within the two years; but, also, all “ coming into existance at any time after the death, and before the expiration of 'the two years” from an “inchoate and contingent condition,” like dormant warranties, broken by eviction,” were likewise embraced by the statute, was, in that case, an obiter dictum, as counsel now suggest; because the particular case then before the Court was not one .of the latter kind, but was one of the former. Nor was the Court insensible of the peril of going beyond the record, into the consideration of doctrines, not then to be directly applied; nevertheless, the uncertainty which then prevailed as to some of these matters, and the questions then directly involved, made this course inevitable, as appears from the concluding remarks of the Court, which are as follows:

“ This first view of the case at bar having made it necessary that we should examine the doctrines discussed, in order to determine the two points settled, we will remark, before proceeding to the next view, as they are questions of some importance, that we have examined them with care, and have not determined them until after considering their probable consequences. And in these, we see no probable evils at all to be weighed against the manifest good to be achieved by stimulating the speedy settlement of estates in accordance with the clear spirit of our administration system, so palpably manifest.”

And now, when a case has arisen, involving that point, then but hypothetically considered, and we have heard argument, the conclusion then arrived at cannot but be fully approved.

The questions of hardship, inconvenience and diligence, discussed by counsel in this case, can cut no figure in this, or any like case, unless, as intimated in this case when it was here before, on the law side of the Court, such matters were of a character to challenge the want of constitutionality in the operation of the non-claim statute, as applicable to a particular case, under the doctrines applied in the cases of Pope exr. vs. Ashley exr., 13 Ark. R. 262, and Riggs, Peabody & Co. vs. Martin, 5 Ark. R. 506.

Finding no error in the decree of the Court below, it will be affirmed.

Hon. E. H. Ekglish, not sitting.


author: Mr. Justice Hanly

text:
    Booker, Ex parte.

    It is now well settled, that a private corporation may be sued by one qf its own members, either at law or in equity, under particular circumstances, or a special state of facts — as where it attempts to do acts which it is not warranted in doing by its charter: in which case it may be restrained by injunction.
    But where a corporation sues a stockholder for calls upon his subscription to its stock, which it had authority to do, it cannot be restrained by injunction from the collection of the money on the ground of a departure from its charter in reference to matters not connected with the suit — as that it has done other acts amounting to a breach of its chartered privileges.
    So, where a Railroad Company obtains judgment against one of its stockholders for calls upon his subscription, it cannot be enjoined by a Court of chancery from enforcing the judgment upon allegations that the work on the road was not progressing in the manner prescribed in the charter, or that the company contemplated a departure from the route or a change in the termini designated therein.
    Where a subscriber to a public work permits it to be carried on, for a length of time, without objection, he will be regarded, in equity, as acquiescing in the acts done, and will not be relieved from the payment of his subscription on the ground that the plan has been changed and the work is of no benefit.

      Petition for a Mandamus.

    Garland for the petitioner.
    For violation of a charter in appropriating funds to different purposes than those contemplated by the charter — -depreciating stock, etc., stockholder can enjoin collection of his stock in equity. Dodge vs. Woolsey Howard 331, and authorities cited: and also 16 How. 288; 11 Geo. 569; Angelí & Ames on Corp. sec. 312; Robinson vs. Smith, 3 Paige 231; Am. Law. Reg. Jan., 1853, p. 154; New Haven R. R. Go. vs. Croswell, 5 Hill 385.
   Mr. Justice Hanly

delivered the opinion of the Court.

This is an application made to this Court for a mandamus to the Judge of the 4th judicial Circuit, to compel him under the provisions of the 5th section of the 86th chapter of the Digest p. 592, to grant an injunction upon a bill to him presented, showing that the Hon. A. A. Stith, Judge of the 6th Circuit, was disqualified from acting thereon, and having the endorsement of his refusal of such injunction, as required by the statute in such case.

The substance of the bill, so far as it may be material in the present enquiry, is, that on the 29th November, 1852, the Mississippi, Ouachita and Red River Railroad Company, were created and constituted a body politic and corporate, by that name and style, under and by virtue of the provisions of an act of the legislature of this State, approved 8th January, 1851, entitled “ an act granting certain powers, etc.” (See Pamph. Acts 1850-1, pages 86-7:) that some time during the fall of 1852, the complainant, under the charter of the company, subscribed the sum of $500 to the capital stock thereof, and thereby became, and was a stockholder for that amount; that the design and object of the creation and organization of the company were to secure and ensure the construction of a railroad in this State from a point on the Mississippi river, at or near Gaines’ Landing, through or near Camden on the Ouachita river, to some point on Red river at or near Fulton, thence to some point on the boundary line of this State and the State of Texas. That after the complainant became a Stockholder in the company, it was determined by the board of directors thereof, chosen under the charter, that calls upon the stock subscriptions should be made at certain periods thereafter; that the calls upon the sum subscribed by the complainant on the 29th April, 1856, amounted to the sum of $270; that he had not paid any part or portion of this amount, up to the 20th Oct., 1856, when the company brought suit therefor, on the law side of the Hempstead Circuit Court; that the suit is still pending in that Court undetermined; that he has made no defence thereto, and does not intend so to do, being advised by counsel, as he alleges, that the proper forum for his defence is a Court of equity: offers to let judgment go against him on the law side of the Court, and proposes to waive errors, when such judgment is actually rendered. The bill further, in substance, states that it is provided by the charter, when the construction of the road is begun, it shall be commenced simultaneously at its terminus on the Mississippi, and its crossing of the Ouachita river, progressing at each point in a westerly direction; that since the complainant became a stockholder, the board of directory, in utter disregard of the charter, have caused large sums of money to be expended in payment for work and labor done on the road, between its commencement on the Mississippi, and its crossing on the Ouachita river, instead of proceeding, pari passu, with the work on that part of the road lying west of the Ouachita river, which they have omitted to do; that within the same period the directory have established the line of the road, so that it will not cross Red river at, or near Fulton; but, on the contrary thereof, at a point some 15 or 20 miles distant therefrom, less eligible, and clearly one which will cost the company much more to construct a crossing of that stream: that the chief object and the main inducement, which operated upon and influenced the complainant to become a subscriber to the stock of the company, were to advance the country intermediate Fulton on Red river, and the crossing of the road on the Ouachita river, and if he had not confidently believed the requirements of the charter, in all their force, would have been faithfully and to the letter carried out by the company, he never would have subscribed for any portion of the stock thereof. The bill further, in substance, alleges that the company, by omitting to proceed with the work on the road at its crossing on the Ouachita river in a westerly direction as it progressed at the end on the Mississippi river, and its diversion from Fulton on Red river to the point 15 or 20 miles distant, operated per se as a violation of the charter, and as a consequence thereof, that the complainant thereby became and was absolved, in equity, from the payment of his entire stock liability, including the amount sued for, and asked to be enjoined.

A printed copy of the charter was exhibited by reference to the acts of the assembly for 1854-5.

The Mississippi, Ouachita and Red River Railroad Company was made sole defendant to the bill, and against whom the injunction was prayed to restrain the collection of the complainant’s stock subscription, either by execution or otherwise, etc.

• For the purposes of this application, we will consider the allegations of the bill as not only true, as we are bound to do upon an ex parte proceeding of this sort, but sufficiently full and explicit, to the end that we may at once reach and dispose of the real merits of the application.

It was a question of serious doubt, until comparatively a recent date, whether a private corporation could, under any circumstances, be sued, either at law or in equity, by one of its own members. (See Waning vs. Catawba Co. 2 Bay (S. C.) R. 109. Cunliffe vs. Manchester & Bolton Canal Co., 1 Myl. & Russ. Ch. R. 131 and note. Dodge vs. Woolsey, 18 How. (U. S.) R. 331.

But it is now well settled that a private corporation may be sued by one of its own members, either at law or in equity, under particular circumstances, or a special state of facts. (See Ang. & Am. Corp. sec. 390-1, and the authorities above cited: also, Pearce vs. Patridge, 3 Met. R. 44. Hill vs. Manchester and Salford Water Works, 5 Adol. & Ellis R. 866.)

And a special case in which a private corporation may be sued in equity by one of its members, is, when the company attempts to do acts which they are not empowered to do under the acts of the legislature from which they derive their authority to act as such; and in such case it has been holden that a Court of chancery may restrain them by injunction, from the commission of the threatened and impending usurpation. See Ang. & Am. on Corp. sec. 391, Ware vs. Grand Junction Water Co. 1 Myl. & Rus., Ch. R. 126. Bagshaw vs. Eastern Counties Railroad Co. 1 Beav. Ch. R. 1.)

In the last case cited, the objection was expressly taken on the part of the corporation, that the corporation ought not to a party to the suit. But the vice chanceller, Sir James Wagram, said he'had no hesitation in overruling the objection; that the acts of the directors (in diverting the corporate moneys for a purpose different from what was originally contemplated, against the will of a single share-holder) were the acts of the directors as the representatives of the company, and as such were the acts of the company itself, and that the company would not be bound unless it were a party in its corporate character. See also, Coleman vs. Eastern Counties Railway Co. 10 Beav. Ch. R. 1, to the same point.

The result of the authorities, therefore, clearly is, that a corporation, when acting within the scope of, and in obedience to, the provisions of its constitution, the will of the majority duly expressed at a legally constituted meeting must govern; yet beyond the limits of the act of incorporation, the will of a majority cannot make the act valid: and the powers of a Court of equity may be put in motion at the instance of a single shareholder, if he can show that the corporation are employing their statutory powers for the accomplishment of purposes not within the scope of their institution. See Ang. & Am. on Corp. sec. 393, note 2, and authorities there cited.

We will endeavor to apply the foregoing principles to the case at hand. The bill shows, by reference to the charter, that the company was invested with full power and authority to sue and be sued, plead and be impleaded, by their proper style and description, in any of the Courts of this State, to the same extent and like effect as if they were a natural person. There can be no doubt then, and the fact seems to be admitted by the bill, that the Mississippi, Ouachita and Red River Railroad Company were not acting beyond the powers delegated to them by their constitution, when they commenced the suit in question, in the Hempstead Circuit Court, against the complainant for the recovery of his stock indebtedness due up to that time — this was strictly within their powers expressly delegated, and, consequently, was what they had a right to do under the charter. If they had a right to sue, as they evidently had, it follows as a consequence, that they had a right to pursue their remedy to judgment, and thence to execution and satisfaction, as incidents of the general power conferred on them to sue: for the right to sue without the right to enforce judgment in case of recovery would be no right at all.

The corporation, in the act of instituting the suit against the complainant to collect the arrearages of stock calls, were not “ proceeding beyond the limits of their constitution,” and consequently, did not subject themselves to the annoyance of a suit by one of their members, which is the test instituted by the laws to determine in such cases, when the jurisdiction of a Court of equity may be invoked, as we have already shown by the foregoing propositions and the authorities cited in support of them.

As we understand the case made by the bill, the complainant rests his 'whole relief prayed for therein, as to the injunction to restrain the corporation from suing out execution upon the judgment at law, and enforcing the payment thereof, upon the grounds of a departure from the charter by the corporation, in 'reference to matters not connected with the suit at law.

The Court of chancery is asked to restrain the corporation from the commission of a lawful act, because, forsooth, it is charged against them that they have, on other occasions, done other acts, which, in the opinion of the complainant, amounted to a breach of the chartered privileges conferred upon them, or duties imposed on them, by the terms of their constitution. If the acts complained of in the bill, are unwarranted by the charter, the complainant may, under the law as we have laid it down, proceed against the corporation. But when? Certainly not until they attempt, or are, in the act of diverting the road from its prescribed destination (as it is contended) on Red River, or the means of the company, including the stock paid in by the complainant, is attempted to be appropriated in an unauthorized and unwarranted way. To anticipate a mal or mis-application of the fund sued for before it comes to the hands of the Treasurer of the corporation, and prevent its going into the corporation coffers, would be, to our minds, a stretch of chancery power in the exercise of that faculty peculiar to Courts of equity whereby preventive justice is administered, which would be unwarranted by the precedents or maxims of the Courts. To stop the funds of the corporation before they reach the hands of the Treasurer, where their safe custody is secured by 'salutary guards, as well for the company, whose special custodian he is, as for the individual members of the corporation, whether their interest may be regarded as consistent or antagonistic to the company, would be to expose them to loss or waste. When its fund is once in the possession of the treasurer, he is made the special bailee or trustee of it, by operation of the law, and is unwarranted in relinquishing it except when appropriated and drawn for as the ordinances of the board prescribe. If the board should direct their withdrawal for an unauthorized purpose or object, they do so at their peril, and though the corporation may be liable, as we have before seen, we apprehend there can be no doubt of their personal or individual liability in the proper action. The complainant, even though his stock subscription should have been paid into the treasury, and thereby confused or mixed with the general funds of the corporation, would nevertheless have the same right as a private stockholder to restrain the appropriation of any portion of the general fund to unauthorized objects, as he would the particular fund paid by him before it became confused or mixed, or afterwards, if it could be identified. Hence, we say, the bill before us, is defective in not averring and charging, if the facts will warrant it, that not only were the company threatening to misapply the funds of the corporation, but that the directors were insolvent and worthless, and that the treasurer was faithless, and had given no bond with security, or that the sureties to his bond with himself were insolvent. Under such a showing as this, it is possible a Court of chancery might relieve him so far as to enjoin the collection of the stock debt, and leave it in the hands of the complainant,provided, he would secure it to the company, to be retained by him as special treasurer of that particular fund, or, in other words, as trustee for the stockholders under the directions of the chancellor.

There is another aspect in which this case may be considered, which is as conclusive upon this application as the one we have just disposed of, and we ton to that for the purpose of meeting all the grounds, as far as it is practicable or at all convenient, taken by counsel in this application.

The bill is silent as to what precise time the supposed diversion of the route of the road from Fulton to the point 15 or 20 miles distant occurred. It is also silent as to the time at which the company ceased to progress with the work on the road, west of its crossing of the Ouachita river. It may be fairly intended and inferred by the whole case made by the bill, that these grievances, if grievances they are, have existed from an early period in the history of the organization and operations of the company under their charter; for it is but just to presume that the company would have laid out and defined the route of the entire road, before they would proceed to construct any part of it. If so, it has been holden that a subscriber to a public work, who has permitted it to be carried on without objection, cannot be relieved from the payment of his subscription on the ground that the plan was changed, and the work is of no benefit. See Doane vs. Treasurer of Pickaway, Wright's (Ohio) R. 752.

In the case at hand, the bill conclusively shows that the company was incorporated as far back as - November, 1852, about which time the complainant became one of its stockholders. It had proceeded from that time till April, 1856, making calls, (and of course organized) upon the stock subscriptions, when the calls due on the complainant’s subscription of $500, amounted to the sum of $270, as shown by the bill. The calls on the stock subscriptions of the other stockholders must have been in the same ratio, showing very clearly that the company had absolutely expended or appropriated over one-half of all the stock subscribed to some object or other, not specifically shown, however, by the bill. Why, and how was so much money appropriated? We must presume, in the absence of an averment to the contrary, that this large amount was expended for legitimate objects, warranted by the charter — such' as paying the expenses incident to the surveying and laying out the road between the termini, not costing, probably, a twentieth part of the amount received from calls paid in, and the residue, as it should have been, appropriated to the construction of the road between its commencement on the Mississipppi, and its crossing of the Ouachita river, as shown by the bill. The laying out the road, and its diversion from Fulton to a point 15 or 20 miles distant, must have occurred more than four years before the first complaint is made by the complainant in respect to that, fact, for we have no notice of any complaint having been made by him until he was sued on his stock subscription. And so it may be said in reference to the complaint about the manner in which the work has progressed, etc. His quiescence on these subjects must be regarded in equity as an acquiescence in the acts of the corporation in respect to them, otherwise the greatest injustice and injury might be inflicted upon the whole body of stockholders, as well as the community at large, who have an interest in the successful prosecution of the road to final completion.

We presume no case can be found in the books of reports, where a stockholder in a private corporation has been permitted to restrain the collection of his stock subscription on account of the company having violated their charter, except in cases where the company, by a vote of a majority, have obtained, from the supreme law making power of the State, a change in the constitution of the company, which is accepted by the majority, and materially affects the interests secured by the original act of incorporation. And the relief, in such cases as these, is placed upon the ground, that the acceptance under the new act is a surrender of the old, and consequently, that none are bound by the acceptance and surrender, except those who absolutely assent to it. For violations of chartered powers, breaches of chartered duties, and encroachments upon chartered privileges, the remedy to the individual affected is remedial and -preventive. The first, by an action at law, or suit in equity, for the grievance already done; and by injunction for the second, or those impending and threatened. The public may have redress by the appropriate proceeding to resume the franchises, which have been abused. And we are sustained in this conclusion by the very authorities to which we have been referred by the complainant; and by a host of others bearing on the same point. See, also, Ang. & Am. on Corp. sec. 776-'7.

In every view that we can regard the application, we are forced to refuse the mandamus.


text:
    Blakeney as ad. vs. Ferguson et al.
    Under the statute prescribing the condition of an injunction bond (Dig. chap. 86, sec. 18,) -where there has been a decree simply dissolving the injunction, and dismissing the complainant’s bill with costs, the only breach that can, legitimately, be assigned in a declaration upon the bond, is, that the complainant had failed to pay the costs awarded.
    The first clause in the condition of an injunction bond, is for the performance of any personal act or duty that may be imposed upon the complainant by the decree; the second clause is for the payment of the damages and costs, that may be decreed against him; and if no damages are awarded by the decree, under section 21, none can be recovered upon the bond.
    It is not competent to recover before one tribunal, upon some of the covenants in a bond, and then sue upon other covenants before another tribunal, in a case where the party was alike liable before either tribunal at the same time for all the covenants in the entire instrument.
    Duplicity in pleading was only a ground of special demurrer at common law, and cannot be taken advantage of at all by demurrer, under our practice; and so, if either of several breaches in a declaration upon a covenant be sufficient, the declaration is good upon a demurrer.

      Appeal from the Circuit Court of Pulaski county.

    The Hon. John J. Clendenin, Circuit Judge.
    S. H. Hempstead, for the appellant.

      1. The third breach is good, and the demurrer having been sustained to the whole declaration, the judgment must be reversed. 7 Eng. 725; 6 Blackf. 192; 2 Ala. 425.
    2. The first and second breaches are good, because according to the real design and scope of an injunction bond, all damages occasioned by the injunction may be recovered by the party injured, whether technically adjudged or not. Digest 593.
    Blakeney being entitled to the possession of the tract of land, was entitled by way of damages to the rents and profits during the time he was deprived of them by injunction. 8 Wheaton 1; 6 Vesey p. 87; 16 Ark. 181; 19 Ala. 344. And was entitled to recover in this action all damages sustained in consequence of the injunction. 11 B. Mon. 201; 10 ELwmph. 325; 1 Barb. Ch. R. 613. If these damages may be recovered in the suit in equity they may at law in a suit on the injunction bond.
    JoedaN for the appellees.
    All that the plaintiff could recover in a suit upon the bond would be the costs and damages, if any be assessed, upon the dissolution of the injunction. Dig. chap. 87, sec. 18, 21, 22; Mitchell vs. Gibson, 14 Ark. 229; Troup vs. Wood, 4 J. C. R. 243; 2 Caines Rep. 256.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was an action of debt, by the intestate of the appellant, against the appellees, in the Pulaski Circuit Court, to the December term, 1854, on an injunction bond executed by them, and others not sued, the condition of which, after reciting that a portion of the appellees had applied for and obtained an injunction in a certain chancery cause pending in the Pulaski Circuit Court, against appellant’s intestate, continues that “ now if the said complainants shall well and truly abide the decision which may be made in this cause, and pay all sums of money that may be adjudged against them, if said injunction shall be dissolved, either in whole or in part, then this bond to be void, etc.”. Three breaches are assigned in the declaration: 1. That said injunction was sued out to restrain appellant’s intestate from proceeding to execute a certain order requiring the sheriff of Pulaski county to put him in possession of a certain tract of land and premises, which he had before that time purchased, at judicial sale, averring the dissolution of such injunction by a competent Court, with the rendition of a decree dismissing the original bill, without prejudice, and that the costs of the suit should be paid by the complainants therein, and averring further that, during the pendency of said chancery suit, between the issuance of the injunction and its dissolution, the appellees were kept in possession of said land and premises by force of such injunction — that, during that time, the appellees became liable under said bond, to pay for the use and occupation thereof — that they tore down and converted certain houses, timber, fixtures, etc., removed certain cotton, the produce of said land, and by the terms of said bond they are bound to pay for the same; negativing the payment of the costs decreed in the injunction suit, etc., as well as averring the value of the use and occupation of said land and premises, as well as the amount of the damages occasioned the appellant by the other grievances complained of, etc.

2. This breach recites the same facts averred in the first, except as to the costs decreed to be paid by the complainants on the dissolution of their injunction and the dismissal of their bill in the Court below. In other respects, it is identical with the first.

3d. This recites simply the dissolution of the injunction, the decree of the Court below dismissing the bill with costs, and negatives their payment, etc.

The appellees, after oyer prayed and granted, demurred to the declaration, assigning special causes therein applicable to each breach respectively. The demurrer was considered and sustained by the Court as to the entire declaration. Appellant excepted and appealed.

The assignment questions the judgment of the Court below upon the demurrer to the declaration.

The objections, taken by the demurrer to the declaration, are confined exclusively to the three breaches therein, specifically, assigned; maintaining that the breaches are, respectively, unwarranted by the condition of the bond declared on.

The bond in question was executed in conformity to the following statute: “No injunction shall be issued in any case, until the complainant execute a bond to the adverse party, in such sum as the Court, Judge, or Master shall deem sufficient, to secure the amount or matter to be enjoined, and all damages ■ and costs that may be occasioned by such injunction; conditioned that the complainant will abide the decree which may be made therein, and that he will pay all sums of money and costs that may be adjudged against him, if the injunction be dissolved in whole, or in part. See Digest, chap. 86, sec. 18, pp. 393-’4.

It is insisted on the part of the appellees, that under this statute, where there has been a decree simply dissolving the injunction and dismissing the complainant’s bill with costs, (as in the case before us), there can be but one breach legitimately assigned in a declaration on the bond taken under such statute, i. e. that the complainants have failed or refused to pay the costs awarded. Whilst, on the part of the appellant, it is maintained that the injunction bond required by the statute to be taken, was designed and intended to secure to the obligee therein, whatever of damages and costs he may have sustained, “ occasioned by such injunction,” and that such damages and costs may be recovered, (to the extent of the penalty of the bond) though none should have been awarded by the Chancellor on dissolution of the injunction, in debt on such bond.

The questions involved in these propositions are interesting, both on account of their novelty and intrinsic importance. We believe that no case has been adjudicated by this Court, as far as the Reports indicate; in which the questions before us have been determined. Several cases may be found, in which kindred questions have been decided, but growing out of appeal bonds, replevin bonds, and bonds taken under our forcible entry and detainer statute. But, on reference to these various decisions, it will be readily perceived, they were made to proceed more upon the particular statute, under which the cause of action in question arose, than upon general principles; and such, we conceive, must be tbe basis of our decision in the case at bar.

We think there can be no doubt, from the tenor, as well as the letter of the section, in which the condition of injunction bonds is prescribed, but that it was the intention of the legislature to provide, by the bond required to be taken before injunctions should be granted in this State, for full and complete indemnity to defendants in such suits; and we think that that design has been fully accomplished by the provisions of the 18th section given above. But we cannot concur with the counsel for the appellant, in the construction he would give to that section. We think the design of the legislature, which we have ascribed above, may as well be accomplished by a different construction as by the one he has so earnestly contended for in his argument, and that, two, without sacrificing any portion of the section under consideration.

By recurring to the condition of the bond, prescribed by the 18th section, it will be observed that it contains two clauses: 1st. “ That the complainant will abide the decision, which may be made: 2d. That he will pay all sums of money and costs, that may be adjudged against him.’’'’

Both these conditions to be contingent, however, upon the dissolution of “ the injunction in whole or in part.” What we understand to be the effect and scope of the first clause in the condition, is, that the complainant and his sureties obligate themselves, in case the Chancellor on dissolving the injunction should impose, by decree, upon the complainant, the performance of any personal act, or duty connected with the subject of the suit, and of benefit to the adverse party, that he will do it, or forfeit the penalty; and what we understand by the second clause in the condition of the bond, is, that the complainant and his sureties obligate themselves to pay, to the obligee, whatever of damages and costs the Chancellor may award him on the dissolution of the injunction: — The statute contemplating that the Chancellor, with a jury, could as well determine what amount of costs and damages the party had sustained “ by such injunction ” as if the same facts were referred to a Court of law, and thereby avoid circuity of remedy, and a multiplicity of suits, which it is the policy of the law to prevent, and enable parties to avoid by proper provisions. The bond was only intended to afford security to the obligee, that the decree, which might be rendered by the Court in the injunction suit, should and would be performed by the complainant, the principal therein. It was, evidently, intended that the Chancellor should direct what should be done by the complainant, and ascertain what damages and costs the obligee had sustained, on account of the injunction, and if he would not perform the personal act or duty required of him, or pay the damages and costs awarded, that his securities would make good the damages occasioned by the first, and pay the award of the latter, by incurring an action on the bond. Beyond this, the condition of the bond does not go, in our judgment.

We are corroborated in these views, we think, by the provisions of the 21st and 22d sections of same chapter of the Digest, from which the 18th section, above referred to, was extracted. They are as follows:

“Sec. 21. Upon the dissolution of an injunction, either in whole or in part, where money has been enjoined, the damages thereon shall be assessed by the Court, at not less than six, nor more than ten per centum on the amount released by the dissolution of the injunction, exclusive of costs; but in all other cases, the damages shall be assessed by a jury empannelled for that purpose; if neither party require a jury, the damages may be assessed by the Court.”

“ Sec. 22. The Court shall enter a decree according to the circumstances of the case, including the damages assessed as aforesaid, and may award execution thereon, or enforce such decree in such other manner as may be proper, according to the rules and practice in chancery.” See Diqest, p. 594.

It is evident, from these sections in connection with the 18th, that the legislature has so provided as to limit the liability of the sureties upon injunction bonds, to the amount of the damages and costs actually decreed to the defendant in the injunction suit, upon dissolution.

But it is insisted, on the part of the appellant, that the remedy, thus given by the letter of the statute, for determining- the damages and costs to which defendants, in injunction suits, are entitled on dissolution, is only cumulative of the remedy existing on the bond; and to sustain this position we are cited to Garrett vs. Logan, 19 Ala. R. 344. We have examined that 'case very carefully, and considered it patiently, and do not conceive it supports the position he assumes. It is true, that was upon an injunction bond. But the condition of the bond, declared on in that case, was “ if the said complainant will well and truly prosecute his said writ of injunction, and pay all costs and damages occasioned, etc.” — very different from the condition of the one we are considering. In the one before us, in the first clause of the condition, the word “ therein” is used in reference to the injunction suit; thereby making the breach of either clause of the condition dependent upon the fact, whether damages and costs were awarded “ therein,” or in the chancery suit, after dissolution of the injunction, “ either in whole or in part.” No such word, or one equivalent, is to be found in the condition of the bond in Garrett vs. Logan. The fact is, we regard Garrett vs. Logan as going very far to sustain the views already expressed in reference to the case at bar; for the Court, in commenting on Davis vs. Guley, (2 Dev. & Bat., R. 360,) cited by counsel, say: “That was a bond for the payment of such damages as might be recovered. In this case, (meaning the one of Garrett vs. Logan) the bond was simply to pay costs and damages occasioned, etc.” The Court approved of the decision in Davis vs. Guley, which was, in effect, that an action would not lie on a bond conditioned as the one in that case was, until after suit brought, and judgment recovered at law to fix the damages occasioned by the vexatious suing out the injunction.”

The 21st and 22d sections of our statute, under the head of injunctions, was intended, we have no doubt, to avoid the necessity of there being more than one suit against the principal in such bonds, which is consistent with the policy of the law in general.

From these views, therefore, we are forced to hold, that the appellant cannot recover upon the injunction bond declared on, except the amount of costs which accrued in the chancery suit in which the bond originated.

We are warranted in this conclusion from another principle connected with the question at hand, and arising upon this part of the record, namely; that it is not competent to recover, before one tribunal, upon some of the covenants of the bond, and then sue, upon other covenants, before another tribunal, in a case where the party was alike liable before either tribunal, at the same time, for all the covenants in the entire instrument. The splitting up of entire liabilities into different suits will not be permitted. It is violative of plain principles. See Black vs. Caruthers, Harris & Co. 6 Humph. R 92-3.

If the appellant had desired to proceed for damages as well as costs in the injunction suit, we think there can be no doubt, but that the measure of his damages would have been the value of the rents and profits of the land and premises enjoined, from the date of the injunction to the time of its dissolution, the costs in the Supreme Court, and, may be, the counsel fees in both Courts. See Edwards & Edwards vs. Bodine et al., 11 Paige 223.

Notwithstanding the first specific breach assigned is somewhat obnoxious to duplicity, which was only ground of special demurrer at the common law, and, consequently, not available at all by demurrer, under our practice, the Court below should have overruled the demurrer as applicable to it, for the reason that one of the breaches assigned therein is the non-payment of the costs averred to have been awarded to the appellant on the dissolution of the injunction recited.

There is no objection possible to the third specific breach; that being like the first', as we have qualified it, that is to say, averring an awaifi of a decree in the chancery Court for costs, and a formal negation of the payment by the appellees. The demurrer to this assignment should also have been overruled.

In reference to the second specific breach, we hold, in view of the foregoing, that the demurrer, as applicable to that, was properly sustained.

For the errors aforesaid, the judgment of the Pulaski Circuit Court is reversed, and the cause remanded to be proceeded in as herein before directed.


author: Mr. Justice Hanly,

text:
    Vaden et al. vs. Ellis.
    In pleading a judgment, it is usual to aver that “ it remains in full force and virtue, and in no wise set aside, reversed or held for naught;” but the better opinion seems to be that such an averment is not a substantial one: and being only a matter of form, its omission cannot be taken advantage of by demurrer under our statute.
    No intendment will be made in aid of a plea in trover, setting up a justification of the conversion under a judgment and proceedings of a justice of the peace, (7 Eng. 688;)as where such plea fails to allege that the proceedings and judgment were had within the territorial jurisdiction of the justice.
    Where the defendant pleads the general issue, and also pleads specially, matter which may be given in evidence as well under the general issue as under the special plea: and the court sustains a demurrer to the special plea — there is no error for which this court would reverse the judgment, even though the matter set up in the plea be a good defence — the party might have had the benefit of it under the general issue.
    It is not necessary in an action of trover, to swear the jury “ to try the issue and the damages to assess:” if they are sworn “to try the issue joined” it is sufficient.
    A verdict for the plaintiff, merely for a certain amount of money, upon the plea of not guilty, in an action of trover, is a substantial response to the issue: and if not, it would be cured by the operation of the statute of amendments.
    Where no exception is taken to the refusal of the court below to grant a new trial, this court cannot revise the decision on the motion. (15 Arh. 515 and, cases cited.)

      Writ of error to Prairie Circuit Court.

    The Hon. Felix J. Batson, Circuit Judge, presiding.
    JoRdan for the plaintiffs.
    Bertrand and Williams & Williams for the defendant.
   Mr. Justice Hanly,

delivered the opinion of the Court.

This was an action of trover, brought by the defendant in error, against the plaintiffs in error, for sundry goods and chattels, of the alleged value of two thousand dollars. Writ issued, returnable to the February term of the Prairie Circuit Court for 1855. At the August term following, the defendants below appeared and filed their two pleas, i. e., 1st, the general issue— and 2d, a special plea, in substance, as follows: That theretofore, to wit, on the 29th day of September, 1854, the plaintiffs in error sued out a writ of attachment, before Charles W. Smith, of White River township, in the county of Prairie, against John A. Mitchell, directed to the constable of that township, by virtue of which the constable, on the 30th of September, 1854, attached thereunder, and took into his possession, the goods and chattels described in the declaration, as the property of the defendant in the attachment suit, and to satisfy the debt therein specified: that on the 7th of October, 1854, whilst the property so attached was in the custody of the constable, by virtue of the attachment, the defendant in error filed his plea of interplea, in which he claimed all the property attached as the property of Mitchell, upon which the plaintiffs in error took issue: — that, thereupon, the justice of the peace, before whom the attachment suit was pending, at the instance of the inter-pleader and the plaintiffs in the attachment suit, caused a jury to be summoned and sworn to try the issue upon the plea of interplea: — that the jury, upon the evidence, returned before the justice of the peace a verdict in favor of the plaintiffs in error to the effect, that the goods claimed by the defendant in error were subject to the attachment against Mitchell, and of right, not the property of the defendant in error, as by him in his interplea was alleged: — that, upon this verdict, the justice proceeded to. and did render judgment against the defendant in error for the costs of that proceeding: concluding with a verification.

Issue was taken to the first plea, and a demurrer interposed to the second; which was sustained.

The record shows that, at the same term, August, 1855, a trial was' had before a jury upon the issue to the first plea, (the plaintiffs in error having declined to answer over upon the sustaining of the demurrer to their second plea;) that the jury were sworn “to try the issue joined according to the evidence,” and upon the evidence adduced returned a verdict in these words: “We, the jury, find for the plaintiff $442.”

On this verdict judgment was rendered by the court.

A motion for a new trial was made, and overruled by the Court, and no exception seems to have been taken thereto.

The defendants below brought error. The errors assigned are:

“ 1. The court below erred in sustaining the demurrer to the defendants’ second plea.

2. The jury were not sworn according to law — having been sworn to try the issue joined, instead of to try the issue joined, and the damages to assess.

3. The verdict is not responsive to the issue joined, nor to the issue the jury were sworn to try.

4. The Court erred in overruling the motion for a new trial.”

We will proceed to consider and determine the several errors assigned, as far as we can legitimately do so, consistently with the settled doctrines and practice of this Court, in the order in which they severally occur.

1. This assignment questions the legal sufficiency of the plea, to bar the defendant in error from a recovery in his action. The demurrer interposed contains several special causes, and among the number, there is one which assumes that the plea is defective on account of its omitting to aver, that the verdict and judgment upon the interplea “ remain in full force and virtue, and in no wise set aside, reversed or held for naught.” As that ground, among others, seems to be relied on by the counsel for the defendant in error, in this Court, we will first consider of it. There can be no doubt, by reference to the precedents, that it is usual to insert the averment suggested in pleading (both in declarations and pleas) a judgment. We say it is usual to insert the averment, as the precedents show: but it by no means follows from this, that such an averment is a substantial one. The better opinion seems to be, that it is not. (See 2 Chitty's Plead. 484, note r; 1 Sand. 330, note 4.) And if not a matter of substance, but one only of form, the objection is not available under our statute, for the reason that objections to the form of the pleading were only ground of special demurrer at the common law. As this is the only ground assumed in the demurrer, pertaining to the form and structure of the plea, we will hasten to the consideration of its substance and matter.

Upon the authority of Jones vs. Mason, (7 Eng. R. 688,) we are constrained to hold the plea bad in substance. Like in that case, the plaintiffs in error attempt to justify the conversion of the property specified in the declaration, under a judgment and proceedings had before a justice of the peace, in favor of which nothing is intended that is not set forth in the record. In the case at bar, the plea omits to aver, affirmatively, whether the trial before the justice and jury, upon the interplea, was within the territorial jurisdiction of the justice.

But apart from this, there is another view in which the question may be regarded, which is as conclusive against the plaintiffs in error.

In trover, the general issue is not guilty, and it is said not to be usual, before the new rules in England, in this form of action, to plead any other plea, (See Kennedy vs. Strong, 10 T. R. 291,) for the reason, that, under the general issue, all the de-fences may be be given in evidence, except, possibly, the statute of limitations and release. See 1 Chitty's Plead. 499. 2 Campb. 558. 2 Tucker's Com. 87. 2 Greenl. Ev., sec. 648.

There are some defences, however, besides limitations and a release, 'which may be specially pleaded — such for instance, as former recovery by plaintiff in trover, or trespass for the same goods, either against the defendant or another. So may things, which show a right in the defendant to detain the goods, be pleaded specially; as a right of lien in a tavern keeper or carrier; though all these defences are properly admissible under the general issue. See 1 Chitty's Plead., as above. 2 Tucker's Com. as above. Hunt vs. Cook, 19 Wend. R. 463.

The record before us shows, that, at the time the demurrer to the second plea was sustained, the plea of the general issue was in, and that issue in due form was made upon that plea. The cause was tried upon the general issue, and as we have shown from the above authorities, the defence attempted to be set up under the second plea, to which the demurrer was sustained, was just as available to the plaintiffs in error, in evidence under the general issue, if a good defence at all, as if the same matter had been specially pleaded and the plea permitted to stand. The plaintiffs in error could not have been prejudiced by the judgment of the Court below, even conceding their plea to be good; and as a consequence it does not become necessary, that we should pass upon the legal sufficiency of the plea as a bar. See Pelham vs. Page, 1 Eng. R. 536.

We will, therefore, waive further notice of this assignment, and hold there is no error in the judgment of the Court below sustaining the demurrer of the defendant in error, to the second plea of the plaintiffs in error.

2. As to this assignment, we do not think it well taken, for the reason we do not conceive in the action of Trover it is necessary to swear the jury “ to try the issue and the damages to assess.” The manner in which the jury, in the case before us, was sworn, is sufficiently formal, and embraces the power to assess the damages, as well as to find as to the conversion. The case at bar has no analogy to the one of McLain, Surv. vs. Taylor et al., (4 Eng. R. 362 et seqr.,) to which we have been referred by the counsel for the plaintiffs in error. That was an action of debt on a penal bond. The statute on the subject controlled the decision in that case. Here, the issue was as to the conversion, and that, found for the plaintiff below, would draw after it, as a legal consequence or incident, damages to the value of the goods converted. So that, in swearing the jury to try the issue, they were necessarily sworn to try the whole issue, which, as we have shown, embraced the damages. Not so with debt on a penal bond; for the statute provides for issues both as to the breaches and the damages, and prescribes the substance of the oath to be administered in each case. See Dig. secs. 5, 6, 7, p. 120.

3. We do not esteem this assignment well taken, for the following reasons: 1. Because we hold that the verdict rendered in this instance is a substantial response to the issue. 2. If it is not, it is cured by operation of our statute of amendments. See, Nig. ch, 126, secs. 119, 120, p. 815. 1 Chitty’s Plead. 684. 2 Tidd’s Pr. 919.

■ By applying the statute of amendments to the verdict before us, the formal defect is cured, not by actual amendment, but the Court, into which the record may be removed by error or appeal, will allow the benefit of the act to be obtained by overlooking 'the omission or exception. See 1 Chitty’s Plead. as above. 2 Tidd’s Pr. 928.

4. This assignment cannot avail the plaintiffs in error, for the reason that there is no exception upon the record to the judgment of the Court below, overruling their motion for a new trial. The uniform doctrine of this Court has been, that where there is no exception taken to a refusal of the Court to grant a new trial, the Supreme Court cannot revise the decision on the motion. See Neville vs. Hancock et al., 15 Ark. R. 515, 516, and cases there cited. Also, State Bank vs. Conway, 13 Ark. 344, et seqr.

Upon the whole record, we have found no error in the"judgment of the Court below of which the plaintiffs in error could properly complain. It is, therefore, in all things affirmed.


text:
    Purefoy vs. Hill & Co.
    A discontinuance as to one of several defendants, served with process, in an action upon a joint and several promissory note, is a discontinuance as to all. (Jester vs. Hooper, 13 Ark. 47, and previous cases.)

      Appeal from the Circuit Court of Ouachita county

    The Hon. Abner A. Stith, Circuit Judge.
    Steaih for the appellant.
    Watkins & Gallagher for the appellees.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was assumpsit brought by the appellees, against the appellant and one William E. Hundley, on a joint and several promissory note, to the October term of the Ouachita Circuit Court, 1855.

Summons returned duly executed on both defendants.

The record shows that, at the return term, the appellant made default, and at the same term, the appellees, by attorney, appeared and discontinued the action as to Hundley, and took judgment final, by default, against the appellant, for the amount of the note, including interest in damages, and costs.

Purefoy then appeared and appealed to this Court, and assigns for error the discontinuance as to Hundley, his co-defendant in the Court below, and the rendering of judgment against himself; insisting, as he does, that the discontinuance as to his co-defendant operated as a discontinuance as to him.

The question presented by the record in this cause is no longer an open one in this State.

It is well settled under our statute, that a person having a cause of action, ex contractu, against several, may sue one, any, or all of them at his pleasure; yet, if he sue more than one, he thereby elects to treat the contract as joint and a discontinuance as to one defendant, who has been served with process, operates as a discontinuance of the suit as to all the other defendants. See Frazier et al. vs. State Bank, 4 Ark. R. 509; Hanly vs. Real Estate Bank, same 600; Beebe vs. R. E. Bank, same 552; Hutchings et al. vs. R. E. Bank, same 517; Ashley vs. Hyde & Goodrich, 1 Eng. R. 96-'7; Pleasants vs. State Bank, 3 Eng. R. 456; Jester vs. Hooper, 13 Ark. R. 47; Sillivant & Thorn vs. Reardon, 5 Ark. R. 153.

The appellees having discontinued their action against Hund-ley, one of the defendants, who was also duly served with process, must be held as having discontinued as to the appellant, the other defendant in the Court below.

The judgment of the Ouachita Circuit Court in this behalf is, therefore, reversed, and the cause remanded to be proceeded in.