text:
    Harriet and others vs. Swan & Dixon.
    Where the law prescribes a certain form and manner for manumission, no other manner or mode can be adopted or pursued by which it can be lawfully effected; and so a deed of emancipation in this State is inoperative unless it be proved or acknowledged in Court as prescribed by the statute.
    The possession by an administrator of the estate of the intestate, continued for a long time after the period limited by law for closing the estate and distributing the property, does not, by the mere lapse of time, change the original character of the possession, and make it adverse against those entitled to distribution, or create any right or title in the administrator under the statute of limitations.

      Appeal from the Chancery Court for Pulaski county'.

    The Honl Hulbbrt F. Fairchild, Chancellor.
    Fowler for the appellants.
    Watkins & Gallagher for the appellees.
    Slavery is recognized by our constitution, and it is the fundamental law of the land, and the constitution has directly prohibited the Legislature from emancipating slaves without consent of the owner. Tit. Eman., sec. 1, p. 55, Dig. Rev. St at. Slavery was recognized in the Territory of Arkansas, under and by virtue of the constitution of the United States; and by express treaty with France on the purchase of the Louisiana Territory; and statutory laws were enacted allowing slaves to be emancipated, and prescribing the manner and mode in which it should be done to make it legal. Thus whilst negro slavery was recognized by the laws of Arkansas, under and by virtue of the constitution of the United States, and by treaty as a part of the fundamental law of the land — emancipation on the other hand was but the creature of the statute, and from the statute the right of manumission drew its very life and existence. Thus by the letter of the statute must it be governed.
    In the case of Givens & Reynolds vs. Mann, 6 Munford Rep. 201, upon a trial for emancipation, the plaintiffs offered in evidence a deed of manumission recorded in the district Court, where by the laws of Virginia, a deed of manumission must be proved in the County or Corporation Court. The deed was rejected by the Court; which decision was affirmed by the Court of Appeals.
    And we lay it down broadly that where the law prescribes a certain form and manner for manumission, no other manner or mode can be adopted by which manumission can be carried out; and that the requisites of the statute must be strictly complied with, and the power to manumit can only be exercised in the mode directed by the statute, so held by our Supreme Court, in the case of Campbell et al. vs. Campbell et al., 13 Ark. Rep. 519. See, also, McCutchen vs. Marshal et al., 8 Peters 238. Winney vs. Cartwright, 3 Marsh. 403. Bazzie vs. Rose and her child, 3 Martin L. Rep. 149. 7 La. Rep. 135. 14 J. R. 324. 19 J. R. 53. Cooke vs. Cooke, 3 Lilt. 326. Beall vs. Joseph, Hardin Rep. 51, 5 Martin’s Rep. 494. 4 Martin La. R. 212. Negro James vs. Gaither, 2 Har. & John. 176. 6 Munford 191. 1 Rand. 15. Bibb’s R. 57.
    The authority given to emancipate by a prescribed method was a prohibition to emancipate in any other way. Dunlap vs. Archer, 7 Dana 32. Trotter vs. Blake, 6 Port. 292,295. Alwood vs. Beck, 21 Ala. 612.
    See Scott, (man of color,) vs. Emerson, 15 Missouri Rep. 587, where the subject of slavery is fully discussed, and the previous decisions in that State reviewed, and the above authorities fully sustained; which case is cited and approved by the Supreme Court of Mississippi in the case of Sylvia vs. Kirby, 17 Miss. 434.
    Gilbert Barden died in June, 1838 — the pretended deed of manumission was not filed for record until 1839; showing that the same must have been retained by him until his death, and never delivered by him. This would invalidate it. See the cases above cited, 14 John. Rep. 324. ■ 19 Johnson R. 53. Campbell vs. Campbell et al., 13 Ark. 520.
    Charlotte Barden, we maintain, had no right to disposé of the slaves, belonging to the estate of Gilbert Barden, deceased, either by freeing them, or otherwise. Neither did her possession of them, for any length of time, vest in her any such right, by lapse of time, or by the statutes of limitations; whether we consider, that she held the same, as tenant in common, with the heirs at law, or as administratrix. We again repeat, that we here allude to the interest in them, other than her dower interest, because as to that interest, there is not a shadow of right in appellants, to their freedom, by virtue of any statute of limitations.
    And we call the attention of the Court to the following authorities.
    Charlotte Barden, as administratrix of Gilbert Barden’s estate, made her last settlement in May, 1844, with the Probate Court of Pulaski county, showing in her hands, a balance belonging to the estate, of $3,901 97; this included the value of the .negro slaves, named in the inventory. Without a surrender of these effects to the lawful distributees, or to the court, and a discharge by the Court, she could not be released from the duties and liabilities imposed upon her, by her administration. She was never discharged or released from the same. “ If a trustee is in possession, and does not execute his trust, the possession of the trustee, is the possession of the cestui que trust; and if the only circumstance is, that he does not perform his trust, his possession operates nothing as a bar; because his possession is according to his estate.” Pr. Ld. Redesdale, in 2 Sch. & Lef., 606; cited in Angelí on Lim., sec. 166; and in the same section, the latter says: “ To exempt a trust from the bar of the statute of limitations: It must first be a direct trust. 2d. It must be of a kind, belonging exclusively to the jurisdiction of a Court of Equity, and then the question must arise between the trustee, and the cestui que trust. See, also, the 168¡!A section, of same work. Norths admr. vs. Barnum, 10 Vermont R. 223. 11 Dana 211. Coon vs. Nicholas, 2 W. & S, 28. Kane

      vs. Bloodgood, 7 Johnsons Ch. 121, 133, 136. Redwood vs. Red-dock, 4 Mun. 227. Meddicott vs. O'Donnell, 1 Ball & B. 166, 169. Warner vs. Barnett, 4 Wash. G. C. 640. Adams as admr. vs. Baylor, 14 Ark. Rep. 66. 4 Eng. Rep. 518. Decouche vs. Savatier et ad., 3d Johnson's Ch. Rep. 216. Beckford vs. Wade, 17 Vescy 97. Lexington and Ohio R. R. Co. vs. Bridges, 7 B. Monroe 556. McDonald vs. Simms, 3 Kelly 383. White vs. White, Maryland Ch. Decisions, 53.
    Even if there was a breach of trust on the part of Charlotte Barden, it would not avail the appellants any thing.
    “ Acquiescence in a breach of trust, will not prejudice a person, who was ignorant of his rights. Walker vs. Symond, 3 Swanst. 64. Cholmondoley vs. Clinton, 2 Miss. 362. Blanher-hassei vs. Day, 2 Ball & B. 137.
    And equity has frequently relieved, after long lapse of time, when cestui que trust, has not due information of the circumstances. Ryder vs. Beekerton, 3 Sw. 80 and n. Underwood vs. Stevens, 1 Mer. 713. Adams vs. Clifton, 1 Russ. 207. Barnes vs. London Watercourse Company, 3 Madden 375. Randal vs. Erington, 10 Ves. 423. Wedderben vs. Wedderben, 1 Keen. 749. 4 M.. & Cr. 52.
    It lies upon the trustee, who rests his defence on the acquiescence of cestui que trust, in a breach of trust, to prove they had knowledge, or notice of the fact. Hill on Trustees, page 627. Randall vs. Errington, 10 Ves. 428. Lincoln vs. Wright, 4 Bea vers 429. Downes vs. Grayehrook, 3 Mer. 208.
    When the possession of a party, holding slaves, is at the commencement, permissive, his declarations, that he holds them as his own, if not brought home to the knowledge of the owner, do not constitute adverse possession, so as to bar the right of the owner, under the statute. Spalding vs. Grigg, 4 Ga. R. 75. Walker vs. Symonds, 3 Sw. 64. Breckenridge vs. Glasse, Cr. & Ph. 135-’6. Harris vs. King, 16 Ark. Rep.p. 122, and authorities there cited.

    These authorities clearly show, that the statute of limitations cannot avail the appellants in this suit.
   Mr. Justice Scott

delivered the opinion of the Court.

This is an appeal on the part of certain slaves, claiming the right to freedom, who were allowed to interplead by guardian in a proceeding in the Chancery Court of Pulaski county, wherein the appellees sought, as heirs and distributees of Gilbert Barden, deceased, to recover from the executor of Charlotte Barden, deceased, and others, the entire estate of the former, in which was included the appellants. Upon the hearing, the Chancellor found the issues, upon the question of freedom, against the appellants, and rendered a final decree accordingly, that being a portion of his final decree upon the whole case, which was rendered in favor of the complainants below, the appellees here.

The appellants’ claim to freedom is based upon the following copied instruments, to wit:

“ Be it remembered, that I, Gilbert Barden, of the county of Pulaski, in the State of Arkansas, having the intention that my slaves, to wit: one man named Isaac, of a black complexion, about forty-six years old, and Harriet, a woman of black complexion, about twenty years old, and her two children,,a girl named Mary Ann, of yellow complexion, about five years old, and David, a boy of yellow complexion, about six months old, should be free at the death of my wife, Charlotte Barden, and manumitted from a state of slavery, but that they should remain her slaves during her life. Now, be it known, that I, Gilbert Barden, for divers good reasons and considerations me thereunto moving, have and do hereby give unto the above named negro slaves, each and respectively, after the death of my said wife, Charlotte Barden, (if they so long live,) their entire freedom, provided they continue faithfully and obediently to serve my said wife, Charlotte Barden, as dutiful slaves to her during her life; and after her death upon condition of their being her faithful servants, I then manumit and discharge them from slavery, and give unto them and each of them, after that event, their entire freedom, if they so long live.

Given under my hand and seal, this 16th day of June, in the year of our Lord, 1838.

his

GILBERT ¡*¡ BARDEN,

mark.

Signed, sealed and delivered in presence of us,

JOHN TAYLOR,

her

CHARLOTTE M BARDEN,

mark.

Witness to Charlotte Barden’s signature,

JOHN H. REED.

STATE OF ARKANSAS,! Coustty of Pulaski. )

I, Lemuel R. Lincoln, Clerk of the Circuit Court and ex-of-ficio recorder of the county aforesaid do hereby certify that the annexed and foregoing instrument of writing was filed for record in my office on the 7th day of January, A. D. 1839, and the same is now duly recorded in book X, pages 239, etc.

In testimony whereof, I have hereunto set my hand and affixed the seal of my office, at Little Rock, the 21st day of [l. s.] January, in the year of our Lord, one thousand eight hundred and thirty-nine, and of the independence of the United States the sixty-third year.

LEMUEL R. LINCOLN, Clerk and Ex officio Recorder.

“ Be it remembered that whereas, I, Gilbert Barden, of the county of Pulaski, and State of Arkansas, have this day executed my deed for the manumission of my negro woman slave, named Harriet, and her two children, Mary Ann and David, after the death of my wife, Charlotte Barden, upon condition of their remaining during her life her faithful slaves and servants: Now, I, Gilbert Barden, hereby declare that I have given and hereby do give to the said Harriet, when she shall obtain . her freedom under said deed, upon the condition aforesaid, the following parcel of land, consisting of about twenty-nine acres, that is, the north portion of the fractional section thirty-five, on which I now live, in township one north, in range twelve west, dividing said fractional section by an east and west line, so as to cnt off forty acres on the south side thereof, situate, lying and being in the said county of Pulaski in said State. To have and to hold the said northern portion of said fractional section of land, containing about twenty-nine acres, more or less, to her the said Harriet, after the event, and on the condition aforesaid, to her and her heirs forever. And I, the said Gilbert Bar-den, hereby, for myself, my heirs, executors, etc., to the said Harriet, etc., the said land above granted shall and will forever warrant and defend.

Given under my hand and seal, this 16th day of June, in the year 1838.

his

GILBERT h BARDEN,

mark.

Signed, sealed and delivered in presence of us,

JOHN TAYLOR,

her

CHARLOTTE ^ BARDEN,

mark.

Witness to Charlotte Barden’s signature,

JOHN H. REED.”

This instrument was also officially certified in the same terms as that first above copied, and both of them were proven, by the deposition of Albert Pike, to be in the handwriting of John Taylor, who practiced law in Arkansas, and resided in Little Rock in the year 1838, and in that or the next year went to Texas, where he was at the time of making the deposition, if not dead. That, when here, he was Barden’s attorney. That Reed was dead, and that his signature was genuine.

Another instrument of writing, signed and sealed by Charlotte Barden, and witnessed by J. H. Reed, Sidney Blackburn, and Asa G. Baker, was admitted in evidence by agreement. This bore date the 19th of June, 1839, and referring to the two foregoing instruments and the death of Gilbert Barden, declared, as was recited, that for the purpose of giving his intention effect with regard to the manumission of the slaves, that they had been obedient and dutiful servants, and that she desired that it should be taken that they had continued so up to the time of her death, unless she should, before that time, demand a return of the instrument of declaration from Asa G. Baker, into whose hands she executed it, with a view to place it, together with the original of the two instruments above copied, to be held by him subject to her order.

The appellants also rely upon the last will and testament of Charlotte Barden, deceased, which was made and published the 29th October, 1840, and which was regularly probated and recorded in the Probate Court of Pulaski county, in the year 1851, by which she bequeathed one-third of her estate, consisting of lands, goods, chattels and choses in action, to her niece, Rebecca Brookin, of Pike county, Georgia, and two-thirds to the Methodist Episcopal Church at Little Rock, for the benefit of that body and the spread of the Gospel. That the appellants, Isaac and Harriet, should be emancipated and set free immediately after her death, and that Mary Ann, David Scott, Martha Jane, Lucinda and Isaac Henry, children of Harriet, should be set free, as they should respectively arrive at the age of twenty-one years. That said children of Harriet and other children of hers, that might be thereafter born, and the children of the children, if any, should be hired out until they should arrive at the age of twenty-one years, respectively, and that, after paying the expense of raising said children, one-half of their hires should be given to the trustees of said church, and the other half to the children. Bertrand was appointed executor, and in August, 1851, took upon himself the burden thereof.

Upon the death of Gilbert Barden, his widow, Charlotte Bar-den, regularly took the administration of his estate, returned an inventory of it, including the slaves in question, and made some settlements from time to time with the Probate Court, but her administration was never closed up, and she was never discharged therefrom. Nor was her dower ever set apart to her, nor was there any distribution of the estate. But it remained in her hands intact, from the time she took out administration until her death, and then it passed to the hands of the executor of her last will and testament. Neither she nor her husband ever had any children, and the slaves of the estate did not come to Barden by her. Nor does it appear that she had any interest or estate other than such as she was entitled to in her husband’s estate on account of her dower rights.

The questions then, so far as these appellants are concerned, are:

1st. Were they entitled to their freedom under the deeds executed by Gilbert Barden?

2d. Were they entitled to it under Mrs. Barden’s will?

The first question is distinctly settled, against the appellants, in the case of Isaac N. Jackson vs. Bob, decided at the present term. When these deeds were executed, as now, there were but two ways by which a person owning slaves, could manumit them: 1st, by last will and testament: 2d, by some other instrument of writing under the grantor’s hand and seal, attested and proved in the District (Circuit) Court by two witnesses, or acknowledged by the party in the Court of the district (county) where the grantor resided. Sec. 20, p. 526, Steel & McC. Dig.

These deeds were never so proven or acknowledged.

In the case of Givens & Reynolds vs. Mann, 6 Munf. R. 201, upon a trial for emancipation, the plaintiffs offered in evidence a deed of manumission recorded in the District Court, when by the laws of Virginia, such a deed must be proven in the county or corporation court. The deed was rejected and the Court of Appeals affirmed the decision.

Besides the case of Bob, and the previous case of Campbell et al. vs. Campbell et al., (13 Ark. 509,) decided in this Court, there are a large number of cases cited in the brief of the counsel for the appellees, which sustain the doctrine unequivocally, broadly and distinctly, that where the law prescribes a certain form and manner for manumission, no other manner or mode can be adopted or pursued by which it can be lawfully effected.

Under this state of the law, as applicable to the case before us, it becomes unnecessary for us to look to the provision of the deeds in question, and determine whether they, or either of them would be sufficient, if they had been properly proven or acknowledged; and therefore we are not to be understood as passing upon their sufficiency in that view.

To sustain the appellants’ claim under the will of Mrs. Bar-den, the statute of limitation and lapse of time are insisted upon as giving her title to them. But the difficulty in the way of that theory is the want of the indispensable pre-requisite — adverse possession on her part. Unquestionably they went into her hands as administratrix, and she so treated them upon the records of the Probate Court. She died in July, 1851, and this bill was filed in June, 1852, a few days less than one year after her death. That she was entitled to the possession of the slaves as administratrix, is clear enough from several provisions of the law then in force. Under the provisions of sec. 21, (of Steel & Me Campbell’s Dig. p. 55) of the administration law then in force, executors or administrators were empowered to sell all personal estate and slaves, for the payment of debts and legacies, when necessary, selling slaves last. Under sec. 24, p. 56, ib., they were empowered under direction of the Court, to hire out slaves. Under section 47, page 69 ib., where no known heirs, or where legal heirs or legal representatives did not appear within two years after publication of notice, they were to sell all personal property and slaves, whether necessary for payment of debts or not. And the administration law that was put in force in the State, 20th March, 1839, was to the same effect as to administration on slaves as part of the personal estate of the deceased. And in Menifee’s ad. vs. Menifee et al., 3 Eng. R. 46, et seq., this Court decided that although slaves and real estate descended to the heirs at law, yet the administrator or admin-istratrix was clearly entitled to the possession of the same for the purposes of administration; overruling on this point the previous cases of Hill’s ad. vs. Mitchell, 5 Ark. 609, and Morrill et al. vs. Menifee’s ad., ib. 629, and that that was the true construction of the law previous to the passage of the act of 1846, expressly making slaves and lands assets in the hands of the administrator or administratrix.

In May, A. D. 1844, Mrs. Barden mader ber last settlement with the Probate Court, showing in her hands a balance belonging to the estate, which balance was struck from an aggregate, which included the appraised value of the appellants. She never, afterwards, surrendered these effects to distributees, or divided them between herself as dowress and such distribu-tees, or made any effort to do so, so far as any thing appears on this record; on the contrary, she never closed the administration in any way, or sought any discharge from it, as is expressly admitted; and from every thing that appears on the record, from the time of that settlement (her will having been made some four years previously) until the day of her death, the affairs of the estate, and the possession of the slaves, seem to have been, in all respects material to the question we are considering, in the same condition that it had been from the death of her husband, up to the time of that settlement.

Under such circumstances, to allow lapse of time to create in her right and title to the property, would be, in the language of the Chancellor, to encourage neglect and violation of law in the settlement of estates, and to reward breaches of trust in the disposition of the property of estates.

In any view, under the circumstances of this case, whether she is to be made accountable as administratrix or as tenant in common, she was a trustee to preserve the estate for those beneficially interested. So that it is not necessary to decide in which of these two attitudes to place her, although from analogous doctrines, which seem to be established by highly respectable authority, it would seem that the appellees would have the right to hold her to account as administratrix, and under some circumstances this might be an important right, since there would be bond and security for the representative trust, and none for the trust as co-tenant in common. Thus, the cases of Wallace vs. Taliaferro, 2 Call R. 447—Ib. 471, and the cases 12 Vesey 497; 16 Vesey 413; 5 John. R. 211, seem to establish the doctrine that where the husband is in possession of property in the character of executor, or in right of his wife as executrix, this possession alone is not sufficient to alter the property and vest the estate in the chattels in himself as husband so absolutely that on his death they shall not survive to the wife, but shall pass to his representatives. And, also, that if another person was executor, and the husband got possession of the property, that possession would not avail him unless it was with the executor’s assent. And the case in 6 Munf. R. 70, decides that, where both characters are united, the law is the same, and that an election to take as devisee must be expressed or implied from sufficient circumstances, otherwise he would be considered and held as in possession as executor — possession as husband seeming to be considered as indispensably necessary to be shown. And this seems to have been carried to a great extent in the case of Gregory's admr. vs. Mark's admr., 1 Rand. R. 355, where the husband, in right of his wife, had no right to specific slaves, but only to an undivided portion of certain slaves, and there had been a decree for a division, which one might suppose would have altered the property as much as the administrator’s assent, and in pursuance of which decree there was a division made by commissioners, and the husband took possession of his wife’s part as allotted, yet it was held that that possession did not come up to the standard of possession as husband, because the report of the commissioners had not been returned and acted upon by the Court. This, doubtless, was going a long way, and ought not to be held as law, but it serves to illustrate, in a striking manner, the fallacy of a claim to change the character of a possession once fixed — as was that of Mrs. Barden’s in this case — as administratrix, to that of mere dowress and joint co-tenant with the proper distributees of her intestate’s estate; much less to that of an adverse possession from the mere sliding away of time, during which no one may have interfered with her, either to stimulate her to the proper execution of her trust, or to the assertion of her claim to' her dower rights in severalty.

But, as we have said, that point need not be decided, because, in either event, she is accountable as trustee. And the rule is, that “ if a trustee is in possession, and does not execute his trust, the possession of the trustee is the possession of the cestui griie trust; and if the only circumstance is, that he does not perform his trust, his possession operates nothing as a bar because his possession is according to his estate;” Per Ld. Redesdale in 2. Sch. & Lef. 606, cited in Angell on Lim. sec. 166; and in the same section the latter says: “ To exempt a trust from the bar of the statute of limitations, it must first be a direct trust; second, it must be of a kind belonging exclusively to the jurisdiction of a Court of Equity, and then the question must arise between trustee and cestui que trust.’’’’ And in section 168 of Mr. Angell’s work, it is said: “ The most common mode of creating direct trusts not cognizable at law, is by the appointment and qualification of executors and administrators, who are precluded from taking beneficially; and administrators, claiming merely as such, cannot, by virtue of lapse of time merely, set up title to the general residue. But being simply and technically trustees, there is no principle of equity which, upon that single consideration, can admit of their holding to the exclusion of the parties beneficially interested.” (See also the cases cited on this point in the appellees’ brief, among which are several cases decided in this Court.)

And if it had been shown that Mrs. Barden had committed a breach of her trust beyond the mere non-execution of it, it could not avail the appellants, because mere acquiescence in a breach of trust will not prejudice a person who was ignorant of his rights; and it lies upon the trustee, who rests his defence on the acquiescence of cestuis que trust in the breach of trust, to prove they had knowledge or notice of it. {Hill on Trustees, p. 627, and other authorities cited by appellees.

We think there can be no doubt but that the law is against the appellants upon the second and last ground, upon which they claim their freedom, as clearly as upon the first.

We shall, therefore, affirm so much of the Chancellor’s decree, as was appealed from.

Absent, Hon. Thomas B. Hanly.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Biscoe et al. vs. Royston et al.
    After the execution of a deed of trust the grantor has no such interest in the trust property as is the subject of sale under execution at law. (Pettit et al. vs. Johnson et al., 15 Ark. 55. Cornish vs. Smith et al. adr., 17 lb. )
    The purchaser of debts secured by a deed of trust, upon taking an assignment thereof, becomes subrogated to the rights of the cestui que trust under the provisions of the deed of trust. (Hannah ad. vs. Carrington ad., 17 Ark. )

    S. executed a deed of trust to R. upon all Ms property, consisting of a plantation, negroes, stock, etc., to secure certain debts, the deed provided that the grantor should remain in possession, appropriating the crops, after paying expenses, to the ' payment of the trust debts,- and if they were not paid in five years the trustee might sell; eight years after the execution of the deed, other judgment creditors of S., whoso debts were due when the trust deed was made, file their bill to enforce a foreclosure, and a sale of the trust property; it appeared that the trust debts had not been wholly paid, but that the trust property was more than sufficient to pay the balance: Decreed, that the property be sold, and after payment of the balance of the trust debts, the proceeds be applied to the payment of the complainants’ judgments.

      Appeal from the Circuit Court of Hempstead county in Chancery.

    The Hon. Shelton Watson, Circuit Judge.
    Pike & Cummins, for the appellants.
    A debtor in failing circumstances may prefer one creditor to another; but if he conveys to such creditor a much larger amount of property than is sufficient to secure his debt, postponing the appropriation of it to that purpose for an unreasonable length of time, such conveyance hinders and delays his other creditors, and is void as to them. Bennett vs. Union Bank, 5 Humph. 612.
    And though a conveyance, valid in its inception, made for the security of creditors, but becoming, by subsequent events, oppressive and injurious to other creditors, will not thereby become invalid; yet chancery will interfere to compel an immediate execution of the trust; and after satisfying its purposes, apply the surplus to the payment of other debts. Pope vs. Wilson, 7 Ala. 690.
    The general doctrine on these subjects is settled beyond cavil or dispute.
    It is an utter impossibility for a debtor to put his property, by deed of trust, in such a condition that he can remain in possession for years, receive the crops and rents, manage and cultivate the property, pay one or two preferred creditors at his leisure, and use as much of the receipts for other purposes as he likes, educating his children, and living in comfort, and at the same preventing his other creditors from subjecting his property to payment of their claims. It is an utter, sheer impossibility. See Galt vs. Dibbrcll, 10 Yerger 146. Ward vs. Trotter, 3 Monr. 1. Byrd vs. Bradley, 2 B. Monr. 239. Lang vs.' Lee, 3 Rand. 410. Garland vs. Rives, 4 lb. 282. Van Nest vs. Yoe, 1 Sandf. Gh. R. 4. Mackie vs. Cairns, 5 Cowen 547. 5 T. R. 420. 8 Ala. Rep. 104. 9 id. 305. 9 Sm. & Marsh. 394. 7 Humph. 179.
    Curran & Gallagher for the appellees.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was a bill to compel the foreclosure of a deed of trust, etc., filed by Henry L. Biscoe and others, Trustees of the Real Estate Bank, under the deed of assignment, against Grandison D. Royston and Robert H. Scott and wife, Sarah, in the Hemp-stead Circuit Court, etc.

The bill was filed 30th December, 1851.

It sets out and exhibits a deed of trust executed by Scott and wife to Royston as Trustee, bearing date 15th of May, 1843, containing, substantially, the following provisions:

In order to secure the payment of a bond made by Scott to Gasquett, Parish & Co., for $1,557, with ten per cent, interest; and a bond to W. & J. Gasquett & Co. for $6,256 43, same interest; both bonds bearing even date with the deed of trust; and due one day after date; Scott and wife conveyed to Roys-ton as Trustee, certain tracts of land situated in Sevier county, containing together 913 acres and 52-100 of an acre; twenty-one slaves; seven mules; one horse; sixty head of cattle; one hundred and fifty hogs; and all the ploughs, wagons, carts, axes, hoes, and all other tools and implements of husbandry and planting upon the plantation of Scott, made up of the lands aforesaid, upon the following trusts:

If the trust debts, or either of them, or any part thereof, should remain unpaid at the expiration of five years from the date of the deed, Royston, at his own discretion, or upon the request of either of the creditors secured by the deed, was empowered to make public sale of the trust property, or such part thereof ass might be required for the payment of the debts, expenses of the trust, etc., and convey the same to the purchasers, etc.

Scott was to remain in possession of the lands, slaves, etc., and cultivate the plantation until the expiration of the five years allowed him for the payment of the debts, and after the year 1843, to deliver up and turn over to Royston the annual crops of cotton, corn and all other products arising from the cultivation of the plantation, after deducting and retaining such part thereof as might be necessary to furnish supplies for, and pay the expenses of the place; and Royston was to sell the crops so turned over to him, and apply the proceeds, less costs and charges of sales, to the payment of the trust debts.

If Scott failed at any time to employ the slaves, etc., in the ..cultivation of the lands, or turn over the crops as agreed in good faith, Royston was empowered to take possession of the trust property and make sale thereof for the payment of the debts, though the five years allowed by the deed for making payment might not have expired. He was also empowered to sell at any time, on request of Scott, if an advantageous sale could be made, etc., for the purposes of the trust, etc. If the debts were paid by Scott without sale, Royston was to. re-convey the property to him, etc.

The bill further alleges that one Thomas B. Haynie, the defendant Robert H. Scott, and one Leonard D. Scott, were jointly and severally indebted to the Real Estate Bank, by writing obligatory in the sum of $1,190, bearing interest at ten per cent, from the 15th April, 1841, upon which the Trustees of the Bank obtained judgment in the Hempstead Circuit Court, on the 29th May, 1846, for the debt, interest, etc.

Said Thomas B. Haynie, Robert H. Scott, and one Joseph H. Shaw, were also indebted to the Bank by note due 17th March, 1841, upon which the Trustees obtained judgment, in the Hemp-stead Circuit Court, against Haynie and Scott, (Shaw having died) on the 6th March, 1849, for $426 87 debt, and $319 00 damages, etc.

Upon the first judgment $69, and upon the second $1, had been made by execution of the property of Haynie. Repeated executions had been issued upon both judgments and returned no property found, and they remained unpaid, etc. Transcripts of the judgments, executions and returns, are exhibited.

That, on the 14th October, 1841, Beamis and Littlefield, surviving partners of the firm of T. W. Beamis & Co., obtained a judgment in the Hempstead Circuit Court against defendant Robert H. Scott, as principal, and Isaac C. Perkins as his security in a forfeited delivery bond for $176 12 debt, etc.

On the 9th of April, 1842, John Sappington recovered a judgment in the same Court against Scott as principal, and Abel B. Clements as security, etc., for $701 80, debt, etc.

In September, 1846, a fi. fa. was issued upon each of the last named judgments to the sheriff of Sevier county, under which the supposed equity of redemption of Scott in all of the trust property was levied upon, sold, and purchased by Royston for a nominal sum, who obtained the sheriff’s deed therefor, etc.

That ever since the execution of the deed of trust, Scott had been permitted to remain in the possession, control and enjoyment of the trust property; cultivating the lands with the slaves, etc., making crops, and using and dealing with all of said property as'though it were his own. That Royston had made no sale under the provisions of the deed, though the five years allowed by it for the payment of the debts had long since elapsed. That large sums of money had been annually received by him from the proceeds of crops made by Scott, amounting to more than enough to pay the trust debts, but complainants did not know how he had applied it. That he had permitted Scott to retain and use large amounts beyond the reservations provided for in the deed.

That the trust property was worth largely more than the amount of the debts secured by the deed, and if the debts had not been paid, a sale should have been made by Royston, long before the filing of the bill, to pay any balance due upon them.

Complainants submit that after the execution of the trust deed no interest in the trust property remained in Scott, which vi^as the subject of execution at law; that Royston acquired no title by his purchase under the executions in favor of Beamis & Co. and Sappington, yet he had been paying off their claims out of proceeds of the trust received by him.

That, notwithstanding said sale under executions and purchase by Royston, the property in fact remained as before, being still, as was well understood between Royston and Scott, held by way of mortgage, and charged with said debts to enable Royston to collect claims put in his hands as an attorney, in preference to other creditors; and at the same time to allow Scott to retain possession of the property; and after paying off the favored debts and defrauding all his other creditors to secure to himself the whole of the property. And complainants expressly aver that it was distinctly understood between Roys-ton and Scott that the latter still had the right of redemption •in said property, and should have the same reconveyed to him, when the debts held by Royston were paid; or if it could be sold in the mean time, the surplus of proceeds, after paying the debts, should go to Scott.

That Scott, well understanding himself to be the owner of the property, had lately advertised it for sale; but had taunted complainants by informing them that they could not reach his property; and that unless they would take in full payment of their debts some worthless lands that once belonged to Haynie, it would be a bad case.

That Scott had produced annually, since the year 1843, upon the trust plantation, at least 100 bales of cotton and 2,000 bushels of corn; and had, or should have paid over to Royston every year, an average sum of $3,000. That, in fact, the trust debts had been paid off, and the deed of trust, and the sheriff’s deed were held by Royston for the purpose oí shielding the property against other creditors, and especially complainants. That Scott refused to pay any part of complainants’ judgment, and relied for protection on the trust and sheriff’s deeds as rendering him law-proof. That Royston had kn'own of the existence of complainants’ judgments since they were rendered; yet he had neglected to make sale under the trust deed; and holding the deed as a shield between complainants and Scott, continued to receive from the latter such portion of the proceeds of the crops as he chose to pay him, appropriating them as he pleased, and paying therewith claims not embraced in the trust deed, etc. Complainants insist that by-placing executions in the hands of the sheriff, etc., they had acquired a prior lien upon the property, and a right to have their claims satisfied out of it in preference to all other creditors except those provided for in the trust deed, etc.

That the trust creditors and Beamis & Co. and Sappington were non-residents, and Royston was the attorney of all of them.

That, as far as complainants knew, Scott had no property but what was covered by the deed of trust. That he embraced his entire property in the deed for the purpose of securing preferred creditors, some of whom were named therein, and others not, and to secure himself the surplus after paying such debts: and so complainants aver that the deed was fraudulent and void in its inception.

The complainants propounded to the defendants thirty-six special interrogatories: the 15th, 16th, 17th and 18th of which were as follows:

“ 15. What amounts of corn, cotton and all other products have been raised and made on said plantation in each year since the year 1843? State particularly and exactly the amounts of each gathered in each year, and the value of each at the proper market, at the time when it was, or could have been sent to market.

“ 16. What amounts have been annually, and each particular year since 1843, received and deducted out of said crops by the said Robert H. Scott, and to what particular purposes have the same been applied? Set forth the whole particularly, year by year, and item by item.

“17. What quantity or amount of cotton, corn and other products has been annually turned over and delivered to said Roy-ston, since 1843, and what amount of money in each year? State the whole particularly, year by year, and item by item.

“ 18. How much money has been obtained in each year, or realized by said Royston from the produce so turned over to him? Where did he sell it in each year, and to whom, and when were the proceeds in hand? State the same particularly, year by year, item by item, and shipment by shipment, and exhibit the account of sales of all cotton sold.”

Other questions related to the appropriation of moneys received by Royston, the amount paid, and the amount due upon the trust debts, the value of the trust property, etc.

The complainants ask that the bill may be considered as filed on behalf, not only of themselves, but for the benefit of any others of Scott’s creditors, who might stand in such attitude as to entitle them to come in thereunder; and pray that by decree, Royston, as trustee in the trust deed, or a commissioner in his stead, might be compelled to sell the trust property, and out of the proceeds of sale pay first any balance that might be due on the trust debts, and then the debts of complainants, and of any other creditor entitled to share with them. That Royston might be compelled to refund, and apply to the payment of the trust debts all moneys received by him from the proceeds of the trust property, and applied by him to the payment of debts not secured by the deed, before resorting to the proceeds of the sale of the property, under the decree, etc.; and for general relief.

Scott and wife filed a joint, and Royston a separate, answer to the bill.

Scott and wife answer substantially as follows:

Gasquett, Parish & Co., and W. & J. Gasquett & Co., recovered judgments in the Hempstead Circuit Court against Scott on debts upon which he had become the security of his son, etc. Executions were issued against him, his property was levied upon, and he was about to be sold out at a sacrifice, and utterly ruined. In order to obtain time upon the debts, and to secure their ultimate payment, he made the bonds recited in the deed, and he and his wife executed and delivered to Royston, the attorney of the plaintiffs in the executions, the deed of trust exhibited with the bill.

They admit that the complainants recovered the judgments against respondent Scott and others, and issued executions thereon, etc., etc., as alleged in the bill; but aver that Haynie was the principal, and Scott merely a security in the debts.

Admit, also, that Beamis & Co. and Sappington obtained judgments, and issued executions thereon against Scott as alleged; and that, on the 10th October, 1846, Royston purchased under these executions, all the title and interest of Scott in the whole of the trust property.

Admit that Scott had been permitted to remain in possession, and control and manage the trust property ever since the execution of the trust deed; but deny that he used and controlled it as his own; on the contrary, they aver that he held it under and subject to the direction of Royston.

Admit that Scott had recently advertised the property for sale, but state that he did it at the request, and as the agent of Royston, and not upon the understanding that it belonged to Scott as alleged in the bill. He had not offered to use or sell any of the property, or the products thereof, without the con-' sent and approbation of Royston; after it was purchased by him under the executions, Scott had not considered that he had any interest in, or control over, the property, other than what he derived from the permission, and by the sufferance of Roy-Kton.

Respondents deny that all the property owned by Scott was included in the trust deed, as alleged in the bill; on the contrary, they state that at the time the deed was executed, Scott was the owner of 800 acres of land situated in Hempstead county, which was not embraced in the deed; and which, long' after the deed was made, was sold under an execution in favor of the State Bank, and purchased by Royston. That afterwards, in January, 1851, Royston, of his own accord, and as a voluntary kindness to Scott, sold the land, and appropriated the proceeds to the payment of two judgments in favor of Beamis & Co. and Sappington, against Scott, which, by agreement with Roy-ston they received in full satisfaction thereof. That it -was in this manner that Royston paid off these judgments, and not out of the proceeds of the trust property as supposed by the bill.

That, about the 1st of May, 1849, Royston, without the knowledge of respondents, purchased of Gasquett, Parish & Co. and W. & J. Gasquett & Co., the debts secured by the deed of trust, and took an assignment thereof. And respondents submit that he, having purchased the interest of Scott in the trust property under the executions, and afterwards paid off and took an assignment of the trust debts, thereby became the absolute owner of the property, as they are advised. Notwithstanding which, Royston, on the 3d of May, 1851, voluntarily, and without obligation or previous agreement so to do, executed and delivered to Scott an instrument of writing, by -which, stating the balance due upon the trust debts to be $5,810 31, he agreed that if Scott should well and truly pay said sum with interest, from that date at the rate of eight per cent, per annum, without litigation, hindrance or delay, he -would relinquish to him all his right, title and interest in and to the trust property; provided Scott would also pay two notes which were in the hands of Royston for collection, in favor of Smith, Hubbard & Co., one for $330 27, and the other for $249 34, etc., etc.

Respondents further state that Scott had procured from Hay-nie a conveyance for some lands, which the complainants had once proposed to take from Haynie in full payment of the debts upon which Scott was his security, but had afterwards declined. That the lands were not worthless, as alleged in the bill, but really of more value than the debts; and that Scott had offered them to complainants in payment thereof, representing his inability to pay otherwise, but not tauntingly as alleged, etc.

That ever since the execution of the deed of trust, Scott had worked and used the trust property for the purpose of liquidating the trust debts: and for supplying and keeping up the plantation. " He had made corn only for consumption, and none to sell; and sometimes he had to purchase corn to supply the place, with the proceeds of the cotton. The only produce raised on the plantation for sale had been cotton; which was always sent to market as soon as it could be got ready The crops raised in the years 1843 and 1844 were light, and amounted to very little more, if any, than was required to defray the necessary expenses of the plantation. The crop of 1845, after defraying expenses, paid $1,000 on the trust debts, which was applied 9th of August, 184G. The crop of 1846 paid $2,075 85, July 24th, 1847. The crop of 1847 paid $1,929 28, June 23d, 1848. The crop of 1848 paid $996 29, June 8th, 1849. The crop of 1849 paid $856 91. June 6th, 1850. Out of the crop of 1850 a payment of $984 14 was made 3d May, 1851. No payments had been made on the trust debts other than the above.

Walker & Cheatham held a debt against Scott, in payment of which they offered to take cotton at 12-J- cents per pound, when it was not selling for more than ten cents; and the offer being liberal, Scott, with the assent of Royston, let them have about seven bales — this was in 1849 or 1850. With the like consent of Royston, Scott also sold 20 bales of the crop of 1850, to one Black in payment of a debt incurred for supplies for the plantation, clothing for the negroes, overseer’s wages, etc. That with the exceptions aforesaid, the proceeds of the sales of all the cotton produced on the plantation since the execution of the trust deed, had been applied to the payment of the trust debts; except what had been appropriated for expenses of the place, and the payment of a few small debts incurred by Scott for the support of his family, and the education of his children. As all his productive property was included in said deed; and a? his only means for making any thing was by raising cotton, it was absolutely necessary for him to use a portion oí the proceeds of the crops for the support of his family, and the education of his children; but he had been very economical, and the amounts so applied were inconsiderable.

None of the trust property had been sold; none of the slaves had died, but nine children had been born, and the cattle had also increased, etc., since the execution of the trust deed. The respondents value the whole of the property at the aggregate sum of $18,975 00.

They positively deny that the deed was executed, or was, or had been held by Royston, for the purpose of hindering, delaying or defrauding the creditors of Scott, or for the purpose of enabling Royston to collect claims in his hands as an attorney, other than the trust debts, in preference to other creditors, etc., as alleged in the bill. They aver that no portion of the proceeds of the trust property had been applied to the payment of debts in the hands of Royston for collection, except the trust debts, and that there was no agreement or understanding that such proceeds should be so applied, except as to the debts due to Smith, Hubbard & Co., mentioned in the instrument above referred to.

That Scott owed but very few debts except those held by Royston, and those due to complainants, and none of his other creditors were pressing him. And although he was but the security of Haynie upon the debts due to complainants, he had never attempted to avoid paying them, and still intended to pay them as soon as he possibly could.

If Royston had pressed a sale under the executions in favor of the creditors provided for in the trust deed, the whole of Scott’s property, owing to the hardness of the times, would, not have sold for half enough to pay the debts; and he, in advanced life, would have been deprived of all means of paying any of his other debts; whereas, by the course adopted, and the indulgence of Royston, he hoped to be able to pay all his debts including those due to complainants. Since the execution of the d.eed of trust, he had not only been as economical as possible, but in many instances had denied himself and family of the necessaries and comforts of life; and had managed the trust property to the best advantage, and made every effort in his power to pay his debts.

That, when he settled with Royston on the 3d May, 1851, there was really due upon the trust debts, $6,441 03, but in consideration of his misfortunes, Royston deducted $630 72, and required him to pay but the sum of $5,810 31, as before stated, to obtain a release of the trust property, etc.

The answer was filed May 18th, 1852.

The answer of Royston is substantially the same as that of Scott and wife. As to the amount of the several crops produced by Scott after the execution of the trust deed, the disposition made thereof, the sums paid upon the trust debts, etc., he refers to, and endorses the truth of their answer.

The complainants filed exceptions to both answers, on the grounds that the answer of Scott and wife to the 15th, 16th, 17th and 18th interrogatories propounded to the defendants by the bill, were loose, vague, uncertain and insufficient; and that Royston had made no other answer thereto than by referring to the answer of Scott and wife, etc. The Court overruled the exceptions; and complainants excepted to the decision of the Court.

Complainants filed replications to the answers, and the cause was finally heard upon bill and exhibits; answers and exhibits, and replications; and the Court dismissed the bill for want of equity.

Complainants appealed.

Passing over the question as to the sufficiency of the responses made by the defendants to the interrogatories copied above, we think the complainants were entitled, upon the admissions made by the answers, to relief, and that the Court erred in dismissing the bill for want of equity.

After the execution of the deed of trust, Scott had no such interest in the trust property as was the subject of sale under execution at law; and consequently Royston acquired no title to the property by his purchase thereof under the executions in favor of Beamis & Co., and Sappington. See Pettit et al. vs. Johnson et al., 15 Arh. 55. Cornish vs. Smith et al. admrs., 17 Ib.

When Royston purchased the trust debts, and took an assignment thereof to himself, he thereby became subrogated to the rights of the cestui que trusts under the provisions of the deed of trust, and from thenceforward occupied the position of both trustee and cestui que trust. See Hannah adr. vs Carrington adr., 17 Ark. R.

The admissions of the answers show that Scott’s entire estate is covered by the deed of trust. That the balance due to Roys-ton upon-the trust debts, 3d May, 1851, was but $5,810 31. That the aggregate value of the trust property was $18,975} over three times the amount due upon the trust debts. That, not only the five years allowed for the payment of the trust debts, by the terms of the deed, had elapsed, but over three additional years had expired before the bill was filed. The aggregate principal of the two debts secured by the deed amounted to $7,813 43, and after the lapse of over eight years with all Scott’s efforts and economy to discharge the amount, there remained, it seems, as above stated, still unpaid on the 3d of May, 1851, $5,810 31. At this pace, it would take him a long time to discharge the entire debt.

It may have been very kind in Royston thus to have indulged an unfortunate debtor, but a continuation of such indulgence would be unjust to complainants, whose demands are admitted to have been long due and unpaid. See Hempstead vs. Johnson et al., ante.

Upon the allegations of the bill, and the admissions of the answers, the decree of the Court below must be reversed, and the cause remanded, with instructions to the Court to take an account of the balance still due to Royston upon the trust debts, and to decree a foreclosure of the deed of trust and a sale of the trust property, or such portion thereol as may be required, and that the proceeds of sale be first applied to the payment of the balance due to Royston upon the trust debts, and then to the satisfaction of complainants’ judgments, etc. The decree should direct the trustee (Royston) to make the sale, but if he decline to act, a commissioner should be appointed by the Court to act in his stead, etc.


author: Mr. Justice Scott

text:
    Armistead vs. Brooke.
    To the plea of the statute of limitations, in an action upon a bond or sealed instrument, the plaintiff replied a part payment, and it appeared that he held several undisputed claims against the defendant: Held, that the plaintiff, in support of the issue on his part, must prove not only a part payment by the defendant of the bond, but an appropriation of that part payment, by the defendant, to that particular debt.
    The doctrines of the eases of Alston vs. State Bank, 4 Eng. 462; State Bank vs. Woody et al, 5 Jb. 642; Woods vs. Wylds 6 lb. 758; Brown vs. Hutchings, 14 Ark. 85, as to limitation and part payment, should be regarded as settled.
    If a debtor makes a payment, generally, to his creditor, who holds two or more undis. puted claims against Mm, without exerting, at the time, his general right of appropriating the payment to any particular debt, the right of appropriation would pass from the debtor to the creditor; and he might apply the payment to either demand —even to one then barred by the statute of limitations: but if he apply it to a debt due by bond, then barred by the statute, the appropriation by the creditor would not have the effect of reviving the residue of the debt.
    An instruction which assumes as proved a fact requ^fco be found by the jury, is erroneous. So, also, if by the use of broad and un^^Ked terms it is calculated to mislead the jury, although in a restricted and qualrod sense it contained the law applicable to the point.
    The plaintiff read in evidence, to sustain the issue on his part, two letters, proved to be in the handwriting of the defendant, but addressed to no one, and containing matters in which there was a reasonable ground to infer that they related to the subject matter of litigation: Held, that as the letters were produced by the plaintiff and no suspicion was thrown upon his possession of them, the Court decided correctly in permitting them to be read to the jury for what they might think they were worth.

      Error to the Circuit Court of Sebastian county.

    The Hon. Felix J. Batson, Circuit Judge.
    Fowler & Stillwell for the plaintiff.
   Mr. Justice Scott

delivered the opinion of the Court.

The writ was issued in the year 1854, upon a declaration in debt containing a count upon a promissory note, payable in June, 1853: another count upon a bond payable in the year 1843; another, for work and labor, and for money lent, money paid, money had and received, and money due on account stated. The cause was tried by a jury, and there were a verdict and judgment for the plaintiff below upon several issues of fact formed upon the pleadings, which were voluminous. But, as the whole controversy in this case arose upon the issues upon the statute of limitations pleaded to the second count, it will be necessary to notice only the pleading, evidence and instructions as to that count.

To the plea of five years to this count the plaintiff specially replied, that within five years the defendant paid him $200 in part payment of the bond in that count mentioned. The bill of exceptions shows, by the deposition of Calvert, that besides the promissory note and the bond, there was an acount stated between the plaintiff and defendant below, in the fall of the year 1853, relating to their dealings in cattle, mules, etc., and about the sum of $45<^found to be due from the latter to the former, with which stj^Bient of account both parties seemed to be satisfied. Thu^me plaintiff held three different claims against the defendant, besides an open account of one Calvert not sued for, which it seems the plaintiff also held against defendant. Under such circumstances, he undertook by his special replication, to prove not only a part payment by the defendant of the bond, but an appropriation of that part payment by him (the defendant) to .that particular debt. Nothing short of that could sustain the special replication; because the burthen of proving part payment, as well as that it was appropriated by the debtor, is upon the party setting it up. (See Alston vs. State Bank, 4 Eng. R. p. 462, where this principle is laid down upon authority, and where by misprint, the word "creditor” appears where “ debtor” should have been inserted.) To revive a debt, due by simple contract, by express new promise, not only is it necessary that there should be such promise, but it is also requisite that that promise shall be in writing. So to revive such a debt by a promise to be implied from a part payment of that debt, it is equally as essential that the appropriation of that part payment to that debt by the debtor shall be shown — the appropriation in the latter mode of revival standing in the place of the writing in the former mode. The promise, that can have the legal effect to revive the debt in the one case, must be a written promise: while the payment, to have the same effect in the other case, must be an appropriated payment on the part of the debtor. (See State Bank vs. Wooddy et al., 5 Eng. 642.)

The proof of the paid payment, and the appropriation are different matters. On a simple contract debt due by promissory note, for instance, where there is no rebutting testimony, an endorsement of part payment upon it made by the payee or holder accompanied by evidence, aliunde, that such endorsement was made before the note was barred, and thus at a time when it was against the interest of the party to make it, would of itself be prima facie evidence not only of the part payment, but of its appropriation by the debtor. (State Bank vs. Wooddy et al., 5 Eng. R. 642. Woods vs. Wylds, 6 Eng. R. 758. Brown vs. Hutchings, 14 Ark. 85.) But such a prima fa-cie case would not be made, under the same circumstances, by like proof as to such an endorsement upon a “ bond or any other sealed instrument;” because as to such specialty debts, the statute provides that no such endorsement “ shall be deemed a sufficient proof of such payment, so as to take the case out of the operation of this act.” (Dig. ch. 99, sec. .33 p. 701.)

Nor would such a prima facie case be made by an endorsement of the payee or holder of a promissory note, if made after the bar had attached; because, then it would be to his interest to make the endorsement. If part payment, then, be made on such simple contract debt after the bar has attached, proof both of the payment and its appropriation by the debtor has to be made otherwise than by an endorsement upon the instrument by the holder; or it has to be done, as to a bond or any other sealed instrument, whether made before or after the bar has attached, in order to make any such payment have the effect to take the case out of the operation of the statute.

In either case — that is, of a simple contract, after the bar has attached, or of a bond, whether before or after — if it should be proven that the debtor made a voluntary payment generally, and did not at that time, in express terms, exert his general right of appropriation, and the creditor, at that time, held two or more undisputed claims against him, the general right of appropriation would pass from the debtor to the creditor, and the latter, in virtue of that right, would be authorized to apply the payment to either of his demands; and this, although one of them might be barred by the statute. But although he could rightfully do this, that would not revive the balance that might remain of the barred debt for want of an appropriation of the payment to that debt by the debtor. In such case the appropriation would have been made by the creditor and not by the debtor.

If, however, the creditor had held but one debt against the debtor, or had held one that was admitted, and other claims that were disputed and not admitted as debts, and there were no circumstances attending the payment to repel the presumption, then a jury would be authorized to infer that the debtor did appropriate the payment to the single debt in the one case, or to the undisputed one in the other. These doctrines, having been frequently recognized and applied by the Court, may be well regarded as settled.

The evidence in this case, in connection with other established facts, conduces to show that, at the time the supposed payment was made, the creditor held several undisputed debts against the debtor, and also a claim founded on an account in favor of one Calvert, which was disputed; and that under these circumstances the debtor wrote to the creditor as follows: “ As it would seem that you intend getting all that you can out of me, I will thank you to credit me by your board, upon some of the claims held by you, with one exception — an account of Mr. Calvert — that, I think, he is as well able to pay as myself.” And that after the receipt of the debtor’s letter, the creditor endorsed upon the bond debt, that was barred by the statute, (and which was one of the debts held by him,) a credit for board for himself and wife, with interest thereon to the amount of |222 37.

Upon this state of case the Court below instructed the jury upon this point as follows, to wit:

1st. That if the jury believe from the evidence that the writing obligatory in the second count of the plaintiff’s declaration mentioned, was held by the plaintiff at the time the letter was written by the defendant, requesting the plaintiff to credit the amount of a board bill, owing from the plaintiff to him, on any of the claims the plaintiff held against him, except a particular debt specified in the letter, and that that letter was written within five years before the institution of this suit, and that the plaintiff accordingly elected to pass the credit for the board bill on that writing obligatory, and that the said writing obligatory is not the one excepted, the proof is sufficient to sustain the issue formed upon the special replication to the plea of the statute to the second count.”

2d. That if the jury find from the evidence that the credit for board endorsed on the writing obligatory in the second count of the plaintiff’s declaration mentioned, was authorized by the defendant within five years next before the commencement of this suit, they should find the issue formed upon the plaintiff’s replication alleging a part payment within five years for the plaintiff.”

.The former of these instructions, assuming as a fact that the letters in question were written by the defendant to the plaintiff, and that they related to the matters in controversy — of which the only evidence was the contents of the letters themselves, which, upon their face, were addressed to no one, (but no suspicion was thrown upon the plaintiff’s possession of them,) and in their subject matter did not explicitly and necessarily relate to these matters — and that the request therein contained, to credit the board upon some of the claims, was equivalent to a request to enter it upon any one óf them, proceeds to lay down the legal proposition, that the election of the plaintiff to enter the credit upon the bond debt, under this request to enter the credit upon some one of several debts in which was included the bond debt, was legally equivalent to such a special appropriation of the part payment of the debtor himself to the bond debt, as would have the effect to take the balance of that debt out of the operation of the statute.

Whether the appropriation to that debt was made by the defendant or not, was a question of fact for the jury to determine. If he made it, the jury would have then been authorized to find a further fact, if there was no testimony to rebut the inference of such a fact, to wit, that the defendant had. made such a new promise, as to the residue of the bond debt, as would take it out of the operation of the statute. If, on the contrary, the jury had found that the plaintiff, and not the defendant, had made the appropriation of the payment to the bond debt, then there was no foundation on which they could have found the further fact as to the new promise. Because the new promise is not inferable from the plaintiff’s appropriation, but from the defendant’s. Besides, in these respects, invading the province of the jury by undertaking to determine the matter of fact against the defendant below, that he did exert the right of appropriation, and in the exercise of that right did fix the payment specially to thebond debt, the instructions also seem to confound the legal distinction between the debtor’s and the creditor’s respective rights to make an appropriation of a payment.

These respective rights of the debtor and creditor are distinct and several. Those of the latter begin where those of the former end: and if neither party chooses to exert his right, then the law makes the appropriation according to fixed rules.

In this case a cross demand for board, which the defendant held against the plaintiff, had to be first agreed between plaintiff and defendant to be discounted as payment before it could be insisted upon as a technical payment. The proposition to this effect, that went out from the defendant, had to be accepted by the plaintiff. Along with that proposition was the further request that, if acceded to, the technical payment, thus effected by the transmutation of the cross demand into payment, should be applied upon “ some of the claims held” by the plaintiff, other than a specified disputed one.

If the defendant had said nothing about this disputed claim, and had simply requested the credit to be entered upon “ some of the claims held by the plaintiff — he holding several — it would seem clear enough, as a matter of fact, that he did not exert his right of appropriation, and consequently as a matter of law, that that right passed over to the plaintiff, who, at his election, would have been authorized to enter the credit upon the barred debt, although that could not have had the legal effect to revive the debt, because the appropriation was his own, and not the defendant’s. But having mentioned the disputed debt, and restricted the plaintiff’s right of appropriation to that extent, he necessarily, under such circumstances, must be taken to have exerted the right of appropriation before it passed from him to the plaintiff, to an extent corresponding with the restriction placed by him upon what would have otherwise been the plaintiff’s right, without restrictions, other than those imposed by the general law. And the question, whether he did so to a greater extent, and if so, whether to the extent of appropriating the payment to the bond debt, would be one that was open to the inquiry of the jury upon the evidence before them, and ought not to have been closed by the instructions of the Court.

With regard to the second instruction, although in a restricted and qualified sense, (that is, if the authorization was by means of a special appropriation of defendant to that debt,) it contained the law applicable to the point, nevertheless, in the broad and unqualified terms used, it is almost inevitable that the jury would have been misled by it. The endorsement upon the bond really cut no figure further than it might indicate that the plaintiff had acceded to the proposition, to transmute the cross demand into a technical payment, and had elected to place it to the credit of the barred debt; and inasmuch as the defendant had prohibited its application as a payment, only, to the Calvert account, it was within the election of the plaintiff, as well applicable to either of the other debts held by the plaintiff against the defendant; and therefore, supposing the fact to be that the defendant did not specially appropriate the payment to any one of the other several debts, the plaintiff would have been just as fully authorized to place the credit upon any one of them as upon any other.

We think, therefore, that the Court erred in giving both of these instructions.

In the case of Alston vs. The State Bank, 4 Eng. R. 462, it is laid down, that the burthen of proving both the payment and the appropriation is upon the party setting it up; and in the case of the State Bank vs. Wooddy et al., 5 Eng. R. 643, it is laid down that: “It is indispensable that either an actual part payment of, and appropriation to, the particular debt, by the party or by his authority, be shown by the evidence; or else that such facts and circumstances be proven as will authorize the inference of the part payment and appropriation by the party or his authority.

It is therefore equally competent for a party to make a part payment, and its appropriation, by his agent duly authorized to do both, that would take the case out of the statute, as to make such payment and appropriation in proper person, and the question, in either case, would be the same; that is, whether or not the party did in fact make such payment and appropriation, whether done by himself or agent duly authorized in the premises. In either case if the payment was made in express terms, or to be implied, as where the creditor held but one debt, and there was no rebutting circumstances as to a promise to pay the residue, it would be sufficient to take the case out of the statute. But in no case could the part payment have that effect if the appropriation, either express or implied, was not made by the debtor, and was in fact made by the creditor.

With regard to the question as to the competency of the two letters allowed to be read in evidence, we think that as they were produced by the plaintiff, and no suspicion was cast upon his possession of them, and were proven to be in the handwriting of the defendant, and contained matters in which there was reasonable ground to infer that they related to the subject matter of litigation, the Court decided correctly in permitting them to be read to the jury, for what they might think them worth.

For the error as to the instructions, the judgment will be reversed, and the cause remanded.


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    Britt vs. Bradshaw.
    In a judicial garnishment tlie plaintiff filed, among others, a special allegation, that the garnishee was indebted to the judgment debtor in a certain amount due to him as his late guardian, in a settlement and confirmation of accounts in the Probate Court, and propounded a special interrogatory whether he did not owe the sum, “and if so, was the same, or how much thereof, unpaid:” the garnishee answered that long before the service of the writ, ho had settled up, and paid over all moneys, credits and effects due by him to the judgment debtor: Held, 1. That the answer, being responsive to the interrogatory, was evidence to establish payment, until rebutted: 2d. That as the issue was not, whether the garnishee had owed the sum found due upon the settlement, but whether it had been paid, the record of the Probate Court showing the settlement and confirmation of the guardian’s account, was not evidence to prove the issue.

      Appeal from the Circuit Court of Sevier county.

    Hon. Abner A. Stith, Circuit Judge.
    S. H. Hempstead for the appellant.
   Mr. Justice Scott

delivered the opinion of the Court.

The appellant having a judgment at law against John H. Bradshaw, sued out a garnishment against the appellee. It was regularly served, and at the return term the appellant filed general allegations of indebtedness against the garnishee, and also a special allegation: that at the time of the service of the writ, the garnishee was indebted to the said John H., in the sum of one hundred and thirty dollars, as a balance due by him to-the said John H., as his late guardian, and on a settlement between them in the Court of Probate for Sevier county confirmed therein on the 31st day of October, A. D. 1855, as will more fully and at large appear by the records thereof now remaining in said Court, a duly authenticated copy whereof is now here in Court to be produced,” etc.- — and thereupon propounds two general interrogatories, and a special one as to whether he did not owe the before mentioned one hundred and thirty dollars — “ and if so, was the same, or how much thereof, unpaid at the time of the service of the writ,” etc.

To these the garnishee interposes a general denial, and concludes in the following terms to wit: “ that long before the service of said writ, he had fully settled up and paid over all moneys, credits and effects due by him to said John H. as his late guardian, and having fully answered,” etc. The plaintiff took issue to the answer, which was submitted to a jury, who returned their verdict for the garnishee, and the judgment of the Court was accordingly; from which the plaintiff appealed to this Court.

It appears by a bill of exceptions, that when the issues were before the jury, the plaintiff offered in evidence a transcript from the records of the Probate Court, showing such a settlement between the late guardian and ward, with the balance of $130 in favor of the guardian, as was specially alleged. The settlement had been filed in the Probate Court at a term previous to that in which it was confirmed, after the usual notice preceding such confirmation, of which the ward, who was alledged to be thus indebted in this balance, must be presumed to be cognizant.

Such a record was admissible in evidence, upon any issue to which it would be relevant, against the ward, upon the principle that it was a solemn admission of his of the indebtedness which it claimed against him, and of which he was notified, and called on to dispute, if not well founded; otherwise, the settlement as filed would be confirmed by the Court as correct.

And it was available to a third party as well as between the late guardian and his ward. “As where two had been sued as partners, and had suffered judgment by default, the record was held competent evidence of an admission of the partnership in a subsequent action brought by a third party against them as partners. (1 Greenl. Ev., sec. 527, a, citing Cragin vs. Carleton, 8 Shepley R. 492.)

But upon the record before us, before that evidence was offered, the issue as to the.indebtedness, which it went to establish, was closed by a new one which had admitted it upon the record, and sought to avoid it by the allegation of payment of that particular indebtedness. And thus the admission of indebtedness, which that evidence went to establish, was superseded by a new admission of the same party to the same effect upon this record. And it had no tendency to prove a general indebtness separate from the special one alleged, as the case is presented by the pleadings. Upon the allegations, interrogatories and the answers thereto, there was a prima facie case made for the garnishee, (Means vs. McCamplell, 2 Ark. R. 511,) not only that he was not indebted to the defendant, but that he had paid him the particular debt due to him as the late guardian of the garnishee, which was specially alleged, and about which he was specially interrogated. The plaintiff was not content to stop with alleging this particular debt to be owing from the garnishee to the defendant, and interrogating the garnishee as to whether or not he did owe as alleged; but went beyond this and interrogated him as to whether or not he had paid this particular debt. And when the garnishee answered as he did, that he had paid it, his answer being responsive to the interrogatory as to payment, was evidence to establish the payment until rebutted. -The answer by the garnishee, that he had paid this debt, was a solemn admission that -he had originally owed it, as the plaintiff had alleged, just as a plea of payment admits the debt, which it undertakes to avoid by setting up the payment. But in this case, as the answer as to the payment was responsive to the interrogatory as to payment, it not only as a pleading avoided the admitted indebtedness by setting up the payment, but also as evidence proved the payment thus set up. The plaintiff having thus, by his interrogatory as to payment, made the defendant’s answer evidence as to that matter, must abide by it unless rebutted by other sufficient evidence. The evidence which he offered, and which the Court rejected, had no tendency to rebut the payment of the debt which had been thus proven by this responsive evidence; but went only to show that it had once existed — a fact which, as we have seen, was fully admitted upon this record by the setting np of its payment. If it had been read, it could have established nothing more than what was already fully admitted, to wit, the indebtedness of $130 to the garnishee’s late guardian, and had no tendency to rebut the payment thus established until overturned by contrary evidence.

Although, then, the evidence offered would have been admissible upon an issue as to whether there was such an indebtedness as was alleged, its exclusion, when no other evidence was offered in connection with it, upon an issue that had admitted that, and was as to whether the admitted indebtedness had been paid or not, which was beyond it, could in no way injure the party.

The Court below, no doubt regarding the matter in this light, committed no error in refusing to permit this irrelevant evidence to be read, which would have but incumbered the record.

The judgment will be affirmed.


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    Swinney vs. Johnson.
    A writ or process in a civil suit does not, of itself, authorize the officer to execute it on Sunday, or on the 4th of July; and if executed on either of those days, the return of the officer must show that the affidavit required by the statute {Dig. ch. 173, sec. 5, 6, 7,) was made and delivered to him; otherwise, his return shows no authority for the execution of any process upon the defendant.

      Error to the Circuit Court of Yell county.

    The Hon. John J. Clendenin, Circuit Judge, presiding.
    Johdan for the plaintiff.
   Mr. Justice Scott

delivered the opinion of the Court.

This was an action of trespass, vi et armis, against three persons, upon two of whom the writ of summons was regularly served; and as to the third, who is the plaintiff in error, the sheriff returned — “ I executed the within at the county of Scott, on the 4th day of July, 1855, by delivering to the within named James M. Swinney a copy of the within.” The two appeared to the action and filed pleas to the merits, whereupon the plaintiff below entered a nol.pros. as to them, and took judgment by default as to the plaintiff in error, who failed to appear — upon this, damages were assessed by the verdict of a jury, and final judgment rendered accordingly. Swinney, in the mean time, at the same term, moving the Court to arrest and set aside, and hold for nought the judgment aforesaid. 1st. Because he had never been served with process. 2d. Because the notice of the pendency of the action was served upon him on the 4th day of July, 1855, without any affidavit stating that he was about to leave the county, having been first made and delivered to the officer charged with the execution of the writ of summons, by the plaintiff or any other person for him: which motion the Court overruled, and Swinney brought error.

It is enacted by the statute (ch. 173, sec’s 5,6,7, Dig. p. 1004,) that: “ no person shall, on Sunday, or on the 4th day of 'July, serve or execute any writ of process, warrant or order, except in criminal cases, for breach of the peace, or when the defendant is about to leave the county.” That “ the service of every writ, process, warrant, or order, on said days, shall be void, and the person serving or executing the same shall be liable to the suit of the party aggrieved as if he had done the same without any writ, process, warrant or order.”

And “ that if the plaintiff in any writ, process, warrant or order in any civil suit, or some other person for him, shall make and deliver to the officer charged with the execution of such writ, process, warrant or order, an affidavit that such defendant is about to leave the county, such officer may serve and execute every such writ, process, warrant, or order, on Sunday, or on the 4th day of July.”

By the inevitable operation of these several provisions of our statute, the writ in itself, in this case, conferred no authority upon the sheriff to execute it on the 4th day of July, as he seems to have attempted to do. For him to have had such authority, it was needful that he should have not only had the writ; but also, in connection therewith, the affidavit prescribed by the statute.

His return shows no such affidavit, either by any reference to it, or by making it, otherwise, a part of the return of his official doings. His authority, then, for executing the process on the 4th day of July in no way appears. If his authority had appeared, the law would have indulged the ordinary presumption in favor of his official doings. As it is, there is no foundation upon which to base any such presumption.

Our statute, in the several provisions above cited, not only prohibits the service without; the pre-requisite of the affidavit, but declares that any such attempted service shall be void, and the officer liable civiliter, as if he had no process at all in his bands. The design was to give the citizen absolute immunity from disquietude, both on the Christian, and upon the political sabbath, from the execution of civil process upon him, unless in the expressly excepted case. And to this end the statute withholds authority from the officer under the process, until the affidavit shall have been first made and delivered to him in connection with it. In such case, although the writ is the form, the affidavit in connection therewith is, in effect, the substance and life of the authority to be exerted through the instrumentality of the act.

In an ordinary case, the writ shows the authority of the officer, and his return “ how, and in what manner, he executed the same,” (Dig.p. 799 sec. 21, ch 126,) but in such a case as this, under the operation of our statute, the return must go further and be in aid of the writ, or no authority to execute the process upon these prohibited days will appear in the record.

Upon the face of this record, under the operation of the statute, there was no service upon the plaintiff in error. The judgment against him by default was, therefore erroneous, and the Court below, upon his motion, ought to have arrested and held it for nought.

For this error the judgment will be reversed, and the cause remanded, and the plaintiff in error held to answer to the declaration of the plaintiff below, as if he had been regularly served with process of summons, under the established rule in such cases.


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    Thompson vs. McHenry.
    A writ made returnable at a time other than that fixed by law is irregular, and may e abated. (Jones vs. Austin, 16 Ark. Rep. 336); and this, though the law making a change in the time of returning such writ may not have been published.
    An application to amend is within the sound discretion of the Circuit Court; and so, where the Circuit Court refused to permit an amendment of the original writ in a suit by attachment, the motion to amend being resisted by the defendant and no notice of the intended application being given to the garnishee, this Court will not controul that discretion.

      Appeal from the Circuit Court of Hempstead county.

    The Hon. Thomas Hubbard, Circuit Judge.
    Garland for the appellant,
    contended that the Court erred in sustaining the demurrer to the replication; because, the act of the Legislature changing the terms of the Circuit Court had not been published, at the time of issuing the writ, so as to affect the rights of the citizen. 1 Domats Civil Law, p. 112, secs. 9 and 16; p. 114, secs. 16 and 23.

    That the Court should always permit amendments in furtherance of justice, and not intended to hinder or delay. McLar-ren vs. Thurmon, 3 Eng. 313; Bizzell et al. vs. Stone & McDonald, lb. 478; Anthony vs. Humphries ad. use, 4 lb. 176; King & Houston vs. State Bank, lb. 185.
    S. H. Hempstead for the appellee.
    1. In this State laws take effect and operate from the date of their approval, unless a different day be prescribed for their commencement. 7 Wheaton 211; 1 Gall. 62; 4 Kent 454 to 458.
    2. The discretion of the Circuit Courts in the matter of amendments will not be reviewed unless such discretion has been grossly abused to the prejudice of a party. 5 Arle. 663; 3 Eng. 315; 4 Eng. 187; 13 Ark. 417; 14 lb. 59.
   Mr. Justice Scott

delivered the opinion of the Court.

The appellant sued out an original attachment, against the appellee, in the Circuit Court of Hempstead county. The writ was in the usual form, commanding the sheriff to attach the goods and chattels, etc., of the defendant, and to summon him to appear “ on the 7th Monday after the 4th Monday of March, A. D. 1855,” and also commanding the sheriff to summon “all and every person in whose hands or possession any such goods and chattels, etc., to appear, etc., on the 7th Monday after the 4th Monday of March, A. D. 1855.”

The sheriff returned that he had executed the writ by personal service on Jacob Scoggins as garnishee, but that he could find no property of the defendant.

When this writ was issued the term of the Hempstead Circuit Court was fixed by law to be holden on the 10th instead of the 7111 Monday after the fourth Monday in March.

The defendant in the attachment filed a plea in abatement interposing that objection. The plaintiff replied, admitting it to be true, but setting up that, at the time the writ was issued, the law changing the time of holding the Court, from the 7th to the 10th Monday, had not been published in such a manner as to operate as notice of the new law, either to the clerk issuing the writ, or to the plaintiff’s attorney, who directed it to be issued. The defendant demurred to the replication. The Court sustained the demurrer, and quashed the writ. It appears, also, from the bill of exceptions, that the Court refused to permit the plaintiff to amend the writ.

The garnishee does not appear to have joined in the plea in abatement, or to have in anyway appeared, or taken any steps whatever. The replication, it is obvious, set up nothing in avoidance of the plea. The demurrer was properly sustained. A writ made returnable at a time other than that fixed by law, is irregular and may be abated. Jones vs. Austin, 16 Ark. R. 336.

With regard to the application to amend, which was refused, and which, we suppose, was to insert the proper return term in the writ, in lieu of the 7th Monday improperly inserted, it would have been difficult to avoid a surprise had it been allowed, under the state of case as it appears in the record.

The defendant in the attachment evinced no design to dispense with service of process and voluntarily appear to the action. (Ferguson vs. Ross, 5 Ark. R. 518-519.) On the contrary, he interposed that very objection. And the garnishee does not seem to have been even a party to that proceeding, much less did he voluntarily appear- Pie, at any rate, would have been sorely surprised had the writ been so amended as to have placed him in an attitude of default; because there is nothing in the record to indicate, in any manner, that he had notice of the application.

Such amendments are allowed only in furtherance of justice, and should always be refused when injustice is more likely to be done. Hence, as was said in the case of Mitchell vs. Conley, 13 Ark. R. 420, “ no general rule can be safely laid down to govern amendments in practice,” and “ that they ought to be so allowed as not to operate as a surprise either in matter of law or fact, and always upon notice to the party to be affected by them.” Had these parties been previously notified of the intended application to amend the writ, or had voluntarily appeared to that application, the Court having power, might have allowed the amendment upon such terms as would have worked no surprise and no injustice. As the case appears, however, in the record, we see no good reason for any sound conclusion that the Court below abused its undoubted discretion in the premises; and shall accordingly affirm the judgment.