author: Mr. Justice Soott

text:
    Pike & Cummins vs. Galloway.
    It is error to permit a demurrer to the declaration to be filed, while an issue of fact of a plea in bar is standing in the record.
    The defendant executed his sealed note payable “to the order of George S. Bornie, to Messrs. Byrne & Burnside:” Bernie endorsed the note to the plaintiffs: Hull, That the endorsement vested in the plaintiffs a legal right to sue upon the note.

      Writ of Error to the Circuit Court of Pulashi Comity.

    Hon. William II. Beild, Circuit Judge.
    Cummins, for the plaintiffs.
    There is no difference in the form, or construction, or effect of notes and bonds made under our law. Story Prom. Wotes, sec. 3, 4, 33, 34, 35 ; Walher et al. vs. Johnson et al., 13 Arh. Pep. 528.

      No contract is to be construed as a surrender of a legal right — • as to assign contracts generally — especially as against a party wlio does not execute the contract. Ghit. on Oon. 663, dee.

    Naming the tisee in a bill does not affect the legal title, but simply operates as notice of the equity to first indorsee. Chit, oh Bills 199, 200.
    OüeRAN <fc Gallagher, contra.
    Plaintiffs do not show a complete title in themselves to the instrument sued on. Blooh vs. Walker, 2 Ark. 4/ Buchner vs. Greenwood, 1 Eng. 206.
    Byrne & Burnside were the legal owners of the note, and not George S. Bernie, the assignor. 1 Ghit. PI. 7/ Potter vs. Wale-College, 8 Goto. 60/ Bogert vs. DeBussey, 6 John. Bej>. 94/ Her-shy et al. vs. Fichóse, 7 Eng. 125.
   Mr. Justice Soott

delivered the opinion of the Court.

This was an action of debt upon an instrument of writing, a copy of which, together with the endorsement under which the plaintiffs made title, is as follows, to wit:

“$237 50.

Fort. Washita, Chickasaw Natiok,

February 5th, 1848.

Eleven months after date, I promise to pay, to the order of George S. Bernie, to Messrs. Byrne & Burnside, Ohartre street, New Orleans, two hundred and thirty seven dollars and fifty eents, value received, without defalcation, as witness my hand and seal.

E. L. GALLOWAY.” [Seal.]

Endorsed:

“Pay to Messrs. Pike & Cummins, of Little Eock.

GEOEGE S. BEENIE.”

Tbe declaration was in tlie usual form, setting out tbe writing obligatory and tbe assignment, and making profert of eacb. At tbe return term, oyer was craved, and copies, as we have set them out, were accepted as a sufficient grant thereof. Whereupon, tbe defendant entered his plea of payment, and tbe plaintiffs j oinecl issue; and, on motion, tbe court ordered that both parties have leave to take depositions to be read conditionally upon tbe trial, and continued tbe cause.

At tbe next following term, no order appearing to allow a withdrawal of the plea, tbe defendant filed a demurrer to tbe declaration, assigning for cause:

lsi. That plaintiffs failed to show a legal title to the instrument sued on. Tbe legal title is in Byrne & Burnside. Plaintiffs’ assignor bad no right to assign.

2d. Tbe declaration shows no cause of action.

3d. That tbe instrument given on oyer, varies from tbe one described in tbe declaration.

The plaintiffs j oining in tbe demurrer, upon argument, tbe court sustained it, and tbe plaintiffs declining to proceed farther, final j udgment was rendered for tbe defendant, and the plaintiffs brought error.

No question has been made by counsel, as to tbe irregularity of allowing tbe demurrer to be filed after the plea of payment and issue thereon, and when that was still standing in tbe record ; and none as to the alleged variance. It is only the questions raised on the other two assignments in the demurrer, that are insisted upon in this court. To solve them, we must necessarily interpret the contract between tbe parties.

Prom tbe face of tbe instrument, it seems manifest, that Bernie and Galloway were tbe original contracting parties. The consideration of their contract has not been questioned, and its sufficiency must, therefore, be taken for granted. It.is alleged, that they contracted within this jurisdiction; and, therefore, they must be taken to have contracted with reference to our laws. Tne same is to be said of the contract of assignment between Bernie, and Pike & Cummins.

By these laws, in analogy to the law merchant, its rules respecting the rights and remedies of the makers, endorsers, and holders of bills, notes, and writings obligatory, indiscriminately, when for the payment of money absolutely ; the manner of making the assignment and its effect, and the mode of presentment and notice, have been, by the current of our decisions, enforced. See the cases cited to this effect, in Worthington vs. Curd, 15 Ark. Rep. 504. By one of these rules, when a note is made payable, “to the order of A,” it is valid, and in contemplation of law, is payable to A, while he remains holder. Story on Prom. Notes, p. 40, seo. 36, and authorities there cited. By another one of these rules, he may, by his endorsement upon the note, thus making his order, transfer his right to receive the money to another person, to whom, in that case, in contemplation of law, the maker’s promise is as emphatic to pay the money to the endorsee, as it was before the endorsement, to pay it to the payee himself. By another rule, it is solely at. the payee’s election, with which the maker has no concern, whether he will retain the note himself, or pass it to another person. All these rules are to promote the negotiability of the paper, and to facilitate the payee in passing it off like currency in the course of trade. And there are other rules, all tending the same way, like that which construes any equivalent words in a note, as “ assigns, ” to mean “order,” or “bearer,” as the case may be, in favor of negotiability. Story on Prom. Notes, p. 41, sec, 44. Until such a note shall have been passed off, the right to receive the money, and the consequent right of action, upon its non-payment, remains with the payee. Afterwards, both are in the indorsee, who stands in the shoes oi the payee. . •

In the sealed note before us, on which we are to determine the questions raised by the demurrer, when the words “to Messrs. Byrne & Burnside” are left out, we' have a perfect instrument, about which no question could arise. If, when considered as it is, and Bernie had indorsed it to Byrne ,& Burnside, the rights, either of the maker, or of the indorsees, would, in no respect, have been different, bad the words “to Messrs. Byrne and Burnside” been left out; because, in tbe general undertaking, “to pay to the order of George S. Bernie,” tbe maker bad, in contemplation of law, obliged bimself to pay to whomsoever Bernie might indorse tbe note; and bad, therefore, already embraced Byrne & Burnside, if they should have happened to become the indorsees.

The only matter of difficulty then, is, in determining whether or not the special undertaking to pay Byrne and Burnside, upon the condition that the payee should indorse the note to them, should be held to be an inhibition upon Bernie, to indorse it to any one else.

The negotiability of notes, as we have seen, is to be favored. In contemplation of law the maker had no concern with this. IIo is supposed to owe the money, else he would not have given his note for it; and, therefore, it is a matter of no consequence to him, to whom he pays it. And hence, no presumption arises that he is injured, whether the note remains in the hands of the payee, or is passed off by him. Any construction, therefore, of the phraseology of a note in favor of its negotiability, cannot be supposed to injure the maker, and any construction against it cannot be supposed to benefit him. Until the contrary, then, should expressly appear upon the face of the note, any thing therein, which mightjrelate to its negotiability, ought to be taken to have been inserted for the benefit of the payee. This is what the law does, when it construes “assigns” to be equivalent to “order.” With this understanding of the law, what figure do the words “to Byrne & Burnside” cut in the note before us ? Just none at all, in our opinion, since it can have no effect to enhance the negotiability of the note, and cannot be supposed to have been designed to restrict it, otherwise than by vague inference, having no foundation to rest upon in any thing upon the face of the note going to repel the presumption, that the payee alone was interested in its negotiable qualities.

There is another point of view in which this note may be regarded, in which the legal result in this case will be the same. That is to say, it is probable, from its face, that the money, which the maker promised to pay to the order of Bernie, was for the use and benefit ot Byrne & Burnside. In that case Bernie was, in contemplation of law, a trustee for that firm; and, in that capacity contracted with the maker for their use. In this view, Bernie’s endorsement was sufficient for the plaintiffs to sustain their declaration; because, “in the case of a note payable, or indorsed to a trustee for the use of a third person, the trustee alone is competent to convey the legal title to the note, by a transfer or indorsement.” Story on Prom. Potes, oharp. 4,^?. 130, seo. 125, and authorities cited in note 3.

The consequence is, that we think the plaintiffs showed, by their declaration and the note and assignment exhibited on oyer, not only a title to sue, but ample cause of action. Hence, the court below, in our opinion, not only erred in suffering the demurrer to be filed, while an issue of fact, on a plea in bar, was standing in the record, but in sustaining the demurrer for the causes assigned. The judgment rendered, will, therefore, be reversed, and the cause remanded, to be proceeded with according to law, and not inconsistent with this opinion.


source: Caselaw Access Project

author: Mr. Justice ITaNlt

license: Public Domain

text:
    Kirkpatrick vs. Wolfe & Bishop.
    where a party moves for a new trial, he waives all prior exceptions not incorporated in his motion for a new trial. Nevill vs. SimcocJc & Ewing, 15 Arle. 511, and previous adjudications.

    A written endorsement on a note, signed by the payee, and directing- payment thereof to be made to a third person, is not sufficient evidence of an assignment of the note, without proof of delivery.
    A party will not be entitled to a new trial on account of newly discovered evidence, where it is merely cumulative; nor unless he shows that he has used due diligence to procure it at the former trial.

      Writ of Error to the Circuit Court of Ashley Cou/nty.

    The Hon. Tueodoeio F. Soeeells, Circuit Judge.
    FowleEj- for the plaintiff.
    The judgment in this case was clearly wrong. The proof of the assignment in full was uncon-tradicted; and there was no pretence that the note was either reassigned, or the assignment stricken out. The plea was a proper-one in bar, and judgment ought to have been rendered in Kirkpatrick’s favor. Gamblin et al. vs. Walker, lArk. Rep. 222/ Bloch vs. Walker, 2 ib. 10 ; Roane et al. vs. Rafferty et al., 5 ib. 467 / Rafferty vs. Rutherford, ib. 650; Dickinson et al. vs. Burr, 7 ib. 41/ Leavitt vs. Cowles et al., 2 McLean'’s Rep. 492.
    PiKE & CuMMiNS, for defendants.
    By moving for a new trial the party waived all prior exceptions.
    As well in regard to that point, as to the other, and only one supposed to be relied on, that is, as to the assignment of the note, the case of Worthington vs. Curd da Co., 16 Ark. Rep., is conclusive.

      The newly discovered evidence is no ground for a new trial: lsi. Because the party shows no diligence to get the evidence before the trial. 2d. Because it merely attempts to impeach a witness. 2 Ark. Rep. S3, 133, 346.
   Mr. Justice ITaNlt

delivered the opinion of the Court.

This was an action of debt, commenced in the Ashley Circuit Court on the 4th October, 1853, founded on a promissory note, made by the plaintiff in error and others, not proceeded against for want of service, payable to the defendants as co-partners, dated 11th August, 1847, and payable at nine months from date.

Several pleas were interposed bjr the plaintiff, Kirkpatrick, to wit: 1st. Nil debet. 2d. That on the 11th August, 1847, Wolfe & Bishop endorsed, assigned, transferred and delivered said note, for value received, to Wilson & Duprey, and averring that they were the owners thereof. 3d. Payment of principal and interest to Wolfe & Bishop, on the 11th May, 1848. 4th. Statute limitations of five years.

The defendants in error joined issue to the first plea; demurred to the second, for technical objection, which was sustained, and an amended one filed, of same import, which was replied to, and issue made up thereon. Beplication denying payment and issue thereon, and replication and issue to the 4th plea.

It appears from the transcript, that neither party required a jury, and the several issues, as,above, were submitted to the court by consent. Yerdict and finding for the defendants in error, for the amount of the note sued on, and interest, on the following testimony, to wit: The note sued on, and an endorsement thereon in these words: “Pay to the order of Wilson & Duprey,” signed “Wolfe & Bishop,” which manifested no marks of obliteration, and which was read without objection by the plaintiff in error; and the following oral testimony, to wit: Samuel J. Gook, a witness for the defendant in error, testified: “That he received said note from Wolfe & Bishop, by letter, for collection, and wrote back to them for their Christian names, and they sent them, and that he brought suit, and had no knowledge of any one else having anything to do with itand also, the testimony of John B. Savage, who swore, “That he was former clerk of said court; that on the 4th October, 1853, he filed the original declaration in this cause, as its endorsement shows; (which he produced and read as stated); that by leave of the court the defendants in error had leave to withdraw their declaration, filed on the 4th October, 1853, and to file a new one in its stead, which they did on the 25th March, 1854, which is the one now in court. (The witness read the orders from the record, which sustained his statement.) This was all the evidence adduced by the parties, at the trial below. Court gave final judgment for the defendants in error, on the verdict as above stated.

Plaintiff moved the court, in writing for a new trial, setting out therein the following causes: 1st. That the verdict was against the law and evidence. 2d. Because of newly discovered evidence since the trial; and with, the motion, the affidavit of plaintiff in error was filed, stating, in substance, “That since the trial he had learned he could prove by one Wiggins, that Wilson & Duprey, to whom the note sued on purports to be assigned, placed the same in the hands of the witness, Cook, to be sued on ; that he did not know of the existence of this evidence at the time of the trial had in this cause.” "Which motion was overruled, and plaintiff in error excepted, setting out in his bill all of the above facts.

He now brings error, assigning several causes, wherefore, said judgment should be reversed, which we will proceed to consider.

It is insisted by the defendants .in error, that the plaintiff, in consequence of his having moved for a new trial in the court below, waived all prior exceptions, and must stand on the intrinsic justice of his case. This is undoubtedly correct, with this quali fication : Provided, the party does not incorporate in his motion for a new trial, the antecedent decisions of the court of which he complains as grounds for a new trial. See Nevill vs. Hancock & Ewing, 15 Ark. Rep. 511, and. the former adjudications of this court to the like effect.

It does not appear from the transcript in this cause, that any exceptions were taken to the ruling of the court, by the plaintiff in error, at any stage of the proceeding, until his motion for anew trial was overruled. It follows as a consequence, that no complaint can be heard or considered in this court, except upon what may appear from the exceptions taken, on the overruling the motion for a new trial, and on the grounds therein set forth. See Dickinson et al. vs. Burr, 15 Ark. Rep. 374.

It is maintained, that the finding of the court, was not authorized by the facts and the law.

There was no evidence whatever introduced by the plaintiff in error to support the issue upon his second plea. It was incumbent upon him, from the pleading in the cause, to prove an assignment of the note sued on to ’Wilson & Dnprey ; this he did not do. Ilis only evidence upon this point was the evidence of the endorsement upon the note, which did not prove the issue on his part. He should have gone farther, and proved that the assignment to Wilson & Dnprey was rendered complete and perfect by proof; that after endorsement in writing, the note sued on was delivered to them. This whs essential as held in the case of May vs. Cassidy, 2 Eng. Rep. 376; Feimster vs. Smith, 5 Eng. Rep. 496; Mitchell vs. Conly, 13 Ark. Rep. 416. So far from a delivery to Wilson dc Dwprey being proved, the reverse was conclusively shown by the testimony of the witness Cook. He testifies that he received the note in question directly from the defendants in error. The court was warranted in finding upon this issue for the defendants in error. The truth is, we are at a loss to conceive how it could have found otherwise from the law and evidence.

As to the other issues, there is no question made by the plaintiff in error in regard to the propriety of the finding of the court upon them. The evidence is conclusive for the defendants in error upon these issues. We find no error, therefore, in the verdict of the court in respect to them.

The only remaining point to be determined, is, the one made in respect to the newly discovered evidence; and as to this, too, we hold that the court below ruled properly : because the plaintiff in error does not show any diligence whatever on his part, whereby to obtain the newly discovered evidence, and for the additional reason, that it was cumulative of the evidence produced at the trial, and as to these, see the case of Burriss vs. Hurd & Wise, 2 Ark. Rep. 33.

Finding no error, therefore, in the record and judgment of the Circuit Court of Ashley county, they are in all things affirmed. Let the judgment be affirmed.


author: Hr. Justice HaNLY

text:
    Arrington vs. Conrey et al.
    The Circuit Court may, under its high equity powers, cause its record to be amended at a subsequent term, in whatever may be necessary to make it speak the truth, whenever the ends ol justice require such amendment. (King & Houston us. State Bank, 4 Eng. 188.)
    Though such amendments may sometimes be made by interlineation, the more regular mode after the judgment term, is, by an order of court reversing the defective entry, followed by a new one, nunc pro tunc, such as should have been made in the first instance. Ib. But the entry of the new judgment is, virtually, a reversal of the first one.
    where it is clearly made to appear that there is an omission or error in the entry of the judgment, as to the amount recovered, caused by the misprision of the clerk of the court, such judgment should be amended.

      Appeal from the Circuit Court of Ouachita County.

    Hon. Thoitas Hubbaed, Circuit Judge.
    'WateeNS & Q-allaguee, for tbe appellant.
    OuMMTNS, for tbe appellee.
   Hr. Justice HaNLY

delivered, tbe opinion of tbe Court.

It appears from tbe transcript in this cause, that on tbe 24th August, 1854, tbe appellees caused notice in writing to be served on tbe appellant, to tbe effect, that they would apply to tbe Oua-chita Circuit Court, at the term thereof to be holden in October next thereafter, for judgment against him, (appellant,) mmopro tunc, in their (appellees’) favor, as of tbe 7th October, A. D. 1851, for tbe sum of $424 66 cents damages, with 8 per cent, interest until paid, instead of tbe sum of $142 66, with eight' per cent, till paid, as rendered by said Circuit Court of Ouachita county, on tbe 7th day of October, A. 1). 1851, in favor of tbe ap-pellees, and against appellant. It further appears from tbe transcript, that tbe notice aforesaid was filed in tbe office of tbe clerk of tbe Circuit Court of said county of Ouachita, on tbe 29th August, 1854; that at tbe October term of such court, for 1854, tbe appellees came and filed their motion in writing, verified by affidavit, in effect, that, at tbe October term of said court, for 1851, they recovered a judgment against tbe appellant in a suit founded on a promissory note, for $281 60 cents, bearing interest at eight per cent, per annum from maturity: tbe same being dated 3d December, 1844, and due six months from date, payable to tbe order of appellees, and signed “Taylor & Arrington:” tbe said Arring-ton being alone sued in tbe action; that at tbe time at vidiich such judgment was so rendered, tbe appellant rested bis defence upon two pleas of tbe statute of limitations of five years, and two pleas of tbe statute of limitations of three years ; that said appel-lees took issue upon each of said pleas ; said issues were submitted by consent, to the court sitting as a jury, on no other evidence than the note sued on ; that said note was still of record, and ready to be shown to the court; that the court upon the submission of said cause, found in favor of the appellees upon the issues to the two pleas of the statute of limitations of five years, and in favor of the appellant upon those to the statute of three years, but gave judgment for the appellees non obstante mredioto, thus rendering judgment, on all the issuesjfor the appellees, for the amount of said note, with 8 per cent, interest, from its maturity, until judgment; that according to the finding and judgment of the court as aforesaid, the judgment now of record should be for the sum of $424 26 cents, damages, with interest at eight per cení, till paid; but that, by a mistake or misprision of the clerk of said court, said judgment was recorded asbeing only for the sum of $142 66 cents, with interest at eight per cent, till paid ; that the records of said court still remaining, clearly show the error of said clerk in the recording of said judgment, and asking that the court would amend the said record by entering 'judgment, nunc pro iwic¡ as of the 7th ¡October, 1851, for the sum of four hundred and twenty-four dollars, and twenty-six cents, the amount for which thejudgment of the court was really rendered, and would then have been on the record, but for the misprision of the clerk as aforesaid.

The consideration of this motion, both parties appearing, was continued by consent, from October term, 1854, to the succeeding term in April, 1855.

At the April term, 1855, both parties again appeared, and the motion to amend as above, was called up, and in support thereof, the appellees read to the court the original record, including the declaration, pleas, replications and note sued on, and the various entries made in respect to said cause, from its commencement to its result. Tie furthermore read the written statement, made under oath in open court, of one Thompson, who stated, in substance, that at the time the proceedings were had in the cause aforesaid, he was the assistant as deputy of the clerk of the Circuit Court of Ouacbita county; and, as such, attended mostly to the business of the court, and entering upon the records the proceedings thereof; that he recollected distinctly all that occurred at the time the final judgment in this cause was rendered, at the October term, 1851, of this court, and by his statement sustained the facts set forth in the motion of the appellees above stated; stating further that the note in question, the foundation of the finaljudgmentin this cause, was handed, at the request of the court, (made at the time said judgment was rendered, 7th October, 1851,) to the counsel of the appellee, to compute the interest, with directions that the principal thereof, and the interest which had accrued, should be added together as the damages, and that judgment should be entered for that amount; that said note was returned to said Thompson, with a calculation endorsed thereon, in pencil, showing as the result $142 60, which he, Thompson, took to be the amount of damages claimed, but on subsequent examination he discovered was only the amount of interest due on said note from its maturity to that time, and that, through mistake and inadvertence, he, as such deputy clerk, entered up said judgment for the amount of said interest, $142 66, as the damages, omitting to add thereto the principal of said note, $281 60.

To the reading of which statement, the appellant at the time objected, and his objections being overruled, he excepted. The appellant also objected to the reading of the original record, the pleas, replications, entries, and the note sued on in the original cause, at the time they were respectively offered, but his objections were overruled by the court, and he excepted.

The above was -all the evidence introduced in siipport of the motion, by the appellees.

The appellant then proceeded to prove, by the original files or records of said court, that, at the October term, 1851, he prayed for and obtained an appeal, from the judgment then rendered in this cause, to the Supreme Court, and this was all the evidence introduced by him.

On this state of case, the court below, on the 5th April, 1855, sustained the motion of the appellees, and in pursuance thereof, proceeded to amend the record in conformity therewith, by entering judgment, then, as of the 7th October, 1851, for the sum of $424 26 cents, in lieu of the sum of $142 66, as entered of that date by mistake.

To'the opinion of the court, sustaining said motion of the ap-pellee, and the entry of the judgment, nunc pro tunc, the appellant excepted, and embodied the evidence aforesaid therein.

The cause is brought here by appeal and supersedeas; the appellant having entered into recognizance in the court below with that view.

Some six errors are assigned by the appellant, why the judgment of the Ouachita Circuit Court should be reversed.

¥e will not pretend to notice the various errors assigned, conceiving, as we do, that the view that we shall take of the case, will dispense with a detailed notice of the points arising upon the assignment.

The record of the proceedings of the original suit does not come up, and is not presented in our present inquiry, further than as they are presented by the bill of exceptions, shown in the transcript in the present proceedings. We will not look to that to determine whether there was or was not error in the original suit, and the proceedings thereunder, holding, as we do, that they are not involved in the present inquiry.

The question under consideration is therefore narrowed down to the simple enquiry whether the court below did or did not err in permitting the amendment at the April term, 1855, of the Ouachita Circuit Court.

That “the authority of a court to amend in such cases” (as the one for instance, presented for our consideration) “does not arise from the statute of amendments and jeofcdls, but from the high equity powers of the court, which enable it to amend in whatever may be necessary to make the record speak the truth, whenever the ends of justice require such amendment,” is to us, a self-evident proposition, and does not admit of controversy, at this late clay. See King & Houston vs. State Bank, 4 Eng. Rep. 188. "We, therefore, hold that the court below possessed, both thepower and authority, to allow the amendment made in the case at bar.

Our next inquiry will be, did the court permit the amendment in the manner and mode authorized by law ? And as to this, we conceive the case of King & Houston vs. State Bank, above cited, is conclusive; for, say the court in that case, “although many amendments may be appropriately made by interlineation, especially when the order of the court granting them, specifies and describes the particular amendment allowed to be made, * * still the more regular mode of making these amendments, after the judgment term, is, by an order of court, reversing the defective entry, followed by a new one, nunc pro tunc, such as should have been made in the first instance : which was the precise mode and manner pursued in the case now being considered; except, that the court in the last order did not reverse thefrst, in express words, but which we hold to have been virtually done by the last order.

The only remaining inquiry for us is, did the court discreetly exercise the 'poioer and authority inherent in it, in allowing the amendment from the facts developed by the transcript?

"We are at a loss to conceive of a case which could be more strongly made out and more conclusively established by the facts, than the one at hand. Every circumstance and fact point unerringly to the conclusion, that there was an omission or error in the first judgment, and that it was caused by the misprision of a> person other than the court or j udge. The error is purely an error of fact and not of law ; one proceeding from an officer or person acting in a ministerial capacity; and, therefore, to prevent the real and true judgment of the court from being defeated, should have been amended.

"We, therefore, affirm the judgment of the Ouachita Circuit Court in all things touching this proceeding.


text:
    Jordan vs. Bradshaw et al.
    A sheriff’s deed is evidence, under tho statute (sec. 60, chap. 67, 'Digest,) of the facts recited in it; but if such deed fail to recite all the facts required by the statute — as where it fails to recite the judgment under which the property was sold — it can furnish no evidence of the existence of such facts: and the party claiming under tho deed, must prove them aliunde.
    It is not ne.cessary that an execution should issue within a year and a day to keep tho judgment alive. (Sanl/y vs. Garneal, 14 Aríc. 827.)
    The issuance of an execution by a justice of the peace, upon a judgment rendered by him, and a return of nulla Iona thereon, are pre-requisites to the filing of a transcript of such judgment in tho Circuit Court and the issuance of execution therefrom: but a failure to comply with such pre-requisites, cannot affect the rights of strangers when brought up in a collateral proceeding, and can be taken advantage of by tho defendant, only, in a direct proceeding.
    A sheriff’s deed for land sold under a judgment of a justice, need not recite the issuanco of an execution by the justice and a return of nulla bona before the filing of tho transcript of the judgment in the Circuit Court. Such facts may be proved by tho certificate of the justice, to that effect, accompanying the transcript without tho production of the original execution and return, or'ja certified copy thereof. ■
    A sheriff’s deed to the purchaser of land sold under execution, together with the Auditor’s deed to the judgment debtor for the same laud conveying a tax-title, sufficient evidence of the right of possession to maintain ejectment.

      Appeal from the Ci/reuit Court of Pulaski County.

    This was an action of ejectment brought by Jordan against Bradshaw and Manuel, and determined in the Pulaski Circuit Court before the Hon. "William: H. Peild.
    The plaintiff, to sustain the issue to the plea of not guilty, read in evidence a deed from the Auditor to James Mills for the land in controversy, which had been forfeited for non-payment of taxes; and a deed from tbe sheriff of Pulaski county to him, reciting an execution against said Mills, in favor of Asa Gr. Baker, but omitting to recite the judgment, on which the execution issued, or its date, or where, or by whom rendered. The sheriff, however, in his acknowledgment of the deed, stated that the land was levied upon and sold under an execution issupd from the office of the clerk of the Circuit Court upon a judgment rendered before a justice of the peace in favor of Asa G. Baker against James Mills.
    The plaintiff' also read in evidence, from the docket of judgments and decrees of the Circuit Court, the entry of a judgment therein between said parties, and a transcript of the proceedings and judgment in the case, before the justice of the peace, filed in the office of the clerk ; in which transcript it appeared to have been noted on the justice’s docket, that execution had been issued on the judgment, and returned nulla bona by the constable.
    He then read the execution from the Circuit Court, under which the sale was made, reciting the judgment before the justice, the issuance of execution and the return of nullabona, and the filing of the transcript in the Circuit Court, together with the return of the sheriff showing the levy, &c., and sale to the plaintiff.
    On motion of the defendants, the Circuit Court excluded from the jury the transcript of the proceedings and judgment of the justice ; filed in the Circuit Court, the execution that issued thereon and the return’; and, also, the sheriff’s deed to the plaintiff; and, thereupon,, instructed the jury, in effect, that to entitle the plaintiff to recover, he must read in evidence either the original execution issued by the justice with the return of nulla bona thereon, or a certified copy of such execution and return.
    The verdict and judgment being for the defendants, the plaintiff moved for a new trial, which was overruled, 'and he excepted and appealed, to this court.
    JoedaN, for the appellant.
    Bertrand and S. H. Hempstead, for the appellees.
   I-Ion. TiioMas J oirNSON, Special J udge,

delivered the opinion of the Court.

The first assignment of errors questions the propriety of the decision of the court below, in requiring the plaintiff to produce the judgment and execution, under which the land in controversy was sold, before he could read the sheriff’s deed in evidence. The 60th section of chapter 67, of the Digest, provides that “ The officer wlio shall sell any real estate, or lease of lands for more than three years, shall make the purchaser a deed, to be paid for by the purchaser, reciting the names of the parties to the execution, the date when issued, the date of the judgment, order or decree and other particulars recited in the execution; also, a description of the time, place and manner of'sale, which recital shall be received in evidence of the facts therein stated.” There can be no question but that the sheriff’s deed is evidence of the facts recited in it; for the statute is plain and positive upon the subject, and if the deed shall have recited all the facts required by the statute to constitute a complete transfer of all the right, title and interest, which the debtor had in and to the property sold, it is equally clear, that it should have been received as evidence of its recitals, and that too, without the introduction of the judgment and execution upon which it was founded. This court, in the case of Newton vs. The State Bank, 14 Ark. Rep. 10, said: “The act of the Legislature which requires the sheriff to recite the names of the parties, the date of the writ and of the judgment, together with a description of the time, place and manner of the sale, and which makes such recitals evidence of the facts so recited, was intended by the Legislature to supercede the necessity for producing the record from which such recitals were made as a matter of convenience and to furnish evidence of the authority under which the officer acted, as well as the manner in which he had executed his authority, in the deed itself. Not that the recitals should be conclusive evidence of the facts recited; for that would exclude all inquiry into the authority under which the sheriff acted; but that it should be legal, competent evidence until falsified by evidence of a higher and more authentic character. The statute requires the deed to recite the names of the parties to the execution, the date when issued, the date of the judgment, order or decree, and other particulars recited in the execution, and, also, a description of the time, place, and manner of the sale.” The deed‘exhibited in this case falls short of the requirements of the law, and that too in an essential particular; and, consequently, could not, of itself, and unsupported by other proof, have made such a case as would have entitled the plaintiff to recover. The deed is wholly silent as to the judgment; and, consequently, can furnish no evidence even of its existence, and much less of its date and filing in the Circuit Court. Without the provision of law already referred to, there can be no doubt of the necessity of laying a foundation for the introduction of the sheriff’s deed by first producing the judgment or execution upon which it is founded; and, as a necessary consequence, the deed, to supersede the necessity of such a foundation, must show a full compliance with the statute. The Circuit Court, therefore, did not orr in requiring the plaintiff in this case, to produce the judgment and execution before he could be permitted to read the deed in evidence. The plaintiff!, in obedience to the order of the court, read in evidence the docket entry in respect of the transcript of the justice’s judgment, the transcript of said judgment itself; and,, also, the original execution issued to the sheriff of Pulaski county upon said transcript, and under which the plaintiff purchased the property in dispute, and also the deed from, the sheriff to the plaintiff for said property. The defendants then moved to exclude each of the documents as evidence. The motion to exclude the transcript of the judgment of the justice was put upon the ground, that said judgment was dead before the transcript thereof was filed in the clerk’s office, as it did not appear from said transcript that an execution had been issued thereon within a year and a day from the time of its rendition ; also, upon the ground that the judgment was void, and further, that tlie plaintiff had failed to show that an execution had issued on said judgment by the justice, and had been returned “no property found,” before the transcript was filed in the clerk’s office, and execution issued thereon by the clerk, which the defendant’s counsel contended could only be shown by a transcript of such execution and return, or by producing the original; and thereupon, the court announced that inasmuch as said transcript of the justice did not embrace a transcript of such execution and return, he would sustain said motion, unless the plaintiff would produce and read in evidence such original execution and return thereon, or a certified copy thereof. The plaintiff having failed to produce either the original execution and return, or a certified copy thereof, the court excluded the transcript of the justice’s judgment filed in the clerk’s office, and the execution issued by the clerk, and the return of the sheriff thereon, and also the said deed executed by the sheriff to the plaintiff for the land in question. The first ground of the motion to exclude, ivas clearly untenable. It was not necessary under the law, that an execution should have been issued within a year and a day in order to keep the judgment alive, as the lapse of that period of time did not even raise a presumption of payment. This court in the case of Hanly vs. Carneal, 14 Ark. Rep. 527, said, that “by the Revised Statutes -of 1839, Title, LimitatioN, see. 30, judgments and decrees thereafter rendered, are presumed to be paid and satisfied, after the expiration of ten years from their rendition, and by the act of December, 1844, repealing the 30th section referred to, the like period was adopted as a limitation of actions upon judgments. It is manifest that under our statute of limitations, fixing the period often years, as the life time of a judgment no conclusive presumption in law of payment can arise within that space of time, and that consequently there can be no necessity to issue executions from time to time to keep it alive. True it is, that the judgment of a justice of the peace is not a lien, per se, upon the property of the defendant, before it is- filed in the Circuit Court: and, in that respect differs from that of the Circuit

Court, yet, inasmuch as no presumption of payment can arise from an omission to issue execution within a year and a clay, we can see no good reason for taking a distinction between them in regard to the necessity of taking steps to keep them in life. "We consider this the inevitable result of the doctrine laid down by this Court, in the case of Hanly vs. Carneal, already referred to. There is nothing appearing to show that the judgment is void, as contended by the defendants. The amount was within the jurisdiction of the justice, and the record shows upon its face that the justice had jurisdiction of the person of the defendant, as it purports to be by confession. The third and last reason assigned why the transcript of the justice’s judgment ought to be excluded, was also badly taken. It is true, that an execution to be issued by the justice, and a return of nulla bona, are pre-requisites to the filing of the transcript of a judgment of a justice in the Circuit Court, and the issuance of execution therefrom, yet, it is not even necessary that the execution from the Circuit Court on such j udgment, should recite the fact of such issuance and return of execution. See Massey vs. Gardenhire, 7 Eng. R. 638. So that the execution issued in this case by the clerk of the Circuit Court, and under which, the plaintiff purchased tlu* property in dispute, need not have recited the facts of the issu nee of the execution by the justice and return of nulla bona he constable, but having so recited them, and such recital •= u.>- supported by the certificate of the justice accompanying transcript of the judgment, most assuredly made a prima ' case of their existence; and, consequently, the Circuit C . rred in excluding the justice’s judgment upon that grout > l"v authorizing a justice’s judgment to be filed iu tln - ’->>nrt, and making it a lien on the real estate of the defei >m the time of the filing the transcript thereof, (see Mc Robins, Ex., 14 Ark. R. 602), does not require the <-. < .1 c edition, or even a copy thereof to be filed with the judg i . , : ie it is, that it declares no execution shall be issued . hreuit Court thereon until an execution shall have l - a justice, and returned that tbe defendant has no goods or chattels, whereof to levy the same. The statute, in requiring the plaintiff, in a judgment rendered by a justice of the peace, to take out an execution and to have a return of nulla bona, upon it before he can claim to have a transcript of such judgment filed in the Circuit Court, was designed alone for the benefit of the defendant, in order that his real estate should not be charged or sold, so long as he had personal property to satisfy such judgment. __ Such being the reason of that requirement of the statute, it is clear that an utter failure to com-ply with it, cannot affect the rights of strangers, when brought up in a collateral proceeding, but in no event could amount to any thing more than an irregularity, and as such to be taken advantage of alone by the defendant in the judgment, in a direct proceeding interposed for the purpose of quashing the process issued upon such judgment. We are clear, therefore, that the court below erred in excluding the transcript of the justice’s judgment, the execution issued to the sheriff thereon, and the deed executed by the sheriff to the plaintiff. There can be no doubt or question in regard to the sufficiency of the evidence offered by the plaintiff to show, at least, a right of possession to the' premises in controversy. It is not deemed necessary to decide, in the present attitude of the case, how far the showing made by the plaintiff, went to establish his title to the property, as he was entitled to recover, either upon his title or his right of possession. See Dig., oh. 60, seo. 11. This is believed to cover all the ground occupied by the bill of exceptions, and to dispose of all the points properly presented by the record. The judgment of the Circuit Court of Pulaski county herein rendered, is therefore reversed, and the cause remanded, to be proceeded in, according to law, and not inconsistent with this opinion.

Mr. Chief Justice ENGLISH not sitting in this case.


author: Hr. Justice Haillt

text:
    Ross et al. as Exrs. vs. Davis. Davis vs. Ross et al. as Exrs.
    To render the title of a legatee to a specific legacy, complete and perfect, previous to the time allowed for the settlement of the estate of the testator, the assent of the executor is indispensably necessary. (Ref eld et al. Rim's. vs. Bellette et al., 14 Ark. 15 ; Garter et al. vs. Cantrell, 16 Arkf)

    If the executor voluntarily assents to a legacy, he cannot, afterwards, retract or witli- # draw such assent, nor can he, generally, pursue the property in the hands of the legatee, even though there may be a deficiency of assets to liquidate the outstanding liabilities of the estate.
    where an executor has delivered to the legatee, a specific legacy, within the period of distribution prescribed by the statute, and taken a refunding bond (Digest, chap. 4, secs. 130, 131) his remedy, upon ascertaining that there is a deficiency of assets to pay debts, is at law upon the bond, or he may proceed, generally, in chancery to compel the legatee to refund.
    In such case the extent of the right of recovery by the executor, is the value of the specific legacy — where it consists of property — at the time of delivery, with interest thereon: and not — as where the legacy is of a slave — of the increased value and the hire.
    It is a rule of chancery practice, that where there is a prayer for specific relief and also for general relief, and the state of the case, as presented by the bill, is not sustained by the evidence, or the court, upon principles of equity, denies the special relief, to grant the complainant, under his general prayer, any relief warranted by L the facts set up in his bill, provided the defendant be not surprised on account of such facts not being put in evidence. ( Cook vs. Bronaugh et al, 13 Ark. 188.)

      Cross Appeals from the Ciarle Circuit Court in Chcmcery.

    Hon. Thomas Hubbaed, Circuit. Judge.
    ElaNaghN, for Boss et al.
    CuMMiNS, for Davis.
   Hr. Justice Haillt

delivered the opinion of the Court.

On the 7th day of February, 1854, Boss et al. filed their original bill on tbe chancery side of tbe Clark Circuit Court, against Henry Davis, bis wife, Mary T. Davis, and William Davis, charging ixi substance therein, that, on tbe 9tk January, 1848, their testator, Wiley Newberry, made and published his will, in which they are appointed the executors thereof: that a short time thereafter the testator departed this life : that said will was proven up according to law, and is duly recorded in said county; that they applied for letters testamentary, which were granted them, and that they were then proceeding to execute said will, and administer the estate thereunder ; that, by the said will, their testator bequeathed a certain negro slave named Lucy, to the defendant William, in trust for the defendant Mary T. and her children ; that by the same will, their testator specifically devised 'two houses and lots in the town of Arkadelphia, in said county of Clark, to the corporate authorities of said town for the use thereof ; that for some time after the decease of their testator, they supposed his estate solvent, independent of, and beyond said slave, and said houses and lots; that, within this time, the defendant William, applied to them for the negro Lucy, bequeathed to him in trust for the said defendant Mary T. and her children; that they, supposing said estate solvent, delivered the said slave to the said William, on or about the 1st March, -1848 ; that since then they have ascertained said estate to be insolvent; that the houses and lots devised to the corporate authorities of the town of Arkadelphia, have been sold, to pay debts, under an order of the Probate Court of said county, for the sum of $2.1Y5 05 ; that notwithstanding this sum has been added to the assets already in hand, there is a large deficit of assets to pay the debts of said estate ; that, at the July term, 1851, of the Probate Court of said county, they made a'settlement, in which they were charged with assets amounting to $3,666 00, including the sum of $400, being the appraised value of the negro Lucy, delivered to the defendant William, under the will as aforesaid, as well as the amount for which the houses and lots sold; that allowances had been made against said estate to the amount of $5,300 00, which they aver was outstanding against the estate at the time of filing their bill, showing, as they aver, a deficiency of assets to pay the debts allowed against said estate of $2000, independent of the bad debts due said estate, which they aver are included in the estimate of assets. It is charged in said bill, that the slave Lucy •was-worth $800, and that her hire per annum was worth $100; that she has been in the possession of one or the other of the defendants, since the 1st March, 1848. The prayer of the bill is, that, the slave Lucy may be restored to complainants, and be made subject to the payment of the debts of the estate, and for general relief, &c. The will and the letters testamentary granted to the complainants, are exhibited with the bill in due form.

At the hearing, the bill was dismissed as to the defendants William and Mary T., and retained as to the other defendant for the decree rendered.

The defendant, Henry Davis, answered, and admitted the delivery of the slave Lucy at the time charged, 1st March, 1848, and likewise his possession of her from that time to the filing of his answer : charges that the slave Lucy was sorely diseased at the time she came to his possession, and was worth nothing in the way of hire for two years afterwards: charges that he paid out for medical aid on account of said slave, $150; denies that she was worth ovei* $500, and her hire for the four years preceding not more than $40 per annum denies knowledge of the settlement with the Probate Court charged in the bill. Demurs to the whole bill for want of equity, and reserves, his demurrer for the hearing; and charges that, when he received the slave Lucy from the complainants, they required of him, and he gave them, a bond of indemnity with security, to save them harmless, on account of the delivery of said slave to him.

Complainants filed their replication to the answer of the defendant, and the cause being thus at issue, it was set down for hearing, on the bill, answer, replication, exhibits and proof, which was in substance, as follows :

Hardy, a witness for the complainants, testified that, in the years 1847, and 1848, the slave Lucy was worth $700, and her hire per annum $100.

Kirby, a medical wfitness for the defendant, testified that the slave Lucy, at the time she came to' the possession of defendant, was much diseased : possibly, incurably so ; that from his knowledge of her condition, he thought she was not worth more than half as much as she would have been if sound ; and so as to her hire.

It appears that the parties admitted as evidence, that the complainants had only assets in hand to the value of $2,372 28, and that the liabilities of the estate amounted to the sum of $4,509 65. It was furthermore admitted, that defendant had paid medical bills on account of said slave to the amount of $40, and that there was a bond of indemnity given by the defendant to the complainants, at the time said slave was delivered up in the manner charged in defendant’s answer.

Before the final hearing upon the bill, answer, &c., the demurrer of the defendant to the bill of complainants, was taken up and overruled, for which defendant excepted.

At the hearing, the court decreed said slave Lucy to be given up to the complainants, and in default thereof, that defendant should pay them $550 as her value, and the further sum of $312 as her hire, and that each party should pay his own costs.

From this decree complainants appealed in the court below, and on application to this court, within the time prescribed by law, the defendant was allowed to appeal. So that the cause now stands in this court upon the appeal of both parties from the final decree as rendered by the court below.

It is insisted, on the part of the defendant, that the decree of the court below must be reversed for the reason, that the pleading and proof show that the complainants were entitled to no relief as against him. We will proceed-to determine this point, as in our view its adjudication must dispose of the entire cause as to both parties.

The bequest to William Davis, in trust for the wife of the defendant, Henry Davis, was, to all intents and purposes, a specific bequest. But, by tlie will itself, the devisee only took, and bad conferred on bim an inchoate or incomplete title to the slave in question. To render this title to the slave complete and perfect under the will, previous to the time allowed for the settlement of the estate, (See Refeld, et al., Exrs. vs. Bellette et al., 14 Ark. Rep. 158; Carter et al. vs. Cantrell, 16 Ark.) the assent of the complainants, as executors thereof, was absolutely and indispen-sibly necessary. See Wilson vs. Rine, 1 Harr. & Johns. Rep. 139; Harrison vs. Hale, 3 Call Rep. 188; 2 Blacks. Com. 512; Farrington vs. Knighly, 1 Pr. Wm. Rep. 554; Burnett vs. Whitehead, 2 Ib. 645; Toller on Executors 306.

A fter the grant of letters testamentary to the complainants, as executors, under the will in this case, all the testator’s personalty devolved upon, and became vested in them, to be applied to the payment of the debts of the estate. Before disposing of, or giving tlieir assent to the taking of specific bequests under the will, it was certainly their business, if not their duty, to look to the ■whole estate, and see whether a fund had been left sufficient for the payment of the demands of creditors. It seems from the bill in this case, that the complainants, within a very short time after the demise of their testator, vohmtarily, upon the application of the defendant, delivered the slave Lucy to him in right of his ■wife under the will. ' We have said this surrender was voluntarily made by the complainants, for the reason, that our statute provides, that executors and administrators shall notbe compelled, even by order of the probate court, to pay legacies or make distribution of estates under their charge, until after one year from the date of their letters, except in case the j>roperty bequeathed is of a perishable nature, and would become worthless by being retained, and may absolutely retain such legacies for two years, unless otherwise ordered by the probate court; but when ordered to pay over, they may not do so, until bond with security is given by the distributee, or legatee, to refund in proportion to the value of the property given him, in case any debt should be afterwards established against such estate, &c. Digest, chapter 4 see, 130, 113.

The defendant would have had no right or authority to have taken the slave Lucy without the assent of the complainants. But as soon as they assented to the taking of the slave by the defendant, under the will, from that time, the property, which was before, as we have before observed, inchoate in the defendant in right of his wiie under the will, became complete and perfect and altogether valid and indefeasible, as between complainants and defendant. See (in addition to the above authorities) McPaxton adm. vs. Dickson et al., 15 Ark. Rep. 42.

We have said the assent of the complainants was necessary to make this change in the property, as between them and the defendants, and it may be well to recur to the law to determine what acts shall constitute such assent. The law for this purpose lias prescribed no specific form in which the assent shall be given or made: a very slight assent is held sufficient. See Noel vs. Robinson, 1 Verm. 94; 4 Bacon’s Abr. 445; and this assent may bo-, either express or implied, absolute or conditional. See Tollers’ Earrs. 307. An executor may not only in direeirterms authorize a legatee to take possession of a legacy; but his concurrence may be inferred either from indirect expressions, or particular acts, and such constructive permission shall be equally available. See Andrews vs. Hurneman, 6 Pick. Rep. 126. The assent of the executors shall have relation to the time of the testator’s death. See Tollers Exrs. 309.

There can be no question as to the assent of the complainants, that the defendant should have and take the slave Lucy : That fact is manifest from the bill, and is rendered doubly certain from the agreed tacts in the case, from which it appears, that there was an absolute consideration from the defendant to the complainants inducing them to agree that defendant should have the slave under the will, i. e., the execution of the bond of indemnity by the defendant and his sureties to them. This is not only a good, but a valuable and sufficient consideration, not only to up-bold, a promise on their part, but likewise to support and maintain tlieir assent to the taking of the slave, if a consideration were required in such cases.

¥e have now but to look to the consequences of the assent on the part of the complainants, that the defendant should take the slave under the will in right of his wife, so far as they and he are concerned; for the question in relation to the rights of creditors, is not involved in the present inquiry. ~

And as to this, we find it laid down that, if an executor once assents to a legacy, he can never afterwards retract. And notwithstanding a subsequent dissent, a specific legatee has a right to take the legacy. See 4 Bacon’s Abr. 445; Mead vs. Lord Oweny, 3 Atk. Rep. 238; Toller on Exrs. 311; Doe vs. Guy, 3 East. 120; and has a lieu on the assets for that specific part, and may follow them. See Toller’s Exrs. 311. As to this, we presume the lieu only exists as between the legatee and executor, and does not extend to them as against creditors. Doe vs. Guy, ubi sup.

We hold, therefore, in the case under consideration, as it appears from the bill, answer and proof, that the surrender to the defendant of the slave in question, was not only voluntary on the part of tJie complainants, but was made advisedly under the will, and that they cannot pursue the property, even though there may be a deficiency of assets to liquidate the outstanding liabilities of the estate, without other averments than those contained in the bill of the complainants; see Lion vs. Vick et al., 6 Yerg. Rep. 42, for there are circumstances under which property specifically bequeathed, may be followed up in the hands of legatees by executors, even where it has been surrendered under the will. But no such case is made out by the complainants in their bill in the present instance.

It seems, from the proof and admissions in this cause, that the complainants took from the defendant a refunding bond, such, we suppose, as is provided for by law in such cases. If there should be really a deficiency of assets to meet the debts, they unquestionably have their remedy over against the defendant and his sureties on this bond of indemnity, or they may proceed, generally, against the defendant in chancery, to compel him to refund the value of the specific legacy given up, that it may be applied by the court of probate to the payment of the outstanding debts of the estate. But, as we have before remarked, the complainants cannot follow the specific property bequeathed and given up by them, for the reason, that the title to the slave has absolutely passed to, and vested in the defendant, under the will and the assent of the complainants, with the implied obligation in law, that lie will refund — not the slave, but her value at the time of her delivery — out of his general means or estate. See Dooley et al. Exrs. vs. Dooley et al., 14 Ark. Rep. 123.

Entertaining the view above expressed, we are clearly of the opinion that the decree of the Clark Circuit Court in chancery, in favor of the complainants, is erroneous, in this: 1st. In directing the slave to be given up. 2d. In estimating her value beyond what it was when she was delivered to defendant, and 3d. In decreeing a sum of money in the way of hire for said slave, from the time of her delivery to the defendant.

It is an unquestionable rule of chancery practice, that where there is a prayer for specific relief, and also a prayer for general relief, if the state of the case, as presented by the bill, should not be sustained by the evidence, or the court should, upon principles of equity, refuse or deny the special relief, it may, nevertheless, give the complainant, under his general prayer, any relief warranted by the facts set up in his bill; provided it be so framed, as that the defendant would not be surprised by the other relief granted, on account of the facts entitling him to it not having been put in issue. See Story’s Eq. Pl. 42; Colton vs. Ross, 2 Paige Rep. 296; Moon vs. Madden, 2 Eng. Rep. 535; Cook vs. Bronaugh and Bronaugh vs. Cook, 13 Ark. Rep. 188.

It is provided by our statute that, upon appeals in chancery causes, when the decree appealed from is reversed, this court shall proceed to make such decision or decree, as the Circuit Court ought to have made. See Digest, section 138, chapter 28, page 241.

Conceiving that the court below, under the rule of chancery practice stated above, ought to have decreed to the complainants, under the prayer for general relief and the particular facts shown by the bill and supported by the answer and other proof, wo will, therefore, reverse the decree of the Clark Circuit Court in Chancery rendered in this cause} and proceed to- render such decree as we consider the complainants entitled to from the bill, the answer, exhibits and proof shown by the transcript in this cause: that is to say: That the defendant refund to the complainant: • the sum of 0400, the value of the slave Lucy, at the time she was-delivered by complainants to defendant, to wit: the 2:4 March, 1848 ; that he pay to the complainants interest on said sum of 0400, at the rate of six per cent, per annum from said time, (Is; March, 1848,) to the time when said amount shall be refunded hereunder: that unless said payment is made to complainant.; within GO days from the time the decree herein to bo rendered r-entered up in the Clark Circuit Court, as the decree of said court, the same be proceeded in as in other decrees for the payment <h money: that the complainants pay all the costs of this court c both appeals, and the defendant the costs of the court below, up to the date of the decree below.

Let the decree of the Clark Circuit Court in Chancery bo re versed, and the decree of this court certified, &c.


author: Mr. Justice HaNLY

text:
    Barasien vs. Odum.
    Under the peculiar system of administration laws of this State, it is inconsistent with the tenor and policy of those laws to hold that any one can make himselij of his own wrong, the executor of another — where one intermeddles with the estate of a deceased person, he is responsible to the rightful executor or administrator, and not to a creditor, as an executor de son iori.

    According to the common law it is error to render judgment de bonis propriis against an executor, in the first instance, except where by failing to plead, or by pleading, he had admitted waste.

      Appeal from the Circuit Court of Independence Cou/nty.

    Hon. Beaufort H. Neely, Circuit Judge. .
    Fairchild, WatKINS & Gallagher, for the appellant.
    It is a serious question whether under our comprehensive administration system, as regulated by statute, there can or ought to be such a thing in this State as an executor de son tort The courts of Probate are, in the first instance, the custodian of all estates. The policy of the administration law, is to have a speedy administration of all estates. Every facility is afforded for having letters of administration taken out by the heir, creditor, any indifferent person, or the sheriff; and the estate should be preserved, as a trust ftmd, for the. payment of debts without preference, and for distribution. This entire policy would be defeated, if any person could, by obtaining possession of the assets, subject himself to an action as executor de son tort.

   Mr. Justice HaNLY

delivered the opinion of the Court.

The appellee sued the appellant as executrix de son tort of her late husband, before a justice of the peace of Independence county, on an account made by the decedent in his life time.

Judgment was rendered by tbe justice against the appellant, de bonispropriis, from which she appealed to the Circuit Court of Independence county, and upon a trial de novo in that court, judgment was again rendered against the'appellant de bónis pro-priis. Having made a motion for a new trial in the court below, and her motion overruled, she excepted, setting out, in her bill of exceptions, all the testimony adduced at the trial, but which we do not deem it necessary further to notice or state. The cause is brought to this court by appeal, and sundry errors are assigned, for wdiich it is insisted the judgment of the Circuit Court must be reversed. As we have omitted to state the facts, and as several of the errors assigned pertain to them exclusively, we will not consider them, but at once proceed to determine the points upon which the cause must therefore rest.

It is 'submitted to this court, by the counsel for the appellant, to determine whether, under the peculiar system of administration laws of this State, it is not inconsistent with the tenor and policy of those laws, to hold that any one can make himself, of his own wrong, the executor of another. %

We must confess that we approach this question, not without embarrassment and difficulty, on account of its intrinsic importance and utter novelty ; for wre are not aware that the question proposed has ever been the subject of investigation or enquiry in any of the courts of this State, up to the present time; and from our researches into the adjudications of the courts of other States, we find but few instances in which the question has been looked into or passed upon.

It would have been more agreeable, if the parties to the record in this cause had both been represented by counsel in this court, to the end that wre might have had the benefit of a full argument of the question on both sides, so that we could have availed ourselves of their researches and reasoning, acknowledging, as we are ever happy to do, the advantage that we are accustomed to derive from such sources, particularly in those cases where the question to be determined is new, and where there are no, or few precedents to be found bearing on the subject.

But tbe question lias been presented, and we do not feel ourselves at liberty to waive it. We will, therefore, at once proceed to its solution.

It is an unquesti onable fact that the subj ect of administration, and tbe management of estates of deceased persons in this State, is one of vast moment and the first importance to every department of society.

It is likewise true, that the legislative department of tbe State, under an express power conferred upon it by tbe constitution, has prescribed a system of administration, laws, designed evidently to protect tbe entire interests connected with the subject, and which must, to subserve tbe purposes of its establishment, be executed as an entirety ; for otherwise, in that, as in every other work composed of dependent parts, the destruction of one member or part must disturb or destroy tbe harmony and operation of the whole.

The constitution has ordained courts of Probate throughout the State, and has conferred upon them jurisdiction in matters rela~ tive to the estates of deceased persons, executors, administrators and guardians, thereby restricting the Legislature only so far as to take from it the power to inhibit the exercise of such jurisdiction, expressly conferred upon those courts, but conferring upon tins department the express authority to prescribe the mode and manner in which the general jurisdiction, thus bestowed upon the courts of probate, should be exercised and executed. See Constitution of Arkansas, seo. 10, art. 6.

By reference to tbe various acts of the General Asssembly passed on this subject, it will be perceived how well and thoroughly the Legislature has carried out the intent and meaning of the constitution in tliis respect. Auxiliary powers, such as the Legislature, in its wisdom, conceived necessary to enable the Probate Courts to exercise effectively the general jurisdiction conferred upon^fhemby the constitution, have been superadded, so that no p ower is wanting on tbe part of tbe Probate Courts to enable hem to exercise both the general and special jurisdictions inker-ent therein, derived from tbe constitution and the legislative grants made in conformity therewith. We say, then, that the Legislature has done every thing, that was proper and necessary, in this connection. The object and design, which it had in view, are sufficiently manifest from the several acts which have been passed on the subject. The success of the system devised in reference to the jurisdiction of courts of probate, “relative-to the estates of deceased persons, executors, administrators and guardians,” must depend, therefore, in a great measure, upon the judiciary, to whom has been confided the power to construe and interpret the laws, as they find them, in pursuance of known and fixed rules ordained -for that purpose by the wisdom of ages long past, and maintained by the accpfiescence of the great minds that have adorned the world in later times.

Before proceeding to the consideration of our several statutory provisions in reference to the administration of estates, and to an analysis of them, with the view of elucidating the subject under notice, it may not be unprofitable" to refer (by way of introduction to the main subject) to a portion of the common law bearing on the subject, that we may contrast the consequences which would result from a maintenance of the remedy sought in this instance, with the one prescribed by our-statutes.

An executor de son tort is defined to be a person who, without authority from the deceased, or the law, does such acts as belong to the office of an executor or administrator. See 4- Bacon's A6r., Title Executors aud AdMimtstrators, (B.) 8.

An executor of his own wrong at common law was, in general, only liable to the amount and value of the assets which really came to his hands, and in such cases, when a recovery was had against him, the judgment was de lonis testatoris. See Toller on Exrs. 473; Dyer 166, C. Note 11.

And this judgment, being rendered at the suit of a creditor of the decedent, was executed for his benefit, to the exclusion of the other creditors, however numerous, and never so meritorious. See Whitehall vs. Squire, Carthen 104; Toller's Exrs. 472, text and note 1.

This, then, was the effect and consequence of a proceeding at the suit of -a creditor of a decedent, against an executor de son tort, for a 'debt due by the decedent debtor, according to the course of the common law; and the remedy attempted to be pursued in the;case at bar. But such is not in accordance with the letter or spirit of our law, as it evidently cannot be with its policy. In our “system, two capital objects seem plainly in view, from the various provisions for their attainment; first, that the estate of every deceased person, after death, shall immediatel/y pass to the custody of the 1cm, to be administered for the benefit of creditors ; and after the satisfaction of all claims against it, * * ®. * the residue shall be passed to the heir or distribu-tee, ” &c. See Walker adm. vs. Byers, 14 Ark. Rep. 252. Says this court in the same case : “The Probate Court is intrusted with the custody of estates ; and that tribunal proceeds, m rem, to adjust the rights of all persons interested in an estate, and disposes of it, in accordance with the provisions of the statute ; having, for these purposes, the most summary; and plenary powers, within the scope of its jurisdiction, conferred by the constitution and statutes, administering both law and equity within this scope according to the exigency of the rights to be adjudicated upon,” &c.

Our statute has provided for the authentication and exhibition of claims against the estate of a deceased person, and has prescribed a particular mode in which this shall be-done. It has also established the order in which claims thus authenticated and exhibited shall be paid. It has directed in what mode personal and real estate may be sold for the payment of debts, and the purposes of administration generally. It has prohibited the payment of debts due by the decedent, except in the order prescribed, and under the especial direction and order of the Probate Courts. It has restricted the liability of executors and administrators to the actual value of the effects which may be administered by them, and has exempted them from liability in consequence of false pleading, and, as a greater security for the administration of estates, has required executors and administrators to take an oath that they will faithfully administer the effects of the decedent; and, in addition to this, has required each to enter into bond with security, for the faithful execution of the trusts.

We have already seen what the common law provisions are in respect to a proceeding against an executor de son tort, the kind of judgment to be rendered in such case, the mode of its .execution, and finally, for whose benefit executed.

We think there can be no doubt, but that the provisions of our statute are so thoroughly inconsistent with the provisions of the common law, in respect to the remedy sought in this case, that we may safely say, that such a proceeding is unknown to our law, and we are sustained in this- view by an adjudication of the Supreme Court of Ohio, where similar statutory provisions to our own exist. See Dixon vs. Cassell, 5 Ohio Rep. 341, 342.

Independent of the foregoing considerations, we would say that there is no necessity for such a remedy in this State. The 46íÁ, With a/nd 48th sections of the 4th cha/pter of the Digest, provide a remedy against all persons who may conceal or embez* zle effects belonging to the estates of deceased persons, at the instance of any one interested, which is more effective and simple than the remedy existing by the common law against executors de son tort, and by pursuing the statutory course the property recovered or reclaimed is appropriated, as assets of the estate, to the payment of debts or distribution. Not so, in proceeding against an executor de son tort. If the proceeding is - at the suit of a creditor of the decedent, and a recovery is had, his judgment, as we have before shown, is de bonis testatoris, and when executed, it must be executed de bonis testatoris, and that too, to the exclusion of all other creditors, less vigilant, but equally meritorious, and for the benefit of the person in whose favor the judgment was rendered.

The 40th amd 41si sections of the ^th chapter, and the 10th section of the 120th chapter of the Digest, would seem to militate against our views above expressed; but, by reference to those sections, it will be perceived, that the executors of their own. wrong referred to in those sections, are only such in a particular sense, the denomination being used by the statute, without retaining the incidents usually appurtenant to the denomination. Besides this, by reference to those sections, taken in connection with the context, it is evident that in the instances proposed, in which a person might make himself an executor of his own 'wrong under our statute, the remedy provided against him is evidently intended to be at the suit of the rightful executor or administrator. In whicN event, the judgment recovered against him would at once become assets in the hands of the representative of the estate for the payment of debts, or distribution to heirs, and thus carry out the general scope and meaning of the whole act, making each part consistent with itself, and not inconsistent with the whole.

Entertaining these views, ive are constrained to, hold the judgment of the Independence Circuit Court, rendered in this cause, erroneous.

But there is another reason why the judgment of the court below should be reversed. It will be observed that it is rendered de 'bonis propriis. To authorize such a judgment there should have been a judgment de bonis testatoris, first rendered, and upon the return of an execution issued upon this j udgment, nidia bona, a soi.fa. could have been issued, and on inquiry of waste, if found against the defendant, j udgment would follow, as a matter of course, de bonis propriis. This was the uniforpi course at the common law, except when the party in the original suit would, by failing to plead, or by pleading, admit waste, in which case it was usual to have judgment de bonis propriis. See Markham's Ex. vs. Allen, 8 B. Mon. R. 418; Carroll, etc. vs. Connet, 2 J. J. Marshall's Rep. 208; Toller's Exrs. 472, note 1, citing Stockton vs. Wilson, 3 Penn. Rep. 129; Howell's adm. vs. Smith, 2 McCord’s Rep. 517; Norfolk’s Exr. vs. Gantt, 2 Harr. & Johns. Rep. 435.

Wherefore, the judgment of the Circuit Court of Independence county, for the errors aforesaid, is reversed, and the cause remanded, with instructions to said court to proceed according to law, and not inconsistent with this opinion.


author: Mr. Justice Hanly

text:
    Rust Exr. vs. Witherington.
    Under our administration system, an executor de son tori, as at common law. is unknown. {Bamsisn vs. Odum.)

      Appeal from the Circuit Cov/rt of Union County.

    Hon. Shelton Watson, Circuit Judge.
    QuilliN and S. H. Hempstead, for tbe appellant.
   Mr. Justice Hanly

delivered tbe opinion of tbe Court.

This was an action of assumpsit, brought by tbe appellee against tbe appellant as executor de son tort of Alfred Bust, deceased, in the Union Circuit Court, on a promissory note averred to have been made by tbe decedent to the appellee.

The appellant interposed his three pleas in bar to the appellee’s action in tbe court below, to wit: non assumpsit, ne vmques executor andplene administravit, to which issues were taken, and a trial of those issues was bad before a jury, who returned a verdict for tbe appellee for tbe amount of tbe note declared on, and interest by way of damages. The court proceeded to render judgment on said verdict against appellant, de boñis testatoris, si non, de bonis propriis. A motion for a new trial was made in tbe court below by the appellant, and on its being overruled, he excepted, setting out all the evidence given at the trial, and saving several exceptions reserved during its progress. We do not, however, deem it essential to make a further statement of the case. The cause is brought to this court by appeal.

Several errors are assigned and insisted upon, why said judgment should be reversed, and among them the same question is presented, as- tbe one we have just determined in the case of Barasien vs. Odum. We, therefore, reversejjthis cause for the reasons assigned for reversing that one.

The judgment in this cause as rendered bj the Circuit Court differs from the judgment rendered in the case of Barasien vs. Odum.

The party attempted to proceed in this action according, to the practice of the common law. There was an issue formed upon the plea of ne unques executor, and this issue was found for the appellee. In such case, it was the practice in a proceeding against an executor de son tort, to render judgment de bonis jpropriis. See Toller’s Exrs. 473. But as we have held in the case of Barasien vs. Odum, our statute has changed the common law in this particular. With us, persons sued as executors or administrators, are not made personally liable in any action; nor shall persons sued as executors of their own wrong, be made liable to a greater extent than they would otherwise be by reason of any such person having pleaded any false plea. See Dig., sec. 70, chap. 125, p. 807. Yiewing this judgment, either according to the principles of the common law, or in reference to our statute, it is erroneous for the reason of its particular structure.

For these causes, the judgment of the Union Circuit Court is reversed, and the cause remanded thereto with instructions to that court to proceed therein, according to law, and not inconsistent herewith.


author: Mr. Justice Scott

text:
    Rector et al. vs. Morehouse.
    To a scire facias tojrevive a judgment, a plea, that the judgment was rendered more than ten years, and that no execution, or other process for its satisfaction, or scire facias to revive it, had issued within ten years, may be stricken out on motion.
    After the lapse of ten years from the date of a judgment, the law presumes that it is paid, {Woodruff vs. Sanders, ad., 15 Ark 143;) and this presumption is conclu- ■ sive unless the plaintiff, in the absence of any effort to enforce payment of the judgment, shall show such facts and circumstances as will satisfy the minds of the jury that there were other reasons for the delay of the prosecution of the claim than the Jjj. alleged payment.

      Writ of Error to the Pulaski Oirouit Oourt.

    Hon. Willau: H. Feild, Circuit Judge.
    PiKE & Cummins, for the plaintiffs.
    „ The court below erred in refusing the 1st, 2d, and 5th instructions moved by defendant below ; and in charging the jury that no presumption of payment arose within twenty years from date of judgment.
    This latter instruction was erroneous upon another ground. Where there was mere partial insolvency, and a total inaction of plaintiff for 10 or 15, or 18 years, it would warrant the jury, in their sound discretion, in finding payment.
    But the provisions of our statute do not stand upon the same grounds as the mere 'presum/ption indulged by the common law. These provisions taken in connection with the only mea/ns allowed to destroy the presumption of payment, to wit: partial payment or a written acknowledgment, constitute peremptory "bars. They are, in every sense, and to all purposes, statutes of limitation. The very same and no other acts displace the bar. See sections 14, 15, 29, 30, 31 a/nd 32, Old Code ; sections, 18, 19, 32 and 33, New Code. See, also, Woocfo'uff vs. Sanders, 15 Ark. 143.

      Under special circumstances, the presumption of -payment may attach within a shorter period than twenty years. It is a presumption of facts to be passed upon by the jury. 9 Watts. 441/ 5 Verg. 97/2 Speers 357/ 9 Verg. 424/ ReoI&. 60/ 3 MoCord 340.
    Thé court therefore erred in giving the instruction given on its own motion — that no presumption could arise short of twenty years.
    A still greater error was committed in refusing 1st and 4th instructions — even if we were mistaken wholly in supposing a written acknowledgment or partial payment were necessary to overturn the presumption of payment arising -from the lapse of ten years.
    Insolvency of one of several debtors does not destroy presumption. Absence from State, unless permanent, will not remove presumption, nor partial payment on discharge in bankruptcy. 5 Conn. Rep. 1.
    Mere poverty of debtor will not destroy presumption. 5 Verm. 236.
    Mere poverty, or temporary insolvency — nothing but absolute and permanent inability to pay — destroys the presumption. 2 Barr 225 / 1 Campb. 227 / 5 Verm. 236 / 14 Sergt. cmcl R. 22/ 7 Watts and 8. 75/ 2 Watts 213, 215, 217/ 1 Veates 344/ 4 Whart. 298.

      Fowleb, for defendant.
    At common law, twenty years was the period fixed, from which payment might be presumed, without direct evidence. Cope vs. Hmvplvreys, 14 Serg. <& RawlelQ; Herndon vs. Bartlett, 7 Mon. Rep. 451 / Reardon vs. Seaway, 3 A. K. Ma/rsh. Rep. 544/ OratwieJc vs. Simpson & Moore, 2 Able. Rep. 144/ and our statute, {Rev. Stat.,p. 531, seo. 29/ Dig.,p. 701, seo. 32,) enacts that “the presumption of payment shall apply to all judgments of any courts of record in this State, rendered prior to the passage of this act, in the same manner as such presumption applies to sealed instruments.”
    The plaintiff offered evidence to rebut the presumption of payment, wbicli was passed, upon by tbe jury whose peculiar province it was, and its sufficiency cannot be here enquired into.
   Mr. Justice Scott

delivered the opinion of the Court.

This was a scire facias to revive a judgment rendered in Pulaski county on the 12th of May, A. D.,‘1834. The writ was sued out the 25th of August, 1853. The pleas were :

1st. Nkd tid record.

2d. That, the judgment was rendered more than ten years before the writ issued, and no execution, or other process for its satisfaction, or scire facias, was issued or pending, or any judgment, or order of revivor had within ten years next before the suing out of this writ.

3d. Payment.

. 4th. Same plea as the second, except that five years was substituted for ten.

On motion, the court struck out the second and fourth pleas, and properly so.

Issues were taken and trial had on the other two; the court finding the first, and the jury the second, in favor of the plaintiff below, j udgment was given accordingly, from which Rector sued out a writ of error.

No question was made in regard to the plea of nul tid record. Upon the trial of the issue on the plea of payment, considerable oral and documentary evidence wTas introduced on the part of the plaintiff', going to show that Rector had been most generally greatly embarrassed; that frequent executions against him had been returned, no property found ; that from time to time, hoiv-ever, his property had been sold under execution ; that he always had had property in posseesion, but generally it was reputed to be secured to his wife; that he had been United States Marshal, and had money, and control of means, and at one time had a large stock of goods in partnership with others, but afterwards that firm failed. It was also proven by the clerk of the court, that, upon examination of the records of his office, he had not been able to find that any process of execution, or scire facias had ever issued upon the judgment in question, prior to this scire facias. And that, after the rendition of the judgment, Bector had moved from Pulaski and settled in another part of the State, where he had ever since resided. The defendant moved the court for the following instructions to the jury, to wit:

1st. Prom the lapse of time, from the rendition of this judgment to the suing out of the writ in this case, if the jury *believed no execution, or other process ever issued thereon, or scire facias in the meantime, the presumption of law is, that the judgment has been paid, and the jury shall so find, unless the delay has been satisfactorily accounted for; and mere partial insolvency, or embarrassment by debt, is no excuse for the delay, and the presumption of law will attach.

2d. That by law, if the jury believe, no execution or other process, or scire facias to revive, issued on said judgment from the 20th of March, 1839, for ten years thereafter, said judgment is presumed to be paid, and the jury should so find.

3d. That by law, any action of debt on said judgment was bar»' red by the lapse of five years after the 20th of March, 1839, without execution or other process, or scire facias to revive, issued thereon ; and if the jury believe,'no such process did issue for five years after the 20th of March, 1839, or was pending, the jury are authorized and should find the judgment paid.

4th. That mere partial insolvency or embarrassment of Bector, if they believe from the use of the process of the law any thing could have been made on this debt, will not displace the presumption of payment, before stated in the foregoing instructions, and the jury are bound upon such presumption as conclusive proof of payment, if they believe any part of said debt might have been made by process, within the period alluded to in any of said instructions.

5tlh. That if the jury believe, no execution issued on said judgment, or any process to revive the same issued on said judgment, or was pending, for ten years next after the 20th of March, 1839, the jury are bound to find tlie judgment paid, on the presumption of law, and nothing can displace such presumption but a partial payment by Hector, or a written acknowledgment of the debt, which must have been proven by plaintiff.

Gt/i. That if the jury believe, no process of execution, or scire facias to revive was issued or pending, within five years next after 20th of March, 1839, they should find for defendants, unless plaintiff has proven that Rector, since 20th of March, 1839, has paid something on said judgment, or has, by writing, acknowledged the debt just.

Ml of which the court refused to give, and upon its own motion, charged the jury, that, in respect to the judgment in controversy, no presumption of payment did or could arise until 20 years had elapsed from the date of its rendition. To all of which doings of the court Rector excepted by bill, at the time.

The instruction which the court gave to the jury was erroneous. After the lapse of ten years from the date of the rendition of the judgment in question, the law presumed that it was paid. (Woodruff vs. Sanders, adm. 15 Ark. R. 143). And this presumption of the law, of the fact of payment, is conclusive in the absence of rebutting testimony, going to explain satisfactorily why an earlier demand has not been made. Within the ten years, the onus of proving payment lies on the defendant; after that time, it devolves on the plaintiff to show the contrary, by such facts and circumstance's as will satisfy the minds of the jury, that there were other reasons for the delay of the prosecution of the claim than the alleged payment. If these are sufficient satisfactorily to account for the delay, then the presumption of payment, not being necessary for this purpose, is no longer entertained, because fully repelled. In the case at bar, the ten years having elapsed, the burthen was on the plaintiff to produce evidence from which the contrary presumption of non-payment might be inferred by the jury. Thus, he had to prove a negative, and this he attempted to ‘¿do, by means of the testimony adduced, upon which the defendant, in his first and fourth instructions, asked the court to instruct the jury to the effect that, unless this evidence should satisfy their minds that no part of the debt could have been made by process of law during the ten years, they were bound to find for the defendant, proceeding upon the proposition that partial insolvency was no excuse at all for the delay, which it was incumbent upon the plaintiff to account for.

Supposing this to be a sound proposition of law, it is to say that the law regards it as unreasonable that a plaintiff should stay his hand, when any part of the debt can be made, however inconsiderable in amount, or hoWever hazardous the experiment is to be, that is to test whether or not anything can be made. In other words, the plaintiff is to be held to the highest and utmost possible diligence. If this be so, then the rule should* not be as wre have laid it down, upon authority to be found everywhere in the bookfe, that the rebutting proof will be sufficient, if it be such as will satisfy the minds of the jury that the delay in prosecuting the claim arose from some other cause than the presumed payment ; but it should be, that it will be insufficient unless it be absolutely and conclusively shown, that the payment has not boon made. The case of Taylor vs. Megorgee, 2 Barr, Penn. Rep. 225, seems to have gone this length. But the weight of authority seems to occupy the more reasonable ground, in consonance with the ordinary conduct of men, that the negative proof will be sufficient if it affords for the jury a reasonable ground of inference, that the debt has not in fact been paid. Hence, such a verdict, against the presumption of payment, has been sustained upon proof of the obligor’s inability to ]jay, as from his poverty ; so also, upon proof of his insolvency, or of a state approaching to it. (See Cowen & Hill's notes to Phil. Ed., part 3, note 301, p. 506, 512, 513, and the cases there cited). Every case of this kind must of course depend greatly upon the particular facts and circumstances shown in evidence, and which the jury are to consider all together. In the caáe at bar there were other facts and circumstances in proof, besides those going to show pecuniary embarrassment and insolvency, whether partial or entire, and the jury should have determined upon them all, whether or*not there was a reasonable ground upon which they could infer the presumption in fact, that the judgment in question had not been paid, as the law presumed it had, from lapse of time, unless the contrary was made to appear in a manner satisfactory to the minds of the jury.

In the light of these views, we think there was no error in the refusal oí the court to give the two instructions in question.

The second instruction wordd have misled the jury unless it had been qualified to the effect, that the presumption could bo repelled as we have indicated. And the fifth was erroneous for a like reason, and also for as much as the qualification contained in it was too narrow and did not go to the extent of allowing the presumption to be repelled by all the other means indicated. The third and sixth were wholly inapplicable and irrelevant.

The court did not, therefore, err in refusing the instructions asked for by the defendant below. But for the error in giving the instructions that it did give, the judgment must be reversed and the cause remanded to be proceeded with.