author: Mr. Justice Scott

text:
    Wells as ad. vs. Fletcher as Guardian.
    The administrator applied to the Probate Court tor an order for the sale of the slaves or real estate of the deceased, to pay debts, showing that the debts unpaid, of which the amount of a decree against Mm for the widow’s dower formed a part, exceeded the assetts, exclusive of the slaves and real estate: Held, That as the personal estate, subject to the widow’s dower, had been applied to the payment of debts generally, sho was equitably entitled to be reimbursed out of what remained of the estate: 'that neither reason nor equity required her to wait for the accruing rents and hires to pay off the sum decreed to her for dowel-.
    In support of such application, the administrator may show, that since his last settlement with the Probate Court, he has paid other debts of the estate duly proven and allowed.

      Appeal from the Circuit Court of PulasM County.

    Hon. ¥m. H. Feild, Circuit Judge.
    S. H. HeMpstead, for tbe appellant.
   Mr. Justice Scott

delivered tbe opinion of tbe Court.

This cause bas been brought into tliis court by appeal from the Circuit Court of Pulaski county. It originated in tbe Probate Court of that county, and was an application" there by tbe administrator, who is tbe appellant here, for an order for tbe sale of either lands or slaves, as tbe Probate Court might deem best, for tbe payment of debts against tbe estate of bis intestate. The petitioner showed in his petition, verified by his affidavit, that all tbe personal estate of tbe intestate bad been sold for tbe payment of debts, except three slaves, (tbe mother and two children,) and that certain lands, which he described also, and these slaves, were all tbe property of the estate remaining. He represented that lands were appreciating in value, and suggested that it would be most to tbe interest of all parties interested in the residue of tbe estate, after the debts should have been paid, that these slaves, rather than lands, should be sold. He also represented that there .were debts against the estate still due and payable, a specific schedule of which he presented with his petition, amounting to $939 TO, and that there were not sufficient assets in his hands to pay the same: and that it was therefore necessary, either that lands or negroes should be sold, as the court might determine most proper. For proof of the necessity of an order of sale of one or the other species of property, to pay these debts, the petitioner referred to the records of the Probate Court, and to the papers of the estate on file therein, and stated that he had given notice, according to law, of his intended application at that term of the court, by public advertisement, a copy of which he presented with his petition, and prayed for an order of court accordingly.

In this schedule of outstanding debts, was a claim of Lidia Baldwin, the widow of the intestate, for the sum of $925 15, which had been decreed to her for dower in the personal estate, other than slaves, on the chancery side of the Circuit Court of Pulaski county.

Bichard Fletcher, as guardian of the minor heirs of the intestate, appeared and objected to the application, alleging in substance :

1. That the assets in the hands of the petitioner were more than sufficient to pay the debts.

2. That the petitioner had not sold all the personal property of the estate, other than slaves.

3. That petitioner had not rendered a true account of his administration, exhibiting the precise amount of assets remaining in his hands. That he had not charged himself with the rent of lands, and had charged himself with only a part of the hire of the negroes. That the rent of land amounted to $175 50, as appeared by the proceedings in the chancery cause for dower, and the hire of negroes to $252.

4. That the petitioner had not exhibited with his' petition a statement of the assets in his hands to pay debts.

5. That lands and slaves remaining after the assignment of dower are not subject to be sold to pay'the decree for dower in the personal estate, other than slaves.

6. That this decree for dower is not a debt' due by the estate.

7. That a sale of lands or slaves for the payment of debts, can only be made for such debts as were created previous to the death of the intestate, and for expenses of administration.

Upon the hearing in the Probate Court, the petitioner, after proving the publication of notice of his intended application, read the decree of the Chancellor against the estate for "the widow’s dower, which, among other things, directed “ the said Stinson "Wells, as administrator of the estate of Buford Baldwin, deceased, to forthwith pay and deliver unto the said complainant, (Lidia Baldwin,) the said sum of nine hundred and twenty-five dollars and fifteen cents, out of the assets of said estate, now on hand, or to come tó his hands as such administrator;” and decreeing that he should pay all the costs out of said assets.

A number of the papers relating to the administration on file in the court, were also read in evidence, consisting of the inventories, appraisements and, accounts that had been settled and filed, and the administrator himself, was, at the instance of Fletcher, examined on oath; from all of which, it substantially appeared that at the last settlement there was a balance against the administrator of $ 2244 73

Deducting from which the appraised value of the slaves, • 1900 00

Left the true nominal balance in his hands of 344 73

Which does not appear to have been realized in money, but apparently remained in various debts due the estate.

To this balance of $344 73, add negro hire, as found by the chancery court, the sum of $250, less $100 charged in administrator’s account, 152 00

Bent of land as found in tbe chancery court, (tbe sum not being definitely stated in tbe administrator’s account,) 178 50

. Balance, $ 675 23

It would make tbe total amount of assets remaining, upon tbe supposition that all tbe debts due to tbe estate should be realized, this balance o-f $675 23.

Tbe Probate Court being satisfied from an examination of all these matters that tbe assets remaining in tbe bands of tbe administrator, were insufficient to pay off tbe debts, overruled all tbe objections made by tbe guardian, and ordered a sale of tbe negroes on a credit of twelve months; to which Fletcher took a bill of exceptions and appealed to tbe Circuit Court. That court finding error in tbe proceedings and judgment of tbe Probate •court, set aside and vacated tbe latter, and bearing tbe case, do novo, refused tbe prayer of tbe petitioner, and be appealed to this court.

In what these errors, so' found by the Circuit Court consisted, we are not advised.

In our opinion, so far from the record showing that tbe Probate Court erred as to tbe matter of fact, whether or ■ not there was a necessity to order a sale of either tbe real estate or tbe slaves, it amply sustains that finding. In point of law, every atom of tbe remaining property of tbe estate, both real and personal, was subject to tbe payment of tbe decree for tbe $925 in favor of tbe widow. It was in lieu of what bad been taken away from her by tbe administrator, wrongfully, and applied in tbe course of administration to liabilities against tbe estate generally. Her rights, in point of law, were absolute, and paramount to any rights of creditors of tbe estate. If, at tbe expense of these rights of- hers, tbe estate bad been relieved of liabilities, she bad tbe highest degree of equity to be reimbursed out of what remained of tbe estate, and which bad been thus preserved by tbe use of means that were both legally and equitably hers.

Nor was there any ground of reason or equity, upon which to insist that she should wait the slow proces of accruing rents and hires, to pay off the sum decreed to her by the Chancellor. A creditor of the estate could not have been rightfully subjected to such delay. Much more should she not be delayed for this, whose rights were prior, absolute and paramount.

Some of the objections urged by Fletcher, which seem to point to the mode of proceeding prescribed by the statute for the sale of real estate, would have some appearance of plausibility, if this had been a decree for the sale of real estate, instead of slaves as it was.

We think there is nothing in the record to show that the Probate Court, in this case, erred either in law or in fact. And if it had done so, when the Circuit Court undertook to try the case, de novo, the evidence offered by the administrator, to show that, in the interval between his last settlement (which showed the apparent balance of assets in his hands at the sum' of $344 73,) and the day of the filing of his petition, he had paid, (as he had vouchers to show,) the further sum of $197 09 towards debts duly allowed and classed against the estate, ought not to have been rejected, as it appears by the bill of exceptions it was; because that evidence went to the vital question in the case, whether or not there was a necessity to order a sale of property for the payment of the claims against the estate.

The judgment of the Circuit Court will be reversed, and the cause remanded, with instructions to affirm the judgment of the Probate Court, and certify the same to the latter court, that another day may be therein appointed for the sale, that already fixed having passed.


source: Caselaw Access Project

license: Public Domain

text:
    Green as Guardian vs. Ford adx.
    The terms and subject matter of a submission to arbitration, when not in writing, and not shown by other evidence, can only be gathered from the award and what may be shown to have followed: And where the award is of the widow’s claims for dower in the personal estate of her deceased husband, and under sec. 51, chap. 4, Digest, the court will not conclude that any other claims, not of the nature of dower, were included in the submission.
    It is within the legal discretion of the Probate Court, which ought not to be controlled unless shown to have been used to manifest injustice, (Bcmkhead vs. Hubbard et al, 14 Ark. 298,) to allow the widow a certain sum, by way of commutation, for the provisions, &c., on hand at the death of her husband, where they have been used by the administrator instead of having been delivered to the widow under sec. 56, chap. 4, Digest.

    An appeal cannot be taken from the judgment of the Probate Court, allowing a claim against an estate, after the expiration, of the term. (McMorm vs. Overholt, 14. Ark. 245.)

      Appeal from, Phillips Circuit Court.

    Hon. OhaRles W. Adams, Circuit Judge.
    Palmer, and WatKins & Gallagher, for appellant.
   Mr. Justice Scott

delivered tbe opinion of the Court.

This case originated in the Probate Court of Phillips county. The administratrix having filed a stated account for settlement, the 7th November, 1853, and the usual notice having been given, the guardian came in and filed exceptions to the whole account; but insists upon objections to but two items. And it is as to these two items that the whole controversy in this case has arisen.

One of them thus appears in the stated account, to wit: “And the said Margaret Ford claims to have allowed to her the sum of one hundred and fifty dollars for a commutation for the first year’s provisions, which she should have collected to her under the intent of the statute in such cases, because she was the wife of the deceased at the time of his death, for the support of herself and the children of deceased the first year after his death $150 00.”

The other appears in the same account, thus, to wit: “ For amount paid Margaret Ford, voucher 16, $229 95.”

Voucher 16 is as follows, and is thus supported, to wit:

“ Received of Margaret Ford, as administratrix of John B. Ford, deceased, the sum of two hundred and twenty nine (229) dollars and 95 cents, in full for an allowance in my favor against Ford’s estate, by the Court of Probate of Phillips county, Arkansas, at April Term, 1853.

MAEGAEET FOED.”

May 11th, 1853.

The Estate of John B. Ford,

May 6th, 1853. To Maegaeet Foed,

For cash borrowed by said John B. Ford, deceased, in his lifetime, from said Margaret, on the 25th of December, 1850, as the same is entered on his cash book of that day, $148 00

For cash borrowed by him on the 3d day of March, 1851, as the same is entered on his cash book of that date. $89 50

$237 50.

Credit.

By cash paid on the above account March 3d, 1851, as entered on his cash book, $7 55

Balance due at his death, $229 95.”

“STATE OF AEKANSAS,

CouNty oe Phillips.

I, Margaret Ford, do solemnly swear that nothing has been paid or delivered towards the satisfaction of the above demand, except what is credited thereon, and that the sum of two hundred and twenty-nine dollars and ninety-five cents, above demanded, is justly due to me.

MARGAEET FORD.

Sworn to and subscribed before me, an acting justice of tbe peace within the State aforesaid on the 11th day of May, A. D., 1853.

BENJ. F. BALL, J. P

Probate Court for said county, April term, 1853.

This day appeared in open court, Benedict J. Knott, who being legally sworn, on his oath says, that the book produced by him is the cash book of John B. Ford, deceased, and has at all times been so regarded since his death.

B. J. KNOTT.

Sworn to and subscribed in open court, May 11th, 1853.

EDW. H. COWLEY, Clerk.”

“ The foregoing claim being proven in open court, is allowed and classed in the fifth class — April term, 1853.

A. G. UNDEKWOOD, Judge.”

“Now, on this day comes Margaret Ford, by her attorney, and files a claim against the estate of John B. Ford, deceased, founded on an open account for a balance of two hundred and twenty-nine dollars and ninety-five cents, accompanied by her affidavit as required by law, and also the affidavit of B. J. Knott; and thereupon said claim is presented to the court for allowance, and the court being satisfied from the affidavit of said Knott, that the book produced by him was the cash book of the deceased ; and also being satisfied from testimony of Arthur Thompson, that said John B. Ford was a regular merchant, and had the reputation of keeping correct books in his lifetime; and further that the entries therein are the genuine handwriting of the said Ford made, by himself; and being fully satisfied from all the evidence adduced that said claim is just and unsatisfied, do allow the same for the said sum of two hundred and twenty-nine dollars and ninety-five cents, and class it in the fifth class against said estate.”

It is insisted that the administratrix is precluded from setting up either of these two items by an arbitration ánd award, between herself as the widow, and the appellant then administrator of the estate of .Ford, which by agreement was entered in the Probate Court, at the April term, 1852, as the judgment and decree of that court.

It appears from the transcripts of the records in that court, that the appellee filed a very comprehensive petition for dower, embracing, specifically, lands, personal property, money, rents, certain choses in action and sales of merchandize made after the death of her husband, both for cash and on credit, together with application for $150, under the provisions of the 57th section of the administration law, and a commutation for such grain, meats, vegetables, groceries and other provisions as the inventory showed was on hand at the time of her husband’s death, necessary for the subsistence of herself and family for twelve months after the death of her husband, under the provisions of the 56th section. And also prayed to be allowed out of the estate the amount of the claim for $229 95, alleged to be for ready money loaned to her husband during the coverture.

The court with a liberal hand decreed to her all she asked, but the then administrator took a bill of exceptions and appealed to the Circuit Court. It does not however appear that this appeal was ever prosecuted; on the contrary, it is to be inferred that the arbitration at once intervened and put a stop to it. Nor does it appear with certainty what was submitted to arbitration. That is to say, whether only the matters in dispute in 'reference to dower, or the whole of the matters embraced in the petition and decree. All that appears in the record, throwing any light upon this point, is the following, to wit:

“ Margaret Ford vs. The estate of John B. Ford, deceased. APPLICATION IN THE PROBATE CouET EOE THE ALLOTMENT OE DOWEE in the estate oe decedent — The result of my investigation into the case above stated, is, that the decree of the Probate Court as entered of record is wrong, and should have been as follows, as far as it pertains to the allotment of dower in the personalty. I therefore reform the decree as follows, and hope that the parties will be satisfied with the allotment which I make below, believing it equitable and legally correct, to wit:

1st. The widow is entitled to dower to the extent of ■§■ of the cash on hand at decedent’s death, say $521, $173 33i

2d. ■JjOf the value of the watch, say $80, 10 00

3d. of the cash sales since the death of Ford, say $201 66, 67 22

4th. of proceeds of credit sales of goods in same • time, $1387 38, 461 12

5th. of the goods now on hand, say $1601 07 533 69

6th. of rents of storehouse, say $95, 31 60f

7th. The sum allowed by statute over and above dower, 150 00

$1427 03

Fi’om this sum should be deducted the amount of the account in favor of estate against the widow since the death $203 62

The amount for which the decree should be, is $1223 41.

"Which amount should be recorded in favor of the widow, to be paid before any other allowance.

The lands I have not taken into the above estimate. The court should have directed the commissioners appointed, to have ascertained whether the lands and house could have been divided in kind, and if it should turn out that such could not be done, then, in that case, the court should have directed that the lands and the house be rented out, and the one third part of the amount arising therefrom, after paying the taxes and the amount expended necessary to. keep the same in good repair, to be given to the widow as her dower interest therein.

THOMAS B. HANLY.

May mh, 1852.”

In the matter of the assignment of dower to Margaret Ford, widow of the late John B. Ford, deceased,- it is agreed by and between Barton W. Green, as the administrator of the estate of John B. Ford, deceased, and Margaret Ford, widow of the said John B. Ford, that they will abide by the foregoing allotment and apportionment of dower, (made by T. B. Hanly, who was called upon by the parties as arbitrator, and the mutual friend of the parties, and at the instance and request of the said parties.) And we agree that the same be and remain as a full and final allowance made to the said Margaret out of the personal estate of the said John B. Ford, deceased, as her dower interest and other right therein, as above stated and shown ; and the said Margaret agrees that this shall be received and accepted by her in full of her right of dower in the personal property belonging to said estate, and agrees hereby that a decree may be entered accordingly, in the Probate Court of Phillips county, in lieu and in the place of the one heretofore entered by said court in her behalf.

In witness whereof, we, the said parties hereunto set our hands and seals this 22d day of May, A. D.; 1852.

B. W. GBEEN, [seal.]

MxlBGABET FORD, [seal.]

In the above agreement the fourth item is not to be paid until the amount of the credit sales is realized and collected, and if any loss is sustained therein, the loss shall be computed at the same rates as the parties are interested.

MABGAEET FORD, [seal.]

B. W. GREEN, [seal.]

Received on the above, seven hundred and sixty-two dollars and twenty-nine cents, in part payment of the above allotment of dower in the personal estate of John B. Ford, deceased, this 22d day of May, 1852.

MARGARET FORD.

Attest :

Geobge "W. BubRiss.”

It is stated in the bill of exceptions that this award was entered as the judgment and decree of the Probate Court.

As the submission, which is always the law of each particular case submitted to arbitration, docs not, in this case, appear to have been in writing, it is to be supposed* that it was by parol: and this is indicated in the case also from what follows the award, over the signature of the parties. When this is the case, the terms and subject matter of the submission, when not shown by other evidence, as in this case, can only be gathered from the award, and what ma3r be shown to have followed. The award is simply as to dower, and “ the sum allowed by statute, over and above dower, $150,” seeming' to pomt to the 57th section of the administration law, where that specific sum is allowed the widow in property, at the appraised value, when the estate is not insolvent, as was alleged and seemed to be admitted in the proceedings of the Probate Court in this case. Digest, chapter 4, page 121, section 57. The agreement, which follows the Laward in all its terms of expression, seems to follow it with the utmost closeness, alluding to nothing fiut dower, except in the single expression, “ and other interest therein as above stated,” whereby the other interest in the personal property thereby spoken of, is expressly limited to the claim of $150, under the 57th section of the administration law, as stated in the award.

There is nothing to indicate with any certainty that the submission was more comprehensive than this.

Although the administrator was dissatisfied with the decree of .the court, it may have been that that the special matters of dissatisfaction were as to doioer, and this particular allowance over and above dower, and hence that he submitted nothing else to arbitration.

It is very true that the decision of an arbitrator, though apparently on a single point, may, in effect, be on more than one, as the judgment on that may be a negation as to others. As in this case, the award of dower in the various items of money, rents, sales of merchandize, &c., &c., specifically, is a negation as to allowance of dower in any thing else — as dower in the county scrip for instance- — -but an award of dower is no negation of a claim over and above, and not of the nature of dower / nor is an award of one claim, not included in dower, any negation of any other distinct claim, as for instance, a claim of a debt against the estate, or under a different provision of the statute.

It is difficult to say, then, from any thing upon the face of this record, that it has been shown, that any thing else than the matter of dower and the matter of the claim under the 57th section of the administration law, was ever submitted or arbitrated. And it was incumbent upon the guardian setting up the contrary, to show it in proof. And it cannot be maintained that matters not submitted to arbitration, can be affected by an award as to such matters, only, as were submitted.

There is another view in which this point may be regarded. The chief object of the common law, in setting on foot and sustaining arbitrations and awards, was to settle controversies and terminate litigation; hence, that law does not countenance, in general, awards that are only ofjoarael of the things submitted to arbitration, and will always disregard such awards if apparently injurious to the party taking exceptions to them. 7 East 81; Kyd on Awards 175; 7 Cranch Rep. 171.

Within the reason of this rule, it might, therefore, be a matter of difficulty to uphold the award in this case, if it should be true, as is contended, that not only the matters to which it relates, but also the two other distinct matters embraced by the exceptions to the settlement in this case, were also submitted to the arbitration.

In either view, therefore, we see what seems to be sufficient reason to hold that the defence upon this point has not been made out.

It follows that the Probate Court might, therefore, have considered the application for commutation, under the 56th section of the statute, without prejudice from the arbitration, and in its legal discretion in the premises, which ought not tobe controlled, unless shown to have been abused, to manifest injustice, (Bankhead vs. Hubbard et al., 14 Ark. Rep. 298,) allowed the claim to the extent it did — -finding, it is to be presumed, in the absence of any thing in the record to the contrary, from an inspection of the inventory, and from other evidence, that grain, meats, vegetables, groceries and other provisions were actually on hand at the death of the intestate, and had been taken by the administrator, instead of being given up to the widow for the subsistence of the family for twelve months thereafter.

The other item does not seem, upon the face of this record, to stand upon any such meritorious ground; although it was entitled to be considered by the Probate Court, to a like extent, unprejudiced by the award. Because, to say the least of it, as it is presented in this record, it must be considered a very remarkaable claim, alleged, as it is, to have originated in an alleged contract., made during coverture, between a wife and a husband in respect of money apparently not shown to be other than the husband’s own in point of law. But we design to decide nothing as to this, as we properly cannot; because, no question as to that point can come up in this collateral way in the case before us. The Probate Court having allowed this claim at the April term, 1853, and no appeal having been taken from that judgment of -allowance, all inquiry is now shut out, (McMoran vs. Overholt, 14 Ark. Rep. 245,) from all, except the chancellor, upon proper allegations to him as to this judgment of allowance; and, consequently, this judgment, as long as it stands, sustains unavoidably, the item in the account excepted to, that remained to be passed upon by us.

It is our opinion, therefore, upon the whole case, that the judgment of the Circuit Court affirming that of the Probate Court, must unavoidably be affirmed by this court.


text:
    Kowanachi vs. Askew as ad.
    A party, who calls Ms adversary as a witness, under section 108, chap. 95, Digest, has up right to he sworn as a witness himself, unless his adversary refuse to testify.
    Pleas to the merits are a waiver of the necessity of proving the representative character of the plaintiff, in a suit by an administrator.

      Appeal from Qohmibia Owcuit Cowrt.

    Hon. SheltoN WatsoN, Circuit Judge.
    J. H. CakletoN, for appellant.
   Mr. Justice Scott

delivered tbe opinion of tbe Court.

Tbis cause was tried, de novo, in tbe Circuit Court of Columbia county, on appeal from a justice of tbe peace. Tbe style of tbe suit, as well as all tbe proceedings in tbe Circuit Court, indicate distinctly, that tbe plaintiff below sought a recovery in bis representative character.

Tbe defendant below interposed tbe pleas of tbe general issue, payment and set-off, in short upon tbe record, by consent; on which, in like manner, issues were formed and submitted to tbe court sitting as a jury.

It appears by tbe bill of exceptions, taken to the overruling of a motion for a new trial, that after tbe. plaintiff below bad read tbe note sued on, which was payable to tbe order of E. ~W. Christian, and bad never been endorsed by him, and the defendant bad read tbe credits endorsed thereon, and bad introduced tbe plaintiff as a witness, to prove tbe further payment of fifteen dollars, “ who answered that be knew nothing about it,” tbe defendant then moved the court to be allowed to be sworn and testify himself in relation to tbe fifteen dollars, which tbe court, refused, and the defendant excepted.

No further evidence having been introduced by either party, the court found $25 83 debt, and $2 89 damages for the plaintiff, and rendered judgment against the defendant accordingly.

The defendant then moved for a new trial upon the grounds:

1st. That the court had erred in refusing his motion to be allowed to testify as to the $15.

2d. Because no evidence had been produced by the plaintiff to show either the death of his alleged intestate, E. W. Christian, or the grant of letters of administration upon his estate to the plaintiff.

The court overruled the motion, and the defendant excepted and appealed to this court.

Our statute does not adopt the alleged rule of the civil law, “that if a person alleges another to be his debtor, and refers it to the oath of the debtor, he, (the debtor,) will be obliged to swear he owes him nothing; and if he refuses, it will be taken as true, and the debtor condemned to pay the debt;” but enacts, that if a party required to testify under its provisions, (Digest, chap. 95, sec. 108, p. 656,) refuse to do so, “the justice shall allow the party offering the demand or set-off) to be sworn and examined in relation to the same matter.”

In this case, so far from the party required to testify having refused, he seems to have been sworn and interrogated.

The other ground was equally untenable, because the matter insisted upon, had been waived by the’ pleas to the merits interposed.

The judgment of the Circuit Court will be affirmed with ten per cent, damages.


text:
    Pike et al. vs. Fraser & Co.
    The breach, in a declaration in debt, that the defendant had not paid the plaintiff, “or any other person "whomsoever,” is not objectionable as too broad.
    Every intendment must bo taken against the pleader; and so, a plea, that the consideration of the note sued upon was, that the plaintiffs "would pay off certain bills of exchange drawn by the defendants, averring non-payment, but failing to allege that the time fixed by the contract for payment had arrived — held insufficient.

      Appeal from Monroe Circuit Court.

    Hon; Chaeles W. Adams, Circuit Judge.
    Fowler & Stillwell, for tbe appellants.
    Pike & OohMINS, contra.
   Mr. Justice Scott

delivered the opinion of tbe Court.

This was an action of debt in tbe Monroe Circuit Court, on a. promissory note, for $2811 85, made by appellants, payable to appellees or bearer, three days after tbe fifteenth day of June, 1852. Tbe declaration is in tbe usual form down to tbe breach, where it is said that tbe money bad not been paid to tbe plaintiffs, “nor to any other person whomsoever.”

Defendants interposed five pleas;

1. That tbe note was given on tbe consideration that the defendants bad drawn certain bills (describing them,) which tbe plaintiffs undertook to pay- at maturity. But when tbe bills matured, tbe plaintiffs failed to pay any part of them, and tbe defendants bad been compelled to pay a part of them, and bad been sued on tbe others; wherefore, tbe consideration bad failed.

2. “ That said promissory note in tbe said plaintiffs’ declaration mentioned was made, executed and delivered to tbe said-plaintiffs, in consideration that they would pay off and discharge certain bills of exchange before that time drawn by the said defendants; and the said defendants, in fact say, that the said plaintiffs, nor either of them, did, or would, after the execution of the said note, pay, liquidate or discharge said bills, or either of them, in manner aforesaid, or otherwise howsoever, but the said bills of exchange, and each of them, still remain subsisting demands against the said defendants, to wit: at the county aforesaid, and this the defendants are ready to verify,” &c.

3. No consideration.

4. Nil debet.

5. Payment.

Issues were formed on all except' the second plea, and tried by the court sitting as a jury, upon evidence introduced on both sides. Yerdict was found for the plaintiffs below, for the sum of $2811 85 debt, and $423 46 damages, and judgment rendered accordingly. The defendants excepted, generally, to the verdict and judgment, and took a bill of exceptions setting out all the testimony; but did not move for a new trial, nor in anj1' other wise save any question of law in relation to these issues, in the progress of the case, nor as to the finding and judgment of the court upon their determination. State Bank vs. Conway, 13 Ark. Rep. 344.

To the second plea set out above, the plaintiffs below interposed a demurrer, which the court sustained. The only question in the case is, therefore, as to the action of the Circuit Court upon this demurrer.

The counsel for the appellants say nothing in favor of this plea, but as the demurrer runs back to the declaration, object that the breach is too wide, in the negation that the money declared for had not been paid by the defendants below, to the plaintiff, nor to “any other person whomsoever.” We think there is nothing in this objection. We think, too, that the plea was bad. It was not sufficiently certain. No certain issue could be formed upon it. It may be admitted to be true, and yet the plaintiffs below may not have broken their contract to pay the bills. They might not have matured, or otherwise the time for payment, as fixed by their contract, might not have arrived; and every intendment must be taken against the pleader.

Finding no error, the judgment of the court below will be affirmed, and five per cent, damages will be awarded in this court upon the sum recovered in the Circuit Court.


text:
    Bowman vs. Browning.
    ■Where the defendant is sued for the value of cotton shipped by him under a contract, the plaintiff must prove a stipulation to carry the cotton to some place, or deliver it to some person, or dispose of it in some manner, and a breach of such stipulation.
    Where a person has tortiously obtained the possession of the goods of another, and sold them and received the proceeds, the owner may elect to waive the tort, and affirm the sale and claim the prico received; but for a mere detention of the goods, in such case, or a conversion of them, assumpsit will not lie to recover their value.

      Appeal from the Circuit Gowrt of St. Framois County.

    S. W. WiiliaMs, for appellant.
    Byers and Jordan, for appellee.
    This cause was argued in this court before the Hon. C. C. Soott, Judge, and the Hon. Thomas Johnson, Special Judge— the Hon. E. H. English, Chief Justice, and Hon. T. B. Hanly, Judge, not sitting.
   Mr. Justice Scott

delivered tbe opinion of the Court.

This case was brought here by appeal from the St. Francis Circuit Court.

It was commenced before a justice of the peace, upon an open account, as follows, to wit:

“Mat 9th, 1853.

THOMAS E. BOWMAN,

To EdmoNd A. IT. BeowNINg, Dr.

Eor one bale of cotton, marked A. J. B., weighing in lint cotton 440 lbs., at 10c per pound, $44 00

Eor one bale cotton marked A. J. B. weighing 354 lbs., at 10c per pound, 35 40

$19 40 ”

Upon a trial before the justice, judgment was rendered for the plaintiff, for the sum claimed; from which the defendant appealed to the Circuit Court, where, upon a trial, de novo, the jury found a verdict, and the court overruling a motion in airest, upon the ground that the case made out by the testimony, was not one within the jurisdiction of the justice, judgment was again rendered for the plaintiff for the same sum. The defendant then moved for a new trial, upon the ground that the verdict and judgment were without evidence to support them, and was against the law; and that the case was not within the jurisdiction of the justice, which the court overruled, and the defendant excepted, setting out all the evidence in his bill of exceptions, and appealed to this court.

Erom this it appears, that after the plaintiff had introduced evidence conducing to show, that at the date of the supposed accrual of the alleged liability, he had, on the bank of the St. Erancis river, at the burnt mill landing, two bales of cotton, marked, and of the weight as is specified in the bill of particulars, and that they, together with a large number of other bales of cotton, had been taken on board of a steam-boat, of which the defendant was, at that time, captain and owner, and had also proved the quality of his cotton, and the value of such, he introduced another witness, who testified, “that he, (the witness) some time previous to the taking of the cotton in controversy, as alleged, instructed Captain Bowman, the defendant, that there would be some cotton sent to the burnt mills landing for Browning, the plaintiff, and that he, (the witness,) as the agent of the plaintiff, wanted him, Bowm.an, to talte it away, but that he did not know when said cotton would be at the river for shipment. /That he, the witness, was afterwards told by Bowman, that he had taken a large lot of cotton from the burnt mills with various marks and brands, of which he took no memorandum, ‘and taking all the cotton then there, but that said lot of cotton was claimed by Johnson and Seaborn, and that he thought he got no cotton for Browning.”

This was all the testimony produced by the plaintiffs, and the defendant offered none at all.

It is stated in the bill of exceptions, that the court gave general instructions, but what these were does not appear, nor does it appear that any special instructions were either given or refused.

This being the whole case, as it appears in the record, it is impossible for us to know whether the jury found that the cotton in question was taken away under any supposed contract, or was merely tortiously taken away, or whether or not as to that point, any misdirection was given to them by the court. And supposing they found the former, then, waiving all other objections, tlio verdict and judgment are clearly without any support, by the evidence, in material points; because there is none at all to show any stipulation to carry the cotton in question to any place, or to deliver it to any person, or to dispose of it in any manner, or any breach of any such stipulations. The evidence going no further, as to any supposed contract, than that the defendant should take the cotton away, without any evidence to show further whither it should be taken, or to whom to be delivered, if to any one, or whether the defendant had been called to account, or had in any way broken the supposed contract, or any of its stipulations.

And if it be supposed that the jury found that the cotton was taken away under any contract, it will have to be considered that they disregarded so much of the evidence produced by the plaintiff himself as conduced to show that the defendant did not, in fact, take the cotton away, as the cotton of plaintiff, but as the cotton of Johnson and Seaborn, under authority from them, and therefore did not, in truth, in doing so, act under any axrthority from the plaintiff, or recognize any such, as an excuse for what vrould be otherwise a naked tort.

On the other hand, if it be supposed that the jury found the cotton tortiously taken away by the defendant, then it is equally clear, that the verdict and judgment cannot be sustained; because, the extent of the rule of waiving torts and bringing as-sumpsit, is not (as between the original parties,) beyond the limit, that if the wrong doer has sold the goods, and in any manner received the proceeds, so as to be chargeable as for money, the owner may elect to affirm such sale or disposition, and claim as his own the price so received. His title to the property entitling him to the price received for it, if he so elects, and, thus the wrong doer is considered as having received the money for the use of the owner.

But if there has been a mere detention of the goods, or a conversion of them, not going the length indicated, assumpsit will not lie to recover their- value. James vs. Hoar, 5 Pick. 285; Pritchard vs. Ford, 1 J. J. Marsh. Rep. 543; Wellitt vs. Wellitt, 3 Watts Rep. 277; Upchurch vs. Norsworthy, 15 Ala. Rep. 705; Crow vs. Boyd’s adm. 17 Ala. Rep. 51.

The judgment must be reversed and the cause remanded.


author: Hon. Thomas JohNSON, Special Judge,

text:
    Seaborn vs. Sutherland.
    If a purchaser wishes to rescind a contract of sale, he must put the vendor, or offer to put him in the same situation he was in before the delivery of the property. And so, a plea, that the note sued on was for the purchase money of real estate to which the vendor had no title, must show a return of the property, or an offer to return it.
    A plea of fraud, generally, without stating- the facts constituting the fraud, is bad.
    And so is a plea charging fraud in the representations of the plaintiff in relation to the title to land, but failing to aver that the writing sued on was executed in consideration of such title, or that the plaintiff, in fact, had no title whatever.
    On an issue to the plea ofl “no consideration,” the plaintiff read in evidence his deed to the defendant for a tract of land, as the consideration of the note sued on; the defendant offered to read a deed from the Auditor for the same land, as having been forfeited to the State for non-payment of taxes, which was ruled out by the court: Held, That the defendant was not prejudiced by the action of the court, as the Auditor’s deed would not have shown a total want of consideration, the defendant having gone into possession under his purchase, and still retaining- it.

      Appeal from St. Francis Ci/rcuit Court.

    Action of debt upon a writing obligatory in tbe Circuit Court of St. Francis county, before Hon. Charles W. Adams, Circuit Judge.
    Tbe defendant filed four pleas:
    1. “That heretofore, to vrit: on or about the 12th day of March, 1853, at the county aforesaid, the said plaintiff represented to the said defendant that he was the owner in fee of the north-east quarter of section No. 28, in township No. 6 north, and of range No. 2 east, of the 5th principal meridian, situate in said county, and containing one hundred and sixty acres of land, and as such, had full right and authority in law, to grant, bargain and sell the same, assuring the said defendant then and there, that he0 the said plaintiff* had derived title to said tract of land through and under a sale for the non-payment of taxes, and that lie would take and receive from the said defendant, the sum of five hundred dollars, the first half to be due and payable 1st January, 1854, which is the writing sued on in this behalf, and the other to be due and payable the 1st January, 1855, and the said defendant avers that, relying on the assurances and representations of the said plaintiff in this behalf, agreed to close the contract for the purchase of said tract of land, on the terms aforesaid, and accordingly on said day, at the county aforesaid, did make, execute and deliver unto the said plaintiff, the writing sued on this behalf, and on the same day agreed to. receive from the said plaintiff and his wife, a deed for the said tract of land, containing only a special warrantee of the title of said land as to the said plaintiff, his wife and persons claiming the said land by, through, or. under them, or by either of them, and from all encumbrances done or suffered by them, or either of them; and the said defendant further avers, that had it not been for the said assurances on the part of the said plaintiff as to the regularity of his tax title to the land aforesaid, and the repeated and oft assorted declarations that he had title thereto, that the said defendant would never have consented to have taken or received from him a special warrantee deed as aforesaid, for said tract of land, but would have required a deed Moth full covenants as to seizure and title, or would have declined to have made the said purchase thereof from him. And the said defendant further avers, that a short time after the date of the said deed and the execution of the writing aforesaid, he was informed that the said tract of land had been forfeited to the State of Arkansas for the non-payment of taxes, some time anterior to his purchase thereof from the said plaintiffs, and that the same was, at that time, subject to donation by the Auditor, under the acts in such case made and provided, and thereupon, to save himself and his possession, the said defendant applied to the said Auditor, and obtained from him a donation deed for said tract of land; so that the said defendant, in fact, saith that the said plaintiff had not any right or title to sard tract of land at tbe time when the sale thereof was made to the said defendant by the said plaintiff, and when the representations aforesaid, respecting the same were so made, and that therefore, the said writing sued on in this behalf, is without any consideration, either good or valuable in law, and was obtained from the said defendant by the said plaintiff by his fraud aforesaid.
    2. That the said writing sued on in this behalf was obtained from him by the fraud of the said ^plaintiff, and without any consideration moving from the said plaintiff to the said defendant therefor.
    3. That the said writing in the said declaration mentioned was obtained from the said defendant by the said plaintiff' (and others in collusion with him) by fraud, device and misrepresentation, that is to say, by the said plaintiff (and others in collusion with him,) falsely and fraudulently representing to the said defendant that the said plaintiff was the owner in fee of the north-east quarter of section 28, township 6 north, range 2 east, of the 5th principal meridian, containing one hundred and sixty acres of land, and being situate in said county, and that said writing was executed in confidence in the representations, without any recourse to the records or examination into the title of the said plaintiff to said land, to wit: at the county aforesaid; wherefore the said defendant saith that the said writing in the declaration mentioned, was, and is void in law.
    4. That the said writing obligatory in the said plaintiff’s declaration set forth, was executed and made by him without any consideration whatever, to wit, at the time when, &c., at the county aforesaid.”
    Demurrer sustained to the 1st, 2d and 3d pleas — issue to the fourth — verdict and judgment for the plaintiff, and the defendant appealed.
    This cause was argued in this court before Mr. Justice Scott, and Hon. Thomas JohNSON, Special Judge; Hon. E. H. ENGlish, Chief Justice, and Hon. T. B. HaNly, Judge, not sitting.
    Williams & Williams, for appellant.
    Byers and JoedaN, for appellee.
   Hon. Thomas JohNSON, Special Judge,

delivered the opinion of the Court.

The court below decided correctly in sustaining the demurrer to the first three pleas .interposed by the defendant. The first was manifestly designed as a plea of fraud, and in case it did not present all the essential elements of such a defence, it was necessarily subject to a demurrer. Fraud was the very gist of the plea. If a purchaser wishes to rescind a contract of sale, he must put the vendor, or offer to put him in the same situation he was in before the delivery of the property. He will not be allowed to retain the property and protect himself against the payment of the purchase money. If he retain the property he cannot treat the contract as void for want of consideration upon the ground of fraud. The defence set up by this plea fails to allege that the defendant below returned, or offered to return the property. It would be unjust to permit the vendee to retain possession and enjoy the benefit of the property, and put his vendor at defiance. This plea, therefore, being one of want of title in the vendor, is no bar to the action; and, consequently, the demurrer to it was properly sustained. See Hynson et al. vs. Dunn, 5 Ark. Rep. 397; 4 Ark. Rep. 470, Sumner vs. Gray; and also, 2 Saunders Pl. 1st part, page 61.

The second plea is one of fraud generally. This is unquestionably bad. The party whose conduct is sought to be impeached, has an unquestionable right to be apprized of the facts which constitute the fraud, otherwise he might be taken by surprise on the trial. See same case of Hynson et al. vs. Dunn, 5 Ark. Rep. 397. The third is a plea of fraud, and is defective for the reasons given against the first, as well as others which do not apply to that. The third charges fraud in the representations made by the plaintiff in relation to the title to the land therein described, but wholly fails to charge that the writing in suit was executed in consideration of said title, or that the plaintiff in fact had no title whatever.,- The fourth is a plea of no consideration, generally, to which the plaintiff entered his replication, and upon which issue was taken. The parties then went to trial, and after the plaintiff had introduced the instrument sued upon, and the déed executed by himself and wife to the defendant, the defendant proposed to show that there was no title in the plaintiff at the time of the execution of said deed, and in order to do so, offered to read a deed from the Auditor of the State to himself for the' same land, which was objected to by the plaintiff, and excluded by the court. To this ruling the defendant excepted, and the point now presented is, whether such ruling was correct or not. There can be no doubt of the relevancy of the Auditor’s deed, as it conduced to prove a failure of title; and, consequently, that no consideration had passed between the parties, yet the defendant could not have been prejudiced by the action of the court in ruling it out, as, if admitted, it would not have shown a total want of consideration, as it was already in proof that the defendant had gone into possession under his purchase, and that he still retained the same down to the time of the trial. See Wheat vs. Dodson, 7 Eng. Rep. 711. Finding no error, the judgment of the court below is, consequently, affirmed.