text:
    Eagle et al v. Beard et al.
    1. Practice in Chancery : Parties, defect of, not raised by general demurrer.
    A general demurrer to a complaint does not raise the question of defect of parties. Nevertheless when a determination of the controversy between the parties before the court, can not be had without the presence of other parties, the court must order them to be brought in.
    If a bill has equities, it should not be dismissed for -defect of parties, until refusal of the plaintiff to bring them in upon a proper order of the court to that end j and such order should be made by the court of its own motion, ifthe bill present equitable grounds of relief against all the defendants when brought in. The proper practice in such cases when defect of parties is developed by the bill, and a special demurrer is interposed on that ground, is to sustain the demurrer and dismiss the bill, unless the plaintiff asks leave to amend by bringing in the other' parties. But when the demurrer is general the court should look alone to the equities of the bill, and if the bill should stand with proper parties, it should overrule the demurrer, and order such parties to be brought in as are necessary to a full settlement of the matters in contest between the parties already before the court.
    2. Counties : What they are.

    Counties are not in any respect business corporations for private purposes, nor are they organized exclusively for the common benefit of the citizens and property holders within their limits. They are of a purely political character, constituting the machinery and essential agencies by which the free governments derived from, and modeled upon the representative and popular features of the English Constitution are upheld, and through which, for the-most part, their powers are exercised.
    3. Same : Their rights and liabilities when divided.

    When a county is divided the old county will, without statutory provision retain, the property and remain liable forthe debts of the county and the severed part or new county will be released. But it is competent for the Legislature to apportion the property and the burden between the old and the new counties as. it may deem proper, and compel taxation for the purpose.
    4. Same : Sow created — Legislative power over.

    Counties, cities, and towns, are municipal corporations created by the Legislature, and derive all their powers from it, unless otherwise provided by the-State Constitution.
    The Legislature has the authority to amend the charter of sai i corporation enlarge or diminish its powers; extend or limit its boundaries: divide the same-into two or more; consolidate two or more into one; and even abolish it altogether at its own will and discretion and according to its own views of public-convenience, and without the consent of those comprising the body politic.

      APPEAL from Lonolce Circuit Court in Chancery.
    Hon. J. W. MartiN, Circuit Judge.
    - Hallum, for appellants.
   Eakin, J. :

On the 16th of April, 1873, the General Assembly created the new county of Lonoke, out of portions of the counties ..of Pulaski and Prairie. Sec. 18 of the Act made it “the duty of “ the Board of Supervisors of the counties of Pulaski, Prairie “ and Lonoke, to appoint, each, a suitable person whose duty “ it should be to adjust on an equitable basis, and designate “ the amount of the indebtedness of the counties of Pulaski “and Prairie, which shall be assumed by the county of “Lonoke.”

In order to form the new county 428 square miles of territory were detached from the county of Pulaski, and 252 square miles from the county of Prairie.

The new county was organized under the Act, and during the year, each of the counties named, appointed a commissioner to adjust the amount of the indebtedness of Pulaski and Prairie counties, to be assumed by Lonoke. They met on the 11th of March, 1874, and reported the sum of $40,000, as the debt of Lonoke county, to the county of Pulaski. This report was spread upon the records of the former county.

Afterwards, on the 7th of December, 1875, the General Assembly passed another Act to define the boundaries of Pulaski and other counties, by which an area of 45 square miles was, in one place, detached from Lonoke and transferred to Pulaski; and in another place a like area was transferred from Pulaski to Lonoke. Parts of Pulaski were also transferred to other counties and portions of their territory added to Pulaski. By sec. 4 of the Act it was provided that the Pulaski County Court should make a pro rata division of the debt of the county ac•cording to the assessed value of the property, real and personal, within the several portions of her territory thus out off and attached to the other counties, and enter it upon the records of the court, and cause a transcript to be transmitted to the clerks •of the several other counties, to be laid before their respective courts. It was made the duty of the judges to cause these transcripts to be spread upon the records of their respective courts ; and it was provided that the same should, thereafter, ■stand and become a valid indebtedness, due the said county of Pulaski from each of the other counties. Similar provisions were made for the other counties with regard to their trerritory, which had been added to Pulaski, to be used as a set off. Under this section, in September, 1876, the county of Pulaski transmitted to the Lonoke county clerk, a claim for the sum of $26,-327.65, which was never spread upon the records of the Lonoke County Court. Thus, if valid, the whole debt of the county ■of Lonoke to Pulaski, on account of her territory transferred, •amounted to the sum of $66,327.65.

A similar obligation had accrued from the county of Lonoke to the county of Prairie, on account of her territory originally taken in 1873, amounting to $1,750. This obligation, although •at first rejected by the county of Lonoke, was afterwards fully paid up by the scrip of the latter county.

At the October term, 1876, the County Court of Lonoke ■submitted to the County Court of Pulaski a proposition to pay $30,000 in discharge, and compromise, of all supposed indebtedness, growing out of the two Acts of the General Assembly. This the County Court of Pulaski accepted in a modified form, and the County Court of Lonoke authorized defendant, E. L. Beard, as County Judge, to execute the bonds of that county to the county of Pulaski, ,to the aggregate amount of $30,000, bearing 7 per cent, per annum interest -from the 10th of October, 1876, running ten years to maturity, and at the same time levied a tax of 5 mills on the dollar, on all tbe property of tbe county to pay the outstanding indebtedness. In the-order for this levy the bonds for $30,000 were not alluded to-in any manner. At the time this bill was filed, (January 26,. 1877), the sheriff of Lonoke was about proceeding to collect this tax, and the County Judge was preparing, and about to-issue said bonds.

The bill was filed by citizens and tax payers of Lonoke; county, in behalf of all other citizens and tax payers of the-whole county. It sets up the foregoing facts and submits that fhe two Acts of the General Assembly were unconstitutional,, in so far as they impose a burden upon the body of the whole county; being specially in conflict with the provision that “private property shall not be taken for public use, without just compensation,” and also the fundamental law restraining the Legislature from taking the property of A. and giving it to B.

The prayer is that the County Court, and County Judge of Lonoke, be restrained from issuing said bonds ; and that they and their successors in office be enjoined from paying any portion of said supposed indebtedness, or collecting aiiy tax for that purpose, and for general relief. Only the Judge and-County Court of Lonoke are made parties defendant.

The defendant, (probably the County Judge), interposed a, demurrer in short upon the record. The record shows that “the court being of opinion that the Act of the General Assembly” of April 16th, 1873, “is constitutional and valid, and that the debt imposed by said Act on the county of Lonoke in favor of the county of Pulaski is a lawful and valid debt, complainant’s bill is therefore dismissed.” From which decision and action complainant appealed.

There is an obvious defect of parties to this bill, inasmuch as Pulaski county claims the bonds to be issued, and should, have day in court. The demurrer being general, did not raise-this question. It is made a special ground of demurrer by the 4th clause of section 4564, but it is specially provided by section 4565, Gantt's Digest, that the demurrer shall distinctly specify the grounds of objection to the complaint, or otherwise it shall be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action. Nevertheless it is provided by section 4481, that when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in.

If the bill had equities, it should not have been dismissed •on this account before refusal of the complainants to bring in other parties after a proper order of the court to that end, and ■such an order should have been made by the court of its own motion, if the bill would have presented equitable grounds of relief against all defendants when properly brought in. The proper practice, in such cases, where defect of parties is developed by the bill itself and a special demurrer is interposed on that ground, is to sustain the demurrer and dismiss the bill, unless complainants ask leave to amend by bringing in other parties. But when the demurrer is general, the court should look alone to the equities of the bill, and if it finds that the bill should stand with proper parties, it should overrule the demurrer, and order such parties to be brought in as are indispen-siblc to a fuLl settlement of the matters in interest between the parties already before the court. We must therefore consider the action of the court in sustaining the demurrer at this stage of the pleadings, in all respects as if the county of Pulaski had been a party.

Counties are not, in any respect, business corporations for private purposes ; nor are they organized exclusively for the common benefit of citizens and property holders within their respective limits. They are of a purely political character, constituting the machinery, and essential agencies by which the free governments derived from aud modeled upon the representative and popular features of the English constitution, are upheld, and through which, for the most part, their powers are exercised. The idea of a government by means of counties, comes down from the remotest period of Anglo Saxon history. It was imported to the American colonies with the-common law, and entered, naturally and of course, into the-frame of all their colonial governments; from whence it-passed, by’easy transition and necessary consequence, into-the governments of the States. Our constitutions do not expressly provide for the organization of the territory into counties. This division is taken for granted. The idea of counties undei’lies all American constitutions. They presuppose both-the existence and necessity of counties, and starting from that foundation, proceed to base thereon frames of government, in which the counties act all efficient parts. The political power is composed of representatives from counties. Through them justice is administered, the revenue collected, and the local-police rendered effective. Neither the courts of justice, nor the Executive of the State, can perform anj^ important function, except in the tribunals, or through the offices of the counties.

Having this character, so intimately connected with the public interests, so foreign to any considerations of private convenience in opposition to the common good, it logically follows that the power of the Legislature, to mould and direct these political subdivisions to effect their objects, and cause them to-subserve their highest purposes, must be very great. They are the vitals of the State. Their annihilation as a system would be the destruction of the State. Their inefficiency, her paralysis. The health of the body politic requires that the Legislature should have a power over them analagous to that of the individual over bis own limbs and vitals. It is germain to the subject to allude to the correlative duty of the political power, not only of the States, but of the Federal government, composed of all the States, to see to it, that the counties suffer no detriment from the encroachment of any power which may tend’ to crush their existence, or paralyse their efficiency. Such attacks, making imperceptible advances, and gathering strength from precedents, endanger the foundations of the American system of constitutional government.

Returning to the matter of power, it has been long held with regard to the towns in the New England States, which, there, are political agencies as our counties are here, and with regard to counties also, that upon their division, the old county or town will, without statutory provision, retain the property, and remain liable for the debts. But it is competent for the legislature to apportion the property and the burden between the old and new towns or counties, as it may deem proper, and compel taxation for the purpose. See the cases collected in note 2 on p. 176 of Mr. Cooley’s Work on Taxation. In some of these cases property originally inuring to the use of a portion of the citizens of a town, has been applied to the benefit of all others brought into the same town with them ; and in others, burdens have been imposed on new additions which did not appertain to them before. The power to create new towns or counties, and change the boundaries of old ones, is indispensable to wholesome government, in the ever-varying changes of condition attending our progress in civilization; and that power could not be exercised with sufficient freedom if the Legislature could not, in doing so, apportion benefits and burdens amongst those presumed to be benefited by the change.

This is not, in any true sense, taking the property of A. for the benefit of B. It is simply imposing a tax upon the property of A. and B. together for the direct benefit of the particular political subdivision of the State, and for the general benefit of the whole State in so arranging these political subdivisions, that justice may be administered, the local police provided for, the revenue collected, and political representation secured in the most efficient manner, without injustice to creditors. It is, indeed, like all taxation, taking private property for public uses, but the compensation is presumed in the benefits of the new organization in promoting the welfare and convenience of all the citizens, regardless of locality.

The principles which govern, in such cases, have been recently so thoroughly and clearly discussed in the case of Laramie Co. v. Albany Co., 2 Otto, 307, and authorities so fully quoted, that nothing is left to be added.

“Counties, cities and towns,” says Mr. Justice Clifford, in that case, “are municipal corporations, created by the authority of the Legislature ; and they derive all their powers from the source of their creation, except where the Constitution of the State otherwise provides.” * * * “The Legislature has

authority to amend the charter of such a corporation, enlarge or diminish its powers ; extend or limit its boundaries ; divide the same into two or more ; consolidate two or more into one ; and overrule its action whenever it is deemed unwise, impolitic or unjust; and even abolish the municipality altogether, in the legislative discretion,” citing Cooley on Court, 2 Ed., 192, and this maybe done “at the mere will of the Legislature, according to its own views of public convenience, and without any.necessity for the consent of those comprising the body politic.”

He quotes with approbation from the opinion of ParsoNS, C. J., in the early case of Windham v. Portland, 4 Mass., 589, as follows: “If a part of its territory and inhabitants are separated from it by annexation to another, or by the erection of a new corporation, the former corporation still retains all its property, powers, rights and privileges; and remains subject to all its obligations and duties; unless some new provision should be made by the act authorizing the separation.”

“Institutions of this kind,” proceeds Mr. Justice Clifford, “whether called counties or towns, are the auxiliaries of the •State in the important business of municipal rule, and cannot have the least pretention to sustain their privileges, or their •existence, upon anything like a contract between them and the Legislature of the State ; because there is not, and cannot be, any reciprocity of stipulation; and their objects and duties ■are utterly incompatible with everything of the nature of a •compact. Instead of that, the constant practice is, to divide large counties and towns, and to consolidate small ones, to meet the wishes of the residents, or to promote the public interests, as understood by those who control the action of the Legislature. Opposition is sometimes manifested, but it is everywhere acknowledged that the Legislature possesses the power to divide counties and towns at their pleasure ; and to apportion the common property and the common burdens in such manner as to them may seem reasonable and equitable.”

Quoting from ThompsoN, C. J., in the case of Burns v. Clarion Co., 62 Penn., St. 425, he says that these divisions had their origin in the necessities and convenience of the people, but this does not withdraw them from the supervision and control of the State in matters of domestic government. “Proof of that is found in the fact that the Legislature often exercises the power to exempt property liable to taxation : and in many other instances imposes taxes on what was before exempt, or increases the antecedent burdens in that behalf.”

Real or seeming hardships may arise in every exercise of such power. They are unavoidable in all cases where the municipalities own property, or are burdened with debts. The solution of the difficulties belongs to the legislative discretion, in the exercise of which, individual hardship must of necessity yield to the public good.

These views as to the nature of counties, and the powers of the Legislature over them, were early adopted and have been followed by this court, notably, in the case of Pulaski Co. v. Irvin, 4 Ark., 489, and English v. Oliver, 28 Ark., 317. In the latter case the power of the Legislature was upheld, to' compel every county in the State to receive for its taxes for-county purposes the scrip of the State, which at that time was much depreciated. This, in solvent counties, owing m> debts, was in effect and ultimate consequence, an imposition of an additional tax upon the property of the county to supply the depreciation, and an exercise of authority which would, never have been pretended in the case of private corporations or individuals. It must rest alone upon the ground that counties are merely political organizations, parts of the State government, and wholly subject to legislative control. See also, Loftin, sheriff, v. Watson, 32 Ark., 422, and Cole v. White Co., Ib. 51. In the last case Mr. Justice Harrison distinctly announces the main body of principles declared in Laramie v. Albany (counties) supra, with numerous citations of authority.

It results that the Legislature had the power to create the county of Lonoke out of portions of the respective territories, of Pulaski and Prairie, and to apportion the burdens of their respective debts, compelling Lonoke to assume a part, and providing the mode of ascertaining it, even against the will of the inhabitants of the new county, if any objection had been made. These were the conditions imposed upon the people of the new county, under which they were to enjoy the privilege of having a count3r for their better convenience, with right to tax for its support, and for general police purposes, territory formerly belonging to other counties.

Had the Legislature, as it might have done, stopped with the creation of Lonoke, making no provision for the debts of Pulaski and Prairie, the portions from those counties would not have remained liable for the old debts. The burden of those debts did not constitute a lien upon these fractions, which might be followed by creditors into the new counties, and their payment enforced by the taxing power. They would have been released, and would now, if it should be held that the-section of the act imposing a portion of the old Pulaski debt upon the whole of Lonoke, was unconstitutional. It would leave no provision for taxing these fractions separately, and the whole of the debt would be thrown upon the old county,, without its old resources. The Legislature thought it more-equitable to distribute the burden over the whole county of' Lonoke, and this court does not question its power, nor will its discretion either in the original act or the subsequent one,, changing the boundaries, and imposing upon Lonoke an additional burden. Comity towards a co-ordinate department of the government forbids the discussion of matters of discretion, when the power is conceded. The Chancellor did not’ err in holding the act for the creation of Lonoke county constitutional in all its parte.

This first debt was imposed upon Lonoke before, and existed at the time of the adoption of the Constitution of 1874. She-had a right to levy a tax of 5 mills on the dollar to pay that class of indebtedness. The levy is a general one, without reference to any particular debt, and there was no equity to-enjoin it.

In the case of Worthen, County Clerk, v. Badgett et als,, 32 Ark., 496. This court held the Act of March 6th, 1875, authorizing the issuance of bonds by counties to be unconstitutional. When the compromise for the issuance of $30,000' in bonds was made between the two counties in 1876, there was no law enabling Lonoke county to carry out the terms. No county had any power to issue interest-bearing bonds for such purposes. The issuance of them would unnecessarily ■endanger the rights of the tax payers of Lonoke county and lead at least to multiplicity of suits. The prayer to enjoin the issuance of these bonds should have been entertained, and the demurrer overruled. For this error the decree must be reversed and the cause remanded with directions to the Chancellor to overrule the demurrer, and to order the county of Pulaski to be made a party, and brought in, before any answer shall be required, or in case complainants may decline to do so, to ■dismiss the bill for want of proper parties.


source: Caselaw Access Project

author: Eakxn, J. :

license: Public Domain

text:
    Dodson et al v. Mayor and Town Council, Fort Smith.
    I. County Courts : Successors to Board of Supervisors.

    By the Constitution of 1874 County Courts were made successors and mere continuations of the former Boards of Supervisors of the counties.
    •2. Same : Appeals from to Circuit Courts.

    An appeal lies to the Circuit Court from the judgment of the County Court granting or refusing an application to annex territory to a municipal corporation, and the Circuit Court should, on such appeal, retain jurisdiction of the subject matter for final judgment, and try the case de novo; but where the County Court has fairly understood the law, considered the facts and exercised its discretion upon a view of the fitness and propriety of the proposed matter as affecting the interest and convenience of the public, its action then should have not the technical, but much of the persuasive force of a political question finally determined.
    :3. Municipal Corporations: Annexation of Territory to. Construction of Statute.

    By force of the Statute of 1875, the annexation of contiguous territory to a town, follows the vote of the town and the proper formal stepB to be taken in the Oou lty Court, unless there be a remonstrance filed against it and sustained.
    The vote of the town makes a prima fade case for annexation; the onus for showing sufficient cause against it is upon the remonstrants.

      APPEAL from Sebastian Circuit Court.
    Hon. J. H. Rogers, Circuit Judge.

      Newton, and Duval & Cravens, for appellants.

      Clendenning, contra.

   Eakxn, J. :

On the 10th of October, 1877, the town of Fort Smith, by its attorney, presented to the Sebastian County Court a petition for annexation to itself, of certain contiguous territory, described as follows : f “ The N. W. 1-4 of section 16, and all “ of section 17 lying in the State of Arkansas ; and all of sec-, “tipn 8 lying in the State of Arkansas, not included in the “ present limits of Fort Smith, except that part of section 8 “known as DuVal’s new addition, and that portion known as. “DuVal’s field: all in T. 8 N. of R. 32 west, situated in “Sebastian county.” The petition showed that the matter had been duly submitted to the qualified electors of the town as prescribed by law ; and that, at an election held on the 31st. .day of August, 1877, a majority of the votes had been cast for said annexation. A map, or plat, of the territory proposed for annexation, accompanied the petition; which was duly set for hearing on the 14th day of January, 1878.

On that day a remonstrance against the said annexation, was. filed, with the signatures of 106 persons, describing themselves as inhabitants and real estate owners within said contiguous tei’ritory. They declare their opposition to annexation,, and state that they had not bee.i consulted in the matter, and that they believe it would be unjust.

Next day the County Court, upon hearing the petition,, remonstrance, evidence and argument of counsel, held : That as it appeared that the remonstrants constituted a majority of' the freeholders and property owners, residing on said territory sought to be annexed, the petition ought not to be granted. It was therefore rejected, and the town appealed to the Circuit Court. The matter was there heard de novo, after a refusal to dismiss for want of jurisdiction.

The evidence adduced on trial showed that a part of the N. W. 1-4 of said section 16 had been laid off into blocks and lots. That is to say: There were in said section 683 1-2 lots, of which 518 1-2 had been sold ; that there were. 16 1-2 blocks entirely unsold and unnamed ; that part of these blocks were in the woods, and other parts consisted of low, swampy lands ; that the remonstrance was signed by a majority of the occupants and owners of the lots on this quarter section; that on said 17th section, embraced in the map, there was one field of about forty acres, and another of ten acres ; that the Birnie estate owned about 18 1-2 acres; that a part of said section was laid of in lots, ranging from a half acre to two acres, making a total of 80 acres in the State; that the largest portion of said section, to-wit, 300 acres, constituted what is known as the Government reserve, containing the old fort, national cemetery, and other buildings belonging to the United States, and occupied in part by the Federal District Court and its officers. A majority of the occupants and owners on this section also signed the remonstrance. The territory sought to be annexed lies all in the same county with and contiguous to the town of Fort Smith. This was all the evidence.

Upon the hearing the court held that there had been a full compliance with all that the statute inquired, in order to authorize the annexation; and that it was right and proper that the petition therefor should be granted. It was accordingly ordered that the remonstrance be dismissed, the prayer to the petition be granted, and that the said territory included therein be deemed and taken to be included in, and constitute a part of said town. The County Court was further directed to take proper legal steps for such annexation, in conformity with the judgment. The remonstrants excepted and moved for a new trial on the grounds that the Circuit Court had no jurisdiction of the matter; that the rejection of the petition by the County Court was final and conclusive ; and that the finding and judgment of the court was contrary to law and evidence ; The motion was overruled, and thereupon the remonstrants appealed and gave bond for supersedeas.

By the Constitution of 1874, (schedule, sec. 23,) the County Courts were made successors and mere continuations of the former Boards of Supervisors of the counties, and were given exclusive original jurisdiction in all matters necessary to the internal improvement and local concerns of their respective counties (Art. VII, sec. 28). All laws then in force, notin conflict with the new Constitution, were continued until amended or repealed (schedule, sec. 1). By the laws then in force, (Gantt’s Digest, secs. 706 and 1191) appeals lay in all cases, by persons aggrieved, to the Circuit Courts from the final judgments or orders of the Boards of Supervisors. This applies now to the County Courts, and it is plain that the Circuit Court properly entertained jurisdiction of this appeal, and it Avas further the duty of the Circuit Court to retain jurisdiction of the subject matter for final judgment, in the same manner and to the same extent as though original jurisdiction had been conferred on said Circuit Court by law. ( Gantt’s Digest, sec. 1195.)

The only remaining question is, did the court err upon the laAv and the evidence. This leads us to a particular notice of the general Act of March 9th, 1875, providing for the incorporation, organization and government of municipal corporations.

Sections 35, 36 and 37, provide for the creation of new corporations to meet the wishes of the inhabitants of localities, not already incorporated. They are required to file a petition to the County Court, signed by not less than twenty of said inhabitants, with a description and map of the territory, name of the town, and the persons authorized to act for the petitioners in court. A time must then be fixed for hearing said petition, not less than thirty days, of which notice must be given in a mode prescribed by the Act. The hearing must be public, and any person interested may appear and contest the -granting of the prayer, and affidavits may be used on both sides. If the County Court shall be satisfied, upon hearing-the case, that twenty voters reside in the limits described, and have signed the petition, and that the requisites of the law have, in other respects, been complied with; “and it shall, “moreover, be deemed right and proper in the judgment and' “discretion of the court, that said petition shall be granted,” then they shall make an order that the town may be organized, etc.

Sec. 84, under which these proceedings were had, was. framed to meet the case of a corporation already, formed, desiring to annex contiguous territory. It provides that the matter shall be first submitted by the town council to the “qualified electors,” which can only mean electors of the town. If a majority desire it, the corporation shall present a petition for that purpose to the County Court, whereupon “the like-proceeding shall be had on said petition as is prescribed in the 35th, 36th and 37th sections of this Act, so far as. the same may be applicable.” The Act then proceeds, “and if within “thirty days after a transcript shall be delivered as provided, “no notice of a complaint against such annexation shall be “given, at the end of said thirty days (and in case of any such “complaint, after the end of thirty days after the dismission “of said complaint) the territory shall in law be deemed, and “be taken to be included in, and shall be a part of said corporation,” etc. It will thus be seen that the annexation is. to take place, unless a complaint be filed ; or if a complaint filed should be dismissed. In the former case, the annexation is effected by operation of the statute, regardless of the action of the court; in the latter the action of the court is presumed to arise on and be directed to the complaint. Inasmuch as the proceedings must, as nearly as possible, mutatis mutandisy conform to those prescribed by the 35th, 36th and 37th sections, it follows that the court in dismissing, or refusing to dismiss, any complaint against annexation, should consider and determine whether under the circumstances it be right and proper in the judgment and discretion of the court, that the petition for annexation should be granted.

All these are obviously proceedings of a political nature, having for their object the promotion of the prosperity of the inhabitants of thickly settled localities and their better government. The counties, as political organizations, have an interest, in the matter-, as well as the State herself. It concerns them, as such, on the one hand that the citizens should have all the aids afforded by local organizations, to increase the numbers, of the inhabitants, promote their comfort, facilitate their business and apppreciate the value of real estate, all of which go. to the augmentation of the county revenues ; and, on the other-hand, that no portions of her citizens may, under pretence of' the necessity of municipal organizations, withdraw themselves, from the general police powers of the counties, with regard, to roads, bridges and other matters conceded to these corporations within their limits.

The very nature of the subject matter, as well as the anomalous character of the proceedings, distinguish cases like this, from ordinary suits between parties, or claims against counties,, in which courts have no discretion, but are subject to rules of law regulating rights. The provisions for organizing towns, etc., are rather ancillary to the governments of the State, and. counties, than acts for conferring or protecting private rights. No particular inhabitants have a vested right to come into, or remain in any town organization, or being in to go out; nor has any town a vested right to compel others to come in. This whole matter, with the power of taxing them, is under the sovereign control of the Legislative body, subject only to constitutional restrictions. It might have made the creation and enlargement of towns depend upon other formalities than the assent of the County Courts, or might organize them directly, perhaps, but where it has made the assent and judgment of the County Courts necessary, it must be presumed that it was for a wise purpose, and the policy of the act should not, without strong reason, be overlooked or thwarted.

Whilst the court is of opinion that an appeal lay in the case, yet we think it should be distinguislied from ordinary suits, or judicial proceedings. The appeal is useful to correct any improper action of the County Court, such as an abuse of discretion, or irregularity of its proceedings, or mistake of law resulting in prejudice to public or private riglits. It is evident that the act for hearing all appeals de novo, although broad enough to cover cases like this, was not framed with a view to them, but to ordinary suits in the Probate Courts, or claims aginst counties, in the County Courts. It is very doubtful whether the Legislature meant to so interfere with the discretion of the County Court in a political matter, as to put it under the entire control of the Circuit Court, without any showing of abuse or mistake. Tliis should always be a grave matter of consideration, and the Circuit Court, in cases like this, should hesitate to interfere with the judgment and discretion of the County Courts, when fairly exercised, without any fraud or manifest mistake as to the law of the case, upon the facts presented. That is to say : where the County Court has fairly understood the law, considered the facts, and exercised

its discretion upon a view of tbe fitness and propriety of the proposed matter, as affecting the interests and convenience of the public, its action then should have, not the technical, but much of the persuasive force of a political question finally determined.

This would have been the positive duty of the Circuit Courts, under the old practice, on appeals from the Probate and County Courts, and no trial de novo would have been proper unless it had been first ascertained that there had been material error ■of law or fact.

But the language of Sec. 1195 of the Digest is so direct and ■comprehensive that we cannot avoid the conclusion that in this •case it was not only the duty of the Circuit Judge to hear the matter de novo, but in doing so, to exercise the same discretion which the County Court might have done originally. There is no middle ground which, as a matter of law, can be securely taken, which would impose it upon the Circuit Court as a matter of positive duty, to regard the view taken of the matter by the County Judge, any further than as the same may be persuasive.

Having this jurisdiction of the cause, and being clothed with this discretion, did the Circuit Judge err in dismissing the complaint or remonstrance? By force of the statute the annexation follows the vote of the city, and the proper formal steps prescribed to be taken in the County Court, unless there be a complaint filed against it and sustained. The vote of the town makes a prima facie case as to the propriety of the annexation. The onus of showing cause against it sufficient to satisfy the judgment of the County Judge, was upon the remonstrants. The only reason they alleged was that it was against their will, and that they had not been consulted.

This was not a valid reason. The power of the Legislature' to include, or cause to be included, in such municipal corporations, any portion of territory, with its inhabitants, and to subject them to taxation for municipal purposes is too well settled for further discussion. The whole matter has been gone over in the case of Eagle et al v. Beard, etc., decided at the present term of this court, and this may be done wholly irrespective of the will or consent of the persons incorporated-It is not taking property without compensation, but subjecting it to public burdens for the compensation presumed to result from the benefits of the corporation.

We do not know what affidavits, or other evidence, were presented to the County Court. The petition, as appears-from the record, was refused, and the remonstrance sustained,, expressly, and only, because it appeared that the remonstrants constituted a majority of the freeholders and property owners residing in said territory sought to be annexed. It does not appear what the judgment of the court would have been upoa the facts, or that the court meant to exercise any discretion based upon views of State or county policy. Its decision rested upon a view of the law, obviously-erroneous, and which precluded any exercise of discretion. It was never called into' action, and the matter passed to the Circuit Court, to be heard as an original cause.

Evidently, the evidence presented to the Circuit Court, with the accompanying map, makes a weak case for the annexation of the outside territory, if the onus of showing the necessity of it had been upon the town. But it is not inconsistent with the evidence to suppose that it was a matter of propriety and public convenience. It is sufficient here to refer to the sentiment of the evidence in the former part of the opinion.

The remonstrants should have shown that the thing proposed ought not to have been done, by facts and circumstances from which the court could judge of its injustice The proof is all very vague and indefinite. What would be the return and ■extent of the burdens imposed upon the proposed territory? What would prevent them from receiving the full benefits of Incorporation in as full a degree as other portions of the city? How many inhabitants were there? How many houses and how distributed? These and many other important considerations, are left, in a large degree, to inference and conjecture. That a large portion was open ground, about fifty acres, is a very important fact; and raises a serious doubt as to the propriety of the incorporation, as proposed. Yet it is not conclusive, without further explanation ; showing that it was of such a nature or so situated, as not to be really proper for city ■objects — or that the real object of incorporating it was to ■acquire the right of taxation without compensatory municipal-■advantages.

Looking at the whole matter, and considering that the onus was on the remonstrants, we cannot say that the Circuit Judge •abused his discretion. The proceedings have been in accord■ance with law, and if the territory has been improvidently added to the town of Fort Smith, the remedy is in the Legis-1 ature alone.

Judgment affirmed.


author: ENGLISH, C. J. :

text:
    Dodd v. State of Arkansas.
    1. CRIMINAL Law : Indictment: Burglary and Larveny may be joined in same.

    If one feloniously enter a house in the night time with intent to steal, he is guilty of burglary though he does not accomplish the theft. If he completes the theft he is guilty of a further offense, and may, by statute, he indicted and punished for both burglary and larceny; and he may be charged with 'the two offenses separately, or jointly in different counts in the same indictment.
    APPEAL from Pulaslci Circuit Court.

      Hou. J. W. MARTIN, Circuit Judge.

      Lea and W. A. Compton, for appellants.

      Henderson, Attorney-General, contra.

   ENGLISH, C. J. :

The indictment in this case contains two counts, the first count charging F. C. Dodd with burglary, and the second count chai’ging him with larceny.

The substance of the first count is as follows :

“The grand jury of Pulaski county, etc., accuse F. C. Dodd of the crime of burglary, committed as follows, viz.: The-said F. C. Dodd, on the 17th day of December, 1877, in the county, etc., aforesaid, and at the hour of eight o’clock of the night of said day, the stable of David Lowe, there situate,, then there feloniously and burglariously did ■ break and enter with intent the goods'and chattels of said David Lowe in said stable then and there being, then and there feloniously and bur-glarious^ to steal, take and carry away; said goods and chattels being of the value of $200 ; against the peace,” etc.

The second count accused the defendant of the further crime of larceny, committed as follows :

“The said F. C. Dodd, on the 17th day of December, 1877,, at etc., two geldings of the value of $100 each, the property of David Lowe, being found as mentioned in the first count herein, did then there feloniously and burglariously steal, take and carry away, against the peace,” etc.

The defendant was tried on the plea of not guilty, and the jury found him guilty as charged in the first count of the indictment, and fixed his punishment at three years imprisonment in the penitentiary ; and they also found him guilty upon the second count, and fixed his punishment at five years in the penitentiary.

He moved for a new trial, which the court refused, and sentenced bim in accordance with the verdict. He took a bill of exceptions, setting out the evidence, the instructions of the-court, the questions of law reserved, and prayed an appeal* which was allowed by one of the judges of this court.

If a man feloniously enter a house, in the night time, with intent to steal, he is guilty of burglary, though he may not accomplish the theft. If he completes the theft, he is guilty of a further offense, and may, by statute, be indicted and punished for both burglary and larceny ; and he may be charged with the two offenses separately, or jointly in different counts of the same indictment, as in this case. Gantt’s Digest, secs. 1349, 1351.

The evidence on the trial that appellant broke and entered the stable of David Lowe in the night time, and took the two horses, is not direct, but circumstantial.

Lowe resided on Capital Hill, Little Rock, Between sun down and dark, on the 17th day of December, 1877, he locked his two carriage horses in his stable, and left home. On his return, about 9 o’clock at night, he found the stable door had been broken open, and the horses were gone. The appellant, who seems to have been a stranger to the witnesses, was seen not far from the stable on that day. Witness, Maxwell, lived about ten miles from Little Rock, on the road to Benton. About 11 o’clock of the night on which Lowe found his stable door broken, and his horses gone, aman riding one horse and leading another, passed Maxwell’s house, and made inquiry about movers, saying he was trying to overtake them. The moon was. shining, and witness could see the color of the horses but did not know the man. On the next day Lowe started in pursuit. He found that one of his horses had been swapped to witness Henderson, who resided near Benton, and about twenty-two miles from Little Rock. Henderson went on with him to Hot Springs, where they found appellant in possession of the horse that Henderson had swapped to him, and Lowe’s other horse, and he was arrested.

Upon these facts, we cannot saj that there was no evidence to warrant the jury in finding that appellant broke and entered the stable of Lowe in the night time, and stole his horses.

The appellant asked the court to give four instructions to the jury, all of which the court gave except the second, which is as follows:

“The naked possession of stolen property unaccompanied by other circumstances tending to. show that the defendant committed the offense charged, is a mere circumstance from which a presumption of guilt may arise, and is easily rebutted by any circumstances tending to prove a contrary conclusion.”

The court instead of giving this instruction in the language in which it was asked, said to the jury in a general charge :

“Upon the question of possession of stolen property, the court charges the jury that the possession of property recently stolen, if unexplained, raises a presumption against the defendant that he is the guilty party. That this presumption is stronger or weaker according to the circumstances of each particular case, and that the jury in determining the force of it must take into consideration all the circumstanees surrounding the case, the kind of property, the length of time intervening between the taking and the possession charged to be guilty. They are to say whether under all the circumstances of this case they are'satisfied beyond a reasonable doubt of the defendants guilt,” etc.

This, upon the facts proven, is not a case of naked possession of stolen property unaccompanied by other circumstances tending to show guilt, as assumed in the instruction asked for appellant. The charge of the court was more appropriate upon the evidence, and fair to the accused. 3 Greenleaf, Ev., sec. 31-2-3.

The appellant did not attempt to account for Ms possession ■of the recently stolen horses.

He failed to prove that he had any local habitation, was engaged in any business, or had any means of purchasing or trading for a pair of carriage horses. He was at Capital Hill ■on the day preceding the night the horses were missing, and a few days after he was followed to Hot Springs, where he was found in possession of one of the horses, and it was proven that he had traded the other to Henderson on his way out.

The horses were locked in the stable between sun down and •dark. The door was found broken, and the horses gone at 9 •o’clock at night. Two hours after, at 11 o’clock, he passed Maxwell’s house ten miles out, with the horses, for no doubt, from the facts in evidence, it was he that passed there at that hour.

It is not probable that the stable door was broken open, and the horses taken out in the day light. At that season of the year (17th of December) it was night by six o’clock. If he had taken the horses from the stable before night, it is probable that he would have been farther away, on his flight, than Maxwell’s house, which was only ten miles off, by 11 o’clock at night

But it was the province of the jury, not ours, to weigh all of the facts and circumstauces in evidence. They found him guilty on both counts of the indictment, and we cannot say, as matter of law, that there was no evidence to warrant the verdict.

Affirmed.


text:
    Geisreiter et al v. Sevier.
    1. Res Judicata: Plea to merits.

    A plea to an action on a note, that the plaintiff is not the legal holder of the note, is not a plea to the merits, and a judgment of the court sustaining such plea is not an extinguishment of the debt, nor a bar to a recovery upon the note by the rightful holder.
    2. BANKRUPTCY: Orders of Register not to be collaterally assailed.

    The validity of an order made by the Register in Bankruptcy, except such as the bankrupt court only has power to make, cannot be collaterally questioned in the absence of any showing that it was disapproved by the court.
    3. Same :
    An order made after the discharge of an assignee in bankruptcy, authorizing him to seb subsequently acquired assets of the bankrupt, is equivalent to opening the discharge, or reappointing him as assignee.
    4. Assignments OP note : Consideration of, not to be questioned by maker.

    The maker of a note when sued by an assignee, cannot question the consideration for the assignment.
    5. Bankrup . oy : When title of assignee to bankrupts estate vests.

    The assignment by the Register to the assigne.?, of the bankrupt’s estate, relates to the commencemtnt of the proceedings in bankruptcy, and thereupon, by operation of law, the title to all the estate of the bankrupt, both legal and equitable, vests in the assignee.
    6. Statute Limitations : When stayed by fraud.

    There must be fraud by the debtor, not by the creditor, to prevent the running-of the Statute of Limitations.
    7. Same: When assignee in bankruptcy barred.

    By the bankrupt act, neither the assignee in bankruptcy, nor his assignee, can. maintain any suit to collect a debt due the bankrupt, after two years from the time the right of action on the debt accrued to the assignee in bankruptcy.
    APPEAL from Jefferson Circuit Court, in Chancery.
    Hon. J. B. Williams, Circuit Judge.

      M. L. Bell, for appellant.

      Bodge & Johnson, contra.
   ENGLISH, C. J. :

The bill in this case was filed in the Circuit Court of Jefferson county, on the 28th of August, 1871, by Ambrose H. Sevier against Sebastian Geisreiter, JamesP. McGaughey, A. L.. Breysacher and B. F. Fall.

The bill alleges, in substance, that on the 3d of September, 1867, William Warren Johnson, being the owner in fee of block No. 12, in James’ addition to the city of Pine Bluff, bargained and sold, and hy deed of that date intended to convey to defendant Geisreiter, said block for $1,200, of Avhich $600 was paid in cash, and the note of Geisreiter taken for-$600, pajuiblc twelve months after date, and secured by an express lien reserved upon the block in the face of the deed.

That after said deed was executed, acknowledged and. recorded, said Wm. Warren Johnsou discovered that by a mere-mistake and clerical error therein he had conveyed to Geis-reiter, block No. 14, in James’ addition to Pine Bluff, which he did not own, instead of said block No. 12, which he did. own, did in fact sell, and intended to convej^ to Geisreiter.

That to correct said mistake, Johnson, on the 18th day of' June, 1868, executed to Geisreiter a second deed, reciting the. first deed, the mistake therein, its registration, etc., and conveying said block by proper description, which deed was duly-acknowledged and recorded. Certified copies of both deeds,, ndth the certificates of acknowledgment and registration, are-made exhibits.

That afterwards, Wm. Warren Johnson was adjudged a, bankrupt, on his own petition ; and James P. Clayton was appointed his assignee in bankruptcy, who, as such, on the 7th of August, 1871, sold and assigned to plaintiff (Sevier) the note for $600, executed by Geisreiter to J ohnson for balance-of purchase money of said block, together with the equitable right and lien of the assignee in bankruptcy upon the property.

The note and assignment are exhibited. That defendants McGaughey, Breysacher and Fall had purchased a part, or the whole, of said block No. 12, and were residing threon, holding- ■ some interest therein unknown to plaintiff, and that they purchased with full knowledge that Geisreiter had not paid said note to Johnson or his assignee in bankruptcy.

Prayer for decree against defendant, Geisreiter, for the •amount of the note, etc., and that the block be condemned to '■'be sold by a commission to satisfy the decree, etc.

McGaughey answered the bill. He admits that Wm. War'ren Johnson sold to Geisreiter said block No. 12, and took his note for purchase monej^ as alleged in the bill’. That • Johnson became a bankrupt some time in the year 1868, but fraudulently omitted to schedule said note for $600, and •assigned it to Benj. S. Johnson, who brought suit upon it on the law side of the Circuit Court of Jefferson county, against 'Geisreiter, to the Spring term, 1869, and that such proceedings were had in the suit, that on trial of an issue joined in the •cause, 19th of May, 1869, judgment was rendered against the plaintiff therein and in favor of Geisreiter, which was a satisfaction and extinction of said note as a lien on said block.

He alleges that on the 6th of October, 1869, he purchased lots 3 and 4 of said block No. 12, of Marcus L. Bell, for •■$1,000, which at the time of the purchase was the full value ■of the lots, and that said judgment being of record, he supposed of course the lien was extinguished, and avers that he was an innocent purchaser for a valuable consideration, without notice of any lien on the property, and claims the protection of the court of equity.

That at .the May term, 1871, of said court, Benjamin S. • Johnson withdrew said note from the files of the court, leav•ing a copy, erased the assignment thereon to himself, and ;by fraudulent combination procnred James P. Clayton, who 'had formerly been assignee in bankruptcy of William War-Ten Johnson, but who had filed his accounts, and been discharged on the 18th of February, 1869, to make an assignment of said note, on the 7th of August, 1871, to com-, plainant, Sevier. That this assignment was illegal, fraudulent and without consideration. That Clayton made no pub-' lie sale of the note, and gave no notice of sale, but assigned it to complainant, without consideration, to enable him to sue upon and collect it for the benefit of Benjamin S. Johnson, or the bankrupt, William Warren Johnson. So he charges that complainant has no legal or equitable title to the note, and ought not to recover upon it as against respondent, who claims to be an innocent purchaser.

That Clayton did not institute suit on the note within two years from the time his right of action accrued thereon,, which was on his appointment as assignee, nor could he by assignment vest in complainant any right to sue on the note..

He asks that Benjamin S. Johnson and James P. Clayton, be made parties to the suit, and that his answer be taken as a. cross-bill against them, and that they be required to answer-the same ; and prays to be discharged with costs.

Geisreiter answered the bill. He adopts the answer of' his co-defendant, McGaughey, so far as it relates to and ad-, mits the sale of the property to him, and the execution of the note by himself, and admits that the two. deeds made exhibits to the bill are copies of the original. He-further adopts the answer of McGaughey so far as it charges the fraud of William Warren Johnson in the suppression of' said note in his bankrupt schedule; and the statement of the suit of Benjamin S. Johnson against respondent on the note,., and the judgment in his favor therein, which he pleads as a. bar to this suit.

Charges that the taking of the note from the records of the court, and the striking out of the assignment thereon, was illegal, and done for the purpose of perfecting and carrying out the original fraud of William Warren Johnson, and the procuring-of Clayton, the pretended assignee of said Johnson, more than two years after his iinal settlement and discharge, to make said pretended assignment and sale of said note to complainant, without notice of public sale, and without consideration, and that said sale and assignment was void, etc.

Also adopts so much of the answer of McGaughey as pleads the limitation of two years allowed the assignee in bankruptcy to sue on the note, etc.

Demurs to the whole bill for want of equity.

Asks that Benjamin S. Johnson and James P. Clayton be made defendants to the suit, and prays to be discharged, etc.

Complainants filed a replication to the answers of McGaughey and Geisreiter. Denies any fraudulent combination on his part as charged in the answer.

Alleges the truth to be that said William Warren Johnson having been legally adjudged a bankrupt, as stated, and the note herein sued on having been adjudged by the Supreme Court of the State to constitute a portion of the assets of said bankrupt, (see Johnson v. Geisreiter, 26 Ark., 44), the same was surrendered to the duly and legally appointed assignee of said bankrupt, and was by said assignee sold under the order of the bankrupt court, and complainant became the purchaser thereof as stated in the bill, which facts would appear from a transcript of the records of the bankrupt court made an exhibit.

That McGaughey was not an innocent purchaser as alleged, etc. That said note was described in the deed from William Warren Johnson to Geisreiter, etc., and also set out and described as an encumbrance upon said block No. 12 in a deed executed by Geisreiter to M. L. Bell and H. King White on the 5th of March, 1869, as the same appeared of record in the recorders office, etc., and that said incumbrance was further recognized and set out in an interchange deed executed between said Bell and White on the 8th of April, 1869, and recorded, etc., certified copies of both of which deeds are made exhibits.

That Bell and White purchased said block No. 12 of Geis-reiter for $700, and for the further consideration of a covenant on their part to hold him harmless against said note, which covenant was fixed by the deed from Geisreiter to them as a special lien on the block. That McGaughey and Fall purchased of Bell and White, and had not paid the full purchase money, but well knowing of said incumbrance withheld a portion of the purchase money for the special purpose of protecting themselves against it, etc.

That Bell and White were the real parties setting up the above defences in this suit, and if there was any fraud in the matter it was on their part, etc.

The cause was heard at the May term, 1877, upon the pleadings, exhibits and the depositions of James P. Clayton; and defendants Breysacher and Fall having failed to answer a decree pro confesso was entered against them. The court held that Benjamin S. Johnson and James P. Clayton were not necessary parties, and rendered a decree against Geisreiter for the amount of the principal and interest of the note in suit, and condemned the whole of block No. 12, to be sold by a commissioner to satisfy the decree, unless the debt should be paid by Geisreiter on or before a day fixed in the decree, etc.

Geisreiter and McGaughey appealed to this court.

1. It appears that in the suit of Benjamin S. Johnson against Geisreiter, on the note in controversy in this case, Geis-reiter pleaded that William Warren Johnson was the owner of the note at the time he filed his petition in bankruptcy, that he did not include the note in his schedule, and assigned it to Benjamin S. Johnson after the filing of the petition. That therefore the assignment was null and void, and that Johnson did not thereby acquire the legal title to the note. That to this plea Johnson demurred, the court overruled tbe demurrer, he-rested, and judgment was rendered discharging Geisreiter from the action with costs. On appeal by Johnson to this court* the judgment was affirmed (at the December term, 1870) the court holding that the bankrupt could not make a valid assignment of the note after filing his petition in bankruptcy. Johnson v. Geisreiter, 26 Ark., 74.

This is the judgment which appellant McGaughey, ■ in his answer to the bill, pleaded as an extinguishment of the note in controversy, and which appellant Geisreiter, in his answer* pleaded as a bar to recovery by appellee, Sevier, in this suit.

The defense made by Geisreiter to the action brought by Benj. S. Johnson on the note, was not a plea to the merits, it was merely a plea that the legal title to the note was not in the plaintiff in the action, and the judgment of the court sustaining-the plea, was not an extinguishment of the debt, nor a bar to* a subsequent recovery upon this note by any person rightfully holding it. Cannon et al v. State, 17 Ark., 365, Moss v. Ashbrook et al, 12 Ark., 375.

' II. It appears that at the May term, 1871, of the Circuit Court of Jefferson county (20th May) Benj. S. Johnson obtained leave of the court to withdraw the note in controversy from the files of the court, on filing a copy thereof.

It appears from a transcript of the records of the District Court of the United States for the Eastern District of Arkansas', in the matter of Wm. Warren Johnson, bankrupt, exhibited with the pleadings in this cause, that on the 18th day of' February, 1869, the accounts of James P. Clayton, as assignee-of Wm. Warren Johnson, which, with a petition for discharge* had been previously filed, were examined and approved by Albert W. Bishop, Register in Bankruptcy* and Clayton discharged.

It also appears that on the 27th of July, 1871* James P._ Clayton filed a petition in the bankrupt court, addressed to-the District Judge, stating, in substance, that he, on the-day of- 1868, by order of the court in bankruptcy, was-appointed assignee of the estate of Wm. Warren Johnson,, bankrupt, pursuant to the 13th section of the Act of Congress to establish a uniform system of bankruptcy, etc. That among the estate of said bankrupt, which had come into his possession, was a note for $600, dated Sept. 3d, 1867, given by Sebastian Geisreiter, and made payable to Wm. Warren Johnson, or order. That this note or claim had come into his possession within the last few days, and after the sale of the other assets of the estate of said bankrupt. That this note was all that remained of the assets of said bankrupt’s estate in his hands ; and praying the court to order the same to be sold at private sale, and the proceeds thereof to be paid over to the Register in Bankruptcy for the benefit of the creditors of the-estate of said bankrupt according to law.

Upon this petition the following order was made by the Register in Bankruptcy.

“On reading and filing the petition of James P. Clayton,, assignee of the estate of the above named bankrupt, it is ordered that said assignee be, and he is hereby authorized, to sell all the interest of said bankrupt in a certain promissory note for six hundred dollars ($600) dated Sept. 3d, 1867, given by one Sebastian Geisreiter, and made payable to the said Wm. W. Johnson or order, at private sale.”

On the 7th of August, 1871, Clayton, as such assignee, reported that he had sold the note mentioned in the order of sale for $15, and filed a sworn account for settlement, (charging $10 for his services), and record petition for discharge.

On the 19th of August, 1871, his account was approved by the register, and he was again dischai’ged.

On the note in controversy, as made an exhibit to the bill, is this endorsement:

“I hereby assign this note, together with all equitable right and lien held by me, as assignee upon said property sold by said Wm. W. Johnson, value received, without recourse on me, to A. H. Sevier.

JAS. P. CLAYTON, Assignee.”

Clayton in his deposition stated that when he sold the note he was of the opinion that it could not be made available to the creditors of the bankrupt, who were numerous, and that an attempt to litigate for the collection of the note would be expensive, and probably unsuccessful. That he had no interest in this suit, etc.

He shows that Benj. S. Johnson was active in procuring his reappointment as assignee, and in obtaining the order to sell the note, etc.

Upon the above facts it is insisted for appellants that the title to the note is not in Sevier, and that he had no right to sue thereon; that the register had no power to make an order directing Clayton to sell the note after his discharge as assignee, no authority to order him to make a private sale of the note, and if he had, Clayton sold the note for a price grossly inadequate, and the sale was therefore invalid.

Orders of the register are made under the supervision and control of the District Court, which is always open for bankrupt purposes, and any order made by the register, except such as the court only has power to make, must be regarded as valid, when collaterally questioned, as in this case, in the absence of any showing that it was disapproved by the court. Rev. Stats, U. S. Bankruptcy, Ch. 1. Rule V. Bump, 9 Ed. 858.

We take it that the order of the register authorizing Clayton, as assignee, to sell the note, made after his first discharge, was equivalent to opening the order discharging Mm, or to his reappointment as assignee.

When assetts come to the hands of ah assignee, or are ascertained to exist, after his discharge, we can see no good reason why the order discharging him might not be opened, or he be reappointed by the court, or register under its supervision, and such, we believe, is the practice.

The order to sell the note at private sale was doubtless made under sec. 28 of the Bankrupt Act, Rev. Stat. U. S., sec. 5064. Bump (9 Bd.) p. 130.

Whether the note was sold by the assignee for little or much did not concern Geisreiter, the maker of the note. He was a debtor, not a creditor of the bankrupt. The creditors might have applied to the bankrupt court to have the sale set aside on the ground that the note was sold for a grossly inadequate price. Bump (9 Bd.) p. 168. The maker of the note, when sued upon it by an assignee, cannot question the consideration given by the assignee to the assignor for the transfer of the note. Booker v. Robbins & Page 26 Ark., 660.

Perhaps if Geisreiter (though not a creditor of the bankrupt) had gone into the bankrupt court, and shown that Clayton, as assignee, under an order of the register, had made a private sale of his note to Sevier for $15, that the note was for $600, secured by a lien upon a block of ground in Pine Bluff, and that he was willing to pay the amount of money due upon the note into court for the benefit of the creditors of the bankrupt, the court would have accepted the money, and on proper process to Sevier required him to bring the note into court, set aside the sale, caused his $15 to be refunded to him, and the note to be surrendered to Geisreiter, and the balance of proceeds distributed to the creditors of the bankrupt.

But neither Geisreiter, nor any creditor of the bankrupt, appears to have made any objection before the bankrupt court to the order of sale, or the sale and assignment of the note to Sevier. We must therefore regard him as holding the legal-title to the note for the purposes of this suit.

III. We are next to enquire whether this suit was barred by the limitation of two years prescribed by the bankrupt act.

“No suit, either at law or in equity, shall be maintainable in. any court between an assignee in bankruptcy and a person claiming an advei-se interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time-when an assignee is appointed. Rev. Stat. C. S., sec. 5037, p. 982.

There was a similar section in the bankrupt act of 1871, and the courts held that the limitation applied to suits by the as-signee to collect the debts and assets of the estate as well as to suits relating to specific property. Mitchell v. Great Work M. & M., Co., 2 Story, 660. Prichard v. Chandler, 2 Curtis, 448. Paulding v. Lee et al, 20 Ala., 753. Harris v. Collins, et al, 13 Ala., 388. Comegys v. McCord, 11 Ala., 932. Archer v. Duvals, ad., 1 Florida, 219. Pike v. Lowell, 32 Maine, 245.

And the weight of judicial opinion (though there are some decisions to the contrary) favors the same ruling under the-limitation section of the late bankrupt act above quoted. Bailey v. Glover, 21 Wallace, 342. Payson v. Coffin, 4 Dillon, 386. Walker v. Towuer, Ib., 165. Miltenberger et al v. Phillips, 2 Wood, 115. Norton, assignee v. D.La Villebeauve, 1 Ib., 163.

The object of the present suit was two-fold ; first, to obtain a personal decree against Geisreiter, a debtor of the bankrupt,. •and second to enforce a vendor’s lien against a block of land in which appellant, McGaughey, claims an adverse interest.

In the deed from William Warren Johnson to Geisreiter of •3d September, 1867, an express lien was retained to securethe .note for $600 given for balance of purchase money, and the deed was not to become absolute until the note was paid. There was a clerical mistake in the deed in describing the block, ■ •but this error was corrected by the deed of 18th of June, 1868, and construing the deeds together, Johnson, the vendor, had a lien on the block, like a mortgage, to secure the payment of the note recited in both deeds for balance of purchase money.

When a debtor has been adjudged a bankrupt, an assignee appointed and qualified, and assignment executed by the register, the assignment relates back to the commencement of the proceedings in bankruptcy, and thereupon, by operation of law, the title to all the property of the bankrupt, both personal and real, legal and equitable, vests in the assignee. Bump, p. 107.

It follows that the legal title to the note in question, with the equitable right to enforce the lien upon block No. 12, which was a security for and an incident to the debt, was in Clayton, as assignee of Johnson, from the time of the assignment (which related back to the commencement of the proceedings in bankruptcy) down to the date of his first discharge as assig-nee, though the note was not included in the schedule of the bankrupt, and was not in the possession of the assignee, during that period. The law vested in him the title to the note ; hence this court heldin Johnson v. Geisreiter, sup., that Johnson (Ben S.) had no title to the note, and could not maintain an action upon it under an assignment made to him by the bankrupt after he filed his petition in bankruptcy.

The note matured on the 3d of September, 1868, when the right of action upon it accrued to Clayton as assignee, for we take it that he could not sue at law upon the note, or bring a bill to foreclose the lien until the debt was due. The statute of limitation commenced running against him when his cause of action accrued, though he was not in possession of the note by reason of the fact that the bankrupt had not included the note in his schedule, but assigned and delivered it to Benjamin S. Johnson. It may have been a fraud, or a mistake, in the bankrupt to omit to schedule, and surrender the note to the assignee, but whether one or the other, it was not the fault of Geisi'citer, the debtor. No fraud or concealment is imputed to him. There must be fraud in the debtor, and not the creditor or his representative, to prevent the running of the statute of limitations. Prichard v. Chandler, 2 Curtis, 488. Bailey v. Glover, et al, 21 Wallace, 342.

The statute was running against Clayton, as assignee, from the maturity of the note, to the time of his first discharge, which was on the 18th of February, 1869, a period of about, five months and a half; but having commenced to run against him when he had the right to sue, it continued to run notwithstanding his discharge, and when he was reappointed, or his discharge opened, however it may be viewed, on the 27th of July, 1871, the two years limitation presented by the statute had expired, and his cause of action was barred. Brown as ad v. Merrick & Fenno, 16 Ark., 612.

This case differs from McOustian v. Barney, M. 8., in which we held that when a right of action accrues to an estate when there is no administrator — no one to bring suit — the statute of limitations does not commence to run until an administrator is appointed.

At the time, therefore, that Clayton sold and assigned the note to Sevier, he had no cause of action at law upon the note, and no right to bring a bill in equity to foreclose the lien. His legal and equitable causes of action were barred in the courts, both Federal and State.

Can an assignee in bankruptcy assign a note barred in his hands by the Federal Statute, and thereby enable his assignee to sue the debtor and put him upon the general statute of limitations of the State?

In Paulding v. Lee et al, 20 Ala., 754, the suit was upon a claim purchased by the complainant of the assignee of a bankrupt firm, and two of the judges held (the others expressing no opinion) that the claim being barred as against a suit by the assignee, by the limitation section of the bankrupt act of 1871, the suit of the complainant was barred by the same statute.

So in Pike v. Lowell, 32 Maine, 245, an assignee in bankruptcy sold to Bolkcom a non-assignable chose in action belonging to the estate of the bankrupt, and Bolkcom not having the legal, but only an equitable title to the claim, sued the debtor in the name of the assignee of the bankrupt- from whom he had purchased the claim. The court held that the suit was barred by the limitation clause of the bankrupt act of 1871. There the assignee of the bankrupt was but the nominal plaintiff, the purchaser of the claim being the virtual plaintiff.

In Judson v. Lathrop, 6 La. An., 587, it was held that the prescription of two years, in the bankrupt act of 1871, related to actions by and against assignees, and not to those for the recovery of debts disposed of as bankrupt assets. It does not appear, however, in this case, that the claim was barred in the hands of the assignee before he sold it.

At the time Clayton sold and assigned the note to Sevier, having no cause of action upon the debt, it being ban’ed by limitation in his hands, he could not transfer to Sevier a larger right than himself posesssed. Nemo plus juris ad alienum transferre potest quam ipse habet. Broom’s Legal Máximes, p. 357.

T\re are of the opinion that the suit of appellee was barred, and the decree of the court must be reversed, and a decree entered here dismissing the bill.


author: HarrisoN, J.:

text:
    James et al v. Belding et al.
    I/ANDLORD AND TENANT :
    A tenant cannot dispute his landlord’3 title.

      Sxst Springs — Jurisdiction of State Courts.

    The jurisdiction of ihe State Circuit Court to try and determine the right of possession to lands or lots within the Hot Springs reservation, is not taken away by the Act of Congress of March 3, 1877, providing for determining the rights of occupants to purchase the parcels or lots they have made improv-rnonts on.
    APPEAL from Garland Circuit Court.
    Hon. J. M. Smith, Circuit Judge.
   HarrisoN, J.:

This was an action by George Belding and Amanda Belding against Henry James and Amanda J. Hill for recovery of the possession of a store-house in the town of Hot Springs, which vfas commenced on the 3d day of November, 1877.

The complaint alleged that the plaintiffs are the owners of the store-house, which is situated on a lot occupied by them in the Hot Springs reservation, and on-which is their residence; that on the 6th day of November, 1876, they leased the same to the defendants for the term of seventeen months, from the 1st day of said month, at the rent of $13.50 per month, payable in advance ; that it was, however, expressly provided in the lease, that if default for fifteen days was made in the payment of the rent or any part of it, the lease should become void, and the possession upon the demand of the plaintiffs be surrendered to them ; that one month’s rent was due, and the ■defendants had been, not only in default in the payment of the rent, fifteen days, but they denied the plaintiff’s title, and refused to pay them rent; and that the plaintiffs after such default for fifteen days, demanded from them the possession of the premises, yet that they refused to surrender the same, but withheld it from them to their damage — two hundred dollars.

The defendants denied that the plaintiffs are the owners of the store-house or entitled to its possession, the title of the ground being they said, in the United States ; and that the store-house was built prior to the 24th day of April, 1876, bjr the defendant James ; that he had sold it to the defendant Hill, who was then and had been eArer since his purchase in the occupancy of it, and that said Hill had filed before the commissioners appointed under the Act of March 3d, 1877, in relation to the said Hot Springs reservation, his claim to purchase the parcel of ground upon which it stands.

They did not deny the alleged lease to them or any other of the allegations of the complaint.

The cause was, at the June term, 1878, submitted to the ■court, sitting as a jury, which found in favor of the plaintiffs, ■and it assessed their damages at $108.

The defendants moved for a new trial, upon the ground that the finding of the court was contrary to law and evidence. Their motion was overruled, and they excepted and appealed.

The proof was that George Bolding had been in the occupancy and possession of the lot upon which the store-house stands, about twenty years, that he employed and paid James to build the store-house, and after it was built the plaintiffs rented it to him, and James paid rent to them until they leased it to him and Hill on the 6th day of November, 1876, and that that they paid the rent up to the first day of October, 1877.

There is no rule of law better settled, than that a tenant cannot dispute his landlords title; and a reference to this rule would seem to be sufficient for the decision of this ease.

But, it is insisted by the appellants, and that is the onty contention in the case, that as Congress has by the Act of March 3d, 1877, made provision for determining the rights of occupants to purchase the parcels or tracts they have made improvements on, the Circuit Court now has no jurisdiction of; any matter relating to lands in the reservations.

To this proposition we can not yield our assent.

It is not as to the right of possession but the fight to purchase, the commissioners are to enquire and determine, and there is not, necessarily, any inconsistency or repugnancy between such rights, for whilst one person may have the right to purchase the tract or parcel, he has improved, another may-under him or as his tenant, be entitled to possession.

The fifth section of the Act is as follows :

“Sec. 5. That it shall be the duty of said commissioners to. show by metes and bounds on the map herein provided for, the. parcels or tracts of lands claimed by reason of improvements, made thereon or occupied by each and every such claimant and occupant on said reservation, to hear any and all proof offered by such claimants and occupants and the United States in respect to said lands and in respect to the improvements thereon, and to finally determine the right of each claimant or occupant to purchase the same, or any portion thereof, at the appraised value, which shall be fixed by said commissioners. Provided, hoioever, That such claimants shall file their claims under the provisions of this Act, before said commissioners within six-calender months after the first sitting of the said board of commissioners, or their claims shall be forever barred, and no claim shall be considered, which has accrued since the twenty fouith day of April, eighteen hundred and seventy-six.”

In the case of Earle's, admx. v. Hale, admr., 31 Ark., 470, which was a suit for the use and occupation of a tavern in the-reservation, the court say : “As between these parties, it is a. matter of no importance whether the United States was or not the legal owner of the property. The United States might, perhaps in strictness, treat Hale as a trespasser, but as an actual settler upon public lands his occupancy has not only been tolerated, but actually encouraged by several Acts of Congress. The improvements upon the public lands have been recognized and held as the property of the occupant by Acts of State-Legislature and by many decisions of this court. They are held to be the property of the occupant or party making the-improvements of value, and the subject of transfer and sale.”

No conflict between the jurisdiction of the court, and the duties and powers of the commissioners can possibly arise, and the reason and necessity for the jurisdiction are as apparent now as before the passage of the act.

The judgment is affirmed.


author: HarrisoN, J. :

text:
    Shackelford v. State of Arkansas.
    Criminal Practice : Evidence of testimony of witness at former trial, when. admissable.

    Evidence of the testimony of a witness before the examining court, is admissa-ble on the trial of the same offense before the Circuit Court, where the witness has forfeited his recognisance and cannot be found. And this though the substance of the witness’ testimony was reduced to writing by the examining court.
    The statute does not now require that the evidence of witnesses before an. examining court shall he reduced to writing and signed by them. It only requires that the names and places of residence of the witnesses and the substance of what was proved, be stated in the minutes of the examinations. The, object of making such statement is not that it shall be used as evidence.
    APPEAL from Lee Circuit Court.
    Hon. John M. Hewett, Special Judge.
   HarrisoN, J. :

The appellant, Frank Shackelford, was indicted with George ;Shackelford, Perry Carlton and Jim Bradford, in the Lee 'Circuit Court, for grand larceny.

He was separately tried, and was convicted and sentenced to the penitentiary for one year.

It was proven upon the trial, that the -store of Y. C. Big-ham, at Moro, in Lee county, was broken into in the night time, and goods and articles of merchandise of the value of •one or two hundred dollars stolen; that upon searching the houses of the appellant and the other defendants, several pairs of shoes, of the goods charged in the indictment to have been stolen, were found in the house in which he lived, and other articles of the stolen goods, in each of the other defendant’s houses, and a hat upon the appellant’s head ; and after proving that one Marshall Williams, who had been sworn and -examined as a witness by the State, upon the trial of the appellant before the examining court, whom the appellant had the ■opportunity and privilege of cross-examining and the substance of whose evidence was taken down under the direction of the ■magistrate, but which he had not signed, was not in attendance upon the court, it being shown that he had, the term before, forfeited his recognizance, and the cause been continued for the want of his evidence; that he had disappeared, and his whereabouts was unknown in the community in which he had usually resided, and that the sheriff, after diligent search and inquiry, had not been able to find him and serve an attachment issued for him as a defaulting witness in the case, the State was permitted, against the objection of the appellant, to prove by J. H. Spivey, the justice of the peace before whom the examination was had, that said Marshall Williams swore •and testified: that sometime in October, 1877, he met in the night the defendant, Frank Shackelford, and George Shackel-ford, Perry Carlton and Jim Bradford, near the village of' Moro, in Lee county, and he was persuaded by them to go with them to break open the store of V. C. Bigham, and steal goods out of it. That they went to the store about mid-, night, and prized up the floor in the back end of the store, and some of them went in and opened the front window, through which they handed out the goods to those on the outside. That Frank Shackelford was there, and engaged in the bfeaking into the store and in stealing the goods, and that after they had gotten the goods, they went to George Shack-elford’s and divided them.

It is insisted for the appellant, that it was error, and such, for which the judgment should be reversed and a new trial ordered, to admit evidence of the testimony of Williams before the examining court.

The exact question before us has never been adjudicated or decided by this court; but in the case of Pope v. The State, 22 Ark., 370, it was, after a very careful examination of the-authorities held, that the evidence of a deceased witness on a. former trial of a criminal cause may be proved on a second or other subsequent trial.

And it Avas decided in Hurley v. The State, 29 Ark., 17, that the deposition of a witness before the committing magistrate or examining court, taken in the defendant’s presence, and when he had an opportunity of cross-examining the witness, may, if he be out of the jurisdiction of the court, be read upon the trial as evidence for the State.

In the latter case the court say: “It is a provision of the-Constitution of the United States, and of the Constitutions of' the States generally, that in criminal prosecutions the accused ‘shall be confronted with the witnesses against him,’ or as expressed in our bill of rights of 1836, ‘to meet the witnesses, face to face.’ It is remarkable that a similar provision is not to be found in the Constitution of 1868, which was in force when this cause was tried below. But the admission of Burns (the absent witness) “was no violation of this old land mark of the criminal law.”

Many cases may be cited in support of the doctrine here declared.

The statute does not now require that the evidence of witnesses before an examining court shall be reduced to writing and signed by them. Nothing more is required, than that the magistrate shall state in the minutes of the examination the name and place of residence of each witness, and make a general statement of the substance of what was proved, and file the same with the proceedings. Gantt’s Digest, see. 1707.

That the object of making such statement is not that it shall be used as evidence is obvious; and it can make no difference as to the admissability of the proof of the evidence before the examining court, that the substance of it was taken down, as in this case, or the statement fuller than required by the statute, for it would not be superior to oral proof. Mr. Wharton in his work on evidence, speaking to this point, says: “Nor is such oral evidence excluded by the fact that the original testimony was reduced to writing. The admission of such evidence is based on the fact that the party against whom the evidence is offered, having had the power to cross-examine on the former trial and the parties and issue being the same, the second suit is virtually a continuance of the first.” 1 Whar. on Ev. sec. 177. And in the same section he says : “What a deceased witness swore to at the preliminary hearing before the committing magisrate is evidence at the trial in chief; what a deceased witness swore to on a criminal trial is evidence on a second trial for the same offence, or an offence substantially the same.”

For the admission of such secondary evidence, it is not essential to prove that the witness is out of the State or beyond the jurisdiction of the court, as was the case in Hurley v. The State. It is enough to prove that his attendance cannot be had. The author we have just quoted, says : “Proof of mere disappearance of the original witness, is not by itself enough to admit such testiriiony, if by due diligence the witness’s attendance could have been secured ; though it is sufficient to show that the original witness is absent and a non-resident in the State when the trial is held, being out of the jurisdiction of the court. It has ever .been held enough, if the witness, though technically within the jurisdiction, cannot without extraordinary inconvenience be brought to the trial.” 1 Whar. ■on Hv. see. 178/

There was no error in the admission of the evidence, and the verdict of the jury was fully sustained by the proof.

The judgment is affirmed.


author: HarRISON, J.:

text:
    Chamblee v. Stokes.
    Pleading : Exhibits, when part of complaint.

    In an action by a mortgagee for the recovery of personal property, claiming to be the owner by virtue of the mortgage, the mortgage is not the foundation of the action, and though filed with the complaint, is no part of it but is simply evidence for the plaintiff to be used at the trial.
    APPEAL from Arkansas Circuit Court.
    Hon. JOHN A. Williams, Circuit Judge.
   HarRISON, J.:

This was an action of replevin for a horse, commenced before a justice of the peace.

The cause of action was stated in the complaint, as follows:

“ The plaintiff, J. W. Chamblee, states that he is the owner by virtue of a certain deed of trust or chattel mortgage executed by James L. Bigham to plaintiff on the 22d day of' March, 1875, and entitled to the possession of one sorrel horse, about six years old, and known by the name of Poodle ;- that the said horse is worth ninety dollars ; that the defendant,. T. J. Stokes, has possession of said horse without right, and. has unlawfully detained him from the plaintiff for one month.”

And the prayer was for the recovery of the possession of the horse and the sum of twenty-five dollars damages for his. detention.

The mortgage mentioned in the complaint was filed with the justice.

The plaintiff recovered judgment before the justice and the-defendant appealed to the Circuit Court.

In the Circuit Court the defendant filed a demurrer to the-complaint, upon the grounds :

1. That the complaint and the exhioit with the same, did not show a sufficient cause of action. 2. That the mortgage,, which it averred was the foundation of the action, was informal, vague, uncertain and insufficient. 8. That the mortgage-did not state or show in which county the property was ; and 4. That the mortgage was usurious and void.

The court. sustained the demurrer, and judgment was rendered for the defendant.

The plaintiff appealed to this court.

The mortgage was not, as the demurrer assumes, the foundation of the action, and it was, though filed with it, no part of the complaint. It was simply evidence for the plaintiff, to be used at the trial. Newm. Plead. and Prac., 251, 619; Vanghn v. Mills, 18 B. Mon., 634; Dodd v. King, 1 Met., (Ky.) 430.

The facts stated in the complaint, without any reference to the mortgage, show a cause of action, and the demurrer .should have been overruled.

The judgment is reversed and the cause remanded to be proceeded in according to law.