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Gordon vs. State, use Wallace.

(JANUARY and that of Dickinson vs. Noland, (2 Eng. 28.) In those cases, the party defendant did not interpose a plea to the merits, but relied alone upon matter in abatement.

We are clear that the court below erred in not ordering a jury to inquire into the value of the property, and consequently the judgment is reversed, and the cause remanded, with instructions to proceed according to law and not inconsistent with this opinion.

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71 71

GORDON vs. STATE, USE WALLACE.

Where the facts alleged in a declaration could, by no manner of stating them, show a

right of action in the plaintiff, a general demurrer is sufficient. Daris vs. Gibson,

2 Ark R 115, and other cases cited. Where a creditor brings an action upon an admivistrator's bond on account of the

failure of the administrator to pay his claim against the es'ate, the declaration
should allege that his claim has been allowed and classed ordered to be paid by the
prolate court, and a demund and refusal by the administrator, as held iu Outluw us.

Yell, 8c., 5 Ark. R. 463, aud viber cases.
Where several are sued upon an obliigation, a successful plea by one discharges tho

other defendants, unless the matter of the plea is of a character going to the per-
sonal discharge of the pleader of which the others could take no advantage: as in

infancy or bankruptcy. And even where the plea of the successful party goes to his personal discharge, it is

irregular lo render judgment against a co defendant in default, until the successful party is taken from the record by nol pros.

Writ of Error to Washington Circuit Court.

This was an action of debt by the State, for the use of Wallace, upon an administrator's bond, against Gordon, the principal in the bond, and Oldham and Cardwell, securities, deter

TERM, 1950)

Gordou vs. State. use Wallace. mined in the Washington Circuit Court, in February, 1815, before the Hon. SEBRON G. SNEED, then one of the Circuit Judges.

The declaration alleged, as special breaches of the bond, that Gordon's estate, at the time of his death, was indebted to Wallace in several sums of money; that the claims were presented to Gordon, as such administrator, and allowed by him, and atterwards filed in the probate court of Washington county, allowed and classed. That Gordon collected and took into his possession the personal estate of his intestate, returned no inventory thereof within the time prescribed by law, but kept and converted the same to his own use, whereby the demands of Wallace remained wholly unpaid.

That Gordon failed to make annual settlements, with the probate court, of his administration, as required by law, but retained the assets in his own hands, whereby the claims of Wallace were not paid.

That he failed and neglected to collect the debts due his intestate, whereby the estate was wasted, and the demands of Wallace not paid.

That, although more than five years had elapsed since the granting of letters of administration to said Gordon on said estate, he had not made a final settlement of his administration, but had converted and disposed of the assets of the estate to his own use, by means whereof Wallace had been deprived of the amount of his claims,

Defendants Oldham and Cardwell pleaded the statute of limitations, to which plaintiff demurred.

Defendant Gordon demurred to the declaration, and assigned, as cause therefor, that no profert was made of the bond sued on or its condition.

The court overruled both demurrers, Gordon declined to plead over, plaintiff took an interlocutory judgment against him, had his damages assessed by a jury, and final judgment. Final judgment discharging Oldham and Cardwell was also rendered by the court.

Gordon brought error.

Gordon vs. State, use Wallace.

(JANUARY Cummins, for the plaintiff. Where the facts stated in the declaration or pleading, cannot, under any form of stating them, be made to exhibit a legal cause of action or ground of defence, the pleading cannot be maintained, though the defect be not specified in the demurrer. (Davis vs. Gibson, 2 Ark. 115. Roach vs. Scogin, 2 Ark. 128. Phillips 8. Martin vs. The Gov., f*c., ib. 382. The Gov., use, fc. vs. Pleasants, 4 Ark. 193. McLaughlin vs. Hutchins, 3 Ark. 207. Ib. 238. 16. 252. 5 ib. 103.) And in no form of stating the facts set out in the declaration, would they show a right of action in Wallace. Outlaw et al. vs. Yell, Gov., &c., 5 Ark. 468. Porter vs. Slate, use Brown, 4 Eng. 226. State, use Wallace vs. Ritter ad., 4 Eng. 244.

The judgment in the court below in favor of the other two defendants, was a discharge as to all. Frazier et al. vs. State Bank, 4 Ark. 509. Bcebe vs. Real Estate Bank, 4 Ark. 546.

ENGLISH, contra.

Mr. Justice Scott delivered the opinion of the Court.

The plaintiff in error insists that the judgment against him upon his demurrer, and also the final judgment against him were erroneous, because, as he contends, the declaration was fatally defective. And there can be no serious question but that this position is well taken: for, in no possible form of stating the facts disclosed in the declaration, can any right of action be shown in the plaintiff below: and therefore, although these imperfections were not specially expressed in the demurrer, they are without the circle of the influence of our statute regulating demurrers, as that has been uniformly expounded by this court. See the cases of Davis vs. Gibson, 2 Ark. R. 175. Cravens f• Wilson vs. Mileham, 1 Eng. 215, and the other cases cited by the counsel.

The plaintiff below sought to recover upon the bond for his individual use and benefit, and to authorize him to do so, as has been well settled, (Outlaw et al. vs. Yell, Gw., fc., 5 Ark. 468. Porter vs. State, use Brown, 4 Eng. 226. State, use vs. Ritter ad., ib. 244,) it was indispensable to aver not only, as he did, that

TIRM, 1850.)

Gordon vs. State, use Wallace.

his claims against the estate had been allowed and classed; but also that the probate court had ordered them to be paid, and that afterwards he had demanded payment of the administrator, and it had been refused.

But even if the declaration had been good, and, upon the overruling of the demurrer, the defendant below had refused to plead over, and elected to stand on his demurrer, as he did, a final judgment against him would have been erroneous, unless the other parties had first been taken off the record by nol pros. after they had, in a separate plea, set up matter going to their personal discharge, as infancy or bankruptcy, and not to the action of the writ, of which the others could take no advantage. Andreus vs. Waring, 20 John. Rep. 160. Robertson vs. Smith, 18 John. Rep. 481. Hall vs. Rochester, 3 Cow. 374.

At common law, a confession of the action by one of several joint defendants, was only a warrant to the court to enter a judgment, unless it afterwards appeared upon the record that the party was entitled to be discharged: therefore, a confession of judgment under such circumstances is but interlocutory, until the final decision of the case as to the rest; and then the confessing defendant must receive the same judgment as his co-defendants. Taylor vs. Beck, 3 Rand. Va. R. 310, 338.

There was manifest error, therefore, not only in overruling the demurrer to the declaration, but also in rendering a separate judgment against the plaintiff in error.

There is no other question presented by this record, as the other judgment is not prejudicial to the plaintiff in error, and is not questioned by him; nor are the other two defendants below parties to this proceeding in error.

Let the judgment against the plaintiff in error be reversed, and the cause remanded.

Mr. Justice Walker, not sitting.

Levy vs. Brown & Fenno.

(JANUARY

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Levy vs. BROWN & Fenno.

In an action ou a note before a justice of the peace, one of the plaintiffs, who was

made a witness by defendant, testified that the contract was usurious; on appeal to the circuit court, he lestified to a diff-rent state of facts, and verdict was rondered for plaintiffs-Held that defendant was evlitled to a new trial on the grounds of surprise, inagnuch as he har relied on the statement of the plaintiff as made before tho

ju lice, and on that account procured no other evidence of the usury. Where a note is executed on a us rious loan, but the usury does not appear on the

face of the note, it may be established by parol.

Writ of Error to Pulaski Circuit Court.

William Brow'n and Joseph Fenno sued Jonas Levy before a justice of the peace of Pulaski county, in March 1848, on the following instrument:

“$100. Thirty days after date we or either of us promise to pay Brown & Fenno, or order, one hundred dollars for value received. Little Rock, Oct. 7, 1847.

WM. FISHER,

JONAS LEVY.Judgment for plaintiffs before the justice, and appeal by Levy to the circuit court of Pulaski county, where the cause was determined before the Hon. Wm. H. SUTTON, then one of the circuit judges, in April 1818.

The cause was submitted to the court'sitting as a jury, defendant relying on the plea of usury. Plaintiff read the note sued on in evidence, and rested.

Defendant introduced as a witness in his behalf Wm. Brown, one of the plaintiffs, who testified that he told Levy that he had many usurious contracts, and that he would lend him $100 entirely upon and for his accommodation, and not upon interest, but that if Fisher, the principal in the note, for whom said money was borrowed, paid interest to Levy at the rate of five per cent. per month, then the witness was to receive such interest,

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