author: Mr. Justice Y/alKEb

text:
    Bernie vs. Vandever as ad.
    The refusal of the Circuit Court to permit an answer to be filed after the time allowed; or the striking an answer from the files when so filed, is within the discretion of the Circuit Court, and this court will not interfere, unless in cases of palpable abuse of such discretion; and so, this court will not reverse a decree for such cause, when by consent of parties it was ordered that the answer be filed within a certain time, or the bill be taken as confessed.
    Upon a reference to the master in chancery to state an account between the parties, ho should give them reasonable notice of the time and place of taking testimony and stating the account — to notify them to appear within a few hours after the reference, between 8 and 12 o’clock at night, is not reasonable notice.
    A defendant in chancery, although he may have made default to answer, has a right to appear before the master, and have process for witnesses, on a reference to state an account between him and the complainant.
    Upon the death of one of several partners, the partnership is dissolved; and the surviving partner is entitled to the partnership property and effects, for the purpose of settling the accounts, and paying off the debts of the firm.

      "Wliero one of two partners dies, if the surviving partner, instead of settling the partnership property, uses it in carrying on the business, the representative of the" deceased partner may, at his election claim an interest, according to tho principles of equity, in tho subsequent profits; or take intorest upon the amount due to him, after a full settlement of the partnership debts, at the time of the dissolution.
    ■Where an answer is necessary to a full and fair development of the whole transaction, and to the just and equitable division of partnership effects sought to be recovered by the bill, it should be permitted to be filed, if a full and perfect answer; and if delay or inconvenience occur to the opposite party because filed out of time, terms of cost, &c., should be imposed.

      Appeal from the Qi/reuit Oowrt of Sebastian Oounty m Oha/n-eery.

    The Eon. Felix J. BatsoN, Circuit Judge.
    S. F. ClaeK and S. H. ITeMpstead, for the appellant.
    1. That the report in this case was partial and unjust, and ought to hare been set aside.
    2. That the exceptions to it should have been sustained.
    3. That the testimony does not warrant the decree, and that it is erroneous.
    Authorities referred to : Digest 236/ 1 Dev. Oh. B. 61/ 2 Munf. 235/ 9 Porter 79 / 13 Arh. 619/ ílitt. 258/ 2 John. Oh. B. 495/ 2 Daniell 1390, 1388/ 2 Smith 151/ 2 Da/niellPT^th to 1395, 1355.
   Mr. Justice Y/alKEb

delivered the opinion of the Court.

This was a suit brought by Yandever, as tho administrator of the estate of Darby, against Charles A. Bernie, the surviving partner of the late firm of Bernie & Darby, for the purpose of having an account and settlement of the partnership accounts, and for payment of the profits, &c., to the administrator.

As the questions of law presented for our consideration grow out of matters of practice, and of instructions to the master, to whom the accounts were referred, we will only state so much of the case, as will be necessary to a proper understanding of the questions thus presented.

The bill was filed on the 26th. of July, 1851, and the cause came to hearing at the February term, 1852, upon bill and answer, and was referred to. the master to state an account and report to the next term.

At the August term, 1852, the time when the master was required to report, by consent, the complainant dismissed his suit with leave to file a new bill instanter, which was done; and to which the defendant entered of record his appearance, and leave was given him to file his answer to the last bill filed, within thirty days, and in default thereof that the bill be taken as confessed. And it was further ordered that the case be set for final hearing at the next term, as if the same was then really at issue, upon bill, answer, replication and depositions, unless the defendant fail to answer, and in that event, the case was to be heard upon bill and depositions pro confesso„

On the 18th January, 1853, the defendant filed his answer to the bilk

At the February term, 1851, the complainant moved the court to strike the defendant’s answer from the files, because it was filed after tiie time allowed by order of court, which motion the court sustained,, and the bill ordered to be taken as confessed, and the cause continued until the next term, with leave to take depositions.

At the August term, 1854, the defendant moved the court to-set aside the order striking his answer from the files,, and to permit him then to file the same. This motion the court overruled; and, thereupon, ordered the case to be referred to Archibald Rutherford, the master in chancery, to take an account and report with all convenient speed. On the next day after his appointment, the master reported. The defendant moved the court to set aside the order referring the matter of account to the master, because the order directed the master to take an account of profits of the partnership concern after the death of the intestate up to the filing of the bill, and interest thereon. 2d. Because the master was instructed to report interest upon the sum found to be due the firm at the death of the intestate down to the time of stating the account. 3d. Because the allegations in the bill were directed to be taken as true. 4th. Because the master had been one of the attorneys in the cause for the defendant.

This motion the court overruled.

The defendant, thereupon, filed his motion to set aside the master’s report, and supported the same by affidavit. Bor causes: 1st. That the master was once his attorney in the case, and he believes is prejudiced against defendant, and not inclined to hear all the testimony on both sides, and state the accounts justly and fairly : that notice was served upon the defendant to appear between 8 and 12 P. M., on the Pith day of August, 1854, (the day on which the case was submitted to the master) to attend before the master to the talcing of evidence, c%c.

The defendant, as ground for setting aside the report of the master, states on oatli that he did appear at the time and place appointed, and there tendered to the master the names of witnesses, and requested subpoenas to bring them before the master to testify in his behalf, but that the master refused to allow such process or to hear any evidence whatever on the part of the defendant.

And the defendant, for second ground, stated on oath that the account was stated without evidence on his part, and the report made in secret, at an unusual hour for business, upon the evidence of the complainant alone.

This motion the court also overruled, and received the report and rendered final decree thereon against the defendant, from which he appealed.

The first ground of objection to the decision of the court is, that the answer of the defendant was rejected.

This was a decision of the court below in the exercise of its discretion in bringing the cause to a hearing, and with which this court will not interfere, unless in cases of palpable abuse of such discretionary power to the prejudice of the rights of the jiarties litigant. Such was not the case in this instance. It is true that the 'defendant was not bound to enter bis [appearance to tbe action: and after be bad done so, be was not bound to submit to arbitrary and. unjust restrictions. But it seems that be consented to answer witbin 30 days, and upon bis failure to do so, that tbe bill should be taken as confessed. Having thus by consent waived all objection to tbe length of time given him to answer, as well as to the consequences which would follow his failure to do so, he has no cause to complain that tbe court held him to abide by tbe order made. But then, although tbe answer was not filed within the time fixed upon by tbe court, still it was filed in advance of tbe regular time for filing the answer, and as it remained on file for more than a year, and was not objected to as insufficient, it was not a matter of surprise to the complainant; and in view of tbe nature of the discovery sought, was almost indispensably necessary to a full and fair settlement of the account. Tbe Circuit Court, under such circumstances, and where neither delay nor surprise was occasioned, should have permitted the answer to be filed. But, as we have before remarked, this is a matter of practice left to the discretion of tbe court below, with regard to which we will not ordinarily interfere, and certainly not when done by consent of parties, as appears here to have been tbe case.

Passing this as a matter which, of itself, would not be sufficient ground for reversing the decision of the court below, we come to consider those touching tbe submission of the case to the master for an account, and the proceedings before him. .

The statute requires that the master should .give the parties notice of the time and place of stating tbe account. This notice was evidently intended to afford to tbe party thus summoned, time toiprepare his defence or sustain his allegations. The statute is silent as to what length of time shall be given after notice to prepare for bearing the case before tbe master. This is left a matter of discretion, to be determined by the master, and should be a reasonable notice.

In this instance, a few hours were too short a time, and between eight and twevle o’clock at night, an improper time for business, The defendant could not be expected to prepare liimself, and appear at such hours to transact business ; and, for this reason, the report should have been set aside.

But even if the notice had been sufficient, it seems that the defendant was refused process for witnesses, and denied the right to introduce any evidence before the master.

This was so palpable a violation of the rights of the defendant, as only to be accounted for upon the supposition that the master considered the default of the defendant as precluding him from all right to be heard in defence. In this he was clearly mistaken. Had this been a common law default, the defendant would still have had a right to offer evidence in mitigation of damages, and much more so would it be the case in a court of chancery.

The next question relates to the instructions given by the court to the master upon the reference of the cause to him for settlement.

Upon the death of the intestate, the partnership was dissolved, and Bernie, the surviving partner, was by law entitled to the possession of the partnership property and effects, for the purpose of settling the accounts and paying off the debts of the firm.

The first instruction given the master was, therefore, correct, because upon a settlement of accounts up to that time, it could be ascertained what was coming to the intestate’s estate according to the terms of partnership.

But the second instruction required the master to take an account of the profits from the death of the intestate to the filing of the bill. This instruction is predicated upon the allegations in the bill (which by default are taken as true) that instead of selling the property, the surviving partner used the tools and materials on hand in carrying on the trade and business followed by the firm before the dissolution took place. It is true that if the surviving partner, instead of selling the partnership property, uses it in carrying on the business lately followed by the firm, the representative of the deceased partner may, at his election, claim an interest in the profits of the concern so carried on, or take in-tercst upon the amount due to him, after a full settlement of the partnership debts, at the time of the dissolution ; because, from the time of the settlement of the firm debts, so much of the profits as are coming to the representatives of the deceased partner, whether so ascertained upon actual settlement or not, are to be taken as held by the surviving partner in trust for the benefit of the estate, and the fund, no matter how invested, is still so considered, and may be followed up, and the proceeds of the speculations by the investment claimed.

But upon another ground, also, the representative of the deceased partner may claim profits in the trade carried on after the death of one of the partners; because, although it is true that, upon the death of one of the partners, the partnership is for most purposes dissolved, still a community of interest remains in the partnership effects on hand at that time, until they are disposed of. Thus, in Cranshay vs. Collins, 15 Vcs. 218, it was held that, after a dissolution of a co-partnership, the joint property may be used by the survivors for the benefit of all whose property it is, for the purpose of winding up engagements with third persons. And a like principle is laid down in Ex parte Williams, 11 Ves. 5. In all such cases, the survivor holds the partnership effects in trust until the same are distributed amongst the parties. And this distribution is not to bo made until the partnership debts are paid. Washburn vs. Goodman, 17 Pick. 537.

From this view of the case, it is evident, that the representative of the deceased partner had a right to profits, or interest upon the sum due to the intestate’s estate after the dissolution of the firm by the death of Socrates Darby. The profits to be estimated upon the amount ascertained upon settlement to be due the intestate’s estate after settlement of the debts and liabilities of the firm, but not upon the labor and materials brought into the trade by the surviving partner, at his own proper cost and expenses. In other words, that if the surviving partner, instead of selling off the partnership effects, and after the payment of the debts of the firm, paying over the sum due the intestate’s estate, continued to use tbe property and effects of the firm, or such part thereof as should have been paid over to the representative of the deceased partner; to that extent, and in the proportion that such sum bore to the whole capital invested in trade after, the dissolution, should the profits be divided.

On the other hand, if the representatives of the deceased partner preferred to do so, they might elect to take interest upon the sum due, or which should have been paid after the settlement, or a reasonable time for the settlement of the partnership transactions. Millard vs. Randall, Harring Ch. 373.

There would, therefore, have been no impropriety in directing the master to state an account of both interest and profits, but not to charge both against the defendant in making up the account; because it is evident that he could not take both — and the court, in tins case, in making up the decree, seems to have lecognized this rule, as it excluded profits after the dissolution, and allowed interest in making up the decree.

From the view which we have thus taken of the case, it follows that the judgment and decision of the court below must be reversed and set aside, and the cause remanded.

And thus considering the extent of the interest of the representatives of the deceased partner and the profits arising from the continuation of the business of the firm after the dissolution by' death, and of the whole object and purpose of the bill, which is essentially for a discovery, as well as for an account, we are of opinion that the answer of the defendant is necessary to a full and fair development of the whole transaction, and to the just and equitable division of the partnership effects. The allegations in the bill, from the situation of the parties and the means of information possessed by the administrator, are not so certain and definite as to become reliable evidence upon a confession of the allegations by default. The rejection of the answer was evidently upon technical, rather than substantial grounds. It was not objected to, as not being a full and perfect answer; and was filed in time to prevent either surprise or delay. "We think, under such circumstances, the answer should not have been rejected] but if delay or inconvenience had arisen, it should have been permitted to be filed upon terms of cost, &c. Indeed, as a general'rule, answers, in cases like the present, should be encouraged : and, in some cases, when a discovery is necessary to the relief sought, may be required.

When this case goes back to the Circuit Court for further proceedings, we think the court should, if asked for by the defendant, permit him to file his answer, upon equitable terms, if delay, &c., is thereby occasioned, so that issue may be taken, and a full hearing of the whole case had upon the merits.


source: Caselaw Access Project

author: Mr. Justice Soott

license: Public Domain

text:
    Cochran vs. Jordan, Special Adm.
    The statutory judgment on a forfeited delivery hond, is perfect, immediately upon the forfeiture, unless set aside for cause at the return term of the execution, without any action of the court confirming the judgment: and as the original judgment is extinguished, eo insimti, upon the forfeiture, hy the statutory judgment, a writ of error will not lie to the original judgment, though sued out before the return term of the execution.

      Writ of Error to Olark Ovrouit Court.

    Flannag-in, for tbe plaintiff.
    Jordan, for defendant.
   Mr. Justice Soott

delivered tbe opinion of tbe Court.

To tbe writ of error issued in tbis case, on tbe lltb September, 1855, the defendant in error bas interposed bis plea, setting up that on the 28th of April next preceding, the plaintiff below sued out execution on the judgment in question, returnable into the Circuit Court of Clark county, from whence it issued, the 19th of September next following. That on the 21st of May, this writ was levied upon personal property, which was re-delivered to the defendant below, upon his executing in due course with security, the statutory bond, for the delivery of the same, on the 4th day of June following, to the sheriff of Hempstead county, to whom the writ was sent. That the property was not delivered in accordance with the bond, and that the latter became forfeited, and was returned with the writ of execution by the sheriff, wholly unsatisfied. To this plea, a demurrer has been interposed, and the other party has joined.

In support of the demurrer, it is urged that, because, at the return term of the writ of execution, that, as well as the forthcoming bond returned with it, may be quashed for defects apparent upon their face, it should be holden that the statutory judgment, which springs into being upon the forfeiture of a forthcoming bond, is but in fieri, or interlocutory, until after the lapse of that term.

Upon a parity of reasoning,- it ’might be urged, that an ordinary judgment of the Circuit Court should not have the force and effect of one, until after the lapse of the period limited for the suing out of a writ of error, which no one’ would pretend, since from time immemorial it has been supposed that a judgment of a court of record was none the less a judgment of such a court, with all its legal consequences, because of the possibility that by some future proceeding in the law courts, before these should be closed to the opposite party by lapse of time, and the equity courts alone remain for him, its judgment should be held for nought.

In the same sense that the common law is the author of the judgment of a court of record, and establishes its effects and consequences, our statute is the. author of that- species tif judgment, we are now considering, and establishes théir effects and consequences. Both operate upon the parties and persons bound by them, by way of estoppel, the one by matter of record; the other by matter in pcds. It is by express statutory enactment, that upon the forfeiture of a forth-coming bond, that forfeiture has the force and effect of a judgment against all the obligors in the bond, for the amount due upon the record judgment, which it, eo instanti, extinguishes, upon the principle that a party cannot hare more than one judgment for the same subject matter at the same time. Phillips et al. vs. Wills, Pease, & Co., 14 Ark. R. 597; Biscoe et al. vs. Sandefur et al., ib. 583. If, at the return term of the execution, this statutory judgment-should be overturned by a quashal of the execution and bond for any of the causes indicated, the original judgment would be reviewed, just as the original cause of action would be reviewed.by the reversal on error of the record judgment itself, in which, daring its existence, the cause of action was merged.

It requires no action of the Circuit Court at the return term of the execution to confirm those statutory judgments, and make them final, as we have .already said, in the case. J. & W. Smiser vs. Robertson & Hudson, 16 Ark. Rep., but they stand, by operation of the statute, out of the course of the common law, and are in lull life, even without the return of the sheriff, which the law requires him to make within two clays after the forfeiture j because, as we have said in Ruddel vs. Magruder, 6 Eng. R. 584, this'return is but the evidence of the 'forfeiture upon which the clerk is to act: and hence, the want of it does not make the fact of forfeiture any the less a fact, and is to be enforced by rule and attachment, at the application of any party interested, either for or against the validity of the forth-coming bond.

In the light of these views, we think it inevitable that the plea is good. The démurrer must, therefore, be overruled, and judgment rendered accordingly.


author: Mr. Chief Justice English

text:
    Sadler et al. adm. vs. Sadler.
    The plaintiffs suing as administrators, having proved by the record of the Probate Court, upon an issue to the plea of na ungues administrators, that letters of. administration upon the estatejof their intestate, had been granted to the defendant, and afterwards revoked; and that administration was then granted to them — the reading, by the defendant, of the letters granted to him, was not prejudicial to the plaintiffs.
    In such case, the letters of administration granted to the plaintiffs, were prima facie evidence of their authority to sue: and although an instruction, that the plaintiffs could not recover unless they are bona fide administrators, would be objectionable; yet there was no substantial error in such instruction, the court having also instructed the jury that if they believe the letters of the defendant were revoked, and that letters were granted to the plaintiffs, they are, in fact, the administrators.
    Hearsay statements are clearly inadmissible as evidence; and the court should promptly exclude from the jury any incompetent matter which might tend to influence their conclusion.
    A witness, in the course of his examination, after some unobjectionable testimony, makes a statement upon hearsay; the party against whom he is called objects to the “above statement;” and, upon his objection being- overruled, excepts; the witness then proceeds with his testimony: Held, That it is sufficiently manifest that the objection was made to the hearsay testimony.
    Where the court refuses to give an instruction in the words of the party asking- it; but in lieu thereof, gives one more favorable to him, he has no cause to complain: nor where the court refuses to give instructions, unexceptionable in themselves, if the substance of them be given in other instructions — the multiplication of instructions disapproved.
    It is error in the court to give an instruction not warranted by the testimony, and which may mislead the jury.
    The power of the Legislature to pass laws limiting- the time in which actions shall be brought, and controversies about the title to propez-ty shall be at repose, so that all existing remedies be not cut off, eo imianti, is now too well established to admit of question.
    It is beyond question, that the possession of a slave for a period of some thirteen yeai-s— the possessor of the slave during all that time, claiming and controlling him as his own property, and not obtaining possession under any instrument of writing — by virtue of the statute, {Digest, chap. 153, secs. 3, 4-, 5,) vests in the possessor a perfect legal title to the slave, which he may rely upon as a bar to an action against him for the slave, or which he may assert, if the slave bo deforced from him, in a suit for his recovery.
    An instruction that “when tho admissions of a party are introduced in evidence, all he said in the same conversation is evidence before the jury, as well what he said in his own favor as against him,” should be qualified by the further instruction that the jury should comparo its consistency with the other testimony in the cause, and so form them opinion of tho weight to bo attached to it.

      Apjpeal from Yell Ovrouit Oowrt.

    Hon. “WM. H. Feild, Circuit Judge.
    S. II. HeMpstead, for tbe appellants.
    In this case, the deceased having had peaceable possession of the slave for five years from the 19th of December, 1816, and there being no writing acknowledged and recorded, his title was perfect; and, therefore, there should be a new trial.
    JORDAN, for the appellee.
    It was purely a question of fact for the jury to find, whether plaintiff’s intestate had held peaceable possession of the boy five years before the commencement of this suit, as his property, or under color of title; or, whether, during the time he had held possession, they might presume a sale, or whether lie held him by a loan, or otherwise, and prior to his death had surrendered possession of the boy to defendant, as his property.
    • From the fact that defendant had possession of the boy some three months, prior to Lucien’s death, claiming him as his own, and that defendant sent for him to attend on his brother in his last sickness; the jury not only had the right to infer he belonged to defendant, but it ivas the only legitimate conclusion, from the facts before them.
    Some portions of the testimony of A. S. Iieck, defendant’s witness, were objected to on the trial, and overruled. A part of the testimony so objected to, was relevant, and the motion failed to point out and distinguish between the relevant and irrelevant, and, of course, was properly overruled. Graoie vs. Robinson, 14 Arle. Rep.

    The instruction given by the court in lieu of the 3d, asked by plaintiffs, was more favorable to their cause of action; and, therefore, no ground of error. The substance of the 8th and 9th was embraced in the 5th and 6th; and, consequently, properly refused.
    The 11th instruction asked by the jdaintiffs, was not sirpported by the evidence, and properly refused, there being no evidence that deceased held the slave by virtue of any deed or instrument of writing.
    The 1st and 2d instructions given, on motion of defendant, when taken in connection with the instructions given for the plaintiffs, are clearly applicable to the case.
    That the 3rd is correct, the following authorities are submitted: Adkins vs. Ilershy, 14 Ark. 442/ 1 Qreenl. Ev., seo. 201, 152; mid note, on page 305 / 4 Term R. 669/ 2 Stark. 34/ 1 Phil. 34, 357, note 1.
    The plaintiffs having had the full benefit of the law upon the trial, through the medium of instructions, and the jury having found the facts against them, this court will not disturb the verdict, unless there is a total failure of' evidence to support it. Turner vs. Iliggins, 14 Ark. Rep. 21/ Proton vs. Oook, 14 Ark. Rep. 202/ Floyd et al. vs. Ricks. 14 Ark. Rep. 297/ Miller vs. Ratliff\ 14 ArJe. Rep. 419/ Premien vs. Brown, 5 Eng. 140; Sparks vs. Beavers, 6 Eng. 680/ State Bank vs. Oonway, 18 Ark. 344.
   Mr. Chief Justice English

delivered the opinion of the Court.

On the first day of February, 1854, Wilhelmina L. Sadler, ad-ministratrix, and John W. May, administrator of Lucien O. Sad-ler, deceased, brought an action of replevin, in the Yell Circuit Court, against Theodore P. Sadler, for the recovery of a slave named Ben. The declaration contained two counts; one in the cepit and the other in the detinet.

The defendant pleaded, 1st. We tinques administrators: 2d. Won oepit: 3d. Won detinet: 4th. Property in the defendant as administrator of the said Lucien O. Sadler : and 5th. Property in the defendant in his own right, and not in the plaintiffs as administrators, &c. Issues were made lip upon these pleas, trial, verdict for the defendant, motion for a new trial overruled, and a bill of exception taken.

So much of the evidence, and instructions of the court to the jury, as relates to the issue upon the plea of ne tinques administrators, will be considered first.

It appears from the bill of exceptions that the plaintiffs read in evidence letters of administration granted to them by the Probate Court of Johnson county, upon the estate of Lucien O. Sad-ler, deceased, bearing date 21th January, 1854.

They then introduced a transcript from the record of said Probate Court, showing that on the 6th day of January, 1854, letters of administration upon the estate of Lucien O. Sadler, deceased, were granted by the clerk of the court in vacation, to John J. Walker, the widow of Sadler (Wollielmina L.) waiving her right to administer, and his children being infants. That at the next succeeding term of said Probate Court, on the 25th of January, 1854, on the petition of the defendant, Theodore P. Sadler, representing himself tobe a creditor of Lucien 0. Sadler, deceased, and that Walker was neither a creditor, nor a distribu-tee of said estate, the letters granted by the clerk, in vacation to Walker, were revoked by the court, and letters granted to the defendant. That on the 27th of January, 1854, on the petition of the plaintiffs, the letters granted to the defendant were revoked by the court, and letters granted to the plaintiffs. No appeal appears to have been taken from this last order of the court.

After the plaintiffs had closed their testimony in the cause, the court permitted the defendant, against the objection of the plaintiffs, to read in evidence the letters of administration granted to him upon the estate of Lucien O. Sadler, by the Probate Court of Johnson county, and the plaintiffs excepted.

On this branch of tbe case, the court instructed the jury, at the instance of the plaintiffs, as follows:

(7.) “That the letters of administration produced here by the plaintiffs, are evidence to prove the fact of the plaintiffs’ representative capacity.
“(10.) That if they believe, from the evidence, that the defendant was appointed administrator by the Probate Court of Johnson county, and that afterwards, at the same term of said court, his letters so granted were revoked, and that during the same term of said court, letters of administration were granted to the plaintiffs, the plaintiffs are in fact the administratrix and administrator of the said Lucien 0. Sadler, deceased.”

On the motion of the defendant, the court instructed the jury as follows:

“(1.) That the plaintiffs cannot recover in this action unless they were Iona fide administrator and administratrix of the estate of Lucien O. Sadler, deceased, at the commencement of this suit, as in their declaration alleged.”

To the giving of which the plaintiffs excepted.

The decision of the court permitting the defendant to read in evidence the letters of administration granted to him by the Probate Court of Johnson county, upon the estate of Lucien 0. Sadler, could hardly have been prej udicial to the cause of the plaintiffs, because the transcript from the record of the Probate Court, which they had previously read in evidence to the jury, embraced a copy of the same letters. Moreover, the court charged the jury in effect, by the instruction copied above, numbered (10), given at the instance of the plaintiffs, that the letters granted to the defendant having been revoked by the Probate Court during the same term at which they were granted to him; and, thereupon, letters granted to the plaintiffs, they were in fact the administrators of the deceased.

The instruction copied above, numbered (1,) and given at the instance of the defendant, was unobjectionable, if the words “Iona fidd ’ had b een omitted. The issue was whether the plaintiffs were the legal administrators of Sadler, and not whether they were such in good,faith. The jury under this issue, had nothing to do with their good or bad faith in becoming the administrators of Sadler, or in acting as such. The letters of administration introduced by the plaintiffs, were prima facie evidence of their authority to sue. The defendant failing to sliow that the letters were forged, that the Probate Court had no jurisdiction and power to grant them, or that, from some other legal cause, they were null and void, there was but little or nothing under the issue of ne ungues administrators for the jury to pass upon. Whether the Probate Court had granted the letters to the right or wrong person, or had acted irregularly in revoking the letters of the defendant, and granting letters to the plaintiffs, were not questions for the jury to determine. Such questions could only properly arise on a direct proceeding to review the action of the Probate Court in the matter. See 2 Greenl. Ev. secs. 339, 340.

But taking all the instructions given by the court to the jury on this branch of the case together, there is no substantial error: none that could have mislead the jury.

On the other branch of the case, the evidence and action of the court were as follows :

John Cravens, witness for the plaintiff, testified, that Lucien O. Sadler, deceased, had been in the possession of, and exercised acts of ownership over, the slave Ben for some ten, twelve or fourteen years prior to his death. That Ben was in his possession at the time of his death. Witness had lived within a mile of Lucien 0. ever since Ben became his property, and had never heard of one setting up any claim to the negro prior to the death of Lucien O. The defendant lived in Tell county, some fifteen or twenty miles from Lucien O. during all the time he had possession of Ben.

Nehemialx Cravens, witness for plaintiffs, testified that the slave in controversy, Ben, was in possession of Lucien 0. Sadler from the year 1839 or 1840, until his death. That he exercised acts of ownership over him, and he was regarded as his property. Witness bad never beard of anj one setting up any claim to the negro prior to the death of Lucien O. Witness knew the negro when he belonged to Logan. That Logan or Clark soldkim to the defendant about the year 1836, who had possession of him for three or four years prior to 1839 or 1840, and then the negro came into the possion of Lucien O. and so remained until his death, as far as witness knew. Witness saw the negro waiting on him in his last illness.

Thomas Haines, witness for plaintiffs, testified that he had known the negro Ben some seven or eight years. He was in possession of Lucien 0. the first time he ever saw him, which was seven or eight years before the death oLLucicn O. Witness worked for him frequently, and the negro was always in his possession, and he exercised acts of ownership over and controlled Ben as he did his other negroes. Never heard of any one else having any right or claim to the negro from the time witness first became acquainted with him until after the death of Lucien 0. Witness was present when the writ of replevin was served upon the defendant, and saw the negro upon the premises working on the defendant’s farm.

John Haines, (by whom introduced does not appear) testified that Lucien 0. held possession of the negro five or six years; did not know that he remained in his possession all the time up to his death. Witness saw the boy in possession of the defendant some two or three months before the death of Lucien O. That he was working for the defendant, on his plantation, and remained in possession of the defendant until a few days before the death of Lucien 0. That the defendant went over to see Lucien in his last sickness, and while there sent for the boy Ben to come and wait upon his brother, Lucien, in his last illness. Witness lent defendant bis horse to convey the negro over to Lucien’s, and he remained there and waited on Lucien until after his death. It was a negro boy of Lucien’s that came after Ben. The boy said master Preston (Theodore P.) sent him. after Ben, and that his master Preston requested witness to loan him his horse for Ben to ride over; which witness did, and Ben rode off his horse. ' That some three or four weeks before Ben was re-plevied, witness saw him on the farm of defendant laboring for him. That while Ben was in possession of defendant, at his residence, Ben passed by the door, and Mr. Duncan asked defendant whose negro that was ? Defendant said it belonged to him, and always had belonged to him — witness did not recollect whether this conversation took place while Ben was in possession of defendant before the death of Lucien 0. or after. Defendant is sometimes called Preston, and sometimes Theodore.

A. S. Heck, witness for defendant, proved the signature of L. N. Clark to the endorsement upon a bill of sale shown to him, and to which he was a subscribing witness. lie then stated that he knew the boy Ben before Lucien O. got possession of him. That defendant purchased the negro from Jonathan Logan or Clark, and held possession of him until about 1839 or 1810. That defendant’s wife died about that time, and after her death, he broke up house-keeping, and Ben and three others of his negroes went to Lucien 0. Sadler’s, where they all remained about five or sis years. That Jonathan Logan told witness that defendant sold all but Ben. To this statement of the witness — the above statement, a sit is termed in the bill of exceptions — the plaintiffs objected, but the court overruled the objection, and permitted it to go to the jury as evidence, and plaintiffs excepted.

The statement of this witness as to what Jonathan Logan told him about the defendant’s selling all the negroes but Ben, was clearly incompetent, and should have been excluded from the* jury, as evidence by the court. It being now the settled law in this State, that the verdict of the jury is conclusive upon the facts submitted to them, unless their finding is clearly not sustained by the evidence, the court should promptly exclude from them any incompetent matter, which might tend to influence their conclusion, and more especially where the testimony is in conflict, and slight circumstances might turn the scale one way or the other,

It is urged by the counsel for the defendant, that the motion to exclude was not sufficiently explicit in pointing out the particular portion of Heck’s testimony that was deemed objectionable by the plaintiffs. The bill of exceptions might have been more explicit, but we think it sufficiently manifest that the objection was intended to apply to what the witness was permitted to state that Logan had told him about the defendant selling all the negroes but Ben. There was nothing in the testimony of Heck, previous to this, that could have been objectionable, and in the bill of exceptions, the objection and exception immediately follow this statement, and then the remainder of Heck’s testimony is stated.

Heck further testified, that in the year 1832 or 1833, and for two or three years, the defendant and Lucien 0. were in partnership in a farm, stock and property, as he understood. That they held themselves out to the world as partners at that time— to this statement, the plaintiffs also objected, but the court overruled the objection and they excepted.

He further testified, that the defendant left Johnson county, where he and Lucien 0. were said to be in partnership, in the year 1835 or 1836, and witness had never understood them to be in partnership since that time. That Ben did not go to Lucien’s to live until some years after the defendant moved to Tell county. Witness did not know whether they dissolved partnership or not. He had never heard them called partners since the defendant moved to Tell county to live in 1835 or 1836.

It does not appear from the bill of exceptions, or the argument of counsel, what object the defendant had in view, in proving a partnership between himself and his brother Lucien. It may be supposed that it was designed to conduce to show a joint ownership and joint possession of the negro Ben. But it seems, from the statement of the witness, that the partnership ceased about the year 1836, which was several years prior to the time that the boy Ben went into the possession of Lucien. So that, whether this testimony was relevant to the issue or not, it is not perceived that the admission of it by the court could have been of any prejudice to the plaintiffs.

The court next permitted the defendant to read to the jury, against the objection of the plaintiffs, abill of sale made by Jonathan Logan, conveying to Lorenzo N. Clark “a negro man slave, about twenty-five years old,” &c., bearing date 12th February, 1836, together with an endorsement thereon, made by Clark, transferring the bill of sale to the defendant, dated 17th February, 1836.

The plaintiffs objected to the introduction of the bill of sale and assignment, because no negro was named or identified therein, and no evidence offered in connection therewith to show that Ben was the negro conveyed thereby.

The witnesses, both for the plaintiffs and the defendant, had proven that the defendant purchased the boy Ben from Logan or Clark about the year 1836, kept him in his possession some three years, and then delivered him to Lucien 0. Sadler. Even if this testimony was not sufficient to lay a foundation for the introduction of the bill of sale and assignment, their admission could not have been prejudicial to the plaintiffs, because they only conduced to prove a fact which the plaintiffs themselves had already proven.

It appears that Lucien 0. Sadler died in Johnson county, in December, 1853. The above is all the evidence introduced by the parties. The instructions of the court to the jury, are as follow's :

At the instance of the plaintiffs :

1. “That no bill of sale or other instrument of writing is necessary to transfer property in a slave — the title of slaves pass by sale and delivery. {Given.)

2. “Five years peaceable possession of slaves after 19th December, 1846, is sufficient to give the possessor a right of property against all persons. {Given.)

3. “That if the jury believe, from the evidence, that Lucien 0. Sadlei', deceased, had five years adverse peaceable possession of the slaves mentioned in tbe declaration, it gave bis administratrix and administrator a right to said slave against all persons, unless such possession was under and by virtue of a deed, or some instrument of writing from the owner, duly acknowledged and recorded.”

This instruction the court refused to give, but gave in lieu thereof the following: “That if the jury believe, from the evidence that Lucien 0. Sadler, deceased, liad five years adverse peaceable possession of the slave mentioned in the plaintiffs’ declaration, it gives his administratrix and administrator a right to said slave against all persons.”

4. “That'possession of personal property is prima, facie, evidence of ownership, and if the jury believe, from the evidence,, that Lucien O. Sadler, deceased, held exclusive peaceable possession of said slave for five years, it gave him a right to the property in said slave. {Given.)

5. “That if the jury believe, from the evidence, that said slave was the property of said Lucien 0. Sadler, deceased, at the time of his death, and that said defendant became unlawfully possessed of said slave, within two years before the commencement of this suit, they must find for the plaintiffs. {Gwen.)

6. “That if the jury believe, from the evidence, that said slave was the property of the said Lucien 0. Sadler at the time of his death, and that the defendant got possession of said slave unlawfully, or unlawfully detained the same, claiming him, the said negro, as his own property, within two years before the commencement of this suit, they must find for the plaintiffs. {Gwen.)

8. “ That if the jury believe, from the evidence, that said slave was the property of said Lucien 0. Sadler, deceased, at the time of his death, and that after the death of said Lucien 0., the defendant took possession of said slave, and exercised acts of ownership over him, it was, in law, an unlawful taking ; and, if they believe these facts, they should find for the plaintiff's. {Refused.)

9. “ That the exercise of ownership and claim to property, and acts of possession of property, without the consent of the real owners or the person who has the right to the immediate possession, is evidence of an unlawful detention. {Refused.)

11. “ That if the jury believe, from the evidence, that the said Lucien 0. Sadler liad peaceable possession of said slave, for more than five years before his death, it gave him, and those claiming under him, the right of property in said slave against all other persons, unless the said Lucien 0. held the said slave under and by virtue of a deed, or other instrument of writing, from the owner, duly acknowledged and recorded in the county where said slave was possessed or held in such possession.”

This instruction the court refused to give; but, gave in lieu thereof, the following : That if the jury believe, from the evi-idence, that the said Lucien O. Sadler had peaceable possession of said slave for more than five years before his death, it gave him and those claiming under him, the right of property in said slave against all other persons.”

12. If the jury believe, from the evidence, that Lucien 0. Sadler held peaceable possession of said slave for eight or ten years before his death, and that the defendant had previously owned said slave, and was in the country during all that time, and set up no claim to said slave, it is a circumstance from which they may presume a sale to the said Lucien O. by the said defendant. {Given.)

13. “That if they believe, from the evidence, that the defendant got possession of said slave after the death of the said Lucien O., and exercised acts of ownership over said slave, and claimed him as his own property, without the consent of the plaintiffs, it was a conversion of said slave, and it was not necessary for the plaintiffs to make demand of the said slave from the said defendant previous to the institution of this suit.” {Given.)

The plaintiffs excepted to the decision of the court, refusing to give such of the above instructions as were not given as asked.

At the instance of the defendant, the court instructed the jury as follows, and plaintiffs excepted :

2. “ That if the jury believe, from the evidence, that Lucien 0. Sacller, deceased, did not bold the quiet and peaceable possession of the slave Ben up to tlie time of bis death, but bad surrendered possession prior to bis, tlie said Lucien’s death, the plaintiffs cannot recover in this action upon length of possession.

3. “That when the admissions of a party are introduced in evidence, all he said in the same conversation is evidence before the jury, as well wliat he said in his own favor as against him.”

The motion for a new trial was based upon the several exceptions taken by the plaintiffs, as above noticed, as well as that the verdict of the jury was contrary to law and evidence, &c.

The statute which is relied upon by the plaintiffs, as supporting the title of their intestate to the slave in controversy, is as follows:

Section 3. “ The peaceable possession of slaves, acquired after the passage of this act, for tlie space of live years, shall be sufficient to give the possessor the right of property thereto, as against all persons whatsoever, and which may be relied on as a complete bar to any suit in law or equity.

Section 4. As to slaves now held by any jiersoD, and heretofore acquired, five years peaceable possession thereof, from and after the passage of this act, shall be sufficient to give the possessor such right of property against all persons, and constitute such bar as in the preceding section specified.

Section 5. “The two preceding sections shall not be construed to extend to cases of the possession of slaves, where such possession is held under and by virtue of a deed, or any other instrument of writing from the owner, duly acknowledged and recorded in the county where such slaves are possessed or held.” (.December 19, 1846,) Digest, chap. 153, p. 943.

There are several cases upon the docket of this court involving the consideration of this statute; and, in some of them, counsel have taken the bold ground that the court should disregard, and hold to be null, void and inoperative,' what are supposed to be rigorous and unjust features of the statute. It may be remarked, once for all, in response to such arguments, that the power of the Legislature to pass laws limiting the time in .which actions shall • be brought, and controversies about the title to \. roperty shall be at repose, so that all existing remedies be not cut off eo instanti, is now too well established to admit of question. 2 Story’s Com. on Const., Sec. 1385, and authorities cited. The power being conceded, the question of policy is not for us to consider. It must be presumed, that the Legislature, in its wisdom, passed the act, to remedy some prevailing mischief, and that the welfare of the community required its enactment. Our business is to construe and administer the law as we find it upon the statute book.

The third and eleventh instructions moved by the plaintiffs, and refused by the court, are substantially the same: and the two given by the court, in lieu thereof, do not materially differ.

The plaintiffs proposed that the court should charge the jury, that if their intestate had five years adverse peaceable possession of the slave, it gave his administrators a i iglit to the slave against all persons, unless such possession was held under and by virtue of a deed, &c., from the owner, duly recorded, &c. The object of this instruction, doubtless, was, that the court should declare that the only exception from the operation of the statute, was, that provided for in its fifth section.

But the court charged the jury that if Lucien 0. Sadler had five years peaceable adverse possession of the slave, it gave his administrators a right to the slave against all persons. Thus the court charged the jury in a form more favorable to the plaintiffs than they asked. They proposed to make one exemption from the operation of the statute, but the court made none. If the court erred in this, it was in their favor, and they have no grounds of complaint.

But it was not necessary for the court to declare in this case, under the state of the evidence, that no exemption from the operation of the statute could be made other than that provided •for in the fifth section, even if that were the law: such a charge would have been abstract. Because, it appears from the evidence, that during the whole period in which Lucien 0. Sadler was in possession of the slave, the defendant was in full life, and rested under no disability to assert bis claim to the negro. The rights of married women, infants, persons beyond seas, non compos men-tis, &c., such as are frequently, upon the face of the enactments, exempted from the operation of the acts of limitation, do not appear to have been, in any way, involved in this case. Nor does it appear that there was any fraud, concealment, or trust oil the part of Lucien 0. Sadler in connection with the possession of the slave.

The instruction, therefore, given by the court, was as broad as the facts of the case required it to be.

No substantial objection is perceived to the eighth and ni/nth instructions moved by the plaiptifts, and refused by the court. But their substance is embraced in the fifth, sixth, and thirteenth instructions, which were given by the court. A multiplication of instructions, announcing, in effect, the same legal principle, tends only to encumber the record, perhaps to confuse the jury, and is not to be encouraged.

The instructions given by the court at the instance of tpe defendant are next to be considered.

The substance of the second instruction is, that if the jury believe, from the evidence, that, plaintiffs’ intestate did not hold possession of the slave up to the time of his death, but had surrendered possession to the defendant prior thereto, the plaintiffs could not recover upon length of possession.

The substance of the proof was, that Lucien 0. Sadler obtained possession of the slave about the year 1839 or 1840, from the defendant, and kept him in his possession until within two or three months before his death, a period of some thirteen years, during all that time claiming and controlling him as his own property, the witnesses knowing of no other person setting up any claim to hmr.

It is beyond question, that such possession, by virtue of the statute above copied, vested in Lucien 0. Sadler a perfect legal title to the slave. Had the defendant, after such lapse of time and adverse holding, brought suit against him for the slave, he could liave relied upon tbe statute as a bar to tbe action. Or bad tbe slave been deforced from bim, be could have maintained an action for bim, relying upon tbe length of possession, under tbe statute, for title. That sucb is tbe effect of tbe statute, is well established by adjudicated cases, of tbe highest authority. See Calvert vs. Lowell, 5 Eng. R. 151; Brent vs. Chapman, 5 Cranch 358; Shelby vs. Guy, 11 Wheat. 361; Newby's ad. vs. Blakey, 3 Hen. & Munf. 57; Lessee of Haltzarpple and wife vs. Phillibaum, 4 Washington C. C. R. 357; Bradstreet vs. Huntingdon, 5 Peters 403; Cook vs. Wilson’s ad. Littells’ Select Cases 437; Stanley vs. Earl, 5 Littell R. 280.

Tbe title of Lucien O. Sadler to tbe slave being thus vested and perfected, whether a voluntary surrender of bim to tbe defendant, would have been an abandonment of tbe title, so as to preclude bis administrators from recovering tbe slave again, it is not necessary now to decide. There was no proof of any sucb surrendering of tbe slave to the defendant. One witness stated that be saw tbe slave in possession of tbe defendant some two or three months before tbe death of Lucien: that be continued in tbe defendant’s possession until tbe occurring, of tbe last illness of Lucien, and was then sent by tbe defendant to wait upon bim, and remained with bim until he died. How tbe defendant obtained possession of tbe slave, does not appear from tbe evidence. It could only be matter of conjecture. But, in tbe absence of proof to tbe contrary, tbe presumption of law would be, that bis possession was consistent with the title of Lucien, unless tbe possession bad continued so long as to divest bis title under tbe statute of limitations.

It follows that tbe second instruction, given at tbe instance of tbe defendant, was not warranted by tbe testimony — that it was abstract, and may have misled tbe jury.

Tbe third instruction given by tbe court, at the instance of tbe defendant, was probably based upon that portion of John Haines’ testimony, in which be stated that at some time while Bon was in defendant’s possession, tbe negro passing tbe door, Duncan asked defendant, whose negro he was ? To which defendant replied that he belonged to him, and always had.

Perhaps this declaration of the defendant was introduced by the plaintiffs (if by them introduced) to conduce to show such conversion as would dispense with proof of demand before suit.

If introduced by the plaintiffs for their purpose, it would also be evidence in favor of the defendant for what it was worth. But in determining its value, the jury should compare its consistency with the other testimony in the cause, and so form their opinion of the weight to be attached to it. Gracie vs. Robinson, 14 Ark. 4411 Greenleaf Ev., sec. 201. The third instruction should have been thus qualified.

The j udgment is reversed for the errors above indicated, and the cause remanded with instructions to the court below to grant the plaintiffs a new trial, &c.


author: Mr. Chief Justice ENGlisii

text:
    Halliwell ad. vs. Spring ex.
    Where a question of variance arises upon the formation of a letter, this court will not overrule the finding, upon inspection, of the court below, upon an attempted fac simile by the clerk.

      Appeal from Sebastian Circuit Court.

    I-Ion. Felix J. BatsoN, Circuit Judge.
    S. H. Hempstead, for the appellant.
   Mr. Chief Justice ENGlisii

delivered the opinion of the Court.

Spring, as the executor of Ailes, brought an action of assump-sit, in the Sebastian Circuit Court, against Iialliwell, upon a note alleged to have been executed by him to Ailes, in his life time. The defendant craved oyer of the note sued upon, which was granted by filing the original, and he demurred for an alleged variance ■ between it, and that described in the declaration. The court overruled the demurrer, and the defendant resting, final judgment was rendered against him, and he appealed to this court. Afterwards, his death was suggested here, and his administratrix substituted.

The question of variance grew out of the manner in which the first letter of the sux-name of the payee in the note was formed. The declaration makes it an A-Aiies: and the counsel for the appellant insists, that in the note, it was an IT -Hiles. The clerk, in transcribing the note, to send up to this court, has attempted to make a fae simile of the original letter. How well he has succeeded, we are not able to determine. The letter which he has made, however, if it may be called a letter, looks as much like an A as an H. The court below had the original before it; and, upon inspection, determined it to be an A, and that there was no variance. It would not be very safe for us to overrule its judgment, upon a copy made by the clerk. The judgment is affirmed.


author: Mr. Chief Justice ENGLISH

text:
    Wilson vs. Brandenburg.
    It is error to render judgment against the defendant, by default, where the original writ has been quashed, and he has not been served with other process, nor has voluntarily appeared — the prosecution of a writ of error, to such judgment, is an appearance.

      Error to Monroe Circuit Court.

    The Hon. Ciiaeles W. Adams, Circuit Judge.
    Watkins efe Gallagher, for plaintiff,
    referred to Borden et al. vs. Trustee B. E. Banh, 6 Eng.

   Mr. Chief Justice ENGLISH

delivered the opinion of the Court.

Brandenburg brought an action of trover against Wilson, to the April term, 1854, of the Monroe Circuit Court. At the return term, upon motion, the writ was quashed, the cause continued, and an alias writ ordered. It does not appeal’, from the record before us, that any writ was afterwards issued. At the next term, a default was taken against defendant, on his failure to appear, a writ of inquiry executed, and final judgment rendered for the damages assessed by the j ury. The defendant brought error.

When the original writ was quashed, the defendant went out of court, and no judgment could regularly be rendered against him, until he was again served with process, or voluntarily entered his appearance. The judgment, by default in this case, was therefore erroneous, and must be reversed. According to the well established rule, however, the defendant has made himself a party by prosecuting the writ of error, and will be regarded as in court, on the case being remanded.


author: Mr. Justioe Soott

text:
    Grimes ad. vs. Bush.
    Upon an ajipoal from the Probate, to the Circuit Court, the presumption of law is in favor of tho Judgment, as to the facts upon which it is based, where nothing' to the contrary is shown, as to the evidence, by bill of exceptions. But where that court has erred in relation to any material question of law or fact, the Circuit Court should try the ease do novo.

    Upon application to the Probate Court, for allowance of a claim against tho estate of a deceased person, wliiehhasbeenrejected by the administrator, a plea, thatthe claimant had not delivered to the administrator a copy of the claim, before or at the time of its presentation, is a good defence: and such plea need not allege that the administrator did not waive or dispense with the copy.
    The administrator may waive tho copy required by the statute; but the facts and circumstances going to show such waiver should, legitimately, be brought forward by . the claimant, and whether they amount to a waiver of the copy is a matter of fact to be determined by the jury.

      Appeal from Sebasticm Ovrouit Oourt.

    The Hon. Felix J. Batsox, Circuit Judge.
    S. H. Hempstead, for the appellant.
    A copy of the claim, not having been served, on the administrator, the judgment, according to Borden vs. Fowler, 14 Arle. 474, must be reversed.
   Mr. Justioe Soott

delivered the opinion of the Oourt.

This cause originated in the Probate Court of Sebastian county, where Grimes, as administrator, appeared in January, 1855, in pursuance of notice under the statute, to contest the allowance of an alleged claim of Bush against the estate of his intestate. The claim was a money demand, the open account for which was regularly authenticated, and upon it was endorsed, over the signature of Grimes as administrator: “Examined, 'disallowed, and rejected, 5th day of November, 1853.”

When Bush presented the claim to the court for allowance, Grimes pleaded, in apt time and due form, that Bush had never delivered to him, before or at the time of the presentation of the claim, a copy thereof, setting forth each item distinctly, and prayed the proceeding might be abated.

Bush demurred upon the grounds: 1st. That the plea does' not allege that defendant did not waive and dispense with his right to such copy. 2d. That it does not allege that he refused to allow or disallow the account for the reason that no such copy was delivered to him. 3d. That it does not allege that defendant ashed for, or required any such copy, or refused to take any action in regard to the claim, because such copy was not delivered to him. 4th. That it does not allege that defendant refused to endorse his disallowance, and did not endorse it on the bach of said claim for the reason that such copy was not delivered to him.

The demurrer was sustained, and the defendant refusing to plead over, the court heard the evidence adduced, and allowed and classed the claim.

The defendant tooh a bill of exceptions, not only as to the decision of the court on the demurrer, but also, “ because the court erred in allowing plaintiff’s account of $280 against the defendant,’’and appealed to this court.

According to the provisions of the statute, the clerh of the Probate Court certified into the Circuit Court, not only a transcript of the record and proceedings relating to the points decided on the demurrer, but also that, together with the original papers relating to the claim allowed — that allowance having been also specifically excepted to. There is nothing in the bill of. exceptions relating to the evidence. Upon the hearing, the Circuit Court found no error in any of the matters embraced by the exceptions, and affirming the judgment of the Probate Court, Grimes appealed to this court.

We think it clear enough that the Circuit .Court decided right as to so much of the case presented, as relates to the action of the Probate Court as followed the sustaining of the demurrer, if that action could be disconnected and considered without reference to that part of the case covered by the demurrer; because, independent of the affirmative statement in the record, that the court “ heard the evidence adduced ” by the claimant, the presumption, which the law universally indulges in favor of a judgment until the contrary is made to appear, would have been ample support— the defendant having shown nothing, as to the evidence, by liis bill of exceptions, to the contrary.

But the statute is imperative, thatif the Probate Court has erred in relation to any material question of “ law or fact,” the Circuit Court shall try the case, de novo — hence, although that court may have been of opinion that, upon the whole case embraced by the exceptions, justice had been done, although material error of law had intervened, it was inhibited by the statute from an af-firmance, and ought to have tried the case anew.

With regard to the demurrer, we are of the opinion that none of the objections taken to the plea -were good. Such matters as are embraced in these objections, as well as a multitude of other facts and circumstances, of which one might conceive — might be legitimately brought forward by the claimant, upon the determination of the matter of fact, whether or not the defendant had dispensed with, or waived the statutory copy: but it is not necessary that the defendant pleading the want of the copy should embrace them in his plea.

In any such case, whether or not the facts and circumstances shown in evidence, amount to a waiver of the copy, is matter of fact to be determined by jury, like other matters of fact in analogous cases, as in waiver of notice by an endorser in the law merchant, and in tender, &c. As was remarked in the case of Borden vs. Fowler adm., 14 Ark. 474, the provision of the statute for the copy was evidently designed to afford an executor or administrator such information as would enable him to act advisedly in allowing or refusing to allow a claim presented against the estate of his testator or intestate, and in case he allowed it, to place in his possession accurate data for the list of claims he is required to keep, and for their classification and return into the Probate Court annually under the provisions of the administrative law. Digest, p. 128, sec. 98.

Hence, where the representative of an estate has had a fair and convenient opportunity to examine the original, no violence is done to the spirit of the statute, by the finding of a waiver of the copy by a jury, upon slight grounds shown in evidence.

Holding the objections taken to the plea to be untenable, as we have said, wo think, on that ground, that the Circuit Court •ought to have heard the case de novo. The judgment will, therefore, be reversed, and the cause remanded, with instructions to the Circuit Court to permit the claimant to withdraw his demurrer, and otherwise respond to the plea, and to hear the case de-/novo, and determine it according to law,,


author: Mr. Justice ITakly

text:
    Owens use of Wallace vs. Chandler.
    Upon, a plea of payment to an action upon a specialty or record, the burden of proof is upon the defendant; and, under such plea, he may prove the payment of a less sum than that claimed in tlio declaration, by way of reduction of the debt or recovery.
    The law does not warrant the giving of instructions presenting abstract questions,- as to which there was no evidence introduced from which the jury could have been authorized to infer the fact assraed in the instructions.
    The payment of a. debt, no matter by whom effected, whether by the debtor, or his agent, or a stranger, can bo nothing more or less than its extinguishment as a demand.
    Under the plea of payment, evidence of accord and satisfaction, is inadmissible: and it is error in the court to instruct the jury, on the trial of an issue to such plea, that if they believe, from the evidence, that the plaintiff had received such satisfaction, or that he had received any sum in satisfaction of Iris debt, they must find for the defon • dant.

      Appeal from the Circuit Gowi of Hempstead County.

    The Hon. Thomas Hubbaed, Circuit Judge.
    S. H. Hempstead, for tbe appellant.
    A payment made by a stranger, without the consent of thé defendant, and where there is no privity of contract, cannot amount to an extinguishment of a judgment. To produce that result, it must be made by the defendant, or with his authority and consent, express or implied.
   Mr. Justice ITakly

delivered the opinion of the Court.

The appellant, on the 14th day of September, A. D. 1854, commenced his action of debt in the Hempstead Circuit Court, on a ¡transcript .of a judgment recovered in his favor against the ap-pellee, in the Circuit Court of Benton county, Alabama, at its spring session of 184-5.

It appears from the record sent up to- this court, that the ap-pellee in the court below, interposed the plea of payment, as his only defence, and that issue was made up on this plea; that this issue was tried by a jury ; that they found the issue for the ap-pellee ; that judgment was rendered on the yerdict, and in conformity therewith. It also, appears, that all the evidence introduced, at the trial, was the testimony of a single witness on the part of the appellee, one Emory Chandler, who testified, that he was well acquainted with both the parties to this suit; that he first knew them in Alabama; that the appellee left that State some five or six years since, and removed to this ; that he also knew of the appellant bringing a suit against the appellee in the Circuit Court of Benton county, Alabama, and of his recovery of judgment therein ; that he had been informed, from some source or other, that execution was issued on the judgment so recovered, and returned by the sheriff “no property found/’ that suit had been brought or motion for judgment made against the sheriff of Benton county, Alabama, for not making the amount of such execution ; that after this, he heard the appellant say, that the sheriff of Benton county “had paid him one hundred dollars on account of the judgment sued on in this case, and that he was satisfied.” To so much of which statement as pertained and applied to the payment of the one hundred dollars, under the pleadings in the cause, the appellant objected at the time, and his objection thereto being overruled, he excepted.

On this state of facts and the case, the appellant moved the court to instruct the jury:

1st. That if they believe, from the evidence, that the sum of one hundred and thirty two 52-100 dollars, with 6 per cent, interest thereon from the 20th day of October, A. D. 1845, has not been paid in full, then they must find for the plaintiff.

2d. That if they believe, from the evidence, that there was no privity between the sheriff of Benton county, Alabama, and the defendant, and thattbe payment by tlie said sheriff, of one hundred dollars to the plaintiff, was to relieve himself from the penalty of official neglect, they must find for the plaintiff.

3d. That unless the defendant has proven that the defendant or some agent for him, paid or satisfied the said sum of one hundred and thirty two 52-100 dollars, with 6 per cent, interest from the 20th October, 1815, then they must find for the plaintiff.

And the counsel for the appellee also desiring instructions, asked the court to give the following :

1st. That if the jury believe, from the testimony, that the plaintiff, John A. "Wallace, for whose use this action was brought, received payment and full satisfaction of said judgment, they must find for the defendant.

2d. That if the jury believe, from the evidence, that the said plaintiff, Wallace, acknowledged that ho had received satisfaction of said judgment debt from any person, at any time since its rendition, they will find for the defendant.

3d. If the jury believe, from the evidence, that the said Wallace received any sum from any person, whatsoever, in satisfaction of said judgment, they must find for the defendant.

The appellee asked for two other instructions, which were refused by the court; but, as they are not involved in the bills of exceptions or assignments of error, we will not set them out, or notice them further.

The first and third instructions as -asked for by the appellant, were given, and the second one refused.

'The appellant objected to all the instructions asked for by the appellee ; but the court gave the first, second, and third, as above. To the giving of which instructions, on the part of the appellee, and refusing to give the second one asked for by the appellant, he excepted and appealed to this court for redress; and he now assigns four causes wherefore the judgment of the Circuit Court should be reversed, that is to say :

1st. That the court, on the trial, permitted Emory Chandler, a witness of the defendant, to give incompetent and improper evidence against the objection of the plaintiff.

2d. That the court refused the second instruction asked for by the plaintiff.

3d. That the court gave in charge to the jury, the first, second, and third instructions asked for by the defendant.

4th. That the said judgment was rendered for the defendant, when by the law of the land, such judgment should have been given for the plaintiff.

Having thus given as full statement of the case, and the facts of it, as will make our views of the law presented by the record intelligible and understood, we propose, without further remark, to proceed to the consideration of the several errors assigned, in the order in -which they are assigned.

As to the first error, then, did the court below err in permitting Emory Chandler, the witness for the appellee, to testify in the manner shown ?

To determine this, we have to look to the issue tried in the Circuit Court, and consider what evidence was necessary and material. The issue tried was upon a formal and technical plea of payment; and was, therefore, responsive to the demand set out and claimed in the declaration. The defence, of payment, may be made under the general issue in assumpsit; but, in an action of debt, on a specialty or record, it must be specially pleaded. In either case, however, the burden of proof is on the defendant, who must prove the payment of the money, or something accepted in its stead, made to the plaintiff or some person authorized in his behalf to receive it. Sec 2 Greenl. Ev., 491, sec. 516.

It was, therefore, of course, material for the defendant in the case at bar, to prove payment of the sum demanded, in some one of the modes known to the law. It is insisted, however, by the counsel for the appellant, that the testimony oí the witness, Chandler, was immaterial for the reason, that it did not go to the support of the issue to the full extent. Let us examine this point, therefore, and determine whether this argument of the appellant is not based upon premises unwarranted by both the letter and spirit of the law. As we before remarked, (and we believe it is a jirinciple of universal application,) every plea must be a full and complete answer or response to tbe entire declaration. Tbis, tbougb, is a rule, which is alone applicable to pleading in a technical sense. The question at hand is one which does not grow out of pleading, but is wholly one involving the principles and law of evidence applied to a particular state and condition of pleading. In this view, then, we propound, is it competent to prove partial payment under an issue of full payment ? We apprehend there can be no doubt, that if payment of the whole sum demanded is pleaded, but the proof is of the payment of part only, the defendant is entitled to the benefit of the evidence byway of reduction of the debt or recovery, if the action was debt, and of tlie damages, if tbe action was one sounding in damages. See Lord vs. Ferrand, 1 Dowl. & L. 630; 2 Greenlf. Ev. 491, note 1.

Apply tbis principle, tlien, to tbe testimony of Chandler, and we conceive it clear, that it was material for the appellee ; and was, therefore, correctly and properly admitted by tbe Circuit Court against the objections of the appellant.

Having thus disposed of the first error assigned by the appellant, we will proceed to the consideration and determination of the others, in the order in which they are respectively presented.

It is insisted by the counsel for tbe appellant, that the Circuit Court erred in refusing to give the second instruction asked by Mm. We are at a loss to divine tbe principle of law which would have authorized tbe court below to liave given this instruction,.for tbe reason that we esteem it as presenting an abstract question, not warranted by the rules of law in such cases, as there was no evidence whatever introduced, from which the jury could have been authorized to infer that tbe payment of tlie one hundred dollars, proved to have been made by tlie sheriff of Benton county, Alabama,-to Wallace, was made on account of the suit or proceeding supposed to be instituted against him for official neglect to make the money out of the appellee. But we apprehend the effect of the payment by the sheriff of Benton county, could not be changed in the slightest degree, whether it proceeded from the cause assumed, or from the fact of his relation, to the appellee, as agent, constituted for the purpose of payment: for payment of the entire debt to the appellant, or his agent, whether by the appellee or a stranger, would be an extinguishment thereof, as between the original creditor and debtor. See 1 Saunders on Plead. & Ev. 618; Tarver vs. Rankin, 3 Kelly’s Rep. 214; Harrisons vs. Hicks, 1 Porter's Rep. 430.

The proposition that a debt, as between the debtor and creditor, can. only be discharged by the payment by the debtor, or his agent, is a palpable solecism ; for we are clear that the payment of a debt, no matter by whom effected, can be nothing more or less than its extinguishment as a demand, notwithstanding the concession, which we think proper to make : i. <?., that the payment of a debt, by a stranger to the debtor, might not and vmuld not possibly create and constitute the original debtor, a debtor to the volunteer. But as this point is not fairly and fully before us, in the case at bar, we do not desire to be understood as expressing any settled or ■ fixed opinion in relation to it, as upon deliberation hereafter, when the point is more thoroughly presented, we may have occasion to qualify or recede from the opinion already indicated on this point; and besides this, it is not our purpose to anticipate any question, but simply to decide those that legitimately arise in those cases under adjudication.

We have said there is no evidence in the record, from which the jury conkl have possibly inferred that the payment of the one hundred dollars, by the sheriff of Benton county, was made on account of any dereliction of duty on 1ns part, for it is not stated by the witness, Chandler, that such was the fact; but, on tbe contrary, that witness distinctly stated that Wallace told him that the payment of the one hundred dollars was made him “on account of the judgment, the foundation of this action.” But we are not left to this alone, as the basis of the conclusion to which we have reached on the subject, for on inspection of the transcript from the record and proceedings had in Alabama, copied in the record sent to this court, no execution is shown to have ever been issued on the judgment rendered in Alabama. We are, therefore, bound to infer, that the statement made by the witness, Chandler, to the effect, that suit had been brought or motion made against the sheriff of Benton county, on account of official neglect in making the money out of the appellee, was predicated on gossip, or the idle talk of those who spoke without accurate knowledge in reference thereto. We think, therefore, there is no error in the proceedings of the Circuit Court, on account of the refusal of the judge to give this instruction.

This brings us, in due course of investigation, to the consideration of the third error assigned by the appellant. Did the court below err in giving the first, second, and third instructions asked for by the appellee? As to the first, we think, clearly not. But, as to the second and third, we are of the opinion that the jury may have been, and probably were, misled by the directions and instructions of the court.

The word, “payment,” used in these instructions, is not a technical term : it has been imported into law proceedings from the exchange, and not the Law Treatises. When used in pleading, in respect to cash, it means immediate satisfaction : but when applied to the delivery of a bill, or note, or other collateral thing, it does not necessarily mean payment in immediate satisfaction and discharge of the delot; but may be taken in its popular sense, as delivery only. See 2 Greenlf. Ev. 491, sec. 516. Payment, therefore, means one thing, and satisfaction, or accord and satisfaction, another; each being understood and comprehended by the professional reader, in its proper and appropriate sense. Accord means the tendering of something of value in discharge of a pre-existing debt or liability. It is, therefore, executory, and is not executed until the tender is accepted, when the accord, eo-instanti, becomes satisfaction; or, in other words, a virtual acknowledgment of a discharge of the debt or liability. See 2 Greenlf'.s Ev. 28, et seq.

The issue in the court below, presents one state of facts, an<J tlie testimony adduced on the trial, illustrates another and different one. Payment was pleaded and the proof shows that the payment made was not a satisfaction of the debt demanded; because, a debt is not paid or satisfied until it is discharged, in eo numero. Payment, in part, is only a part discharge from the demand, when fully pleaded : whilst, if accord and satisfaction had been pleaded, and a lesser amount proved to have been delivered before the day, or at a different place than the one fixed for the payment of the debt originally, an acceptance of a lesser amount than the sum really due, would unquestionably be held a satisfaction of the greater debt or amount.

In the case under consideration, payment was the plea, an.d evidence of accord and satisfaction introduced. Can such proof,, in the latter ease, be received and accepted to maintain and sustain the issue in the former? "We unhesitatingly say not; and presume no instance or precedent can be found to establish the converse of this proposition. It is the payment of the debt in money, or propeiW accepted, in case such as the one under consideration, and not the acknowledgment of payment, which operates as an acquittance, or discharge from the obligation of indebtedness; for an acknowledgment of payment is but affording evidence of the payment; whilst payment, technically speaking, is tlie-act itself, which produces the effects incident to it, and which we have enumerated and stated. This, therefore, disposes of the third assignment of errors, so far as it relates to the second instruction asked for by the appellee, and given by the court, at the trial below, which we say, for the reasons before indicated, was an improper direction to the jury.

In determining the third assignment of errors, as far as it relates to the second instruction asked for by the appellee, and given by the court, we have, in a great measure, determined that assignment, so far as it pertains to the third instruction asked for and given to the jury at the instance of the same party. To say that if Wallace, the appellant, had received “any sum from any person in satisfaction of the judgment ” sued on, it would amount to a payment, we are satisfied is going farther than the learned counsel for the appellant would seriously insist upon, or the law at all warrant; for, as we have before stated the law to be, payment must be co-extensive with the debt in amount, and the payment of a lesser amount will not do, except for the purpose of diminishing the recovery. To have made the proof, therefore, in this case available to the appellee, he should have interposed the plea of accord and satisfaction; and possibly his third instruction, as given by the court, might have been applicable to the proof and issue; particularly, if the accord had been tendered and accepted before the day, or at a different place than that appointed for the payment of the debt in the original contract. We, therefore, hold that this instruction, like the second, was improperly given by the Circuit Court; and as the verdict was for the ap-pellee, upon the two erroneous instructions on his part, we are constrained to intend that the jury would not have so found if the law had not been mistated to them, as before shown. Wherefore, the judgment of the Circuit Court of Hempstead county is reversed.