author: Mr. Justice W at.ttibr,

text:
    Bone as adm. vs. Torry.
    A judgment or decree in a suit against a surety, is sufficient ¡prima facie evidence of the liability of the security and of the liability of the principal over to him. Sniderr vs. Greathouse, ante.

    And if the proceedings and judgment or decree, in such case, do not show that the plaintiff was the security of the defendant for the debt for which such decree or judgment was rendered; the fact may bo proved by the other evidence.
    This court cannot take judicial notice of the laws of other States: and, in the absence of proof of the fact, will not presumo that a judgment, in favor of a Bank, for a specific sum of money, was payable in depreciated Bank paper.
    A security, against whom a decree was rendered, pays the amount in cash and a note with security, which are received by the creditor in full discharge of the decree: and satisfaction entered of record: this is such a payment as will entitle the surety to maintan an action against the principal.

      Apjpeal from the Circuit Court of Chicot County.

    Hon. JohN C. MURRAY, Circuit Judge.
    Pike & Oummibts, and Trapkall, for appellant.
    The Planters Bank of Mississippi was the owner of the note, and her paper, which she was bound to receive in payment, was depreciated, and the surety, if he chose to pay the debt, should have paid it in such paper, for the benefit of his principal. Woodruff vs. TrapnaTl, 10 How. U. 3. Iiep. 409/ Hiagm Bank vs. liosevelt, 9 Coio. 409/ Jordan ad.'vs. Adams, 2 Eng. 348/ State, use Chicot Coimty vs. Hives at al., 7 Eng. 721.
    As there was no notice to Moore, either in the suit at law or in chancery, the records are evidence of the naked facts that such judgment and decree were rendered; but they a/re nofroof whatever of the truth of the facts on which they are based, or the justice of tbe demands, or tbeir existence at all. 8 Gow. & HilVs Notes to Phil. Ev., 815 to 820.
   Mr. Justice W at.ttibr,

delivered tbe opinion of tbe Court.

On tbe 21st of April, 1852, Geqrge G. Torrey filed tbe following claim for allowance, in tbe Cbicot Probate Court, to wit:

“ Estate of Allen Moore,
TO GEOBGE G. TOBBY, Dr.
To amount of money paid John Bacon, Alexander Symington, and TbomasBobins, assignees of William T. Irish, Yolney Stamps, and James TI. Murray, of a note executed by said Allen Moore, dated January tbe 4th, 1840, payable on the first of January, 1841, for tbe sum of fourteen hundred dollars, which said note was signed by said George G. Torrey, as security for said Allen Moore, and for eight per cent, interest per annum, and on a judgment previously bad thereon, and a decree was rendered against said George G. Tony and others, in tbe vice Chancery Court, held at Natchez, State of Mississippi, on the 29th of December, 1849, for the sum of twenty-five hundred and sixteen dollars and eighty cents, together with interest, from said date, as aforesaid, and costs amounting to the sum of, for principal and interest to 29th of May, 1851, $2,802 03.”

This account was sworn to in the usual form, and after several continuances had, the claim was allowed by the Probate Court of Chicot County, and ordered to be classed for payment. Exceptions were filed to the decision of the Probate Court, and an appeal prayed and taken to the Circuit Court of said county.

At the April Term, 1853, of the Chicot Circuit Court, the case came up forbearing, upon the assignment of errors and exceptions taken to the judgment, and decision of the Probate Court; and it was upon consideration, held by the Circuit Court, that there was no error, in law, or fact, in the records and proceedings of the Probate Court; and the judgment of said court was, in all things, affirmed, with costs. Erom which judgment and decision, the administrator of the estate of Moore, has appealed to this court.

Tbe whole case turns upon tbe sufficiency of tbe proof adduced before tbe Probate Court to establish tbe claim against tbe estate.

In order to entitle Torry to a judgment of allowance of this claim, against tbe estate of Moore, it devolved upon him to prove that be was tbe security for Moore, and that, as such, be actually paid tbe sum claimed.

It is objected that tbe transcript of tbe record of tbe judgment from Mississippi, against Torrey, and tbe decree also rendered in tbe vice Chancery Court against him, were not sufficient evidence to establish this fact: because, Moore was not a party to either of these suits, nor does it appear, from tbe record in either suit, that Moore was a party to tbe note sued upon.

IJpon examination of tbe record, this objection appears to be well taken in fact, and we apprehend, as this is tbe case, that tbe record would, of itself, be insufficient, to connect Moore as a party, bound in tbe original contract, either as principal or as security. But tbe claimant did not rely alone upon tbe record, but introduced evidence to prove, and we think did sufficiently prove, that this judgment was rendered upon a note executed by Moore, as principal, and Torrey as security. Tbe attorney, who brought tbe suit, testifies to this, as well as tbe agent for the plaintiffs in interest in the suit. Tbe attorney says that be brought tbe suit against Torrey, tbe security, alone; because, as is bis impression, Moore was beyond tbe reach of process at the time. Moore himself recognized bis liability as principal, and proposed to tbe agent to compromise tbe debt, by paying 70 or Y5 cents on tbe dollar : be complained that tbe consideration bad failed, and that it was a bard case on him. From tbe time when this conversation took place, it may be inferred that it was after tbe judgment at law, and perhaps about tbe time of tbe rendition of tbe decree. It is objected that there is no evidence of tbe assignment ; and, therefore, if tbe payment was made, it is not shown to have been made to tbe creditor. Tbe testimony of both tbe agent and tbe attorney, shows that there was a blank endorsement upon tiie note, and this we have held to be sufficient. This seems to have been made after the commencement of the suit at law, and before judgment. But, independent of this, Moore himself fully recognized the right of the plaintiffs, by proposing to compromise and settle with them.

Torrey defended the suit at law, andjudgmentwent against him. The reason why the money was not collected upon the judgment, seems to hare been, because the charter of the Planter’s Bank, in whose name the suit had been commenced, had been declared forfeited, and the assignees filed tlieir bill to have the money collected and paid over to them. It is true that in the chancery suit he withdrew all defence, and this seems to have been done by agreement to give time to him to pay. It is not shown what defence he might have made; indeed, after the judgment at law which was defended, it is not very clear that any defence could have been interposed. It is true that Moore complained that the consideration had failed, but there is no evidence that Torrey was aware of this. But whether so or not, and although we do not question but that, if there had been collusion between the security and the creditor, whereby the judgment was taken for a larger amount than was really due, the principal might, notwithstanding the judgment, show that fact. But we have held, at the present term, in the case of Snider vs. Greathouse, that the record was prima faeie evidence of the liability of the security, and of the liability of the principal over to him, to pay the amount recovered and paid by him. This, the administrator has not done; and, therefore, the decree must be held sufficient evidence of the true amount due to the creditors.

The administrator contends that this debt might have been discharged with the paper of the Planter’s Bank of Natchez, winch was only worth about 50 cents on the dollar; that the security should have looked to this, and have bought in the paper at the market price. We are not aware of any statute of Mississippi, that would compel the creditors to take depreciated Bank paper in discharge of that debt. We are not required to take judicial notice of tbe statutes of a sister State, and' tliere is no evidence upon tbe subject. The judgment was for dollars, and the payment, so far as the facts are before us, could only have been made in gold or silver, the constitutional coin.

The nest question is, was the money paid, or was the debt so satisfied and discharged, as to amount to a payment ?

From the proof, it appears, that one thousand dollars were paid in a draft, which was cashed, and that on the first day of December, 1851, the time of the final settlement of the decree, Torrey executed his note with security, to the creditors, for $1,782 80, payable five months after date, in full satisfaction for the decree, but the notes, up to the date of the examination of the witness, had not been paid. The decree was entered of record fully satisfied, and receipts showing the payment thereof given.

As a general rule, a surety cannot support an action against the principal debtor for money paid for the principal, if he has merely given security for payment. 2 Stark. Ev. 1060, Morris vs. Berkey, 7 Sergt. & Rawle, 238.

But where the creditor, by express agreement, receives a note in payment of a debt, or Bank paper, or property, there would certainly be no good reason,* why such payment, so accepted,, would not be a complete satisfaction of a judgment debt; because,, as between the debtor and creditor, it is for the creditor to say when he has received a full compensation in satisfaction of his debt.

But as between principal and security, where the security pays or satisfies the debt of his principal, by the execution of a new security, or by the payment of property, or depreciated paper currency, there would seem to be more doubt; because, the lia-j bility of the principal to pay the security, is founded upon a pay-] ment or satisfaction of the debt by the security, and the liability of the principal is limited to the actual loss sustained by the surety j by reason of his surety-ship.

If the surety pays the debt, in depreciated paper currency, or in property, the real value of the paper, or property, would be tbe extent of tbe loss to tbe surety; and, consequently, of tbe liability of tbe principal over to him, unless by express contract with tbe creditor, he is subrogated to all tbe rights of tbe creditor. Hickman & Pearson vs. McCurdy, 7 J. J. Marsh. R. 560.

In the case before us, there was no payment, either in depreciated paper or property. Tbe decree was paid by a draft for $1000, which was cashed, and a note with security for tbe balance. Was that note equivalent to cash, or is it such a satisfaction of tbe decree as to raise an implied promise to pay, on tbe part of tbe principal debtor?

That tbe decree was fully and completely discharged and satisfied, and that, too, by tbe security, there can be no doubt, and it is equally clear, that such discharge was as effectual for tbe principal, as if paid by himself. This payment of an approved note, by which the surety bound himself to pay the amount in cash, must, we think, be held prima facie equivalent to a payment in cash. In Cornwall vs. Gould, 4 Pick. Rep. 444, it was held that a surety, who had extinguished the debt by giving a separate promissory note for it, might maintain indebitatus as-sumpsit against his security. Such was, also, the decision of the Supreme Court of New Hampshire, in Pearson vs. Parker, 3 N. H. Rep. 366.

In Stone vs. Porter, 4 Dana, 207, it was held, that a payment in Bank notes by a surety, would entitle him to maintain an action of indebitatus assumpsit; and Judge HobiNSON, who delivered tbe opinion, remarked that if individual bills or notes had been received by tbe creditor, in payment of Iris demand, the surety might maintain indebitatus assumpsit. Such, too, was the decision of the Supreme Court of New York, in Witherby vs. Mann, 11 John. R. 518. And the Supreme Court of Kentucky, in Robinson vs. Maxey, 7 Dana, 105, reviewed its former decisions, and those of several of the sister States; and, in answer to the objection that the money must be, in fact, paid before as-sumpsit can be maintained, said: “The law will not speculate on such remote contingencies. On the contrary, it will consider the substituted bond as equivalent to the amount of it in money, because it was so considered by the parties to it, and may be, and probably is, a full equivalent.”

The presumption that the note was so received, may no doubt be repelled by evidence, showing that it was accepted by way of compromise, and was not taken, or held as equivalent to the nominal amount in money ; but, in the absence of such proof, the better opinion would seem to be, to treat the substituted note as cash. None of the objections can well arise here, that have been urged in some of the cases, that the proof must correspond with the allegation, and that proof of a note executed, will not sustain a money count, because, in this case, there were no formal pleadings, and we only look to the substance of the issue.

No valid objection can be raised to the amount of the allowance by the Probate Court. That was evidenced by the decree of the vice Chancery Court, at Natchez, and as we have held, was at least prima facia evidence of the amount really due upon the claim.

let the judgment of the Circuit Court be affirmed.

Absent, Mr. Justice Soott.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    Hill vs. Robinson.
    To entitle the plaintiff to recover in an action ot replevin, lie must not only hare title, but must also liavo a right to tlio possession at the time his action is commenced. Britt vs. Aylett, 6 Eng. 476.
    where Hiero are soveral joint owners of a divisible chattel, in the possession of one, replevin will not lie by another joint owner for his share, until a division of the property.
    Replevin will not lie for property legally in the possession of another, who has a lien upon it for charges, until such charges bo paid; nor until after demand and refusal, or conversion.

      Quere: Is a declaration in replevin “for fifteen hundred pounds of seed cotton,” without other description, sufficient.

      Writ of Error to the Clrcidt Gourt of Sevier Gounty.

    Hon. Shelton "Watson, Circuit Judge.
    PiKE & Cummins, for plaintiff in error.
    The defendant bad a lien on the property for services, and it could not be removed until tender or payment; and, of course, replevin would not lie. Wheeler vs. MeFa/rla/nd, 10 Wend. 318 / Sharp vs. Whittenhall, 3 Hill 576.
    Replevin will only lie for a tiling capable of clear identification, and of specific delivery. 2 Saund. PI. d> Jiv. 760/ 1 Oh. Pleadings.

    Parties here were co-tenants or partners: and for this reason, replevin would not lie. Whitesides vs. Collier, 7 Dana 283.
    GallagiieR, contra.
    Action will lie for recovery of seed cotton already picked: it comes under the definition of goods or chattels. Dig., eh. 136, see. 1, Title Replevin.

      The evidence showed title in the plaintiff; and the property could be divided by weight. The testimony was sufficient for the jury to presume that Hill claimed the property of the plaintiff by virtue of the garnishment. Prater ad. vs. Frazier, 6 Eng. Pep.

   Mr. Justice Walker

delivered the opinion of the Court.

This was an action of replevin, brought by Kobinson against TIill, to recover fifteen hundred pounds of seed cotton. The declaration is in the detinet, and no other description of the cotton is given, or where it was, whether in bags, a pen, or a house, or whether it was separated from, or in a pile with other cotton.

The defendant pleaded non-detinet/ which, under our statute, puts in issue, as well the title to the property, as the wrongful detention of it.

The jury found a verdict for the plaintiff, and after motions in arrest of judgment, and for a new trial, were made and overruled, the defendant excepted, and has brought the case here upon writ of error.

From the nature of the goods sought to be recovered, it is not to be expected, that any very definite description could be made by the pleader. “ Fifteen hundred pounds of seed cotton” is sufficiently descriptive of the article; and, also, of the quantity, but, as the officer was required to take it into his possession, it is very doubtful whether some further identification of the particular cotton, sought to be recovered, should not have been made, such as, that it was at a certain place, in a pen, or house, or in a pile; such, at least, would seem to be the role held in 6 Hill's R. 418.

But aside from all objection to the declaration, it is very clear, that in order to entitle the plaintiff to a verdict, lie should show a right to the property, and to the possession of it, at the the action was commenced. Wheeler vs. Train, 3 Pick. 255 Walcot vs. Pomroy, 2 Pick. 121; Dickson vs. Thatcher, 14 Ark. R. 114.

He must not only have title, but must also have a right to the possession at the time his action is commenced. So, in the case of Britt vs. Aylett, 6 Eng. 476, this court held, that to sustain replevin, the plaintiff must be entitled to the immediate possession, and could not recover property hired, until the expiration of the term of hiring. Nor can a recovery be had by one who has a joint interest in the property with the defendant, who is in possession. Whitesides vs. Collins, 7 Dana 283, Coke Littleton 200. Nor where the defendant in possession has a lien upon the property, as where a warehouse-man has commissions for storage, or a mechanic for repairs. Until these be paid, not even the original owner of the property could remove them, much less one who holds by purchase under him. Wheeler vs. McFarland, 10 Wend. 318; Stamps vs. Whittershall, 3 Hill R. 576.

In this case, it seems, that in the year 1850, there was a crop of cotton, then growing in the field, which belonged to McGraw, (defendant) Hill, and Woods: one-half of which was Hill’s, and the other half belonged equally to McGraw and "Woods. Thus standing, and before any division of the crops, it was agreed, between the parties in interest, that Hill was to pick out the cotton, haul it to the gin, and pay himself for picking and hauling the cotton, and then divide it, keeping for himself one-half, giving one-fourth to Wood, and the other was McGraw’s. McGraw being in debt to Robinson, agreed to let him have his interest in the cotton; provided, he would give as much for it as any one else. Hill was present when the contract between McGraw and Robinson was made, and agreed to let Robinson have the interest of McGraw, upon tho terms above mentioned. Some six months after this, Robinson paid McGraw for the cotton, three dollars per hundred: does not recollect how much was paid; of which, however, Hill had no information.

Hill gathered the crop, threw it up in a pile, no division had been made, nor was this cotton separated from Hill’s own cotton. The cotton -was then not all gathered — 6000 pounds in the pen, and about 1000 still in the field unpicked.

Hill claimed, at the time the officer came to replevy the cotton, that he was to he paid for picking and hauling it. No division was made, nor was there any demand prior to the commencement of the suit. The officer seized upon 1500 lbs. of the cotton in obedience to his wuit.

It is also in proof, that ITill had, previously to that time, been garnisheed by a judgment creditor of McGraw’s, to answer with-regard to this cotton.

Under this state of case, it is manifestly clear, that Kobinson could not recover in this action, until a division of the crop had been made. It was the joint property of all the claimants. McGraw himself could not have recovered it in this form of action, until a division bad been made; nor even then, until Hill had been paid for picking it out and hauling it. A part of the crop was still attached to the freehold, and was not subject to be re-plevied. And even when divided and set apart, unless in sacks, bales, or so situated as to be identified and distinguished, it is very questionable whether replevin would lie. Proof of a demand and refusal or conversion, was also necessary in this form of action. Beebe vs. DeBaun, 3 Eng. 510. The whole of the instructions asked by the defendant, although not very concisely stated, should have been given. And as there was a total want of sufficient evidence, in the several particulars enumerated, to entitle the plaintiff to recover, a new trial should have been awarded.

The judgment must therefore be reversed, and the cause remanded, with instructions to the court below to grant a new trial, and for father procedings therein to be had, not inconsistent with the opinion herein delivered, and according to law.

Absent, Mr. Justice Scott.


author: Mr. Justice WalKEr

text:
    Pond et al. vs. Obaugh et al.
    A party conveys property by doed, duly recorded in another State, to a trustee for the benefit of bis wife and children; afterwards, upon the death of his wife, he removes to this State, and sells the properly to a third person: the purchaser connot defend as “an innocent purchaser,” when it appears that ho was informed that the children had a claim to the property, and was referred to one who could give further information.

      Appeal from Hot Spring Circuit Court in Chamcerry.

    Hon. JohN 0. Murray, Circuit Judge.
    TrapNAll, for the appellants.
    WatkiNS & ■ OueRAN and Gallagher, for appellees.
   Mr. Justice WalKEr

delivered the opinion of the Court.

On the 8th of January, 1833, William Pond, a resident of Edge-field District, South Carolina, by deed conveyed to Albert Rambo, in trust for the use and benefit of his wife and the coruplainantsj their infant children, a negro woman, Maria, and her three children, Stephen, Emily, and Harriet, to be held exclusively for the benefit of his wife during his life, or in case of his death, her widowhood: and, at the death or marriage of the wife, to be equally divided amongst her children:

The deed was, on the 8th of April, 1833, duly acknowledged and entered of record in the Hecorder’s Office of said District. In the autumn of the year 1839, Mary Pond, the wife of William Pond, died in said District and State, and within a few weeks .thereafter, William, the father of complainants, removed with his family of children, to Hot Spring county, Arkansas, and brought with him all of said slaves, and the increase of the woman Maria, (except Stephen, who was mortgaged or left to secure the payment of a debt in South Carolina), where he continued to reside, and kept the slaves in his possession until August or September, 1844, when he sold to defendant, Barkman, the slaves Emily, Harriet, Tom, and Peter, children of Maria, for the sum of $900, and retained the other slaves in his possession.

James IT. Obaugh married Matilda, one of the children of the defendant, William Pond, and they, Avith the other children, to whose use the property had been conveyed in trust, on the 18th of August, 1846, filed their bill in chancery, to enjoin the further sale or removal of said slaves, and to recover the whole of them, or their Aalue.

The grounds for equitable relief, are not seriously controverted, and if the facts of the case show that the complainants are entitled to a decree, the decision of the court below was evidently correct.

It is clearly proven, that William Pond,' (who Avas a dissipated man, and had already Avasted, or made Avay Avith other pro - perty received by his wife), bought the woman Maria and her children, and paid for them by exchanging a negro man and other property received from his wife’s relatives, and to prevent them also from being sold in one of his drinking sprees, conveyed them to Albert Eambo, in trust, for the sole use and benefit of his wife and children, his children to succeed their mother in the use of the property. At that time, William Pond was notin debt; and, although he denies that this woman and children were paid for with property that came to him in right of liis wife, he sub7 stantially admits the execution of the deed, and taking his ac7 count of the purpose, for which it Avas executed, as true, it could not change the legal effect of the deed. But, upon all these points, the proof, Ave think, clearly in favor of the complainants. The deed of trust was not only proven by the transcript of the record from South Carolina, where it had been recorded, but the original was exhibited and proven by the subscribing witness.

By the terms and legal effect of the deed, at the death of their mother, Mrs. Pond, the slaves were to become the property of the complainants. This is conclusive upon William Pond. Bark-man claims as an innocent purchaser under him without notice. In order to make this defence good, a defendant who relies upon it, must, in his answer, not only deny notice at the time of his purchase, but also down to, and at the time of, the payment of the purchase money. Byers & McDonald vs. Fowler et al., 6 Eng. 220. This Barkman has not done. Indeed, his answer is not a positive denial of all notice prior to his purchase: but, even if it did, and also until after the payment, we think the proof sufficient to overturn the answer in this particular. It is in proof, that he made inquiry, and was informed that complainants had a claim to the slaves, and although his informant could not give him certain information as to the validity of the claim, he was referred to one who could give further information. Bark-man seems, before this, to have had sufficient information to put him upon inquiry, and was then endeavoring to ascertain the facts. Upon receiving further information, said he would not buy the negroes. So that in any event the notice was fully sufficient to put him upon inquiry, and as he is thereby deprived of this de-fence, he stands in no Letter condition than William Pond, of whom lie purchased.

Under all the circumstances and facts of the case, we are satisfied that the complainants were clearly entitled to recover the slaves, or if made way with, their value.

The decree of the court below in favor of the complainants against Barkman for the value of the slaves, which it seems, he had made, -wav with, and against William Pond for the slaves in his possession, is well sustainted by the evidence under the case made by the bill. Let the decree be affirmed.

Absent, Mr. Justice Scott.


author: Hon. Thomas Johnson, Special Judge,

text:
    Robinson vs. Mace.
    The law requires much strictness in pleas of set-off, and tho plea should contain not only all the requisites essential to tho validity of other pleas in bar, but must describe tile debt intended to be set-off with the same certainty, as in a declaration; and so, must aver that tho debt set-off was a" subsisting demand, not only at the commencement of tho action, but at tho time of plea pleaded.
    A witness has such a direct interest in the event of a suit, as will disqualify him, if the record would be the instrument of securing; to him some advantage in a future proceeding; as where he is called to prove the value of work done by tho plaintiff for defendant, and discloses that ho was employed by plaintiff to assist him in such work, and -was to receive one-half of the sum paid by defendant.
    IVliero a party enters into a contract to make and burn brick, ho will be hold to skill and diligence in tho execution of Ins undertaking-; and upon failure to make and burn tho brick in a workmanlike manner, the damages may be recouped in an action by him for tho valuó of the work and labor.

      Writ of Error to the Circuit Court of Prai/rie County.

    This was an action of assumpsit for $300, instituted by Mace against Robinson, for work and labor in making and burning brick, and determined in the Prairie Circuit Court, at the February Term, 1853, before the Hon. William H. Feild, Circuit Judge.
    The defendant pleaded non assumpsit and set-ojf : the plea of set-off “alleged that, atandbefore the commencement of lr.ssaid action plaintiff was indebted to the defendant in the sum of seventy-four dollars and eighty cents, a greater amount than lie is indebted to said plaintiff.” A demurrer to this plea was sustained. The defendant gave the plaintiff notice that on the trial of the cause, he would prove his set-off; but the notice was stricken from the files, because it was signed neither by the defendant nor his attorney: a motion by defendant to amend tbe notice in tbis respect, was overruled and be excepted.
    Tbe defendant gave tbe plaintiff tbe following notice: “I shall introduce proof to sbow the character in which you contracted, and your contract to mould, set, and burn a kiln of an hundred thousand bricks for me in tbe summer and autumn of tbe year 1850, for the price of one dollar and fifty cents per thousand, and to show that care and skill were to be bestowed by you thereon, and that good bricks were to be made. Also, to show that there was neither care or skill used by you in the moulding, setting and burning of the kiln, you pretended to burn for me;, that the said kiln did not contain one hundred thousand, but only seventy-nine thousand bricks, and that said bricks were worthless,” &e.

    The verdict and judgment being for the plaintiff, the defendant moved for a new trial, which was overruled and he excepted, setting out the testimony, which conduced to prove that the bricks were badly burned, and that but a small portion of the kiln was of good brick. The bill of exceptions states that the defendant asked the court to instruct the jury: “ That if the jury believe, from the proof in the cause, that the plaintiff took charge of the job of brick-making, as brick mason, and head workman, for the purpose of making and burning a kiln of brick, the position he assumed, threw upon him, the duty of bestowing the skill and diligence necessary to the right construction and burning of the kiln. And in such case, if the defendant sustained damages by reason of the want of proper skill and diligence in the plaintiff, the damages sustained thereby on the part of defendant, may be deducted by the jury from the amount of the verdict that they may find for the plaintiff.” This instruction, the court refused to give in charge to the jury, but charged the reverse. And the court, also, charged the jury, amongst other things, as follows : “That in this action they would consider all the evidence in the case, and if the plaintiff was entitled to recover, he was entitled to recover the full value of his services in this matter of brick making, and of this, the jury will judge from the evidence.”

      ENGLISH, for the plaintiff.
    It is submitted: 1st. That the court erred in admitting McKnight to testify; it appearing that the amount he was to receive of the plaintiff for his services, depended upon the amount which the plaintiff recovered from the defendant. He was, therefore, interested in enlarging the amount of recovery, or at least in a full recovery of wages for the. plaintiff. 1 Greenl. Ev., secs. 386 to 403.
    2d. The court erred in refusing to charge the jury, as asked by Itobinson: that he had a right to recoup any damages he may have sustained by reason of the want of skill or diligence, on the part of Mace, in making and burning the brick kiln, against the demand of Mace for wages. See Ive vs. Epps, 22 Wend. 155/ Mc-Allister vs. Sob, 4 Wend. 483/ S. G. 8 Wend. 109/ Ilill vs. Bern-nister, 8 Oow. 31/ Battlermcm vs. Pewce, 3 Ilill 111/ Van Epps vs. Ha/rrison, 5 Ilill 63/ Wheat, use dkc. vs. Dotson, 7 Eng. 699.
    Such damages could not be made the subject of set-off, and the modern doctrine is not to drive the defendant to a cross action. See authorities above cited.
    Bebteand, for the defendant.
   Hon. Thomas Johnson, Special Judge,

delivered the opinion of the Court.

The points presented in this case, are brought before this court, by the motion for a new trial, filed in the court below by the plaintiff in error. The first that is considered material to determine, relates to the sustaining of the demurrer to the plea of set-off, interposed by the plaintiff. The plaintiff, upon filing his plea of set-off, sent out a notice to the defendant, to apprize him of the fact that he intended to introduce, upon the -trial, evidence to establish his demands as set up in his plea. The court, upon the motion of the defendant in error, struck out the notice for the want of the signature of the plaintiff; and this is assigned for error. "We do not conceive it necessary to investigate this ground of objection, since it is in no way legitimately involved. A set-off may be given in evidence under tbe general issue, or pleaded in bar. But when it is intended to be insisted on in evidence, notice shall be given, at tbe time of pleading the general issue, of the demand so intended to be insisted upon, and upon what account the same became due. See Dig., p. 938, sec. 4. The plaintiff has not confined himself to his notice, but pleaded specially his plea of set-off; and, consequently, if that plea, were good with a legal notice, it would be equally so without it. The question then recurs as to the sufficiency of the plea, considered without reference to the notice. If two or more persons are mutually indebted to each other by judgments, bonds, bills, notes, bargains, promises, accounts, or the like, and one of them commence an action against the other, one debt may be set-off against the other, although such debt may be of a different nature. See Dig., 937, sec. 1. There can be no doubt but that tJie matter set up in the plea, is such as may be offered by waj? of set-off, it being an actual subsisting indebtedness, and not a mere possibility and sounding in damages, which are wholly unliquidated. But there exists more doubt in relation to the form of the plea interposed in the present instance. The law requires much strictness in pleas of this nature, as they constitute a sort of new case brought for the first time by the defendant against the plaintiff; and, consequently, the party pleading takes upon himself all the responsibilities of one who, for the first time, puts the law in motion. Tie not only undertakes to defend against a claim preferred against him by the plaintiff, but he also attempts to thwart him in his recovery ; and, in some instances, to recover against him by producing an entirely new case, and one that has no connection with the one sought to be enforced against him.

In point of form the plea of set off should not only contain all the requisites essential to the validity of other pleas in bar, but must describe the debt intended to be set-off, with the same certainty as in a declaration for the like demand. See Chit. plead., vol. 1, p. 562. The plea under consideration, simply avers that the plaintiff was indebted to him, the defendant, in the sum of seventy four dollars and eighty cents, at, and before the commencement of the suit, but is utterly silent as to whether it was due and owing or not, at the time of the plea pleaded. It most unquestionably would not suffice for a declaration simply to allege an indebtedness, at a time prior to the institution of the suit, aud to remain silent as to the existence of that fact at that period. Pleading the plea of set-off is the first presentation of the claim of the defendant against the plaintiff, and if not due and owing at the time it is introduced, in contemplation of law it is utterly unfounded; and, consequently, affords no defence against the action. The demands set up by way of set-off, may have been due and owing from the plaintiff to the defendant at the time of the institution of the suit, and yet the last cent may have been paid and discharged before the filing of the plea. Indeed, this is the legal presumption, as he has failed to charge otherwise in his plea; it being a rule of law that the construction is to be taken most strongly against the party pleading, upon the supposition that he has made the most favorable case for himself that the circumstances would permit. We think it clear, therefore, that the plea was demurrable for this reason; and that, consequently, the Circuit Court committed no error in sustaining tlio demurrer to it. It is also contended, that the court below erred in permitting the defendant in error to read a paper, purporting to be a bill of particulars, and a judgment of a justice of the peace, founded upon it, rendered in favor of the plaintiff and against the defendant. This was manifestly error, for there was no issue between the parties, under which the evidence could have been admissible. The plea of set-off under which the plaintiff proposed to introduce the bill of particulars, as appears from his notice, had been swept from under him by the demurrer; and, consequently, the defendant had no legal presumptions to rebut by introducing the judgment.

The next enquiry is, as to the competency of the witness, Me-Knight, to testify in behalf of the defendant. The objection was made at the trial, and overruled by the court. Where the interest is of a doubtful nature, tbe objection goes to tbe credit and not to the competency of tbe witness. A party has such a direct and immediate interest in tbe event of a cause as will disqualify him, when tbe necessary legal consequence of a verdict will be to better bis situation by either securing an advantage or repelling a loss: be must either be gainer- or loser, by tbe event. A witness is also interested, if tbe record would be tbe instrument of securing to him some advantage, or of repelling some charge against him, or claim upon him, in a future proceeding. See Stark. Ev., vol. 2, p. 747-8. The witness stated, upon bis voir dire, that be first went to tbe defendant’s to assist Mace in tbe business of brick-making, under an agreement with Mace, and for no certain wages; that be worked under that agreement about two weeks, when be and Mace changed it, so that he (witness) instead of wages for time, was to have tbe half of the amount to be paid from Robinson for tbe making of the brick. Here is an interest, that is direct and certain, and the record of the judgment, if for Mace, would most clearly have been an instrument by which an-advantage would have been secured to the witness, líe was to have the one-half tbe amount which Robinson should pay, and tbe object of introducing bis testimony, was to fix and determine that amount: Tbe court, therefore, erred in permitting him to testily in tbe cause.

We now come to consider of tbe last objection, which we conceive to be material, and that relates to tbe instruction of the court in reference to the question of skill and diligence. It appears, from the testimony of McKnight, that Mace, the defendant in error, bossed the job, and bad charge of it as a brick-mason. It is questionable whether tbe term “brick-mason, ” is sufficiently comprehensive, properly and technically speaking, to embrace brick makers and brick burners: yet it is obvious, from the expression used, and the other evidence in the cause, that the defendant hold himself out to the plaintiff as a man fully competent to make and burn brick; and, if so, the law is well settled that he will be held to skill and diligence in the execution of his undertaking. This being the case, it follows, as a necessary consequence, that if he did not use such skill and diligence as were necessary to make the brick, and to set and burn them in a proper and workmanlike manner, he was guilty of a breach of the contract, on his part, and that he could be held liable in a cross action for damages commensurate with the injury thus sustained by the plaintiff. JBut lie has not seen fit, on this occasion, to resort to his cross action; but, on the contrary, has introduced his proof, and claims, as a defence to the present action, that he has a right to recoup the damages which he may be entitled to for a breach of the stipulations on the part of the defendant. This he most clearly had a right to do. The damages claimed for a failure to exercise proper skill and diligence in the making and burning of the brick, are not sought to be recovered by way of set-off, but by way of recoupment. Recoupment differs from set-off, in two essential particulars: that is to say, in being confined to matters only arising out of and connected with the contract, upon which the suit is brought, and in having no regard to whether or not such matters be liquidated or unliquidated. See 7 Eng. R. 703; Wheaton, use &. vs. Dotson.

We entertain no doubt of the right of plaintiff in error to recoup any damages which he may have sustained, by reason of a breach of the contract concerning the making and burning of the bricks in question; and that, consequently, the court erred in otherwise instructing the jury. In respect to the propriety of striking out the notice for want of the signature of the plaintiff' in error, or of his attorney, we will merely remark, that that was a matter of practice, and within the sound discretion of the Circuit Court, and as there is nothing indicating an unwarrantable or arbitrary exercise of that discretion, it cannot be regarded as error.

The bill of exceptions in this case, has been very inartificially framed, and has given the court much trouble and extreme labor, to ascertain the true position of the parties, and to apply legal principles to the facts therein presented. We are of opinion that error has intervened in the court below, and that the cause ought to be, and is hereby reversed, and remanded to be proceeded in, according to law, and not inconsistent with this opinion, and that both parties have leave to amend their pleadings, if they shall desire to do so.

Before Mr. Justice "Walkek, and Hon. Tiiojias JohNSON, Special Judge.

Mr. Oh. Justice ENGlish not sitting in this cause.


author: Mr. Chief Justice ENGlisii

text:
    Boothe vs. Estes.
    The proceedings of a justice’s court, to bo valid, must show affirmatively that the subject matter of the suit is within tho jurisdictional limits prescribed for the court; but when the judgment and proceedings are brought collaterally in question, and the jurisdiction of the subject matter and person or thing, affirmatively appears, they will not be held null and void for such irregularities as would merely be grounds of reversal.
    An account against the defendant in favor of the plaintiff, for an “account bought of the estate” of a deceased person, held to be a sufficient foundation of a suit by attachment before a justice — as tbe plaintiff might by proof on the trial, have established a direct liability on the part of the defendant for the amount of the account.
    A judgment in attachment, when questioned collaterally, will not be held null and void, because, the affidavit stated that tho defendant “conceals or absents himself,” &c.

    The correct practice, on a judgment in attachment, is for the execution to direct the officer to selltho property taken in tho attachment: but though tho execution bo generally against the goods, &e., of tho defendant, tho informanty will not avoid the sale, if the officer sells the property attached and none other.

      Where property is left with another under an agreement to deliver it when demanded, or account for it, oven if the bailee had the right to elect to retain and pay for it, his refusal to deliver, and denial of the bailor’s title, show a conversion of the property, and not an election to retain and pay for it.

      AppecA from the Circuit Cou/rt of Lawrence County.

    Hon. Beaueoet H. Neely, Circuit Judge.
    Fairchild, for tlie appellant.
    That the refusal to deliver the cow and calf on the written demand of Boothe, and the reasons given for such refusal, were a conversion. 2 Saund. 47 f., 47 p./ JParher vs. Coden, 2 Sir. 818/ Grant vs. King, 14 Verm. 367.
    The account upon which the judgment in the attachment was rendered, might have been the ground of a good cause of action against Tarter for Mrs. Crawford ; she may have purchased it at his request and on his promise to pay: Tarter’s liability to her on the account was a matter of evidence.
    That the affidavit for the attachment was sufficient. SUclcer vs. The State, 13, Arle. 897/ Castilian vs. Jones, 1 Seld. 164.
    The Circuit Court had no right to determine in this collateral way, upon the jurisdiction of the justice of the peace.
    Byess & PatteesoN, for the appellee.
    Prom the evidence, it is clear that Boothe could not maintain the action of Trover, as it appears that the defendant, under his contract, had a right to retain the property, and upon demand of the delivery being made and his refusal, he became liable, under his contract, to, account for its value ; and his election to retain and pay for the property, was made upon the demand and refusal to delivQjsj and Boothe’s remedy was upon the contract for the value.
   Mr. Chief Justice ENGlisii

delivered the opinion of the Court,

Trotee, brought by Boothe againsts Estes, for the conversion of a cow and calf. The cause was tried upon the pleas of not guilty and limitation; verdict for the defendant, and brought up on exceptions taken by the plaintiff to instructions given by the court to the jury. The evidence upon which the instructions were based, is, in substance, as follows:

Boothe claimed the property, by virtue of a purchase at a constable’s sale, under proceedings by attachment, before a justice of the peace, in favor of Letitia Crawford, against Bobert Tarter, and introduced a transcript thereof as evidence. From this, it appears, that on the 29th day of February, 1848, Letitia Crawford filed for suit before a justice of the peace of Lawrence county, an account as follows:

1846. “Robert Tarter,
To Letitia Ckaweokd, I)i\
Account bought of the estate of Colby Crawford, deceased, $47 50.”

On the same day, the following affidavit was filed before the ■justice:

“I, Ferguson Boothe, being duly sworn, do depose and sa}, that Bobert Tarter is justly indebted to Letitia Crawford, in the sum of forty-seven dollars and fifty cents, which sum is now due and owing, and that the said Bobert Tarter, as I believe, so conceals or absents himself that the ordinary process of law cannot be served on him; and that unless an attachment shall bo issued, there is reason to believe that said debt will be lost or greatly delayed.”

Thereupon, the justice issued an attachment against the goods, -&c., of Tarter, with a clause of summons for him, and garnishment against one Faulkenburg, under which the constable attached the cow and calf in controversy, executed the process on the garnishee, and returned non est as to Tarter.

On the return day of the attachment, (11th March, 1848,) the justice fixed the 7th of April following, as the day.of trial, made an order for the defendant to appear on that day, and answer the plaintiff’s demands, &c., and delivered a copy thereof to the plan tiff, to be posted up in public places, &c., as required by the statute. Digest, ch. 16, sec. 10, 11, 12.

On the day fixed for the trial, it appears, that the plaintiff in the attachment appeared, and proved that the notice had been duly posted, and the defendant in the attachment failing to ap-irear, the justice proceeded to render judgment against him for $47 50, the amount of the plaintiff’s demand; and, also, rendered judgment against the garnishee, upon his answer of indebtedness to Tarter, for $18.

Afterwards, the plaintiff in the attachment filed with the justice a bond of indemnity to Tarter, as required by sec. 36, oh. 16, Digest; and, thereupon, the justice issued an execution upon the judgment against Tarter, commanding the constable to levy the debt and costs “of the goods and chattels of the said Tarter, according to law.” The execution was against his goods generally, and not specifically to sell the property attached.

Tinder this execution, the constable levied upon, and sold the cow and calf in controversy, and Boothe, the plaintiff in the action of Trover, purchased them for $10, on the 11th May, 1848.

Lasater, the constable, testified, that when he attached the cow and calf, he found them in the possession of Estes, who was the father-in-law of Tarter, and who pointed them out as the property of Tarter. That he, (the witness,) permitted them to remain in the care of Estea, after they were attached, until the day of sale under the execution, when Boothe bought them.

That Boothe appeared as the agent of Mrs. Crawford, at the trial of the attachment suit before tbe justice, and managed the case for her, and on the morning of the day of sale, the witness received a note from her directing him to pay the proceeds of the sale to Boothe.

The constable further testified, that after Boothe had purchased the cow and calf, which were sold at the house of Estes, a conversation occurred between Boothe and Estes, to the effect follow-

Estes said that the cow was one that he had given to his daughter, the wife of Tarter. That Tarter was then gone, but would soon be at home, and that Tarter would not take fifty dollars for the cow if he were there.

Boothe replied that he did not want the cow, that she could stay there until Tarter got back, when, if he chose, he could pay the money due Mrs. Crawford, on a judgment she had against him, and if he did not do so, Estes could deliver the cow to Boothe, or aeaowrvt for hery when called upon by Boothe thereafter, to which Estes assented, and the cow was left with him by Boothe, and her calf was also left upon the same condition. They were worth $10.

Tucker, a witness for plaintiff, testified that in the winter of 1849, he took an order from Boothe to Estes, for a certain cow and her increase, and presented it to him. Estes refused to give up any cow or cattle, and said that Boothe had no cattle there. That a cow had been left there by him, which once belonged to Tarter, and was sold, as his property, to Boothe, under an execution, in favor of Mrs. Crawford, but that Tarter had been back, got a new hearing of the case, and the cattle had been decreed to be returned to him. 'Witness requested Estes to protest the order, to protect him (the witness) in his dealings with Boothe. Estes told witness to do what he pleased with the order,, and he then, in the presence of Estes, and with his consent, endorsed upon it, '■‘•Protested — Thomas Estes.” Witness did not demand of Estes pay for the cow and calf, or their value, but presented the order to him, copied below, and he refused as above stated, &c.

.The plaintiff read the order to the jury, which follows:

“Mr. Thomas Estes: Sir — Send me the cow and yearling that I purchased at the sale of Robert Tarter, under the execution, and left with you, and all the increase, by Mr. Henry Q-. Tucker; and, in so doing, you will oblige yours, &c.,
F. BOOTHE.”
Pec. 20th, 1849.
Endorsed, “Protested, THOMAS ESTES.”

The court charged the jury, in effect, that the whole proceedings in the attachment suit, were null and void, and that the plaintiff (Boothe) derived no title to the cow and calf, by virtue of his purchase, under them.

This conclusion is based upon three objections, which are spe-pified in the instructions of the court.

1st. That the account filed before the justice as the foundation of the attachment suit, imported, on its face, no legal liability on the part of Tarter to Mrs. Crawford — no cause of action between them.

2d. That the attachment affidavit being in the alternative, that is, that Tarter concealed or absented himself, was no affidavit at all, and did not authorize the issuance of the attachment.

. 3d. The execution ran against the goods of Tarter generally, and not specifically against the property attached.

Three of the instructions given by the court to the jury, were upon another point in the cause, and to this effect:

That, if by agreement between the parties, Boothe left the cow and calf with Estes, to be surrendered by him when thereafter demanded, or accounted for, this gave to Estes the right when the demand was made, eithei to return the cattle to Boothe or retain them, and account for their value: and that having refused to surrender them when demanded, he thereby made his election to keep them, and pay their value; and hence, Boothe could not maintain Trover, but would have to resort to an action upon the contract, for the value of the cattle. In other words, upon the state of the proof, the action should have been ex contractu, and not ex delicto.

It is well settled, by the decisions of this court, that presump-tioaír are not to be indulged in favor of the jurisdiction of a jus-tiice’s court. It being a court, not of general, but of special and limited jurisdiction, its proceedings to be valid, must affirmatively show that the subject matter of the suit is within the jurisdictional limits prescribed for the court. Reives vs. Clark, 5 Ark. 28; Anthony ex parte, ib. 366; Pendleton vs. Fowler, 1 Eng. R. 41; Levy vs. Sherman, ib. 182; Latham vs. Jones, ib. 372; and subsequent cases based upon these decisions.

But surely where the judgment and proceedings of a justice’s court are brought collaterally in question, and the jurisdiction of the subject matter and person or thing, if the proceedings be in rem, affirmatively appear, they are not to be held null and void for such irregularties, as would merely be grounds of reversal, &c., in a direct proceeding to review them. See Evans & Black vs. Percifull, 5 Ark. R. 428, and authorities cited.

In the attachment suit, introduced collateral!}, as evidence in the case before us, the foundation of the action was a money demand upon an open account, for a sum less than one hundred dollars, and within the jurisdiction of the justice of the peace. It appears, also, that the property attached, in its character, was subject to such attachment, and found within the territorial limits of the jurisdiction of the justice.

The jurisdiction of the subject matter, and of the thing affirmatively appearing upon the face of the proceedings, are the objections urged against their validity, mere errors; or, are they such as to render the whole proceedings utterly null and void ?

1st. The first objection is, that the account, filed as the foundation of the suit, imports, upon its face, no legal liability on the part of Tarter to Mrs. Crawford.

In Levy vs. Sherman, 1 Eng. 182, and Latham vs. Jones, ib. 371, (in both of which cases the validity of the proceedings were directly questioned on appeal) this court held that the account, or instrument filed with the justice, as the foundation of the suit, must disclose, upon its face, a right of action in the plaintiff against the defendant, or bo such as to admit of evidence álÁv/nde of such right of action.

In this case, the demand filed with the justice, was made out in the name of Mrs. Crawford against Tarter, and purports to be* for the amount of an account bought by her of the estate of Colby Crawford, deceased, upon Tarter.

Accounts not being assignable by law, so as to vest the legal right of action in the assignee, had the original account been filed in the name of Colby Crawford, or his administrator, against Tarter, the suit being in the name of Mrs. Crawford, as plaintiff, a different question would have been presented for consideration than the one before us.

But it seems that the original account was not filed, but a new account made out in the name of Mrs. Crawford, for the gross amount of the original account. Could she, by any possible proof, have established upon the trial a liability on the part of Tarter, directly to her, for the amount of the account? Most unquestionably she could. Had she proven, for example, that she purchased of the estate of Colby Crawford an account upon Tarter for $47 50, and that he afterwards undertook, and promised to pay the amount of it to her, his liability to her would thereby have become direct, and the discharge of his liability to the original creditor by her, would have been a sufficient consideration to make his promise to her legal and binding upon him. The case, therefore, is within the rule laid down in the decision above referred to.

2d. To authorize an attachment to be issued by a justice, the statute {Digest, oh. 16, see. 1,) requires an affidavit to be made by the creditor, or some one for him, that the defendant is indebted to. him in a sum not exceeding $100, “that there is reason to believe that the defendant is about to remove himself, or his effects, out of the State, conceals himself so that the ordinary process of law cannot be served on him, or is a non-resident of the State, &c.

The affidavit in question is substantially in the form prescribed by the statute, except in this, that it states that Tarter '■‘conceals or absents himself,” &c. There is a material difference between concealment and absence; and had Tarter, or any one for him; appeared before the justice before judgment, and presented .this objection in the proper mode, or had it been raised in any direct proceeding to review the judgment of the justice, it might, perhaps, have been held to be an error, but surely the whole proceedings are not to be beld null and void when questioned collaterally, on account of sucb irregularity.

3d. It is objected tbat tbe sale under the execution was void; because it ran against the goods generally of Tarter, and not the particular property attached. The proceeding by attachment is a proceeding in rem, (when the defendant is not served with process) to condemn the property attached to the satisfaction of the debt of the plaintiff. It is doubtless the correct practice for the execution to direct the constable to sell the property taken in the attachment, because when the judgment is exclusively in rem, no other property could legally be sold under the execution. But, in the case before us, although the execution was against the goods of Tarter generally, the constable sold the attached property, and none other, and the informality of the process would not be sufficient to avoid the sale.

We think all the instructions given by the court to the jury in regard to the validity of the attachment proceedings, were incorrect in not taking the proper distinction between that which is null and void, and that which is merely erroneous.

4th. The three instructions given by the court to the jury, in reference to the agreement between Boothe and Estes, were also erroneous. According to the evidence, Boothe left the cow and calf with Estes for the purpose of allowing Tarter to redeem them, when he returned home, by paying the amount duo upon Mrs. Crawford’s judgment. If he did not choose to do so, Estes was to deliver the cattle to Boothe, when thereafter demanded, “or aoeomvbfor them.”

Let the testimony be put in the strongest view for Estes- — -let it be assumed that his agreement to return the cattle to Boothe, or account for them, gave him the right of election, when the demand was made, to restore the cattle, or. keep them and pay their value, as contended by his counsel. When Tucker, the agent of Boothe, made the demand, did Tarter make his election? Did he say tbat he had concluded to keep the cattle and pay for them ? Not at all; but, on the contrary, he merely protested tbe order of tbe plaintiff, declaring tbat be bad no cattle there, and refusing to give up any, saying tbat Tarter bad returned, obtained a new bearing and a decree, tbat tbe cattle be restored to him, but no evidence of such decree was introduced.

Tbe refusal of Estes to deliver tbe cattle, when demanded, and bis denial of the title of tbe plaintiff, surely did not conduce to prove that be elected to keep them, and pay tbe plaintiff for them under bis agreement, but conduced to show such conversion of tbe cattle, on tbe part of Estes, as to entitle Boothe to maintain Trover.

Tbe judgment is reversed and tbe cause remanded for a new trial, &c.

Absent Mr. Justice Soott.


text:
    Dickson vs. Richardson ad.
    R., by written contract, sold to D. Iris improvement on unsurveyed public land, binding himself to prove up his pre-emption right to a quarter section, embracing his improvement; and if obtained, make a valid title to D. Previous to the written agreement, R. stated to D., who made a personal examination of the laird, and was aware of R’s. rights, that he claimed the adjoining lands, supposed to be 64.0 acres, to conditional linos: and that by common understanding, this claim would be respected. The claim to the adjoining- lands was not respected, and the quantity fell short of that supposed: the pre-emption was not proved up by R., who applied to do so, because, by the sale to and possession by D., he alone had the right of pre-emption, which he proved up. I-Ibld, 1st. That there was no such deceit or misrepresentation as would affect the validity of the contract: 2d. That as D. obtained the right to a pre-emption through his purchase from R., it was equivalent, in equity, to a proving up of the pre-emption by R., and transfer of the title to D.
    As failure of consideration is a good defence at law, a bill in equity to enjoin a judgment at law, on such plea, should allege that no defence, whatever, was made at law. Arrington vs. Washington, 14 Aria. 218.

      Appeal from the Qwewt Gourt of Lafayette County in Oha/ncery.

    Hon. SheltoN WatsoN, Circuit Judge.
    PiKE & CuMMiNS, for tbe appellant.
    CoNway, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court.

The pleadings and proofs in this case, when fairly considered, present the following state of case :

In November, 1841, Henry Pichardson resided on Ped Piver, in Lafayette county, Arkansas, and was the occupant and owner of a small improvement, consisting of the ordinary log-cabins for a family residence, and out - houses, and some twenty or thirty acres of cleared land; and, by a neighborhood arrangement, claimed not only the immediate tract on which his improvements were situated, but also the adjoining lands to conditional'lines, recognized by the adjoining settlers. The public lands were then nnsurveyed, and it was not known what quantity there was embraced within this claim, but it was supposed to be about 640 acres, or more.

John Dickson, a resident of the State of Louisiana, desired to purchase a tract of not less than 640 acres, on which to open a cotton farm, and came to Richardson’s to purchase his improvement. He examined the improvement, and the adjoining lands, within the bounds of the claim, and was assured by Richardson, that, by common understanding in the neighborhood and country around, that this claim would be respected: but Richardson did not pretend that he had any legal or equitable right to more than the immediate claim on which his improvement was situated. On that, he claimed to be entitled to a pre-emption right, under the laws of the United States. Relying upon this, and after a personal examination of the land, its quality, situation, and quantity, as well as the nature of Richardson’s claim to the lands within the conditional lines, as shown him, Dickson consented to buy the claim, and thereupon he and Richardson entered into the following written agreement:

“Know all men by these presents, that Henry Richardson, of the county of Lafayette, and State of Arkansas, of the first part, and John Dickson, of the Parish of East Feliciana, in the State of Louisiana, of the second part, witnesseth: that the said Henry Richardson of the first part, for, and in consideration of the sum of four thousand eight hundred and eight dollars, to him to be paid by the said John Dickson, as hereinafter stated, have this day granted, bargained, sold, and delivered, unto the said John Dickson, his heirs, or assigns, all my right, title, claim, interest and possession, I have to a certain improvement on the public lauds of the United States, situate, lying, and being in tlie county of Lafayette, on the west side of Red River, being known as the place and improvements on which I, the said Richardson, now reside. And the said John Dickson, of the second part, promises and binds himself, his heirs, &c., to pay to the said Henry Richardson, for the consideration aforesaid, the sum of two thousand dollars, in good merchantable cotton, on the bank of the Mississippi River, at Port Hudson, to be valued at ten cents per pound, on the first day of January, 1842, and the remainder of two thousand eight hundred and eight dollars, the said Dickson promises, and obligates himself to pay to the said Richardson, in two equal instalments, in cotton, delivered at said place, on the Mississippi River, to say, fourteen hundred and four dollars the first day of January, 1843, and fourteen hundred and four dollars, on the first day of January, 1844, in merchantable cotton, at nine cents, per pound.
And the said Henry Richardson, for the consideration aforesaid, binds himself, his heirs, executors, and administrators, to prove up his pre-emption right to a quarter section of land, embracing the aforesaid improvement, and if obtained from the United States, to make, or cause to be made, to the said John Dickson, his heirs, or assigns, a good and valid title in law, to said land. In witness whereof, the parties aforesaid have hereunto set their hands and seals, this 19th of November, 1841.
(SigNed) HENRY RICHARDSON, [Seal.]
JOHN DICKSON, [Seal.

In pursuance of this agreement, Richardson delivered to Dickson possession of said improvement, upon which Dickson entered and enlarged the improvement.

After the lands were surveyed and became liable to entry, Richardson offered, and attempted to prove up a pre-emption, in virtue of his settlement and improvement- upon the land, but was unable to do so, for the reason, that by transferring his claim to Dickson, he was unable to take the necessary oath to entitle him to enter the land; but Dickson, who succeeded him in possession, was entitled to a pre-emption, and under it, entered tbe land on wbicb the improvements were situated, upon the same terms, and at as little expense as if the pre- eruption had been proven up in the name of Richardson, and transferred to him.

Dickson paid to Richardson the first note for two thousand dollars, and the sum of two hundred and fifty-two dollars and twenty cents on the other note, but refused to pay the residue of the two last payments, for the recovery of which a suit at law was commenced, and judgment rendered thereon in favor of Richardson.

To enjoin this judgment, Dickson brought this suit, and contends that he was deceived -with regard to the quantity of the land; that lie would not have purchased it, if he had known that there was, within the bounds of the claim, only about 465 acres. That the adjoining claimants did not adhere to the-conditional lines shown him by Richardson, but that he has been compelled to buy in some of these claims, in order to protect his claim; that Richardson failed to comply with his agreement to prove up a pre-emption, and that by these means he has been deceived, and the consideration, for which he has executed said notes, has, to that extent, failed.

In this case, the contract was entered into with a full knowledge of the extent and nature of the claim that Richardson had to the improvement, and to the adjoining lands. There was no concealment or misrepresentation of facts which could affect the validity of the contract. The misrepresentations necessary to effect this, must relate to some matter of inducement to make it, in which, from the relative position of the parties, and their mean3 of information, the one must necessarily be presumed to contract upon the faith and trust which he reposes in the representations of the other, on account of his superior information and knowledge with regard to the subject of the contract. Rorif the means of information are alike accessible to both, so that with ordinary prudence, the parties might respectively rely upon their own judgment, they must be presumed to have done so, or if they have not so informed themselves, must abide the consequences of their inattention and carelessness. Yates vs. Pryor, 6 Eng. 58.

The boundary of the claim was correctly given. The common understanding with regard to the respect paid to settlers’ conditional lines, true. The land had not been surveyed, and the quantity embraced within the bounds of the claim, was mere matter of opinion, of which Dickson could inform himself as well as Richardson. But the truth is, that there was nothing sold by Richardson but his improvement, and claim. The advantages which might result to the purchaser on account of the extent of the claim beyond the particular tract on which the improvement was situated, and the neighborhood agreement, no doubt entered largely into tho consideration and inducement, on the part of Dickson, to buy; but this he took at risk, upon full information, and if he had been compelled to pay ten dollars per acre for the balance of the tract, within the bounds of the claim, we can not see how that could affect the validity of the contract. Richardson did not warrant against this, but Dickson knew, at the time, that it was public lands, and must be subjected to sale; and, consequently, he must risk the chances of buying it. The sale was made according to the written agreement, and we must look to that alone for the contract. It was the sale of a possessory right to an improvement on public lands, with an agreement to prove up a pre-emption on 160 acres, embracing the improvement. This was a valid contract, sanctioned and upheld by the repeated adjudications of this court, gnd recognized as property, and subject to be sold by the express legislation of our State.

This was not a contract, not to bid for public lands or to stifle competition, as is argued by counsel; and, therefore, the authorities cited are inapplicable. There was no agreement to forego bidding, or stifle competition, but there was merely the expression of an opinion, that, according to a common assent and understanding amongst the settlers upon the public land, they would respect the rights of each other, and whether adhered to or not, was solely the risk of Dickson, the purchaser, who must be presumed to have known that any one would have a right to buy or enter the lands, notwithstanding any express contract or agreement by Richardson to the contrary.

But tlie truth is, that with the exception of about 38 acres, Dickson did enter this whole claim, at $1 25 per acre, the Government price; and it is highly probable that he was enabled to do so by reason of his settlement claim bought of Richardson. It is true, that Richardson did contract to prove up a pre-emption on the land ; and it is also true, that he did not do so: but the evidence abundantly shows that he was willing to do so, and did apply, at the proper land office, for that purpose, and was prevented from doing so for the sole reason that he had sold to Dickson, who succeeded to his rights, as a settler, and proved up his pre-emption, and entered the land in his own name. So that, notwithstanding Richardson did not make the proof, Dickson was in no wise the loser thereby, and got the land upon the very same terms, and as perfect a title as if Richardson had entered the land and conveyed it to him. Dickson, therefore, by his purchase, succeeded to rights which Richardson lost; and although the improvement made by Richardson on the land, and sold to Dickson, if estimated by the costs for making it, was comparatively small, compared to that given by Dickson for the claim ; still, Richardson, by his sale, no doubt, lost not only Ids pre-emption, but his chance to secure a valuable tract of land, all of which was secured by Dickson, perhaps in value far above the price given for it by Dickinson. So that upon the whole equity of the case, we think the decree of the Circuit Court should be affirmed.

Rut there is, over and above this, another ground upon which this decree should be affirmed. The leading feature of this casp, is, a failure of consideration. This defence could as well have been made in the suit at law as in equity. Wheat vs. Dotson, 7 Eng. 699.

The bill is silent as to whether such defence, or any defence was made or not; no exhibit is made of tlie record of the proceedings at law. It was the duty of the complainant, in stating his case, to have averred that he made no defence at law, or to have shown such facts as would excuse him for coming into chancery, notwithstanding such defence. Arrington vs. Washington, 14 Ark. Rep. 218. But tbe defendant avers that there was a de-fence to the action at law, made by the defendant in the suit at law, and no matter what that defence was, whether a plea of failure of consideration, abatement, or even a demurrer, the rule is, that by offering such defence, the defendant elects the tribunal before which he will make his defence, and, from that time, he must make his entire defence in that court, if such as may be heard by the court. Arrington vs. Washington.

Upon this ground, therefore, as well as upon the merits of the defence as offered in this court, we think the decree of the Lafayette court in chancery, should be affirmed.

Absent, Mr. Justice Scott.


author: Mr. Justice "Walkee

text:
    Pennington et al. vs. Ware & Miller.
    Tlie application to fils additional pleas, or amend pleadings, after the return term, is addressed to the sound discretion of the court; which will not be controlled, unless there bo a palpable abuse.
    In no case should a party, upon leave, be permitted to file an insufficient plea.

      Appeal from Bradley Oiromt Court.

    Hon. Tueodorio F. Sorrells, Circuit Judge.
    Tell, for appellants.
    PiKE & CuMMiNS, contra.
   Mr. Justice "Walkee

delivered the opinion of the Court.

This case came before us at the January term, 1851, (6 Eng. 745,) and it was then held, that the defence set up of a failure of consideration, was insufficient, and the cause was remanded for further proceedings.

TJpon the return of the case to the court below, an amended plea of failure of consideration was filed, to which a demurrer was interposed and sustained. But the demurrer of the plaintiffs to the defendant’s third plea, was overruled, and the plaintiffs electing to rest upon their demurrer, judgment was rendered against them upon that plea. From this judgment the plaintiffs appealed ; and, on the consideration of the case, (5 Ark. Rep.) it was held, that the plea was insufficient; and, consequently, that the Circuit Court erred in overruling the demurrer to it.

The decision of the Circuit Court was reversed, and the cause remanded. When the case came up for hearing, upon the mandate of this court, the defendants moved the court to permit them to file an additional plea, but the Circuit Court denied the defendants permission to file such plea, and thereupon the defendants withdrew the pleas then on file, and final judgment was rendered for plaintiffs; from which the defendants appealed.

The plea, offered to be filed, is made part of the record by bill of exceptions, and upon examination of which, it is found to be substantially, if not literally, the same plea heretofore interposed, and upon demurrer, held to be insufficient.

An application for permission to file additional pleas, or to amend pleadings, after the return term, is addressed to the sound discretion of the court below, and as we have repeatedly held, it is only where there has been a palpable abuse of such discretion, that this court would entertain error to limit or control it. Bnt, in this case, the discretion was properly exercised. In no case should a party, upon leave, be permitted to file an insufficient plea: the tendency would only be to delay the time of the court, and impose additional labor and costs upon the litigants. Let the judgment be affirmed.

Absent, Mr. Justice Scott.


author: Mr. Justice "WalKer

text:
    Harris vs. King.
    A vendor of real estate receives payment of the purchase money, executes a bond to the vendee for title, and either remains in possession, or after delivery of possession to the vendee, is constituted his agent in respect to the land: he holds the naked legal title in trust for the vendee, and the statute of limitations is no bar to an action for a specific performance of the contract, after ten years from the time of its execution, if the vendor has done no act inconsistent with the vendee’s title.
    A purchaser of the vendor’s interest in such real estate, at a sale by his administrators after his death, with a knowledge of the vendee’s purchase, stands in the same situation as the vendor would if contesting the title of his vendee.

      Appeal from, the Circmt Court of Randolph County in Cha/neery.

    Hon. Beaufort H. Neely, Circuit Judge.
    Fairchild, for the appellant.
    To entitle a party to a decree for specific performance, all the material facts must be clearly proven. A stronger case must be made to establish a right to a decree than will be sufficient to resist the claim of specific performance. 2 Story’s Eq., see. 693, 742, 769/ 12 Ark. 551, 552.
    The complainant was barred from recovery by lapse of time.
    The complainant’s action was barred by the statute of limitations.
    King, by bidding at the sale, is estopped from setting up any title in opposition to it, or paramount thereto.
   Mr. Justice "WalKer

delivered the opinion of the Court.

Thomas O. Marr, ayesident of the town of PocahoDtas, Arkansas, sold to Samuel King, a citizen of the State of Missouri, two lots of land, situate in said town; and, thereupon, executed to King a penal bond, in tlie sum of four hundred dollars, conditioned (after reciting the contract) to be void, if be, the said Marr, should make, or cause to bo made, a good and sufficient title to the lots of land to said King. The bond bears date the 13th of March, 1811, and it does not appear, from the recitals in it, what the price, agreed upon for the lots, was, or whether paid or not. In the year 1819, Man* died intestate, and administration upon his estate was granted to John II. Imboden, and JolmB. Black, who, in obedience to an order of the Probate Court, on the 13th of May, 1851, offered said lots of land for sale to the highest bidder, and they were sold to the defendant, Henderson II. Harris, to whom they conveyed the right, title, and interest, of .their intestate in said lots.

On the 11th of June, 1851, King filed his bill in chancery, setting forth the bond, and averring .the payment of the whole of the purchase money, at the time it was executed. lie claims title to the lots under his purchase from Marr, and charges that he expressly notified both the administrators and Harris, the purchaser, before and at the time the lots were sold, that they were his.

It is also alleged, that, at the time he made the purchase of the lots, they were delivered up to him, and that he constituted Marr, his agent, to rent the lots, (there being a small building upon one of .them) and to pay the taxes.

The relief sought, is, that the sale to Harris may be set aside, his deed canceled, and that a title be decreed to him in accordance with the conditions of his bond.

The defendant Harris, who is alone contesting with the complainant for title, in his answer, admits that he pxarchased after notice of the claim of the complainant; but was encouraged to bid for the property by the after conduct of plaintiff, who -was a bidder at the sale, and run the property up on him to near the .amount bid by him for it. He denies all of the other allegations, ¡and requires proof, and expressly relies upon the statute bar of limitation of ten years.

The bond was exhibited, and its execution prove#, .and .a witness was called at the trial, who stated that he bad heard Marr say that he was acting as agent for King, and paid taxes for him on town property, in Pocahontas, but did not learn what property it was, which, together with the bond, was the whole of the evidence.

This brief history of the case will suffice to present fairly the only question of law presented in the case, which is, whether the right of action was, or not, barred by limitation.

The suit was brought for a specific performance of a contract, which had been executed more than ten years before the suit was commenced, and as there was, by the terms of the contract, no money to be paid, nor any precedent duty on the part of King to be performed before a deed from Marr was to be made, King’s right of action to enforce a specific performance, was perfect from the date of the contract; and was, therefore, clearly barred by limitation, unless from the relative position of the parties and the nature of the contract, it is excepted out of the general rule, that courts of equity act in analogy to courts of law, in applying the statute bar to proceedings in equity, so that if the party had lost his remedy by a legal bar, he can have no remedy in equity upon the same cause of action.

One of the exceptions to this rule arises upon a distinction taken between cases which are exclusively within the jurisdiction of courts of equity, and such as over which the courts of law and equity have concurrent jurisdiction, leaving the former to depend upon the nature of the equity, as for instance, whether there is a trust involved in the issue, whilst in cases of concurrent jurisdiction, the same statute bar, applicable to the case, if brought at law, will be applied in bar to the remedy in a suit in equity. See Kane vs. Bloodgood, 7 John. Ch. R. 114.

And with regard to trusts, it would seem to be the settled doctrine, that the statute of limitation may be pleaded to implied trusts, but as regards express trusts, whilst the general rule would seem to be, that the statute bar could not be pleaded as to them, still, there seems to be a well founded distinction as to them. In cases of continuing direct trusts, so long as the trustee continues to act under the trust, and the cestui que trust to recognize or sanction such acts, there would seem to be no limitation, because the acts done under the trust, are so many renewed and repeated acknowledgments of its existence, and of the rights under the trust. This is in analogy to the saving clause of the statute, which makes part payment, or a new promise sufficient evidence to repel the presumption of payment by the lapse of time, and to fix a new point from which the statute bar will begin to run. Chancellor Kent, in Kane vs. Bloodgood, said: “It does not bar, so long as the trust is a continuing and an acknowledged trust,” and in Raymond vs. Simonson, 4 Blackf. 81, the court said: “So long as such a trust as that, (referring to direct continuing trusts,) is continuing as a trust, acknowledged or acted upon by the parties, the statute cannot apply. But so soon as the trustee denies the right of his cestui que trust and his possession becomes adverse, lapse of time from that period, may constitute a bar in equity.”

ITpon the same principle, it is held, that although the statute bar of twenty years may be pleaded to a bill to redeem a mortgage, yet still if within that time the mortgagee treat it as a mortgage, the statute bar is removed. Story Eq. Pl., sec. 757.

But with this and one other exception, to which we will presently refer, in cases of direct and continuing trusts where the trustee ceases to act, or has done no act, after the acceptance of the trust, to indicate the character or right in which he holds, if the equitable title is not sued upon until after the time within which a legal title of the same nature ought to be sued upon, to prevent a bar by the statute of limitations, courts of equity, acting by analogy to the statute, will not entertain it. Story Eq. Pl., sec. 757; Moore & Cail vs. Anders, 14 Ark. 640.

But with regard to trusts of this nature, there is one class of cases, which, from their nature, seem to have been excepted out of the rule, and against which the statute bar does not attach. It is .the case of a trustee, who holds possession of an estate, whene such, possession is not inconsistent with the title of the claimant, lord Rbdesdaltsj in Hovensden vs. Lord Annesley, 2 Sch. & Lef. 607, held: “That if the trustee is in possession of an estate, and does not execute his trust, the possession of the trustee is the possession of the cestui que trust) and if the only circumstance be that he does not perform his trust, his possession operates nothing' as a bar, because his possession is according to his title. As in the case of a lessee for years, though he does not pay rent for 59 years, his possession is no bar to an ejectment, after the expiration of the term, because his possession is according to the right of the party against whom he seeks to set it upand this caséis cited with approbation by Judge EAstt, in Kane vs. Bloodgood. Such, also, was the decision in Raymond vs. Simonson, 4 Blackf. 82. And in Graham's heirs vs. Nelson's heirs, 5 Humph. 611, where the question arose upon a covenant for title, as in this case, the court said: Nelson’s claim was not adverse to, but consistent with, the right of the complainants. “He had sold the entry 1121 to them, and in considering the right to the land in the present controversy, as being derived from that entry, he must be considered as their vendor of this land. The rule is, that after a sale, and before the conveyance of a legal title, the vendor is a trustee for the vendee, and whilst his possession can be reasonably supposed to be in accordance with the trust, it will be construed for the benefit of the eestm quetrust, andthe act oflimitations will not operate."

We have thus briefly reviewed this interesting question, that we might show the distinct ground upon which (we apprehend),, from the facts of the case before us, it must be decided.

The legal effect of the bond, conditioned to make a deed for the lots, as held by this court in Smith vs. Robinson, 13 Ark. 533, and Moore & Cail vs. Anders, 14 Ark. 634, imported a present sale which passed the ownership and beneficial interest in the land to the purchaser, and this court has repeatedly held, that the vendor held only the naked legal title in trust for the benefit of the vendee. In the case of Walton vs. Coulter, 1 Mc Lean R. 132, where a bond for title was executed, and the ven-dee had entered upon the land after the lapse of more than forty years, it was held, that the statute bar did not prevent a recovery. The court, in that case, expressly recognized the relation of trustee and cestui que trust, and said: “When the relation of trustee and cestui que trust exists on the death of the trustee, nothing but the legal estate descends to the heir. The equity is with the vendee, he has paid the consideration, and may be in the possession of the premises; would it not then be a most extraordinary rule that would bar the equitable claimant from obtaining the legal right — a right divested of all equity ? Such a right is not within, the mischiefs, against which the statute of limitations is designed to guard.”

According to these authorities, Marr was a mere trustee, and held the legal title as such. It is not pretended that he asserted any title to the property after his sale to King. And it was altogether consistent with King’s purchase, that he should at once have taken possession of the property, which, it appears, was not at the time tenanted. The bill expressly charges that the lots were delivered to King, at the time they were purchased, and that being a non-resident of the State, he made Marr his agent, to take care of the lots, and q>ay taxes upon them; and although this allegation is not admitted by Harris, the purchaser, the fact is of such a nature that he could not be presumed to know any thing of it, and is clearly within the rule that requires less strictness of proof to overturn it, than when the defendant answers touching a matter in regard to which he is presumed to be informed. The evidence of the only witness who was called, was, that Marr had admitted that he was the agent for King, and paid taxes for him on lots in Pocahontas. Taking the whole of the facts together, the residence of Marr at Pacahontas, where the lots were situated, the non-residence of King, and the nature of the answer and evidence, we incline to believe the evidence sufficient to establish an agency, and when that is the case, even if it had been shown that Marr did exercise acts of ownership over the property, it is fair to presume that it was in his character as agent.

Under the circumstances of the case, as long as Marr did no act evidencing a claim or title adverse to King’s, whether he hold it as agent, after delivering it up to King, or retained the possession with the mere naked title in trust for King, we are of opinion, that the right of King to enforce a specific execution of the contract for a deed for the land, was not barred by limitation, even though more than ten years had elapsed between the execution of the bond and the commencement of the suit.

The administrators expressly declared, and gave notice, that they only sold such interest as Marr had, and Harris with a full knowledge of King’s purchase, bought the interest of Marr ; he, therefore, stands in no better situation than Marr himself would, if alive, and defending against the claim of King.

Entertaining these views, it follows, that the decree of the Circuit Court was correct, and should be, in all things, affirmed.