author: Gresg-, J.

text:
    GRIDER AND WIFE v. CLOPTON.

      Fraud — What amounts to. — Representations to amount to fraud must be of' a decided and reliable character, holding out inducements, to make the contract calculated to mislead the purchaser and induce him to buy on the faith and confidence of such representations, and in the absence of means of information to be derived from his own observation and information, and from which he could draw conclusions to guide him in making the contract, independent of the representations of the vendor.

      Same — When recision of sale sought. — When one seeks to rescind the sale of land, if the contract be executed and the conveyance made, and the vendee entered into possession, he is presumed to have examined the evidence of title,, and if he was induced, by fraud, to accept the conveyance, if not evicted, he must show title paramount.
    ■APPEAL FROM PHILLIPS CIRCUIT COURT.
    Hon. John E. Bennett, Circuit Judge.

      JJ. M. Rose, for Appellants.
    This bill should have been dismissed without prejudice, so' that appellee might begin a new suit whenever he should acquire a title that would justify such a step. See Wakefield A Johnson, 26 Ark., 506.

      Garland § Nash, for Appellee.
    1st. The lien of the-appellee for the unpaid purchase money was good — 2 Wash. Beal. Prop. 82, 92 et seq.

    2d.' As to the allegations of fraud, there is no averment that Burgett could not have ascertained the facts for himself, -.and hence these allegations are of no moment — 11 Ark. 58 et -seq.; Adams Eq. 179,187 ; Broom’s Legal Max. 693, 694.
    3d. "VYe submit upon the law and the facts of the whole •case there is no good reason why the decree should not be ..affirmed. 1 Sugd. on Vendors 324, 328; 432 and note, 436; See Folley v. Coiogill, 5 Biford 20; Morgan v. -Shopp, 7 Porter (.Ind.) -540 ; Liffindorfv. Gage; 7 Barb. (N. Y.) 21; lb. 66, 68; 10 Mump. (Tenn.) 579, 581, 84, 85, 86; Milliard on Vendors, 329, 30, 31 and 32 ; 22 Ark. 464 ; 13 lb. 499.
   Gresg-, J.

On the 14th day of December, 1865", H. Clopton sold and conveyed, by deed, to Nancy P. Burgett, one of the appellants, who has since intermarried with Jesse Grider, certain lands for the sum of $30,000; ten thousand of which was paid at the time, and the residue of $20,000 to be paid -on or beforé the 1st of May thereafter, retaining a lien, by • special stipulation in the deed, for the balance of the purchase money. The tract sold containing, in a connected body, the quantity of eight hundred and seventy-eight (878) .■acres. At the May term, 1867, Clopton filed his bill to foreclose his vendor’s lien for the purchase money remaining unpaid, admitting subsequent payments to the amount of .$8,500.

Grider and wife, by answer, cross bill and amended cross bill, assert that the lands were not sold to said Nancy P., nor had she anything to do with making the purchase, but that, -although the deed was made to her, it was bought by her father, Isaac Burgett, since deceased. That her said father, being a man of large means, desired to make an investment -for the said Nancy P.; that Clopton, knowing this fact, made ■-divers representations in regard to his plantation, viz: that it contained 500 or 550 acres of tillable land, an orchard of' 25 or 30 acres of the finest description of fruit; that it was in a connected body; that it was equal in regard to fertility to any of the table lands of Phillips county, etc. That her said father, being then in ill health, was unable to examine ■ said plantation, and did not examine it, but purchased it? relying solely on the representations of Clopton, taking the-deed set out by Clopton, first paying him $10,000, and agreeing to pay the remainder as set out in .the original bill. Avers that while it is true, that there are 550 acres of cleared land therein, yet that 150 of it is hill side, so washed by ravines ■ and gullies, during the war, as to be wholly unfit for cultivation. Avers that the orchard does not contain the number • of acres represented by Clopton, but only eighteen, nor does. it contain the .quality of fruit represented by him. Avers that-her father was to pay the balance of said sum of purchase' money out of his own means, and never consulted said Nancy P. about said purchase. They make Henry E. and IsaacBurgett, administrators of the estate of her said father, parties. defendant to the cross bill, and aver that Clopton and the» said administrators well knew that the same was intended to - be and is a charge against the estate of her father. That Clopton well knew that the many representations he made-in regard to the land, and on the faith of which her father-purchased, were false, etc. They further aver that, the contract having been made with her father, and agreed to be ■ paid out of liis moneys and estate, if any sum is due on said lands, the same should in equity be paid by his personal rep- - resentatives, Henry E. and Isaac Burgett, jr., out of the estate» of said Isaac Burgett, deceased, and make said Henry E. and Isaac, parties defendant to their cross bill.

By amended cross bill, they further charge that, of the - lands conveyed to her (Nancy P.) by metes and bounds,, Clopton was not at the time of said sale and making of said conveyance, the owner, nor had he any title whatever thereto-of about 26 acres ; .and also charge that he sold all the lands; contained in his enclosure, and did not convey,-nor does the lands described, in the deed, cover 26 acres of the land he purported and represented he was selling, and pray answers from the administrators of the estate of her father, and from Olopton, and that Olopton be required to refund, all moneys paid him on the purchase money,.and the said sal e be rescinded; that if that be not done, then that an abatement be made for the lands conveyed, to which he had no title, and also for the land that he represented he ivas selling, but did not convey, and that the residue of the purchase money be declared a charge on the estate of Isaac Burgett, deceased.

Henry and Isaac Burgett, administrators of Isaac Burgett, deceased, answer the cross bill of Jesse and Nancy P. Grider, and aver that, from their own knowledge, at the time of the sale of said lands, and while negotiations for their sale were pending, Nancy P. was a femme sole of full age; that, their intestate intending to give her the sum of $15,000, offered her the choice between taking that sum in cash, or he would invest it in part payment of the sum demanded by Olopton for his plantation, and that, after due deliberation, she chose the latter, and deny that the* purchase was made without her knowledge. They also aver that their intestate never intended to advance to said Nancy P. or pay, of his own means, on said purchase, more than the sum of $15,000. This sum they aver to have been fully paid; first, by their intestate, in his lifetime, in .paying the $10,000, at time of conveyance, and subsequently by themselves as administrators, out of the assets of the estate, by payment of $5,000 more, and that any additional sum over the $15,000 that has been paid, has been in pursuance of arrangement with said Nancy P. and not out of the estate.

They further say, in their answer, “that while they do not know that their said intestate, in buying said lands, as agent for his said daughter, Nancy P., did not depend upon the representations of said Olopton, they do not believe that he did,'as they well remember to have heard him say, before said trade was .finally closed, that lie had rode over said land, and had fully examined it; that part of it was sometimes washed, but that having cultivated hill lands in Missouri, he knew exactly how to manage it, and that he'thought Olopton was mistaken in saying the orchard contained twenty-five acres; that he did not think it contained over twenty acres, if' so much.,”

Clopton answered the cross bill of the Griders; denies the making of any false or fraudulent representations to Isaac Burgett, to induce him to 'make the purchase; denies that said Burgett relied upon any representation made by him, and avers that he (Burgett) rode over the place, examined every part of it, and particularly all the cleared lands, in- ' eluding- the hill side and the orchard, and expressed himself well pleased with it, and that the purchase was made after full and careful examination of the lands, said Burgett relying upon his own judgment. He admits that in the description of the lands, set out in the conveyance, there is twenty-six acres described, to which he has no title, and that he represented himself to own and sell twenty-six acres which he did •not, by his deed, convey, and offers to make good title to said twenty-six acres of land to said Nancy P. He avers that said Nancy P. was put in possession, and is now in possession of all the lands (878 acres) intended to be sold and conveyed; that in conveying to her the said twenty-six acres to which he had no title, he intended no fraud, and believed he was correctly describing the lauds; that the same was a mistake, growing out of error in former descriptions, etc.

On the pleadings and proofs, the] court decreed in favor of Olopton, and found due him the sum of $18,132 92, and that the same should be paid by Jesse and Nancy P. Grider, by a day named in the decree; declared the same a lien on,the lands, and for their sale etc. From this decree Jesse and Nancy P. Grider appealed.

We have carefully examined the testimony in this case, and conceive it to bo amply established by the pleadings find proof, that Isaac Burgett, prior to the purchase of the lands of Clopton, made a personal examination of the place; that he saw the whole of it, at least, of all that had been ever cultivated. This is testified to by four witnesses, and nothing to the contrary appears in the record. That after he made this .examination, negotiations for its sale and purchase were pending for several weeks. That he was a man of large •experience in lands, and a successful planter, and one who, in matters of this kind, relied on his own judgment.

The testimony shows that Clopton, in his representations as to the number of acres of cleared land, never expressed himself positively, but thought there was 500 or 550 acres, and was willing, before its sale, to have the lands measured; ■so too, in regard to the orchard, he thought there was about 25 or 30 acres, and that it had always been called so by the overseers. In both of these points, Mr.. Burgett seems to have made personal examination before the sale, and to have thought there was not so much of either as Clopton, so that he could not have been deceived by any representation Clop-ton made, or be said to have relied upon them.

The testimony also shows that he examined the hillside, saw its condition, and thought he knew for what purpose it was available. Nor do we find that the averments, set up in the. cross .bill of Jesse and Nancy P. Grider, of fraudulent misrepresentations on the pai’t of Clopton, and that it was upon reliance upon the statements of his, that induced the purchase, to be sustained by the proof.

It is also affirmatively established by Clopton, uncontradicted by any proof, that the appellants were put into immediate possession, of all the lands intended to be sold and ■conveyed, viz; the Clopton plantation, containing 878 acres; .and have ever since been possessed of the same; that the -description of the 26 acres, in Clopton’s convéyance, to which he had no title, was a mistake, untainted by any fraud on the part of Clopton, and on the trial of the cause, Clopton, who had procured a perfect title, tenders and files with the exhibits, a conveyance for the 26 acres omitted in the original deed, and which last named tract appears: to have been at all times in the possession of appellants.

■ When the sale was finally closed, there were no notes or other obligations given for the purchase money, and the answers of .Henry and Isaac Burgett to the cross bill of appellants, being directly responsive to inquiries of. Jesse and Nancy P. Grider, disclose that their intestate purchased the place, as agent and in behalf of Nancy P., in pursuance of arrangements made with her, and that he intended to pay only the sum of $15,000 of his own means. In this, appellants seem to have acquiesced, for the administrators paid $5000 out of the assets- of the estate, and the sums of money paid in excess of $15,000 ($3500) were paid by Henry E. Burgett out of his private means, as an advancement to his-sister, the said Nancy P., and by arrangement with her.

The law applicable to this- case is well settled, and does not require elaboration. Where a party seeks in equity to rescind a contract, for fraudulent representations' made by the-vendor, “ they must be of a decided and reliable character, calculated to mislead the purchaser and induce him to buy on the faith and confidence of such representations, and must-have been made in the absence of the means of information on the part of the purchaser, to be derived from, his own observation and inspection, and from which he could draw conclusions to guide him in making the contract, independent of the representations of the vendor.” Yeates et al. vs. Pryor, 11 Ark., 58.

Where one has the opportunity to examine for himself and fails to do it, but purchases on the representations of another, if he be deceived, he must suffer from carelessness and want of care. So, in a case like the, one at bar, where the means of information were not only accessible, but were availed of, and a personal examination made, equity will not allow him to say that he was induced to purchase on 'the statements and representations of the vendor. Morgan vs. Snapp, 7 Porter (Ind.), 537; Bolton vs. Branch, 22 Ark., 455; Adam’s Equity, 179, 187.

So too, in regard to title, where one seeks to rescind the sale of land, if the contract he executed and conveyance made, and the vendee entered into possession, he is presumed to have examined the evidence of title, and if he was induced by fraud to accept the conveyance, if not evicted, he must, show title paramount. In the case at bar, the failure to originally convey, was by mistake, and for only a small portion, and even were there title paramount, or had the appellants been evicted, equity would not rescind the contract, but would allow an abatement. In the case at bar, the vendor procures complete title, and to correct the mistake, tenders and exhibits a conveyance of the same to appellants. If, at most, appellants could have only asked an abatement for the value of the 26 acres, if Clopton could not have made good conveyance, they certainly cannot complain that a court of equity has permitted him to make them good title and enforced a. performance of the contract.

Where the vendee accepts a deed, and possession, and has not been disturbed in his possession, and there- has been no-fraud, there can be no reeision of the contract at his instance-Bolton vs. Miller, 15 B. Mon., 626; Sugden on Vendors, 432 (n. 1).

All the questions raised by this record were fully discussed and settled in the ease of Yeates et al. vs. Pryor, 11 Ark., 583, and is followed as the law of this ease.

The decree of the court below is in all things affirmed, and. the case remanded to the Circuit Court of Phillips county for such further proceedings as are necessary to carry the decree into execution.

Bennett, J., being disqualified, did not sit in this case.

ITon. W. I. Warwick, Special Supreme Judge.


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    YONLEY v. LAVENDER et al.
    ^Federal Judgments — When against administrators. — Where a judgment was obtained, in a court of the United States, against an administrator in his fiduciary character — execution sued out, lands belonging to the. estate sold, and marshal’s deed to purchaser ; on ejectment brought by purchaser: Held, That a litigant obtaining a judgment, in a court of the United States, against an administrator in his fiduciary character, cannot proceed directly by execution against the estate, and any sale made or deed obtained, under such process, is invalid and worthless; but, the judgment creditor, as in cases of judgments in the State courts, is remitted to the court of probate there to receiye payment or his pro rata out of the assets of the estate.
    APPEAL EROM ARKANSAS CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit Judge.

      Watkins § Rose, for Appellant.
    On behalf of the appellant it is submitted : That the ruling -of this court, in the case of Hornor vs. Hanks, 22 Ark., 572, ;and upon which the court below based its decision, is incorrect, in principle, and annulled by other decisions of binding •obligation. '
    As to the issuance«md final control of the final process of the Federal courts, it is confessed that there are no acts of Congress by which any substantial element of power has ever been abdicated. The act of May 19, 1828, 4 St., 281, and the ;aet of August 1, 1842, 5 Stat., 499, are the only legislation on the subject. The case of Williams vs. Benedict, 8 How., Ill, was a question of lien, and the court did not pass upon this ■question. Neither are the cases of Beale vs. Phillips, 14 How:, •374; and the Bank of Tenn., vs. Horn, 17 How., 160, in point; the question considered being insolvency.
    The decision in Hornor vs. Hanks, is in conflict with. that •of the United ■States vs. Drennen, Hempstead C. C. M., 325,. where the court held that “ if a court is competent to pronounce judgment, it must be equally competent to issue execution to obtain its satisfaction ;” saying that “ a court without the means of executing its judgments and decrees, would be an anomaly in jurisprudence, not deserving the name of a. judicial tribunal. It would be idle to adjudicate what could, not be executed ; and the power to pronounce necessarily implies the power of executing.” The court refer to the 14th. section of the judiciary act, (1 St., 81,) giving to the courts of the United States power to issue all writs which may be necessary for the exercise of their respective jurisdictions* and agreeable to the principles and usages of law. This in 1789. The words in italics referred to the usages and principles of the law as then understood, the common law of Engl land. Smith’s Constitutional Construction Sec. 482. That executions by this law might and did issue against executors and administrators is a matter about which there is no controversy. Here, then, is an undeniable grant of power. The court, in the case of Hornor vs. Hanks, we respectfully submit, fail to show any revocation of this power. '
    Accordingly we believe thatdhere is no case, except that of Hornor vs. Hanks, wherein it has been held in such eases that, after sale and deed made by the marshal, the proceedings could be attacked collaterally and regarded as absolutely void.
    That the decision in that case is incorrect: See Suydam vs. Broadnax, 14 Bet., 75 ; Hyde vs. Stone, 20 How., 175 ; Boyle vs. Zacharie, 6 Bet., 658 ; Balmer vs. Allen, 7 Crunch.,. 550 ; Way-man vs. Southard, 10 Wheat., 23; Bank of the U. States vs. Hal-stead. 10 Wheat, 53; Beers vs. Houghton, 9 Bet., 362 ; Ogden vs. Saunders, 12 Wheat, 280 ; TJ. States vs. Knight, 14 Beters, 316 ; McNutt vs. Bland, 2 Blow., 17; 1 How., 306; 14 Beters, 74 S. P; Bank of Hamilton vs. B)udley’s Lessee, 2 Beters 526 ; Duncan vs. Dorst, 1 How., 306 ; McKinn vs. Voorhees, 7 Crunch, 279; Bayne vs. BBook, 7 Wal., 429 ; Beck vs. Jenness, 7 Hoio., 624 ; Btiggs vs. Johnson Co., 6 Wal., 187; Ableman vs. Booth, 21 How., 516; Dodge vs. Wolsey, 18 Id. 346 ; Green vs. Creighton, 23 Id., 106; Dupuy vs. Bemiss, 2 La. An., 513. • But, furthermore, the proceeding in Hornor vs. Hanks was a direct proceeding.

      The present proceeding is wholly collateral, and the appellant stands only in the light of an ordinary purchaser at such sales. The case, then, has no real application.
    No- court has gone further than this to uphold judicial sales -when attacked collaterally. In- Adamson vs. Cummins, 10 Ark., 541, which is approved in Hornor vs. Hanks, the court held that “ a judgment obtained in the Circuit Court against an administrator, as such, cannot be executed until the estate is settled in the Probate Court; but an execution issued on ■such judgment, before it is ascertained that there are assets to pay it, is' irregular, not void. If the administrator permits a sale under execution to a person who has no notice of the irregularity of its issuance, such sale will not be set aside, though the execution may be quashed.” This case has been ■often approved, particularly in State Bank vs. Noland, 13 Ark., ■304; Newton vs. State Bank, 14 Ark., 15; Byers vs. Fowler, 12 ld.t 272 ; Newton vs. State Bank, 22 Id., 28. There is no question but what this is the law, and if the court below had followed it, the appellant must inevitably have had judgment. The two cases cited in Hornor vs. Hanks, p. 587; of Voorheesvs. Bank of the United States, 10 Bet., 439; Huff vs. Hutchinson, 14 Howard, 588, are emphatically to the same effect. These were cases at law. The court, in Hornor vs. Hanks,insisted that they had no application to that direct proceeding in ■equity. In this case they are exactly in point, and go along with the cases last cited.

      Garland § Nash, for Appellees.
    It is submitted on behalf of the appellees :
    1st. That the deed from the marshal, (upon which appellant relies) fails to state the facts of advertising the lands for sale, and hence his deed is no evidence of title. That the deed should show upon its face, by way of recital, that the law of the State, regulating sales under execution, has been complied with in every particular. See Gould’s Fig., p. 510-11, Sec. 65; '' Hardy vs. Heard et al, 15 Ark., 184. That the duty upon the sheriff to advertise .before sale, is an essential element of title, is mandatory, and not merely directory. See 17 Ark., 106; lb. 546 et seq.; 22 Ark., 19 et seq.; 14 Ark., 39 et seq. So, also, are the decisions of other States on statutes like ours. 4 Dev., i{N. G.) 549; 1 Watts $ Serg, 519 ; 4 Yeats {Penn.) 213; 1 Brev. >,{S. C.) 226; lb., 507; 4 Blackf., 228; ITayden vs. Dunlap, 3 Bibb, {Ky.) 216; Webber vs. Cox, 6 Monroe 110; Sanders heirs-.vs. Norton, 4 Monroe 467; Allison vs. Taylor’s'heirs, 3 B. Mon-.roe, 366. The sheriff has no discretion as to these matters, and his deed must show he has done them. Casey vs. Gregory, 13 -B. Monroe 507; Moore vs. Brown, 11 Howard, 424; cited approvingly in 15 Ark. Sup., 187; Kane vs. Preston, 22 Miss., 133; 12 S. S¡- M., 147; 8 Blackf., 180; 2 Caine’s Reps., 61; 14 Barb., 10; 15 Mass., 329-330.
    That in sales of property, in the United States Courts, the laws regulating such things in the particular States are adopted as a part of the process act of the United States Courts. Conklin’s Treatise, p. 431 (4 th Fd.); Brightly’s Digest of Federal •Courts, p. 659; (11 Process and return;) lb. 410; {Execution, Sec. 1 et seq.;) Hempstead C. C. Rep., p. 726; rule 2 {appendix!).

    2d. On the proposition of law asked by the appellant, in the court below, we submit that the judgment and execution, under which the appellant bought, being rendered in a Federal court against an administrator, the sale was invalid, and nothing was conveyed by and under it. That after obtaining judgment in that court, the parties should have gone to the Probate Court for satisfaction, and could mot sue out execution and sell from the Federal court. See 9 Peters, 62; 2 Black., 599 ; Brightly’s Dig. Federal Courts, pp. 811-22; 4 Mason, C. C., Ill; Brightly’sDig., 451 etseq.; 3 McLean, C. C.,. 174; Brightly’s Dig., p. 424, Sec. 180, 181, 182, et seq. But as decisive of this question, in all its length and breadth, the court is referred to Honor vs. Hanks, 22 Ark., 572, et seq.- This is. just the question there decided. And this court must overrule that case before Yonley’s purchase can be upheld.
   Gregg, J.

The appellee sued the appellant, in ejectment, in the Arkansas Circuit Court, for Sections 15 and 16, in township six north, of range six. The defendant, Anderson, answered that the N J N E qr., and S% S E qr. of Section 16 belonged to him individually, infee, and referred to his chain of title, etc. And he and the other defendants, Lavender,, •Pace, and Ross, jointly answered, denying the plaintiff’s title to all the property claimed; and the issues, formed by consent of all the parties, were submitted to the court, sitting as a jury, upon an agreed statement of the facts to the following: effect:

“In October, 1869, William li. Halliburton, who was the-administrator of Alfred 13. C. HuEose, was removed and the-defendant, Lavender, was duly appointed administrator d& bonis non, and that he is still such administrator and in that capacity, as proprietor, and the other defendants as lessees .unde'r him, held all the lands sued for, except the 160 acres owned by the defendant Anderson.

“That on the 3d of March, 1869, the appellant purchased, these lands, at a marshal’s sale, upon execution of a judgment of the Circuit Court of the United States, for the Eastern District of Arkansas, against William H. Halliburton, as the-administrator of the estate of Alfred B. C. DuBose; that the two 80 acre tracts, claimed by Anderson, had been conveyed to him, etc.; that the value of the rents of that 160 acres was. $500 per year, and of the remainder of the lands, from the 3d. of March, 1869, to the time of trial, was $4325 00.”

The proceedings and judgment in the United States Circuit Court, in favor of Auguste Gautier against said Halliburton, as such administrator, upon which said execution had been issued, and the execution and'marshall’s deed to the appellant, were all referred to and taken as evidence.

It is unnecessary to refer to the facts showing Anderson’s title to the said 160 acres, as that is not urged here by the appellant.

The appellant moved the court below to declare two propositions of law.

“ First: That said plaintiff, by his said purchase thereof at the marshal’s sale, and the deed of conveyance therefor by the marshal to him, in execution of the judgment of said Circuit Court of the United States, set forth in the agreed statement of facts, became and is entitled by law to recover, in this action, the possession of so much of the lands and premises in controversy as were held and occupied, at the time of the commencement of this suit, by the defendants Lavender, Ross, and Pace, being all of said lands and premises, except the two-eighty-acre tracts claimed by said Anderson and described in. his answer, together with damages for the detention thereof,, according to the value of the rents of the same, as agreed on.”'

The second proposition related to the 160 acres, to which Anderson has set up title.

The appellees asked the court, upon the agreed statement of facts, to declare the converse of the appellant’s proposition to be the law of this case, as applicable to the facts, which the court did, and the appellant excepted.

The court found for the appellees and rendered judgment that they go hence and recover their costs from the appellant, from which ruling and judgment he appealed to this court..

The main proposition is to determine whether or not a litigant, who obtains judgment in a court of the United States, against an administrator in his fiduciary character, can proceed directly by execution against the estate, or whether, as in case of judgments in the State courts, he is remitted to. the court of probate, there- to receive payment or his pro rata out of the assets of the estate.

The appellees insist that the marshal’s deed to Yonley fails to sufficiently recite the publication of notice of the sale. The facts, constituting notice, are not detailed as fully and accurately as they might have been, yet. we áre inclined to the opinion that publication of'notice sufficiently appears, and we will direct our attention to the main proposition.

. The spirit of our institutions is to secure the full and equal rights of all of the citizens of the government, and to avoid prejudice or local influence, our political system is so organized that the complainant, who is remote from the forum, is, by the general government, furnished a court, the officers of which are not supposed to be within local influence. But, in this case, it • is insisted the creditor, Gautier, claimed more than equal privileges with the inhabitants of the State, who alike were creditors of the deceased, and that he sought to subject the whole landed estate to the payment of his demand, while others had to appear before a legal trustee and accept a pro rata of the assets.

Appellant’s counsel concede that in the case of Hornor vs. Hanks, 22 Ark. 572, this court passed upon this question; but we are asked to review that case, and to overrule the same, insomuch that it holds that the Federal Courts have not a discretionary power to enforce their judgments by direct execution against lands. and tenements of a decedent in the hands of his representative for administration.

DuBose died before Gautier took any steps to enforce payment of his demand; the validity of that demand depended upon .the laws when made, and whatever these laws were, they entered into and formed a part of the contract. When, made, the -creditor had a right to sue his debtor (upon the maturity of his demand,) and by judgment and execution compel payment out of his effects; but if the debtor died before judgment, he had no right to enforce his demand by execution, but he was required to authenticate and file his demand and accept payment or a pro rata from a trustee, into whose hands the estate passed for settlement with all creditors. And the law declared the manner of. prosecuting claims by approval or by the judgment of a competent court, and this being the creditor’s right, and his only right, and rights being reciprocal under the law, could he change that right by selecting a national forum, and deprive other creditors of equal privileges ? Would this not be more of an invasion of a light than a regulation of the remedy ?

If this is no answer to the argument that it is within the power of Congress to allow the Federal courts to enforce their judgments, without regard to State laws or the interests'of local creditors, it may serve to show what was the purpose and intention of Congress in not so declaring by law, and of the interpretation of congressional will by the courts, in so long observing the laws and practices of the States, in matters not made obligatory upon them by act of Congress.

Our whole system, State and national, is designed to work in harmony, to administer justice rinjformly, and without a contest among the courts as to the right to sit in judgment or enforce their respective mandates in a proper manner. And if our State and national systems, as a whole, have not such uniformity, either by well defined limits, over which the one court cannot intrench upon the other, or if concurrent in power and right, a well understood practice that a subject matter once in hand, by either court, shall be there fully adjusted without interference by any other tribunal, confusion, a clash of power and uncertainty of result, would necessarily follow. •

The system must be harmonious, otherwise, in cases like the one at bar, there would be a scramble between local and non-resident creditors as to who should first exhaust a decedent’s assets; and if the State enactments should give greater facilities than the Federal tribunals, he, whose circumstances forced him into the courts of the United States, would lose all; and on the other hand, if the State administration should be proceeded in with that care and deliberation calculated to realize the very largest sums for the beneficiaries, he, whose accidental situation give him the privilege of the Federal coui’ts, would press his demand, and, in haste, sweep the whole estate from other claimants equally meritorious. And .should the race be equal, who is to determine between the respective officers, as to the right to hold and dispose of the effects subject to seizure ?

By the laws of the State, the whole property and effects of BuBose had been seized; they were in the custody of the law and being marshaled and disposed of for the benefit of creditors and distributees; was it then proper to arrest these effects, take them from a trustee, created by a competent State court; and expose them to sale for the benefit of a singlé creditor ?

These lands were assets in the administrator’s hands to pay debts. If not, it would only leave the appellant in the worse condition, because Cautier did not bring the heir or any one-interested before the court to obtain a judgment against DuBose’s estate, and, of course, such judgment could not be. enforced against these lands, if they were not properly represented by the administrator. All parties recognized the administrator as the trustee of the estate; Gautier claimed nothing of Halliburton or Lavender, as individuals; he-claimed against them as appointees of the State court. All the authority he had, for bringing and maintaining his suit, was derived from his recognition of the appointment under State law, and if State law was not competent to confer power and obligation upon such trustee, Gautier had no right to sue him as such; and if the State law was valid to constitute such trusteeship, (and such validity is admitted) is not State power-competent to prescribe the manner in which such assets shall be distributed ? And if the Federal courts, (which have no-Federal authority for the administration of estates) will recognize the State law in the appointment of an administrator and his responsibility to answer for the estate, will they not also recognize State authority in the distribution of the estate? In other words, if the rules and practice of the Federal courts require them to hold the State laws binding for one purpose, in administration, will they not be binding for all purposes-connected therewith ? If Gautier’s rights in recovering judgment are determined by State law, are not his rights, in satisfying that judgment, measured by the same -rule ?

’ “Whether or not this execution should issue directly against the estate, is not a mere regulation of the remedy, but it very materially changes the rights of those interested in DuBose’s. •estate ; it places Gautier’s claim above a limitation that governs all others.

In the case of Ross et al. vs. Duval et al., 13 Pet., 60, it was said,the act of 1789, so far as process was concerned, related to the laws then in force only, and the 34th section had no application to the conduct of an officer in the service of an execution. In Virginia there was no rule of court regulating executions, but upon a State act, which disallowed executions after a certain date, although a regulation of execution, the Court held that it amounted to a limitation and, under the 34th section, was a rule of decision for the Court. The Court further said: “ In giving effect to this statute, no principle is impugned which is laid down in the case of Wagram vs. Southard; the State law, which the court held, in that case, not to apply in Federal Courts, was a law that regulated proceedings on executions; it was a process act, and not an act of limitation.”

In tlie case of the Bank of Tennessee, etc. vs. Horn, the Bank had a suit pending, and Carney, the debtor, transferred his property, by an order of the proper State Court for the benefit of creditors, under the State insolvent laws;. the Bank obtained judgment after the cálsion had been accepted and .a syndic appointed by the creditors. The Bank took execution, sold the lots and bought them in and took possession, and Horn, who had purchased under the syndic, brought •ejectment, and by a judgment of the United States Court ejected the Bank, which judgment was, on appeal, affirmed. 17 How., 160.

In this case, the lots were placed in the hands of a trustee, for the benefit of creditors, and they wore held not subject to execution upon a judgment in the Federal Court. See also Magill vs. Amour, 11 How., 142.

State acts, subsequent to 1789, which merely regulate process, are not binding upon the Federal Courts, unless adopted by them, but with the laws of the States, operating upon the •contract of parties, it is different.

Section 34, of the act of Congress of September 24,1789, enacts that the laws of the several States, except where the Constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as the rules of decision in trials at common law, in Courts of the United States, in cases where they apply.

By this section of the acts of Congress, State laws ai^e the-rules of decision ; a litigant’s rights are determined by the local laws and, in the case at bar, the local laws allowed no execution; in case of a debtor’s death, his death was a limitation upon all executions; the assets of his estate were seized in trjist for all creditors, publicly sold and distributed pro rata upon claims of the same grade, and the law of the place, when and where the contract was made, limited the creditor to this satisfaction, and consequently this was the-extent of his rights under such contract, a limitation upon Ms demand, and not a mere regulation of process.

And this construction, we think, not inconsistent with the rulings of the Supremé Court of the United States in the cases referred to. That of Sugdon vs. Bodnax, held that a. State law could not deprive a Federal Court of jurisdiction to try a case wherein the plaintiff was a non-resident.

In the case at bar, no one questions the right of the Federal Court to try the matter in controversy, and determine the-fights of the parties.

In the U. S. Bank vs. Halstead, 10 Wheat, 21, it was held, simply, that the Federal Courts were not bound to follow the process acts of the States, subsequent to 1789, and to the same effect is the-ruling in the case of Wagram vs. Southard, and Riggs vs. Johnson County, 6 Wal., 187.

The argument, Of the appellant, that the United States-Circuit Court has made no rule adopting the practice of this State, and that the court has discretionary power to issue process in its own favor, and having exercised that discretion,, its power cannot be questioned, would be sustained by these cases, if the question as to the form of process was the real issue in this'case; but we think, like the case of Ross et al. vs. Duval et al., ubi. sup., it involves largely the right of recovery, and that right, though interwoven with the process of the court, is nevertheless the rule of decision, and the court could not legitimately, under an assumption of regulating its own process, deprive parties of the right they had under the law of the contract. Rights are not unfrequently prescribed by declaring what remedy a party may have. Statutes of limitation only effect or cut off the remedy, yet State limitation acts are laws in Federal Courts. McClung vs. Sullivan, 3 Pet., 277.

Stress is placed upon the case of Payne vs. Hook, 7 Wal., 429: "We see but little in this case not contained in some of the cases already referred to. In this, it is held that the laws of Missouri, divesting her courts of equity jurisdiction in cases of administration of estates, and conferring exclusive jurisdiction on Courts of Probate, could not divest the Federal Courts of their chancery jurisdiction in such cases; that they have, under the United States Constitution, an equitable jurisdiction similar to the High Court of Chancery of England, and that that jurisdiction cannot be defeated by State laws, and that “ It is well settled that a Court of Chancery, as an incident to its power to enforce trusts and make thos'e holding a fiduciary relation account, has jurisdiction to compel executors and administrators .to account and'distribute the assets in their hands.”

The courts retain their jurisdiction'intact, without regard to State enactments, yet they determine the controversies, and award the parties their rights as they exist under the State law§, wherein the contract was made, and in the case of Payne vs. Hook, we see no intimation that Payne w,as to be adjudged any greater rights in the estate than any local creditor, or that the assets should be executed, in his' favor, in a manner different from that in which they were to be disposed of for the benefit of all other creditors. The court took jurisdiction over Hook as the administrator, not to destroy or divest the trust estate in him, but to compel Mm .to faithfully carry out that trust and award Payne the rights to which he was lawfully entitled under the trust the law had reposed in him.

In the case of Green vs. the Lessee of Neal, 6 Pet., 297, the Supreme Court of the United States, after quoting many former decisions, say : “ Quotations might be multiplied, but the above will show that this court has uniformly adopted the decisions of the State tribunals respectively, in the construction .of their statutes; thatc this has been done, as a matter of principle, in all cases where the decision of the State court has become a rule of property. In a great majority of cases, brought before the Federal tribunals, they are called on to enforethe laws of the States; the rights of parties are determined under those laws, and it would be a strange perversion of principle if the judicial exposition of those laws, by the State tribunal, should be disregarded,” etc. See also Jackson vs. Chew, 12 Wheat, 158.

In Mutual Insurance Society vs. Watts, 1 Wheat 270, the Supreme Court said : “This court uniformly acts under the influence of a desire to conform its decisions to those of the State courts over their local laws,” etc. See also McKeen vs. Delancey’s Lessee, 5 Cranch, 32; and Shelby vs. Grey, 11 Wheat, 361; Hornor vs. Hanks, 22 Ark., 572; and cases there cited. In 11 Wheat, 367, it is said: “The statute laws of the State must furnish the rule of decision to the Federal Courts, as far as they comport with the Constitution of the United States, in all cases arising within the respective States,” etc.

It is clear that State laws cannot destroy or impair the jurisdiction of the Federal Courts to try suits between all proper parties, and that the Federal Courts are not bound to follow the mere Practice Acts of the States, subsequent to 1789. Rut the laws of the States, prescribing or limiting the rights of parties to a controversy, are the rules by which the Federal Courts will determine and enforce individual rights, and that the statutes of Arkansas, requiring such •creditor to file his demand in the court of probate, and accept an equitable allowance with all other creditors, is a law limiting his rights and not merely a rule of practice for the courts. And by such law Gautier, in case of DuBose’s death, took nothing, by his contract, greater than his right to enforce his demand against the estate upon an equality with other .claims of the same grade, and to receive his pay or a pro rata from an administrator or executor, into whose hands the estate passed in trust for the'benefit of creditors and heirs or legatees. And as the process, under which the appellant purchased, showed fully upon its face that it was without force and authority of law, he should have taken notice that a purchase and deed thereunder was invalid and worthless.

The judgment of the court below is in all things affirmed.


author: Searle, J.

text:
    VINSANT, Adm’x v. KNOX.
    Probate Courts — Acts during rebellion void. — The granting of letters of administration by a Court of Probate of this State, acting under authority of the convention of 1801, or .while the State was in rebellion, and all acts and proceedings, thereunder, were null and void; and the statute of non claim did not commence to run, against the demands of creditors of such estate, until the granting of letters by a lawful court.
    Construction oe Constitution — Chapters of the Digest. — Section 2, Article XV of the Constitution, gave no power to the revisers to prepare new laws, or to alter or amend old statutes, any further than was necessary to render them consistent among themselves, and in harmony with the new Constitution.
    Same. — The “Chapters of the Digest”-were not such a revision, etc., as was contemplated by the Constitution, and, therefore, derive no force therefrom.

      Same — What Chapters valid. — The “Chapters of the Digest” that are-valid, derive their validity from having been legally enacted by the General Assembly, as other original statutes, and of such statutes, sections from one to ten inclusive, of the Chapter entitled “Circuit Courts,” and Chapters entitled “corporations and organization of municipal corporations,” “regulating the assessment and collection of revenue,” “robbery,” “forgery and counterfeiting,” “enticing females to houses of ill fame,” “trespass on personal property,” “violating the grave,” and “profane cursing and swearing,” were only so enacted and valid.
    APPEAL PROM CRAWEORD CIRCUIT COURT.

      Jesse Turner and Wassell Moore, for Appellants.
    Whether the decision in Hawkins vs. Filldns, 24 Ark., 286, or that of Penn vs. Tollison, 26 Ark., 515, was the true interpretation of the law is immeterial. But we maintain that the Supreme Court, having by its decision in 1866, recognized .and given effect to the action *of the judicial department of the State government during the rebellion, their interpretation Of the law was authoritative and supreme, giving a rule of action which was binding upon individuals and courts alike, in all cases affected by it, until overruled and another interpretation of the law given.
    It is said, that although the claim may be barred under the decision in Hawkins vs. Filldns, it is revived and new life imparted to it, "by.the decision of Penn vs. Tollison. But this cannot he so. A claim barred by the statute of .non claim, which is- a special Act of Limitation, is barred forever. The courts have been exceedingly, strict in enforcing an observance of this statute; so much so, that if an administrator were to allow, and the Probate Court were to allow and class a claim not exhibited until after the expiration of two years' from the grant of administration, the act of the administrator, and of the court, would be not merely voidable but absolutely void; and if the estate of a deceased person were sold under an order of court to pay such barred claim, the sale would be absolutely void. See Angelí on Lim., 160 and 161, 5th edition; 13 Mass.. JR., 203; 3 New Hamp. P., 491; 13 Id. 192; 16 Icl. 172; 15 Id. 6; 15 Id. 58; 10 Ala., 17. See also 17 Ark. P., 533; 18 Ark. P., 334. If then the rule, in reference to demands, barred by the statute of non claim, is so inflexible in'its operation, we submit, with great confidence, that the appellee’s claim is not only barred by the statute of non claim', but otherwise stale and obsolete from lapse of time, and ought not to be enforced.
    The court also erred in assigning the claim to the fourth, instead of the fifth class of claims. See new Digest Chapters --, page 38.

      II. F. Thomason, for appellee.
    It is maintained on.behalf of appellee, that the supposed proceedings of the Crawford Probate Court, in the appointment of an administratrix, etc., in April 1862, was coram non judice. See Constitution of 1864, and also of 1868. See also the case of Latham vs. Clark, 25 Ark. P:, 574, and authorities there cited, and which, by implication, overrule the case of Hawkins vs. Filkins, relied upon by appellant.
   Searle, J.

The appellant’s intestate, Isaiah Yinsant, deceased, and one Marzahl, the latter as principal and the former as security, on the 20th of June, 1860, made and deliv«red their writing obligatory to the appellee, by which, eighteen months, after date, they jointly and severally promised to pay her five hundred dollars, etc. On the 9th of March, 1871, the appellee exhibited her account for allowance, founded on said writing obligatory, to the appellant, as administrator of the estate of the said Vinsant. The account was «examined and .disallowed; whereupon it was filed in the offi.ce of the clerk of the Probate Court of Crawford county. At the April term of said court, 1871, the cause coming on for trial, the appellant filed her special plea in bar of a recovery, -stating in substance, that on the 14th of April, 1862, letters of administration were in due form of law granted to her on the estate of Isaiah Vinsant, deceased; that she immediately thereafter entered iipon the duties of said administration and continued in the discharge of them, by virtue of said letters, until the December term, 1870, of the Crawford Circuit Court, when, by the ruling of said court, it was decided that said grant of administration was invalid, because of the existence of the rebellion at the time it was granted; that, in consequence of said ruling, she applied for and obtained letters of administration anew on said estate, bearing date the 30th of January, 1871, and that she is still acting as administratrix of ■said estate. She further averred that, although letters of administration, on said estate, were granted to her by competent authority, on the said 14th day of April, 1862, the appellee wholly failed to exhibit her said demand, properly authenticated, within two years from said grant of administration, and that, in consequence thereof, the said demand was barred by the statute of non claim. To this plea, the appellee filed her general demurrer, which was sustained by the court, and the claim was allowed and assigned to the fourth class of claims against said estate.

From this judgment an appeal was taken to the Crawford Circuit Court. At the June term, 1871, of said court, the ■cause was tried de novo, and the judgment of the Probate Court in all things affirmed. To this decision the appellant excepted and appealed to this court.

The first question, presented by the pleadings in this case, is, was the demand of the appellee barred by the statute of non claim ?

If the grant of administration to the appellant, on the 14th. of April, 1862, was authorized by law and conferred power upon the administratrix to administer the estate of Isaiah Vinsant, deceased, the appellee’s demand was barred beyond, question. If the grant of such administration was not authorized by law, and conferred no power upon the administratrix to administer said estate, then there was no legal administration upon said estate until the grant of letters on the 80th of January, 1871, and the appellee’s claim was filed in time and properly allowed. Was the grant of administration on the 14th of April, 1862, legal and valid? The determination of this, determines the question above propounded, as to whether the appellee’s claim was barred by the statute of non claim.

The case of Hawkins vs. Filldns, 24 Ark., 286, decided at the December term, 1866, of this court, assumed, substantially, that the government of the State continued to exist, de jure, from the time the State attempted to secede, until suspended by the action of the State Convention of 1864, and that, as a consequence, the action of the State government, during the period, in its several departments, not effecting the integrity of the Union, was authorized by law and of binding force. The court, accordingly, decided that the judgment rendered in that case, by the Circuit Court of Pulaski county, was valid, though it was rendered after the act of secession and pending' the rebellion. But this assumption was totally overruled at the December term 1870, of this court, by the cases of Penn vs. Tollison and Thompson vs. Manhin. These latter cases declare, in substance, that all the action of the several departments of the so-called State government, under Confederate rule, was absolutely null and void. How do these decisiona effect the question under consideration ?

It is contended by appellant’s counsel, that, by the decision, of Hawkins vs. Filldns, the grant of administration in 1862, by irresistible implication, was valid and conferred upon the appellant authority to administer the estate.of her intestate; that consequently the appellee’s claim, not having been filed for allowance within two years, after this grant of administration, was barred, and that the decisions of Penn vs. Tollison and Thompson vs. Mankin, did not revise the claim or prevent the bar. The appellant’s counsel is right in this, if the decision of Hawkins vs. Filkins, in addition to the disposition of that particular case, also, settled, for the time being, the law in all .like cases. We are not prepared however to concede this. The rulings of the court, in that case, were absolutely overruled by the cases of Penn vs. Tollison and Thompson vs. Mankin. They are virtually pronounced as never having been the law. It would, therefore, be improper for us now to regard them as having any validity in the determination of cases coming before the courts for adjudication. The overruling of them was, perhaps, in some respects, not unlike the repealing of an unconstitutional legislative enactment. ,It certainly would not be contended that any.rights could be acquired generally, under and by virtue of an unconstitutional law, that would remain after the repeal of such law.

Likewise, we conceive that it will not be contended that ■persons, other than parties to that suit, acquired any rights under and by virtue of the decision of the case of Hawkins vs. Filkins, which remain and which we are bound to recognize. The parties in the case of Hawkins vs. Filkins, and such other cases as may have been determined in accordance with the rulings in that case, are alone concluded by the decisions in those cases.. The appellant, therefore, in this case, could acquire no rights under and by virtue of the rulings and assumptions of the court in the case of Hawkins vs. Filkins, that would stand after such rulings and assumptions were overruled by the recent decisions. The recent decisions must be regarded as enunciating the law, not only as it stood at the time and since they were made, but as it stood from the time of the attempted secession of the State, in 1.861, anything in the case of Hawkins vs. Filkins to the contrary notwithstanding. The appellant’s letters of administration, therefore, issued in 1862, were not issued according to law, and the appellee’s claim, halving been filed within two years after the grant of administration in 1871, was. properly allowed.

It is further insisted that the "court erred in assigning appellee’s demand to the fourth instead of the fifth class of claims against the estate of the deceased. The demand was assigned in accordance with Section 99, Chapter 4, Gould’s Digest. It is contended, by appellant’s counsel, that it should have been assigned in accordance with Section 1, Chapter'A, entitled, “Allowance of demands against estates,” found under the head of “ Estates of deceased persons,” in the “ Chapters' of the Digest,” passed by the General Asseprbly, in its session of 1869, which required demands of this character to be assigned to the fifth class of claims. The court below, in making the assignment under Section 99, Chapter 4, Gould’s Digest, must have regarded it ás unrepealed and in force, while, at the same time, it must have regarded Section 1 of the Chapter, entitled, “Allowance of demands against estates,” in the “ Chapters of the .Digest,” as a nullity; for it is directly repugnant to the former and, if valid, would certainly operate as á repeal of it, in which case the classification should be made in accordance with its provisions. The validity of this section, (Section 1 of “Allowance of demands against estates,” ) is assailed upon the ground, that it was not enacted, or did not^become a law in the manner prescribed by the Constitution, and upon no other ground, we believe. We will therefore direct our inquiries -particularly to this question, and while doing so, we are not unconscious of .its more than usual impbrtance; for its decision involves not only the case before us, but a multitude of others; not only this section, but the chapter in which it is found, and, indeed, in a great measure, all the chapters of the so-called “ Chapters of the Digest.”

It was provided-in Section 11, Article XV, of the Constitution of the State, that “ This Convention shall appoint not more than three persons, leaimed in the law, whose duty it shall be, to revise and re-arrange the statute laws of this State, both civil and criminal, so as to have but one law on any one subject; and also three other persons, learned in the law, whose duty it shall be, to prepare a Code of Practice for the courts, both civil and criminal, in this State, by abridging- and simplifying the rules of practice and laws in relation, thereto; all of whom shall, at as early a day as practicable, report the result of their labors to the General Assembly for their adoption or modification,” etc. Under this section these persons were appointed, and the so-called “ Chapters of the Digest,” including the chapter and section specially under consideration, were a product of their labors. The duties and powers defined and conferred upon the revisers, were defined and conferred by the above section -alone; and the first question presented is, Are the so-called “ Chapters of the Digest”' such a revision of the statute laws of the State as is contemplated by said sectioxr ? The answer can be arrived at definitely and satisfactorily only, by ascertaining the construction that should be placed upon the words and clause, “ to revise and re-arrange the statute laws,” etc., found in said section, and by ascertaining, also' the character of the “ Chapters of the Digest” in relation thereto. The important word in this clause is, “ to revise.” We do not propose to enter into an extended discussion as to the various shades of meaning that have been given to this word by lawyers. It is sufficient to say that, as a legal term, it has not been uniformly used tornean precisely the same thing. Our purpose, we think, will be sufficiently accomplished, by taking the brief legal definition of the word, as given in Webster’s Dictionary. The meaning there given is, “to review, alter, and amend.” Now we conceive that there is nothing in this definition that would signify an act of absolute origination. The acts expressed by the word, must relate to Something already in existence. And strictly, with such a reference, is the word used in the section or clause under consideration. For the duty of the revisers shall be, “to revise and re-arrange tbe statute laws of. this State,” etc. We certainly cannot force sucb a construction from this clause, as would make it tbe duty of tbe revisers to originate statute laws for tbe “adoption” of tbe legislature in any manner by which it might see jit to assent to them, or to prepare bills for tbe legislature to enact into statute laws. An assumption of tbe former, it seems to us, must be upon the ground, that tbe Constitution created a body other than tbe legislature, with legislative powers, and this would be absurd. An assumption of the latter renders the words of the clause meaningless; for, preparing new bills, certainly is not altering or amending old statutes. Tbe revisers, then, were simply “to review, alter and amend,” and re-arrange sucb statute laws as were in existence at that time. More clearly does this appear from tbe further clause in this section, giving both tbe reason and tbe object of tbe revision, namely, “so as to have but one law on any one subject.” This, we conceive, is tbe natural meaning of tbe clause, and we should warp it to no other. Our opinion, in brief, therefore is, that tbe clause, taken as a whole, simply means sucb a modification and amending of tbe statute laws then in existence, in addition to their re-arrangement, as would render them consistent among themselves, and in harmony with tbe new Constitution of tbe State, nothing more, nothing less. And when so modified, amended, and re-arranged, when so made consistent with themselves, and harmonious with tbe Constitution of tbe State, they were to.be “reported” to tbe General Assembly, for its “ adoption or modification.”

Yery different from this was tbe “Act providing for tbe revision of tbe laws of tbe State of Arkansas,” approved October 26, 1836. By tbe 1st section of this Act, it was provided, “that tbe Governor shall appoint, by and with tbe advice and consent of tbe Senate, two competent persons to revise and arrange tbe statute laws of this State and prepare sucb a code of civil and criminal laws asj in their opinion, may be necessary for the government of the State, and the persons so appointed shall make their report at the next session of the General Assembly, whether it be a regular or a called session.” Under this section, something more than the revision and arrangement of the statute laws was contemplated. The revisers were “to prepare a code of civil and criminal laws,” etc., and great latitude was given them in the preparation of their work. In accordance with these provisions, the revisers, not only revised and arranged the statute laws of the State then in force, but they filled up, so to speak, the chasms that existed in the body of the laws, then in force, on account of their crude, imperfect and meager condition, by preparing and throwing in new laws, the whole constituting a complete-code of civil and criminal law; and “the statutes,” to use the language of the learned editor, Mr. Pike, in his preface to the revised statutes of 1838, “so revised and presented, were referred to appropriate committees, reported to one or the other House, and passed separately, and with such amendments as seemed proper.” ¥e have carefully examined the revised statutes of several other States, and find, universally, that when the revisers went beyond the mere arrangement or digestion of the statute laws, that is, when they so altered and amended them as substantially to make them new, or other than what they were before, and not for the purpose of classification or having “but one law on any one subject,” or when, in order to complete and perfect the system, they prepared entirely new laws, such altered, amended or new laws received the legislative sanction by being regularly enacted in accordance with the requisites of legislation. In the case at bar, it seems the revisers went ' beyond what was required of them, strictly speaking, by Section 11, Article XV, of the Constitution. This section provided for the re-arrangement and digestion of the statute laws, and more than that, it provided for the “re-arrangement and revision of .the statute laws, so as to have but one law on any one subject,” and not more than that.

Now, were tlie “chapters” before us, merely a re-ai’rangoment or digest, (using this term in its restrictive sense) of the •statute laws, a single legislative Act adopting them in a body, would have been sufficient. So likewise, no doubt, were they even a revision of the statute laws, * * * * “so .as to have but one law on any one subject,” this would have been sufficient. But as they do not come within either category, this mode of adopting, if it had been pursued, would have been insufficient. For, in the execution of their trust, the revisers, not so much “re-arranged and revised the statute laws of the State, * * * so as to have but one law on ■any one subject,” as they undertook and did prepare entirely .a new code of laws, as .the most superficial observer will perceive upon a bare inspection of the so called “Chapters of the Digest.” In this they did, without express authority, what the revisers of 1836 were expressly authorized to do. ITence, .as the statutes of the latter were “passed separately” and regularly, so much the more the statutes of the former should have been, though the revisers presumed to act from constitutional authority. By way of more explicit illustration, let us take the section especially under consideration.

This section changes the classification of demands against the estates of deceased persons. Now, were those changes necessary for the re-arrangement of the laws orto render consistent such classification with other statutory provisions, or to make “but one law on any one subject,” the revisers, in making them, acted strictly within the scope of their authority ; but this certainly will not be contended. Those changes, therefore, were without authority, and effected such an alteration of the chapter, as necessitated its separate and regular passage by the Legislature to validate it. Hundreds of other •such instances, in the “chapters,” might be given in illustration -of the subject; besides, whole chapters were changed in toto, as for instance, the chapters entitled “change of venue in criminal cases,” “circuit courts,” “how suits may be brought ■against the State,” etc., etc. In fact, almost every chapter is either new in toto, or affected by these alterations and amendments, in a manner not contemplated by the section providing for the revision. Our opinion then emphatically is, that the work of the revisers, thus accomplished, in order to be valid as laws, should have been regularly and by titles separately enacted, by the General Assembly, as original statute laws. There was certainly as much necessity for it as in the case of the revised statutes of 1838. It is true that the word “adopted” is used in the section of the constitution, providing for the revision of the statutes, etc., as expressing the manner by which the statutes, as revised, should receive the legislative assent. This is a very indefinite term. It may be taken to mean” an assent, otherwise than by a formal passage of the statutes separately as laws, as for instance, by a single legislative enactment, applicable to the whole woi’k of the revisers, however many subjects it might contain, and which, 'perhaps, would have been sufficient as hinted above, and not obnoxious to that provision of the Constitution, which declares that “ no act shall embrace more than one subject, which shall be embraced in its title,” (See section 22, Art. V., Constitution), had they (the “chapters”) been prepared strictly in the manner contemplated by the section providing for the revision.. But, since they were not so prepared, but one mode of “adoption” could be applicable to them, namely, the formal passage of each chapter separately, as ordinary bills. A.nd the - General Assembly seems to have, partly, at least, taken this view, for it made no attempt to adopt the chapters by a single act, applicable to the whole. In further elucidation of these questions, let us briefly glance-at the mode by which the Codes of Civil and Criminal Practice of this State received the legislative sanction. The same section that provided for the revision of the statutes, etc , also-provided for the preparation of Codes of Practice, etc., as will be seen by an examination of said section. And the word “ adopted,” as used in the section, applies equally to -the Codes as prepared and the statutes as revised. Accordingly,. the Codes having been prepared in the mode contemplated by this section, were each entitled and adopted by the General Assembly by a formal act, applicable to-the whole; See pages 17 and 257, Codes of Practice; from which it appears that the General Assembly, in its action upon the Code, is in accord--with the views above expressed. The following is a brief summary of our conclusions, thus far, from the above reasoning :

First. Section 11, Art. XV., of the Constitution, gave no power to the revisers to prepare new laws, or to alter and .amend the old statutes any further than was necessary to render them consistent among themselves and in 'harmony with the new Constitution.

Second. The ‘^'Chapters of the Digest” was not such a revision, etc., as was contemplated by this section, and, therefore, derives no force therefrom.

Third. If valid, they must derive their validity from liavingbeen legally enacted by the General Assembly, as other original statutes.

From these conclusions we are now prepared to consider the second principal question suggested, namely, were the :-so-called “ Chapters of the Digest” legally enacted ? .

Chancellor Kent divides municipal law into written and unwritten, or statute and common law; and he defines written • or statute law to be the express written will of the Legisla-, ture, rendered authoritative by certain prescribed forms and solemnities. 1 Kent, Com., 456. All those rules and solemnities, whether derived from the common law or prescribed by the Constitution, which are of the essentials of law making, must be .observed and complied with, and, without such observance and compliance, the will of the Legislature can have no validity as law. Nothing is law simply and solely because the Legislature wills that it should be. They must enact, and express their determination to that effect, in the mode expressly pointed out by the Constitution, which invests them -with the power, and under all the forms which that instrument impliedly recognizes and renders essential. Cooley’s Con. Lim., 130.

'Nevertheless, “whenever,” to use the language of Judge. Cooley, “ the Legislature is acting in the apparent performance of its legal functions, every reasonable - presumption is-to be made in favor of its action ; it will not be presumed, in any case, from the mere silence of their journals, that either House has exceeded its authority or disregarded a Constitutional requirement in the passage of legislative acts, unless when the Constitution has expressly required the journals to-, show the action taken.” Cooley’s Con. Lim., 135; Weller vs. State, 3 Ohio, N. S., 475; McCulloch vs. State, Hind., 424; Supervisors vs. People, 25 Ill., 181. Keeping in view the above definition of statute laws, and general rules for their passage, we will now direct our inquiries immediately to the question-under consideration.

It is required by the Constitution i(Sec. 21, Art. U.) that-“Every bill and joint resolution shall be read three times on-different daj’U iñ each House, before the final passage thereof,, unless two-thirds of the House, where the same is pending, shall dispense with the rules.” Upon careful examination off the journals (required to be kept, of the proceedings of each; House, by section 16, Art. V., of the Constitution), we find the entries, relating to the readings on the passage of the- .“ chapters ” under consideration, very meager. It appears,from these entries that most of the chapters were read a third time by title in each House, the rules being dispensed with.. Some of the remainder were so read in one House and not in-the other, while none passed these readings regularly, or-even by title in both Houses, the rules being dispensed with. The “chapter” entitled “Allowance of demands against estates,” especially under consideration, was read a third time-by title in both Houses, the rules being dispensed with. See-Senate Journal of 1868-9, page 507, and House Journal of thee same date, page 619. There is no entry of a first and second reading in any manner. That bills, etc., should be read threat times on different days, or that the rules should be dispensed with by a two-third vote if they are not so read, are requirements that should be observed. But there is no Constitutional provision that their observance should be evidenced by an entry upon the journals. If there wore such a provision, the failure of the journals to show the observance of these requirements would doubtless render invalid the legislative acts. But in the absence of such a provision, it must be presumed that these requirements have been complied with, whether evidenced by an entry upon the journals or not so evidenced, the bills having been put upon their final passage and passed. Eor every reasonable intendment is to be taken in favor of the regularity of such proceedings as are not required to be evidenced by entries upon the journals, when not so entered. However, there is much reason for regarding these requirements as merely directory in their character, and that their observance by the General Assembly is secured by their sense of duty and their official oaths, and not by any supervisory power of the courts; any other conclusion, we are inclined to think, would lead to very absurd and alarming consequences. Indeed, it*might be affirmed that it would go very far-towards rendering almost every law of the State invalid. ¥e are of opinion, therefore, that those “ chapters” that have been placed upon-their final passage and passed, are not invalidated by the silence of the journals in relation to the readings.

It is further required by the Constitution, (Sec. 21, Art. V.,) that “No bill or joint resolution shall become a law, without the concurrence of a majority voting. On the final passage of all bills, the vote shall be taken by yeas and nays, and entered on the journal.” All acts, etc., must receive a majority of the members voting. This is a test absolutely essential of their validity. • "Without such majority they would be absolutely null and void. And it is of such paramount importance, that the yeas and nays, as taken, must be ente'red upon the journals. The obvious reason of this is, that the fact of their having passed by the requisite majority be made a matter of record; and such record is conclusive of the fact. From all of which it will be seen that those requirements are essentials of the utmost importance. They are strictly mandatory and must'be complied with. By an examination of the journals in reference to those requirements, as they relate to the “Chapters” under consideration, we find the following facts, “to-wit: All the “ Chapters,” including the one especially under consideration, were placed upon their final passage, either together or separately, and the votes thereupon taken by yeas and nays and entered upon the journals in both houses, with the exception of the chapters upon “arson,” “assault,” etc., “bribery,” etc., “kidnapping,” “maiming,” “obscenity,” “perjury,” etc., “principals and accessories,” “rape,” etc., and “.sabbath breaking.” As to these latter chapters, there is nothing whatever in the Senate journal, showing that they were ever passed. This certainly would invalidate them.

One other question we deem it proper to notice in this connection, and that relates to the manner in which most of the “Chapters,” including tl\e one especially under consideration, were placed upon their final passage and passed in the House, as evidenced by the entries in relation thereto, in the House journal. We find in said journal (paye-619) these entries: “ The following chapters of the revised and digested statutes were severally read a third time, viz : “Apprentices,” “Privilege from arrest,” “Attorney General, Prosecuting Attorneys and County Attorneys.” * *„ * * On motion of Mr. Whit-son, Orderedthat the several chapters be placed upon their passage. The question being put, Shall the chapters pass ? it was decided in the affirmative — yeas, 58, nays, none. And the yeas and nays were entered upon the journal. Another batch of chapters were severally read and passed in the same way, as appears from the journal, page 866. Still another batch of the chapters were severally read and passed in the same way, as appears from the journal, page 985. Still another batch of the chapters were read a third time and passed in the same way, as appears from the journal, page 713. These several batches included all the “ Chapters of the Digest,” with the exception of the one, entitled, “Regulating the assessment and collection of the revenue.” From all of which it appears that these chapters, excepting the chapters in the last batch mentioned, which were read together, were separately read a third time, but it does not appear that they were separately placed upon their final passage and passed. Indeed it may be contended from the language used in the journal, that the chapters of each batch were passed together, or by one vote. Now there may be a question as to whether this would render them invalid. There is no express provision in the Constitution, that each bill or act should be separately placed upon its final passage, and that the separate vote on each should be entered mpon the journals. The words of the Constitution in relation to this matter are : “ On the final passage of all bills, the vote shall be taken by yeas and nays, and entered on the journal.” bfow it will be observed that there is nothing here that would indicate that each bill should be passed separately. Nevertheless, we are constrained to say that each bill should be, for this is a well settled rule of legislation. Yet we are not prepared to say that laws would be. void on account of a disregard of it. Nor do we deem it necessary to settle or determine this question, in this ease. For we are strongly inclined to the opinion, that, though the entries in the journal would seem to indicate otherwise, the House observed the rule and passed each chapter separately. This, at least, must be the presumption, as the Constitution does not require, expressly, the separate entry of each date upon the journals, in the passage of each bill.

The Constitution further requires that “No act shall embrace more than one subject, which shall be embraced in its title.” (Sec. 22, Art. V.) We do not propose to discuss the import of this requirement, or to consider the construction placed upon it, or similar ones, by the courts of other States. The whole subject is fully and lucidly considered in Sedgioick on Statutory and Constitutional Law, page 50; Cooley’s Constitutional Limitations, page 141, and Potter’s Dwarris, page 108. We refer the profession to those works and to the authorities there cited. It is sufficient for us to say, that we are in accord with the great body of those authorities, and must regard this requirement with such reasonable restrictions, as have been laid down in those authorities, as imperative. Considering this requirement with reference to the Chapters under consideration, these questions are suggested: 1st, Were the Chapters acts within the meaning of this requirement? The General Assembly regarded and acted upon them as such, and that is sufficient for us. 2d. Were they sufficiently designated by title? From an examination of the journal, we find that each chapter was denominated in the readings of the General Assembly, by words designed to indicate generally the subject matter of the chapter; for example, chapter 4, under the head of “ Estates of deceased persons, ” was denominated by the words, “Allowance of demands against estates.”- These denominations were called titles by the General Assembly, and read as such in the passage of the chapters. • That this was a very informal and imperfect method of entitling laws, we must admit. But that the acts themselves are void on that account, we are by no means prepared to concede. So far, othei’wise, we must regard them as a substantial compliance with the constitutional requirement, and therefore as good, if they sufficiently meet the requisite, namely: that they properly indicate the subject matter, respectively, of the chapters.

We are of opinion, from a careful examination, that this compliance is substantially satisfied in the chapter especially under consideration, and indeed in all the chapters.

It is further provided by the Constitution (Sec. 27. Art V), that “ The style of the laws of the State shall be, ‘ Be it enacted by the General Assembly of the State of Arkansas.’ ” We find, from an' inspection of the.enrolled bills in the office of the Secretary of State, that the General Assembly strictly complied with the above provision, in a manner about which, there could be no question, in relation to but three of the chapters ; namely, a part of the one entitled “ Circuit Courts,”' another entitled “ Corporations and organization of Municipal Corporations,” and the third, entitled “ Regulating the Assessment and Collection of Revenue.” These have the enacting clause, ‘had have it properly prefixed. Seven of the chapters, entitled “ Robbery,” “ Forgery” and “ Counterfeiting,” “ Enticing Females to Houses of 111 Fame,” “ Trespass, on Personal property,” “ Violating the Grave,”' “ Obscenity,” “ Profane Cursing and Swearing,” have the enacting clause prefixed before the title of the chapter, on a separate piece of paper of smaller size, but similarly attached with the other pieces of the bills. The question arises here, as to whether the manner, in which the style seems to have been attached to these chapters, should be regarded as proper evidence that, the style was actually used by the General Assembly in the passage of these chapters? In answer to this question, it. must be observed that the -original bills, in their passage through the two houses of the G-eneral Assembly, were in the charge and keeping of its sworn officers ; and that when the work of the Legislature was completed upon them, they passed into the keeping of the Secretary of State. Their custody is of so sacred a character, therefore, that it cannot be presumed that they have been altered or in any manner tampered with, unless the contrary should cleaidy appear.

The attaching of the style to the bills or chapters, on a separate piece of paper, cannot be regarded as necessarily implying that the bills or chapters were tampered with. It must, accordingly, be presumed that the style Avas properly observed by the General" Assembly. We now come to a consideration of the other chapters of the Digest, with reference to the requirement of a style. We find from an examination of the enrolled bills, on file in the office of Secretary of State, that all the other chapters, including the one especially under consideration, and sections eleven, twelve, thirteen and fourteen,. of the chapter entitled “ Circuit Courts,” which sections were passed separate and at a different time from the other sections •of the chapter, seem to have been passed without the enacting clause. Now if the requirement of ah enacting clause be imperative, these latter chapters and sections are void. If •directory, otherwise. Let us briefly direct our inquiries to the solution of this somewhat difficult question, difficult be•cause of the meagerness of the authorities throwing light upon it. In the making of laws there are certain requirements that relate more especially to the mode of making them, as for example, that they should be read three times upon different days, or the rules be dispensed with, etc. As to those requirements, some of them have been regarded by the •courts as being directory merely.. But a distinction, we think, is to be made between those requirements which relate more •especially to the authority by which laws are made. The lawmaking power is vested in the General Assembly as constitutionally constituted. That the authority to enact laws, alone resides in that body,-is a. legal truism. Now all requirements, ■especially those of a constitutional character, relating to the legislative authority, strictly speaking, and designed directly to evidence the legislative will to make a law, must be regarded as absolutely essential and imperative. For example, that a bill to become a law must receive a majority of the votes of the General Assembly, and that this must be evidenced hy the entry of the yeas and nays upon the journals of each house, are essentials relating to the authority by which the law is enacted and the requirement of their observance is imperative. Likewise, that the legislative act, when made, should be a written expression of the legislative will, in evidence, not only of the passage, but of the authority of the law-making power, is nearly or quite a self-evident proposition. Likewise, we regard it as necessary that every act, thus ■expressed, should show on its face the authority by which it was enacted and promulgated, in order that it should clearly appear, upon simple inspection of the written law, that it was intended by tbe legislative power which, enacted it, that it should take effect as law. These relate to the legislative-authority as evidences of the authenticity of the legislative-will. These are the features by which courts of justice and the public are to judge of its authenticity and validity. These, then, are essentials of the weightiest importance, and the requirements of their observance, in the enacting and promulgation of laws, are absolutely imperative. Not the least important of these essentials is the style or enacting-clause. So the framers of the Constitution must have regarded it, or they would not have so positively required it in the-fundamental law of the land. It is this that most directly expresses the legislative will to make the law, while the same is in process of passage through the General Assembly, and that most solemnly indicates the authority from which it derives its sanction, when it has passed and become a rule of action for the people. - Accordingly, great importance was attached to the style of these laws in England, from times of great antiquity; See Potters Lwarris on Statutes and Constitutions, 99; 1 Coke upon Littleton, 99. Not less importance has been attached to the style in the United States; See Constitutions of the United States and of the several States. So uniformly has the style, in the enactment of laws, been observed, both in England and the United States, that the courts have-very seldom had occasion to consider tbe subject. ¥e have-been able to find but two cases where this subject has come under the notice of the courts, namely, Irwen vs. Buck, 40 Miss., 292, and State vs. Delesdunn, 7 Texas, 94. In the former case, the court held, substantially, in relation to a provision similar to our own, that it was directory so far as the precise toords required, were considered.

Rut from the tenor of the decision, we infer that it was the -opinion of the court that a . substantial compliance with the constitutional requirement was imperative, that some expression was necessary to declare the legislative will in the enactment of laws. From the above considerations, we are constrained to hold that Section 27, Article must be substantially complied with, and consequently any act or law without the enacting clause, is null and void. This would render invalid all the so called “Chapters of the Digest,” including the chapter especially under consideration, and the four sections of the chapter entitled “Circuit Courts,” above mentioned, with the exception of those to whicji the enacting clause appears, as above pointed out.

It is further provided by the Constitution (Sec. 35, Art. U.) that “every bill and concurrent resolution, except of adjournment, passed by the General Assembly, shall be presented to the .Governor for approval before it becomes a law. * * * If any bill bo not returned by the Governor, within three days (Sunday’s excepted) after it has been presented to him, the same shall become a law, in like manner as if-he had •signed it, unless the General Assembly, by their adjournment, prevents its return, in which case it shall not become a law. The Governor may approve, sign and file in the office of Secretary of State, within three days after the adjournment of the General Assembly, any Act passed during the last three days of the session, and the same shall become a law.”

Most of the “Chapters” were presented to the Governor for Ms approval, and approved in a manner about which there can be no question. The remainder were presented, it seems, in batches, or attached together in' continuous transcripts, for Ms approval. Three of these batches were composed of chapters which passed the General Assembly before • the last three days of its session. Whether approved or not would make no difference, as they were not returned to the House, where they originated, with the Governor’s objections; section 35, Article V, Constitution. If not invalid on other accounts, they would become law under the Constitution. The fourth batch was composed of two chapters, namely, “obscenity” and “violating the grave.” These were passed during the last three days of the session, and the latter alone received the signature of the Governor, in approval, within three days after the adjournment of the General Assembly. As to the proper approval of the latter there can be no doubt. But there may be a question as to whether or not the other chapter could be regarded as approved. The two chapters are in one continuous manuscript, and it is possible that the Governor, when he signed the one, purposed, by the single signature, the approval of both. This, we think, was no approval of the first. The one to which his name was directly signed was alone approved. ■ The constitutional requirement is, that “every bill * * * must be presented to the Governor for his approval,” etc. This clause, we think, indicates a several 'approval. That each bill must be separately signed, we can have no doubt. Any other practice would lead to confusion and uncertainty.

The result of the foregoing considerations shows that the following chapters alone were passed by the General Assembly, with those forms and solemnities necessary to make them valid as laws, namely: Sections from one to ten, inclusive, of the chapter entitled “circuit courts,” and chapters entitled “corporations and organization of municipal, corporations,” “regulating the assessment and collection of revenue,” “robbery,” “forgery and .counterfeiting,” “enticing females to houses of ill-fame,” “trespass on personal property,” “violating the grave,” and “profane cursing and swearing.”

It is hardly necessary to add, in conclusion, that portions of this opinion are dicta, as this is at once apparent. This must occasionally be the case, in undertaking to consider all the questions involving the validity of so large and various a body of laws, as the so called “Chapters of the Digést,” in the adjudication.of a single case, an undertaking we could not be induced to enter upon, had it not been for the public exigency demanding a determination of the validity of these chapters. Nevertheless, though some of these questions are not directly involved in the determination of the case at bar, we have bestowed the same care, in their investigation and disposition, as though they had been so.

Finding that the Chapter, entitled, “allowance of demands against estates” is void, we are of opinion that the court below did not err in assigning the demand, in this case, to the fourth class of claims in accordance with Chapter IV,. Gould’s Digest.

Finding no error in the rulings and judgment of the court below, its-judgment is affirmed.


author: Bennett J.

text:
    HARRISON v. TRADER AND WIFE.
    Marriage Contract.. — The husband is liable for the debts of his wife, created dum, sola, and no contract entered into between the parties, in contemplation of marriage, can change the responsibility and obligation of the husband in this respect, so as to effect the rights of parties outside of the marriage, agreement.
    ERROR TO PHILLIPS CIRCUIT COURT.
    Hon. J. M. Hanks, Circuit Judge.

      Watkins § Pose, and J. C. Palmer for Appellant.
    It is submitted on behalf of the appellant: That the law being, that the husband shall be liable for the debts of the wife, created dum sola, it could only be changed by the law making power. Story on Contracts, Section 88; Chitty on Contracts, 38; Higason vs. Collins, 8 Ark., 241; Lamb vs. Pelden, 16 Ark., 539; Dobbin vs. Hubbard,, 17 Ark., 194; Tyler on Infancy and Coverture, 332.

      English, Gantt English, for Appellees.
   Bennett J.

This is a suit brought, by the indorsee of a bill -of exchange for $2500, drawn by Ella R. Newsome, a feme sole, and Thomas S. N. King, on Bartley Johnson & Co., New Orleans, La., on the 13th of March, 1861, and payable to said Ella K. Newsome, or order, on the 20th day of November thereafter, and indorsed by drawees to plaintiff, accented and protested for non-payment. Defendant, Ella K., subsequently married 'W. H. Trader, and this suit is brought against husband and wife.

The suit was commenced, by attachment, on the 14th day of February, 1867. At the May term of the court, defendants made their appearance. At the next term of the court, defendant Ella K. filed a plea of general issue, and defendant William IT. filed a plea of general issue, and a special plea to the effect that defendants, contemplating marriage, in consideration thereof, and prior thereto, made a marriage contract, which was duly acknowledged and recorded, wherein it was stipulated that the property of neither of said defendants should, after marriage, be taken for the debts of the other. To this plea, plaintiff demurred, which was overruled by the court. Plaintiff electing to rest on his demurrer, and declining to plead over, the court gave judgment for defendants.

Plaintiff' brings error.

The only question presented in the case for our ’consideration, as raised by the demurrer, is : Can a contract, entered into between a man and woman, ’in consideration or contemplation of marriage, change the liability of the husband for the debts of the wife, created dum sola, so as to affect the rights of third parties.

The rule of the common- law throws upon the husband the burthen of his wife’s debts, contracted, by her dum sola, whatever may be their amount, and makes him liable for them during the coverture. Welden vs. Welden, 7 Ohio, St. R., 30; Buckner vs. Smyth, 4 Dessau, (S. C.) 371.

The principle upon which the husband is liable for the debts of the wife, contracted dum sola, is not that he received property by her, for the circumstance of his having received property from her does not increase his liability, nor the fact that lie received no property by her- diminish such liability. Nor is the liability based upon the idea that he is a debtor ; but the real ground of this liability is, that the wife, by her marriage, is entirely deprived of the use and disposal of her property, and can acquire none by her industry. The personal property of the wife passes absolutely to the husband, and ho is entitled to the use of her real estate during coverture, and her person, labor and eai-nings belong unqualifiedly to him. Tyler on Infancy and Coverture, page 382-83.

Marriage is a good consideration to sustain a contract made in contemplation of it, or, as Chancellor Kent says, “ Marriage has always been held to be the highest consideration in law.” Strong vs. Arden, 1 John’s Ch. R., 271.

But a contract made upon such consideration will only be enforced in eqxxity upon those who caxne within the scope of the consideration of marriage. 2 Story’s Eq. Jur., See. 986.

"While, as between'husband and wife, the contracts entered into betweexx themselves before marriage, in reference to the property of oxre another, by means of which they may change and control the general rules of their xiuptial state, may be held good, they cannot change or vary the terms of the coxrjugal relation itself, nor can- they add to or take from the personal rights or duties of husband axxd wife. In the case of Moore vs. Craig, 5 Bos. & Bull., N. R., 148, it was held that xio agreement between the husband and wife can alter the state of liability or non-liability which the law imposes upoxx each.

The ground, upoxx which the plea in the case before us is sought to be supported .is, that the defendants mutually agreed, before mai-riage, that the property of one should not be taken to pay the debts of the other. "While a calm, dispassionate ixxvestigation of many authoxities shows that the common law disabilities of the wife have beexi more carefully pruned than those of the husband, and that he is obliged to pay her axite-nuptial debts, it would seem but. reasonable and just that if she retains her property to her own exclusive use and control, notwithstanding the marriage, this liability on his part should not continue. ' But as thé law remains unchanged in this regard, we cannot hold otherwise than that a compact, no matter how solemnly entered into between a man and woman, that would attempt to, and which has for its object the contravention of the general policy of the law in settling the relations of domestic life, and which creditors, third parties and the public are interested to preserve, is invalid. In the language of Lord Chief Justice Kenyon, in the case of Marshall vs. Mary Rattan, & Tenn. R., page 547, “How can it be in the power of any persons by their private agreements to alter the character and conditions which, by law, result from the state of marriage while it subsists, and from thence to infer rights of action and legal responsibilities as consequences following from such alteration of character and condition; or how can any power, short of that of the Legislature, change that which by the common law of the land is established.”

The law being that the husband shall be liable for the debts of the wife created dum sola, it could not be changed by the individual acts of the man and woman, so as to affect the rights of parties outside of the marriage agreement.

The demurrer was improperly overruled. "The cause is remanded with instructions to sustain the demurrer, and to proceed with the case in accordance with law and not inconsistent with this opinion.