Long vs. De Bevois & Co.

an insurance on West's life, as an indemnity, had no semblance of an accord and satisfaction of the debt, if such was intended to be pleaded, and we cannot conceive what else was intended. There cannot be an accord and satisfaction without the delivery or acceptance of something in satisfaction of the debt or damages demanded. 2 Green. Ev., sec. 28; Ballard v. Noaks, 2 Ark., 45; Levy v. Very, 12 Ark., 148.

The plea or defense that the plaintiff had forfeited its charter and franchises by non user, without an averment or showing that a forfeiture thereof had been declared by a judicial proceeding for that purpose, was manifestly bad, and the demurrer to it properly sustained.

Misjoinder of parties plaintiff cannot be taken advantage of in this court, unless the objection was raised in the court below.

This was a suit, commenced before a justice of the peace, on a promissory note for $175.68, made by the defendant Henry W. Long, and payable to Chas. Northrop & Co.; and was brought in the names, as plaintiffs, of S. H. De Bevois and Chas. Northrop & Co. With the note was also filed a complaint, in which it was stated, that the firm of Chas. Northrop & Co., was composed of

Anthony vs. Hunt.

Chas. Northrop and the said S. H. DeBevois; and that said De Bevois was the successor in business of said firm, and sole owner of the note. The defendant was summoned to answer S. H. De Bevois and Chas. Northrop & Co. From a judgment in favor of the plaintiffs, the defendant appealed to the Circuit Court, where upon a trial by the jury, the plaintiffs again obtained a verdict for the amount of the note.

Without moving for a new trial, or reserving by bill of exceptions, or in any other manner, the evidence, or any question of law, the defendant appealed to this court. He insists here, that the action was not brought in the names of the proper parties; that it should have been in the names of S. H. De Bevois and Chas. Northrop, and not in the names of S. H. De Bevois and Chas. Northrop & Co.

If this might have been a valid objection at any stage of the proceedings, it should have been taken below, whilst such error could have been corrected by amendment; but the defendant having failed to take it there, must be considered as having waived it, and cannot be admitted to raise it for the first time in this court.

The Code, sec. 1100 Gantt's Digest, expressly declares that "a judgment or final order shall not be reversed for an error, which can be corrected on motion in the inferior courts until such motion has been made there, and overruled."

The judgment of the court, below is affirmed.

ANTHONY Vs. HUNT.

EVIDENCE: Statute of frauds, etc.

The defendant, for the purpose of defeating an action for rent, attempted to introduce evidence of a parol cont act to purchase an interest in the land, rented and an entry thereunder; Held, that the evidence was properly Vol. XXXI.-31.

Anthony vs Hunt.

excluded, the contract was within the statute of frauds, and the fact that possession was taken under it did not alter the case; such part performance can only be shown as a license for the entry, and where no title is attempted to be set up.

APPEAL from Ashley Circuit Court.

Hon. T. F. SORRELLS, Circuit Judge.
Appellant, per se.

McCain, for appellee.

HARRISON, J.:

Hunt sued Anthony for the rent of three hundred acres of land, for the year 1874.

Anthony denied the renting, and claimed to have entered on and occupied the land under a contract for the purchase of an undivided interest in it.

On the trial, Hunt, the plaintiff, testified that about the last of December, 1873, he, by a verbal agreement, contracted to sell Anthony and one Harris, an undivided two-thirds part of the land, and they shortly thereafter moved on it. On the 3d of April, 1874 the contract of sale was rescinded, and another contract was made with them, by which they agreed to lease the land for that year, at the customary, but no stipulated rent. The rent was worth, he said, six dollars an acre.

Anthony testified that he and Harris severally, contracted with the plaintiff, to purchase each an undivided third part of the land, and it was also at the same time agreed between the plaintiff, Harris, and himself, to cultivate the land in partnership, and that under his contract for the purchase, he went on it about the first of January, 1874, The partnership, on account of the plaintiff's want of means, was not, however, carried out. He, Anthony, and Harris, cultivated separate parts of the land, and their interests were several and distinct. Learning, about the month of September, that the plaintiff could not make a title to

Anthony vs. Hunt.

the land he repudiated the contract; but remained in possession until the end of the year. He did not lease or rent the land, and his entry on and occupancy of it, were under his contract of purchase The agreement for the purchase was merely verbal,

and not in writing.

The court, at the instance of the plaintiff, excluded from the jury all the defendant's testimony relating to his purchase of an interest in the land.

The jury returned a verdict for the plaintiff for $1,500. The defendant moved for a new trial, which was refused, and he excepted and appealed.

The exclusion from the jury of the defendant's testimony in relation to the purchase of the land, was assigned as cause for a new trial.

If such a testimony had been merely in rebuttal of what the plaintiff said in regard to the purchase, and that had been material to the issue, its exclusion would have been improper. The plaintiffs action, however, was on the lease and the defendant's promise to pay rent. The defendant, to defeat the action, claimed to have occupied the land as a vendee, and not as a tenant, and to establish such fact, atttempted to prove a parol contract of purchase of an interest in it. But this he was prohibited from doing by the statute of frauds. Sec. 2951, Gantt's Digest. The fact that possession was taken under the alleged contract did not alter the case, so that such parol evidence might have been admitted, because such part performance can only be shown in equity, or at law, as a license for the entry, and where no title is attempted to be set up.

The evidence was rightly excluded, and the judgment is affirmed.

Newton vs. Wilson et al.

NEWTON VS. WILSON et al:

1. USURY.

2.

Usury is the charging of unlawful interest, and unless there is a law which limits the rate of interest to be charged for the use of money, there can be no usury.

In a proceeding to foreclose a mortgage, held, that a contract for interest at the rate of 21⁄2 per cent. per month, executed while the provisions of the Constitution of 1868 in regard to usury, and the laws enacted thereunder, were in force, was valid, and the subsequent enactment of a usury law did not affect it.

APPEAL from Pulaski Chancery Court.

Hon. J. R. EAKIN, Chancellor.

Gallagher & Newton, and Rice, for appellants.
Farr, contra.

WALKER, J.:

Wilson and Webb filed their complaint in the Pulaski Chancery Court to foreclose a mortgage, and subject certain lands to sale to pay the following note:

$1,000.

LITTLE ROCK, ARK., 17th May, 1871. Sixty days after date, I promise to pay Wilson & Webb $1,000, with interest at the rate of 23 per cent per month from date until paid. R. C. NEWTON.

[Signed]

Service of process was waived, and, at the first term of the court, by consent, the cause was continued until the next term, with leave to Newton to file an answer during the term. On the same day, and probably before this agreement, Newton had filed a demurrer to the complaint, which seems to have been understood as waived by the agreement, and is in argument, not insisted upon by Newton's counsel.

No answer was filed, or further defense interposed, and a decree rendered in favor of plaintiffs for $1,000 debt, and $1,100