author: Mr. Justice WalKbe

text:
    Ashley et al. vs. Cunningham et al.
    When a cause has been decided by the Supreme Court, and remanded for further proceedings, none of the parties lias a right to raise any question, in the inferior court, touching the correctness of the decision of the Supreme Court: and whero one of the parties dies, during the pendency of the cause in the Supreme Court, the heir, upon being made a party in the court, to which the cause is remanded, takes the place of the ancestor, and stands in precisely the same situation as any other party
    The death of the complainant being suggested, his heirs applied to be admitted parties in his stead, to prosecute the suit to final decree: the defendants objected, and presenting to the court a deed of conveyance for the land in controversy, executed by the complainant before his death, and after the commencement of the suit, suggested that the grantee was the proper party: Held, That the heirs of the complainant were the proper parties.
    The complainant being restricted to a pro - emption of one - half of the quarter section, in consequence of there being another settler upon the same quarter, who was entitled to a pre - emption, though no entry was made under it, is entitled, in the division of the quarter, to the east-half, though that portion embrace the location of the other settler as well as his own — both having settled upon the samo subdivision of the quarter.

      Cross Appeals from the Circuit Cowt of JPulasJci County in Chamo&ry.

    Hon. "Wm. H. Feild', Circuit Judge.
    CuRRAN & Gallaghee, for tbe appellants.
    PiKE & CummiNS, for tbe appellees.
   Mr. Justice WalKbe

delivered tbe opinion of tbe Court.

This suit was brought in tbe Pulaski Circuit Court in Chancery, by Matthew Cunningham, against Chester Ashley and Boswell Beebe, in which the complainant set up title to the south - east quarter of section three, township one north, range twelve west, under the pre-emption act of the 29th May, 1830, which tracts the defendants had entered with pre-emption floats, over the superior equity of complainant. The history of the case, and the several decisions had in this, and the Supreme Court of the United States, will be found reported in 7 Eng. 296, and 13 Ark. R. 653, 670.

Upon appeal from the decision of this court, (7 Eng. 296,) to the Supreme Court of the United States, that court decided in favor of the pre-emption claim of Cunningham, and that the location of the two pro - emption floats, so far as they interfered with rights of Cunningham to-a pre-emption of eighty acres, including his improvement on that tract, was void. The court, therefore, reversed the decision of this court, which denied the superior equity of Cunningham’s claim, and remanded the case to this court, with instructions to enter a decree in pursuance of their opinion, which was: “ That, on a full consideration of the pleadings and proofs in the case, that the two entries of eighty acres each, made in the name of Samuel Plummer, and Mary Louisa Imbeau, on the south - east quarter of section number three, in township one north, and in range twelve west, of the fifth principal meridian, south of Arkansas Biver, are void, so far as they interfere with the pro - eruptive right of Matthew Cunningham, to ono - half of the said quarter; and that Boswell Beebe and the heirs of Chester Ashley, deceased, defendants, shall execute a deed of quit - claim to the said Cunningham, on his paying, or tendering to them the minimum price of the public land, with interest from 6th of June, 1838, the time the above entries were made, to one-lialf of the above quarter section, by east and west, or north and south lines, so as to include his improvement on the quarter section: or, if such a division could not be made, that they convey to him, as aforesaid, a joint interest of one-half in said quarter section.

At the January Term, 1853, the mandate of the Supreme Court having been filed in this court, the defendants appeared and filed their suggestion, that after the writ of error sued out from the decision of this court to the Supreme Court of the United States, Frances Ann Ashley, one of the defendants, had intermarried with Andrew F. Freeman, and thereafter had died, leaving an infant child, Mary Ashley Freeman, her sole heir, who was then living; and questioned the right of this court to proceed in the cause until she was made a party to the suit.

Before any action taken upon this suggestion, the defendants filed two pleas, setting up the same facts in bar of the right to any action by this court in obedience to the mandate of the Supreme Court of the United States. The complainant moved to strike these pleas from the files of this court.

The ground of objection to the action of this court, in obedience to the mandate of the Supreme Court of the United States, was, that because of the death of Mrs. Freeman, before the decision of the United States Court was made, the decision of the court could not bind her heir; and that she should be made a party, with a right to be heard U|Don the merits of her defence.

But this court held, that it was its duty to obey the mandate of the Supreme Court of the United States, and to carry into effect its judgment and decision, even though such decision might have been made contrary to law, or under a misapprehension of facts; and that, as regards the particular grounds of objection presented after the submission of the cause, the parties have no right to be heard, and if one of the parties dies after submission, there is no necessity for suggesting his death upon the record, or for bringing his representatives before the court, in order to have a final decision of the questions of law arising upon the record. The practice in such case being to direct the decision to be entered as of a day prior to the death of the defendant, and subsequent to the submission of the cause.

The motion to strike out the pleas was. sustained, and this court, in conformity to the decision of the Supreme Court of the United States, and in the language of the decision, decided in favor of the complainants, and directed the Circuit Court to ascertain the locality of the improvement, and that upon the complainant’s paying, or tendering to the defendants the minimum price of the public land, with interest from the 6th of June, 1838, that defendants execute to complainant a deed of quit-claim, to one-lialf of said quarter section, by east and west, or north and south lines, so as to include complainant’s improvement on said quarter section; such division, if practicable, to be made according to the usual legal subdivisions by which the United States divide lands granted by 80 acre grants to pre-emptioners, or if such division could not be made, that the defendants convey to him as aforesaid, a joint interest of one-half of said quarter section.

"When the mandate of this court went doivn to the Circuit Court, with instructions to enter a decree in conformity therewith, iho complainant tendered, and deposited in court, $190 10, the minimum, price, with the interest thereon, for 80 acres of public land, from the time the entry was made, and moved the court for a decree for the east-half of said quarter section. The complainant also admitted of record, that the improvements, both of Cunningham and Brninback, were exclusively on the north-east quarter of said quarter section, and that both improvements would bo included in the north, or the east-half of said quarter section.

The case, under a rule of practice, was for want of notice of the filing of the mandate, to the defendants, continued from the Juno until the October Term, 1853 ; at which time the complainant filed a bill of revivor, to revive the suit in tliemame of Mary A. Freeman, the infant child of Frances A. Freeman, deceased. Process was issued and duly served upon the infant, and a guardian ad litem appointed, by whom she answered.

The answer recapitulates the several steps taken in the case, and without showing any cause why .she .should not be made a party, but fully assuming that she is the heir and representative of her mother, Mrs. Freeman, in interest in the estate, is intended to assail the validity and binding effect -of the decision of the Supreme Court., and of this court, upon tlie rights of her deceased mother, and consequently upon herself.

The other defendants, by way of suggestions, present the same grounds, as set up in the answer of the infant, and the answer as well as the suggestions, admit that the improvements, of both Cunningham and Brumback, were on the north-east quarter of said quarter section, and would be entirely embraced within the north, or the east-half of said quarter section. They moreover suggest, that both the north and the east-half of said quarter are far more valuable than the south or the west-half, and that no equitable division can be made by giving to complainant either the north or the east-half of said quarter section. In the answer of the defendant, it is also suggested, that Andrew F. Freeman, her father, is living, and should be also made a party to the suit.

The cause was set for hearing at the June Term, 1854, to which time it was continued. During that term, Matthew Cunningham, the complainant, died, and his widow and heirs came in, and suggested that there was not, and would no.t be any administration of his estate, and moved that the suit proceed in their names, for a revivor against Mary A. Freeman, and for a final decree.

The defendants produced the deed of Matthew Cunningham to Peter Hanger, husband to one of the heirs, and one of the applicants to be admitted as plaintiff, made in 1851, conveying to him his whole interest in the property in controversy, and opposed the application upon the ground, that the heirs of Matthew Cunningham had no such interest in the estate, as to entitle them to proceed with the suit in their names.

But the court overruled the objection, and made the order substituting them as complainants, revived the suit against Mary A. Freeman, and decided that Andrew Freeman was not a necessary party, and decreed that defendants should convey, by quitclaim deed, the east-half of the quarter section to the complainants.

The complainants also moved that an account for rents and profits should be ordered; which motion the court overruled.

From so much of the ruling and decision of the court as refused to order an account to be taken of rents and profits, the complainants appealed: and, from the decree as rendered, the defendants appealed.

This brief reference to the history of the case, from its inception to the present time, has become necessary, to present clearly the points still open for investigation.

Every attempt made by the defendants to go behind the decision of the Supreme Court of the United States, and of this court, was properly disregarded. The validity of the decision of the United States Court upon the rights of the heir of Mrs. Freeman, had been presented upon the return of the mandate of that court to this, and it was held, in all respects, as binding upon her, notwithstanding her death after the supersedeas, and before submission and decision by that court, as if she had been, at the time, alive. Cunningham vs. Beebe et al., 13 Ark. 673. And the court then, under a familiar rule of practice, ordered the decision to be entered as of a day prior to the death of Mrs. Freeman, and subsequent to the submission of the cause; which was accordingly done.

This decision conclusively settles the question as to the effect of the decision of the Supremo Court of the United States, upon the rights of Mrs. Freeman. If she had remained in life, when the case was sent back to the Circuit Court, with the mandate of this court to carry into effect its decision, it is very evident that she, no more than Beebe, or any other of the defendants, could have been heard to question the decision of this court, whether right or wrong. All questions submitted to the decision of the Supreme Court, are to be considered as settled, and the mandate of the Supreme Court is obligatory upon the inferior court to carry it into effect. As held in Fortenberry vs. Frazier, 5 Ark. Rep. 202: “Nothing is before the inferior court for its adjudication but the proceedings subsequent to thehnandate.”

If then such would have been the effect of the decision of the Supreme Court upon the rights of Mrs. Freeman, if living, it necessarily follows that the effect upon the rights of her infant child, must be precisely the same; because, by reviving the suit in her name, she becomes substituted, as a party, in the place and stead of the mother, and as the successor in rights and interests, justas they existed in the mother at the time of her death.

The doctrine held in Fortenberry vs. Frazier, was considered and approved in Doe dem. Hanly vs. Porter et al., 5 Eng. Rep. 190, and several other still more recent decisions of this court, and is well sustained by the decision of the Supreme Court of the United States in Shellers ex. vs. May's ex., 6 Cranch 266, and Ex parte Tobias Watkins, 3 Peters Rep. 193.

And although it would seem in the case of Nevis vs. Scott et al., 13 Howard 270, that the first decree was stricken out, and a re-argument had in the case, because one of the defendants, as was made appear to the court, was dead: still, the question seems neither to have been argued, nor any reason assigned for doing so by the court. Indeed, it seems to have been done upon suggestion, and without opposition or reference to authority. And without conceding the correctness of such a practice in the same court where the decision was made, even if such should be the case, it could not be received as an authority to authorize an inferior court to disregard the authoritative mandate of the superior court', and to re-invcstigate the questions presented before it for decision, and upon which a decision has been made. To tolerate this, would be, in effect, constituting the inferior into the superior court, with power to decide upon the correctness and validity of its decisions. The life and efficacy of the decisions of the Supreme Court would be sapped, if they could be either evaded or questioned by the inferior court. There must be an end to litigation, and a supreme and final arbiter, whose decisions must be respected and obeyed.

Under this view of the question, when the suit was revived in the name of the infant, Mary A. Freeman, she took the place of her mother, and in it stood precisely in the same situation as any other of the defendants; none of whom had a right to raise any question touching the correctness of the decision of the Supreme Court.

The next question to be considered is, as to the propriety of making Cunningham’s heirs parties to the suit after the death of Cunningham, who had, before his death, but after the commencement of this suit, conveyed the laud to Peter Hanger, one of the parties, who, by marriage, claimed to be substituted as plaintiff in this suit.

In order more clearly to present this question, we will first consider the effect of the conversance from Cunningham to Hanger, upon the suit, before Cunningham’s death.

Hanger, the purchaser, was affected rvith notice of the pen-dency of the suit for this property ; because, as remarked by Judge Stout, (Equity, vol. 1, chap. 405) “Every man is presumed to be attentive to what passes in the courts of justice of the sovereign State where he resides. And, therefore, a purchase made of property, actually in litigation, -pendente Ule, for a valuable consideration, and without any express or implied notice in point of fact, affects the purchaser in the same manner as if he had such notice ; and he will, accordingly, be bound by the judgment or decree in the suit.” In section 40C, he says: “The litigating parties are exempt from taking any notice of the .title so acquired ; and such purchaser need not be made a party to the suit.” “Hence,” he says, “arises the maxim,pendente Ute nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence, and it does not vary them.”

And to this effect ivas the decision of this court in Whiting and Slark vs. Beebe et al., 7 Eng. 564, in which it was said : “A purchaser pendente Ute acquires no litio by his purchase, which he can set up or assert to the prejudice of the parties litigant, and the suit will be heard and determined upon the merits, as it stood between the parties litigant, perfectly irrespective of any rights which he may have acquired by such purchase: which, if valid, for any purpose, can only be so as between himself and his vendor, to enable him, upon the determination of the suit, to succeed to the rights of such vendor, or perhaps, if a party to the suit, to enable the court, after the determination of the rights of his vendor, favorably, to decree them to hinl.”

That such would have been the effect of the purchase of Hanger, as regards the present sn.it, if it had been prosecuted to a final hearing and decree, during the life time of the complainant, there can be no question : indeed, this is not seriously controverted by the defendants; but they contend, that by force of this conveyance, he had parted with 1ns title to the property before his death, and that in fact nothing survived to his heirs, but that the title being in the purchaser, he was the sole party in interest, and being such, none other could be substituted. Now we have shown that such was not the effect of the deed, during the complainant, Cunningham’s life, but that, as regards this suit, and the rights of the parties in litigation, it stands in suspension as completely as if no such deed had been made: indeed, there are not wanting respectable authorities that hold it to be champer-tous and void. And if such was not the case, during Cunningham’s life, it must haw' been because, from a prevailing necessity in the administration of the law, the right to litígate, and finally to determine this suit, still remained in him, as fully as if no such deed had been made; and so remaining at his death, might be asserted by his heirs. They succeeded to all the rights of their ancestor, and this was clearly such, because the deed communicated no more perfect title to Hanger by the death of Cunningham than he possessed before his death.

But, in another point of view, there is a manifest propriety in disregarding this conveyance in the progress and final determination of this suit. Will the court permit an issue to be raised between Hanger, the purchaser, and the heirs of Cunningham, as to the validity of his purchase? And if not, shall the heirs be thrust aside, and an intruder, who brings a paper title to the property in suit, step in and take a final decree for the property in bis name ? We should say not; and, if not, will the court, after years of litigation between parties, and just at the time when the final decree is to be entered, stop to open a new issue, and protract the final determination of the suit, to an indefinite, if not upon principle (if sanctioned in this instance) to an endless litigation-

But the most remarkable feature in this objection to the substitution of Cunningham’s heirs, is, that it should come from the defendants. If Hanger himself claimed to be substituted as sole complainant and party in interest, the defendants might well have said : We have had a tedious and an expensive contest with the ancestor of these complainants, and we are unwilling now to turn aside to scrutinize the pretensions of this intruder, who claims to be his assignee; at the close of so hot a chase, it is not fair to turn in a fresh pack upon us. But so far from this, the complaint is, that the old claimants are not turned off, and this purchaser, who does not himself set up any claim as such, should be made to litigate and contest with them the right to the property, (if indeed at this advanced stage of the case there is anything to litigate, other than what necessarily follows from previous adjudication).

But the truth is, Hanger is already a party by substitution, not in his right as purchaser, but by marriage, and with his wife, and the other heirs of Cunningham, he is a complainant.

The cases in 1 Barb. 648, and 9 Miss. 605, cited and relied upon by the counsel for the defendant, upon examination, are found not to affect the grounds upon which we think this case must be decided. In the case in 1 Barb., it appeared that an assignment of a judgment, which the party had intended to make after appeal taken, was, in fact, made before the appeal was entered. Upon the question as to whether it was necessary to revive the proceeding on the appeal before proceeding to argument, the court expressly declined giving any"bpinion. There is no authority cited; and, from the facts of the case, there was no necessity for investigating this question.

In the case in 9 Miss., the question arose upon a bill of review, not a bill of revivor, and in investigating the case, tlie court remarked, that if tlie complainant assigned bis interest in the suit pendente lite, if the defendant wished to have the suit brought to a termination, his proper course was to apply to the court for an order, that the assignee proceed and file a supplemental bill, in the nature of a bill of revivor, or in the event of his failing to do so, the bill would be dismissed. The only authority cited for this, is 1 Paige 287. .Upon reference to that case, it would be found that the question arose in a case where an insolvent assigned his estate, pendente lite, whereby the insolvent loses his capacity to sue, and the assignee, who takes the estate to be distributed amongst the creditors, is, in fact, the proper and only party interested; for the heir, in such case, gets nothing from the insolvent’s estate.

This case is essentially different. Here the heirs succeed to the estate of the father. The contract, pendente lite, gives no right to the assignee to obtrude his claims upon the notice of the court, or the litigants. To that extent, his purchase is dormant, and avails him nothing. And even if the case reported in 9 Miss. was directly in point, with all due respect to the opinion of that court, we should hesitate to receive it as an authority to bfe followed, when it stands so strongly opposed to the whole doctrine of claimants, purchasers pendente lite. And particularly in a case like this, and where the heirs have all appeared and madejhemselves parties, and where the purchaser is in fact aparty complainant to the suit, electing to take as heir and not as purchaser by deed. Not a shadow of doubt exists, but that the decree rendered as between those parties and defendants, will be final and conclusive upon all the rights at issue in this suit; at least, as far as the defendants áre concerned; and such being the case, they have no reason to object to the prosecution of the suit to final hearing with these complainants.

But suppose the names of the heirs of Cunningham should be stricken out as parties complainant, and Hanger substituted as sole complainant — what then? Are not his rights as fully and definitely settled by the previous decisions in tbe case as Cunningham’s, from whom lie purchased, were ? or shall the defendants be permitted to open anew, the old issues between them and Cunningham ? We think not. And if not, there is no apparent reason for a mere change of names without benefit to the defendants. It is evident, therefore, that this objection was not well taken.

The remaining question, upon the appeal of the defendants, relates to the execution of the mandate of the Supreme Court.

The ground of objection to the decree in this respect, is predicated upon the assumption that Cunningham and Brumback were each entitled to a pre - emption under the same act of Congress, and upon the same subdivision of the quarter; and, consequently, neither was entitled to the tract on which their improvements were made, to the exclusion of the other ; and, therefore, that no division could be made which would do justice to them, because whether divided by east and west, or north and south lines, the tract on which both improvements would fall, would be of far more value than the other, and that standing in the relation of tenants in common, as between Cunningham, and Ashley and Beebe, who succeeded by purchase to the.rights of Biumback, nothing but a sale of the land and division of the proceeds thereof, would be equitable and just.

Conceding the premises to be well founded, such would seem to be just; but, upon examination, the facts of the case are essentially different in this; that although it was proven that Brum-back was entitled to a pre - emption of equal validity with Cunningham’s, and on the same subdivision of the same'quarter section, and that Ashley was the purchaser thereof, yet still no entry was ever made under Brumback’s pre-emption, nor did the defendants claim title to the land by virtue thereof: that claim was lost to them, or if available for any purpose, it was only to pave the way to laying the floating pre-emptions of Plummer and Im-beau. This it was, according to the view taken by the Supreme Court of the United States, which removed the objections to the location of 80 acres under and by virtue of the pre-emption floats; because, says tbe court, although not made by Ashley, it was owned by him. It was then the purchase of the improvement, and not the pre-emption of Brumbaek, that was available to the defendants, and then, not by way of conferring a right to enter the land, but to remove obstacles in the way of an entry under the floating pre-enrptions.

Thus it was held,' that Cunningham was entitled to enter 80 acres under his pre - emption right of 1829 and ’30, and the defendants to 80 acres under their floats : but then these were not held to be claims of equal merit. So far from this, these floats were swept off as void, so far as they affected, or interfered with the rights of Cunningham; and the court directs that the 80 acres to Cunningham shall be laid off “by east and west, or north and south lines, so as to include his improvement,” and that if this cannot be done, that defendants convey to him a joint interest of one-half of the land.

The Supreme Court seems to have overlooked the particular locality of Cunningham’s improvement, or out of abundant caution, to have so shaped their decision as to secure to Cunningham the full benefit of his pre-emption, and standing as it did, without any rival claim to a pre-emption, or rather to any title under one, there was a manifest propriety in doing so.

The fact as to the particular locality of the improvement of Cunningham, having been admitted by the p>arties of record, it became the duty of the Circuit Court, in obedience to the mandate of the Supreme Court of the United States, to decree the east-half of the quarter section- — it being the usual subdivision made by the United State's of its public lands, and Cunningham’s improvement being- exclusively on that tract.

According to the view of the case thus taken, it follows, that so far as the exceptions of the defendants extend, anctyfor the alleged errors to correct which they appealed, the decree of the Circuit Court was correct, and should be affirmed.

Before Hr. Justices Scott and WalKeb, and Hon. Taos. JohN-soN, Special Judge.

Mr. Chief Justice English not sitting in this case,


source: Caselaw Access Project

author: Mr. Justice "Walkeií

license: Public Domain

text:
    Cunningham et al. vs. Ashley et al.
    (Decided at July Term, 1855.)
    If this court reverso a deoreo and remand the causo to the Circuit Court for further proceedings, that court can only carry into effect the mandate of this court so far as its direction extends: but tho Circuit Court is left free to mako any order or direction in the fnrthor progress of tho case, not inconsistent with tho decision of this court, as to any question not presented or settled by such decision.
    In this case, a right to the rents and profits of tho land, during the wrongful and fraudulent disseizin of tho complainant, necessarily follows tho recovery, as a consequonco resulting; and no express claim for rents and profits need have been sot up in tho bill, but they may bo recovered under the general prayer for relief.
   Mr. Justice "Walkeií

delivered tlie opinion of tbe Court.

This case came before us at tbe last term of the court upon cross appeals, and an opinion was tlien delivered. After which, upon petition of tbe defendants, a re-consideration was granted to that part of the opinion, which decided the questions of law-arising upon the appeal of Cunningham’s heirs.

The questions of law arising upon the appeal of the complainants, from the decision of the court, grew out of a motion, made by complainants, at the time of taking their final decree for the land, for a reference to the master to take an account of the rents and profits on the land, and to report. This motion was overruled, upon the ground that the allegations in the hill had not laid the proper basis for such account. From which decision, the complainants appealed.

Preliminary to this, the question was made by counsel, whether as this court, in its directions to the Circuit Court, when the case was before us upon a former appeal, made no reference of the question of rents and profits, that court, upon the return of the cause for further proceedings, in conformity with the opinion of this court, could do more than to carry into effect tlie specific decree indicated in the mandate to that court.

We think it very well settled, that the Circuit Court could not, so far as the direction extended; but the question of rents and profits was not then presented for our consideration; no question of law was either discussed or settled with regard to it; and, consequently, the Circuit Court was left free to make any order or direction in the further progress of the caso, not inconsistent with the decision and direction of this court.

The allegations in the complainant’s . bill are not very full and distinct, with regard to the extent of the adverse possession held by the defendants, and there is no distinct claim set up by the complainants, in their bill, to rents and profits; nor is there any .specific prayer for relief touching the same. So that unless rents and profits result, necessarily, from the decision of the court, upon the allegations of afradulent and wrongful disseizin in favor of the complainants, and could become the subject of litigation and contest, notwithstanding a decision in favor of the complainants as to the title and the wrongful disseizin, in order to entitle the complainants to recover, it would become necessary to make a distinct averment and claim to rents and profits, which might be decreed under the general as well as under a specific prayer for relief. And the whole question seems to be narrowed down to this enquiry.

The question then is, what is the legal effect of a claim to land, of which the claimant has been disseized ? This question has been answered by several decisions, fully in point, to which we will refer.

In Green vs. Biddle, 8 Wheaton 1, it was held, that at common law, whoever takes and holds possession of land, to which another has a better title, whether he be a Iona fide or a mala fide possessor, is liable to the true owner for all rents and profits which lie lias received; but the disseizor, if lie is a Iona fide occupant, may recoup tlie value of the meliorations made by him against the claim for damages. That equity allows an account for rent in all cases, from the time the title accrued, (provided it does not exceed six years) unless under special circumstances, as where the defendant had no notice of the plaintiff’s title, or whore there has been laches in the plaintiff in not asserting his title, &c., in which and similar cases, the account for rents is confined to the,time of filing the bill; and the court concludes this branch of the case by saying : “A right to laud essentially implies a right to the profits accruing from it, since, without the latter, the former can be of no value. Thus a devise of the profits of land, or even a grant of them, will pass a right to the land itself. Shep. Touch. 93; Co. Litt. 4. For what, say Lord Coke, is the land but the profits thereof.”

And so this court held, in Watkins & Trapnall vs. Wassell, 15 Ark. 92, “that a grant of rents and profits entitled the purchaser to enter upon and take possession of the land itself.”

In Emerson vs. Thompson, 2 Pick. R. 487, it was held, that the right to mesne profits was a necessary consequence to a recovery of the estate.

And Lord EldoN said, in Pulling vs. Warren, 6 Ves. 87, “when the decree for title or judgment in ejectment is obtained, the plaintiff has all natural justice on his side, both in law and equity, to the possession, from the moment he made the demand, and if so, the mesne profits are consequential upon his obtaining possession.”

These authorities show conclusively, that the right to the rents and profits of the land necessarily follows the recovery as a consequence resulting- from it; and, if that be the case, it is very evident that no express claim to rents need be set up in the bill; nor indeed can any question arise with regard to rents that might not as well arise with regard to interest upon the rendition of a judgment. "When a contract is proven, and judgment rendered upon it, the law, as a consequence, without any averment or demand for interest, gives tbe right to take judgment for interest for the detention of the debt. And so in a suit to recover real estate, when it is ascertained that the plaintiff has been disseized of his freehold by the defendant, and that the land is the plaintiff’s, the law fixes the right to rents and profits, for the detention and use of the land, as it does for the detention of money due upon a contract. In the latter case, the law fixes the rate of interest: in the first, the value of the rents and profits is left to be ascertained by evidence upon an inquiry for that purpose, having regard to the length of time, the value of the property; and perhaps where the occupant is bona fide such, to recoup the value of improvements against damages for rents.

The point of analogy between the case of a judgment in debt and in ejectment, for which we contend, is this, that when the act of indebtedness is ascertained, the right to interest follows, without an averment that it is claimed: and, upon the like principle, when the right to the land and the disseizin are settled, rents and profits for the use of the same are recoverable, as incident to the determination of the right to the land.

There was, therefore, in our opinion, no necessity for a specific allegation in the bill for rents and profits; no distinct issue could have been taken upon it; and whether the question should be considered before the court upon allegations and proof, or before the master, the only question would be the nature'of the tenancy, the length of time it was held adversely, and the value of the improvements. These facts being ascertained, the court would determine, upon application of the law arising upon them, what decree it should render, and under the prayer for general relief, decree accordingly.

The case of Dormer vs. Fortesque, 3 Atkins 124, was not so clear a case as this. In that case, the bill was filed for the discovery of a deed, under which Dormer claimed, and that the same might be forthcoming on the trial at law of an action of ejectment, and for general relief. Nothing was said about rents: it was not even a suit for the recovery of land; but to discover the title papers to land. Tbe plaintiff subsequently obtained judgment in ejectment, and a supplemental bill was filed to recover rents and profits. Lord Hakdwiok said in that case, that tbe supplemental bill aside, tbe original bill was sufficient, “ and extended to every thing then insisted upon by tbe plaintiffs, and that be ought not to confine them to the single matter of producing the deeds upon the trial.” And the counsel, throughout the argument of that case, conceded that if the bill had been to recover the land, and not to discover the title deed, the right to recover the rents and profits would have been clear, but only contended that as such was not the scope and object of the bill, that the rents and profits were not recoverable in that suit, under the prayer for general relief.

■ We are satisfied, therefore, that the motion to refer the matter of account for rents to the master, should have prevailed, and for this error, the judgment and decision of the Circuit Court must be reversed, and the cause be remanded, with instructions to entertain the motion, and refer the matter of account for rents and profits to the master.

Mr. Chief Justice English not sitting.


author: Mr. Justice Scott

text:
    Greenfield vs. Wright, Williams & Co.
    In an action of assumpsit for money paid, the plaintiff may prove the payment of money on the drafts of the defendant, without producing or accounting for the drafts.

      Writ of Error to the Circuit Court of Jefferson Cownty.

    Hon. J. C. Mueeav, Circuit Judge.
    Fowlbe, for plaintiff.
    Tbe point saved by exception, as to tbe impropriety of tbe evidence offered to prove payment of the drafts, <&c., mentioned in tbe account, without producing tbe drafts, or showing cause tvhy they were not produced, by proof of their loss or destruction, &c., or even proving that Greenfield bad drawn them; or in any wise authorized their payment, &c., it is insisted, on tbe part of Greenfield, was well taken in law.
    And 1st. It is well settled law, that no person can be made tbe debtor of another against bis will; but be must voluntarily become tbe debtor, either by express or implied consent. And Wright, Williams d& Co., could not make Greenfield their debtor, by paying drafts, or bis debts to others, tbe holders of tbe drafts, without proving that Greenfield reguested it, or in some way authorized them to do so. See Heirs of Emerson vs. Hall, 13 Pel. Rep. 412; Chrisman vs. Long, 1 Carter {Indi) Rep. 213/ Hamilton vs. Beama/n, ib. 189/ Young vs. JDibnell, I Hump. Rep,.fflO; Ba/rtlett vs. Glasscoclc, 4 Missouri Rep. 70; Bertmnd vs. Byrd,
      5 Ark. Rep. 657/ Exall vs. Patridge, 8 Term. Hep. 310/ Oden vs. Elliott’s exr., 10 Ben. Mon. Rep. 315.
    2 d. Parol evidence of any material fact, agreement, or writing, cannot be received, when the written evidence exists, and can be controlled by the party. See 2 Esp. Nisi Prius 780/ 2 Sta/rk. Ev. 318/ Stone vs. Waggoner, 8 Ark. Rep. 206/ Sebree vs. Porr, 5 Gond. Rep. 680/ Renner vs. Bank of Columbia, 5 Oon. Rep. 699.
    If the, plaintiff’s below toot np Greenfield’s drafts, or paid them, whether drawn on them or a third person, at his reguest, it was their business to preserve and prove the drafts, andLtheir authority for paying them; and failing to do so, they should be held to abide by the consequences.
    Yell, for defendants.
   Mr. Justice Scott

delivered the opinion of the Court.

The defendants in error sued in assumpsit, in the Jefferson Circuit Court. The declaration was of three indebitatus counts, for money, interest, commissions, merchandise, invoices, work and labor, balance due upon an open account, and upon an account stated; all in the most full and formal manner: the demand being laid as due on the 18tk of June, 1852. There was no special count. The pleas were non-assumpsit, payment, and set-off, upon which issues of fact were formed and tried by jury. N o bill of particulars was offered or asked. Hiere was no evidence, on the part of the plaintiffs, but that contained in a single deposition, which appears to have been regularly taken on notice, and to which there was no objection made as for irregularity. There was no evidence at all on the part of the defendant, and no motion for a new trial. When the deposition was offered to be read to the jury, the defendant moved to exclude from them, all that part of it which went to prove those items, in the exhibit attached thereto, (which was a detailed account in debits and credits of sundry items,) which charged the defendant for drafts paid: on the ground that the evidence offered, as to these items, was secondary. But the court overruled his motion, and he took a bill of exceptions. The verdict and judgment having been rendered against him, he sued out a writ of error, and having obtained a supersedeas of the execution in the vacation of this court, has assigned here for error, the overruling of his above mentioned motion.

The plaintiff did not seek to recover upon any written security, but upon an implied parol contract. If the drafts charged to have boon paid had been produced, they, of themselves, would not have proved the plaintiffs’ allegation of money paid for the defendant, otherwise than by the presumption of that fact, which would have arisen from the possession of them. But although he might have proven this allegation thus — it does not follow that he might not have proven it also by any witness who knew the fact otherwise, as by one who might have seen the money paid, and the drafts taken up. A draft is no written instrument of evidence,^designed by the parties to show its own payment by the drawee. It purports no such thing. Much less, then, is it, even in the hands of the drawee, such written evidence of that fact, as to exclude all parol evidence to the same point unless produced, or its loss or destruction be first proven. If the defendant had desired more minute information of the items of the plaintiff’s claim against him, he might, doubtless, have obtained it, by asking for a bill of particulars, which, in this case, he did not. If he had feared a fraudulent use by the plaintiff of the drafts in his hands, for the payment of which the latter proceeded against him, doubtless by a timely application, the court would have ruled their production in court, and their surrender at the hearing — mid if he had desired more explicit proof, as to whether these drafts were drawn on the plaintiffs, or on a third person, or at his own request, or as to the plaintiffs’ authority to pay them, he doubtless might have obtained some light on these points, or on some of them, if he had availed himself of his privilege to attend, when notified, as he was, and had cross - examined the witness. Whether the verdict and judgment are sustained by the evidence, or whether the jury were misled in any way by instructions of the court, are questions in no way presented on this record. But the only question is, whether or not the court erred in overruling the motion above mentioned: and we do not think it did. The judgment will be affirmed with costs.

Absent, Mr. Justice "Walkeb.


author: Mr. Justice Soott

text:
    Chase vs. The State Bank.
    The hooks of the plaintiff, the State Bank, having been brought into court and used by her on the trial, the defendant, to sustain his plea of payment, made application to the court, first laying a foundation therefor, to read an entry, showing a part payment which was granted, and the entry read. He then, without a bill for discovery or a proceeding in its nature, offered to read in evidence other entries showing a balance to his credit: the plaintiff objected, and the court sustained the objection: Held, That the court committed no error in refusing permission to read the entry under such circumstances.

      jEjttot to the Circuit Court of PulasM County.

    Hon. "War. H. Feud, Circuit Judge.
    PiKE & CuMMiNS, for tbe plaintiff.
    S. H. Hempstead, for tbe defendant.
   Mr. Justice Soott

delivered tbe opinion of tbe court.

This was an action of debt, tried by jury upon issues of fact, one of wbicb was on tbe plea of payment. After tbe evidence, on tbe part of tbe plaintiff below, bad been concluded, tbe defendant filed bis petition, verified by affidavit, alleging a payment of tbe sum of $112 — a loss of the receipt given to him by tbe proper officer of tbe Bank for tbe same — that he bad not known of tbe loss until that day, and was not sure of it until by diligent search among his papers, where he supposed it was, up to a few minutes before the application, he bad been unable to find it. And that no delay would be the result of an order of court to allow him to read from a book of the Bank, then on the clerk’s table, and just before used by witnesses for the Bank, to refresh their memory, an entry therein which would show that the Bank had given him credit for the payment of $112, which he -would have proved by the alleged receipt, but for its having been lost or mislaid as set up.

The court made tbe order against the objection of the Bank — as for the application being out of time — to which a bill of exceptions was taken, but as the Bank has not complained, that question is not presented.

After the defendant had thus proven the payment of $112, which, it appears by his bill of exceptions, was found and allowed for him, in the verdict of tbe jury, he offered- to read, from the same book of accounts, further entries to prove additional payments by means of an apparent balance in his favor of $874 99, standing on the face of said account, in connection with oral evidence which be offered to produce, that before the commencement of this suit, be bad expressly requested and directed the proper officer of the Bank to apply and appropriate as much as was necessary of said apparent balance to extinguish the note sued on, and if tbe same was insufficient, to apply it nevertheless upon this debt. But tbe court refused to permit him to do so, and the defendant filed his bill of exceptions.

At the same time that tbe defendant made this application, tbe plaintiff on her part offered to show, from the books of the Bank, other than said account book, and to prove that said apparent balance, long before the defendant had given his alleged directions for its appropriation, bad been actually appropriated and applied by tbe Bank, to wit: on tbe lltb August, 1846, and tbe 13tb September, 1848, towards tbe payment of a note of said defendant, with Pike and Walters as bis securities therein, payable to tbe Bank, dated 5th of December, 1843, on which suit was instituted in that court in April, 1853, and all tbe defendants discharged, at tbe then present term, upon their plea of tbe statute of limitations. But tbe court refused to permit her to do so, and she filed her bill of exceptions.

It appears, from tbe.record, that no further application was made by tbe defendant, for theproduction of tbe books and papers of tbe Bank, other than that above mentioned in reference to tbe payment of $112.

Under this state of facts, it is manifest, that it would have been error in tbe court to have allowed the defendant's application, without tbe consent of tbe plaintiff, because tbe court could not compel the plaintiff to produce evidence against herself, otherwise than through a bill of discovery, or on a proceeding in its nature under tbe statute, -which tbe defendant adopted as to the credit of $112, but which did not extend to tbe other and additional payments, which besought to establish by the Bank’s book, in connex-ion with the other evidence which he offered to produce. If the plaintiff could be held to have waived the objection, that the defendant had not extended this proceeding for the production of books, to the supposed additional payments, by reason of her having offered, on her part, to produce rebutting testimony to what was produced by the defendant, she could only be so held upon the condition that her rebutting testimony was also allowed. And to the refusal of the court either to allow the latter, or to any refusal of the court to allow the whole as one entire proposition, the defendant does not except at all; but only to so much of the ruling of the court as disallowed Ms proposition to produce the testimony on Ms behalf, which he offered.

To have allowed the defendant, under the facts of this case, what he proposed, would have been as unreasonable as to have allowed bim to propound two interrogatories to the plaintiff, or to have enquired as to two distinct facts, when be bad, by a proper proceeding, applied for, and been granted leave of court to enquire as to one only.

We think it clear that the court did not commit any error against the defendant; and, therefore,, the judgment will be affirmed, with costs.

Absent, Mr. Justice Walker.


text:
    Lawson & Chase vs. State Bank.
   Mr. Justice Soott

said: The facts of this case, so far as they affect the only question of law presented, are substantially the same as those in the case of Luther Chase vs. The State Bank, just decided, except that in this case there was no proceeding for the production of the books or papers of the Bank for any-purpose, and no order of the court therefor.

Finding no error in the record, the judgment will be affirmed, with costs.


text:
    Crise Ex Parte.
    Upon an application for mandamus to the Auditor to compel him to issue his warrant for the damages assessed under the statute in favor of the owner, upon whose land the Swamp land Commissioners have located a levee, it must show not only a regular inquisition and assessment of damages, as prescribed by tho statute, but also that the levee had been built, was in process of construction, or was under contract.
    Application for mandamus to the Auditor, filed during a vacancy in the office of Judge of the Fifth Judicial Circuit; denied, after the election’and commission of the judge: upon motions to vacate the order denying the writ and for leave to amend the petition, the court was divided — Mr. Justice Soott, against permitting the amendment to be made; Mr. Chief Justice English in favor of it.

      Petition for writ of Mandamus.

    Soott and WatkiNS, for tbe petitioner.
   Mr. Justice Soott

delivered tbe opinion of tbe Court.

On tbe 12th day of February, 1855, upon tbe suggestion tbat there was then no judge of tbe Fifth Judicial Circuit in commission : tbe truth of which this court knew from the Governor’s proclamation to tbat effect, and for fixing that same day for tbe election of tbat functionary, tbe petitioner was allowed to file an application, in this court, for a rule upon tbe Auditor of tbe State, to show cause why a mandamus should not be sent to him, to issue bis warrant in favor of tbe petitioner for swamp land scrip, to tbe amount of $1558, in pursuance of an inquisition taken by tbe sheriff of White county, under authority of tbe Swamp Land Commissioners, and tbe verdict thereon rendered, and returned into tbe office of tbe cleric of tbe Circuit Court of White county.

On tbe 26th day of tbe same month of February, this court refused tbe petitioner’s application, upon no ground touching tbe merits of his claim for relief, but upon that-, that be bad not alleged, in bis petition, in addition to bis other allegations, either that the levee in question had been built, was in process of construction, or was under contract.

Before this last mentioned day, however, the present acting judge of the Fifth Judicial Circuit, had been commissioned and qualified.

And the petitioner now submits his several motions for the reconsideration of the opinion of this court, touching the aforesaid refusal, for the vacation of the judgment of refusal, and for leave to amend his original petition, so as to make it conform to the views of the court indicated. With regard to that, for re-consideration, although by reason of a temporary absence from the bench, I did not participate with my brother judges in the refusal of the application, yet I have found no sufficient reason to feel clear that the legal ground, upon which they placed it, ought to be departed from. Indeed, in view of the vast door that would be opened otherwise for exhausting the swamp land grant in advance of actual reclamation or practical commencement therefor, at which latter time only real injury to the landed proprietors would begin, there are weighty considerations persuasive to persist in occupying that ground.

As to the other motions, addressed as they are to the sound discretion of this court, although I doubt not but that abundant analogous precedents in courts of regular original jurisdiction, may be found going to their support, yet I am of opinion for their refusal. Because, like considerations with those which make it the duty of this court, so to exert its revisory power of superintending control, as to conflict with its ordinary appellate power, as regulated by law, as little as may be practicably consistent witli tlie stern demands of justice in prevention of irreparable mischief, obviously inculcate that such of the powers of superintending control, as are of the nature of original j urisdiction, should be exerted only to a like restrictive extent to prevent a failure of justice from accidental causes. Else the result would be, that beyond tbis, tbe courts of ordinary original jurisdiction would be improperly diminished of their rightful jurisdiction. Carnall vs. Crawford Co., 6 Eng. 617, 618. Indeed, there are additional reasons which would authorize even greater strictness in the latter than in the former class of cases; since in every case where this court should exert powers of original jurisdiction, the losing party would be necessarily diminished of the ordinary right of such a party to have the judgment against him revised'in an appellate court. See Allis Ex parte, 7 Eng. Rep. 108, 9 and 116.

During the period when the accidental cause existed, which would have authorized this court to have granted the petitioner the relief sought, he made, nor offered to make, any such prima facie case, as, in the opinion of this court, entitled him to relief. And now when he offers to make such a case, as I think he does, that accidental cause no longer exists.

In the exercise of a sound discretion, to which these motions are addressed, I the more readily assume the position taken, because it in no way delays the petitioner of his ordinary remedy, since when ho made his original application here, the fall term of the Pulaski court, where he can rightfully seek relief, had already been closed; and, consequently, although the temporary vacancy in the judgship of the Fifth Judicial Circuit, had not occurred, yet until the spring term following, which is now not far off, he could not have been heard. Indeed, so far from being delayed, or in being otherwise injured by this course, he is benefited in so far as this court may have enlightened him, as to allegations in any petition he may present to the proper court. The motion, in my opinion, should be refused.

Mr. Chief Justice ENGLISH: I agree with brother Scott, that the amendment which the petitioner proposes to make to the allegations of his petition, would, if allowed to be made, entitle him to an alternative writ of mandamus against the Auditor; but am inclined to dissent from so much of his opinion as places the refusal to allow the amendment to be made, on the ground, that tbis court bas lost jurisdiction, of tbe matter by tbe election and qualification of tbe circuit judge since tbe application was made for tbe writ in tbe first instance. It seems to me, that tbe court, having rightfully obtained jurisdiction of tbe cause in tbe out-set, might well retain it for all tbe purposes of tbe application, and that tbe application to permit tbe amendment, is addressed simply to tbe discretion of tbe court. Under tbe circumstances of tbis case, I should be inclined, on tbe score of discretion, to allow tbe amendment; but, on tbis point, tbe court being divided, and one of tbe judges absent, tbe amendment cannot be allowed, nor tbe writ ordered.

Mr. Justice Soott was absent when tbe mandamus was refused; and Mr. Justice Maleer when tbe motions were disposed of.


author: Mr Justice Scott

text:
    Fowler as ad. et al. vs. Byers as ad.
    A Circuit Judge is not disqualified to preside, where he is related by affinity within the constitutional degrees, to one of the parties in a cause, who is merely a trustee, and has no interest in the determination of the cause.
    A decree of foreclosure of a mortgage should fix some certain time, within which the amount decreed against the property, with interest and cost, might be paid, in default whereof the sale to be made.

      Ippeal from the Cvrowit Oowrt of Independence Govmty in Ohmeery.

    Hon. Beaueort H. Neely, Circuit Judge.
    Fowler, for tbe appellants,
    contended that tbe circuit judge was disqualified to act by tbe constitution and tbe laws. Kelley et

      al. vs. Neely, (Judge) 12 Arh. Rep. 657. That tbe decree was rendered for more than was due on tbe debt. That tbe decree does not direct that tbe lands be sold in tbe order prescribed in tbe opinion of this court. That tbe decree should have been, that unless tbe amount should be paid by a certain day, tbe mor-gage be foreclosed, and a sale take place, &c. Downing vs. Palmateer, 1 Mon. Rep. 67 ; Martin vs. Wade, 5 ib. 80 / 6 ib, 253; Davis vs. Phelps, 7 ib, 637.
    War. Byebs, for appellees.
    We insist that this case is not within tbe spirit or meaning of our constitution and statute: 1st. Because the decree in fact was rendered by tbe Supreme Court, and the Circuit Court was directed to enter it: 2d. Because Egner bad no interest iu the suit. He was a mere nominal party without interst.
   Mr Justice Scott

delivered tbe opinion of tbe Court.

This cause was decided here, at tbe July term, 1853, (Byers adm. vs. Fowler as adm. et al., 14 Ark. R. 87,) and was remanded to tbe Independence Circuit Court in Chancery, with instructions to enter up a decree in accordance with tbe opinion then delivered, and to execute it accordingly. At the March term of that court, the mandate of this court was filed and a decree was entered up on the 20th of that month, against the objection and protest of the defendants, who have brought the case hero again by appeal. The objection against the presiding judge was, that his present wife is a niece, to wit: the daughter of the sister of tbe whole-blood of the present wife of Joseph II. Egner, one of the defendants below.

We thing there is nothing in the objection, because of Egner’s want of interest in tbe controversy; tbe complainants seeking no decree against him personally, nor against any thing in which he had any interest. He being but a trustee, bolding tbe mero naked legal title of a portion of tbe lands proceeded against.

The decree, however, is erroneous in failing to conform to the opinion of this court, in several particulars.

1st. It is excessive in amount, by tbe sum of upwards of $24, by any plausible mode of computing tbe interest, and by tbe sum of upwards of $164, by the proper mode, according to tbe computations of tbe clerk of this court; which, upon examination, we have found correct.

2d. It fails to direct that tbe lands conveyed by Fowler and wife to Denton, in trust, (which lands are not included in the mortgage to Cox) shall, in the order of conducting tbe sale, be first' exposed. Then secondly, all tbe mortgaged lands, except the tracts conveyed to Buddell. Then thirdly, these last mentioned lands. But tbe two former are placed upon one common footing: no such discrimination being made between them, as to tbe order in which they shall be exposed to sale, as was directed by the opinion of this court. But this is in no way injurious to Bud-dell, and, therefore, no ground of reversal.

The decree is also defective in failing to fix some certain time, within which the amount decreed against the lands, with interest and costs, might be paid, in default whereof, the sale to be made.

Under this state of things, we feel bound to set aside this decree, at the cost of the appellee, and shall direct a final decree to be entered up in this court, sTich as the Circuit Court of Independence county ought to have entered up, and cause the same to be certified to that court under the provisions of the statute, (Digest, oh. 28, p. 244) at the costs of the appellants, to be paid out of the proceeds of the sale, like all other costs, except that for this erroneous decree now reversed.

Absent, Mr. Justice "WalkeR.


text:
    Johnson vs. Frank.
    The court may well assess tlie plaintiff’s damages on an interlocutory judgment, in a suit founded upon an instrument of writing, where the demand may he ascertained by the instrument, although the declaration contain a general count, as well as a special count, upon the instrument.
    But where a portion only of the demand sued for can he ascertained by the instrument — as where the plaintiff sues for the ten per cent, interest, damages, and protest fees, as well as the amount of a bill of exchange protested for non-acceptance — it is error in the court to assess the damages.

      Error to the Oireuit Gqmi of Ghioot County.

    lion. J. 0. Murray, Circuit Judge.
    Fowler, for tbe plaintiff.
    The plaintiff in error contends that the court erred in rendering judgment for a larger amount than appeared, by the bill of exchange, to be due, and-that it could not legally iind the damages, interest, and protest fees, unless- by the consent of the parties, but should have called a jury — especially as one of the counts was on an account stated. Ark. Digest, 809, sec. 81, 82, p. 216, 217.
    One of the counts was a common count, and, in all such cases, a jury is necessary to assess the damages; and it is error for the court to assume that office. Starbuek vs. Lazenby, 7 Blackf. It. 268 / Sherman vs. Wilson, ib. 362 / 9 Missouri Rep. 166.
    Pire & Cummins, for the defendant.
    We suppose, on default, every fact in the declaration is' admitted. The law fixes the amount of recovery on the facts, and the court or clerk could ascertain damages. Witt et al. vs. State, 14 Ark. Dev. 173.
   Mr Justice Scott

delivered the opinion of the Court.

This action of assumpsit, was upon a bill of exchange for $1090, drawn by Johnson, at Belle Point, Arkansas, on George M. Pin-kard & Co., at New Orleans, and alleged to have been protested there for non-acceptance. Besides a count on the bill, the declaration contained a common count.

“The defendant below having withdrawn all his pleas, and saying nothing further why judgment should not be rendered against him, and the plaintiff now exhibiting to the court the bill of exchange sued upon and filed in this case, and the court having inspected the same, found for the plaintiff the sum of $1181, the amount of the said bill of exchange, interest and damages thereon, and protest fees; and, thereupon, considered that the plaintiff recover against the defendant, the said sum of $1181, for his damages, so as aforesaid assessed, with interest on the sum of $1090, the amount of said bill of exchange, to be computed at the rate of ten per centum per annum, from the day of the judgment until paid,” &c.

We think that the objection made, that where there is a general count and also a special countin the same declaration, that it would be error for the court to assess the damages, is not well taken. Because, under our statute, (Dig., ch. 126, sec. 128,) where there are several counts, and entire damages are given, the verdict shall be good, notwithstanding one or more of the counts may be defective. And within the reason of this regulation, where there is a general, and also a special _ count, the finding and judgment of the court, without the intervention of a jury, may be well enough sustained, as referable to the special court only.

But the other objection will have to be held good, because by our statute, (Digest, ch. 126 sec. 81, 82), “Whenever an interlocutory judgment shall be rendered for the plaintiff by default, or upon demurrer, in any suit founded upon a/ny instrument of writing, and the demand is ascertained by such instrument, the court shall assess the damages, and final judgment shall be given thereon. In all other oases of snch interlocutory judgments, the damages shall be assessed by a jury,” &c.

And. in this case only so much of the demand sued for, as appeared on the face of the instrument, could be ascertained by it; and neither the ten per cent, interest, the four per cent, damages, or the pi’otest fees, thus appeared. On the contrary, they arise out of provisions of the statute, (Digest, ch. 25, p. 216, 217, sec. 8, 10), upon proof of the fact, of the alleged protest, which it is for a jury to ascertain, and then assess the damages, according to the clause of the statute above copied — these being all matters dehors the bill, and cannot be recovered at all, unless upon proof of the protest, a matter in pais.

The judgment of the Circuit Court of Chicot county, must therefore he reversed, and the cause remanded, with instructions to that court, to submit the case to a jury, for the assessment of the damages, unless waived by the parties, and to render a judgment for the plaintiff below accordingly.

Absent, Mr. Justice WalKer.


author: lion. TiioMAs Johnson, Special Judge,

text:
    Brown vs. Brown.
    whore an account against a party is delivered to him, and he examines it carefully, and makes no objection to it, or any thjng contained in it, it amounts to an indirect admission of the debt — acquiescence or silence, when a demand is made, is equivalent to an admission.

      Appeal from, the Ciroidt Cowrb of Johnson Comity.

    Hon. "William: II. Eehjd, Circuit Judge.
    WalKER & Green, for appellant.
    ENGLisn, for appellee.
   lion. TiioMAs Johnson, Special Judge,

delivered the opinion of the Court.

This case comes up on a motion for a new trial, and the verdict is assailed upon several grounds: the first of which is, that it is contrary to the evidence. To authorize a new trial upon this ground of objection, the verdict must have been against the weight of evidence: so much so that on the first blush of it, it should shock our sense of j ustice and right. See Howell vs. Webb, 2 Ark. Rep. 364, and numerous other cases subsequently decided. In order to determine correctly the question raised by this objection, it will become necessary to look into the testimony, and to see upon which side the scale preponderates. That there was evidence before the jury, legitimate and competent to establish the demand of the appellee, unless successfully overturned by the proof on the other side, there can be no doubt. It is in proof, that tbe account sued upon was exhibited to the appellant, that after haying heard it read, he took it and examined it carefully, and made no objection to the correctness of it, or to any item contained in it. This amounted to an indirect admission of the debt claimed by the appellant. An admission may be presumed, not only from the declaration of a party, but even from his acquiescence or silence. As for instance, where the existence of the debt, or of the particular right has been asserted in his presence, and he has not contradicted it. But it is objected, and argued with much force and ingenuity, that the item for money advanced, is improperly included in the account, because, as it is contended, it was not loaned to the appellant, but to another and different party. We think that this position is not tenable, or at least that the jury were fully warranted in finding otherwise, upon the whole testimony introduced before them.

Bobert Houston, whose deposition was first read, testified substan-ti all y, that he resided with the appellee, as a clerk in his store, nearly two years, commencing with the early part of 1849, and ending in the spring 1851, with the exception of about seven months in 1350; that during that time, the appellant kept an open account with the appellee; that appellant frequently bought articles himself, and that one Isaac Brown frequently bought articles, andhad them charged to appellant; that during that time, a settlement took place between the appellee and appellant, at which time the appellant paid for all articles charged against him, and which had been purchased by said Isaac; that Isaac never had any account kept against him with the appellee,, but that all the transactions he made were in the name of the appellant. lie further stated, that about the first of January, 1S51, the appellant, said Isaac Brown, and one Young, came to the house of appellee, and that when the said Isaac, and the appellant were both together in conversation with the appellee, either the one or the other, and which of the two it was, he could not then recollect, said he had bought Young’s place, and wanted four hundred dollars to pay him, and proposed to appellant, that if he would advance him that sum of money, that he would deliver his cotton at his gin, let him gin, bale, and ship it, and pay himself out of the proceeds of the cotton ; that they, or one of them, said that they were unwilling to take the price of cotton there, and would risk the market. That the appellee then advanced the sum of two hundred dollars, which was charged to the appellant on the appellee’s books, in the presence of the appellant, and that appellee agreed to advance two hundred more at some other time.

Levi Macon, another witness, also testified that in a conversation with the appellant, he said that he had been over to appellee’s store to have a settlem ent, and that the cotton had fallen short of the four hundred dollars paid to James Young, and his account for 1850, and that he would have to try and raise the money to pay him; and he also stated, at the same time, that his store account for 1851, when added, would leave him behind over $100.

James Brown, the next witness introduced by the appellee, testified, that about the first of December, 1851, the appellant came to appellee’s store, in company with Enoch Wood, and called for his account, when the account sued upon was produced by the appellee, and the appellant, after having heard it read over, took it and examined it carefully himself, that he made no objection to the correctness of it, nor to any item contained in it. He also stated, that in the course of a conversation between Enoch Wood, appellee, and appellant, respecting the price Wood claimed for liis cotton, appellant said to Wood: “Yon ought not to complain of losing on so small an amount, when I have to lose on my cotton,” alluding to the cotton credited to him in the account sued upon in this case. And on cross-examination, he stated that the accounts on file, and marked B and C, are in the hand writing of the appellee, and that the items contained in them are the same, or are intended to be the same, as those contained in the account sued upon, with the exception of the money and the cotton.

James Allen, the last witness introduced by the appellee, testified, that after the delivery of the cotton credited in the account sued upon, at the appellee’s gin, it was ginned and put away in the lint-room, and covered over with plank, for want of bagging and rope to bale it; that appellant and Isaac Brown came to tbe gin, and stated that it was to be baled out to itself, and'that they expressed dissatisfaction, saying that they feared the dust from the other cotton would get upon it.

This is the substance of the testimony offered by the -appellee. The appellant then produced, and read in evidence to the jury? the two accounts marked B and C,. referred to in the testimony of James Brown. He then introduced as a witness, Enoch Wood, who testified, that about the last of December, 1850, Isaac Brown applied to him for his crop of cotton to enable him to obtain an advance upon it from the appellee, so that he might pay one Young for a tract of land that he had bought of him. That he agreed to let him have all his crop, except two loads, and it was agreed between them that he, Isaac Brown, should pay him $2 per one hundred ¡sounds, for the cotton; and, further, that he, Wood, should be entitled 1o whatever the cotton should bring in New Orleans over and above that sum. Thathe, witness, delivered two loads of cotton of his own at appellee’s gin, in pursuance of a previous arrangement with appellee, and that Isaac Brown got and hauled to the same gin the residue of his crop of cotton, amounting to about 5000 pounds, for which he, the said Isaac, afterwards paid him. That after he heard that appellee had got a return of sales in New Orleans, he and appellant went to appel-lee’s store on Little Piney, that appellant wanted to settle his account, and that when appellee produced his account, a dispute arose between them about the money charged in the account, that appellant said he was willing to pay his store account, that he had nothing to do with Isaac Brown’s contracts, and denied that he ever had anything to do with the money advanced by appel-lee to Isaac Brown; that appellant said to appellee: “ I came here with Isaac Brown, when he came to borrow the money, but did I open my mouth to you on the subject,” and that appellee replied that he did not, that he knew of; that appellant then asked him what authority he had for charging the money to him, and that appellee replied that be considered him and Isaac Brown all one, and lie wanted to be sure of his money.

James Matthews also testified, that Isaac Brown purchased cotton of him, to enable him, as he said, to get an advance payment from appellee for the purpose of paying Young for the land which he had purchased from him, that he let Mm have 1400 pounds for $2 per 100 pounds; and also, to pay him all over that price the cotton should bring in New Orleans ; and that said Isaac afterwards paid him $2 per 100 pounds for the cotton ; that after the cotton was ginned and baled, he and Isaac hauled it to the river to be shipped: that he (witness) told appellee to pay himself $2 per 100 pounds out of the proceeds of his cotton, towards the payment of the money he had advanced said Isaac on it, and to purchase certain articles for him (witness) in New Orleans, and pay for them out of the residue, and that appellee agreed to do so.

Isaac Brown, the last witness introduced by the appellant, testified, that in the fall or winter of 1850, he bought of one Young, a tract of land, for which he paid him $200, and was to pay him $400, it being the residue of the purchase money, in a short time thereafter; that not having the $400, required to complete the purchase, and meeting with the appellee, who was a merchant in the neighborhood, he told him that he was compelled to raise the $400, and asked him if he would advance him the amount on 20 000 pounds of seed cotton delivered at his gin, and that appellee agreed to do so; that he then went to James Matthews and Enoch Wood, two of his neighbors, and got them to agree to let him have enough seed cotton to make up the 20 000 pounds, he having agreed to pay them $2 per 100 pounds, and to let them have whatever it should sell for, over and above that price in New Orleans; that he was to deliver the 20 000 pounds of cotton before the appellee was to be called upon for the $400, but that appel-lee, upon his request, paid $200 to said Young before any of the cotton was delivered; that in consequence of high water, he was prevented from delivering the cotton at the gin as soon as he expected, and said Young being on tbe eve of leaving tbe county, be went to appellee to inform liim of tbe cause of bis failure, and also to apprize liim of bis necessity to raise tbe balance of tbe money, and to get bim to advance it before tbe cotton was delivered; that be saw appellee and told bim bis situation in regard to tbe matter, and told bim tliat if be would pay Young tbe $200 for bim, that be would deliver tbe 20 000 pounds of cotton as soon as the creek should fall; that appellee agreed to do so, and accordingly paid over tbe remaining $200 to Young; that the agreement between himself and appellee was, that appellee should advance tbe $400 to pay Young for bis land: that he would deliver 20 000 pounds of seed cotton at bis gin; that appellee would gin, bale, and ship tbe cotton to New Orleans, and pay himself out of tbe proceeds, tbe $400 be was to advance, and to account for and pay over tlie residue, if any. That be delivered tbe 20 000 pounds of cotton at appellee’s gin, that it was their worth $2 per hundred; that tbe 20 000 pounds were hauled to tbe gin by himself, James Matthews, and Enoch Wood. Upon cross-examination, appellee asked tbe witness, Isaac Brown, whether be did not- bring an order from appellant for tbe last $200 that be paid to Young for him; to which be replied in the negative, that appellant never did give bim an order for tbe money; that be bad nothing u> do with it, and bad no right to give an order for it. The same quesdon was repeatedly asked him, and be as often denied mat be bad ever, upon any occasion, taken an order from appellant to appellee for tbe money paid to Young, or any other person, lie was then asked by tbe counsel, for tbe appellee, whether lie bad delivered an order, or other paper writing, which be himself said was signed by tbe appellant, to ap-pellee at bis store, upon a certain occasion when Joseph Mausco was present, on tbe 1* >tb day of January, 1851, for tbe last $200, to which be replied that be did not, but that when be went to appellee to get bim to advance the residue of tbe money to Young, be took with bim a letter written to appellee by appellant, stating that if appellee would let bim (witness) have tbe money to pay Young, he, appellant, would guarantee the delivery of the 20 000 pounds of cotton, as soon as the creek should fall; that he showed the letter to appellee, who read it and threw it down,saying he wanted no security, and agreed to pay Young the $200; that when appellee threw down the letter, he (witness) took it up and tore it to pieces; that at the time he was insolvent, and that the appellee well knew it.

Judge Bayless, the next, and his last witness, testified, that before the commencement of this suit, appellee spoke to him about suing appellant on a book account; that he told him that it would be necessary for him to file his account before the writ issued; that ap-pellee spoke of the nature of his demand, and said that the transaction was between himself and Isaac Brown, but that he had never kept an account against Isaac Brown, and had charged the money to the appellant; that he (witness) was a justice of the peace at the time, and appellee said he would make out the account and send it to him.

Here the appellant closed the evidence on his part; when the appellee introduced Joseph Mausco, who testified that he was at appellee’s store, on Little Piney, about the 10th January, in company with Isaac Brown and Young, the man who sold his land to Isaac. That Isaac spoke to appellee to let him have some money to pay Young; that appellee remarked that money was scarce and did not seem inclined to let him have it: that Isaac then pulled put and presented to appellee a paper writing, and said that if he was not good, John Brown, meaning the appellant, was; that appellee shortly afterwards paid $200 over to Young : that the paper handed by Isaac to appellee, was a notice or an order; that he did not read it, nor hear it read, but that Isaac said to ap-pellee, when he handed it to him, that if he was afraid to trust him, he could not be afraid of John Brown, that he was good, and that there was an order, or a notice signed by him for the money. This is, substantially, all the evidence adduced upon the trial in the court below.

The testimony of the several witnesses, introduced by the ap-pellee, wlien taken in connection with the tacit admission by the appellant, we think can leave but little doubt, but that the money advanced was properly charged to the appellant. True it is, that the witness, who was present, at the time the contract for the money was made, could not say positively whether it was the appellant, or the said Isaac Brown, who contracted for it. This then, if taken by itself and uncorroborated, might have left room to doubt upon the subject. But when it is considered that the charge was made immediately against the appellant, and in his presence, that the appellee had never kept an account with Isaac, but that his purchases, anterior to that time, had been charged to appellant, and paid for by him without objection; that said Isaac was insolvent, and that appellee well knew it, that the appellant went to the gin before the cotton was baled, and complained that it was not sufficiently protected; that he remarked to Wood that he ought not to complain at his loss, when he had to lose so much upon his cotton, and referring to the cotton upon which the money had been advanced, that the cotton had fallen short of the $400 paid to James Young, and his account for 1850, and that he would have to try and raise the money to pay him, and that he sent a notice, or an order, to the appellee for the money: there certainly can be no room for doubt or cavil, unless those who testified to these facts have been shown to be unworthy of credit, or the proof on the part of the appellant is overwhelming and utterly impregnable. Wood, the first witness, introduced by the appellant, testified that Isaac Brown applied to him for his crop of cotton to enable him, as he said, to obtain an advance of money from the appellee to pay for a tract of land which he said he had purchased from one Young, and that he agreed to let him have a portion of his crop. lie also testified, that after he had heard that appellee had gotten a return of sales in New Orleans, he and appellant went to appellee’s store; that appellant wanted to settle his account; that appellee presented his account, and that a dispute arose about the money charged in the account; that appellant said he was willing to pay his store account; tbat be bad nothing to do with Isaac Brown’s contracts, and denied tbat be ever bad anything to do with the money advanced by appellee to Isaac Brown ; tbat on being asked by appellant, whether be opened bis month, when be went with Isaac Brown to borrow the money : tbat be replied tbat be did not, tbat be knew of; and that on being asked by what authority be bad charged the money to appellant, be replied tbat be considered him and Isaac Brown all one, and tbat lie wanted to be sure of bis money. It will be perceived tbat all this witness knew, in relation to the contract of lending, be learned from Isaac Brown himself, until be and the appellant went to appellee’s store, after a return of the sales of the cotton in dispute, and also of the cotton that the witness claimed, and then it was tbat be says the conversation occurred between appellant and appellee, which has already been detailed. It appears that the witness, on tbat occasion, got into a snarl himself with the appellee about the cotton, tbat be claimed to have hauled to bis gin, and what effect this difficulty may have bad upon bis testimony in this case as tending to defeat the claim of the appellee, connected with other circumstances surrounding the transaction, it was perfectly competent for the jury to decide. The testimony of James Matthews is perfectly consistent and reconcilable, with tbat offered by the appellee. All tbat be knew of the contract of lending, be derived from Isaac Brown, and tbat the appellee agreed to pay himself for the money advanced, whether to Isaac or the appellant, out of the proceeds of witness’ cotton, could not raise the slightest presumption tbat the advance was made to the former. Isaac Brown, itTs conceded, testified in positive terms, tbat the money was advanced to himself, and upon his own responsibility, yet the reluctance which be manifested in disclosing the fact of having borne a letter in respect to the money from the appellant to the appellee, and also the discrepancy between bis testimony and tbat of Mausco, touching its contents, well warranted the jury in disbelieving all that be said in relation to the original contract. "We have now passed upon all the testimony, which we conceive material, and upon a full review, we think that there is clearly nothing in the verdict calculated to shock any one’s sense of justice and right.

The next ground of objection to the verdict is, that it is contrary to the instructions of the court. We have not been able to discern any foundation for this objection to rest upon, as there is nothing in the finding that is in any way inconsistent with the instructions. The third and last special ground is, that the court mistook the law in giving in charge the instructions called for by the appellee. The court gave but two instructions at the instance of the appellee. The first was, that if the jury believed, from the evidence, that the plaintiff advanced said sum of $400 in his account charged to defendant, and charged the same to him, that they must find for the plaintiff, as to the amount which might be due. There certainly could be nothing wrong in that, for it is a self-evident proposition. The other was, that if they believed, from the evidence, that the account of plaintiff was presented by him to the defendant, and that the whole account was read to the defendant, and he did not object to the same, or any item thereof, or the balance struck thereon, they should find for plaintiff; this is a circumstance from which the jury may presume its acknowledgment.

If any good objection could be taken to the first branch of this instruction, as being too strong, it is clearly obviated by the last clause, as it most undoubtedly would be a circumstance, and a strong one, from which the jury would have been warranted in finding for the appellee. Indeed, acquiescence or silence, when a demand of a debt is made, is equivalent to an admission, as already held in a previous part of this opinion ; and, consequently, the instruction was perfectly right. The fourth and last objection is in general terms, and alleges that the verdict is unjust and unwarranted by the facts in the case. No exception was taken to the action of the court in modifying or refusing to give the instructions asked by the appellant; and, consequently, this court is not called upon to express any opinion upon that point. See Carr vs. Crain, 2 Eng. 249.

We entertain no doubt of the correctness of the judgment of the court below, and it is, consequently, in all things, affirmed.

Mr. Chief Justice English not sitting.

Absent, Mr. Justice "Walker.


author: Mr. Chief Justice English

text:
    Ringgold vs. Randolph.
    Tha statute of limitations, prescribing ten years as the period of presumption of payment of a judgment, having been repealed before any vested right of defence under it, had accrued to the defendant, he can derive no benefit from it under his plea of payment.

      Saire Facias to revive a judgment.

    Eowler, for the plaintiff.
    Trapnall, for the defendant.
   Mr. Chief Justice English

delivered the opinion of the Court.

At the July Term of this court, 1842, the case of Ringgold et al. vs. Randolph, on error to Pulaski Circuit Court, was reversed, and judgment rendered against Randolph, for $15 37 costs.

At tbe January Term, 1854, on the suggestion of Ringgold, of the death of his co-plaintiffs in error, and that said judgment for cost remained unsatisfied, a serie facias was ordered by the court against Randolph, requiring him to show cause why the judgment should not be revived, and execution issued, in the name of Ringgold, as surviving plaintiff, returnable to July Term, 1854. Scire facias was accordingly issued on the 10th of April, 1854.

Randolph pleaded payment, to which issue was taken, and the cause submited at the present term, without any proof of actual payment, the defendant relying upon the presumption of payment arising from lapse of time.

The 2,0th section, chap. 91, Revised, Statutes, which was in force when the judgment in this case was rendered, declares, that “every judgment or decree, which may hereafter be rendered in any court of this State, or elsewhere, shall be presumed to be paid and satisfied after the expiration of ten years from the time of rendering the same,” &c.

By sec. 5, act oflédh December, 1844, {Pamphlet Acts, 1844, p. 25) the above section of the Revised Statutes was expressly repealed., This repeal having been made long before any vested right of defence, under the repealed statute, accrued to the defendant, he- can derive no benefit from it, under his plea of payment in this case.

By the common law, the presumption of payment of a judgment, does not arise until after the lapse of twenty years from the date of the judgment. Woodruff vs. Sanders as admr., July Term, 1854.

The finding is against the defendant’s plea, and the judgment will be revived, and execution ordered, &c.

Absent, Mr. Justice WalKbe.


author: Mr. Chief Justice ENglisii

text:
    Hofler vs. The State.
    This court will not entertain an application for a supersedeas of the judgment in a criminal case, unless application bo first made to, and refused by tho Circuit Court. Bixby vs. The State, 13 Ark. 286.

      On Appeal from Olm'Jc Ci/rcuil Gou/rb.

    Motion, for supersedeas.
    Stillwell, for tbe motion.
   Mr. Chief Justice ENglisii

delivered the opinion of tbe Court.

Ilofler was convicted, in tbe Clark Circuit Court, of an assault with, intent to kill, &c., and sentenced to the Penitentiary for three years. Whereupon, the record states, he “Piled his prayer of appeal herein, to the Supreme Court, which being considered by the court, it is ordered that- the said prayer be granted, and that the defendant have an appeal in this case to the Supreme Court, and that the clerk of this court make, certify, and send into said Supreme Court, a true and complete copy thereof.

Whereupon, on motion of said defendant, Ilofler, it is ordered by the court, that the execution of the judgment be stayed for the time and term of twenty days, that said Ilofler, in the mean time, may apply to the Supreme Court for a supersedeas', whereupon it is ordered by the court, that said defendant be remanded to the custody of the sheriff from whence he came.”

The appellant has filed a transcript of the record in this court; and applied for a supersedeas of the sentence of the court below, until tbe case can be finally adjudicated here upon bis appeal.

The appellant was entitled to the appeal as a matter of right. Digest, ch. 52, sec. 225. lie had also the right to apply to the Circuit Judge, for a stay of the execution of the sentence, until the appeal could be heard and determined in this court. Ib. sec. 226.

Had he applied to the Cricuit Court for such stay of execution, and the application had been overruled, it would have been the duty of the court, nevertheless, to have stayed the execution of the judgment, except as to costs, for a sufficient time to enable the appellant to make application to this court, or one of its judges, for a supersedeas. Ib. sec. 228.

But the appellant having made no application to the court below, for an order staying the execution of the judgment, until his appeal could be heard and determined here, this court cannot grant the supersedeas now asked for by him, according to the decision in Bixby Ex parte, 13 Ark. R. 286. The rule is, that the application for supersedeas must first be made to the Circuit Court and refused by it, before this court will hear such application.

The appellant is privileged notwithstanding, to prosecute his appeal, but, in the mean time, there can be no stay of execution, on this application, at least.

Absent, Mr. Justice "Walkee.