text:
    Biscoe et al. vs. Madden as ad.
    The two years statute of non-claim, and. not the general statute of limitation, gives the rule of limitation to claims against the estates of deceased persons, not barred at the time of the death of the debtor. (State Bank vs. WalJcer ad., 14 Ark 236; Walker vs. Byers, 16. 259.)
    And so, to a claim against the estate of a deceased person prosecuted in the Probate Court, a plea, that the cause of action did not accrue within three years (the period of the general limitation as to such claims,) before the commencement of the suit, is no answer to the demand.
    "Where the plaintiffs, to the plea of the statute of limitations, reply that" they instituted suit within the statute bar, suffered a non-suit, and again sued on the same cause of ' action within the year, it is no objection to the plea, nor to the proof in support of it, that the first suit was an erroneous proceeding; nor that other persons were plaintiffs therein — as where the first suit was brought by the original Trustees of the Real Estate Bank, after an assignment of the note sued on to the residuary Trustees, and the second was by the residuary Trustees alone.

      Writ of Error to Pojpe Cvrouit Cowrt.

    Hon. "Wm. H. Feild, Circuit Judge.
    OuMMiNS, for tbe plaintiffs.
    'WATKINS & Gallaghee, for defendant.
   Mr. Justice Soott

delivered the opinion of the Court.

This case was brought here by writ of error to the Circuit Court of Pope county. The plaintiffs in error seek to reverse the judgment of that court, affirming in this case the judgment of the Probate Court of that county, refusing to allow, against the estate of James Madden, deceased, the claim in question. That claim, as appears from the bill of exceptions taken in the Probate Court, was founded upon a promissory note, which is here copied, and was sustained in the manner which we will then state in substance:

$1491 50. ---Couhtt, 1st day of Juk/, 1843,

On or before the 1st day of July, A. D. 1844, we, Philip Madden, as principal, and J. Moreland, and James Madden, as securities, jointly and severally promise to pay to Lambert Reardon, Sam C. Roane, Ebenezer Walters, Henry L. Biscoe, William P. Moore, John Preston, Jr., Sandford C. Faulkner, Anthony LI. Davies, Silas Craig, George Hill, James H. Walker, Enoch J. Smith, Lorenzo N. Clark, John Drennen, Robert S. Gibson, as trustees of the Real Estate Bank of the State of Arkansas, and to their successors and survivors, or to their order, one thousand four hundred and ninety-one dollars and fifty cents, payable and negotiable at the office of said trustees, at Yan Burén, for value received, with interest .on said sum from date, at the rate of eight per cent, per annum. (The said trustees are hereby authorized to insert the date of this note from the time the same is accepted and negotiated by them.)

PHILIP MADDEN,

J. MORELAND,

JAMES MADDEN.”

Endorsed as follows, to wit:

£tPay Henry L, Biscoe, Sandford C. Faulkner, George Hill, John. Drennen and Ebenezer "Walters, residuary trustees, without recourse.

(Signed by the several'payees.)

April 2d, 1846.”

Nest following, are copies in haeo verla of this note and the endorsement, and then an affidavit, of which the following is a copy, to wit:

“STATE OF ARKANSAS,

OotnsTY of CbawfoRD,

I, John Drennen, one of the residuary trustees of the Real Estate Bank of the State of Arkansas, being duly sworn, do say, upon oath, that nothing has been paid or delivered towards the satisfaction of the above annexed and foregoing demand, to wit; of the note whereof the annexed and foregoing paper is a true copy, and that the sum of fourteen hundred and ninety-one dollars and fifty cents, with interest thereon, at the rate of eight per centum per annum, from the first day of July, A. D. 1843, being the sum above demanded, is justly drre.

JOHN DRENNEN.

Sworn to and subscribed before me, this 18th day of June, 1849.

R. P. PRYOR, J. P ”

Then follows, to wit:

“The within demand was presented to me, and the original note exhibited, and a copy thereof delivered to me, this 17th day of August, A. D. 1849, and as administrator of the estate of James Madden, deceased, do hereby refuse to allow and class the same.

THOMAS MADDEN.'

Filed in my office on the 17th day of September, 1849.

W. STOUT, CHork”

At the same time, the claimants filed in the clerk’s office of the same Probate Court, a notice, of which the following is a copy, to wit:

To Thomas MahdeN, Administrator

of the estate of James Madden, deceased,

SiR: You will please take notice, that on the first day of the next term of the Probate Court, in and for the county of Pope, in the State of Arkansas, at a court to be holden at the courthouse, in said county and State, on the first Tuesday after the 4th Monday of October, next, we will present to said court, our claim against said estate of James Madden, deceased, for allowance; which claim is founded on a certain promissory note, in the words and figures following, to wit: (Here follow copies of the note, and of the endorsements:) which claim has been presented to you, the original note exhibited, and a copy delivered to you, and which you have refused to allow and'class. This 18th day of August, A. D. 1845.

HENEY L. BISCOE,

GEOEGrE HILL,

JOHN DBENNEN,

SANEOED C. EATJLKNEE,

Surviving residuary trustees of the Eeal Estate Bank of the State of Arkansas.

By A. PIKE, Attorney.”

Then follows the return of the sheriff, showing that he executed the foregoing notice upon the administrator, in person, on the 28th day of August, A. D. 1849. At the return term, both parties appeared in the Probate Court, by their attorneys, and upon the part of the administrator, the following plea was filed:

“And the said Thomas Madden, as administrator of the estate of James Madden, by attorney, comes and defends the wrong and injury, when, &c., and says, that the said plaintiffs ought not to have or maintain their aforesaid action, against him; because, be says, that said supposed cause of action did not accrue to said plaintiffs at any time within three years before the commencement of suit, and this he is ready to verify,” &c.

To this plea the claimants replied as follows, to wit:

“And the said plaintiffs, as to said plea, &c., preoludi non, because they say, that heretofore, to wit: on the 20th clay of July, A. D. 1846, and within three years next after the accrual of the cause of action herein, that they, the said plaintiffs, together with Lambert Neardon, Sam. 0. Koane, Ebenezer "Walters, William E. Moore, John Preston, Jr., Anthony IT. Davies, Silas Craig, James U. Walker and Enoch J. Smith, survivors of Lorenzo N. Clark and Nobert S. Gibson, who, with these plaintiffs, were the original trustees and assignees of said Neal Estate Bank of the State of Arkansas, instituted their action of debt against the said intestate, James Madden, and his co-contractors, Jeremiah Moreland and Philip Madden, in the Circuit Court of the county of Johnson, in the State of Arkansas, on the identical promissory note now presented to this court for allowance, which action the original trustees and assignees of said Neal Estate Bank continued to prosecute in said Circuit Court of Johnson county, until the March term thereof, A. D. 1848, at which term, and on the 7th day of said month, said original trustees and assignees of said Neal Estate Bank, suffered a non-suit therein, and these plaintiffs aver, that afterwards, to wit: on the 23d day of June, 1848, and before the expiration of one year from the time of suffering said non-suit, they, together with one Ebe-nezer Walters, a residuary trustee of said Neal Estate Bank, and as assignees of said original trustees of said bank, instituted their action of debt against the said intestate, James Madden, and one of his said co-contractors, to wit: one Jeremiah Moreland, in the Circuit Court of Johnson county, aforesaid,_ on the identical note now presented to this court for allowance, which action these plaintiffs and the said Ebenezer Walters continued to prosecute' in said Circuit Court of Johnson county, until the September term thereof, A. D. 1848, at which term of said court,, and on tbe 14th day of said month, these plaintiffs, and the said Ebenezer "Walters, residuary trustees as aforesaid, suffered a non-suit therein, and these plaintiffs aver, that afterwards, to wit: on the 17th day of August, A. D. 1849, and before the expiration of one year from the time of suffering said last mentioned non-suit, they, as surviving residuary trustees, and assignees of said original trustees of said Real Estate Bank, instituted this, their action on the same identical promissory note mentioned, by exhibiting their claim against the estate of James Madden, deceased, to Thomas Madden, as administrator of said estate, and delivering to said administrator a copy of said promissory note, with the assignments thereon, and exhibiting to him the original promissory note, and probate thereof, and this they are ready to verify,” &c.

To which plea there was a general rejoinder and issue in short upon the record by consent, and the cause submitted to, and tried by the court. And the court upon finding the issue joined for the administrator, rejected the claim and refused to allow and class it. To which the claimants excepted, and thereupon moving for a new trial, because the court had rejected the claim, and had found contrary to law and evidence, which was overruled, tendered their bill of exceptions setting out the whole case and and all the testimony, which was regularly made a part of the record: and then appealed to the Circuit Court.

Besides the facts already stated, it also appears from the bill of exceptions — the transcripts of the several records of the Circuit Court of Johnson county, being therein copied, im, haeo verba — that the two several suits were brought, and non-suits suffered, as stated in the plea. That Thomas Madden admitted that he was the administrator of the. estate of James Madden, deceased, and that, as such, the claimants regularly and legally exhibited to him their claim in question, on the 17th of August, A. D. 1849, that he that day refused to allow and class it, and that on the 28th of the same month, they notified him regularly of their purpose to proceed for its allowance in the Probate Court. It also was shown, by testimony, that the note in question was the same that is mentioned in the proceedings in the Johnson Circuit Court, as shown in the aforesaid transcripts of the records of that court.

Since the full examination of the question in the case of Walker as ad. vs. Byers, 14 Ark. Rep. 247, it has been uniformly held in this court,that the two years’ statute of non-claim gives the rule as to claims against the estates of deceased persons, and not the general statute of limitations. “That is to say, that under our administration system, as regulated by statute, when a party dies, all subsisting claims against him, not then barred, are put on the same footing, and may be presented and allowed against his estate at any time within two years from the grant of letters; and if not presented within that time are barred, without any saving or exception in favor of disabilities, and without reference to the length of time such claims might have had to run as against living persons under the general statute.” State Bank vs. Walker as ad., 14 Ark. Rep. 236. “ Our law, in effect, regarding the whole period, from the time of his death, to the expiration of the two years from the granting of letters as a single pomt of time for purposes of exhibition of claims subsisting at the time of the death, or which may come into existence at any time before the expiration of the two years.” . Walker vs. Byers, page 259.

In a word, although the general statute of limitations has begun to run in the life-time of a creditor in favor of his debtor, it will run on, notwithstanding the death of the creditor, the debtor remaining in life, as in the case of Brown ad. vs. Merrick & Fenno, 16 Ark. Rep. Nevertheless, when the debtor should die, it would immediately cease to run, because, effectually displaced at once under our law, by the statute of non-claim, which runs off alike against ail subsisting claims against the estate, not barred at the death of the debtor, not from their accrual as the statute of limitations did, but from the gra/nt of letters upon his estate.

Hence, on the presentation of a claim for allowance against an estate, no question as to the general statute of limitation can be legitimately raised, and no plea predicated upon it can be of any avail, unless it goes to the point, that by reason of the operation of that statute upon the claim, in the life-time of the deceased, no action could have been maintained upon it at the time of his death.

If an action could have been maintained upon it at the time of the debtor’s death, it may be allowed and classed, at any time before the expiration of the two years from the grant of letters upon his estate, although had he lived, the statute of limitations would have run out on the very next day after his death. So, a claim that might have had five years to run, had the debtor lived, or one not due for five years to come, would be barred if not presented within the two years. These being but consequences of the effectual displacing of the general statute by that of non-claim.

Hnder this state of the law, it does not seem material to the determination of this case, to decide the question discussed, as to what constitutes such a commencement in the Probate Court of a new action, after a non-suit in the Circuit Court, as will repel the statute bar, under the provisions of the 24th section of the limitation law. Because, the allegation in the plea, that the cause of action did not accruei to the claimant at any time within three years before the commencement of their suit is no answer to their demand; and, consequently, they have no need to reply to it at all. It was like pleading the statute, as if in force, after it might have been repealed by the Legislature.

And if the administrator had set up in his plea that the cause of action did not accrue within three years before the death of his intestate — or that, while the statute had operative force upon the claim, the bar, by efflux of time, became perfect — with the design to show, that at the time of the death of the intestate, the claim was not such a subsisting one against him as should be .allowed against his estate; even then, a replication, setting up that suit bad been, brought within the three years, non-suit suffered, the death of the intestate within the. following year allowed for the new suit, and the exhibition of die'claim and proceedings to procure its allowance in the Probate or Circuit Court, at any time before the expiration of the two years after the grant of letters, would, doubtless, have repelled the statute bar, as effectually as the allegation of a new suit brought in the Circuit Coui’t within the one year, would have done so, had the intestate lived through that entire year.

Because, inasmuch as the general statute of limitations ceases to act on the claim from the time of the death of the debtor, time can no longer be computed, under that statute, for any purpose; and the statute of non-claim succeeding to it, and occupying its place, that statute allows two years from the grant of letters of administration for the prosecution of all subsisting claims, indiscriminately, which were recoverable against the intestate in his life-time, or the representative of his estate after his death.

The remaining point made by the counsel for the administrator, is, that the claim was barred in the life-time of the intestate, and previous to the suit brought by the endorsees, on the 23d of June, 1848. That is to say, that inasmuch as when the suit was brought, which was instituted on the 20th of July 1846, by all the surviving original trustees, the note upon which it was founded had been, before that time, to wit: on the 2d of April, 1846, endorsed in full to the five residuary trustees; that suit, and the non-suit therein suffered, cannot be made available by the latter under the 24th section of the limitation law to repel the statute bar, when set up by the survivors of them in their suit instituted within one year after that non-suit: That, as the two suits were brought by different plaintiffs, they were suits by different parties; and as in the one suit a primitive title to sue was alleged, and in the other a. derivative one, they were not suits for the same cause of action.

It so happens, in fact, that, all the parties plaintiff in the last suit, were parties plaintiff in the .first one, joined with other parties plaintiffs, who were not joined in the last.

If the provisions of the limitation law in question had heretofore received a hard and rigid construction, these propositions would strike with more force. But such does not appear in the several previous decisions of this court, where this and other kindred sections of the limitation law have been presented, but the contrary. And this, doubtless, in accordance with the true intention of the Legislature; because these several provisions, having all resulted from hardships pointed out, or from equitable constructions given by the courts, of the statute of the 21st James 1st, the main features of which are retained in our own, are therefore in their nature remedial.

It cannot be rationally supposed that the Legislature designed simply to allow the privilege of renewing suits in those cases only where the plaintiff would take a non-suit, arbitrarily and without cause; because this would be to provide means of protracting litigation vexatiously, without seeming to secure, at the same time, any counterpoising equivalent:

But when it would be supposed that reference was had to such ■defects in legal proceedings as ordinarily render non-suits necessary, prudent or proper, when parties are, bona fide, seeking the enforcement of their rights in coui’ts of justice, and which, with all the learning of the profession, are often developed in the proceedings, when in the most skilful hands, at an unexpected moment ; a more rational purpose would seem to have been in view. At any rate, the court, without pronouncing any general rule— and it is not our purpose to do so now — have in several cases, gone beyond the letter of the statute, and’ to some extent at least, administered its spirit and obvious intent.

Thus, it has been held that the non-suit need not be a technical one, but the statute equally applies tq a dismissal of the suit, as where the party goes out of court, submitting to the order of court requiring him to do so. State Bank vs. Fowler and Pike, 14 Ark. Rep. 162; State Bank vs. Magness, 6 Eng. Rep. 343; State Bank vs. Arnold, Ib. 348.

So it bas been lield that tbe former suit, and tbe latter one witbin a year after non-suit suffered, are between tbe same parties, though in tbe latter suit, only one of tbe defendants in tbe former suit be sued.

Thus, in the State Bank vs. Roddy et al., 7 Eng. Rep. 767, the court says: “The first action was commenced against other makers of tbe same note, who are not sued in tbe present action. Tbe defendants in this suit were, however, parties to tbe first suit. As we have repeatedly decided, tbe question is not, whether a joint liability exists against tbe makers of the note, but whether a former suit was commenced against tbe defendants in this suit on tbe same came of action. In such case it bas been decided that it is no variance that other parties appear to have been sued in tbe first action, not declared against in the second.” State Bank vs. Magness, 6 Eng. 344; State Bank vs. Sherrill, Ib. 334; State Bank vs. Gray, 7 Eng. Rep. 760; State Bank vs. Davis, Ib. 768; State Bank vs. Henderson, Ib. 774.

So, also, it was held in tbe case of the State Bank vs. Peel et al., 6 Eng. Rep. 750, that a writ which was voidable, and bad been for that reason quashed, was, in connection with the declaration, evidence of tbe fact that a suit bad been instituted so as to avoid the statute bar. In that case, tbe court says: “A declaration, when demurred to, and tbe demurrer is sustained, is no more a valid declaration to put the defendant to answer, than a writ when quashed would be to affect him with notice; and yet, because a demurrer should be sustained to a declaration, no one would contend that no suit had been commenced, because the declaration was adjudged defective.”

To the same effect was the previous decision in the case of the State Bank vs. Sherrill, 6 Eng. Rep. 336, where the court refused to adopt a rule contended for, of requiring valid and perfect proceedings ” in the previous suit, in order for the removal of the bar. And these two cases were followed in the case of tlie State Bank vs. Steen et al., 13 Ark. 36. And they'all seem fully authorized and sustained by the obvious meaning, and, indeed, by almost the very letter, of the statute.

The enactment is, that: “ If any action shall be commenced within the times respectively prescribed in this act, and the plaintiff therein suffers a non-suit, or after a verdict for him the judgment be arrested, or after judgment for him the same be reversed on appeal or writ of error, such plaintiff may commence a new action from time to time within one year after such non-suit suffered, or judgment arrested or reversed.” Digest, chap. 99, page 699, sec. 24.

It is plain enough, that if the plaintiff’s judgment should be reversed or arrested, he will have the privilege to bring the new action without any regard to whether the court decided right or wrong in arresting or reversing it; and all that he would have to show to maintain this privilege would be, that he had a verdict in his favor, on which a judgment was arrested, or a judgment which had been reversed. Whether the arrest or the reversal had been properly or improperly adjudged, would be no concern of his. His privilege in no manner depended upon that.

Is it not plain that these reversals and arrests contemplate erroneous proceedings ? If so, is it not almost absolutely certain, that, as to the non-suits in like manner provided for in the same connection, it was contemplated that like erroneous proceedings might superinduce them? That conclusion seems almost inevitable. If so, why should any irregularity be regarded in the former suit, if, in fact, there was one, when set up to prevent the bar? No irregularity in the arrest or reversal is to be regarded, if, in fact, there was a verdict or a judgment, whether erroneous or not; and by parity of reason, the same rule should apply to the suit and non-suit. That is the view taken of like statutory provisions in Massachusetts. Coffin vs. Cottle, 16 Pick. Rep. 383. And the same doctrine is maintained in Pennsylvania, in the case of Donnings vs. Lindsey, 2 Barr Rep. 382, where it is held, that the commencement of a suit, which was abated for non-joinder of certain persons as defendants, who were joined in the new suit, has the effect to defeat the statute bar.

Although none of these cases come peremptorily up, as cases, to the precise point that we have to decide, they all inculcate doctrines which carry us to the conclusion, that it ought not to be held for the appellee. To hold otherwise, we should have to hold that erroneous suits were no suits at all. The claimants were certainly parties plaintiff in all the suits, and in all of them the recovery of this identical debt was sought, and always for the use of the same beneficiaries, as was distinctly disclosed in all the suits.

It is our opinion, therefore, that the Circuit Court erred in affirming the judgment of the Probate Court; and should have reversed it and proceeded to render judgment for the claimants in form as on non obstante veredicto, as the Probate Court should have done upon the oral allegations and upon the proof, irrespective of the immaterial issue that was joined and found. It being manifest from the face of the record, that the claim was not barred by the statute of non-claim, and as it appears therefrom that the intestate was in life on the 12th of September, 1848, and that this claim was presented to his administrator, on the 17th of August, 1849, it is manifest that it was so presented within the first year after the grant of letters upon his estate.

The judgment will, therefore, be reversed, and remanded to the Pope Circuit Court, with instructions to reverse the judgment of the Probate Court, give such judgment as that court ought to have given, and certify the same into that court according to law.


source: Caselaw Access Project

license: Public Domain

text:
    Biscoe et al. vs. Madden as ad. Same vs. Same.

      Writs of Error to Pope Circuit Court.

   In these cases the same points were involved, that are decided in the preceding opinion between the same parties.


author: Hon. ThoMas JoblwsoN, Special Judge,

text:
    Bettison vs. Budd.
    The rule, that a tenant shall not be allowed to dispute the title of his landlord, does not reach beyond the particular title under which he enters into possession; and if the landlord is divested of his title, the defendant may make it appear, and protect himself in a suit by his landlord for possession of the premises.
    A tenant is not bound, in virtue of his relation to his landlord, to see that the taxes assessed upon the land are paid: and if the land be forfeited for non-payment of taxes, and offered for sale by the Auditor, and the tenant become the purchaser, he may set up such title against his landlord.
    The case of Steadman vs. The Planters’ Bank, 2 Eng. Reg). 421, as to the legal effect of the Auditor’s deed, for land forfeited to the State and sold for taxes, approved.
    It is not essential that the sheriff, in returning an, execution under which real estate has been levied upon and sold, should endorse thereon the levy and sale, where he has executed, &e., a deed to the purchaser reciting these facts — such recital in the deed, being prima facie true.
    A sheriff’s deed for land sold under execution, reciting the execution under which the the land was sold, but not the judgment on which the execution was issued, is admissible in evidence, in a suit by the grantee for the land, upon proof of a judgment corresponding and harmonizing with the recital in the execution, so far as the names of the .parties are concerned, but differing in some slight particulars in respect .to J;he.^mo»n.ts-coiiStitffting.the sum for which the judgment was rendered.

      Appeal from Pulaski Ovrcmt Oowt.

    Hon. William H. Feild, Circuit Judge.
    On the 24th April, 1852, Joseph R. Bettison brought ejectment against John J. Budd, in Pulaski Circuit Court before the Hon. Wm. H. Feild, Circuit Judge, to recover possession of lots one, two, three and fov/r, in fractional block, twelve, in Pope’s addition to the city of Little Rock.
    Defendant pleaded the general issue, limitation of ten years, and also that he purchased the premises at tax sale, and was in possession, under his purchase, for more than five years before suit brought. There were other pleadings in the cause, but no question grows out of them on this appeal.
    The issues being submitted to a jury, the plaintiff proved, that Budd and wife, on the 23d day of June, 1840, by deed, duly recorded, containing “ a clause of general warranty of title and of seizin,” conveyed the lots, one, two and three, to him; that Budd was in possession of all of the lots sued for at the time, and before the suit was brought, and had refused to surrender them to Bettison, on demand, claiming them to be his own property.
    The plaintiff also read in evidence, from the records of Pulaski Circuit Court, a judgment rendered March 13th, 1840, in favor of George S. Lincoln, against John H. Reed, John J. Budd, the defendant, Eli Colby and M. J. Steck. Also an execution (and return), issued thereon to the sheriff of Pulaski county, dated 15th December, 1840, returnable 2d March, 1841, commanding the sheriff to levy of the goods and lands of Reed, Budd and Colby, (suggesting the death of Steck,) for debt, $94 89, damages, $16 66, “ with interest on $101 05, part thereof from 14th September, 1839,” and $22 59-J costs of suit, recited in the execution to be the several sums recovered by the judgment.

      The sheriff’s return endorsed on the execution is as follows: “Came to band 19th December, 184 , 4 o’clock, P. M.
    JAMES LAWSON, Jr., Sheriff.

    “ Satisfied — debt paid, plaintiff, cost paid Clerk.

    JAMES LAWSON, Jr., Sheriff,

    By Geo. A. WoetheN, Deputy.”
    The plaintiff also read in evidence a deed executed by Lawson, as sheriff of Pulaski county, dated 6th March, 1841, acknowledged and recorded, conveying to Bettison the interest of Budd in the lots, one, two and fowr. The recitals in the deed are as follows:
    “Know all men, &c., that I, James Lawson, sheriff, &c., did, by virtue of an execution in the name of Geo. S. Lincoln against John IT; Keed, John J. Budd, Eli Colby and M. J. Steck, issued from the office of the clerk of the Circuit Court of the county aforesaid, for the sum of $94 debt, $16 damages, and $22 59 costs, which execution commanded the sheriff to make the above sum out of the goods, chattels, lands and tenements of John J. Budd, John H. Peed and Eli Colby: and by virtue of the above specified execution, and the authority vested in me as sheriff, I levied on the following described property, viz:- Lots No. 1, 2, 4, in block No. 12, in the city of Little Bock' — New Town— as the property of John J. Budd, and after advertising the same according to law, did, on the 1st day of March, 1841, at the court house door, in the city of Little Bock, and which court was sitting, offer at public sale, when Joseph B. Bettison became the highest and last bidder, at the sum of two-hundred and forty-one dollars.” The deed then proceeds to convey the lots to Bettison.
    But the plaintiff offering no further evidence connecting said execution and deed, the defendant moved to exclude the deed from the jury, upon the grounds that the execution was returned satisfied — paid—and no levy or sale endorsed and returned thereon by the sheriff, which motion the court sustained, and plaintiff excepted. The plaintiff offered no other evidence.

      The defendant then offered in evidence tbe Auditor’s deeds to Budd for lots 1. 2 and 3, to tbe introduction of which, tbe plaintiff objected, upon the ground that no evidence was produced to show that the law of the State had been complied with in the forfeiture and sale of the lots mentioned in the deeds, so as to make them evidence of title; and that the deeds were void upon their face, and inadmissible without proof, aliv/nde, of their validity; and upon the further ground that defendant, under his deed of general warranty to Bettison, was estopped from controverting the plaintiff’s title. But the court overruled the objections, and permitted the deeds to be read fin evidence, and the plaintiff excepted.
    The deeds were all duly acknowledged and recorded, and were all in the same and usual form.
    One of them is as follows:
    “THE STATE OF ARKANSAS,

      To all to whom these presents shall come — GbeetiNG :
    Know ye, that in pursuance of the provisions of the act of the General Assembly of the State of Arkansas, entitled ‘An act providing for the levying and collecting the revenue of this State,’ approved March 5th, 1838, and an act of said General Assembly entitled, ‘An act to change tbe time of the Auditor’s sale of lands forfeited for taxes,’ ” approved December 15th, 1838, the Auditor did sell lot three in block twelve, east of the Quapaw line, in the city of Little Rock, at public auction, on the eighth day of February, 1847, to John J. Budd, for and in consideration of the sum of five dollars, this day paid to the Treasurer of the State of Arkansas, by said John J. Budd. Now, therefore, know ye, that I, Elias N. Conway, Auditor of Public Accounts of the State of Arkansas, for and in consideration of the premises, do by these presents, grant and convey to the said John J. Budd, and to his heirs and assigns forever, all the right, title, interest and estate of the former owner in and to the above described tract of land, and also, all the right, title, interest and claim of the State of Arkansas thereto — to have and to bold the same as now held or owned by the said State unto the said John J. Budd, and to his heirs and assigns forever.
    [l. s.]
    IN testimoNT wheReop. I, Elias N. Conway, Auditor, in and for the State, hereunto set my hand and affix the seal of office, at Little Bock, this eighth day of February, A. D. 1847.
    E. N. CONWAY, Auditor.

    The plaintiff moved the following instruction, to wit:

    “ If the jury believe from the evidence, that the defendant in this suit, Budd, sold and conveyed the lots in controversy, or any of them, by deed of general warranty to said Bettison, and that he, Budd, afterwards acquired another title to said lots, or any of them, such after acquired title, in law, enured to the benefit of Bettison, and in this suit such after acquired title cannot be set up by said Budd as defence.”
    Which the court refused to give, and the plaintiff excepted.
    On the motion of the defendant, the court instructed the jury as follows:
    1st. “That if Bettison neglected to pay the taxes on the lots in controversy, after he bought them from Budd and wife, in June, 1840, and the lots were forfeited to the State on account of such non-payment of taxes, and afterwards offered for sale for taxes by the Auditor, Budd had the same right to purchase them that any other citizen had — unless he was tenant or agent of Bet-tison, such purchase would not enure to the benefit of Bettison.”
    2d. “ The Auditor’s deeds, read in evidence, are prima facie evidence of title in Budd to the lots in controversy, and must prevail in the absence of proof to show them to be void.”
    To the giving of which instructions, the plaintiff excepted, and took a bill of exceptions setting out the facts.
    The jury returned a verdict for defendant, and the plaintiff, without moving for a new trial, appealed.

      Fowler, for the appellant.
    ENGlish,''for the appellee.
   Hon. ThoMas JoblwsoN, Special Judge,

delivered the opinion of the Court.

There being no motion for a new trial, no question can arise except such as relate to the admissibility of the evidence to establish the issues made by the pleadings. The deed from the defendant and wife to the plaintiff, and those introduced by the defendant having been executed for the same identical property, it is believed to be proper in the first place to determine which shall prevail. This deed of the plaintiff is not incorporated in the bill of exceptions, yet, inasmuch as it is there alleged to have been duly executed by the said defendant and wife, and duly acknowledged by them both, and reciting that thereby they conveyed to the said plaintiff the lots of land numbered one, two and three, in block numbered twelve in the declaration mentioned, with a clause of general warranty of title and seizin, and that it bore date of the 23d June, 1840, and was also duly registered. If these facts be true, and that they are, we are bound to believe, as they are matter of record, and-in no respect impugned, it is clear, that, at the date of said deed, all the right and title of the defendant to the lots therein described, passed to, and vested in the plaintiff. The point then to be settled is, whether the defendant did, subsequently, acquire title to the said lots of land; and, if so, whether it so continued in him down to the rendition of the judgment in this suit. It is contended by the counsel for the plaintiff, that the defendant being in possession of the premises, was his tenant, and that as such he was estopped to deny his title. At what particularperiod of time the defendant went .intd-possession of the lots, after the exeration of the deed to the plaintiff, does not appear in the. proof. True it is, that he was so possessed'before and: at the time of the institution of-this suit", and this may be strictly true, and yet, he may not have been in at any time during which the taxes were assessed, and for the non-payment of which the lots were sold by the Auditor. But this being a matter of doubt, we will suppose that the jury were authorized from the circumstances so to find, and that they actually did so determine; and then enquire whether the principle, so contended for by the plaintiff’s counsel, be in accordance with the law of the land. It is a familiar and a general rule, that a tenant shall not be allowed to dispute the title of his landlord. But this, though true as a general proposition, is not understood to be without its exceptions. It will be perceived by a reference to the authorities that it does not reach beyond the particular title under which the tenant enters into possession of the premises; and that if the landlord is divested of his title, either by his own act or by the operation of law, that the tenant may make it appear and protect himself in a suit for the possession. In the case of Jackson vs. Rowland, 6 Wend. Rep. 670, the court said: “But it is said the defendant being a tenant of the lessor, is not permitted to avail himself of this outstanding title. A tenant cannot dispute the title of his landlord so long as it remains as it was at the time the tenancy commenced ; but he may show the title under which he entered has expired, or has been extinguished. The plaintiff places his right to recover upon a principle that recognizes and asserts such a position. The contract, by which the relation of landlord and tenant was created in this case, was not made between the lessor and the defendant, but between Hay and the defendant, and the lessor claims to have acquired Hay’s right to the premises, and to have succeeded to his character as landlord. If he has become landlord, surely the defendant, in case Hay should seek to eject him, might set up an outstanding title in the lessor. No well founded objection is perceived to the defendant’s setting up a title acquired under a judgment since he became tenant, overreaching the title of his landlord. But it is also insisted that the defendant being the tenant of the plain- " tiff, he was bound in virtue of such his relation to see that the taxes assessed upon the premises were paid, and that in case be has acquired a title under a deed from the Auditor, such title will enure to the benefit of the plaintiff. The cases referred to in support of this proposition, we do not think analogous to the one under consideration; and, consequently, cannot be relied upon. The case referred to of Whiting & Slark vs. Beebe et al., 6 Eng. Rep. 583, is not conceived to be in point, although the judge who delivered that opinion, quoted with approbation from 9 and 10 Berg, do Bawle, and without comment, seemed to incorporate it in the opinion, as a part of the law of this State. The facts of the case, then, before the court, we think did not warrant it in laying the law down so broadly as it would seem to have been done. Beebe purchased, pendente lite, and was in possession as tenant under the contested titles at issue in the suit, and to which he had, by the amended bill, been made a party. It is said that the principle there recognized in regard to his position, as purchaser, pendente lite, denied to him all aid from adverse claims for the purpose of strengthening their title, or his, (Beebe’s,) through them: or if placed upon the ground of an independent title, and properly established and presented, the purchase was for a charge upon the land if unoccupied, or upon the tenant if occupied. That Beebe entered under the claims then in litigation and held subject to the final disposition of those cases; and that in that position, his purchase was necessarily in trust, and enured to the benefit of the cestui que trust, when the suit should determine who he really was. The doctrine there laid clown is, doubtless, sound, when applied to a purchaser, pendente lite, as he may be said to hold in trust for the party who may eventually succeed in the suit: but surely it cannot' be so, when applied to a clear and independent title, as the tax is not a charge upon the tenant, but a fixed lien upon the land, and if not paid by the person in whose name it is assessed, will follow the land into the hands of any person who may subsequently become the proprietor thereof. It will be perceived by reference to the case in 9 and 10 Serg. & Rawle, that the court predicate their decision; expressly upon tbe ground, that the taxes assessed upon occupied or rented land, are not a charge upon the land itself, but that it is a charge upon the party in possession, whether he be the owner or the tenant. Under their act of 1804, tenants in possession are made liable, just as if they were the owners of the land, with an optional right of recovery against their landlord, or of defalcation out of the rent. Before the passage of said act, the laws were founded on a supposition, for the most part true, that the owners of improved lands resided on them, and in that case the taxes could be obtained by the use of due diligence from their persons or property. This is the doctrine laid down in the case of Burd et al. vs. Ramsey, 9 Serg. & Rawle, p. 112 to 115. The case of Stokely vs. Bonner, 10 Serg, and Rawle, from 254 to 257, is of like import. It is there said, and that with direct reference to the statute of that State, that the assessment may be either in the name of the owner or the tenant; and that where the tax is assessed in the name of the owner, the tenant is made liable to pay it, and his liability is in addition to that of the owner, as it existed previously to the act of 1804, so that the collector may proceed against either or both, till the amount due is collected. The case of Burr vs. McEwen et al., 1 Baldwin 162, also is made to turn upon the local law of Pennsylvania, and that case is not parallel to this, and the defendants did not hold and possess the land merely as tenants, but on the contrary, they held as of their own property under a regular conveyance, but as it turned out in the proof, they really held as trustees under a resulting trust. If they held under a conveyance from the true owners, though in truth under a resulting trust, there can be no good reason why they should not have been compellable to pay the taxes assessed upon the land, or to say the least of it, if, under the circumstances, they had suffered the trust property to be sold for non-payment of taxes, they could not have been permitted to purchase of the Auditor, so as to divest the title of the eestue gue trust, as that would have been to permit them to take advantage of their own wrong. The case of Douglas vs. Dan gerfield, 10 Ohio 156, is also inapplicable to the facts of tliis case. In that case the land was purchased by an agent of the owner for his use. It is clear that the agent’s title enured to the use of his principal, as all acts done by the agent within the scope of his authority are, in contemplation of law, done by the principal himself. The law of this State confers no authority upon the tax collector to make the tax out of the tenant, but on the contrary, it fixes the tax as a charge and hen upon the land itself, and that, too, without regard to the fact of its being occupied or unoccupied. The 139th chapter of the Digest, secs. 89, and 90, provides that: “All taxes upon lands and town lots, whether for State or county purposes, and all penalties and interest charged for the non-payment of taxes, shall be levied upon the lands charged therewith, until payment or forfeiture, notwithstanding any change of title, by deed, judgment or otherwise; and that each collector, on the failure of any resident of his county to pay the amount of taxes with which he may be charged on the tax book, and if sufficient personal property belonging to such delinquent, liable to be taken, whereon to levy and make distress for the payment of such taxes, cannot be found, shall levy on and sell the lands or town lots on which such taxes may be charged, in the same manner as lands may be levied on and sold by virtue of any execution issued out of the Circuit Court.” It is clear, that under our statute, all taxes, assessed upon lands, whether occupied or not, are a charge upon such lands into whose-soever hands the same may pass, until such taxes are paid, or such lands forfeited for non-payment. True it is, that the owner, if he be a resident of the county where such lands are situated, may release his lands by producing to the collector a sufficiency of personal property to satisfy the same. ■ We, therefore, conclude that the defendant in this cas.e was under no legal obligation to pay the taxes assessed upon the land of the plaintiff, and that no such obligation necessarily grows out of the relation of landlord and tenant; and that, consequently, he is not, upon that ground, estopped to set up title in opposition to the plaintiff. Having already laid down the law to be, that the defendant, upon the hypothesis that he held as the tenant of the plaintiff, is not estopped, only as to the title under which he entered, the question now to be decided is, whether such title has expired or been extinguished. This will depend upon the sufficiency or insufficiency of the Auditor’s deed for the same lots of land, and upon which the defendant relies for his title. The plaintiff objected to the introduction of the Auditor’s deeds, upon the ground that they were not competent evidence of title, per se, and that no proof, aliunde, had been offered, to show a compliance with the statute, either in the forfeiture, or the sales of the lots in controversy. The statute provides that, The Auditor shall execute, under his hand and the seal of his office, and deliver to each person purchasing lands or lots at such sale, a deed of conveyance, in which he shall describe the lands or lots sold, and shall convey to the purchaser all the right, title, interest and estate of the former owner, in and to such lands or lots, and also all the right, title, interest and claim of the State thereto;” and further, that, “ The deed so made shall vest in the grantee, his heirs or assigns, a good and valid title, both in law and equity, and shall be received in all courts of this State as evidence of a good and valid title in such grantee, his heirs or assigns, and shall be evidence that all things required by law to be done to make a good and valid title, were done by the collector and the Auditor.” The deeds exhibited in this case, contain all the requisites prescribed by the statute, and are duly executed, acknowledged and recorded. This being the case, they make at least a prima facie case, that all things required by the law to be done to make a good and valid sale, were done,by the collector and Auditor. See Steadman vs. The Planter’s Bank, 2 Eng. Rep. 427. Under this view of the statute, it is clear, that the title which the plaintiff acquired under the deed of the defendant and wife, was extinguished by the operation of the law, when the lots became forfeited to the State, and, that the instant his title became so extinguished, the defendant was at liberty to purchase the property. The eourt, then, ruled correctly in admitting the Audi-ditor’s deed in evidence. This settles the controversy so far as relates to the title acquired by the plaintiff under the deed from the defendant and wife. The only remaining point to be disposed of, relates to the admissibility of the sheriff’s deed offered by the plaintiff. The sheriff’s deed .offered by the plaintiff seems to have been regularly executed, acknowledged and recorded, and in case it was not subject to some legal objection based upon other grounds, it necessarily made a prvma faoie case of title, and as such, ought to have been received. The statute requires that the deed shall 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; also, a description of the time, place and manner of sale, and further declares that such recitals shall be received in evidence of the facts therein contained. See section 60, of chap. 67, of the Digest. The obvious intention of this statute was to save' the purchaser from the necessity of exhibiting the judgment and execution upon the trial, in cases where his rights under such judgment and execution might be called in question; and also to serve as a matter of convenience, as -well to the sheriff as to the purchaser, as it would point the former to his authority to sell, if he was called on to answer, and would facilitate the latter in deriving his title. The recitals of the deed in this case, fall short of the statute, yet it was competent evidence, in connection with the judgment and execution, since it rec.ited sufficient to show authority in the sheriff to sell. 'The Supreme Court of Ohio, in the case of The Lessor of Perkins vs. Diffle, see 10 Ohio Rep. by "Wilcox, page 437, said: “The'law regulating judgments and executions requires that the deed of conveyance to be made by the sheriff or other officer, shall recite the- execution, or the substance thereof, and the names of the parties, the kind of action, the amount, and date of the term of the rendition of each judgment, by virtue whereof said lands and tenements were sold,” &e. “ The deed in the present case recites the execution, and the names of the parties as therein stated, but in referring to the judgment does not again recite their names; neither does it state the amount of the judgment, except as it appears upon the execution. It recites sufficient to show that the officer had authority to sell; and this we hold to be all that is necessary, although in every instance it would be well for a sheriff or other officer to follow literally the provisions of the statute. So far as the statute makes provision for any recitals, beyond what is necessary to show an authority to sell, we consider it as directory merely; and it was so decided in the case of Armstrong vs. McCoy, 8 Ohio Rep. 126. Such being the opinion of the court, the objection to the shereiff’s deed is overruled, and this deed, in connection with the previous evidence, makes a prima facie case for the plaintiff.” See, also, Humphrey vs. Beeson, 1 Iowa, by ObeeN, page 214, and the cases there cited. The defendant objected to the deed as evidence upon the ground that the levy and sale recited in said deed were not endorsed by the sheriff upon the execution; which objection the court sustained and excluded the deed. It was not essential that the levy and sale should have been thus endorsed, since the deed itself recited both of these facts, and those recitals are prima faaie true. This sale was made by operation of law, and by a public officer, entrusted with the execution of the law, duly appointed and sworn for that purpose. The same degree of faith and credit is due to his deed under hand and seal, as could, or ought to be given to any return on the back of the execution, if it had been produced, for the one act is as much the act of the sheriff, and as much within the line of his official duty as the other; and they are equally entitled to credit in the eye of the law. See Hopkins vs. De Grafferried, 2 Bay Rep. 445. True it is, that the sheriff, in his return upon the execution in this case, neither certifies a levy nor a sale,, yet there is nothing in the return that necessarily repudiates the idea, or excludes the conclusion that such levy and sale may have been made. The deed having recited and certified both facts to exist, and there being nothing in the return necessarily impeaching the truth of such recitals, we think the recitals in the deed are evidence, prima facie, of their truth. The question then to be decided.is, whether the plaintiff had laid the necessary foundation for the introduction of the sheriff’s deed. ’ The deed, if introduced at all, was to show the last link and final completion of the title'acquired under the. sheriff’s sale, not only for lots No. 1 and 2, but also for lot No. 4, embraced in this suit, and not embraced- in Biidd’s deed from the Auditor: and in order to have that effect, it was necessary, before it could be introduced, that it should have appeared to harmonize arid correspond in every essential particular with the judgment and execution upon which it was supposed . to be predicated. Because, if it varied in any material respect from either, it necessarily could not be regarded as the legitimate offspring of that particular proceeding, and if so, the court was'correct in ruling it out. "We will now enquire how this matter really stands. True it is, that the judgment is not incorporated in the bill of exceptions, yet it is there stated, that the plaintiff read in evidence a judgment from the record of said (Circuit) Court, rendered on the 30th day of March, A. D. 1840, in favor of George S. Lincoln, against John H. Jeed, John J. Budd, Eli Colby and M. J. Steck, and that an execution issued thereon, and the endorsements on the said execution, which execution and endorsements are in the words and figures following, to wit, &c. Then follows the execution, in which the judgment is recited. This is not a very technical method of exhibiting the judgment, yet, as it is first stated that it was read, and that an execution issued upon it, which is shown, and in which it is recited, it is believed to be sufficient to let in the deed, in case that no other legal obstacle shall have intervened. The judgment, as recited in the execution and the deed, are in perfect harmony, so far as the namés of the parties are concerned, but differ in some slight particulars in respect to the amounts constituting the sum for which the judgment was rendered. All that is required to identify the judgment and execution, as those upon which the deed in such case is founded, is a general outline indicating that identity. It would be exceedingly hazardous to reject a sheriff’s deed as evidence of title merely from slight discrepancies, as it might be difficult to find one corresponding in every mirmtico, with the proceedings which preceded it. "We think that sufficient was made to appear to identify the deed with the judgment and execution, and that therefore it should not have been for that cause rejected. It is not for this court to say, in the present attitude of the case, what weight the deed or any other part of the evidence offered should have received at the hands of the jury, as no steps were taken in the court below to bring that question before us. The only question presented is, whether the deed was admissible, as being pertinent to the issue made by the pleadings, and upon this subject we entertain no doubt. The court, therefore, erred in excluding it from the jury, and for this error, the judgment ought to be, ahd'is reversed, and is remanded, to be proceeded in according to law, and not.inconsistent with this opinion.

Hon. E. H. ENglish, Chief Justice, not sitting.


author: Mr. Chief Justice English

text:
    The State vs. Chapin.
    The Circuit Courts of this State have jurisdiction of offences if committed within the county, and of the persons of those committing them, when brought into court, whether voluntarily or by legal coercion.
    It is not necessary, in all cases, that a man should bo actually present in this State to make him amenable to our laws for a crime committed hero, if the crime is the immediate result of his act.
    An accessory beforo the fact, in another State, to a felony committed here — as where an agreement or conspiracy is entered into in another State, to commit the felony in this — is guilty of a crime in the State whore he becomes an accessory, and is answerablo there; whilo the principals, who commit the felony, are indictable here.

      Error to Phillips Oirouit Gow't.

    Hon. Charles W. Adams, Circuit Judge.
    JoedaN, Attorney General, for tbe State.
    Fowler & Stillwell, for defendant.
   Mr. Chief Justice English

delivered tbe opinion of tbe Court.

This was an indictment for arson, determined in tbe Phillips Circuit Court.

Adams Ghapin, with John N. Cummings, William H. Holland and others, was charged with the burning of the steam-boat Martha Washington on tlie Mississippi river, in tbe county of Phillips, on the 14th January, 1852. In some of the counts in the indictment, Ghapin was charged as principal, and in others, as accessory before the fact.

He filed the following plea to the indictment:

“And the said Adams Chapin, &c., &c., &c., saith that the court here ought not to take cognizance of the pijson and felony in the said indictment above specified, because, protesting that be is not guilty of the same; nevertheless, the said Adams Chapin saitb that at the said several times when the said supposed oifences set forth in the several counts of the said indictment were as therein alleged committed, he was not, nor was he at any time prior thereto, in the said State of Arkansas, or in the said county of Phillips, but was then, and for a long time before and after said time, a citizen of the State of Ohio, one of the sovereign States of the United States of America, where he was actually present at the said time, &c., and this he is ready to verify; wherefore he prays judgment,” &c.

To this plea the State replied as follows:

Preclude non, <&o., “because she says, that, although the said Adams Chapin is, and was a citizen of the State of Ohio, &c., at the time, and as stated in said plea, and although at the time of, and during the commission of the offence alleged and charged in said indictment, was personally present in the State of Ohio, and had been before that time, and afterwards in said State, and not jin the county of Phillips, and State of Arkansas, in person, as he hath above thereof alleged, but the said plaintiff in fact says that the said Adams Chapin did, while in the said State of Ohio, conspire to, and with divers other persons, amongst whom was one John N. Cummings and "William H. Holland, to procure, and did then and there advise and counsel the burning of the said steam-boat, Martha Washington, in the said county of Phillips, as charged in said indictment; and the plaintiff avers that, in pursuance of said conspiracy, aid, counsel, advice and encouragement so given by the said Adams Chapin, to and with divers other persons, and amongst whom were the said John N. Cummings and William IT. Holland, the said John N. Cummings and the said William H. Holland, did, on the 14th day of January, 1852, in the county of _Phillips, in the State of Arkansas, burn said steam-boat Martha Washington, and the said defendant therefore was, while in the said State of Ohio, accessory before the fact, to the 'burning of said steam-boat, in the county of Phillips, in the State of Arkansas aforesaid, and did advise and counsel, and encourage the same in manner and form as charged in said indictment, and was in construction and contemplation of law, present at the commission of said offence, to wit: at the county of Phillips aforesaid : .and the said State of Arkansas further says, that the said Adams Chapin, after the commission of said offence as charged in said bill of indictment, came within, and now is within the said county of Phillips, and within the jurisdiction of this court; without this, that said defendant is not guilty as charged in said bill of indictment, in construction and contemplation of law, and was not in the said county of Phillips, and State of Arkansas, at the commission of said offence as he hath above thereof alleged; and this, the said State of Arkansas is ready to verify, 'wherefore she prays judgment,” &c.

To this replication the defendant rejoined as follows:

“That the court here ought not to take cognizance of the arson and felony aforesaid, by reason of anything contained in the replication of the said State of Arkansas to the plea of said defendant, &c., because, protesting as heretofore, that he is not guilty of the same, or the said supposed conspiracy charged in said replication, or the felonious burning of the said steam-boat, Mcvrtha Washington, by the said John N. Cummings and William H. Holland, as charged in and by said replication, at the time and place aforesaid; nevertheless, the said Adams Chapin saith, although he, the said defendant, did come into the said State of Arkansas, after the commission of the said supposed conspiracy, and the arson of the said steam-boat, by the said JohnN. Cummings and William IT. Holland, as aforesaid, and is now present within said State of Arkansas, yet he, in fact, saith that he did not so come into said State voluntarily and of his own accord, but that long after said supposed offences, he the said defendant, was forcibly brought within the limits thereof, by and under the power and authority of a warrant issued by the Governor of the State of Ohio, based and predicated upon a requisition made upon him by the Governor of the State of Arkansas, under the law in such cases made and provided, and that lie is now here and within said State of Arkansas, not voluntarily, but under said original arrest, and forcible as pertains to this State in consequence of a recognizance entered into by him in this court at the last term thereof, for his appearance at this term, as appears by said record now remaining in this court: and this, the said defendant is ready to verify, wherefore,” &c.

The State demurred to the rejoinder, in short by consent, the court overruled the demurrer, and the State resting, final judgment was rendered discharging the defendant.

The State brought error.

The only matter set up in the rejoinder in avoidance of the matter of the replication is, that the defendant did not come into this State voluntarily, but was brought here upon a requisition of the Governor, forcibly and against his will. This, though responsive to one allegation of the replication, is no answer to what we deem its substantial and essential matter. If the defendant committed an offence against our laws in Phillips county, the Circuit Court of that county had jurisdiction of the offence, and when he was brought into court it had jurisdiction of his person, whether his appearance was voluntary or by legal coercion, and without regard to his citizenship. Adams vs. The People, 1 Comstock Rep. 179; The People vs. McLeod, 25 Wend. 573, 574; Smith Ex parte 3 McLean’s Rep. 134, 135.

When a citizen in another State commits a high crime in this, if the jurisdiction of our courts over his person depended upon his voluntary appearance before the tribunal, or -within our territorial limits, the criminal, in most instances, would, doubtless, go unpunished.

But the demurrer reaches back to the replication, and we must determine whether it is a sufficient answer to the plea or not.

The plea is, that at the time the arson was committed, the defendant was a citizen of, and present in the State of Ohio, and was not iu Phillips county, Arkansas, where the crime was perpetrated. N ‘ •

The replication confessing this, attempts to avoid it by alleging that the defendant was an accessory before the fact, in Ohio, to a felony committed by his co-conspirators, and the principals in the crime in Arkansas.

By our Bill of Bights, (seo. 11,) the accused is entitled to a “trial by an impartial jury of the county or district in which the crime shall have been committed.

And by the Constitution of the United States, (Amend. Art. 6:) “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district, wherein the crime shall have been committed which district shall have been previously ascertained by la'w.”

The laws of Arkansas have no extra-territorial operation. Each State possesses the exclusive power to provide for the punishment of crimes committed within its limits, except so far as this power may have been surrendered to the Government of the United States by the Federal Constitution.

In this case, the Martha Washington was burnt in Arkansas; our laws were violated, and our courts have jurisdiction to try and punish all persons who were actually or bonstructively present, participating in the crime.

It is not necessary in all cases, that aman should be actually present in this State to make him amenable to our laws for a crime committed here. If the crime is the immediate result of his act, he may be made to answer for it in our courts, though actually absent from the State at the time he does the act, because he is constructively present, or present in contemplation of law.

For example, if a man standing beyond our boundary line, in Texas, were, by firing a gun, or propelling any other implement of death, to kill a person in Arkansas, he wotdd be guilty of murder here, and answerable to our laws, because the crime is regarded as being committed where the shot, or other implement propelled, takes effect. 1 Chit. Crim. Law, 191; United States vs. Davis, 2 Sumner 482; People vs. Adams, 3 Denio Rep. 207; People vs. Rathburn, 21 Wend. Rep, 500.

Again, if a person absent from this State, commits a crime here, through or by means of an innocent instrument or agent, it seems that the law would regard him as personally present, and hold him responsible for the offence. As, for example, if the defendant had fired the Martha Washington through the agency of an idiot. Foster's Crown Law, 349; 1 Chit. Crim. Law 191; Wheat. Crim. Law 115. Or where one utters forged notes through an innocent agent. People vs. Rathburn, 21 Wend. Rep. 509. Or obtains money by false pretences, through such agency. People vs. Adams, 3 Denio 190. Or sends poison to another through a letter, intending to poison him, and succeeds. Queen vs. Garrett, 22 Eng. Law and Eq. Rep.; People vs. Rathburn, ubi sup. 540.

Again, it seems, that in misdemeanors, where there are no accessories, but all are regarded as principles who, in any manner, participate in the commission of the crime, if a person in one State procure the commission of a crime of that grade in another State, through even a guilty agent, the procurer is regarded as a principal in the offence, and as being present, in contemplation of law, where it is committed, and answerable there for the crime. Commonwealth vs. Gillespie et al., 7 Serg. & Rawle 478; People vs. Adams, ubi sup; Barkhamsted vs. Parsons, 3 Conn. Rep. 1; The King vs. Johnson, 6 East Rep. 583.

But the offence under consideration was a felony, and Cummings and others, who burnt the boat in Arkansas, in pursuance of a conspiracy entered into with the defendant, Chapin, in Ohio, were, according to the allegations of the replication, guilty agents, and the principals in the crime, while Chapin was an accessory before the fact in Ohio.

Such being the case made by the replication, Chapin was guilty of a crime in Ohio, and answerable there, while Cummings and others/the principals in the arson, were indictable in Arkansas. ÍWe liave been able to find no authority to sustain the jurisdiction of the Phillips Circuit Court as to' defendant, Chapin, upon the allegations of the replication. 1 Chit. Crim. Law 191; Ex parte Jo Smith, the Mormon Prophet; 3 McLean’s Rep. 121; State vs. Knight, Taylor and Conference, Law and Equity, by Battle, N. C. Rep. 44; People vs. Adams, ubi sup.; People vs. Rathburn, ubi sup.; Digest, Ark., chap. 52, sec. 110.

The judgment of the court below is affirmed.


author: Mr. Chief Justice ENGLISH

text:
    Bomford et al. vs. Grimes as ad.
    The estate of a deceased person, in the hands of his administrator, is not liable to pay for medical services rendered to the family of the deceased after his death.
    It is the right, and duty of an administrator to employ medical attendance for the slaves of the deceased, in his possession, when sick; and it would be the duty of the Probate Court to allow such expenses, as costs of administration.
    But the employment in such case would be a personal contract, as between the administrator and physician; .and compensation, therefor could not be recovered in an action of assumpsit against the administrator as such, as upon a promise by the intestate.

      Appeal from Sebastian Circuit Court.

    The Hon. Felix J. Batsox, Circuit Judge.
    S. F. ClaeK, for appellants.
    S. H. Hempstead, for appellee.
   Mr. Chief Justice ENGLISH

delivered the opinion of the Court.

This was an action of assumpsit, brought by Bomford and Shu-mard, partners in the practice of medicine, against Marshall Grimes, as administrator of John Booth, deceased, in the Sebastian Circuit Court.

There are three counts in the declaration:

The first cowit alleged that Booth, the deceased, in his lifetime, was indebted to the plaintiffs in the sum of $466 50, for medical services, &c.

The second cowvt alleges a like indebtedness of Booth, in his lifetime, to the plaintiffs, and a promise to pay the same by the defendant, as his administrator, after his death.

The third cowvt alleges, that the defendant, as such administrator, was indebted to the plaintiffs in a like sum for medical services, &c., rendered to Booth, and members of his family, before and after his death, &c.

The defendant filed two pleas of non-assumpsit:

1. That he did not undertake and promise, &c., in manner and form, &c., as alleged.

2. That his intestate, Booth, did not, in his lifetime, undertake, &c., &c., as alleged.

The cause was submitted to tire court, sitting as a jury, upon the following testimony, in substance :

Scott testified, that he was at Booth’s, just before his death, and during his last illness, and knew of Bomford, one of the plaintiffs, making a medical visit there. There were, at the time, three others of the family sick besides Booth, and in an adjoining room to that in which he lay. They were colored girls, composed a part of Booth’s family, and were said to be his daughters; they had been raised in his family — were recognized as part of it by Booth, and he had supported them, paid their medical bills, &c. Dr. Bomford while there, mixed up medicine, and went into the room where the girls were, &c. Witness thought hebeard Booth direct Bomford to attend upon the girls, and give them his medical assistance, but of this he was not certain. All witness knew of plaintiff’s medical services to Bootft and family, was the one visit above referred to, except that, on the day before this, he met Dr. Bomford on bis way to tbe residence of Booth, &c. The distance from Fort Smith, where plaintiffs resided, to the residence of Booth, was nine miles or more. Booth died on the next day after the visit of Bomford, above referred to, in the summer of 1853. Bomford administered two or three doses of medicine while there. Witness saw him give medicine to the deceased.

Baker testified, that in the year 1853, he was sheriff of Sebastian county, and shortly after the death of Booth, he, as public administrator, took possession of his estate. That, on the second day after the death of Booth, witness went to his residence for that purpose, and found eight persons of the family lying very sick, and the plaintiffs were attending upon them as their physicians. Three of the sick persons were, colored girls, free, and said to be daughters of the deceased, and the remaining five were his slaves. Witness, as such public administrator, directed the plaintiffs to continue their medical services to all the sick, and endeavor to cure them. Witness was present and knew of plaintiffs’ making five or six subsequent visits to them. Witness advised with plaintiffs in regard to their disease, and sometimes administered the medicines prescribed, &c. Sometimes one of the plaintiffs visited them, and sometimes the other. The patients were all afflicted with flux, were quite sick, and several of them dangerously so. Witness thought several of their lives were saved by the attentions of the plaintiffs. Witness resided in Fort Smith, and in addition to the five or six visits of the plaintiffs, when he was present, he, on several occasions, saw the plaintiffs, on their return to town from the residence of the deceased, and enquired of them concerning the sick. He knew of plaintiffs administering as many as 35 or 40 doses of medicine while attending on the family, and the patients all got well under their treatment. Plaintiffs attended there, first and last, after the death of the deceased,, about 15 or 18 days. Booth died 22d June, 1853.

Stephens testified, that soon after the death of Booth, Baker, the public administrator employed him to take care of the property of deceased, and give assistance to the sick family. Tha| there were eight persons of the family, the three yellow girls, and five slaves, very sick with the flux, for about fifteen days after the death of Booth; and one or the other of the plaintiffs visited them every day during that time, &c. The distance from Fort Smith to the residence of Booth, was over ten miles. Plaintiffs were regular physicians, and rendered beneficial services to the estate of Booth.

Dr. Main testified, that the customary charges of physicians, were, one dollar per mile for travel from the physician’s residence, to the patient; and one dollar for each and every patient attended to for examination and prescription, and 25 cents extra for each ordinary dose of medicine administered. If the visit was paid in the night time, the physician was entitled to double mileage. If a physician traveled ten miles, and examined or prescribed for seven patients in a family, he was entitled to $17 for it, and also, to twenty-five cents per dose for such medicines as he administered. If he attended upon five patients he was entitled to $15, &c. Witness had examined the plaintiffs’ bill of particulars, and did not think the charges too high. The bill does not appear in the transcript.

It was admitted, that before the suit, plaintiffs had exhibited their account, properly authenticated by the affidavit of one of them, to the defendant, Grimes, as administrator of Booth, for allowance and classification, and that he had refused to allow more than $30 of it.

It was also shown that letters of administration upon the estate of Booth, were granted to Grimes, on the 20th October, 1853.

IJpon the above evidence, the court found, '‘that said John Booth, in his life-time, did assume and promise, in manner and form, as the said plaintiffs had complained against him, and assessed the plaintiffs’ damages by reason of the premises, to thirty dollars:” and judgment was accordingly rendered against the defendant, as such administrator, for that sum with costs, &c.

The plaintiffs moved for a new trial, which the court refused; they excepted, took a bill of exceptions setting out the evidence, and appealed to tbis court.

It is to be inferred, that the court found in favor of tbe plaintiffs for so much of their account, only, as was for services rendered by them, to Booth and his family, during his life-time; and this is complained of as an error, the plaintiffs insisting that they were entitled to a finding and judgment for that portion of their demand, also, which was for services rendered by them, after the death of Booth, to the three .yellow girls and the five slaves. No doubt, from the evidence, but that the plaintiffs are justly entitled to compensation from some source for these services; but, could they legally recover therefor, of the defendant, Grimes, as the administrator of Booth, in this action ?

It is manifest, that our statute of administration provides for the allowance and classification of no claims or demands against the estate of a deceased person, (other than for funeral expenses,) but such as arise upon contracts or liabilities made or incurred by him, in some way, during his life-time. See Digest, chap. 4, secs. 85 to 106.

The estate of an intestate, after the setting apart of the widow’s dower, is to be appropriated to the payment of such claims, in the order in which they are classed by the statute, with the necessary expenses of administration, and the residue of the estate, if any, is distributed to the children, or next of kin, &c;

It seems that three yellow girls, who were attended by the plaintiffs, after the death of Booth, were his daughters, ‘and had been raised and supported by him as members of his family.

The statute allows to the widow and family of the deceased, such grain, meat, vegetables, groceries and other provisions on hand, as may be necessary for their subsistence for twelve months, &c., (Digest, chap. 4, sec. 56,) but makes no provision for paying medical bills.

For medical services rendered to minor children, after the death of the intestate, the physician mush look to their guardians, or other persons who have charge of them and their property, and who, by virtue of legal or natural obligations, may be liable for their maintainanee, &c. For such necessaries, the minor may also be personally liable.

As to the slaves of the intestate, when the administrator finds it necessary to call in medical assistance to them, no doubt he has the right, and it is his duty to do so, not only as a matter of humanity, but by way of preserving them as property of the estate, for the benefit of the creditors and distributees; and it would be the duty of the Probate Court, to allow to the administrator, the reasonable and necessary expenses so incurred by him, as part of the costs of administration.

But, as between the administrator and the'physician, it would be a personal contract. An administrator has no right to make a contract for a dead man. Underwood vs. Millegan, ad., 5 Eng. Rep. 254.

The judgment of the court below is affirmed.


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    Crise vs. The Auditor.
    ■Crise presented his petition for a mandamus to compel the Auditor to issue his warrant in payment of the damages, assessed by a jury of inquest under the swamp land act, in locating a levee upon Ms land, averring that the levee was placed under contract and was in process of construction: The auditor responded:
    1st. That the inquest did not identify the lands.
    2d. That he did not find sufficient evidence that the levee has been or will be constructed.
    3d. That he has been unable to fiad m his office any evidence that the petitioner was the owner of any land in the county at the time: Held, That the response was insufficient.

      Appeal from Pulaski Circuit Court.

    Hon. Jorar J. Clendenin, Circuit Judge.
    Wateins & Gaxlagher, for appellant.
    JoedaN, Attorney General, contra.
   Mr. Chief Justice English

delivered the opinion of the Court.

At the June Term of the Pulaski Circuit Court, 1855, Philip Crise presented a petition for mandamus against the Auditor, stating in substance, as follows :

That he was a citizen of "White county, and resided on the banks of Little Ned River. That in the spring of 1854, a swamp land levee was located by Milton Sandersj the agent appointed by the board of swamp laDd commissioners, to aid in the location and construction of the necessary levee, &c., and in classifying and districting said swamp and overflowed lands, on the farm on which petitioner then resided, and still resides. Being dissatisfied with the location of said levee, he did, on the 5th day of April, 1854, give notice to the board of swamp land commissioners of his dissatisfaction with said location, and of his determination to claim such damages as the location of such levee might occasion him. That upon presentation of such notice, 'the said commissioners ordered that the sheriff of "White county be directed to summon a jury to asses the damages arising to petitioner by reason of the location of said levee on his farm, &c. (A certified copy of the order is exhibited.)

That the sheriff of said county, on the 22d of August, 1854, summoned a jury of twelve freeholders, residents of said county, in no wise akin to petitioner, and in no way interested in his lands, to attend at his house to assess the damages sustained by him by reason of the said levee passing across his farm. That said jury, under the charge and direction of the said sheriff, on tbe 23d of August, 1854, assembled atibe house of petitioner and after being duly sworn by the said sheriff, that they would faithfully and impartially view the lands and fields of petitioner on which the levee was located, and assess the damages ■ which said levee was calculated to occasion said lands, and after viewing said lands and fields, they rendered a verdict awarding to petitioner the sum of $1558 ; which verdict was entered on the back of the inqusition, and filed by the sheriff in the office of the clerk of the Circuit Court of "White county, in conformity with the act of 12th January, 1853. (A certified copy is exhibited.)

“ That upon the taking and return of said inquisition and assessment, said levee was placed under contract by, or under the authority of the board of swamp land commissioners, and became, and is in process of construction.”

That petitioner afterwards presented the evidence of said inquisition and verdict, being a copy thereof properly certified by the clerk of said Circuit Court, to the board of swamp land commissioners, at their meeting in October, 1854, and they referred Mm to the Auditor of the State as the proper-officer to issue scrip for the same. That áccordingly, in January, 1855, petitioner caused the said inquisition and verdict, properly certified as aforesaid, to be presented to Alexander S. Huey, as such Auditor, and requested him to issue his warrant to. petitioner for the amount of swamp land scrip due thereon, in accordance with law, which he refused to do.

PEAYER FOR MANDAMUS.

The exhibits made part of the petition, are as follows:

“ OFFIOF OF THE BOARD OF SwAMP LAND COMMISSIONERS, 1

Helena, Arkansas, April 6th, 1854. [

At a meeting of the board of swamp land commissioners for the State of Arkansas, in April A. D., 1854, the following order was made, to wit:

Whereas, it has been represented to the board by Philip Crise, that the present route of the levee, as located on Little Red River by tbe engineer, runs through and on his farm, and that he is heavily damaged thereby ; therefore, at his request, it is ordered by the board of swamp land commissio'ners, that the sheriff of "White county be notified and required to summon a jury to assess the damages arising to the said Philip Crise, by reason of the location of said levee on his farm, and that he certify the same in the manner prescribed by law to the next meeting of this board.

I hereby certify the above to be a true and correct copy of the order above mentioned, as the same appeared of record in. this office.

W. E. BUTTS, Secretary.55

“ STATE. .OP ARKANSAS,

County of White.

This is to certifiy that by order of the board of swamp land commissioners for the State of Arkansas hereunto annexed, and to me directed, I, Jacob G. Robins, sheriff of the county of White, in the State of Arkansas aforesaid, did, on the 22d day of August A. D., 1854, proceed in obedience to said order to summon a jury of twelve freeholders, residents of said county of White, in no wise akin to said parties, or in any wise interested in the lands of said Philip Crise, to attend at the house of said Philip Crise, to assess the damages sustained by the said Philip Crise by reason of á levee ordered by said board of commissioners, passing through the land of said Philip Crise. And I do further certify, that the said jury, to wit: J. S. Tillman, as foreman, Eranklin Deshough, John E. Black, G-. R. Buckley, Rial Wright, Andrew Jones, Joel B. Boatwright, R. Harris, John Griffin, T. H. Ruff, Peter Tidwell and John Perry, did assemble and meet together at the house of said Philip Crise and upon the lands to be viewed, on the 23d day of August, 1853, and after being duly sworn that they would impartially and faithfully view the lands and fields of the said Philip Crise, on whose lands the said levee is located, and would impartially and faithfully assess the damages which said levee is calculated to occasion said lands, did assess the damages of the said Philip Crise, at the sum of fifteen hundred and fifty eight dollars. as will appear by their verdict hereunto annexed, all of which said proceedings are herewith returned, this 23d day of August, 1854.

J. C. BOBBINS, Sheriff.

By L. S. HowaetoN, Deputy Sheriff.

“STATE OF ABKANSAS, )

CouNty of White. j

We, the undersigned, the jury summoned by the sheriff of White county, to assess the damages caused by the location of a swamp land levee upon the land of Philip Crise, after having been duly sworn faithfully and impartially to view the lands and fields, in which said levee is located, and to assess the damages, which said lévee is calculated to occasion to said lands, do value and assess the damages due said Phillip Crise at $1558.”

(Signed by J. S. Tillman, foreman, and the eleven other persons named above in the sheriff’s return.)

The above exhibits are authenticated by the certificate of the clerk of the Circuit Court of White county, as being correct transcripts of the originals on file in his office, &c.

On the filing of the petition the Circuit Court ordered an alternative writ of mandamus against the Auditor, to which he made the following response, in substance:

“ In response to said writ this respondent would most respectfully represent, that the papers do not show what tract or tracts of land are said to be injured by the location of said levee, consequently, the right of way could not be vested in the State, even were she to pay the amount indicated in said account by the jury of'inquisition.

Bespondent would further represent that he does not find sufficient evidence that said levee has been, or ever will be erected; or that the said petitioner is the owner of any lands in said county.

That, by reference to the assessment list filed in respondent’s office for the year 1854, for the county of White,, he is unable to find that said Philip Crise has listed any land for taxation for that ■year.

And, believing be bas shown sufficient cause, &c., &c., respondent prays to be discharged,” &c.

The petitioner demurred to the response, the court overruled the demurrer, and he rested thereon, and appealed from the judgment of the .court, discharging the Auditor.

The damages claimed by the petitioner were assessed to him under the provisions of the AOiA section of the act of 12th January, 1853, Pamphlet acts 1852, <p. 170, which is as follows :

“ All contractors for erecting levees shall have the right of way through the lands or fields, where the levees are located by the commissioners; and the contractors shall give bond and security, conditioned for the faithful execution of the contract, and shall be liable to pay damages to the use of the State, and also to any citizen, who may be injured by the nomperformance of the contract according to the condition of the bond aforesaid; but if the proprietor or proprietors of such lands or fields should be dissatisfied with the location of such levees through his, her or their lands or fields, and shall on the location of such levees as aforesaid give to the commissioner notice of such dissatisfaction, and of their determination to claim such damages as the location of such levees may occasion, then, and in that case, the said commissioners shall forthwith apply to the sheriff of the proper county, who shall forthwith proceed to summon a jury of twelve free holders of such county, in nowise akin to said parties, or in any wise interested in said lands or fields through which said levees may be designed to pass, which said jury shall assemble at the place intended to be viewed, and shall take an oath, to be administered by the sheriff, that they will faithfully and impartially view-the lands or fields of such person on whose lands such levee maybe located, and will faithfully and impartially assess the damages, which such levee is calculated to occasion such lands; and the said verdict shall be entered upon the back of the inquisition, and shall, by such sheriff, be filed -in the office of the clerk of the Circuit Court of the proper county, and the inquisition and verdict so returned shall be-, an effectual bar'to both parties without appeal; and if sucb jury should find damages for sucb owner or proprietor, tben, and in tbat case, sucb owner shall have a credit for so much, which when properly certified by the clerk of the proper court, shall be sufficient authority to the proper officer to issue scrip for the same, and when so issued, the same shall be taken and received in payment of any of the swamp and overflowed lands in this State.”

This section of the act was perhaps passed in consequence of the decision of this court in Martin et al., Ex parte, 13 Ark. R. 199, where it was held that the board of swamp land commissioners could not construct the public levees and drains upon the lands of private individuals, to their detriment, unless the State would provide for compensating the proprietors of the lands for such damages as might be occasioned them thereby, &c.

The inquest of damages iu the case now before us seems to have been taken literally in conformity with the provisions of the statute.

The first objection to the validity of the inquest, taken by the response of the Auditor, is, that the proceedings do not identify the particular lands of the petitioner which were damaged by the location of the levee, and upon which the State is to obtain the right of way by paying the damages assessed by the jury.

No doubt, the object of requiring the inquest to be returned to the clerk’s office was, thaf there might be preserved some public memorial of the right of way acquired by the State in the premises ; and it is manifest that a compliance with the spirit and intention of the law would require a reasonably certain identification of the lands upon the face of the proceedings.

But the statute does not expressly require the lands to be described, and the inquest in this case coming before the court collaterally, it is not warranted in holding the proceeding to be null and void for want of such identification of the lands.

The second objection made by the response of the Auditor is, that he does not find sufficient evidence that said levee has been, or ever will be erected.

The petition avers that the levee was placed tinder contract and was in process of construction, &c. See Crise Ex parte, 16 Ark. 193.

This allegation is not denied by the response, nor is it confessed and avoided. The rules of pleading required one or the other.

The third objection is, that the respondent had been unable to find in his office any evidence that the petitioner was the owner of any land in White county in the year 1851.

It appears from the face of the inquest that Crise was the owner of the lands and fields upon which the damages were assessed.

We must presume that the board of swamp land commissioners, sheriff and jury, ascertained this fact, as it is stated in their proceedings. It was hardly necessary for his title to be set out in the inquest.

From some omission his lands may not have been assessed in the year 1854, or may have been listed for taxation in some other name. But be this as it may, this objection of the Auditor presents no relevant issue to be determined by the court, or a jury. The Auditor does not allege that Crise was not in fact the owner or proprietor of any lands upon which the levee was located ; and that the inquest was a mere fraud gotten up by him to speculate upon the State ; but the response states merely that the Auditor finds no evidence in his office that Crise was the owner of such lands, &c.

We think the response is insufficient, and that the court erred in overruling the demurrer thereto.

The judgment is reversed, and the cause remanded for further proceedings, &e.


text:
    Allston Ex Parte.
    An application to tliis court in the first instance, for a writ of certiorari to a justice of the peace, because the Circuit Judge is of lrin to the petitioner, and disqualified, should show how he was related.
    A writ of certiorari will not lie to correct errors in the proceedings of the inferior court, which could have been corrected on appeal.

      Petition for writ of O&rtiora/ri to a Justice, of the Peace.

    Stillwell, for tbe petitioner.
   Mr. Chief Justice ENGLISH

delivered the opinion of the Court.

This is an application to this court for a certiora/ri, to bring up the proceedings and quash the judgment of a justice of the peace of Franklin county, recovered against the potitioner, Overton B. Allston, by Sadler & Co.

The petitioner states that, " the Hon. Eelix J. BatsoN, the Judge of the 4th Judicial Circuit, &c., is of kin to him, and consequently, disqualified to grant relief in the premises.”

The petitioner should have stated how he was related to the Circuit Judge, so that this court could determine, as a matter of law, whether the degree of relationship existing between them disqualified the judge to hear and determine the application which is made for relief here. See Const. Ark., Art. 6 sec. 12; Digest, chap. 50, sec. 16; Allis Ex parte, 1 Eng. Rep. 105.

We have, however, looked into the transcript, and we do not find that the judgment of the justice of the peace was void for the want of jurisdiction of the subject matter, or persons of the parties. There may be errors in the proceedings of the justice, but these the petitioner could have corrected by an appeal to the Circuit Court, which it does not appear that he took or sought, nor does lie state any excuse for not doing so.

Certiorari refused.