author: Mr. Justice Scott

text:
    Price and Wife vs. Notrebe’s Heir and Exrs.
    In a proceeding’ in equity by tlie widow, against the heirs and executors of her deceased husband, for dower, an executor, who is a party to the record, liable to cost, and interested in freeing' himself from responsibility, and charging the estate in the hands of the heirs, is an incompetent witness for the complainant.
    There is no pretence for a bill of review, where the decree is in accordance with the whole scope and tenor of the original bill, in which there was no allegations upon which the decree prayed for in the bill of review, could have been based, and no discovery alleged of any new matter or evidence, which could not have been had when the original decree was passed.
    A bill of review cannot bo maintained upon allegations that the decree, on the origi-ginal bill, was entered without the assent of the complainant; or through the mistake, carelesness, or unfaithfulness of her solicitors:

      Nor for the failure of the court to decree to the complainant, on a bill for dower against the heir and executors, her dower on the rents and profits of her deceased husband’s real estate, and in the money on hand at his death, where the court had referred the question of such rents and profits to the master — the right claimed as to the money on hand being conceded in the answer, and not decreed against her. This court, in such case, will intend that the question, as to the money on hand, as well as the rents and profits, was rosorved by the court, in the original case, until the coming in of the report of tho master, and the final decree.

      Appeal from the Gvrcuit Court of Arkansas County in Chancery.

    The TIon. Thbodoeio F. Soeeells, Cirbuit Judge.
    Fowlee, for the appellant.
    The court below, we think, clearly erred in dismissing the bill of review, for whatever may be the evidence as to the new matter charged, or the law arising thereon, some of the errors pointed out by the bill as existing in the former decree, clearly ought to have been corrected. And, if so, to dismiss the bill, was erroneous. See 2 8m. Chan. Rep. 51, 56/ 4 Mon. Rep. 145/ 3 Cilm. Rep. 10/ 4 Hen. dé Munf. Rep. 244/ Story’s Eg. Plead., sec. 407, 420/ 10 B. Mon. Rep. 301.
    In the original bill, which is responded to by the pleadings, dower was claimed in the cash on hand at the testator’s death; and the decree do.es not give the complainant any part of it, although the answers admit that there was money on hand. See Ark. Digest, p. 448, sec. 20/ 5 Ark. Rep. 620.
    She was also clearly entitled to one-third of the rents and profits of the real estate, and of the hire of the slaves, from the death of her husband. See 1 Story’s Eg. Ju/r., sec. 512, 626, 625/ 2 Cond. Rep. 538/ 7 Crunch Rep. 2>10; 2 Bro. C. R. 631 to 634/ 4 John. Ch. Rep. 604/ 5 ib. 488/ 4 Kent Com. 69/ 4 Paige Ch. Rep. 99/ 6 ib. 479/ 10 Misso. Rep. 749.
    The rents and hire are not embraced in the decree, and if the court had any right, after the final decree, in which they were not mentioned, to direct the master to take an account of them, which the master never did, this forms no part of the decree, and the complainant’s rights can only be secured by such a bill as this, ashing the supplemental decree, as prayed for in this case. See 13 Pet, Pep. 462/ Cooper’s Eg. Plead. 305, 306.
    CuMMiNS, contra.
    The decree can only be according to the case made by the bill and the relief prayed. Eube’s Eg. Plead. 18, cmd note; 13 Arh. Pep. 187/ il. 94, cmd cases cited; Story’s Eg. Plead., sec. 41,42.
    In the original bill, one-third the nett profits and meóme is prayed, and no more could be given.
    The claim of dower in negroes and lands, necessarily involved the question as to the extent of her right.
    She could not split up her rights in a particular subject' — 'recover for part of a right, and then sue for residue. Story’s Eg. Plead., sec. 287/ 3 Cow. cmd Hill’s Notes, n. 588, p. 830, et seep; n. 590, p. 839, 840/ n. 592, p. 842/ n. 692, p. 965, 957, 966 et seg.

    All the facts in the case were known before and at the time of the decree — the party voluntarily took decree on the answers confessed. An amendment or supplement in such case would be a novelty. Story’s Eguity Plead, sec. 887, 890, 336, Sec., 338/ 4 Pcdge 130.
    There is no error in law, or newly discovered evidence, to warrant a bill of review. Story’s Eguity Plead., sec. 403, 407 and note; 411, 421 cmd notes; 422.
    The deposition of the executor ought to have been suppressed, because he was subject to personal decree for the whole claim Set up, and was liable for costs.
   Mr. Justice Scott

delivered the opinion of the Court.

This bill, as well as the original one, the proceedings in which are now sought to be reviewed, was filed by Mrs. Notrebe, as widow of Frederick Notrebe, deceased, against the executors and heirs at law of the latter. Mrs. Notrebe having afterwards intermarried with Price, he, therefore, was made a party complainant.

Tbe case presented on tbe original bill, was, tliat on the 23 d of October, 1843, Frederick Notrebe made bis last will and testament, whereby be devised one-balf of bis estate to bis wife, and tbe other to his son and grand - daughter. Tbe son having died in tbe lifetime of tbe father, the grand-daughter took under the will tbe share devised to him. In April, 1849, Hr. Notrebe died. On tbe seventeenth of June following, bis will having been probated, letters testamentary were issued, and tbe estate was taken in custody by tbe executors. On tbe 10th of September, 1850, the widow, by deed, which was recorded on the 10th of that month, released her right under the will, and proceeded, by bill, against tbe executors and heir at law, in tbe Circuit Court of Arkansas county, for dower: alleging all that was needful, with specific averments, as to all tbe varieties of property constituting the estate; and after avering that no sum of “money” had been paid her, as dower, proceeds to allege that she had often applied to tbe executors “to account with her, and pay to her the amount of one-third part of tbe nett income, proceeds and profits of the said estate accrued, due since tbe said Frederick’s death, and received by them, or either of them, and to let your oratrix into possession of the one - third part of tbe proceeds and profits of said estate and premises, and to assign and set out for your oratrix, a full third part of tbe said estate, as and for her dower therein,” charging refusal, and interrogating as to whether they had not “possessed themselves of all the real, personal and slave estate, moneys, goods, chattels and effects of the said Frederick Notrebe, deceased;” whether or not “large profits of said estates and premi- ■ ses” had come into their hands, and whether or not they had “refused to pay her one-third part of said profits,” &c., &c., and praying inventory of all estates, &c., and where, and in whose “custody, possession or power, the same have been since the death of F. Notrebe, and at what profit”' — -that she might be decreed dower in all of said estate, and an account be taken, and she “be let into possession, and the receipt of the profits of one - third part thereof, both accrued and to accrue,” and for a commission to assign dower to her, that she may hold the same in severalty, and for general relief.

All the defendants answered fully: the executors admitting that they were in possession of the-whole estate of every description, and setting out inventory of all; except, as they state, a large amount of plate and household stuff, which they had not inventoried, but suffered to remain in the hands of the complainant ; that they had paid the complainant various sums of money, which they name over, and that she had had the use of various slaves, which they specify, as well as of the mansion house, from the time of the death of the testator: that the plantations had been carried on as in the lifetime of the testator: state the amount of cotton made and sold, and the moneys arising therefrom, which they say was insufficient to supply and carry on the plantation : that some buildings in the Post of Arkansas had been rented out, and another small jfface in the country, the residue of the real estate being wild and unproductive lands.

No exceptions being taken to the answer, and replication having been filed thereto, and all the parties submitted the cause, it was heard at the October term, 1851, when commissioners were appointed, with plenary powers, to lay off' dower to the complainant, according to her prayer, instructing them to allow her to select such slaves as she might desire for her body and household servants, and deliver them to her immediately, estimating them at their real value, in the general division, and to report at the next term, when either party should have the right to raise any objection. Accordingly, the commissioners performed their dirties, and reported to the April term, 1852, as instructed, showing how they had divided the lands, slaves, stock, and other property, and recommended that the respective parties should not enter upon the respective parts of the estate allotted to each, until the ensuing first day of January, 1853.

At the October term, 1852, no objection having been interposed to the report of the commissioners, and all the parties appearing by their respective solicitors, the cause was again heard upon the bill, answer, replication and report of the commissioners, and confirming the same, the court decreed the complainant, in due form, dower estate in severalty in the lands, slaves, mules, horses, osen, and silver plate, and that she should enter upon, and take possession of the same, on the 1st of Jauuary next following, and also decreed “That William Kefeld should be appointed master, and be required, by the next term of that court, to make and state an account of the income and profits of the property of Notrebo, from the time of his death to the 1st day of January, 1853, and to deduct therefrom all taxes, outlays and expenses in respect thereof, and exhibit the balance ; and what is the one-third of such nett profits, after all expenses are deducted.

Whether or not the master ever performed this duty, does not appear from the record. It appears, however, that at the term to which he should have reported, the bill, on which these proceedings before us are founded, was filed. In which, after setting out at full length, all the proceedings, which we have substantially set out above, and alleging some unimportant matters of no relevancy, and which are fully denied by the answer of Morton and wife, and wholly unsustained by the record, the complainant proceeds to allege, that she was aggrieved by the decree, and ought not to be bound by it, for the following reasons, specifically assigned, to wit:

1st. Because it does not give her one - third of the money on hand at the death of her husband.

2d. Because it does not give her one - third of the rent’ of the town property at the Post of Arkansas.

3d. Because it does not give her the hire of the slaves, and the rent of the land, which were assigned do her for dower, from the death of her husband up to the 1st January, 1853.

4th. Because said decree was made without her assent, and through mistake and oversight of her solicitors. That it was the result of haste and surprise, and was entered without replication and without ever being read to the court; that neither the complainant nor ber solicitor, was apprized of tbe defects, imperfection and incompleteness of said decree, until some weeks subsequent to tbe adjournment of tbe court.

5tb. Because, by it, tbe complainant is restricted to one-tbird part of tbe mere income and profits of tbe plantation, and does not, as it should, give ber tbe value of tbe hire of ber negroes and rent of ber lands.

And after tbe statement of some other irrelevant and unimportant matters, tbe bill Concludes with a prayer that tbe proceedings aforesaid should be reviewed, added to, altered and annulled, and tbe defendants be made to account with tbe complainant for tbe moneys on hand at tbe time of tbe death of ber late husband, and pay over to ber one-tbird part; and also, account for the rent of the town property, and give ber tbe one-tbird part; and for tbe reasonable hire of tbe slaves and rents of the land assigned to ber as dower, from said death, up to tbe 1st January, 1853, and for general relief.

The executors failed to appear, and a decree, pro confesso, was taken as to them; but Morton and wife answered tbe bill very fully, denying emphatically many charges in tbe bill, which we have not thought it at all necessary to notice, in stating its purport, since they were, as we have said irrelevant and immaterial, and totally unsustained by tbe record; and, therefore, we shall state such portions of bis answer only as relates to tbe matters complained of in tbe purport of tbe bill, as we have set it out above.

As to tbe complaint that tbe decree does not give tbe complainant one-tbird part of tbe money on band at tbe death of Mr. No-trebe, be answers that the answer of tbe executors to tbe original bill, discovers tbe sum on band at that time, and that tbe complainant’s claim to dower therein, was fully admitted by all the defendants, and that, by agreement, T. Farrelly was to pay com‘plainant ber one - third part thereof. That be still fully admits ber rights as to this money, but that none of it ever came into respondent’s bands. And be submits that, inasmuch as ber rights on this point were fully admitted by the pleadings, no new bill was necessary; but that the enlargement of the reference to the master, already pending, was amply sufficient, respondent being perfectly willing, as he has always been, that she shall have the one - third part of this money, either under the agreement aforesaid, or in any way otherwise. And as to the rents of the town property at the Post of Arkansas, he answered that he had been informed, and believed, that that was likewise intentionally kept out of the reference by both parties, to be also settled by Col. Farrelly, who knew all about the matter; the amount being very small after deducting taxes and expenses, not being of sufficient inmortalice to be worth the expense of a reference: complainant’s right to the one-third part thereof, having been, by said pleadings, and otherwise, always admitted. And as to the charge in reference to the decree, he answered that if it was meant by the bill to charge, or intimate that said decree was entered in the present form,- without the knowledge and assent of complainant’s solicitors, duly employed in the cause, it was simply false. If it was intended to charge or insinuate that any concealment or undue advantage, on the part of respondents, or their solicitor, was exerted, in any respect, it was wholly false; and they averred the truth-to be, that the decree and orders were drawn up and submitted to the complainant’s solicitor, who read and fully understood them at the time, and if any of the orders were notread in court, it was simply because they had been read and approved by solicitors of both sides. And if complainant’s solicitor has since discovered the omission in regard to the moneys on hand at the death of Mr. Notrebe, and the rents of the houses at the Post of Arkansas, it is simply because he has forgotten the understanding at-the time, and the reason for the same.

"With regard to the complaint, that the decree did not give complainant the hire of the negroes and rent of the land, which were assigned to her for dower, from the death of Mr. Notrebe up to the 1st of January, 1853, and restricted her to one-third part of the nett profits of the plantation and estate, the respondents answered, that complainant bad never claimed in any otherwise, and under her bill was entitled to no other decree in that regard, than that made. -And if the executors were bound to rent out the lands and hire out the negroes, and did not do so, and the value of complainant’s dower was diminished thereby, that might be the foundation of an individual claim of complainants on them, in respect of such dereliction, but no ground for a charge on her part against the estate. That from the first, she knew the course of management of the executors, and acquiesced in it; and was, therefore, estopped to set up such a claim. That, in truth, said lands could not have been rented out for much, if any thing; and said negroes, if hired out, would have greatly jeopardised the interest of all concerned in the estate. And insisting that the proceedings already had are binding upon all the parties thereto, and conclusive as to all matters embraced; and that all the relief claimed, to which complainants are entitled, can l)e rightfully obtained by a mere extension of the reference to the master, now pending, if complainants persist in rejecting the agreement aforesaid, to receive the money from Col. Farrelly, without troubling the court with the matter, and harassing respondents so unnecessarily, the respondents demur to said bill of review and supplement, and submit that complainants have not made such a case as entitle her to. the relief prayed, or any part thereof, or any relief whatsoever.

Replication was put in to this answer, and leave given to take depositions. And also, leave against objection of Morton, to take the deposition of the executors. Under this latter order, the deposition of Terence Farrelly was taken, which was afterwards suppressed, and properly so: hé being incompetent by reason of his being one of the parties to the record liable for costs, and interested in freeing himself from liability to the complainant, and casting the same upon the heirs. Pryor et al. vs. Ryburn, January Term, 1856. The proof introduced by the other depositions, go to show the value of rent of land and hire of negroes, allotted to Mrs. Notrebe for dower, from the death of her husband up to the 1st January, 1853. That the Notrebe plantation was a very uncertain one, in consequence of liability to overflow; that it was actually overflowed three years out of four. That it was, in consequence, scarcely rentable at all, at any price: several of the witnesses saying, that rather than cultivate it because of the liability to overflow, they would prefer to clear land in the woods, not liable to overflow; and all the witnesses say that the slave property was in such a condition that it would have been dedri-mental to the estate to hire out the negroes, and the interest of all concerned was better subserved by keeping them on the plantation; and some of them prove that the complainant lived on the plantation, in the mansion-house, all the time, in a condition to see, and daily know all that was done by the executors and heir with the plantation and slaves, and never made any objection to the employment of the slaves on the plantation, as was done : and one of the witnesses proves a settlement of the executors in the Probate Court, showing the disposition of the whole receipts from the plantation thus cultivated.

The court, upon the hearing, dismissed the bill of review, and going back to the original bill of complaint, and the proceedings thereon, ordered an account to be taken, under the decree therein rendered, of the profits arising from the estate from the death of Mr. Notrebe to the 1st January, 1853, and an account of the moneys on hand at his death, and that a decree should be rendered for one-third of each, in favor of complainant, and directed the master to proceed to make and state such account in pursuance of the original bill and decree thereon; specifically directing him as follows, to wit:

1. “That he state an account of all moneys at the death of said Frederick Notrebe.

2. That he state an account of all expenses and profits of said plantation, slaves, and other property thereon, from the death of said Frederick Notrebe, up to the 1st of January, 1853, the time when dower was assigned to complainant, Mary F., under said decree upon her original bill, and that he strike and report the balance.

3. That he state an account of all rents of the property of said Frederick Notrebe, at the Post of Arkansas and elsewhere, other than the plantation aforesaid, from the death of said Frederick to this time, and report the amount thereof.

4. That he state an account of all other sources of in come from said estate, other than from choses in action and debts due the same, and report the amount thereof.

5. That he state an account of all moneys received by complainant, Mary F., or paid out for her from said estate, since the death of said Frederick Notrebe; and that the master report at the next term of this court, to which time further orders are reserved.

From which decree the complainants appealed to this court, excepting to so much thereof as dismissed their said bill of review and supplement.

"With regard to the complaint against the decree on the original bill, that it did not give the complainant hire for the ne-groes and rent for the land, assigned to her for dower, from the death of her late husband, but restricted her to one-third part of the nett profits of the plantation and estates, we think it totally groundless in a legal point of view; because there can be no pre-tence of error in the judgment of the court, as to this, since it is in exact accordance with the whole tenor and scope of the bill, and in which there were no allegations upon which could have been based a decree for hire and rents, in lieu of nett profits specifically, directly, and formally proceeded for; (Cook vs. Bronaugh, 13 Ark. Rep. 187, 188,) and as little pretence of the discovery of any new matter, or evidence, which could not possibly be had or used at the time when the decree passed. On the contrary, as to this, it abundantly appears that the complainant knew every fact when the original bill was filed. TJnder such circumstances, to permit her to hold on to such portions of the decree only as she likes, and let her go back and make a new case, as to such portion as she does not like, although the latter be in strict accordance with her case first made, would be a novelty, to say tbe least of it, as inconsistent with the general doctrine of non-divisibility of rights, as with the chancery doctrine, in accordance with it, of multiplicity of suits.

Indeed, under the peculiar facts of this case, when it is considered that the complainant was devisee, under the will, of one-half of the entire estate, was tardy in changing her character from devisee to dowress, when so many circumstances indicated her acquiescence in the former, when she was so fully cognizant of all that was transpiring on the plantation where she daily resided, there would seem to be some fair ground of natural equity, in view of the disasters from overflow by the act of God, upon which the heir might have stood, without any impeachment of duty or affection, and invoked a strict adjudication of the dowress’ rights in the premises, had she originally claimed rents and hires. If so, much more may she now occupy this position, when having originally chosen an equitable ground, the complainant now seeks to flee from it, under no stress of adverse pecuniary circumstances, to carry fruits to a stranger, who can have no peculiar equitable claim to them.

Besides these considerations, which we regard as satisfactory on this point, the counsel for the heir takes a higher ground; which, in the views we have taken, need not be passed upon. Anri this is, that under our peculiar laws, making all species of property, assets in the hands of an executor or administrator, even conceding the complainant the right to recover the rents and hires, the estate cannot be charged with the neglect of the executor, but the executor himself must pay the dowress for his own neglect. A proposition which, as we have said, we have not found it necessary either to consider or to pass upon.

With regard to the complaint against the decree, for the alleged imperfections specified above, in the 4th division of complainant’s present complaints, it seems sufficient to say, in view of the fulness of the answer, on that point, that the complainant cannot be permitted to repudiate her acts of record, done by her solicitors, but she must abide by them, and hold her solicitors responsible, if they were careless, or otherwise derelict, or unfaithful to her injury, notwithstanding, as seems very unreasonably alleged, the court and the opposite solicitors were as careless and as unfaithful in the premises as her own.

With regard to the complaint, as to the town property at the Dost of Arkansas, the reference to the master Eefeld, which was pending at the time these proceedings were commenced, was sufficiently broad to embrace that, because in its terms it was not confined to the “income and profits” of the plantation, but extended to the “property” of the estate generally; and was, therefore, directly responsive to the original bill, and consistent with the decree.

The complainant’s right to dower in this town property, as well as in the cash on hand, at the death of Mr. Notrebe, was conceded by the pleadings, and admitted by the evidence in the answers. And upon the hearing of the case on bill, answer, replication, and the report of commissioners, who had admeasured and set apart dower to the widow in the lands, slaves, stock, and other visible property, the record states that the court was of opinion, upon consideration, that the complainant was entitled to dower “as prayed,” and thereupon proceeded to decree to the complainant, dower, in severalty, in so much of the estate as was referred to the commissioners, and was embraced in their report, and then omitting to make any specific decree as to the money on hand at the death of Mr. Notrebe, although embraced in the general opinion expressed, that the complainant was entitled to dower “as prayed,” proceeded as to the “income and profits,” generally, to refer these to the master Eefeld, to take an account and report at the next term. Doubtless, upon the ground, as we must presume, in favor of the doings of the court below, of the uncertainty of this income and profits, both as to whether there was really any nett amount, and, if so, how much — and these could be ascertained only by a statemect of accounts, either by the court, or by a master. Hence, as to this part of the complainant’s case, the merits had not been sufficiently developed to enable the court to pass upon it finally, otherwise than hypothetically, which the court, it is true, might have done by appropriate further order and directions; which, however, it does not appear, from the record, was done. Hence, there was something remaining’ to be clone by the court, judicially, between the parties remaining in court, which we cannot suppose was erroneously omitted, as we might have otherwise supposed as to the money; because, as to these rents and profits, such an erroneous omission cannot be supposed, in the face of an express reference to the master, to take and report an account, as to them, by the next ensuing term, at which time, it is reasonable to infer, the court designed to put an end to the case, and grant or refuse the complainant a rejnedy, as on her whole case, upon which, under the statute contemplating but one final decree, the parties, if any of them felt aggrieved, might appeal. Crittenden Ex parte, 5 Eng. 350; Haynie vs. McLemore, 7 Eng. 397.

And this mode of proceeding by the court corroborates so much of the answer as states “That when said decree was made, it was extremely desirable to both parties to have the matters in controversy of most importance settled, and finally ended, without delays therein, or involving them with inferior matters, which would cause delay by requiring the interposition of a master in chancery, and the delays incident thereto;” and the further matter stated as to the verbal understanding among the solicitors; at the time the decree complained of was rendered,, that Col. Far-relly should pay over to the complainant one-third part of the money on hand at the death of Mr. Notrebe, and one-third part of the nett amount of the rents and profits of the town property at the Post of Arkansas, without troubling the court to render a specific decree therefor / which Morton and wife, in their answer, say they are still willing shall be done, or that she may have those sums in any way otherwise — '“her rights in the premises having never been disputed by them, and never will be.”

Suppose, that in addition to what appears in the record in this case, there had been an express reservation, to the effect, that as to all tbe matters touching the income and profits, and touching the cash on hand at the death of Mr. Notrebe, and nnitl these should have been, in future, judicially passed upon, all that had been done, in reference to the visible property, should remain interlocutory, no one would have supposed the decree in question final, even under a practice which might allow of more than one final decree in a cause. The expressed reservation, in such a state of case, having the effect to prevent any presumption that might have otherwise arisen,, that the decree was final.

To the same effect, as an implied reservation, under our practice, tolerating but one final decree in a cause, must be regarded the affirmative action of the. court in the case at bar, in referring to the master the matter of income and profits unconnected with any decree, in advance, as to the final disposition of this part of the complainant’s case. Otheiwise, the Circuit Court would be taken to have committed the error of having omitted to pass judgment on a part of the case made by the complainant, in the face of the record, showing that court to have been in the actual progress, in a legitimate mode, to the very point complained of.

To intend such an implied reservation, under such a state of case, is even loss than to indulge the ordinary presumption in favor of the regularity of the proceedings in the court below. And to refuse to do so, is to do more than simply to reverse that common rulo. Because, that presumption is ordinarily indulged when nothing appears in the record to repel it. Much more, then, should it bo indulged, when in fact something does affirmatively appear in the record, to authorize and sustain it.

Begarding, then, the decree in the original proceedings complained against, as open, and the matter of income and profits pending before the master, as embracing the specific matter of the rents of the town property at the Post of Arkansas, nothing-remained of the matters complained of in the proceedings before us, except the matter of the money on hand at the death of Mr. Notrebe, of which there was no ground for complaint-, until the complainant’s admitted rights in the same had been adjudicated against by the court, either with or without a reference to the master.

TJpon the whole case, therefore, we find no error authorizing the reversal of the decree, and think it ought to be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Dunn et al. vs. Graham et al.
    The answer of one defendant, is not evidence against his co-defendant, unless upon proof of such an absolute unity and identity of interest and design between the defendants as under the ordinary rules of law, will-make the acts or admissions of one, the acts or admissions of the other, &c. BlaJceny vs. Fergmon et al, 14 Arle. Bep. 641.

      Quare: When, and how far, is the answer of one defendant, when responsive to the bill, evidence in favor of his co-defendant?
    When the answer of a defendant, in all material points, is responsive to the allegations in the bill and to the special interrogatories based thereon and propounded to him, it must be taken as true, unless disproved under the rule requiring two witnesses, or one with corroborating circumstances.
    G., as assignee of W. & Co., obtained a judgment against V. and D. and others as his securities, on a note payable to W. & Co., or bearer. The securities file a bill against G., and Y. alleging that V. had paid the note, and again put it in circulation, and interrogate G. as to his title to the note: G. answers that he bought the note of the agent of the payees, and that Y. was his agent to make the purchase; the com. plainanls prove by one witness, the agent of the payees, that Y. paid him, and that lie delivered the note to him : Held, That the answer of G., as to his title to the note, mustbe taken as true, and that the evidence of the witness is not irreconcliablo with the truth of the statements in the answer.

      Appeal from Oalhown Oi/rcuit Oowñ in Gha/ncery.

    Hon. John C. MURRAY, Circuit Judge.
    CUMMINS, for the appellant.
    There is no proof that Graham furnished Yarn with any money, or appointed him his agent. The answer in this respect is not responsive; and, therefore, no evidence.
    Yarn’s answer is no evidence for Graham, and if it were it could only be so, so far as responsive to the bill. 1 Eng. 317 y ib. 79 y 5 Ark. 9y 9 Cow. 37y 2 Dana 167 y Ores. Eg. Evidence 21.
    The evidence of Case, unexplained by other evidence, was conclusive. The denial could not be direct and positive. The only facts in the answer, which could overturn Case’s statement, were not embraced in discovery asked, and here are to be rejected as not existing as facts. This leaves Case uncontradicted. Ores. Eg. Ev. 1.
    CurrAN & Gallagher, for appellees.
    The bill alleged that Graham fraudulently purchased the note from Yarn, and by collusion with him, and interrogatories to that point, were propounded to him; and, also, that he state in what manner he got possession of the note, if not from Yarn. Graham answered the allegations and interrogatories fully, denying fraud and stating in what manner he became entitled to, and from whom he purchased the note. Had not the complainants a right to require an answer to such interrogatories ? Assuredly they had ; therefore, the answer of Graham was evidence in his favor, and required one witness and corroborating circumstances, equivalent to a second witness, to overturn the same. Woodcock vs. JBermett, 1 Oow. Hep. 743 y Olosson vs. Morris, 10 John 542 y Field vs. Eol-Icrnd, 6 Orcmch 24 y Ten Eyck vs. Hcurt, reversing in this respect the decision of Chancellor Kent, A. D. 1817, not reported. See
      Emmet's Argument, 1 Gow. 744, et seq., Moupin vs. Whiting, 1 Gall. 224/ Snellgrove vs. Bailey, 3 Ath. 214; MeGallvs. Blewett; 2 McQord Gh. Bep. 102/ Bgnh vs. Bloch et al., 2 McCord Oh. Hep. 349 / Bemon vs. Cherry, 1 Bibb. 253/ Pollard vs. lymon, 1 Day 156/ Ragsdale vs. Buford, 3 Ecvyne 192.
   Mr. Justice Scott

delivered tbe opinion of tbe Court.

Tbe complainants, Allen D., John and James S. Dunn, and David Daugherty, filed their bill in tbe Calhoun Circuit Court, against tbe defendants, Joseph M. Graham, John M. Yarn, Elijah E. Strong and Wills, Pease & Co., alleging that Yarn, having purchased a lot of merchandise at auction, from Leonard E. Case, as agent for Wills,-Pease & Co., they, together with Strong, none of them having any interest in such jrarchase, as the mere securities of Yarn, executed with Yarn, a promissory note, on the 29th of May, 1849, payable on the first of January next following, to Wills, Pease & Co. or bearer, for the sum of $3.82 90, and delivered the same to Case as such agent.

That on or about the time the note matured, i t was entirely discharged and paid off by Yarn, who paid into the hands of said Case, the amount of the same, and received 'into his own hands, from the hands of Case, as agent, the note in question, as a full discharge of the debt for which it was given. That afterwards, the note was again jrat in circulation by means unlrnown, but which they charge to have been fraudulent. That eventually it came into the possession of defendant Graham, who pretended to have derived his title to the same from Wills, Pease & Co.; but complainants believed his only title was derived .by. a fraudulent contract with Yarn, long after the before alleged jiayment of the same by Yarn, and delivery of it to him by Case, as agent. But in either case, conijalainants charged that the title of Graham was fraudulent. That after the execution of the note, Yarn became notoriously insolvent. That at the spring term of the Calhoun Circuit Court, A. D. 1852, the complainants together with Yarn and Strong, were sued on the note in question by Graham as assignee of Wills, Pease & Co., and none of them making any defence, he obtained a judgment. That two of the complainants, to wit: John Dunn and James S. Dunn, knew nothing of the alleged payment of the note, and its fraudulent re-circulation, until after the adjournment of that term of the court. But that the two others, totoit: Allen D. Dunn and David Daugherty, had heard something of it, but knew of no person by whom they could establish the facts, except Yarn and Graham themselves, until the adjournment of said term. They also charge that when Graham came into the possession of the note, he well knew it had been paid and delivered, up to Yarn, and that the latter was notoriously insolvent. The bill then proceeds to propound numerous special interrogatories to Yarn, among them, the following, to wit: whether he did not ¡entirely discharge, pay-off and take up the note, as alleged? Whether he did not pay into the hands of Case, as agent, the entire amount of the note, and receive into his own hands the note from Case, in full discharge of the debt it was given to secure? Whether, afterw'ards, he did not again put the note in circulation ? If not, by whom, or by what means, was it again put in circulation ? Whether he did not trade the note to Graham, and if so, by what fraudulent intent? Was it to defraud Graham, or the complainants? If neither, then who? If nobody, then why did he again put it in circulation after its payment and discharge as aforesaid? Whether the contract, between him and Graham, was not fraudulent, so far as Graham was concerned ? Whether Graham was aware that the note had been paid before it came into his possession, and whether he was not fully aware that Yarn was, at that time, insolvent? Whether or not he, Yarn, is insolvent? If so, when did he become so?

Yarn after responding to various allegations and interrogatories, proceeds upon oath to answer, in reference to the interrogatories above copied, as follows, to wit: “This respondent further answering, says, that it is not true that this respondent ever paid off and discharged said note, when the same became due, or at any time, or that this respondent ever put the said note in circulation, after having paid off and discharged the same, as is by said complainant alleged. .This respondent, however, admits, that at the time the said note became due, he did pay into the hands of said Leonard E. Case, the amount of the principal of said note, there being, at that time, no interest due thereon. And that this respondent did receive the said note from the said Leonard E., the agent of the said "Wills, Pease & Co., but this respondent most positively affirms, that the money he paid to the said Leonard E. for the purchase of said note, was the money of, and belonging to the said Joseph M. Graham ; that this respondent acted in the whole matter and transaction, as the agent of the said Joseph M. Graham; that the said Joseph M., having supplied this respondent with the money necessary to purchase said note as his agent; that this respondent did so purchase said note, and did so receive the same as the agent of the said Joseph M. Graham, and that this respondent did, immediately upon receiving said note, deliver the same to his principal, the said Joseph M. Graham, and this respondent affirms positively that he never did put said note into circulation, except when he first delivered the same to the said Leonard E., in payment of his debt to the said Wills, Pease & Co.; and that this respondent never had said note in his possession, except as the agent of the said Joseph M. Graham; and this respondent affirms that said note, to the best of his knowledge, hearsay, information and belief, never has been out of circulation at all, from the time the same was executed until the same was sued upon by the said Joseph M. Graham, who is the bona, fide, purchaser of the same, from the said Wills, Pease & Co. This respondent further emphatically denies that he ever traded said note to the said Joseph 3£ in any manner whatsoever. And this respondent, further answering, says, that the charge of fraud in said complainant’s bill contained against him, is absolutely false and untrue. This respondent never attempted to defraud the said complainants, or the said Joseph M., or either, in any manner whatsoever. That he never put said note in circulation, except when he delivered the same, as above stated, to the said Leonard E. Case. And this respondent most positively affirms, that he never was, for one moment in his life, the owner, or the part owner of the said note, or that he has ever paid one cent on the same to any person in the world, although, as he has above stated, he did as agent of the said Joseph M. Graham, pay the amount of the note to the said Leonard E., but that was done solely for the use and benefit of the said Joseph M., and with the money of the said Joseph M., to enable the latter to become the bona fide purchaser, and legal holder of said note. This respondent further most positively affirms it to be false, that he was insolvent at the time of the purchase of said note by the said Joseph M., or for some time thereafter, as is by said complainants alleged. He admits himself now insolvent, but he did not become so until about eighteen months after the note was lifted by the said Joseph M. from the said Leonard E.”

Yarious special interrogatories are then propounded to the defendant, Graham. By what title does he hold the note ? Whether he holds it as bona fide assignee of Wills, Pease & Co., or by a purchase 'from Yarn ? If by the former, by what member of the firm was it assigned and delivered, and what was the consideration given for it ? If by the latter, at what time, and under what circumstances, was the purchase made? Whether he was aware at the time of the purchase, that the note had been paid.? To which he makes sworn responses, as follows, to wit: “That he is the bona fide assignee and holder of said promissory note. That he purchased the same, for a valuable consideration, from L. E. Case, the agent of Wills, Pease & Co., some time in the latter part of the year 1849, to wit: about the 25th of December, for the sum of the principal due thereon, to wit: $382 90. That a short time after he had arrived in this State, having money on hand yielding him no profit, and having been informed of the existence of the note in question, and that it would bear interest at the rate of ten per centum per annum, from maturity, and that the makers were perfectly solvent, he determined to purchase the same as an investment. The note, at that time, being in the possession of L. E. Case, as agent of "Wills, Pease & Co., and at Camden, in Ouachita county, and being unable to go there at that time himself, and John M. Yarn being about to visit that place, he requested Yarn to purchase said note as his agent, and he consenting to do so, respondent furnished him with the sum of money, to wit: $382 90 for that purpose. Thereupon Yam, as the agent of respondent, purchased the note, with the money of respondent, furnished him for that purpose as aforesaid, from L. E. Case, as agent of Wills, Pease & Co., and received the same, and immediately on his return from Camden, delivered the note to respondent, who thus became, by mere delivery of the said Leonard E., as agent of Wills, Pease & Co., to Yarn as agent for respondent, the promissary note being payable to Wills, Pease & Co., or bearer, for the consideration aforesaid, the bona fide and legal holder of the same, for full value. That he had never heard that the said note ever had been paid, except in'the manner just stated by respondent; neither does he believe that it ever was ; on the contrary, he expressly avers the truth to be, that it never has been paid in any manner.” From information and belief, he avers that complainants knew, at the time he purchased the note, that respondent employed Yarn, as his agent, to make the purchase. Avers that the charge of fraud contained in the bill, against respondent, is absolutely and entirely false and untrue. That Yarn, at the time the respondent purchased the note, and for the space of more than a year afterwards, was generally considered perfectly solvent. That respondent loaned Yarn $150, at the time the note was purchased; and denying that Yarn ever paid said note, otherwise than as stated, he prays his answer may be taken as a demurrer; that plaintiff’s are not under their bill, entitled either te discovery or relief: their remedy at law being ample and complete.

Besides these answers, there is no evidence in the record, other than a statement of L. E. Case, which seems to have been filed by the complainants, “and by consent made a part of the testimony in tbe canse,” as is stated in tbe record. That statement is as follows, to wit: “In the spring of the year 1849, the firm of Wills, Pease & Co., of New Orleans, placed in the hands of myself and partner, a claim for about $5000, against Smith & Thorn, of Camden, for collection. In liquidation of this claim, Messrs. S. & T. handed over to us their stock of goods, to be sold by us at auction, and the proceeds to be applied to their claim. The auction was advertised for the 28th of May for that year, and the goods ■were sold on a credit until the first of January, 1850, the purchaser giving note with security. At the sale John M. Yarn bid off goods to the amount of $382 90, for which he gave his note, due 1st January, 1850, with Elijah Strong, A. D. Dunn, and perhaps some one or two more names, as security. On the day the note fell due, Mr. Yarn called at our office and paid, and took up the note. We allowed him a credit of $8 90, as he said that certain goods, amounting to that sum, which he had bid off at the sale, and which were included in the note, were not delivered. I know nothing further with regard to the note.

L. E. CASE.”

To Graham’s answer a general replication -was filed, but it does not appear that any was filed to the answer of Yarn. The bill prayed relief against all the defendants by injunction, and also general relief. The cause having been previously set down for hearing, was heard and determined at the spring term, 1854, upon the bill and exhibit, upon these two separate answers, and the statement of L. E. Case read as evidence by consent. The decree was, that as to all the sum theretofore enjoined, except $8 90, the injunction should be dissolved, and as to the latter sum, it should be perpetuated. The complainants appealed to this court.

It will be seen, that the answer of Yarn was sworn to, and that irrespective of the rule, that the answer will be taken as true, whether responsive or not, when no replication has been put in; his was actually responsive; and, therefore, must be taken as true against the complainants, for that reason also. It will also be seen, that it went to the complete destruction of the foundation, upon which the complainants built their case, for relief against each and all of defendants. •

It is perfectly clear, that had Yarn’sanswer.been the opposite of of what it was, it could never have been read by the complainants against Graham, unless, in connection with other testimony establishing — not a community of interest merely, like that of tenants in common — -but such an absolute unity and identity of interest and design between Graham and Yarn, by means of the fraud charged against them in the bill, as under the ordinary rules of law, would have made the acts or admissions of either the acts or admissions the other — -like the acts or admissions of co-partners, or joint tenants, having a complete unity of title and interest, or of co-conspirators identified in a common design. And this, because of the established rule, no longer open to question, that the answer of one defendant cannot be read in evidence against his co-defendant, unless he refers to such answer as correct, or is so combined and identified with the answering defendant, as to be bound, under the ordinary rules of law, by his confessions, declarations, and admissions. Blakeny vs. Ferguson et al., 14 Ark. 641, and cases there cited.

But although that proposition is perfectly clear, is it equally clear, that Graham could not, nevertheless, insist that that answer should enure to his benefit by way of a legitimate operation, agadnst the complainants ?

The adjudged cases, favoring the affirmative of the proposition, so far as they have come under our observation, do not go the length of holding that in every case, where the responsive answer of the responding defendant goes to destroy the foundation of the case made in the bill, it shall enure to the benefit of the co-defendant, by operating as evidence against the complainant in the whole case; but the reasoning, upon which these adjudged cases are based, and by which they are supported, does seem to go that far. They are, so far as we have seen cases, where the defendant, protected in this wise, was either claiming under the responding defendant, as in the case of Field et al. vs. Hol land et al., 6 Cranch Rep. 8-24; and see, also, Judge Baldwins exposition of that case in Pettit vs. Jennings, 2 Robinson’s (Va. Rep. 581); or elsewhere he occupied the attitude of a stake-holder for the complainant and his co-defendant, as in the case of Mills vs. Gore, 20 Pick. Rep. 35. See, also, Greenl. Ev., vol. 3, sec. 283, p. 269.

The reasoning, in support of the ruling in both of these classes of cases, is to the effect, that the complainant, having called upon the responding defendant for discovery, as to the whole case made in his bill, has thereby made him a credible witness against himself, as to his W'hole case; having interrogated him only as he desired ; upon allegations framed in the manner most favorable to his own interest, and obtained the discovery sought, by searching and leading questions, the response has been obtained under the most favorable auspices for the complainant; and that the response, thus obtained, is not, as against' the complainant, obnoxious to the objection for want of cross-examination, as it would be, if allowed to be used against a co-defendant. Hence, it was supposed not unfair to hold in these cases, that it should not lay in the mouth of the complainant — when the response thus obtained went to destroy the foundation of the case made in his bill, to say it was not evidence agamst himself on the whole ease made by his bill; in imperfect analogy to the rule, which holds a party to the answer of his own witness, who unexpectedly, testifies the very opposite of what he anticipated.

The argument to the contrary is, that the answer to a petition for discovery, stands as a deposition, and is not evidence, for any purpose, until read by the party obtaining it, who may read it, or not, at his election. Conway & Reyburn vs. Turner & Woodruff, 3 Eng. Rep. 362, and cases there cited. But conceding this to be so, do the reasons, which sustain the rule, apply with full force, when the bill is not only for discovery, but also for relief consequent thereon; and that, too, in some one aspect of the bill, against all the defendants therein ?

But it is not necessary for us'to determine any point as to Yarn’s answer, nor lias any been mooted by counsel; because, waiving any question as to that, and also any question of jurisdiction, as we do, the decree of the court below is well enough sustained on the merits, without any reference to Yarn’s answer.

In the light of the case of Wheat et al. vs. Moss et al., 16 Ark. Rep.—(decided at the last term) the answer of Graham, in all material points, is responsive to the allegations in the bill, and to the special interrogatories based thereon, and propounded to him; and must, therefore, be taken as true, until overbalanced under the established rule. And so far from this having been done in this instance, the evidence of the only witness, produced on the other side, is, by no means, irreconcilable with the truth of the statements contained in Graham’s answer. Hence, all that is stated by the witness may be true, as it doubtless is; and nevertheless, Graham has stated the truth also, in his answer.

Finding no error in the record, for which the decree should be reversed, it will be affirmed with costs.


author: Mr. Justice Hanly

text:
    Fenter et al. vs. Obaugh et al.
    A sheriff, having in Ms hands a writ, issued in a chancery cause, commanding him to take into his possession certain property, then in the possession of the defendant in chancery, and to keep the same until the final decree, unless tlio defendant should enter into bond, with sufficient security to abide the decree, &c., upon application to E. who was illiterate, and could neither read nor write, to become security in such bond, assured him that it was a delivery bond, and that his obligation, upon it, would cease upon delivery of the property at the then next succeeding term of the court; upon which assurance, E. executed the bond, protesting that he would not execute a bond for any other purpose:
    Held, 1st: That the facts set up inducing the execution of the bond, if the representations, as to its character, had been made by the obligees, were a good defence under a special plea of non esi factum.

    2. That the plaintiffs in the chancery cause, the obligees in the bond, were as much bound by the representations made by the sheriff to the obligor, as to the character of the bond, as if made by themselves.
    That the bond, when returned and filed in the chancery cause, was not a record, in such sense as would estop the obligor from denying- the obligation for fraud in its execution.

      Appeal from Hot Bprmg Girouit Gourt.

    Hon. JoiiN C. MueRAy, Circuit Judge.
    ENGLISH, for tbe appellant.
    No principle is. better settled by authority, than that where the signature of an unlettered man is obtained to a bond, by misreading, or misrepresentation as to its true character he may avoid it, by plea of fraud, or special non estfaotwn. If a man, that is illiterate, desire a bond read, that he is to seal, and it is not done, and he seal it, it is not a good deed. So, if the party to whom the deed is given, or a stranger shall read, or declare the contents of the deed falsely, or otherwise than, the truth is, the deed will be void. 1 Shep, Touch.,p. 53, 54, 55, 56, 60; Uallenbeeh c& wife vs. Dewitt, 2 John. Rep. 404; Jaoleson eos dem., Traey vs. Hagner, 12 John. Rep. 469 ; Dorr vs. Mwnsell, 13 John. Rep. 430; Van Valhen-bwrgh vs. Rouk, 12 Jolm. Rep. 337; Story’s Plead. 205, Title COVENANT.
    Watnins & Gallagher, for the appellees.
    The gravamen of the plea is, that the defendant, being an illiterate person, was misinformed, by the sheriff, as to the purport or nature of the bond. No doubt a deed may be avoided if misread to an illiterate person, by the party who is to be benefited by it, or any agent of his, or by a stranger, whose acts are considered as adopted and ratified by the acceptance of a deed obtained under such circumstances. All the authorities cited imply that the deed is purposely or fraudulently misread, so as to be executed under imposition. Here the sheriff did not read the bond at all, being unable, as he said, to do so, but undertook to state the purport of it, with which Fenter was satisfied, and he must now bear the consequences of his own ignorance, and that of the sheriff, upon whom he relied.
    The bond in suit was taken in the course of a judicial proceeding, and was necessarily made a part of the officer’s return to the writ, which issued to him, against Pond; and, therefore, cannot be collaterally impeached, or questioned upon any such allegation as that set up in the plea. Surely it will only be necessary, on this point, to refer to the decision of this court in Newton vs. The State Ba/nh, 14 Arh. 1, and the authorities cited in the briefs of counsel in that case.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was an action of debt, brought by the appellees against the appellants, and one Rippetoe, as sureties, for William Pond, in the Hot Spring Circuit Court, on the following bond:

“Enow all men by these presents, that we, William Pond, as principal, Samuel Flojel, Andy Fen ter, and P. B. Bippetoe, as securities, are held and firmly bound unto James B. Obaugh, and Matilda E., his wife, William Pond, jr., Willis Pond, Augustus B. Pond, and Mary Ann Pond, in the sum of one thousand dollars, &c., &c. Signed and sealed, this 25th day of August, 1856.

Conditioned, that whereas, the Hon. John J. Clendennin, Judge of the Circuit Court of Hot Spring county, sitting as Chancellor, in and for said county, in vacation, on the 2d day of July, A. D. 1846, on hearing the bill of complaint about to be filed in said court in chancery, by James Obaugh, and Matilda E., his wife, William Pond, jr., Willis Pond, Augustus B. Pond, and Mary Ann Pond, complainants, against William Pond, senior, and William E. S. Barkman, made an order on said bill, that upon said complainants entering into bond in the sum of one thousand dollars, to said William Pond, senior, with sufficient security, to be thereafter approved, conditioned that they would prosecute their said bill wfitli effect, and would pay whatever damages the said William Pond, senior, might show to have sustained, if said bill should be adjudged and decreed in his favor, the clerk of said Circuit Court, of Hot Spring county, should issue a writ to the sheriff of said county, commanding him to take into his possession and custody, certain negro slaves, to wit: Mariah, a woman, aged about 83 years; Bopha, a girl, aged about 5 years; Dennis, a boy, aged about 4 years, and an infant child, about 8 months old, child of said negro woman Mariah, (all then in the possession of the said William Pond), and hold the same, subject to the further order . of said court, or the chancellor thereof, unless said defendant, William Pond, should enter into bond to the said complainants, in the sum of one thousand dollars, with sufficient security, to be approved by said sheriff, conditioned that he would abide the decree that might be rendered in said case, and surrender said slaves, in case a surrender thereof should be required ; and, whereas, said writ was issued in pursuance of said order, and the said sheriff is prosecuting to execution the same; and, whereas, said William Pond desires to retain possession of said negroes until the determination of said cause; now if said William Pond, senior, shall abide the decree that may be made in sañd case, and surrender the said negro slaves above described, in case a surrender thereof shall be adjudged, then the above obligation to be void; else to be and remain in full force and effect.”

The declaration set out the bond, and assigned as special breach of the condition thereof, that on the 29th August, 1851, a final decree was rendered in said chancery cause; that the right and title to said slaves should pass to, and vest in, the complainants ; that William Pond, senior, should be perpetually enjoined from asserting any claim thereto, and forthwith surrender to complainants tho possession of said slaves, which he had failed to do, or otherwise abide the decree. The value of the slaves is stated, and general breach of non-payment of the bond, &e.

Defendant Pond was not served with process, and Rippeioe made default.

Renter and Floyd craved oyer of the bond and its condition, which was granted by filing- a copy.

Fenter filed four pleas : 1st. A special plea of non est factum/ in substance, that on the 25th August, 1846, the date of the supposed bond, and ever before and since, he was illiterate, uneducated and wholly unable to read or write ; that after Fullerton, the sheriff', had taken possession of said slaves, by virtue of the writ of injunction mentioned in the declaration, to wit: on the 25th August, 1840, he, as such sheriff, and said William Pond, senior, called on defendant, whilst he was at labor in the wood, and then and there solicited him to sign a paper, which they called a bond for the delivery of said slave at the then approaching term of tho Hot Spring Circuit Court, to be holden at Bockport, on the second ■Monday of September, then immediately following ; that defendant declared, positively, that he would not sign a bond for any other purpose, than for the delivery of said slaves to said sheriff, at s.aid term of said court, which was but a few days off, and that if the bond would bind him for any longer time, or any other purpose, he would not sign it. That the said Fullerton and the said Pond, botli assured Mm that tbe bond was for no other purpose than to secure tbe delivery of said slaves to tbe sheriff at said term of said court; that if said defendant would sign it, he would then be relieved from all obligations thereon, on delivery of the negroes as aforesaid ; that defendant asked the said sheriff, Fullerton, to read to him said bond and its condition, but said Fullerton, after attempting so to do, said he could not read the handwriting in which it was written, but again positively assured the defendant, that it ivas for the delivery of said negroes to him at the court aforesaid, and for no other or different purpose; that thereupon, said defendant permitted his name to be signed to said bond, and made his mark thereto ; that afterwards, on the second Monday of September, 1846, said defendant obtained possession of said slaves, and took them to said town of Rockporfc, and delivered them to the said Fullerton, as such sheriff, in accordance with what he, defendant, understood and believed to bo his undertaking’ in said bond ; that the said sheriff received into his custody and possession said slaves, and during that day defendant was informed, for the first time, that the bond, which lie had so executed as aforesaid, was not a delivery bond, as had been represented to him, but was conditioned, as its tenor shows, and so the defendant says, that the said supposed bond in the said declaration, is not his act and deed — concluding with a verification. Plea sworn to.

It is deemed unnecessary to set out the other pleas of Fenter, or to notice the proceedings had upon them.

Floyd filed a special plea of non estfaotum, the same, in substance and effect, as Fenter’s first one,

The plaintiffs took issue to Fenter’s first plea; also, to the one interposed by Floyd.

A jury was sworn to try the issues between the plaintiffs and defendants, Fenter and Floyd, upon their respective pleas of non estfaotum, and also to enquire into the truth of the breach assigned in the declaration, and assess the damages sustained, by the plaintiff’s by reason thereof, &c.

The jury returned a verdict in favor of Fenter arid Floyd upon the issues, and found the breaches true, and assessed the damages at $1,500, as against Rippetoe, defendant, who was in default.

The plaintiffs then filed a motion for judgment non obstante verdicto, against Fenter and F Loyd, on the grounds that their pleas of non est factum were not sufficient, in law, to sustain the verdict rendered in their behalf.

The court sustained their motion, and rendered judgment against Fenter and Floyd, as well as Rippetoe, for $1000, the penalty of the bond.

It does not appear from the transcript, that after the rendition of the judgment, non obstante, against Fenter and Floyd, any other proceedings were had in the court below, in the way of calling in a jury to find the breaches assigned and the assessment of damages thereunder; but the judgment was made final at once.

The defendants Fenter and Floyd excepted, and appealed to this court.

Three several causes are assigned by the appellants, why the judgment of the ITot Spring Circuit Court should be reversed, and under them, in consequence of the position assumed by the appellees, the broad ground is presented to this court, whether or not the appellants can controvert, in an action brought upon the character of bond which we have stated, the fact of the execution of the instrument, either by a general or special plea of non estfactum ; maintaining, as they do, that the appellants are es-topped from'denying their deed ; because, by the return of the sheriff, made in conformity with the fiat of the chancellor, it has become a part of the records of the chancery cause, to which it relates and applies, relying upon the well established principle, that a record cannot be collaterally questioned by either the parties thereto, or their privies.

In determining the point involved in the above proposition, we will do so in reference to the defence set up in the first plea oí the appellants, which we will denominate, as it evidently is a special plea of non est factum of the instrument sued on.

And in considering tlie subject, we shall sub-divide the proposition into tbe following heads of enquiry:

1. Is the matter set up in the plea a good bar, supposing the representations charged to have been made by the sheriff of Hot Spring county, were charged to have been made by the appellees, and leaving out of the question the assumption, that the bond, after return, is a record ?

2.; Admitting that if the representations stated in the plea had been made by the appellees, the defence would have been good and available to the appellants; does not the fact that they were made by the sheriff of Hot Spring county, whilst executing process, alter tlieir effect or render them unavailable to appellant ?

3. And if the representations being made by the sheriff do not alter their effect as to the appellants, can they be set up as a de-fence, after the bond is returned and becomes a record?

We shall consider these several questions in the order in which they are respectively presented, conceiving, as we do, that their solution must determine this cause, one way or the other, without reference to the other errors assigned. The only effect of pleading non est factum specially, instead of generally, is, that in the former case the burden of the issue is on the party pleading it. See 2 Greenl. Ev., sec. 300, p. 303, and the case of Brown vs. Wright, determined at the present term of this court, and the authorities there cited. Besides this, there are many defences which could only be rendered available by pleading in this form. See same reference; also 1 Chitty’s Pl., p. 483, texet and note A. Such, for instance, as the defence set up in the plea under consideration; which, we therefore, hold to be in due form, and appropriately pleaded, if the substance thereof is available as a bar; which we will proceed to determine under the heads above proposed.

As to thefii-st head: It is said that if a man, that is illiterate, desire a bond read to him, that he is to seal, and it is not done, and he seal it, it is not a good deed. See 1 Sheppard’s Touchstone, p. 53, 54, 55, 56, 60; 2 Tucker’s Com. 414. And this is so, for the reason, that the act thus performed, wants that essential quality which is necessary to exist in all contracts, to make them effective and operative: i. e., the assent of the parties : for, says Mr. PARSONS, in his invaluable work on contracts : There is no contract unless the parties thereto assent, and they must assent to the same thing, in the same sense. A mero assent does not suffice to constitute a contract, for there may be an assent in a matter of opinion, or in some fact which is done and completed at the time; ánd, therefore, leaves no obligation behind it. See 1 Parsons on Con. 399. And we apprehend that this assent must as well exist in reference to the substance of the contract itself, as to its subject matter, as maintained by the author whom wo have just quoted. But we are not left to speculation as the only means of solving this branch of our problem; for it hath become an established principle of the law, that “if the party, to whom' the deed is to be given, or a stranger, shall read or declare the contents of the deed, falsely or otherwise than the truth is, the deed will be void.” See our refereoxces to 1 Sheppasd's Touchstone, as above; also, Hallenbek and wife vs. Dewitt, 2 J. R. 404; Jackson, ex dem., Tracy vs. Hayner, 12 J. R. 369; Van Valkenburgh vs. Rouk, 12 J. R. 337; Daw vs. Munsell, 13 J. R. 430, cited by the appellant’s counsel; and, also, see 2 Tuckers Comments 415; 1 Fondb. Eg. 115.

In Van Valkenburgh vs. Rouk, SpeNcer Judge, said: “If a deed be misread or misexpoundedto an unlettered man, this may be shown on non est factum; because he has never assented to the contract. So, if a man be imposed upon, and signs one paper while he believes he is signing another, he cannot be said to have assented to it.” We will not pursue this branch of our subject farther, remarking, in passing, in justice to the counsel for the appellees, that the position is conceded in their argument. We hold, therefore, that the matter set up in the plea is a good bar, conceding the representations, therein charged to have been made bjr tbe sheriff of Hot Spring county, were charged to have been made by tbe appellees, leaving out of question tbe assumption that tbe bond, after return, is a record.

Secondly. In tbe execution of process, sucli as the sheriff of Hot Spring conntjr had in his hands at the time it is averred he made the representations to the appellants, touching the bond, though acting in the capacity of a public officer or functionary, he sustained towards the appellees, to some extent, the relation of agent or servant, resulting as well from the particular phraseology of the fiat of the judge or chancellor ,>&4Be^í¿fe^ecial act, which he was required to do thereunder of his general duties, and for the reason, as expressed by Wali|!5R, J., in a case not without analogy to this, in wLfllUn^liiQ^Mah-ing of an execution, the return of which was attempted tobe controverted by the defendant therein, which \enieffl "uourM iroj/'be done for the reason among others,) “It is exe&ñfe^fei'^líeff (defendants’) benefit by the officer of the law.” See Newton vs. The State Bank, 14 Ark. 13.

Beside this, from the official position of the ¿heriff, at the time the representations were made by him, it was fair for the appellants to presume, that he was not only cognizant of the particular duties, which he had to perform, but likewise of the character and import of all documents'legitimately resulting from the performance of those duties; thereby rendering him the proper person to be applied to for such information as the appellants demanded, before they would execute the bond in question. His relation, in this view, was official, and quasi fiduciary, in respect to both parties to the chancery suit. He was the person whose duty it Was made, ordinarily, in such cases, to prepare the bond or have it done; and, consequently, to know its contents and purport, even though he might not be able to read the hand in which it was written. He was the person whose duty it was, as lie really did, on the occasion referred to, to take the bond, it is true, not payable to himself, but the appellees.' The appellants, it seems, were unlettered. This fact must have been known to the sheriff, for the plea avers that they asked him to read them the bond; and, also, when they were told be could not do so, on account of the illegibility of the writing, they replied they would sign the instrument, but would only do so on the assurance that the negroes could be delivered thereunder, at the next term of the court, which was then near at hand, in pursuance of its condition. The assurance of the sheriff was then the inducement, which influenced the appellants to seal the deed. This assurance may have been made in good faith on the part of the sheriff, which we have no reason to doubt or question, from>the face of the plea ; but it was untrue and unauthorized, and if an injury must result from it, on whom must and should it fall ? Certainly not on the unfortunate, unlettered appellants, but upon the party who, though perhaps, innocently, yet unadvisedly, occasioned the injury. The consequences must rest upon the sheriff, at the suit of the appellees, for we conceive there can be no fault laid to the appellants from the facts set up in the plea. It is true, the appellees had no part in the false representation which induced the appellants to make the deed. They, therefore, are equally innocent, and stand as favorable before the court; but the maxim of the law, in such cases, is, “that where the rights of the parties are equal, the condition of the defendant is best.” But independent of the foregoing considerations, the authorities we have already given, in treating of a previous branch of the subject, particularly the extract which we gave from 1 Sheppard’s Touchstone, in which the following passage occurs, “if the party to whom the deed is given, or a stranger, shall read or declare the contents'of the deed falsely or otherwise than the truth is, the deed will be void,” (which we find fully sustained by the adjudicated cases, which we have referred to, in the same connection,) render it. clear to our minds, that though the plea charges the false representations which induced the appellants to make the deed in question, to have been made by the sheriff of Hot Spring county ; yet, that does as effectually bar the appellees, under all the attendant facts, as if the representations had been made by themselves, and so averred in the pleadings.

Thirdly. It is insisted by the counsel for the appellees, conceding, by way of argument, tbe above points, as we bave determined them, that in consequence of the bond in question having relation to the chancery suit, to which it applied, and being returned by the sheriff, and filed in that cause by the clerk, it became, ipso facto, a record, and as a consequence thereof, that no defence can be heard whereb3r to impeach or question it in any way, and the case of Newton vs. The State Bank, 14 Ark. Rep., page 1, is cited in support of the latter part of the proposition. By referenee to that case, it will be perceived, the adjudication was made on the following facts: The action was ejectment, brought by‘the plaintiff against the defendant for two lots. Plaintiff claimed title to them as purchaser at execution sale, and at the trial, produced the record showing judgment against defendant, an execution duly returned, showing a regular levy on the lots, their advertisement and sale according to law ; and, also, the deed of the sheriff duly executed, acknowledged and recorded. The defendant then offered to prove, bjr parol, that the sale to the plaintiff was made without notice, and on a different day, and on one subsequent to that stated in the sheriff’s return. This court, in that case, held, that “the acts of an officer done in obedience to the law, when required to be certified and returned, form a part of the records of the case in which thejr are had, and being part of the records, the return, as well as the execution and the judgment, imports absolute verity, and is alike conclusive, as the judgment, upon the rights of the parties to the record.

It wrill be perceived from the language of this court, in the extract which we have given, that the judgment of the court was predicated upon the fact, that the defendant in that case, was the defendant in the case under which the sale had been made to Newton ; or, in other words, that he was the '■'■party to the record” in that case. In the case that we are considering, the appellants were not parties to the record in the chancery cause, except so far as they may have collaterally been made so, by making the bond in question. The fact of their being connected with the cause in this way, would not conclude them upon the record, in reference to tlie subject matter of tbe suit. A decree in that cause, one way or another, could not affect them, except to afford evidence, in pais, to enable the appellees to establish their breaches. But the court say, in passing upon the deed, in the case of Newton vs. The State Bank, “our conviction is, that the deed is conclusive and cannot be impeached oh a collateral issue, except for fraud in the execution of the deed, when the process, under which the land was sold, is supported by an existing, unsatisfied judgment.”

There is a marked and evident difference between the case referred to by the counsel, as above, and the one being considered, in this ; 1st. In the present case, the proceeding is a direct one upon the bond; and secondly: Because fraud is charged in the plea to avoid the record. We understand the difference between a direct and collateral proceeding, in the acceptation of this court in the above case, to be this. A direct proceeding upon a record is, where the record is itself the foundation, or cause of action, and the proceeding designed to impeach it is for fraud, &c. A collateral proceeding upon a record is, where the action is for or on something else, but where the record may, or does incidentally arise, or come in question. In the former case, according to the case of Newton vs. The State Bank, the record may be impeached ; for the proceeding is for that purpose. In the latter case, it cannot except for fraud, on the universal principal, that where fraud exists in any of the varied transactions of men, the party, who may be affected by it, may be relieved in one or other of the forums ordained and established for the adjudication of rights between man and man. In the case at bar, the appellants have virtually charged, in their flea, fraud against the appellees, by which they hope to avoid the deed : for we hold that the facts averred are substantially to this effect. That we are sustained in the above views, we refer again to the case of Newton vs. The State Bank, and the reasoning urged by Wal-Kee, Judge, in delivering the opinion of the court in that case, in which he says, after holding parol evidence inadmissible to contradict a sheriff’s deed: “ The door for re-investigation is closed upon tlie parties to tbe record. It is not to be questioned by tbem; this, because they are parties to the record, and have had day in court, and it is not only their interest, but their duty to look to tlie regularity of the proceedings, and when passed without objection, they may be said, in effect, to have received the approval of the parties,” &c. If, now, the doors of the court having ample jurisdiction to determine their cause, are to be closed against appellants having had no day in court in the chancery cause, verily they would be in a most deplorable and lamentable condition; for, if they cannot be relieved under the state of facts set out in the plea, by making the same case by bill in equity, they could not expect to share a better fate, and thus they would have no remedy against a bond, which is not their deed, whether by direct or collateral proceeding thereon. But we will not further reason on the subject, holding as we do, that, independent of what we have said, it has virtually been put at rest by former adjudications of this court. See Ruddell vs. Magruder, 6 Eng. Rep. 583, 584; Reardon ex parte, 4 Eng. Rep. 453; Dugan ad. vs. Fowler, 14 Ark. Rep. 136, in which latter case, the suit was directly foruided upon a delivery bond, and in which the court say : “When suit is brought upon the bond, it may be defended against just as when brought upon any other instrument, upon which there has been a recovery had.” By which, as we understand it, the court laid down the law to be, that, in consequence of a delivery bond, after forfeiture having the force and effect of, and being in fact an office’judgment, no defence could be interposed which could reach behind the date of the judgment. Hence, its execution or consideration could not be questioned after breach; for the reason, that the bond, by operation of the statute, is transformed into, or is merged in the judgment, which becomes, thenceforward, the evidence of what the bond before imported. For defects, relating to the execution or consideration of the bond, after breach the party could have no other relief than a resort to a court of equity. See as to this, Reardon ex parte and Ruddell vs. Magruder, as above.

Wherefore, holding as we have done, that the first plea of the appellants set up a good defence to the appellees’ action upon the bond in question, it is clearly our opinion that the Circuit Court of Hot Spring county erred in disregarding the finding and verdict of the jury, upon the issue to that plea, and rendering judgment, non obstante, for the appellees, the law being in such case, that judgmént, non obstante verdicto, can only be given where the plea of the defendant confesses the action, and does not sufficiently avoid it; in which case judgment shall be given for the plaintiff, on the confession, without regard to the verdict, in favor of the defendant. See 2 Tidd's Practice, p. 920; Dickinson vs. Morrison, 1 Eng. Rep. 266, 267.

For the above error, let the judgment of the Hot Spring Circuit Court be, and the same is hereby reversed ; and let it be certified to said Circuit Court, that it is hereby directed and required to render judgment upon the verdict of the jury returned in this cause for the appellants at the trial.

Mr. Chief Justice ENG-lish did not sit in this case.


author: Mr. Chief J"ustice Ehgtjbii

text:
    Davis vs. Calvert.
    Before the owner of an animal posted as an estray, can maintain replevin therefor, he must appear within the time prescribed, prove his claim to the property before a justice, and pay or tender to the person posting, tho cost thereof. JPhelen vs. Bon-ham, 4 Eng. 389.
    A plea, to an action of replevin for an animal, that the defendant took it up as an estray, and regularly posted it as such, as required by law, and that the plaintiff did not prove property in said estray, and pay or tender the necessary fees as required by law, is sufficient, without setting forth a compliance in detail, with all the steps required by tho statute in posting a stray animal.
    A plea in bar is sufficiently certain, if it sets forth the subject matter of the defence relied upon, so that it may be fully understood by the adverse party, the counsel, the jury, and the court.
    A plea setting up a defence under a public and general law, need not recite the provisions of the statute, if the allegations are sufficient to advise the plaintiff of tho grounds and nature of the defence, and tender matter responsive to the declaration and susceptible of an issue.
    The plea of non detinet is inappropriate in an action of replevin m the cepit; and, upon motion, should bo stricken out.
    Where the defendant pleads the general issue; and, also, interposes a special plea, amounting to no more than the general issue, or setting up matter that might be given in evidence under some other plea interposed, tho proper mode of raising the objection to tho pleading is not by demurrer, but by application to the court to compel him to oloct upon which plea he will rely.

      Writ of Error to the. Ovrcuit Qourt of PMllüps Coimty.

    Hon. ChaRues "W". Adams, Circuit Judge.
    WatKINS & Gallagher, for the plaintiff.
    The plea is not objectionable, because it amounted to the general issue ; or because the matter relied on, could have been given in evidence under the general issue. In detinue, at the common law, to which our statutory remedy of replevin in the detinet is analogous, a lien must always have been pleaded specially. 1 Gh. PI. 488; 4 Bing. 106 ; 1 Dana 578, as to special property in a sheriif, 1 Gh. PI. 124.
    The plea was sufficiently certain, as it fully apprised the plaintiff that the defendant claimed the right to hold the property because ho had a lien upon it, and of the nature of that lien; and the plaintiff might well have so replied as to form an issue as to the fact, whether the animal was legally posted as an estra3r, or whether he had not paid or tendered, upon proof of property, the cost of posting it.
    As to the degree of certainty necessary in special pleas, see Spencer vs. Southwiclc, 9 John. 316, and that the general mode of pleading in this case was sufficient. 1 Gh. PI. 585, and note U.

   Mr. Chief J"ustice Ehgtjbii

delivered the opinion of the Court.

"William H. Calvert brought an action of replevin, in the cepit, against William M. Davis, in the Phillips Circuit Court, for a bay mare.

The defendant pleaded :

1. Won cepit.

2. Won Detinet.

3. Property in the defendant, traversing title in the plaintiff.

4. Property in a third person.

5. A special plea as follows: “Actio, non,-because he says, that the said bay mare, in the plaintiff’s declaration mentioned, was taken up by him, the said defendant, as an estray, and regularly posted as such, as required by the laws of said State of Arkansas, about three months previous to the service of the writ in this behalf upon him; and he held the said property as an estray, at the time the same was replevied out of his hands ; and that the said plaintiff did not prove property in said estray, and pay, or tender to the defendant, the necessary fees as required by law to iyutliorize this defendant to deliver the said bay mare up to him; ■without this, that the said bay mare was, or is the property of the said plaintiff; and this he is ready to verify, wherefore, &c.”

The plaintiff took issue to the first and second pleas, and filed replications to the 3d and 4th, to which defendant took issue.

To the 5th plea, the plaintiff demurred, on the grounds: 1st. “That the plea does not set up how said bay mare was taken up and posted as an estray, as prescribed by the statute.”

2. The plea is not responsive to the declaration.

3. The plea is, in other respects, insufficient and imperfect, &c.

The court sustained the demurrer. The parties then submitted issues to the other pleas to a jury, and the plaintiff obtained verdict and judgment for the mare.

The defendant brought error, and seeks to reverse the judgment, upon the ground alone, that- the court erred in sustaining the demurrer to his fifth plea.

Before the owner of an animal, posted as an estray, can maintain replevin therefor, against the person posting the animal, ho must apj>ear within the time prescribed, prove his claim to the property before a justice, and pay, or tender to the taker up, the costs of posting. Dig., ch. 65, secs. 21, 25, 26, 27, 28, 29; Phelan vs. Bonham, 4 Eng. Rep. 389; Garabrant vs. Vaughen, 2 B. Mon. 328.

The matter set up in the plea, was, therefore, a good defence to the action. "Was it pleaded in proper form, or with sufficient certainty ?

As a general rule, it is said to be sufficient for a plea in bar to bo certain to a common intent, while in a declaration, certainty to a certain intent in general, is required. Gould's Pl., ch. 3, sec. 53, p. 82. It is difficult to get a practical understanding of what is meant by the different degrees of certainty in pleading, as defined by Lord Coice, and followed by commentators on the subect. Mr. Gould, in treating of the certainty required in a declaration in describing the subject matter of the action, says: “No greater certainty is required than the subject will conveniently admit; or, in other words, that if the averments are so made, that the adverse party, the counsel, the jury, and the judges can fully wider - stand the subject matter, the declaration is sufficient.” Gould Plead., chap. 4, sec. 26, p. 182.

Thougli it seems, that pleas in bar admit of a less degree of certainty than declarations, yet, we think the plea in this case sets forth the subject matter of the defence relied upon, so that it may be fully understood by the adverse party, the counsel, the jury, and the court.

The counsel who interposed the demurrer, seemed to suppose that the defendant should set forth in his plea a compliance by him, in detail, with all the steps required by the statute to be taken in posting a stray animal, from the time it is taken up, until the proceedings are complete. But this would serve rather to complicate the plea, than to answer any useful purpose in pleading. The statute in relation to estrays, is a public and general law, and its provisions need not be recited in a plea based upon them. "We think the allegations, of the plea were sufficient to advise the plaintiff of the grounds and nature of the defence relied upon, so 'that he might prepare to meet it, and tendered matter not only responsive to the declaration, but susceptible of an issue.

Had the plaintiff replied to the plea, that the defendant did not take up the animal, sued for as an entray, and cause it regularly to be posted as such, as required by the laws of the State, &c., in manner and form as alleged in the plea, the defendant would have been required to prove upon a trial of this issue, a substantial compliance with the provisions of the statute on his part, in taking up and posting the animal. Harryman vs. Titus, 3 Mo. Rep. 302.

Or the plaintiff might have replied that he did prove property in the animal, and pay, or tender to the defendant, as the case might have been, the necessary fees as required by law, &c., &c., and thus have formed an issue upon negative allegations of the plea.

Or, upon leave of the court, he might have interposed two replications, one to tbe affirmative, and tbe other to tbe negative allegations of tbe plea.

It may be supposed that tbe defendant might have bad the benefit of tbe matter of defence set up in tbe plea, upon the trial of tbe other issues ; and that, therefore, tbe judgment should be affirmed. The action being in the cepit, the plea of non detinet was inappropriate ; and, upon motion, should have been stricken out. Dig., chap. 136, sec. 33, 34.

If it be conceded, that under the issue to the plea of non cepit, had it appeared upon the trial that the defendant did not take the animal wrongfully, but that it strayed from the owner, and he lawfully took it up as such, &c., the plaintiff would have failed: (Nelson vs. Merrian, 4 Pick. 249,) or if it be conceded, that under the issue to the plea of property in the defendant, if it had been proven upon the trial, that the defendant lawfully posted the animal, as an estray, and that the costs due him on that account had not been paid or tendered, and he thereby had a special property in the animal, the plaintiff would have failed in the action ; yet, it would not follow Jhat the judgment of the court, sustaining the demurrer to the special plea, should be affirmed.

Because: first, the defendant had the right to plead as many several matters as he might think necessary for his defence, (Dig., chap. 126, sec. 69; Ib. chap. 136, sec. 32); and secondly, even if the special plea interposed by him, amounted to no more than the general issue, or set up matter that might have been given in evidence under some other plea interposed, yet, the proper mode of raising the objection, was to apply to the court to compel him to elect upon which plea' he would rely, and strike out the other, and not to demur. Lincoln vs. Wilamouwicz, 2 Eng. Rep. 378; Lawson et al. vs. The State, 5 Eng. Rep. 28; Gould Plead., chap. 6, part 2, secs. 86, 87, 89.

The practice, perhaps, is to plead specially matter, of defence of the character setup in the'plea in question. Cromwell vs. Clay, 1 Dana 578; Garabrant vs. Vaughn, 2 B. Monroe 327; Phelan vs. Bonham, 4 Eng. Rep. 389. The plaintiff could have but little ground to complain, that it was specially pleaded, as lie was thereby advised of the defence relied on, and not subject to surprise, as he might be, if introduced under some more general plea.

Holding the plea to be substantially good, the court below erred in sustaining the demurrer thereto. The j udgment is therefore reversed, and the cause remanded, with instructions to overrule the demurrer, permit the plaintiff to respond to the plea, and to grant the defendant a new trial.

ITon. T. B. ITaNLy, J., not sitting in this case.