author: Mr. Chief Justice English

text:
    Roberts et al. vs. Randolph.
    The plaintiff or his attorney may, -under our statute, dismiss, in vacation, any suit pending in any of the courts of this State, except in actions of replevin; but he cannot, by an order to dismiss an attachment suit, relieve himself of the costs incurred in preserving the property attached, where the sheriff cannot deliver such property to the owner and relieve himself from responsibility; and this court will not interfere with the discretion of the Circuit Court in allowing the sheriff Ms reasonable costs incurred in the preservation of the property under such circumstances.

      Appeal from the Oi/rcidt Oourt of Desha Ooxvaby.

    Hon. Tiieodoric E. Sorrells, Circuit Judge.
    GRACE, for tbe appellant.
    CummiNS, contra.
   Mr. Chief Justice English

delivered the opinion of the Court.

The transcript in'this case shows that, on the 3d of September, 1852, Roberts & Co. caused to be issued from the office of the clerk of the Circuit Court of Desha county, a writ of attachment against the steam boat General Shields, having filed an affidav it that the boat was indebted to them in the sum of $834 03, and executed a bond as require# by the statute.

Randolph, the sheriff of the county, returned upon the writ, that, on the 4th of the same month-, he executed it by seizing and taking into his possession, the boat, her machinery, tackle and furniture, &c., and by reading the writ to William R. Rice, who was captain of the boat, and in charge of her at the time, &c., and that he, Randolph, had kept the boat, and still had her in his possession, and under his charge.

At the return term of the writ, on the 19th October, 1852, it appears that óne Clark appeared on behalf of the boat, and filed .a motion to quash the proceedings in the attachment suit for irregularities, and to dismiss tlie cause ; which, motion the court sustained, and rendered judgment against the plaintiffs for costs.

At the same term Randolph, thejsheriff, made an application to the court to allow and tax in his favor, against Roberts & Co., the plaintiffs’ in the attachment suit, and as part of the costs therein, the following bill:

“To bailing and attention to the steam boat GENERAL

Shields, from the 4th day of September, 1852, up to the

19th October, 1852, inclusive, 45 days, at $5 50 per day, $ 247 52

Removing the Shields to a safe place of keeping, 10 00

Making $257 52”

Roberts & Co. resisted the application, and at a subsequent term of the court, t'he matter was heard and determined by the judge, on the following evidence, in substance :

Moon testified, that he was clerk of the court at the time the attacliment was issued. That, on the day after the boat was attached, one of the plaintiffs came to him, and directed him to dismiss the suit, and he told him he would do so. That, on the same day, or the day after, witness went to Randolph, the sheriff, and told him to release the boat, as the plaintiff had directed him, witness, to dismiss the suit.

That, if the plaintiff tendered witness the costs at the time he ordered the suit dismissed, he did not recollect it, but that the case was not kept on the docket because the costs were not paid, but merely because witness neglected to make the entry on the record.

That, on the day he told the sheriff, Randolph, to release the boat, witness saw Captain Rice, who had command of her before, and at the time she was attached, and he was willing to receive her back; but that, afterwards, he refused to receive the boat from the halnds of the sheriff. That, at the time witness conversed with Randolph about releasing the boat, and returning her to the owners, be told witness that be wonld make out vthe costs, and go down and see tbe plaintiffs, seeming to be willing to release tbe boat; but that afterwards Eice refusing to receive back tbe boat, Kandolpb declined to return, tbe writ or release tbe boat. Witness did not enter any dismissal of tbe suit, and it was not dismissed until court met, about 19tb October, 1852.

Mdlpass testified, that in tbe course of one or two days after tbe boat was attached be was called upon by tbe plaintiffs to witness a demand made by them upon Eandolph, to release tbe boat from tbe attachment. That, one of the plaintiffs pulled out of bis pocket a band full of gold, and told Eandolph, tbe sheriff, that be wanted to pay all costs up to that time ; and that be tendered him all bis costs in and about tbe attachment; and he wanted him to release tbe attachment, and not to bold tbe boat any longer; and that tbe sheriff refused to release tbe boat.

Mdmgton testified, that within two or three days after tbe boat was attached, at tbe request of tbe plaintiffs, be prepared and served a written notice upon Eandolph, to release tbe boat from tbe attachment, and return her to her owners. He also requested Eandolph to return tbe writ to tbe clerk’s office. .

Tbe above testimony was introduced on tbe part of Eoberts & Co., who also read in evidence tbe record of tbe proceedings in tbe attachment suit, and closed.

Eandolph introduced tbe following testimony:

Tilomas testified, that be knew tbe steamer GENERAL Shields at the time she was under attachment; that she was in a bad condition, and that Eandolph paid five dollars a day for taking care of her, during tbe time he bad her under tbe writ; and witness thought that it was worth that to take care of her. He knew that Eandolph paid one man $165 50 ; and divers other sums of money for taking care of her, but how much, be did not know. That tbe charge made by Eandolph for taking care of tbe boat, was reasonable.

Glarlc testified, that be was somewhat acquainted with the business of taking care of steam boats. That he knew the Shields while 'Randolph had her under the attachment, and from her condition, he thought $5 50 per day was a reasonable charge for taking care of her.

Roberts & Co. asked the court to declare the law to be, that they had a right to dismiss the attachment suit, on making a tender of costs, at any time they pleased; and to direct the release of the boat and the return of the writ, on tendering the costs to the sheriff; and he was bound to obey such direction ; and if he refused so to do, he could not hold plaintiffs bound for costs after such, refusal.

But the court declined soto decide, and held that until the case was regularly dismissed, the plaintiffs had no right to direct the sheriff to release the property.

And the above being all the evidence introduced by the parties, the court found in favor of Randolph; and ordered to be taxed in his favor $182, against the said plaintiff in the attachment-suit, and as part of the costs therein, &c.

Roberts & Co. moved the court for a new trial, which was refused .and they excepted, and appealed to this court.

For sale keeping property seized under legal process, a sheriff is entitled to such foes as the court, out of which the process issued, shall deem reasonable. Digest, chapter 68, section 8, page 520.

In Irvin vs. The Real Estate Bank, 5 Ark. Rep. 30, this court held that the allowance of fees for keeping property taken in attachment was a matter left (by the above statute) to the discretion of the Circuit Court; and when the Circuit Judge, in making such allowance, has all the facts before him, and the question involves no principle of law, this court cannot disturb his decision.

I he plaintiff, or his attorney, may dismiss any suit pending in any of the courts-of this State, except actions of replevin,-in vacation, in the office of the clerk, on the payment of all costs that may have accrued therein. Dig., chap. 126, sec. 134,p. 817.

' Here, the plaintiffs directed the clerk to dismiss the suit, bin it was not done. They did not pay, or offer to pay, the clerk his costs, but he did not on that account, decline to dismiss the suit. He merely neglected to clo so. He perhaps was willing to look to the plaintiffs for the payment of his costs afterwards. As between him and the plaintiffs, therefore, the suit may be regarded as virtually having been dismissed.

The clerk told the sheriff that the plaintiffs had directed him to dismiss the suit, and that he could release the boat. The plaintiffs -repeatedly directed the sheriff to release the boat, and return the writ, tendering him his costs. But what was the sheriff to do with her? The testimony shows, that Nice, the captain, who had charge of the boat at the time she was attached, refused to receive her back from the sheriff, and the. plaintiffs failed to prove that there was any other person, to whom the sheriff could have surrendered her, or that they notified her owners, or any person authorized to act for them in the premises, of their desire to release the boat. The sheriff had no right, under these circumstances, to set her adrift, or abandon her.

"When the court met, it found the attachment suit on the docket, and on a motion interposed on behalf of the owners of the boat, quashed and dismissed the suit at the plaintiffs’ costs. The court found, also, that the plaintiffs had sued out the attachment, and caused the boat to be seized and taken out of the possession of those in charge of her; that in a few days afterwards, they .had concluded to abandon their suit, but for what cause does not appear. That they had directed the clerk to dismiss the suit, but it had not been done. That they had directed the sheriff to release the boat, but failed to show that there was any one, into whose care he could have delivered her, at the risk and costs of the owners ; and that he kept her under his own charge, and at his own expense, until the meeting of the court, the return term of the writ. Under these circumstances the court, in the exercise of the sound discretion entrusted to it by the law, in such matters, taxed the plaintiffs with what it deemed the reasonable expenses incurred by the sheriff in keeping the boat, and we do not feel warranted in disturbing its judgment. Affirmed.

Absent, Mr. Justice Soott.


source: Caselaw Access Project

author: •Mr. Chief Justice ENGLISH

license: Public Domain

text:
    Hill vs. Steel.
    Where a judgment, rendered by a justice of the peace, is brought into the Circuit Court by appeal, and that court adjudges that the appellant had lost his right of appeal by his own laches — as by permitting a judgment to be rendered against him by default, and failing to appeal within fifteen days — and dismisses the case, there is no mode provided by our law, by which the appellant can obtain a trial de novo.

    When a case, commenced before a justice of the peace, is brought into the Circuit Court upon certiorari, the court can only determine, upon inspection of the proceedings and judgment of the magistrate, whether they were valid, or irregular and void, and quash or affirm.
    A judgment would hardly be void, though the suit be commenced and prosecuted on a writing obligatory, executed to the wife in her life-time, whether the suit be properly brought in the name of the husband or not — or whether he should have sued as the representative of his wife — such objection should be made, if good, before the justice; and not in the Circuit Court, upon certiorari.

      Appeal from Johnson Circuit Cowrt,

    Hon. JohN J. CleNdeotN, Circuit Judge, presiding.
    May, for tbe appellant.
    CummiNS, contra.
   •Mr. Chief Justice ENGLISH

delivered the opinion of the Court.

Thomas Steel sued Mark Hill, before a justice of the peace of Johnson county, on a writing obligatory, for less than $100 executed by Hill to Elizabeth Steel.

The summons issued by the justice, required the defendant to appear &c., “ to answer the complaint of Thomas Steel, the surviving husband of Elizabeth Steel,” &c.

The defendant being served with process, the transcript of the proceedings before the justice shows, that on the day of trial, 15th July, 1S54, the plaintiff appeared by attorney, and the defendant appeared in person, but made no defence: and the judgment was rendered in favor of the plaintiff, for the amount due upon the bond sued on. That, on the first day of August, following, the defendant appealed to the Circuit Court of Johnson county.

The Circuit Court ordered the case stricken from the docket, for want of jurisdiction, on the ground, that the judgment of the justice was rendered against the defendant on default, and that he made no motion to set it aside within fifteen days thereafter, as required by the statute. See Digest, chap. 95, part 2, sec. 175.

Afterwards, upon the petition of the defendant, Hill, a transcript of the proceedings in the cause before the justice of the peace, was brought into the Circuit Court by certiorcvri, and on inspection thereof by the court, the judgment of the justice was affirmed, and Hill appealed to this court.

When the case was in the Circuit Court on appeal, the court having adjudged that Hill had lost his right of appeal by his own laches, and having dismissed the case, the judgment of the justice became final and absolute; and there was no mode provided by our laws, by which Hill could afterwards obtain a trial de novo.

When the cause was brought into the Circuit Court again upon c&rtiorari, the court could only determine upon inspection of the proceedings and judgment of the magistrate, whether they were valid, or irregular and void, and quash or affirm;

The justice of the peace, it affirmatively appears, had jurisdiction of the subject matter of the suit, it being a bond for the payment of a less sum of money than $100, and also of the person of Hill by due service of process. if

It is stated in the petition for the certiorm, that Hill executed the bond sued on, to Mrs. Steel, after her marriage with Steel, for money borrowed by him of her, before the marriage, and that the suit was brought by her husband after her death.

It is insisted that the husband had no right of action upon the bond, unless be bad taken out letters of administration, upon bis wife’s estate, and brought the suit as her administrator.

Whether this be the law or not, we need not decide. The proposition is based upon statements dehors the transcript of the proceedings and judgment of the justice. This was a matter which should have been interposed as a defence before the magistrate upon the trial.

If the legal title to the bond did not vest in the husband upon its execution to the wife, and if he had not the right to sue thereon, while she was living, or after her death, in his own name, the judgment would hardly be absolutely void, because he brought the action in his personal right, and not as her representative. See 1 Chit. PI. 31, 32.

We think the court below did not err in affirming the judgment of the justice, on inspection of the transcript. See Boothe vs. Estes, 16 Ark. 104. Affirmed.

Absent, Mr. Justice Soott.


author: Mr. Chief Justice Eh&lish

text:
    Zachery vs. Brown et al.
    ■The mater -of ahond, for the payment of money, has the whole of the day on which it falls due to pay it, and cannot he sued until the next day.

      Error to Jolmson Circmt Court.

    Hon. Felix J. BatsoN, Circuit Judge.
    May, for the plaintiff.
    OummiNS, for defendants.
   Mr. Chief Justice Eh&lish

delivered the opinion of the Court.

This was an action of debt, by petition, in the Johnson Circuit Court. The petition is as follows:

“Tour petitioners, Newton W. Brown and James B. Brown,merchants and partners in trade, trading and doing business under the name, style and firm of N. W. & J. B. 'Brown, the plaintiffs in this cause, state that they are the legal owners of a writing obligatory, against the defendant, Burr BE. Zachery, to the following effect:

$302 46. One day after date, for value received, I promise to pay to the order of N. W. & J. B. Brown, three hundred and two dollars and forty-six cents, with interest from the first day of January, 1855, at ten per cent, until paid: this 8th day of February, 1855. ' ’ •

B. H. ZACHERY, [seal.]

Yet the debt remains unpaid: therefore, they demand judgment for their debt, and damages for the detention thereof, together with their costs.”

The petition was filed and the writ issued on the 9th day qf February, 1855.

The defendant demurred to the petition, on the ground that the action was prematurely brought, the court overruled the demurrer, the defendant suffered final judgment to go for the plaintiffs, and brought error.

The bond bearing date on the 8th, and due and payable on the 9th of February, one day after date, the maker had the whole of the day on which it fell due, to pay it. He was not in default,, and there was no breach of his contract until the entire day had expired, without payment. He was not liable to be sued, therefore, until the next day.

It has been held, that the maker of a promissory note, (entitled by the law merchant to three days of grace,) is bound to pay it upon demand made at any reasonable bour of the last day of grace, and may be sued on that day if he fail to pay on such demand. Staples et al. vs. Franklin Bank, 1 Metc. 43; Wilson vs. William, 1 Nott & McCord 440; Greely et al. vs. Thurston, 4 Greenl. 479; Dennie vs. Walker, 7 N. H. Rep. 199.

In Osburn vs. Moncure et al., 3 Wend. Rep. 170, it was decided, on the contrary, that the maker of the note has the whole of the third day of grace to make payment, and cannot be sued until after the day passes, though demand upon the third day, and notice to an endorser of non-payment are good.

Be this as it may, it is agreed in all of the above eases, and in others cited, that the maker of a bond has the whole of the day on which it falls due to pay it, and cannot be sued until the next day. See, particularly, the case of Wilson vs. William, 1 Nott & McCord, 440, and authorities cited.

In this case, thé suit was prematurely brought, and the objection was properly taken by demurrer. 1 Chit. Pl. 443; Osborn vs. Moncure 3 Wend. Rep. 170.

The judgment of the court below is reversed, and the cause remanded, &c.

Absent, Mr. Justice Soott.


author: Mr. Justice HaNly

text:
    Keller vs. Vowell.
    A plea, that the note sued on was procured by the eovin and fraud of the plaintiff, without setting out the facts constituting the fraud, is bad on demurrer.
    The defence of partial want or failure of consideration, may be interposed to a note or bond, when the facts, constituting- the defence, are specially pleaded, or set out by way of recoupment, or as a bar to so much of the demand as may be thus answered. (Wheat, use dbe. vs. Dotson, *1 Eng. 708.)
    The defendant employed the plaintiff to purchase an improvement upon the public land; the plaintiff made the purchase, but fraudulently represented to the defendant, that he gave for the improvement, $100 more than its actual cost; the defendant gave his note, the one sued on, to the plaintiff, for a balance due him on the purchase, including the $100 so falsely represented to have been given for the improvement : Held, That there was a partial want of consideration to that amount, of which the defendant could take advantage by plea.

      Appeal from Poinsett Gvrewit Gowrt.

    The Hon. G-eoege W. Beazlby, Circuit Judge.
    Gramms, for-the appellant.

      W. Byees, for the appellee.
   Mr. Justice HaNly

delivered the opinion of the Court.

This was a petition in debt, on a promissory note, for the sum of $170, brought by the appellee against the appellant, in the Poinsett Circuit Court, to the October term, 1855.

The appellant, at the return- term of the writ, appeared and craved oyer of the note, and interposed three pleas in bar of the action, to wit :

1. That the note was procured by the covin and fraud of the appellee, and not otherwise.

2. That as to $100, part of the note, the appellant employed appellee to purchase an improvement on the public lands, from one Rickies, on his, appellants’ account, appellant giving him at the time $50, to be applied by biin to the payment for the improvement, and was to pay whatever additional amount appellee had to pay therefor. This purchase, appellee accordingly made for appellant, and fraudulently represented that he had given, or paid for said improvement, the sum of $220, or $170 over and above the amount, $50, advanced by the appellant, to contribute to the payment, when, in truth and in fact, the appellee only gave $120 for said improvement, or $70 more than the appellant had advanced. The plea further averring, that, relying upon the false and fraudulent representations, he gave his note, the one sued on, to the appellee for the said sum of $170, when it should not have been for but $70, being $100 more than it should have been, for which there was no consideration whatever.

3. This plea is, in effect, like the second one, which we have stated.

The three pleas were regularly sworn to by the appellant.

The appellee demurred to all three of these pleas, setting down as causes:

To 1st plea: That it did not set out the facts constituting the fraud.

To 2d and 3d pleas: 1st. That they only went to part of the consideration.

2d. That they set up matter cognizable in a court of equity.

3d. Because the pleas do not disclose any legal duty, on the part of the appellee, to represent the fact in regard to the true price paid for the improvement.

The demurrer was sustained to all three of the pleas: to which, appellant excepted, and refused to plead over, and final judgment was rendered for the appellee: from which appellant appealed.

The questions before this court upon the transcript, are, as to the sufficiency of the three pleas, above stated, which we will proceed to consider and determine in their order.

1. It is admitted by the counsel for the appellant, that this plea is clearly bad, and that the demurrer was properly sustained thereto, by the court below. "We do not, therefore, propose to consider the plea further. See Hynson et al. vs. Dunn, 5 Ark. Rep. 395.

2. and 3. By reference to our statement of these pleas, it will be observed, that they do not profess to answer the declaration, except as to $100, for which they allege there was no consideration superinducing the execution of the note to that amount, stating in a very clear and succinct form, the circumstances under which the note in question was made, and the facts showing and indicating the want of consideration as to the amount of $100, embraced in the note. The gravamen of the pleas is the fraud of the appellee, by which the appellant was induced to give to him his note for $100 more than he owed. The pleas assert, that the appellee assured the appellant, that he had paid Bieldes $220 for the improvement bought on account of the appellant ; when, in truth and in fact, he only gave Bieldes $120 for the improvement, of which amount he had paid appellee $50 in cash, at the time he engaged him to make the purchase, and averring that the note given should have only been for $70, instead of $170, the amount of the note sued on.

- In Wheat, use &c. vs. Dotson, 7 Eng. 708, this court, by Soott, Judge, (quoting from Withers vs. Green, 9 How. U. S. Rep. 226,) said: “It would seem, then, tobe fairly deducible 'from the reasoning of the English Judges, from the case of Barton vs. Butler, in 7 East, decided in 1806, to that of Poulton vs. Lattimore, 9 Barn. & Cres., ruled in 1829, that this defence, (alluding to the defence of a partial failure or want of consideration by recoupment,) would, by those judges themselves, be deemed permissible, whenever it could be alleged without danger of surprise, and consistently with safety to the rights of the parties: and it appears to be a deduction equally regular, that when notice of the defence was given, either by pleading or by other effectual proceeding, neither surprise nor any other invasion of the rights of the parties could occur or be reasonably apprehended. But, however the rule laid down by the English courts should be understood, it has been repeatedly decided by learned and able judges, in our own country, when acting, too, not in virtue of a statutory license or provision, but upon principles of justice and convenience, and with the view of preventing litigation and expense, that, where fraud has occurred in obtaining, or in the performance of contracts, or where there has been a failure of consideration, total or partial, or a breach of warranty, fraudulent or otherwise, all or any of these facts may be relied on in defence, by a party, when sued upon such contract: and that he shall not be driven to assert them, either for protection, or as a ground for compensation in a cross action.”

The same principles promulgated and established in this State, by this court, in the case of Wheat, use &c. vs. Dotson, have been not only acquiesced in, but reiterated by repeated adjudications since the decision in that case. So that it may be regarded now, as the settled and permanent law of this State, that the defence of partial want, or failure of consideration, may be interposed to a note or bond, when the facts constituting the defence, are specially pleaded or set out by way of recoupment, or as a bar to so much of the demand as may be thus answered. There can be no question or doubt of the propriety and expediency of this rule, saying nothing of its subserviency to “common justice, common consent, and common convenience.”

It seems to be conceded by the appellee, that the facts set up in the 2d and 3d pleas of the appellant, would be sufficient to sustain an action, on the part of the appellant, against the ap-pellee, or else entitle him to. relief in a court of equity. The admission of this is conclusive as to the sufficiency of the pleas, in accordance with the principles determined in the cases to which we have before referred: for the reason of the rule, in allowing the defence of a partial failure of the consideration of a note or bond, is to avoid and prevent the necessity of a circuity of actions, and the inconvenience and expense incident to multiplied. litigation. In other words, it is the assumption, on the part of the courts of law, of special equity jurisdiction, for those reasons which we have just mentioned.

Yiewing the facts set up in the two pleas we are considering, as a good defence to the action on the note, to the amount of one hundred dollars, the court below should have overruled the demurrer as to those pleas. Not having done so, the judgment of the Poinsett Circuit Court is reversed, and the cause remanded, with instructions to the court to overrule the demurrer as to the 2d and 3d pleas of the appellant,

let the judgment be reversed at the cost of the appellee.

Absent, Mr. Justice Scott.


text:
    Wallace vs Brown.
    The owner of a slave, hired for a term or period of time, cannot bring an action of re-plevin for the slave, until after the expiration of such term.
    To support replevin there must be shown an actual taking or an actual detention — a constructive detention, by the exercise of acts of ownership respecting the goods, not accompanied by manual possession of the defendant, or his agent, will not suffice.
    Where there is a total want of evidence to support the verdict and judgment, this court will award a new trial. (Bussell vs. Gaik/, 15 Arle. Hep. 552.)

      Appeal from Crawford Circuit Court.

    The Hon. Felix J. BatsoN, Circuit Judge.
    Walker & Green, for appellant.
    .S. P. Claee, for appellee.
   Mr. Justice HaNly

delivered the opinion of the Court.

This was replevin in the detinet, for a slave, brought by the appellee against the appellant in the Crawford Circuit Court. Plea, non-detimt: verdict and judgment for appellee. Appellant moved for a new trial on the ground of the insufficiency of the proof to sustain the verdict, which was overruled, and he excepted, setting out the following facts:

In the month of May, 1851, appellee bought the slave in controversy from one Bishop, and in the month of November following, he hired her to Bishop for the term of one year. In the month of May, 1855, the same slave was levied upon and offered for sale as the property of Bishop, by the United States Marshal for the Western District, Arkansas, under an execution to him directed, which issued on a judgment obtained by one Taylor, against Bishop, in the District Court of the United States for that Distinct, when the attorney for the plaintiff in the execution, bid her in, in the name of appellant, and proclaimed that he purchased her for him. Appellant was absent from the State at the time, and the purchase was made without his knowledge or consent, and he never obtained possession of the slave. Bishop was in possession of the slave when she was levied upon. Appellee was present at the time of the sale by the Marshal, and forbid it, claiming the slave as his property.

1. To sustain replevin, the plaintiff must, at the time of the cajption, if in the cepit, or the detention, if in the detinet, have had either the general property in the goods, or a special property in them, coupled with the right to immediate possession. See 1 Chitty’s Plead. 163; Digest, chapter 136, section l, page 842; Beebe vs. DeBaun, 3 Eng. Rep. 510; Britt vs. Aylett, 6 Eng. Rep. 475.

2. If the action be in the detinet, the detention on the part ot the defendant must have been unlawful. See 1 Chitty's Plead. 162; Digest, chapter 136, sections 1 and 5, page 842; Beebe vs. DeBaun, ub. sup.

3. Wlien the action is founded on the wrongful detention of the property, and the original taking is not complained of, the plea of the general issue shall be, that the defendant does not detain the goods and chattels specified in the declaration or any part thereof, in manner and form as therein alleged, and such plea shall put in issue not only the wrongful detention of the chattels, but also the property of the plaintiff therein. See Digest, chapter 136, section 34, page 848, 849.

Let us apply the above principles of law to the case before us. 1. Did the appellee prove at the trial, that he had either a general or special property in the slave sued for, at the commencement of this suit? 2. If he did, did he also prove that he had, at that time, the right to her immediate possession f 3. If these questions are answered affirmatively, did appellee prove that the appellant, at the time this suit was brought, unlawfully detained the slave in question ? If the appellee has failed to establish any one of these three propositions by his proof, it follows, as a necessary legal consequence, that the verdict of the jury was unwarranted by the evidence, and that the court below should have granted the new trial as moved for by appellant.

In response to the first enquiry under this head, the proof shows very conclusively that the appellee, during the month of November, 1854, hired the slave in controversy to one Bishop for the term and period of one year thence next ensuing, so that the term of her hire was not complete and ended when this suit was brought in May, 1855. It is said by the common law, in virtue of this species of bailment, the hirer acquires a special property in the thing during the continuance of the contract, and for the purposes expressed or implied in it. Hence, he may maintain a suit for any tortious dispossession of it, or any injury to it during the existence of his right. See Story on Bail., sec. 394, page 386. According to this, the general rights of the owner, with respect to the property hired, are suspended during the continuance of the term for which the contract was made; except in such cases only, where the reversionary rights of the bailor may be affected by tbe tortious acts of tbe bailee, or third persons, in wbicb case be may assert bis general rights, being absolute by reversion, to protect bis reversionary interest. See Story on JBcál., ubi swp. et seq. And tbe principles asserted by Judge Stoet, in tbe above citations, are recognized and approved by a direct adjudication of this court in a case involving facts vex-y analogous to those presented in tbe case we are considering. The case to wbicb we allude is Britt vs. Aylett, 6 Eng. Rep. 476, 477, in which this court, by JohNsof, Chief Justice, said : “ It is difficult to conceive upon what ground tbe plaintiff below could claim a recovery. It is in proof, that tbe defendant below hired tbe negroes in controversy from the plaintiff for tbe period of twelve months, wbicb bad not expired at tbe date of tbe trial. It is clear, therefore, that, even admitting tbe title to be in the plaintiff, be was not entitled to the immediate possession; and, consequently, could not legally claim a judgment for such possession.” In the case at band, the hiring of tbe slave in controversy was not from tbe appellee to tbe appellant, as in tbe case from 6 Eng., but it was to a third person, who has, if there has been a tortious interference with bis rights with respect to tbe pi’operty bailed to him, an unquestionable right of action. If, therefore, this action could be maintained at the suit of tbe appellee, tbe appellant might be subjected to two actions for tbe same act without being able to plead a recovery and satisfaction as to one in bar of a recovery as to tbe other.

Authorities and adjudications might be multiplied and collected upon this point, but we deem the subject so thoroughly settled and at rest, that we will not consume space by farther references. We bold, therefore, that from tbe evidence stated in the transcript, and in substance detailed above, tbe appellee bad not such property in tbe slave at tbe time this suit was commenced as to warrant the verdict in bis favor.

In reference to tbe second inquiry under that bead, we think it is clear that there is a total want of proof on tbe part of tbe ap-pellee, that be was entitled to tbe immediate possession of tbe. slave. The proof is manifest, we think, that Bishop was entitled to the possession until after the expiration of the term for which the slave was hired by him.

And as to the third inquiry, as to the unlawful detention of the slave by appellant, at the time of the institution of the suit, we think there can be no doubt, from the proof, that the slave had never come into the actual possession of the appellant, or his legal agent, before the commencement of this suit. We take the law to be, in such cases, that in order to support replevin there must be shown an actual taking or an actual detention, and that a constructive detention, by the exercise of acts of ownership respecting the goods, not accompanied by manual possession of the defendant, or his agents, will not suffice.” See Smiths Leading cases 351, and authorities there collected.

Upon the authority of Russell vs. Cady, 15 Ark. Rep. 552, and holding, as we have done, that there is a total want of evidence in support of the three propositions lastly above considered, we are constrained to hold that the court below should have sustained the appellant’s motion for a new trial, and not having done so, the judgment must be reversed with costs. Let the judgment be reversed.

Absent, Mr. Justice Soott.


author: Mr. Justice Hanly

text:
    Taylor et al. vs. Coolidge & Co.
    It is error in tlie court to render judgment, by nil dicii, against the defendant, -without disposing of a demurrer interposed to the declaration.
    The right of action upon an assigned note is in the assignee; and if it passes into the hands of another without assignment or endorsement, he has but an equitable interest, which gives him the right to use the name ol the assignee in bringing suit upon the note.
    The payee and assignor of an instrument of writing, under seal, for the payment of money, may be sued jointly with the obligor, in an action of debt, by the assignee, on non-payment.
    The defendants demurred to the declaration; their demurrer was overruled; they craved oyer of the instrument sued on; and again demurred, and set down for cause, that the declaration did not allege a delivery of the writing obligatory sued upon: Herd, That, as this cause did not grow out of the oyer granted, it should have been set down in the first demurrer.
    The cases of Byrd vs. Cummins, 3 Arh. 394, and Cummins vs. Woodruff, .5 Arle. lit, as to the effect of oyer of the instrument sued on, and the right of the defendant to take advantage of a variance between it and the note as described in the deelation, cited.
    The prayer and grant of oyer of the instrument of writing sued on,-do not bring the assignments on the note, &c., upon the record: and if the defendant would take advantage of any defence, growing out of the assignments, he must crave o-ver of them.

      Appeal from, Phillips Ci/romt Court.

    Hon. Charles W. Adams, Circuit Judge.
    J. O. Palmer and WatKINS & Gallagher, for appellants.
    Cummihs, for appellee.
   Mr. Justice Hanly

delivered the opinion of tbe Court.

This was an action of debt, brought by the appejjees, to the November term of the Phillips Circuit Court, 1854. The action was founded on a writing obligatory, described as bearing date 22d of September, 1853, and payable one year after date, made by Taylor, one of the appellants, payable to Bightor, the other appellant, and by him endorsed.

"Without craving oyer of the writing sued on, the appellants demurred to the declaration, and set down for cause: “That there is a misjoinder of parties in said declaration, the said Taylor being originally, and the said Bightor, (if at all,) only collaterally, liable.

This demurrer was considered and overruled by the court, for which the appellants excepted.

The appellants then craved oyer of the writing sued on, which was granted by exhibiting the original, and by filing a copy thereof, in these words.:

“$1,000.

One year after date, I promise to pay William B. Bightor or order, the sum of one thousand dollars, for value received. Witness my hand and seal, this 22d September, A. D. 1858.

Sighed, JOHN Q. TAYLOB, [seal.]”

Endorsed: “Pay to Myrtle, Moore & Co,” signed, “Wji. B. Bightoe,” and with this memorandum subjoined: “I waive the necessity of having notice served on me, in the event the within note not paid at maturity.

Signed, WM. B. BIGHTOE.

September 20th, 1854.”

The appellants, on oyer being given them as above, again demurred to the declaration, and set down as causes: “ 1. That said declaration does not allege a delivery o.f said writing obligatory, by the said Bightor, to the said Myrtle, Moore & Co., nor a delivery by the said Myrtle, Moore & Co., to the said plaintiffs.

2. That there is a variance between the instrument sued on, and described in said declaration, and the one given on oyer, in this: that the instrument is described in said declaration as being made and dated, 22d September, 1854, and that exhibited on oyer, bears date the 22cl September, 1853,” &c.

It does not appear from the transcript in this canse, that the court below took any action upon the last demurrer filed by the appellants to the declaration of the appellees: but proceeded without disposing of such demurrer to render judgment, nil dieit, against appellants, and in favor of appellees, for the amount of the writing obligatory set out above, and interest and costs of suit. From this judgment appellants appealed, upon which the cause is now depending in this court.

The assignment questions the propriety of the ruling of the Circuit Court, both as to the two demurrers, and the rendering of final judgment, without disposing of the last demurrer by them interposed.

1. It appears by the transcript in this cause, that the court below proceeded to render judgment, nil dieit, against appellants, without disposing of the demurrer interposed by them to the appellees’ declaration. This was certainly irregular. The court ought not to have proceeded with the cause until all the issues of law, raised upon the record, were determined. See Hicks vs. Vann, 4 Ark. Rep. 527; Cole & Severs vs. Wagnon, adm., 2 Ark. Rep. 155; Reed et al. vs. State Bank, 5 Ark. Rep. 197; Boyer vs. Robinson, 1 Eng. Rep. 552; Stone vs. Robinson et al., 4 Eng. Rep. 477; Hammond vs. Freeman, Ib. 67; Yell, Gov. &c., use Conant & Co. vs. Outlaw et al., 14 Ark. Rep. 623; Finn, adm. vs. Crabtree, adm., 7 Eng. Rep. 598; Harper vs. Bondurant, 7 Sm. & Mar. 397; Hyfron vs. Mi. Union Bank, Ib. 434; Templeton vs. Planters Bank, 5 How. Mi. Rep. 169; Tomlinson vs. Hoyt, 1 Sm. & Mar. Rep. 515; Gwinn vs. McConall, Ib. 351; Bailey vs. Gaskins, 6 How. 519.

2. It is insisted for the appellants, that the judgment of the Circuit Court is clearly erroneous, for the reason that the writing obligatory exhibited on oyer, does not contain any evidence, intrinsic, to show that tbe appellees had the legal title therein, or the right to sue thereon. It is manifest, from the transcript, that the right of action on the writing obligatory set out, was in the endorsees of Bightor, the payee, to wit: Myrtle, Moore & Co. If the appellees had any interest in this instrument, as far as the transcript indicates, it could have been none other than what they may have acquired by its delivery from Myrtle, Moore & Co., which was only an equitable interest, giving them the right to use the names of their equitable assignors, to enforce payment from the original parties, by a suit to their use. See Block vs. Walker, 2 Ark. Rep. 10; Dickinson et al. vs. Burr, 15 Ark. Rep. 372; Worthington vs. Curd, Ib. 492.

3. It is also insisted by the appellants, that the court below erred in overruling their first demurrei interposed to the declaration, and we are referred to Anderson vs. Yell, 15 Ark. Rep. 13, to sustain this position on their part. It will be necessary for us to consider that case, in connection with our statute of assignments, which is, in part, in these words: “All endorsers or assignors of any instrument in writing, assignable by law, for the payment of money alone, on receiving due notice of the non-payment or protest of any such endorsed or assigned instrument in writing, shall be equally liable with the original maker, obligor or payor of such instrument, and may be sued for the same at the same time with the maker, obligor or payor thereof, or may be sued separately.” See Digest, chap. 15, p. 163, sec. 9.

In Anderson vs. Yell, the form of action pursued was debt: the instrument declared on, a promissory note; and the parties sued, the payor and endorser of the note. The court seemed to question the form of action pursued in this case, and intimate that the action should have been assumpsit instead of debt. Whether this intimation was made considerately, and with due regard for the section of our chapter of assignments, which we have copied above, we are unable to say. If founded on the common law, there can be no question, but that the proper action in that case would have been assumpsit, for the réason, as it is said, there is no privity between the payor of the note, and the endorsee, the contract between them being an implied one, by relation. But it is conceived, though with great deference and respect for the intimation thrown out in Anderson vs. Yell, that our statute changes, in effect, the rule of the common law in this respect, and authorizes the assignor or endorser to be sued in the same form of action, which existed as a remedy in favor of the payee against the maker or payor, or otherwise the law could not be general in its application to the different kinds of instruments for the payment of money, made assignable by the the statute: as, for instance, those under seal, (such as the one in this case was,) and those not under seal. In the former, assump-sit would not lie at the common law, in favor of the payee against the maker or payor, and we know of no statute which changes the rule of the common law, and would authorize assumpsit to be brought on such an instrument, at the suit of the endorsee or assignee, against the payor or maker, and assignor or endorser conjointlty. If assumpsit is the only remedy in favor of the as-signee or endorsee against the payor or maker of a note, and that remedy is not authorized in case of a bond being the foundation of an action, whether at the suit of the original party, or his as-signee, it follows as a corollary, that the assignee of a bond for the payment-of moiiej*-, notwithstanding the statute, could not sue the obligor and assignor, “ at the same time with each other,” but would be compelled to adopt the other alternative authorized by the statute, i. e., sue them separately.”

We do not think, however, that Anderson vs. Yell, when taken entire, and when critically examined, will justify the' construction which the counsel for the appellants would give to it, in its application to the position assumed in this cause. ¥e infer from the tenor of the whole case, that the court only intended to be understood as saying that assumpsit would have been the more appropriate remedy in that instance, and in this we most cordially concur, for this would be consistent with both the rule iof the common law, and the spirit and meaning'of our statute: the effect of the latter being to change or alter the common law rule, only, so far as should be absolutely necessary to give force and operation to itself: leaving existing remedies unaltered and unmolested, when applicable and effective. We, therefore, hold that the court below did not err in overruling the appellants’ demurrer, first interposed to the declaration in this cause.

4. It is also assigned as error, that the court below erred in not acting upon and sustaining the demurrer of the appellants, interposed after oyer had been craved of the instrument sued on. As before shown, two grounds or causes are assigned in the demurrer.

We will proceed to consider of those causes.

1. As to this, we shall only say, that if the cause or ground assumed were good or tenable, it should have been set down in the first demurrer, as it did. not grow out of, or result from the oyer which was given of the instrument sued on. Not having-been taken in the first demurrer, it must be intended that the ground was waived, or else the defect cured by operation of our statute of Jeofails and Amendments. See Digest, chap. 126, secs. 61, 62; Keith vs. Pratt, 5 Ark. Rep. 662.

2. It must be remembered that this ground of demurrer was not assigned until after the appellant had craved oyer of the instrument- sued on, and the same made a part of the roll in this cause. The effect of the prayer of oyer, is, to present the instrument itself, literally, instead of the allegations in the declaration, from which the liability of the party is to be determined.

In the case of Byrd vs. Cummins, 3 Ark. Rep. 394, this court, by DicioNSON, Judge, said: “The argument, that the defendant below could not avail himself of the oyer given, is untenable. It was granted by the plaintiff, and the defendant is entitled to take the whole instrument as a part of the plaintiff’s pleading.”

In Cummins vs. Woodruff, 5 Ark. Rep. 117, the action was debt, the plaintiff counting on a bond and note. Defendant craved oyer of both, which was granted' by filing two instruments with the word “seal,” surrounded by a scrawl opposite each signature. No step was taken by the defendant after the grant of oyer as above, but judgment, nil dicit, was rendered. The cause was brought up on error to this court. The opinion of the court was delivered by Paschal, Judge, who said: “ The instrument declared on as a promissory note, is a writing obligatory, according to the doctrine of this court. The instrument was made a part of the record by filing the original, as settled by this court, in the case of Hanly vs. R. E. Bank, 4 Ark. Rep. 598, without making it any part of the pleading. The variance would therefore have been fatal, had the defendant demurred to the declaration, for the variemee between the count and the writing gvoen on oyer A And again, in the same case, this court say: “ "When oyer of the instrument was given, it became a part of the pleading: and the only legal way known to us, of objecting to the instrument, would have been by demurring to the declaration for such variance, and specially pointing out the objection. The declaration would have then been amendable on such terms as the court would have deemed just. But the defendant having failed to point out the variance, he consented to the instrument being read as evidence, although misdescribed.”

In the case before us, the appellants demurred to the declaration of the appellees, after oyer granted, and assigned as ground in support of such demurrer, that there was a variance between the declaration and the instrument given on oyer, in this: that the declaration describes it as bearing date 22d September, 1854, and the instrument in oyer bears date, 22d September, 1853. Ii this were true in point of fact, there can be no doubt but that the variance would be fatal. But, -on inspection of the transcript, we find no such variance. The instrument, as described in the transcript of the declaration, bears date the 22d September, 1853, and that is the date of the instrument copied in the transcript as having been granted on oyer in the court below. ¥e suppose the counsel in the court below must have been mistaken as to this fact, or else the clerk has not been faithful in his transcript. "We are bound to presume in favor of the fidelity of the officer.

5. It is insisted on the part of the appellants, that the instrument given on oyer, fails to show any title in the appellees. This is true in point of fact, but oyer was not craved of the assignments, of which profert was made in the declaration. The transcript, however, purports to set out the assignment from Rightor to Myrtle, Moore & Co., and omits the one averred from Myrtle, Moore & Co. to the appellees. We know of but one way in which the fact of the assignments could have been made to appear on the record, and that was by craving oyer of them. The fact of the assignments was wholly a question of evidence, and had the demurrer last interposed been disposed of, before the judgment of mil dioit was rendered against the appellants, the default of the appellants authorizing that judgment, would have been a virtual confession of the entire declaration. As the fact is, we hold the judgment of nil dioit irregular, for the reasons before herein assigned.

Several other questions are presented in the appellants’ brief, which we do not consider necessary to notice in view of the disposition we shall make of this cause.

Upon the whole record, we are of the opinion, that there is error in the judgment of the Phillips Circuit Court, in this behalf: that the court proceeded to render final judgment in favor of the appellees and against the appellants, without disposing of the issues of law presented by the demurrer of the appellants, interposed after oyer craved of the instrumeñt sued on. Wherefore, the judgment is reversed, and the cause remanded tobe proceeded in.

Absent, Mr. Justice Scott.


text:
    Sutton et al. vs. Hays.
    The act of 2d January, 1849, to aid in the collection of debts due from certain residents in the Indian country, is perfect and complete in itself; and not to be construed,, as if in pari materia, in connection with section 25, chapter 126, Digest; and the Circuit Court has no power to cancel a bail bond taken under the provision of the said act of 2d January, 1849, unless the capias were issued contrary to the true intent and meaning of the act.
    The act of 2d January, 1849, does not require that an affidavit, charging fraud against the debtor, should be filed before the issuance of a writ of capias.

    The affidavit of an agent or attorney, made conformable to the statute, is sufficient to warrant the issuance of a capias against the debtor.
    The act does not violate any provision of the Constitution of the United States, or of this State.

      Appeal from Crcmfovd Circuit Court.

    Hon. Felix J. Batson, Circuit Judge.
    S. F. Olaek, for the appellants.
   Mr. Justice Hanly

delivered the opinion of the Court.

On the 19th May, 1854, the appellants filed their declaration in assumpsit, together with the affidavit of Samuel L. Griffith, their agent, in the Crawford Circuit Court, under the provisions of the act, entitled, “An act to aid in the collection of debts due from certain residents of the Indian country,” approved, 2d January, 1849,-upon which a capias ad respondendum issued against the appellee, with an endorsement thereon, made by the clerk, directing the sheriff to take bond from the appellee, on his arrest thereunder, in the sum of $3,000. On the day of its date, the appellee was arrested and taken into custody under said writ, and was discharged on his entering into bond, in the penalty so endorsed by tbe clerk, with 'William Walker and Samuel M. Hays, as bis securities of bail.

At 'the return term of the writ, July 1854, the appellee filed his motion to cancel the bail bond and discharge the bail under the statute, (see Digest, chap. 126, see. 25, p. 800,) alleging as causes: 1. That there was no order of court for the capias to issue. 2. That there was no affidavit of fraud to hold to bail under the statute'. 3. That the capias issued upon the affidavit of Samuel L. Griffith, made in accordance with said act of 2d January, 1849; and 4. That the provisions of said act are unconstitutional and void.

The court below sustained said motion; ordered the bond to be canceled, the bail to be discharged, and the general appearance of the appellee to be entered. To this decision, the appellants excepted at the time, filed their bill of exceptions, setting out the affidavit upon which the capias was issued, and at the August term of the Crawford Circuit Court, for 1855, they obtained a final judgment against the appellee for $1254 J2 damages, and costs of suit, and appealed to this court.

The only error assigned by the appellants is, as to the judgment of the court in sustaining the appellees’ motion to cancel tlie bail bond, and in discharging the bail.

The act of 2d January, 1849. under which the bail bond was taken and the capias sited out. in this cause, so far as it pertains to the subject we are considering, is in these words:

“Sec. 1. That, in all final judgments, now rendered in any Circuit Court, or before any justice of the peace of this State, or hereafter to be rendered in any such court,,or before any such justice, against any person or persons then residing in the Indian country, west of this State, and contiguous thereto, a writ of capiat ad respondendum may be issued against the defendant or defendants in such judgment, upon the plaintiff or plaintiffs, or either of them, his, her or their agent or attorney, filing with the clerk of the Circuit Court in which such judgment may have been, or shall he rendered, or before the justice of the peace entitled to issue execution on such judgment, as the case may be, an affidavit that the defendant or defendants is, or are non-residents of this State, and reside in the Indian country, west of this State, and contiguous thereto, and has, or have, sufficient property to pay such debt; and the body or bodies of such defendant or defendants shall be taken into custody by the officer to whom such writ shall be directed, and kept in jail until payment of such judgment, and all interest and costs, unless he or they be sooner discharged under the insolvent laws of this State.

Seó. 2. That, in any snit hereafter to be commenced in any Circuit Court in this State, against any7 person or persons residing in the Indian country, west of this State, and contiguous thereto, the clerk of sncli court shall issue a writ of capias ad responden-dum against the defendant or defendants in such suit, upon the plaintiff or plaintiffs, or either of them, his, her or their agent or attorney, filing with such clerk an affidavit, as provided for in the first section of this act, and the defendant or defendants shall be detained in custody under such writ, until he or they shall enter into bond, with sufficient security, to be approved by the sheriff, or other officer executing such writ, which said bond shall be returned by the officer taking the same, and filed with the clerk of said Circuit Court.” See acts of 1849, p. 48.

We have examined the affidavit and bond taken in the case before us, and find that they strictly conform to the requirements of this statute, and appear to be regular upon their face. We will proceed, however, to examine the several grounds, upon which the motion of the appellee to cancel the bond and discharge the bail was predicated.

The motion of the appellee appears to have been made under, and in conformity with the 25th section of the 126th chapter of the Digest, Title, “Pkacticb at Law,” which is in these words:

“The court out of which any writ of capias ad respondendum may have been issued, or any judge thereof in vacation, may reduce the amount for which bail may have been required; and the court, at any time during the pendency of the writ, if satisfied that bail ought not to have been required, may vacate the order allowing the capias, and may direct the bail bond to be canceled, or the defendant to be discharged from imprisonment; and, in every such case, shall order his appearance to be accepted, and the case proceed in all things as if the original writ had been a summons.” See Digest, p. 800, sec. 25.

The above section was compiled from the Revised Statutes, and was a part of an act which was approved 21st December, 1837, and in force by the proclamation of the Governor, March 20th, 1839.

1. The act of 2d January, 1849, from which we have made the extract as above, has no connection with the provisions of the Digest, which we have given. The act of 1849 was evidently intended to provide a remedy, under the peculiar facts contemplated by that act, which was not afforded by the law, as it existed up to that time. These laws are not in pari materia; and, consequently, are not necessarily to be construed together. The act of 1849 is perfect and complete within itself, and must be construed as an independent law. No provision is made in that act, giving to the court the power conferred by the terms of the act of 21st December, 1837, taken from the Digest. The court, therefore, had no discretionary power to cancel the bail bond, or direct the appellee to be discharged, without, in its judgment, the writ of capias, under which the bond was issued, was issued without a compliance with the true intent and meaning of the. act, under which it purports to have been issued, or being issued in conformity to that act, the court should have believed the act itself to be in derogation of the Constitution of the United States, or of this State. We are clearly of the opinion, that the act of 1849 does not require that there should be an order of court authorizing the writ of capias contemplated therein to be issued. The making of the affidavit, and the filing of it with the clerk authorized him to issue the writ as a ministerial act — as much so as any other ministerial act that he is required to do. And the court had no more authority to cancel the bond, and discharge the bail, than it would have had to quash a writ of attachment, issued by the clerk, under the provisions of the attachment law.

2. The act of 1849 did not require that an affi davit, charging fraud against the appellee, should be made and filed before the issuance of the writ of capias. The affidavit required and contemplated by that act, was made and filed, and this was authority to the clerk to issue it, and made it regular on its face.

3. The affidavit of Griffith, he being agent or attorney for the appellants, was conformable to the statute. It shows the agency, and is regular as far as we have been able to discover.

4. We are at a loss to conceive what provision of the Constitution of the United States, or of this State, the act of the 2d January, 1849, violates or conflicts with. Certainly not with the 1st clause of the 2d section of the 4th a/rticle of the Constitution of the United States, which ordains that: “the citizens of each. State shall be entitled to all privileges and immunities of the citizens in the several States:” nor, with the 11th section of the 4th article of our own, which ordains that: “The person of a debtor, except where there is strong presumption of fraud, shall neither be imprisoned nor continued in prison, after delivering up his estate, for the benefit of his creditors, in such manner as may be prescribed by law.” Not the first, for the reason, that the Indian country, west of this State, is not one of the States or Territories of this Union, in the meaning of the Constitution of the United States. And not the second, because the statute that we are considering, expressly provides that the affidavit shall set forth and state that the defendant has “sufficient property to pay the debt,” sworn to: which, if delivered up, under the Constitution, in conformity with the provisions of the statute prescribed for that purpose, would operate as a discharge of the party from arrest or imprisonment, for it must be presumed, the act in question was passed with reference to this constitutional provision.

In consideration of these views, we hold, therefore, that the Circuit Court of Crawford county erred in canceling the bail bond and discharging the bail in this cause. The judgment of that court is, therefore, reversed in this particular.

Absent, Mr. Justice Scott.


text:
    Myers vs. Anspach et al.
    The eases of State Banin vs. Conway, 13 Arle. 344; Jones et al. vs. Gatlin, 16 Arle. cited.

      Quere: Does a mistake in stating the name of the judge, before whom a judgment, upon which the suit is founded, was rendered, constitute a variance, of which advantage may be taken.

      Appeal from Sebastian Ovrcuit Oourt

    Hon. JohN J. CleNdeniN, Circuit Judge, presiding.
    S. H. HeMpstead, for the appellant.
   Mr. Justice HaNly

delivered the opinion of the Court.

This was an action of debt, brought on a foreign judgment, and was tried in the Sebastian Circuit Court, upon an issue to a plea of nul tiel record, interposed by the appellant. Upon this issue, there was a finding for the appellees. The transcript further states, that, after the finding by the court, upon the issue of nul tiel record, “neither of the parties requiring a jury, and the court being sufficiently advised of the premises, do find that said defendant is indebted to the said plaintiff in the sum,” &c. There seems to have been no exception taken to the finding of the court upon the issue of nul tiel record, nor was the transcript sued on, brought legitimately on the record by oyer craved and granted. The entry, in respect to the record sued on, is in these words: “ And the record aforesaid being inspected by the court, it sufficiently appears that there is such a record,” &c. No complaint seems to have been made in the court below, to any ruling or decision of that court. There does not seem to have been a motion for a new trial made. The defendant below appealed from the final judgment rendered in the cause, and assigns as error here, “that the court below found the issue on nul tiel record, for the appellees, and that the judgment was rendered against appellant, whereas, by the law of the land, such judgment should have been given in his favor.”

It is insisted, on the part of the appellant, that the transcript of the judgment does not correspond with the one described in the declaration, in this: that the declaration describes the judgment as recovered at the District Court of the City of Philadelphia, in and for the State of Pennsylvania, at the June term of said court, 1854,. “before the Hon. Geoege ShuemaN, Esq., President Judge,” &c., and it appears from the transcript of the judgment that it “ was recovered before Geoege Shaeswood, President Judge,” &c.

If we had a right to look into this transcript for the purpose of determining .this assumption on the part of the counsel, we doubt not, but that it might be shown, from both principle and authority, that it does not constitute such a variance as to render the judgment irregular, or authorize us to reverse it on that account. But on the express authority of Jones et al vs. Gatlin, 16 Ark. Rep. 35, and the State Bank vs. Conway, 13 Ark. Rep. 344, we have no power or right to look into the question, as the case is presented to us upon the transcript in this cause. The truth is, there is no case presented for the consideration of this court, either on error or appeal. See, also, Kinney et al. vs. Heald, decided at the present term of this court.

The judgment of the Sebastian Circuit Court is affirmed, with 5 per cent, damages on the amount of the judgment recovered below, and costs.

Absent, Mr. Justice Scott.


author: Mr. Justice Hauly

text:
    Fowler vs. Keatts as ad.
    In an action of debt, by an executor or administrator, upon a note executed to the testator or intestate, in Ms life-time, the declaration may be either in the débet et detmet or in the detmet alone:
    And where, in such ease, one of the obligors hath departed this life, before suit brought, the breach may negative the payment by the deceased obligor, not sued, as well as by the defendant; or by the defendant alone.

      Appeal from Pulashi Cvrouit Court.

    The Hon. JohN J. ClehdeNIN, Circuit Judge.
    Fowler, for appellant.
    BertbaND, for appellee.
   Mr. Justice Hauly

delivered the opinion of the Court.

The appellee, as administrator, with the will annexed of Lemuel H. Goodrich, deceased, brought debt against the appellant, in the Pulaski Circuit Court, to the June term, 1855, on a writing obligatory, made by the appellant and one Chase, deceased, and not sued, payable to the order of appellee’s testator. At the return term of the writ sued out in this cause, the appellant appeared — craved oyer of the bond sued on, which being granted, he demurred to the declaration, setting out the following special grounds, to wit:

1. “ Because said plaintiff, as such administrator, counts in the debet as well as in the detinet. whereas, by law, he should have counted, as such administrator, in the detinet alone.”

2. “ Because, the breach alleged in said declaration, is broader than the contract.”

As the demurrer relates to the commencement and breach, we will, to show its application, copy those parts in our statement of the case. They are in these words:

“James B. Keatts, as administrator with the will annexed, of all and singular the goods and chattels, rights and credits, which were of Lemuel IT. Goodrich, deceased, plaintiff herein, by attorney, complains of Absalom Bowler, defendant herein, of a plea that he render unto him, as such administrator, the sum of $650, with interest thereon, according to the tenor and effect of the hereinafter mentioned writing obligatory, which, to him, as such administrator, he owes, and from him unjustly detains.”

“Yet the said defendant has not, though often requested so to do, paid said sum of $650, or any part thereof, or the interest, or any part thereof, to said plaintiff, as such administrator, since the death of the said Goodrich, nor did he pay said sum of money, or the interest, or any part of either, to said Goodrich in his life-time, nor did the said Chase, in his life-time, .pay said sum of money, or the interest, -or any part of either, to the said Goodrich, in his life-time, nor to the said plaintiff, as such administrator, since the death of the said Goodrich, nor has the legal representative of the said Chase, since his death, paid said sum of money, or the interest thereon, either to the said Goodrich, before his death, or to the said plaintiff, since his death,” &c.

This demurrer being submitted to, and considered by the court, was overruled, and the appellant saying nothing further, final judgment was rendered for the appellee, and from which the appellant appealed.

The only question presented by the transcript in this cause, and the only error assigned by the appellant, is as to the sufficiency of the declaration in this behalf, or the propriety of the ruling of the court below, in respect to the demurrer thereto.

1. As to this ground — in general, the declaration should be, in the debet and detinet; but upon the principle that, a man may complain of only a part of his grievance, and not of the whole, the plaintiff may abridge his demand, and declare in the detinet only, instead of the debet and detinet. And in actions by and against executors and administrators, the declaration should, technically, be in the detinet only. See 1 Chitty's Pl. 361, 362.

The usual form prescribed for the commencement of declarations, in actions of debt by an administrator, where the cause of action originated in the life-time of his intestate, in the English common law courts, is thus given by Mr. Chitty, in his work -on Pleading: “A. B., as administrator, &c., complains of 0. D., being &c., of a plea that he render to the said A. B., the sum of -of lawful money of Great Britain, which he unjustly detains from him,” &c. But it has been ruled by this court in Mitchell vs. Conley, 13 Ark. Rep. 416, as it had, before the decision in that case, been similarly ruled in England, that a declaration would be good in such case if commenced, thus: “A. B., as administrator, &c., complains of C. D., of a plea of debt,” (see, also, 2 Chitty's Pl., 13 text, and note G., citing 11 East 65, and other authorities,) holding that the other words, usually found in the precedents, as first above given, are useless — consequently, surplusage, and not ground of demurrer, if omitted.

It was the usual course of adjudication in England, as our extract as above from 1 Chitty*s Pleadings implies, where the form found in the boohs of precedents is pursued, and the declaration was in the debet and detinet, instead of the detinet only, to hold that a teclmioal objection, and, if ground of demurrer at all, only of special demurrer. We, therefore, hold that the appellant’s demurrer was not well taken, for the first ground assigned.

2. As to this ground — It is manifest to us, the demurrer was not well taken, for the reason, that the breach is not broader than the contract declared on would warrant. It is certain, the appellee made his breach broader than he was required to make it, by the strict rules of pleading in such case. All that he need have averred in the breach, was, that the sum demanded was not paid to his testator prior to his death, nor to him since. See 1 Chitty’s Pl. 334. The fact whether it had been paid by Chase, the deceased co-payor, to the testator, before his death, or to the appellee since, was a matter of defence for the appellant, and need not have been negatived by the breach, by the rules of pleading. But certainly, this breach, though unnecessary, is warranted by the terms of the contract declared on, and the incidents which have occurred in respect to it and the parties, since its execution, as appears by the declaration. In Green et al. vs. Thornton, 2 Eng. Rep. 385, this court, by JoHNsoN, Chief Justice, said: “The breach must obviously be governed by the nature of the stipulation. It should be assigned in the words of the contract, either negatively or affirmatively, or in words which are co-extensive with the import and effect of it.” See, also, Mitchell vs. Conley, ubi sup.; Clary vs. Morehouse, 3 Ark. Rep. 261; Bank of Louisiana vs. Watson, 4 Ark. Rep. 518.

We hold, therefore, that the court below did-not err in overruling appellant’s demurrer to the declaration in this behalf, on the ground herein before stated. Considering the demurrer taken as utterly frivolous, and wholly without merit, the judgment of the Pulaski Circuit Court will be affirmed, with 5 per cent, damages on the amount of the judgment recovered below, and costs.

Absent, Mr. Justice Scott.


author: Mr. Justice Haitly

text:
    Stillwell vs. Gray, Surv’r.
    "Where there is an exception to the instructions given by the court below, and all the testimony saved by bill of exceptions, but no motion for a new trial, this court will consider the testimony only so far as it may be necessary to do so, in order to test the correctness of the instructions.
    An instruction, in a suit by a surviving partner, on a writing obligatory given to the firm, to which the defendant pleaded that the bond was not given to the firm, but to the deceased partner, by the firm’s name; “That if the jury believe, from the testimony, that the bond in evidence was given for a debt contracted prior to the dissolution of the partnership, the name of the partnership could be used after the dissolution, and the suit maintained by the surviving partner,” is not calculated to mislead — being stated hypothetically: nor abstract — there being some evidence conducing to prove the hypothesis; and is good law^ — one of the firm, having authority to use the firm name in the settlement of its concerns, after dissolution..

      Appeal from Pulaslci Circuit Court.

    Hon. JohN J. CleNDBNIN, Circuit Judge.
    Fowler & Stillwell, for the appellant.
    BekteANd, for the appellee.
   Mr. Justice Haitly

delivered the opinion of the Court.

This was an action of debt, commenced at the June term of the Pulaski Circuit Court, by the appellee, “ as surviving partner of'the late firm of Goodrich & Gray,” on a writing obligatory, for $110 49, described as having been made by the appellant, to to the firm of Goodrich & Gray. The declaration averring, that after the execution of the writing sued on, Goodrieh departed this life: with a breach negativing the payment to the appellee since, or before the death of Goodrich, or to Goodrich in his lifetime, &c.

At the return term of the writ, the appellant appeared, craved •oyer of the writing sued on, which being granted, he interposed the following plea: “That he, the said defendant, did not, in manner and form, as in said declaration is set forth, then and .there make his certain writing obligatory of that date, sealed with his seal, and thereby promise one day after the date thereof, to pay to the said Goodrich & Gray, or order, as in said de-olaration is alleged, the said sum of one hundred and ten dollars and forty-nine cents, with interest at the rate of ten per cent, per .annum from the date thereof until paid: but that the said writing obligatory in the said declaration mentioned, was, by him, the said defendant, then and there made and delivered, and payable to-one Lemuel TI. Goodrich, by the name and style and description of “ Goodrich <&■ Gray,” and not to the said Goodrich & Gray, as alleged in said declaration. Nor did the said plaintiff then -and there, or at any time afterwards, have any legal interest whatever in the said writing obligatory, and of this he puts himself on the country.”

The appellee moved the court to strike out this plea, which was overruled, and he, thereupon, by consent, took issue in short ■upon the record to the said plea. The pleading having been •thus made up, the cause was submitted to a jury upon this issue, ¡and the finding thereon was for the appellee, for the amount of the debt «ued for, and damages by way of interest. Upon which judgment was rendered by the court.

After the -evidence had been concluded on both sides, it appears from a bill of exceptions taken at the time, that the appel-lee asked the court to instruct the jury: “That if they believed, -from the testimony, that the bond in evidence was given for a debt contracted prior to the dissolution of the partnership, the ■name of the partnership -could be used after the dissolution, and the suit maintained by the surviving partner,” which instruction was given by the court, and the appellant excepted. All the ■evidence adduced at the trial purports to be set out in the bill of ¡exceptions, taken to the ruling '©f the court, .as above: but as there was no motion for a new trial, made in the court below, the evidence is improperly on the record, except so far (and for that purpose only,) as it may be applicable to the above instruction, and to show its pertinency. We shall, therefore, only state so much of the testimony, as may serve to illustrate the only question presented by the transcript for our consideration, to wit: the propriety of the instruction above copied. The testimony, so far, was as follows: That the said firm of Goodrich & Gray, mentioned in the declaration, had been dissolved from twelve to eighteen months previous to the date and execution of the writing sued on, and that said Goodrich died in the fall of 1854, and after his death, the said writing obligatory was found among his papers, by his administrator, and was inventoried by the administrator, as a part of the assets of the said Goodrich, and w:as given out by the administrator amongst other notes of the said Goodrich, for collection, to the attorney who instituted .this suit. It was also proved that the appellant had acted as collecting attorney for Goodrich & Gray, (it was believed before the dissolution,) and received a large amount of notes and accounts to collect. It was also proved that .the blanks, which appear to have existed at one time in the note, or writing sued on, had been filled up in the hand-writing of the appellant, and one of those blanks was filled up with the names of “Goodrich & Gray.” And this was all the testimony bearing upon the instruction. The appellant excepted to the ruling of the court in giving the instruction as above, and appealed from the final judgment rendered upon the verdict of the jury, without further exception, or in any wise pointing out the precise error complained of, except as stated in his exception to the instruction, given as before stated.

We have said, that we cannot consider the evidence given at the trial, except for the purpose of determining the pertinency of the instruction given. This is deemed to be .the settled and well established rule of practice of this court, -as well as all appellate courts in such -cases. See Duggins vs. Watson et al., 15 Ark. Rep. 121, et seq.

It is insisted, on the part of the appellant, that this instruction was clearly abstract and calculated to mislead, and doubtless, did mislead the jury: averring that such instructions are erroneous, and authorize this court to grant to the party aggrieved, a new trial, or else to reverse the judgment: and several adjudications are referred to in support of this position, which we will consider.

The case of Samuel vs. Cravens, 5 Eng. Rep. 396, is to the effect, that an instruction, which is calculated to mislead the jury, is erroneous, and for which, a new,trial, if asked for, should be granted; and such is the purport of the other cases to which we have been referred on this point. This, we apprehend, is undoubtedly the correct doctrine on the subject. In Duggins vs. Watson et al., ub sup., WatkiNS, Chief Justice, in treating upon a point in that case, similar to the one we are at present considering, said: “"Where the instruction excepted to,'is abstract, or assumes facts, or, upon the facts supposed by it, is bad law, or it is not applicable to the nature of the action, the error is as fully open to revision in the appellate court, without the evidence, as if the instruction be one which contradicts the pleadings. But if the objection be, that there has been no evidence adduced, to which an instruction given can apply, the party excepting, in order to overcome the presumption indulged in favor of the court below, must set out the evidence, which, if it conduce, though in a slight degree, to prove the hypothesis, which, as a fact, the jury might possibly find, and which it was therefore proper to submit to them, and then the instruction, if not objectionable in point of law, will be sustained: but if there be no evidence on which to base it, the giving of the instruction, though good in law, will be erroneous.” Citing Pagne vs. Joyner, 2 Eng. Rep. 468; State Bank vs. Williams, Ib. 162.

Let us test the instruction given by the court below, by the principles of law we have stated, with the view of determining whether it is obnoxious to the objections insisted upon by the appellant. ■

1. Was the instruction “calculated to irmlead the jwry in reference to the application of the facts proved, to the law pertinent to the issue before the court? We think not; for it is framed, hypothetically, thus: “that if they believe, from the testimony, that the bond,” &c. No fact appears to be assumed by the instruction by intendment, or otherwise. The j ury were left free and unbiased, and could not have supposed, by its tenor, that the court believed the hypothesis assumed, to be true.

2. Was the instruction wholly abstract f We think not, for, to our minds, there “was some evidence which conduced, in a slight degree,” it is true, “to prove the hypothesis, which, as a fact, the jury might possibly find, and which it was, therefore, proper to submit to them” — as, for instance, the fact, that the bond was once in blank, and the proof that those blanks were filled up in the hand-writing of the appellant, including the names of “Goodrich & Gray.” This fact alone, was one from which the jury might legitimately have inferred, when considered in reference to the character of the other evidence offered to support the issue on the part of the appellant, that the bond in question had been given in liquidation and settlement of an account due the firm of “Goodrich & Gray,” before the dissolution of that firm. Beside this, the fact of the bond having been made by the appellant to the firm, after dissolution, is prima facie evidence of itself, independent of any other fact, that it was given in liquidation of one due the firm, during their continuance. as co-partners. We think, then, that the instruction was not wholly abstract, and not therefore erroneous, on that account.

3. Was the instruction “good law?” We think most clearly so. First. Because it was clearly (after the dissolution,) competent for one of the firm to act for the firm* and in the firm’s name, in liquidation. See Chitty on Contracts, 261. Secondly. Because, on dissolution of a partnership by death, the right of action to enforce partnership contracts, survives to the survivor, and does not go to or vest in the legal representatives of the deceased partner. See Wallace vs. Fitzsimmons, 1 Dall. Rep. 248; 1 Chitty's Plead. 19; Penn vs. Butler, 4 Dall. 354; Nixon vs. McCathy, 2 Ib. 65, 66, note.

In accordance with the above views, we, therefore, hold that the court below did not err in giving the instruction to the jury, as before stated. The judgment of the Pulaski Circuit Court will be affirmed with eosts.

Absent, Mr. Justice Scott,


text:
    Houch vs. Lynch.
    The' case of MiUer vs. Bailiff, 14 Arle. 419, and other'decisions, that this court Will interfere with the finding of a jury upon the Weight of evidence, approved.

      Appeal from Crawford Circuit Court.

    The Hon, Felix J, Batson, Circuit Judge.
    S. F. ClAek, for the appellant.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was an action which originated before a justice of the peace of Crawford county, founded on a detailed account for balance due, for goods, wares and merchandize, amounting to $64 51. On submission of the cause to the justice, there was a finding and judgment for the amount of the balance of the account sued for: from which, the appellant took an appeal to the Circuit Court of Crawford county. The cause coming on for trial in that court,, a jury was called, who, upon hearing all the evidence adduced on both sides, returned a verdict in favor of the appellee for the sum of $64 51, the amount of the judgment recovered before the justice; upon which verdict,-the court below rendered judgment. The appellant moved the court for a new trial, which being overruled, he excepted; setting out all the evidence adduced, and appealed to this court.

We will not state the evidence, for the reason' that there were no instructions given or refused by the court, and the decision of the jury was upon the weight of evidence, which, in our judgment, was clearly in favor of the verdict.

A judgment may be reversed upon a motion for a new trial overruled, when there is a want of evidence of some material matter necessary to uphold the verdict; but because a verdict may appear to be against evidence, this court will not assume the power of dictating to juries, that they must believe evidence, against ¿heir own convictions of its truth. See Miller vs. Ratliff, 14 Ark. Rep. 419, and the several decisions made at the present term on this point.

The judgment of the Circuit Court of Crawford county, is, therefore, affirmed with costs.

Absent, Mr. Justice Soorr.


author: Elon. Thomas Johnson, Special Judge,

text:
    Wassell vs. English et al.
    A judgment cannot legally be rendered against a steam boat, as a substantive party, and the owners, upon confession by the master.

      Error to ‘Pulashi Circuit Court.

    Eowlee, for the plaintiff.
    PiKE & CummiNS and Gallaghee, for defendants.
    'This cause was decided by the lion. Thomas P. Hanly, Judge, and the Hon. Thomas Johnson, Special Judge — the Hon. E. H. ENGLISH, Chief Justice, not sitting, and the Hon. C. C. Scott being absent.
   Elon. Thomas Johnson, Special Judge,

delivered the opinion of the Court.

The only question material to be decided in this case, relates to the validity of the judgment offered in evidence by the plaintiff. The judgment is directly against the steam boat Exchange, and owners, and purports to be by confession; and that, too, by the Captain of said boat. This court, in the case of Turner et al. vs. Wallace, in commenting upon the statute providing for an attachment against boats, &c., said: “The proceeding, by which a steam boat, or the owners, masters, supercargoes or consignees thereof, as such, can be directly subjected to the payment of debts, is solely and exclusively the creature of our statute authorizing the attachment of boats, vessels, &c., and contained in chapter 18 of the Digest. It is clear, therefore, inasmuch as this was not a proceeding by attachment, but in strict accordance with the common law, that no judgment could be legally taken against a steam boat as a substantive party; and, that, consequently, such judgment is a mere nullity. The steam boat being an impossible party, under the form of procedure, it is clear, that the j ustice could not exercise jurisdiction over her, and as a matter of course, the Circuit Court could not do so, through the appeal.” See 6 English Rep. 662. In the case of Gibson et al vs. Wilson et al., 5 Ark. Rep. 442, this court laid down the same doctrine. In that case, although an attachment was sued out, inasmuch as it was not executed as required by the statute, the court held that the property never passed into the custody of the officer. In that case, strangers came in, and interpleaded their title to the property acquired by purchase from the defendant in the attachment suit. Upon that state of case, it was held, that between those parties, the Circuit Court had not cognizance of the cause. That its jurisdiction to hear and determine it, as between the interpleaders and the plaintiff, arose by virtue of the writ of attachment, and, as there was no valid service, of course there was no suit in court between them. That was a suit instituted under the general attachment law of this State, and the question arises as to the true ground upon which the court predicated its decision. The reason of the doctrine there laid down, is plainly and manifestly, that the attachment being a proceeding in rem, and nothing appearing upon the record to show that the property had been legally seized, and transferred from the defendant into the custody of the law, that therefore, the court could take no jurisdiction over it, so as to test the strength of title as between the attaching creditor and the interpleader. The property not having been attached by an actual seizure, the title could not be adjudicated upon by the court; and, consequently, the real owner could not be prejudiced, as no judgment that the court could have pronounced, would have had the effect to impair his rights. See, also, Splawn vs. Martin, decided at the present term of this court. If process sued out under the general attachment law, without a legal service upon the property, cannot so operate as to confer jurisdiction upon the court over such property, it is manifest that the clerk in vacation or the court in term time, could not legally exercise jurisdiction; and that, too, without either a writ or a legal seizure. In a writ, by attachment, whether general, or special, as in this case, the court can exercise no jurisdiction over the thing, without an actual seizure by the officer, and a return upon the writ as required by the statute, and such proceeding being in derogation of the common law, everything necessary to the jurisdiction must affirmatively appear upon the record. The paper offered as evidence of title in this case, leaves no room for intendment, even if such intendment could be indulged; but on the contrary,, affirmatively shows that the appearance was voluntary, and the judgment was, by confession. We are clearly of opinion, therefore, that the court that rendered the supposed judgment, had no jurisdiction of the subject matter, and that, consequently, it is absolutely void.

The Circuit Court, therefore ruled correctly in excluding it from the jury, and as such, the said judgment ought to be, and is, in all things affirmed.