Where the record does not contain any indictment upon which the defendant was convicted, nor show that an indictment was returned into court, this court will reverse the judgment, and remand the cause for further proceedings.

Error to Sebastian Circuit Court.

Hon. FELIX I. BATSON, Circuit Judge.

FAUST, for the plaintiff in error.

Where there is no indictment in the record sent to this court, the conclusion is that none was found against the defendant, much less presented in open court; and the proceedings against him are a nullity. sec. 14, art. 2, Const. Ark.; Secs. 85, 87, ch. 52, Gould's Dig.; Brown vs. Sta'e, 7 Humph. 155; Chappel vs. State, Yerg. 166; Green vs. State, 19 Ark., and authorities cited; and the defendant ought to be discharged, Stith vs. State, 13 Ark. 680; The King vs. Bourne, 7 Adal. & Ellis 58; and authorities there cited.

Mr. Chief Justice ENGLISH delivered the opinion of the Court. This case was brought here by writ of error to the circuit court of Sebastian county.

From the transcript returned with the writ, it appeared that Daniel Ross, the plaintiff in error, had been convicted by the verdict of a jury, of robbery, and sentenced to the penitentiary for twelve years. But there being no indictment in the transcript, and no showing that the grand jury had returned into court any indictment against Ross, a certiorari was awarded to perfect the transcript, in accordance with the principles settled

in Green vs. The State, 17 Ark. 183, and other cases there cited. In the transcript brought up by certiorari, as in that returned with the writ of error, there is no indictment, and no entry that the grand jury returned into court any indictment against Ross. The clerk states that the indictment, and a motion in arrest of judgment, had been lost, destroyed, or purloined from his office, etc.

In the first record entry, the cause is entitled thus: "

"State of Arkansas, Plaintiff,

VS.

> Indictment for assault to murder and rob.

Daniel Ross and A. Koo-wee, Defendants."

In the second entry, thus:

"State of Arkansas, Plaintiff,

VS.

> Assault with intent to kill and rob.

Daniel Ross and A. Koo-wee, Defendants."

Under this caption it is shown that the defendants severed, and that Ross was tried and found, by the jury, guilty of robbery.

In the final entry, the cause is entitled thus:

"State of Arkansas, Plaintiff,

VS.

Daniel Ross, Defendant.

> Indictment for robbery.

Under this caption it is shown that Ross moved in arrest of judgment, that the motion was overruled, and he was sentenced to the penitentiary for twelve years in accordance with the verdict.

Under the principles settled in the cases above referred to, we cannot affirm a conviction for felony upon a record so defective as the one before us, but the judgment must be reversed and the cause remanded for further proceedings.

And it appearing that the plaintiff in error is confined in the penitentiary, a mandate must be issued to the sheriff of Pulaski county, to receive the prisoner of the keeper of the penitentiary and convey and deliver him into the custody of the sheriff and jailor of Sebastian county, to abide such further proceedings as

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23 200

64 466

may legally be taken against him in the court to which the cause is remanded,

MCDERMOTT VS. CABLE ET AL.

Where a plea sets up a contract for the sale of land without averring that it was in parol, the presumption is that it was in writing.

A plea of failure of consideration, setting up that the consideration of the note sued on, was a contract for the sale of land, and that the vendors were unable to make title to the land, is defective unless it make profert of the contract; and allege whether a deed for the lands was executed by the vendors.

Appeal from Drew Circuit Court.

Hon. JOHN C. MURRAY, Circuit Judge.

HARRISON, for appellant.

If any right or title was claimed under the contract, the objection that there was no profert of it, might be good; but the plea sets up none. It merely denies the plaintiff's right to recover on the note, because of a failure of the consideration, and the contract is alleged as one of the facts and circumstances showing how, or in what manner it had failed, and the legal effect is the same, whether it was in parol or in writing. This cause is different from that of Duncan et al. vs. Clements, 17 Ark. 279, where a want of title was not alleged, or an inability

to make title, but that the conveyance should be made before payment of the purchase money. The failure of consideration of the note, then, and not the agreement to convey the land being the bar pleaded, no profert of the agreement was necessary. Gould's Pl. ch. 8, secs. 32, 38, 39, 40; Ch. Pl. 365.

GARLAND & RANDOLPH, for the appellee.

The plea does not deny the fact that the plaintiff's intestate and Rudd made the defendant a deed for the land; it only denies that they "conveyed" it to him, which might be true, and yet the "warranty deed" have been executed.

But there is a fatal objection to the plea pointed out by the second ground of the demurrer. It is not alleged whether the agreement for the purchase of the land was, or was not, in writing; the statute of frauds requires, and will presume it was in writing, and such being the fact, the plea ought to have made profert of it. Duncan vs. Clements, 17 Ark. 279.

Mr. Justice COMPTON delivered the opinion of the court. This was an action of assumpsit, brought by Mrs. Cable, as administratrix of the estate of Westley L. Maulding, deceased, on a promissory note for $300, payable to her intestate.

The defendant pleaded non-assumpsit, to which issue was joined; and also a special plea of total failure of consideration, in which it was averred, that the note sued on was executed for the residue of the purchase money for a certain tract of land which the defendant had contracted to purchase from the plaintiff's intestate and one Alexander Rudd, who agreed and were to convey the land to the defendant by deed, with covenants of warranty, immediately, and for no other consideration; and the plea further averred, that Maulding and Rudd never conveyed the land to the defendant; and that neither at the time the note was executed, nor at any time afterward, had they, or either of them, any title to the land, and were not able to con

McDermott vs. Cable et al.

[JANUARY

vey the same. To this plea the plaintiff demurred, assigning for causes of demurrer:

1st. "It is not alleged that the contract for the purchase of the land was not in writing, and no profert of the same is made.

2d. It is not alleged whether Maulding and Rudd executed a deed of conveyance to the defendant."

The court sustained the demurrer, found for the plaintiff on the issue joined to the plea of non-assumpsit, and rendered judgment accordingly; to reverse which, the defendant has appealed to this court, and assigns for error the decision of the court in sustaining the plaintiff's demurrer.

We think the demurrer was well taken. The contract set up in the plea is not alleged to be in parol; and being such, as by the statute of frauds, is required to be in writing, the presumption is that it is so; and being in writing, it should have been pleaded with profert, under the provisions of our statute, in order that the court, in the exercise of its appropriate function -the construction of a written contract-might determine whether the contract furnished the defence claimed under it. Duncan vs. Clements, 17 Ark. 279.

It is insisted, however, that because the plea alleges the inability of the vendors to make title, it is distinguishable from that in Duncan vs. Clements, supra, which alleged the failure merely of the vendor to make, or offer to make a deed before suit brought. We cannot perceive how this distinction dispenses with the necessity of profert. For instance: Suppose it had appeared on oyer, in the case now before us, that by the terms of the contract between the parties, the vendors were to make a quit-claim deed only, would their inability to make a valid title have been a failure of consideration? Certainly not. And without profert, how could the court know, in making up the issues upon the pleadings, whether the contract was as we have put it for illustration, or whether it was as alleged in the plea? But the plea is also defective upon another ground. It is not distinctly alleged-as it should have been-whether or