text:
    THE STATE v. HIXON.
    Quo warranto. — Relation admitted that respondent was regularly elected, qualified and commissioned sheriff of Johnson comity; but avers that afterward, and before the expiration of his term of office, by act of the legislature in creating a new county, and changing the boundary lines of Johnson, respondent’s place of residence, which was in Johnson, became, and was included within the territory of the new county, whereby respondent became a non-resident of Johnson, and that, by reason thereof, his office became forfeited. Held on demurrer: That the non-residence of itself did not work a forfeiture, and the relation, to be sufficient, should have alleged such acts done by respondent as absolutely worked a forfeiture of office.
    PETITION EOR QUO WARRANTO.

      Montgomery, Attorney General, fop the State.

      Cravens and May, for Defendant.
    We submit:

      First. This court has no jurisdiction of the subject of the action. See State vs. Ashley etals., 10 Ark. 280.

      Second. The rule should disclose the grounds upon .which the information was granted, which-it does not do. See Fields Practice, 3d American, from the 9th Pond. Fd., vol. 1 .,page 657; Chap. 2, Civil Code.

      Third. That the defendant, under the Constitution and laws of the land, is entitled to hold the office until January 1, 1873. See Sec. 16, Art. 15; Const-, and Secs 3 and 18, same Art.

      Fourth. That this suit should not have been brought in -the county of Pulaski. See Acts Gen. Assembly, 1871, amendatory of Sec. 484, Civ. Code.

   Bennett, J.

On the 14th day of December, 1871, at the suggestion of the Attorney General, a rule to show cause was awarded against Pleasant Hixon, the defendant, why a writ of quo warranto should not be issued against him.

On the 8th day of January, 1872, a demurrer to the inforjnation of the Attorney General was filed.

There are four causes assigned in the demurrer. The first three are all to the effect that this court has no jurisdiction.; the second is that the information shows no cause of action.

The question of jurisdiction has been fully settled in the cases of Price et al. vs. Page, Treasurer, 25 Ark., 557; State vs. Johnson, 26 Ark. 281. Nothing further need be said on that point.

As.to the question, “That the information shows no cause of action,” the relation sets out the fact that the respondent did, on the 22d day of March, 1871, and has ever since usurped the office of sheriff of Johnson county, and he claims to have, hold, assume and enjoy the same without lawful authority.

The relation then admits that the respondent was regularly elected, commissioned and qualified as such sheriff, at an election held in 1868. But it avers that on the 22d day of March, .1871, there was passed by the General Assembly, and approved by the Governor, an act entitled “An act to establish the county of Sarber, and for other purposes,” and that, by virtue of this act, the original lines of Johnson county were changed, and that the place of residence of said Pleasant Ilixon was, on said 22d day of March, 1871, has ever since been, and is now, in that portion of the territory formerly embraced in the said county of Johnson, but is now within the boundaries of the county of Sarber, and that he, Pleasant Ilixon, is not a resident of Johnson county.

From the above recital of allegations^ we are led to ask, “Does it work a forfeiture of the office of a sheriff of a county, when, by an act of the Legislature, the lines of his county are so changed as to place his residence within the limits of another county ?”

The Constitution of this State, by implication at least, authorizes the General Assembly to create new counties, and to change or alter the boundaries of old ones. The only limit to this power is a prohibition against creating a new county-of less, or the reduction of an old county to less than an area of ■ six hundred square miles. The Legislature, in creating the county of Sarber, did not transcend its legitimate powers, as far as appears in this case.

The relation of the Attorney General shows that the respondent, llixon, was elected, regularly commissioned and qualified to the office of sheriff of Johnson county, in 1868, and does not-allege that his term of office has expired by limitation. But it is asserted that non-residence has worked a forfeiture of the same. .

The Constitution of 1868 provides for the election of the State, executive, judicial_ and legislative officers, naming the office by special designation, and for “all county officers” in general, leaving the people to determine what county offices were to be filled. This same instrument also provides that “all laws not in conflict with this Constitution, shall remain in full force until otherwise provided by the General Assembly, or until they expire by their own limitation.”

The Constitution of 1868, failing to specially define the duties of a sheriff, or declaring what acts performed or what duties unperformed, will work a forfeiture, and create a vacancy, it is necessary to go behind it and examine the statute and constitutional laws left in force regulating this office.

The Constitution of 1836 was much more full, complete and definite in relation to designating “county officers,” and defining their duties than the Constitution of 1868.

Sec. 17, Art. 6, says: “The qualified voters of each county shall elect one sheriff, etc., * * * * for the term of two years. They shall be commissioned by the Governor, reside in their respective counties during their continuance in office.”

Chap. 160, Sec. 1, Gould’s Digest, says: “The qualified voters of each county in this State shall, on the first Monday in August, 1846, and every two years thereafter, elect one sheriff', who shall hold his office for the term of two years, and until his successor be elected and qualified.”

The Legislature, acting under the Constitution of 1836, did not deem it necessary to specially declare, in the enactment, that it was requisite for a sheriff'to reside in the county, inasmuch as it was" a constitutional requirement that he should do so. The clause in the present Constitution, continuing all laws, not'conflicting with it, in force, would not only continue the law itself, hut all its incidents with it. . Chapter 160, Gould’s Digest, in relation to sheriffs, must, therefore, be construed in connection with that part of-the Constitution óf 1886, as relates to the same subject matter.

We find it then necessary that a sheriff'should reside in the county in which he is elected, during his continuance in office, by the laws now in force. Even if there was no positive enactment, common sense and reason would say sheriffs must reside in the counties where they are performing the duties and exercising the functions of that office. A sheriff is an officer of great antiquity, and'now, as anciently, the custody of the county is -in his chargooand keeping, the peace of these communities, in a great measure, is in his hands; with power to summon posse comitatus, to apprehend felons, rioters and other public offenders, to execute writs and process, it would be a violent presumption to presume a non-resident, who, perhaps, had no interest in common with the other citizens, should have this great power conferred upon him. Neither the letter nor the spirit of our law will warrant such a conclusion.

.But the question arises: Can a sheriff,bo deposed from office until charged before some competent tribunal, and offered an opportunity to disprove the alleged neglect of official duty?

Mr. Justice "Walker, in the case of the State vs. Carnall, 10 Ark. 162, says ;' “The summary mode which has been resorted to, in this •instance, however it might tend to facilitate the collection of the revenue, by stimulating the officer to a prompt discharge of his duty, must yield to the constitutional rights of the citizen and officer; not that ho has a right to retain his office for a moment after he has violated the law, but that before he shall be deprived of it, he shall be heard, in defense, before a competent tribunal.”

. This decision was rendered in a case where a sheriff failed to return and file, in the office of the clerk of his county, the original assessment list of taxable as required 'by law. The statute ..provided that such a failure forfeited his office, and upon proper certification-of that failure, the Governor should declare his office vacant. All of which was done. Yet the court says, “a sheriff could not he deposed from office until charged before some competent tribunal, and offered an opportunity to disprove the alleged neglect of duty. The privilege is so reasonable and just in itself, indeed . ■so indispensably necessary to the protection of the rights of the citizen, that independent of the safeguards thrown around him by the Constitution, we would reluctantly see them invaded.”

Upon general principles, without constitutional authority, we find, in order to create a vacancy in an office, it requires an act done, or the exercise of power to work a forfeiture and determine the title to an office: 2 Blk. 156; 4 Kent Com. 127. When the organic law is silent as to the mode of declaring a forfeiture, and what shall be,deemed a vacancy, the Legislature possesses the inherent power to prescribe the moans to ascertain the same, but the justice of the common law will not permit an investigation of facts which may be followed by the loss of a right, or by the infliction of a penalty to be conducted ex parte: 4 Blk. Com. 282, 1 East 638, 2 Kent Com., 297.

We, however, find that it is provided in Sections 12 and 13, Chapter 160, Gould’s Digest: “If any sheriff shall fail or refuse to perform any duties required by law to be performed by him, he shall be deemed guilty of a misdemeanor in office, and on conviction thereof, shall be removed from office.”

“When any sheriff shall be found guilty of a misdemeanor in office, the court before whom the trial may have been had, shall declare the office of such sheriff vacant.”

It will thus be seen that the legislature lias furnished a complete and adequate redress for any omission or commission upon the part of a sheriff. Giving the officer, in' the spirit of thq common law,.a tribunal before wlioffi he may be heard before he can be summarily deposed from office. Hut it may be alleged, that this is a proceeding to try the right of Ilixon to the office of sheriff of Johnson county.

Quo Warranto is the proper remedy to-try .the. title to an office. To test the validity of the election, commission and •qualification of an officer, but when these are all admitted, as is the case before us, there is nothing to test unless it bo the expiration of the term of office, or the forfeiture of it by some act done by the incumbent. It is not alleged by the Attorney General that Ilixon’s term of office has expired, even if it was, we judicially know that it has not. The only question then in the case is, has Ilixon been guilty of such an act as works a forfeiture of his office. The operation of the act must, ipso facto, work an actual forfeiture. If it does not, but is merely a misdemeanor in office, and the law providing the mode in which a vacancy may be declared, quo loarranto will not lie. Lord Bruce's case, 2 Strange, 819.

Nov- what is the respondent guilty of as alleged in the relation of the Attorney General? That he is a non-resident; not made so by his own act, but by the Act of the Legislature. Nowhere in the- Constitutions of 1836 or 1868, or in the statutes do we find that this act in and of itself works a forfeiture. If there is no forfeiture there can be no vacancy. Non-residence is not of so high a grade of official offense, as ipso facto, to inevir the penalty of forfeiture of office.

A person who persists in exercising the duties of a sheriff of a county for an unreasonable time, while he remains ,a non-l’esidont of it, may perhaps be found guilty of a misdemeanor in office, but it is not until conviction thereof, before a competent tribunal, can he be removed from his office.

After admitting the regularity of the election, commission .and qualification of Ilixon as sheriff, in order to have made the relation sufficient in law, the Attorney General should have alleged such acts done by him as absolutely worked a forfeiture of his office. The acts done do not do this, therefore the relation is imperfect.

Demurrer sustained.


source: Caselaw Access Project

author: Harrison, J.

license: Public Domain

text:
    FARRIS & DUNN v. KING, et al.
    Specific Performance — Where lands were conveyed by deed absolute, but the conveyance was intended to secure the payment of a note, and the vendee gave an obligation to re-convoy on payment: Held, on payment of the note, the reconveyance should be made.
    APPEAL FROM CALHOUN CIRCUIT COURT.
    IIon. Gr. "W. McCown, Circuit Judge.

      Garland $ Nash, for Appellants.
   Harrison, J.

In this case the appellees, the widow and heirs at law of Janies King, deceased, filed their complaint in equity for the specific performance of a contract to convey a tract of land and to quiet the title to the same.

They alleged that James King, in liis life time, conveyed the land to Anderson P. Farris, to secure the payment of a note'for $355 91, but by an absolute and unconditional deed— taking from him, however, at the time, an obligation, for a reconveyance, of the following tenor:

“Miller’s Bluer, Ark., February 2,18,57.

This is to certify to all' whom it may concern, that I, A. P. Farris, agree to convey to James King the south-east quarter of the south-west quarter of section number seven,, in township fifteen south, of range number fourteen west,, containing forty acres; also, the north-west quarter of southeast quarter of section number seven, same range and township as above stated.

The condition of the above obligation is such, that the said James King agrees to p'ay to the said A. P. Farris, by the -first day of January, one thousand eight hundred and fifty-eight, the just and full sum of three hundred and fifty-five dollars, with interest thereon at the rate of ten per cent from the first January, 1857, on said note; then I, A. P. Farris, agree and bind myself to make good the title to said King, otherwise this is void.

Given under my hand and seal.

A. P. Farris, [&«/.]

Test: Hamilton Hunter.”

And that, after giving this security, he became further indebted to Farris in the sum of $179 09; that he paid Farris the note, and also the subsequent debt before the former fell due — $254 00, on the 10th day of October, 1857, and the remainder of the indebtedness in the sale to him of another, tract of land, called the “Graham place,” and that .after his •death, which occurred in November, 1857, Nancy King, his widow, not knowing that the note had been entirely paid, to relieve the land from the incumbrance, let Fanis have 6500 pounds of seed cotton, raised by King that year, -worth $200.

They then charged that notwithstanding the note had been paid, Farris had not reconveyed the land, either to King in his lifetime, or to his heirs since his death, but had sold and conveyed it to his co-defendant, Joseph 33. Dunn.

The defendants, admitting the conveyance from King, and, that Farris gave the obligation for a reconveyance, denied that the conveyance was made as a' security for the note, and averred that it was an absolute sale. They denied that the obligation was given at the time of making the conveyance, or had any connection -whatever with it, and asserted that it was not given until several days thereafter, and in pursuance of a subsequent agreement to let King have the land back. They denied that any part of the note had been paid, and that any part of the consideration for the “ Graham place,” which, they alleged, was purchased before the conveyance of the land in controversy, was a payment on the above mentioned indebtedness. The $254 King paid, and the seed cotton delivered by his widow-, they claimed were paid and delivered towards the satisfaction of the latter debt, which they insisted was much larger than as stated by the plaintiffs, and exceeded the value of the cotton and the money received.

The court decreed that the deed to Dunn be sot aside, and that Farris should convoy the land to King’s heirs.

With the exception of the deeds referred to in the pleadings, the only material evidence- in the case was the testimony of •John C. King and Julia Morrison, two of the plaintiffs, read -on behalf of the plaintiffs.

Although, from the view we take of the evidence, it is of no importance to determine whether the conveyance was a sale or merely a mortgage, we think it is clearly shown to have been the latter.

John C. King, who was then twenty-one years old and a member of his father’s family, and well acquainted with his-business, testified that he never heard of a sale of the land but knew that his father conveyed it to Farris to secure the-payment of the note, and that Farris gave the obligation to-convey the title back to him when the note should bo paid. The place, it seems, was his homestead; he was residing on it at the time of his death, and that year raised a crop on it, and his widow and family continued to reside there after his death. It is, therefore, unlikely that he should have sold it and bought it back within six days. (The deed was dated the-27th day of January, 1857, but not recorded until the 6th day of February.)

Then the amount of the note $855 91, manifestly, had no reference to the value of the.land as ascertained by the usual and ordinary methods of estimation, and was not such a round or even sum as is usually paid for real estate, and it drew interest from the first day of January, a date anterior by a month and a day to the alleged purchase. But, as-we have remarked, it is unnecessary to decide whether it was a mortgage or sale. Farris was bound to convey the-land back to King upon the payment of the note, and such-payment is clearly shown by the evidence.

John C. King testified that lie was present when the $254 was paid, and he saw the amount credited upon the note, and that Farris afterwards told him that that payment, together with the cotton which he received from his mother, would pay the note and leave a balance sufficient to jrarchase supplies for her-family for a year. Julia Morrison testified that she heard Mrs. King toll Farris that she was letting him have the cotton to pay for the land, and that he told her it would be sufficient for the purpose, and there would be something-over to buy groceries for the family.

The statement of John C. King, that when the money was paid it was endorsed as a credit upon the note, could, if untrue, have .easily been shown to be so by the .production of the note which, if unpaid, should have been in Farris’ possession; but it is somewhat remarkable, and it is a circumstance that must weigh against the defendant, that he neither produced the note nor testified himself in the case.

The decree of the court below is affirmed.


author: Gregg, J.

text:
    SYKES v. LAFFERRY.
    Consideration — 1 Vainer of right, etc. — Where a party has a valid, subsisting claim or legal right and waives it, at the instance or request of another, such waiver is a sufficient consideration to sustain a promise made thereon.
    APPEAL FROM JOHNSON CIRCUIT COURT.
    IIon. "W\ N. May, Circuit Judge.

      Clark (f* Williams, for Appellant.
    The consideration for the note was the debt of Draper to Sykes, and not that of Lafferry to Draper, or rather it was a new debt, the consideration of which was the discharge of the old debt; 1 Parsons on Cord., 221. It was a case of new parties by novation; Id. 217, and authorities cited. Such cases are not within the statute of frauds; the original debt did not remain, but was discharged; 3 Parsons Conts., 20-23-24; Nelson vs. Boynton, 3 Met., 396 ; Williams vs. Leper, 3 Burr., 186; Peal Estate Bank vs. Pcaodon, 5 Ark., 558.
    But if a collateral agreement, and within the statute of frauds, as undertaking to pay the debt of another, still the note being given'would be a compliance with the statute;
      Packhard vs. Richardson, 11 Mass., 122; Yiolett rs. Patton,5 Cra.nc.h, 142 ; Taglor rs. Ross, 3 Yerg., 330.

      E. H. English, for Appellee. .
    The case should be dismissed for want of jurisdiction — the suit being.for the “ recovery of money,” and the amount not exceeding fifty dollars. Secs. 15, 16 and 17, Ark. Code; Kg. Code (Mgers), See. 16 and votes.

    This court will not reverse the finding on the mere weight of evidence. There must he a total want of evidence to
    The transaction was the mere assignment of an open account, and the execution of a note for the same indebtedness, and for the same consideration. McDaniel rs. Greece, 15 Ark., 466; ■ Rose .Dig., 182, Sec. 6.
   Gregg, J.

On the 20ill of -May, 1866, appellant sued appellee on a note for §30, and obtained judgment in a justice’s court, from which the appellee appealed to the Circuit Court, and judgment was there rendered in his favor for want of jurisdiction, which judgment was reversed on appeal to this court. 25 Ark., 99.

The cause being remanded, in September, 1868, a trial was had in the Circuit Court upon the merits, and a finding and judgment for the appellee, and the ease is again before this court upon ah appeal.

The appellee set up. a failure of consideration as a defense to the action.

The following facts appear : Lafferry, the appellee, bought a mare of one Draper, for which he agreed to pay §50; he paid §20. Draper owed Sykes, t-lie appellant, $30. The three met together and Lafferry agreed to pay Sykes the $30, instead of paying it. to Draper ; and Sykes agreed to surrender his claim on Draper and take tlie amount on Lafferry, for which Lafferry executed to him the note on which this suit is founded. Draper left, and soon thereafter the true owner came and obtained the mare, and it was found that Draper bad no title to the mare.

On this state of facts was there a consideration for the note ?

It appears that the appellant had a valid and subsisting claim against Draper, and he surrendered that for the claim on the appellee. Parsons, in his work on Contracts, Vol. 1, 444, says : “In general, a waiver of any legal right, at the request of another party, is a sufficient consideration for a promise,” etc. Underhill vs. Gibson, 2 N. H., 358; Holmes vs. Dana, 12 Mass., 191.

In Farmer vs. Stuart, 2 N. H., 100, the court, speaking of the consideration, say : “In respect to this part of the case, it is contended, first, that there was ho consideration for the agreement; but, as a consideration is sufficient, if injurious to the promissce, whether beneficial or not to the promissor, this objection appears to be ill founded; because, the consideration, in this- case, was the relinquishment or forbearance of a right which the plaintiff possessed,” etc. Chit. Con., 30; Stebbins vs. Smith, 4 Pick., 98; Smith vs. Weed, 20 Wend., 184.

If Lafferry had given his note to Draper for the mare, he having no title, there certainly would not have been a sufficient consideration, and Lafferry might well have set up such defense ; but when Lafferry, by agreement with both Sykes aud Draper, made full payment to Draper, and to extinguish his indebtedness to Sykes, gave the note in suit, ho thereby-formed a new obligation, and in Draper’s stead became liable to Sykes for the amount of his debt. This note was not given for the mare. Draper had • satisfaction for the mare, and the note was given for his indebtedness to Sykes, and, as disclosed in evidence, without Sykes knowing what consideration there had been for Lafferry’s promise to Draper ; and hence the consideration was good.

It is recognized law, that where one of two innocent parties must suffer loss it should fall upon him whose action pro■duced the result. But it is not necessary to rest this case upon this ground, because the authorities, above cited, clearly hold that where one waives a right at the instance of another, it is a sufficient consideration to sustain a promise to pay.

The. judgment is reversed and the'cause remanded.


text:
    LOFTIN et al. v. EDGAR, Administrator, etc.
    APPEAL FROM CRAIGHEAD CIRCUIT COURT.
    TIon. "William C. IIazeldine, Circuit Judge.

      U. M. Rose, for Appellants.

      First. The chapters of the Digest not being law, the Circuit Court had no jurisdiction, and its judgment is a nullity. Bevy vs. Shiarmav, 6 Ark., 182; Derton vs. Boyd,, 21 Id., 267.

      Second. The answer was evidently good. If the administrator had illegally squandered the assets, or had claims allowed which were not valid, he and his sureties would be liable for the devastavit, and he could not ask for a sale of tire land. Wooers vs. White, 6 Johns. Ch:, 860; Gilchrist vs. Rea, 9 Paige, 66; Renwiclc vs. Renwiek, 1 Bradf., 234; Biles Estate, 2 Brews. Pa., 609 ; Martin v.%. Rdlehar, 3 W. Va., 480.
   Gregg, J.

On the 27th"day of May, 1870, the appellee filed his petition, in the Craighead Circuit Court, praying an order for the sale of 740 acres of lands, held by him as administrator of the estate of Robert "W. Loffcin, deceased, to pay debts probated against said estate.

The appellants, as.heirs -of the deceased, appeared, and, on their petition, were made parties defendant, and filed a demurrer to tlie complaint. Tlie plaintiff amended by filing what was termed a general statement. After which a demurrer was still interposed, but the court overruled the demurrer, and the defendants filed their answer, in which they alleged that the appellee had received effects more than sufficient to pay all debts that had been probated against the estate.

Secondly. That the debts were not over $700-00, and that the assets amounted to $2500 00.

Thirdly. That all debts classed had been paid.

Fourthly. That he had made a detailed statement of his appointment as administrator, the assets that came to his hands, the payment of $156 00, for board and tuition and other fraudulent settlements, etc.; that he had obtained credits for certain sums paid, etc., and fraudulently procured himself appointed guardian to prevent resistance to false and fraudulent settlements, etc.

The respondents, as a counter action, averred that the plaintiff had assets of the estate in his hands to the amount of $1500, over 'what was necessary to pay all debts, etc. The answer was duly sworn to.

The plaintiff demurred to the answer, and the record says the court sustained the demurrer in toto.

The appellants said nothing farther, and the court gave judgment for the appellee, and ordered the lands sold as prayed for.

Appellants moved for a new trial and in arrest of judgment, which motions were overruled, and they appealed.

The answer was a sufficient response to the petition. It alleged an illegal expenditure of-money,'and the amount and manner of such expenditure. It gave the amount of debts and assets and showed and averred that the personal assets were largely more than the .debts, etc., and it should have been held good.

This proceeding was an attempt to sell lands of the estate under what was known as the “Chapters of the Digest.” As the Chapters relating to administration, were not law — sec Vinsanl vs. Knox, page 266, 27 Ark., the Circuit Court had no jurisdiction thus to intermeddle with ah estate in the course of administration, and the demurrer to the petition should have been sustained.

The judgment is reversed and the cause remanded with directions to sustain the demurrer to the petition, and dismiss the cause.


text:
    HECHT v. WASSELL, Assignee.
    .Bamjuíuptci'. — After property was attached and sold, assignee in bankruptcy, appeared by attorney and moved to be substituted as defendant; also filed motions to have attachment dissolved, and the proceeds of the sale turned over to him. Held, That the facts set up in the motions were matters in abatement and should have been pleaded in an issuable shape, and verified by the claimant.
    APPEAL FROM RANDOLPH CIRCUIT COURT.
    IIox. Elisha Baxter, Circuit Judge.

      Byers and Watkins £ Bose, for Appellant.

      Wassell ‡ Moore, for Appellee.
   Gregg, J.

Appellant sued Tisdale & Wells in debt by attachment. The writ was levied upon personal property, which, by order of the.Circuit Judge, was sold. Some motions and orders were made, after which John Wassell appeared by attorney and stated, by motion, that Tisdale & Wells had become bankrupt, and that he was their assignee in bankruptcy, and moved the court to substitute him as defendant. Wassell then filed his motion to dissolve the attachment, 'because the same had been sued out within four months before the filing of the petition in bankruptcy, and he also filed a motion to have the proceeds of tlie sale of the goods attached turned over to him as such assignee; which motions were also made by an attorney, and neither of them sworn to.

The plaintiff* moved the court to strike the motion to dissolve the attachment from the files, because it was a nullity, etc. The court ‘ refused to strike out Wassell’s motion and, against the plaintiff’s objection, sustained the same, and also sustained the motion to order the proceeds of the attached property turned over to Wassell. To all of which the plaintiff excepted. The court rendered final judgment, and the' plaintiff below appealed to this court.

This suit had been brought and was regularly pending against Tisdale & Wells. If they had so gone into bankruptcy as to deprive Hecht of any advantage he might claim over other like creditors, who had failed to sue, it was matter in abatement, and instead of a general vague motion, it should have been properly pleaded and verified’; and likewise, in the other motion, when Wassell came before the court and averred that the defendants had become bankrupt, and that he was their assignee in bankruptcy and entitled to the funds attached, he presented substantive and material facts to abate the proceedings against the defendants; and, to have a large amount of funds turned over to him, such facts should have been plead in an issuable shape, and verified by the oath of the claimant, and it was error to sustain these respective inotions, and for such error, the judgment of the Randolph Circuit Court is reversed and this cause remanded, to be proceeded in according to law. •


text:
    CHAPLIN v. HOLMES.
    Married Women— When may sue alone. — Where the action concerns the separate property of a married woman, she may sue alone.
    Cloud upon Title — In proceedings, affidavit not required. — In a proceeding to remove cloud or doubt from title, the affidavit required by tlie statute to be filed before action for the recovery of land, or the possession thereof, is not required.

      Same — '-What complaint must allege, — The party .must allege, in his complaint, cither that bo is in possession, or some other fact, which renders it impossible for him to vindicate his title at law.

      Same — Color of title in defendant. — The complaint should allege, by way of recital, or otherwise, such facts, under which defendant claims, as would give defendant some color of title, or such prima,facia evidence of title as to re- ' quire proof of extraneous facts to avoid them..
    County Courts — Action of, when void. — The holding of a county court át a time other than that prescribed or authorized hv law, and all ju-oceedings there- ' under, are coram non judice and void.
    APPEAL- EltOM CHICOT CIRCUIT COURT.
    IIon. Henry B. Morse, Circuit Judge.

      Garland § Nash, for Appellant.
    The demurrer should have been sustained. The statute is positive in requiring the affidavit to he made. See Gould’s Dig., Chap. 106, Secs. 6-9; and this statute has been sustained and enforced in such a case as- this: Craig vs. Flcmigin, 21 Ark., 319. This decision standing, the case should be reversed : Pope vs. Mason, 23 Ark., 644.

      English, § English, for Appellee.

      First. A married woman may sue alone where the action concerns her separate property. See Code, Sec. 42. And, independent of the Code, she may bring a hill respecting such property: Story Eq. Sec. 63. ,

      Second. It was not necessary in a' hill of this character for complainant to aver that she was ip actual possession of the lands. The averment of title was sufficient: Donnell vs.

      Roane, 20 Arl;., 120, and cases cited; Ringoldrs. Waggoner, 14 Arl;., 69 ; Mitchell and Wife rs. Fttcr et al.,22 Arl;., 178; Shell ct al. rs. Maiiin, 19 Arl;., 139.

      Third. As to the statute of limitations, it will not avail by demurrer, unless it appears from the face of the bill that the remedy or relief sought is barred: Storg Fq. PI. 503-506-751. It will not apply where it appears from the bill that the complainant is a married woman. See Acts 1868, Sec. 57, ¶. 277.

      Fourth. As to the objection that no affidavit was .filed before the issuing of the writ, it is sufficient answer to say that the want of affidavit is never grounds for demurrer to a pleading. See eases collected in Rose’s Fig. g. 621.
   Harrison, J.

This was a complaint in equity, in the Chicot Cii’cuit Court, by Rebecca A. Ilolmes, the wife of Newland Holmes, against Hanson A. Chaplin, .the object of which was to set aside and cancel two tax, deeds, and remove the- clouds of the same from her title.

The substance of the complaint was, That she is the owner of certain lands 'in Chicot county, as her separate property, which were assessed in the year 1866, in the name of John B. Robinson, a non-resident; that the taxes not having been paid, nor the lands offered for sale, on the second Monday in March, 1867, the judge, and .other members of the County Court, assuming to hold a special term of the court on the third day of June, 1867, passed -an order that the collector of taxes should offer'the lands for sale on the 26th day of August, following; that in pursuance of such order, they were offered by the collector, on that day, and bought by the defendant for §128, the aggregate sum of the taxes, penalty and costs, which the defendant paid, and he received, from the collector, a certificate of purchase; that on the 29th day of May, 1868, the collector made the defendant a deed for the lands, falsely reciting therein, a sale for the same taxe3 and at the same sum, on the 15th day of April, 1867; that the plaintiff not having redeemed the lands within one year'from the day of sale, the collector, upon the application of the defendant., on the 30th day of December,. 1868, executed another deed to him for them, in conformity with the sale.

The complainant further alleged that the plaintiff liad tendered to the .defendant the money which he paid for the lands, and one hundred per centum thereon, with interest on the whole sum from the sale, and that he had refused to receive the same; and then charged that the deeds were clouds upon her title, and prayed that they should be cancelled and tlie clouds removed.

The defendant demurred to the complaint, and assigned the following grounds therefor: 1. That the plaintiff's husband was not made a party to the suit. 2. That she did not, before the commencement of the suit, file with the clerk an affidavit that she had tendered to the defendant the full amount of all taxes and costs which he had paid on account of the lands, with interest on, the same, at the rate of one hundred per centum, the amount first paid, and twenty-five per centum per annum upon all costs and taxes paid upon them since, and the value of the improvements the defendant had made, and that the same had been refused. 3. That it was hot alleged or shown in the complaint that the plaintiff was in possession of the land; and 4. That there was no equity in the complaint.

The court overruled the demurrer, and rendered a decree in accordance with the prayer of the complaint.

The first objection raised by the demurrer may be readily disposed of. The Code of Civil Practice, Section 42, "expressly provides that a married woman may sue alone, where the action concerns her separate property.

The second is equally as untenable. If such an objection could, in suits of the nature of the present, the object, of which is not the recovery of the land or the possession thereof, but simply to clear the title from doubt and clouds, in any manner avail, it certainly could not by demurrer, which will only lie for objections apparent upon the face of the complaint, either from the matter inserted or omitted therein, or from defects in the frame or form thereof: Story Fq. Plead., Sec. 448. But it will plainly be seen, by a reference to the statute, that such an affidavit is required only in actions for the recovery of the laud, or for the possession thereof: Sections 6-9, Chap. 106, Gould's Digest.

The third, according to the decision in Apperson Co. vs. Ford et al., 23 Ark., 74, and Danley vs. Byers et al., ante, was well taken. We do not-wish tobe understood, however, as deciding that a party, out of possession, can in no case, or under no circumstances, maintain a suit to dispel clouds from his title; we only mean to assert the very plain proposition that he must allege, in his complaint, that or some other fact which renders it impossible for him to vindicate his title by an action at law.

The fourth and remaining ground of demurrer is the general one of want of equity in the complaint.

Were the complaint not liable to the objection just noticed, it does not, we conceive, present a case for relief, or show that the deeds operate as an injury to the plaintiff.

The power of the collector to sell land for taxes, not being a general authority to sell, but only at the time and in the manner prescribed by the statute, a sale at any other time or in any other manner would be a nullity. Black on Tax Titles, 46; McDermott vs. Scully, ante, and the cases there referred to. By section 136, Chccpter 148, Gould’s Digest, it is provided that if, from any cause, the collector should fail to sell on the second Monday in March, the County Court may order him to sell on some other day, to bo fixed by it. Did the court make such an order? To answer this question we must first determine whether a County ' Court can be held at other times than those fixed by law for the terms thereof, or, in other words, can there be a special or called term of the County Court?

The terms of the County Court of Chicot county, as established by the Legislature, are held on the third Mondays in' January, April, July and October, and no provision is made for holding any other, or a special or called term. In Dunn vs. The State, 2 Ark., 229, it was held that the law having fixed the time for holding the Circuit Courts, they could not be held at any other, except in the special Cases expressly provided for; adoctrine as applicable to the county as the Oircuit Courts — expressio unios est cxclosio alterius.

TI ere being then no authority for holding’ a special term of the County Count, the order or proceeding under which the sale was made was coram non jodice and void.

The complaint, except as we have stated, contains no allegations in respect to the recitals in the deeds, and although copies of them are filed as exhibits, we may not refer to them to ascertain what they recite. Newman’s Plead: and Practice, 250; Allen and Wife vs. Shortridge, 1 Duval, 34; Hill vs. Barrett, 14 B. Monroe, 83. If they contain only such as are consistent with the facts alleged, they are void upon their face, and give no color of title to the defendant, and there is' nothing in the complaint'which even tends to show that they do. To operate to the detriment of the plaintiff they must contain such prima facie evidence of title as to require proof of extraneous facts to avoid them.

Chancellor Walworth, in Van Doren vs. Mayor, etc., of New York, 9 Paige, 389, said: “A valid legal objection, appealing upon the face of the proceedings through which the adverse party can alone claim any right to the complainant’s land, is not in law such a cloud upon the complainant’s title as can authorize a court of equity to set aside or stay such proceedings. That can never bo considered a legal cloud which can not for a moment obstruct the unaided rays of legal science, when they are brought to bear upon the supposed obscurity. But where the claim of the adverse party to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, as where the defendant has procured and put upon record a deed obtained from the complainant by fraud, or upon an usurious consideration which requires the cstablisliment of extrinsic facts to sliow the supposed conveyance to be inoperative and void, a court of equity may interfere and set it aside as a cloud upon the real title to the land.” Livingston vs. Hollenback, 4 Barb., 9; Van Rensalaer vs. Kidd, Ib., 17; Simpson vs. Lord Howden, 3 My. & Craig, 97.

The demurrer should have been sustained and the complaint dismissed. The decree is reversed.


author: McClure, C. J.

text:
    STATE v. JENNINGS.

      Corporations — Nature and powers of. — Corporations having municipal powers are mere tenants at will of the Legislature, so far as the officers thereof are concerned, and the General Assembly may incorporate a place, add to, qualify or abolish its municipal powers without its consent.

      Statutes — Construction of. — In the construction of a statute, where the court finds, in any particular clause, an expression not so large and extensive in its import as those used in other parts of the same statute, if, upon a review of the whole act, the real intention of the Legislature can be collected from the larger and more extensive expressions used in other parts, effect will be given to the larger expressions.

      Same — Act of April 9, 1869. — The act of the General Assembly of April 9th, 1869, entitled, “An act to regulate the incorporation and organization of municipal corporations,” was intended to make uniform rules and regulations for all the cities and towns of the State, and repeals the act of July 23d, 18G8, entitled, “An act for the incorporation of cities and towns.”
    PETITION FOR QUO WARRANTO.

      Montgomery, Attorney Genercd, Yonley Warwick, for tlie State.

      U. M. Lose, for Defendant.
    To sustain tbe position that-the incorporation of Camden, under tbe act of 1868 is still in all respects valid-, I refer to the following cases: Hughes, vs. Farrar, 45 Maine, 72; Walworth vs. Whittaker, 17 Wis., 193; Janesville vs. Markoe, 18 Id., 350; Crosby vs. Patch, 18 Gal., 438; Shinn vs. Commonwealth, 3 Grant (Pa..), 205; McLaughlin vs. Hoover, 1 Oregon, 31; Nixon vs. Piffet, 16 La. An., 379; JDePauw vs. New Albany, 2-2 Ind., 204; Mullen vs. People, 31 111., 444; Elliott vs. Lochnane, 1 Kansas, 126 ; State vs. Morrow, 26 Mo., 131; People vs. Gibb, 7 Cal., 356; Grace vs. Donovan, 12 Minn., 580; Wood vs. United titaies, 16 Peters, 342; Daviess vs. Fairbairn, 3 How., 636; Hardin vs. Gordon, 2 Mason, 540.
   McClure, C. J.

The only question presented by the demurrer, to the response of the defendant, is, whether the act of April, 9,1869, entitled “An act to regulate the incorporation and organization of municipal corporations,” repeals the act of July 23, 1868, entitled-“An act for the incorporation of cities and towns.”

The defendant urges that the repealing section of the act' of April 9, 1869, does not describe cities acting under the act of July 23d, 1868, and because it is not so described, that the city .of Camden is not bound to conform to the first recited act. ^ • ■

The fifth section of the act of April 9,1869, reads as follows :

“All corporations which existed when the p>resent Constitution took effect, for the purpose of municipal government, and described or denominated in any law then in force, are hereby organized into cities of the first and second class, as the case may be, and incorporated towns, with the territorial limits respectively prescribed or belonging. * * * * All acts now in force for the organization or government of any such municipal government or corporation shall be, and they are hereby repealed.”

At the adoption of the present Constitution the city of Camden was being operated under a special charter granted by the General Assembly, on the seventh of December, 1846; "but before tlio passage of the act of April 9, 1869, she surrendered her special -charter and accepted the municipal powers granted, by the act of July 23, 1868.

Right at the threshold of this ease wo arc confronted with three well established rules of construction as applicable to this case:

First. That repeals by implication are not favored.

Second. That where two statutes can be construed together, the latter will not be construed a repeal of the former, and

Third. .That tlio mentioning of one class, and silence as to another, evidences an intention that the unenumerated class should be excluded.

These are all general rules, and, when applied in proper cases, have but few, if any, exceptions. There is, however, another well known rule which is as imperative as those mentioned, which must not be lost sight of, and it is, that where the Legislature take up a whole subject and cover the entire ground of the subject matter of a former statute, and evidently intended it as a substitute, the prior act will' be repealed thereby, although there may be no express words to that effect, and there may bo in the old act provisions not embraced in the new. Pulaski County vs. Downer, 10 Ark., 589.

There is no express language repealing the act of July 23, 1868, in the act of April 9, 1869, and it is hero conceded that cities, acting under the act of July 23, 1868, are not specifically described. The question now arises, did the Legislature intend to fix one certain and uniform rule for all the cities and towns within tlio State, or did it intend that the city of Camden should retain itsdhen organization, and that all the others should conform to the act of April 9, 1869?

Counsel are in error when they suppose that citizens and officers of any particular locality have a special right to any specific form of municipal government. Corporations having municipal powers are mere tenants at will of the Legislature, so far as the officers thereof are concerned; creditors, and persons having, vested rights in froj>crty, stand upon a different footing. Tlie General Assembly may incorporate a place-without its consent, and without its consent add to, qualify ox-even abolish its municipal powers. The English doctrine, that the king cannot force a-new charter upon a municipal corporation, has no application in this country, nor is the power of the Legislature, in this respect, measured by any' such rule. Clinton vs. Cedar Rapids R. R. Co., 24 Iowa, 445.

All law writers agree that the intention of the Legislature should prevail. The intent may be gathered from the text and' body of the law itself; or it may be gathered from the condition of affairs existing at the date of the enactment; the evil sought to be remedied and such other facts and circumstances as may have become a part of the history of the country. Guided by these general rules, let us examine the question at bar.

The first General Assembly which assembled under the provisions of the present Constitution found it enjoined upon them to enact a general law for the incorporating and regulation of municipal corporations, and an effort to comply with that injunction was made by the act of July 23, 1868. Ii'a lawyer will take up that act and examine it ho will find many powers conferred upon municipal corporations which are-directly in conflict with the Constitution of the State. He will find many things which will convince him that the act was hastily and unadvisedly diawn — that it was imperfect and incomplete. He will also find that no attempt is made to “ restrict the power of taxation, assessments, borrowing-money, contracting debts, or loaning the credit” of towns and cities, as it is provided that the Legislature shall do by Section 49, Article V., of the Constitution.

"With this knowledge and these facts in view, we are as much called upon to decide whether the Legislature intendedto include Camden within -the provisions of the act of 1869, as Ave are to determine whether it intended to exclude it. Ian the first place, Camden is the only city in the State which accepted the provisions of the act of July 23, 1868, before the passage off the act of April 9, 1869. The action of the city of Camden was of record, in the Secretary of State’s office, and it will be presumed the General Assembly was cognizant of this fact. The city of Camden being the only city organized under the act of July 23, 1868, it appears to us that if the Legislature intended to save and except it from the operation of the general law, that words to that effect would have been used in the act disclosing such an intention. It is as easy to presume this as to presume that it did not intend to disturb the municipal government of Camden, because no specific mention was made of'the city which had accepted the provisions of -the act of July 23, 1868.

There is another rule of construction which we think applicable to this ease, and it is, where the court find, in any particular clause, an expression not so large and extensive in its import as those used in other parts of the same statute, if, upon a view of the whole act, they can collect, from the larger and more extensive expressions used in other parts, the real intention of the Legislature, it is their duty to give effect to the larger expressions. Mason vs. Finch, 2 Scam. 223.

Now let us apply this rule to the case at bar. -The defendant insists upon a strict and literal construction of the statute, and he does so because the Act in one place seems to limit itself to “corporations which existed when the present Constitution took effect.” But we understand, from the rule first laid down, that if, upon a vie^f of the whole Act, we should come to the conclusion that the more extensive expressions' gave the true meaning of the Act, rather than the limitations of a single section, it would be our duty to so declare.

Section 2, of the Act of April 9, 1869, declares that “all cities which, at the last federal census, had or now have a population exceeding five thousand inhabitants, shall bo deemed cities of the first class.” It also declares that “all cities which, at any future federal census, * * * shall be found to have a population exceeding five thousand inhabitants, shall thereafter be deemed cities of the first class.” And it further declares that “any incorporated town which, at any future federal census * * * shall be found to have a population exceeding twenty-five hundred, and less than five thousand, shall thereafter bo deemed a city of the second class;” and section five provides, that towns having a less population than twenty-five hundred, shall bo incorporated towns'and governed as prescribed therein.

Hero we find a well defined intention to classify all the towns and cities in the State into cities of the first class, cities of the second class and incorporated towns, and also the means by which they shall be advanced from one grade to another. These different classes exercise different municipal powers, commensurate with the wants and necessities of each, according to the population. We can see nothing in the classification which convinces us that Camden was not to recognize these different gradations. On the contrary, when we come to examine the v:hole. Act, the impression is left on the mind that the General Assembly was" attempting and intending to make uniform rules and regulations for all the cities and towns, according to the population thereof. A further examination of the Act of April 9, 1869, discloses the fact that main'- of the obnoxious provisions of the Act of July 23d, 1868, are not incorporated in the later Act. In addition to this, the power of taxation is restricted and limited according to the grade of the city or town, as the case may be; and the power to contract debts, and the loaning of their credit is fully protected, as it is contemplated by the Consti•tution the General Assembly shall do. In short, the Act of April 9, 1869, seems to bo as complete a revision and substitute for the Act of July 23, 1868, as it is for the cities and towns which had charters at the adoption of the present Constitution.

This being true, the demurrer to the response is sustained and a judgment of ouster ordei’cd.


text:
    McCREARY, Adm'r v. THE STATE.
    Real Estate Bank — Act of January 16, 1861, constitutional. — The Act of the Legislature of January 16, 18G1, entitled “An Act to aid the foreclosure of the stock mortgages, given to secure the stofck subscriptions to the Real Estate Bank of the State of Arkansas,” was intended to furnish a remedy different from that which existed when the obligations were entered into, and although it changed the remedy effecting the enforcement of existing obligations, by abridging the pleadings, simplifying the issues and regulating the mode and manner of the proceedings, yet it did not impair the obligation of contracts, or infringe upon the existing rights of the parties, and is in none of its provisions or requirements unconstitutional.

      Same — Hotford Boiuls — The bonds known as the “Hoiford Bonds,” were not intended to be embraced within the provisions of the Act of 1861, and a suit under that Act, so far as they are concerned, to recover the amounts received upon the five hundred hypothecated bonds, cannot be maintained.
    APPEAL PROM PULASKI CHANCERY COURT.
    IIox. T. 1). "W". Yonley', Chancellor.

      Gallagher & Kewton, Garland § Nash, for Appellants.

      First. There is no equity in tlie bill.

      Second. The State of Arkansas shows no right in herself to proceed in behalf of the creditors and the bondholders of the Real Estate Bank. Or, in other words, as appears here, she fails to show any legal interest in the suit as a party com•plainant, and failing’ in that, she has no case. Cummins vs. James, 4 Ark., 616; Roane vs. Lafferty, 5 Ark., 465 ; Robinson vs. Denton, 6 Ark.,. 283; Bingham vs. Calvert, 13.Ark., 401; Story's Eq. Pis., 76, 137, 153-4. Under no pretext can'this stand as a creditor’s bill, and. on no other ground can a bill, seeking to do wlfat this does, be brought. Story’s Eq. Pis-., 79-126.
    . Third. The State, does not show that she has paid the debt, or any part thereof, covered by tb e .mortgage now sought to be foreclosed; nor does she show that si 10 has secured the payment, thereof. Under the charter of the Real Estate Bank the State became, by issuing her bonds to secure the capital of tlie bank, a mere security. (See Act of 26th October, 1836, Sec. 10, et seq.) And, necessarily, before she can obtain a foreclosure here, she must show she either paid the debt of the bank or a part of it, or that she has provided some means by which to pay. Wright vs. Morley, 11 Ves., 22, note 4; Clifford ex parte, 6 Ves., 805; 6 Penn. (Ban), 504-5; 2 Binncy, 382; 9 Viatts, 451; Dixon on Subrogation, 122-135, note; 2 Bouvier Law Diet. (Subrogation), 536-7; Co megs vs. State Bank, 6 Ind., 357; Richmond vs. Maston, 15 lb., 134; 2 Jones Eq. (N. C.), 414; 4 lb., 262; 33 Ala., 261; 5 Sneed (Tevn.), 86; 4 Lb., 482 ; Lee et el. vs. Griffin et al., 31 Miss. (2 George), 632 ; Bibb vs. Martin et al.,' 14 S. and Mar., 87 ; 2 Tucker s Com., 492; Duncan vs. Biscoe, 2 Eng. (7 Ark), 192-3; 24 Ark., 567-8; Nichols vs. Dunn, 25 Arky, 2 Am. Lead. Cases, 98-100, 130-4; Pittman on Principal and Surety, 125-141. And the doctrine is well and lucidly expressed in 2 Wash. Real Prop., 166, 198, 201. To the same effect, in all its length and breadth, do we find the following: Burge Suretyship, 322, 356; 1 Pothirr Obi, 240, 301, 306, 327,'342; lb. (Art. 2), 348, 413; 2 lb., (No. 11), 60-70; Bindley Juris, (appendix), 246; 1 Domed, b. 3, Tit. 1, Sec. 6, Arts. 2, 3, 4, 6, 7, 8, p. 697 et seq.

      Fourth. The State has failed to bring before the court the bondholders and creditors, or to show who and where they are; and-as part of this we maj'- discuss the fifth cause of demurrer, which is, the State fails to produce the claims or debts in court. The decree here should merge the present claims or debts, and for the future protection of the debtors against suits, the claims and claimants all must be before the court. These bonds must be brought up and re-delivered before any adjustment, can be had, and so long as even one claim is out no complete account can bo had, no decree rendered. Whitney vs. Peay, 24 Ark., 27. Under a law enacted for the benefit of the State, and upheld by the courts (Platcnius vs. State, 17 Ark., 518; S. G., 20 How., 527-532), this principle was enforced, and it is not to be supposed that the court will permit the State to aAufid the precedent — a precedent, too, so well recognized everywhere. Beebe vs. B. E. Bank, 4 Ark., 516 ; WyMack’s case, 5 Co.,'. 74, b.; Stephen’s, Pis., 704; 2 Sand. PI. and Ev., 740; Browning vs.-Wright, 2 Bos. and P.,13; Story’s Eg. Pls„ sec. 137; Porter vs. Clements, Z Ark., 364. And if there is one party or claimant not thus before the court, the suit cannot be maintained. • City of Georgetown vs. Alexandria Canal Co., 12 Peters, 91-100 ; Story Eg. Pis., secs. 99,126,153,156; 1 Turner $ Buss, 297; 3 7. $• Coll., 597 ; Palmer vs. Butcher, 7 Paige, 437; State of Ohio vs. Ellison, 10 Ohio, 456 ; Murphy vs. Jackson, 5 Jones’ Eg. (N. C.), 11; Calvert on Parties, sec. 10, p. 225; 5 Paige, 539; 6 Id., 583-98 ; 1 Daniel Gh. P., 240-75, 462.
    ■ Sixth and Seventh. The State fails to show how she has disposed of the fund seized by her, on her complaint against the trustees; and she does not offer to, turn this fund over to the creditors towards the payment of these debts. 1 Story Eg. J:, 64e, 301; Hill on Trustees, 522* ; Adams Eg., 220* ; 33 Penn., 351; 32 Id., 495 ; McKinney vs. New Eng. Manufacturing Co., 1 Stock. (N. J.), 371; Bussell vs. Clark’s Ex., 7 Crunch., 69; Findley vs. Bank, 10 Ohio {Wilcox), 59; Index to 1, 2, 3 and 4, Ohio (Wilcox), p. 889; Brightly’s Digest Federal Courts, ¡>.280, et sea.; and see, especially, Kina vs. Bobinson, 2 Bich. (S. C.), Eg. Bep., 157,192.
    This is not all, the law demands absolutely the fund first taken should be exhausted, or used for its proper purpose before any further recovery can be had. Adams sup.; Goss vs. Lester, 1 Wisconsin, 43; Hays vs. Ward, 4 Johns. Gh., 123; 2 Spence Eg. Jurist, 845; Caulfield vs. Macguire, 2 Jo. ‡ Led., 141 (Irish Chancery, 1844-46).

      Eighth. The law authorizing this proceeding on the part of the State is in violation of the Constitution of the United States, and of the Constitution of the State of Arkansas.
    This law (see Acts of Legislature of 1860-1, page 235), in attempting to dispense with rights and privileges secured under the original contract, and which formed a part of the contract when made, and in dispensing with certain requisites of tlie law under which the contract was entered into, and with reference to which, the State and'all contracted, is in violation of that section of the Constitution of the Hnited States which prohibits a State from passing any law impairing the obligation of contracts. The first section of the law permits the State to sue without paying the bonds. Such was not the contract when made — she undertook merely (Section 10, Charter,) to be security — as we have seen. So too, in relieving the State from producing the bonds in suit. These are all new features, new conditions, and most clearly a new contract, and therefore void: Sedgicick Const ruction, 616, ct seq.; 2 Story Con., 1374-1399 ; Woodruff vs. State., 3 Ark., 285 ; Cur-ran vs. State, 15 How., 804; 19 Ark., 360-409; Hope Mat. Ins. Co. rs. Flynn, 38 Mo., 483.

      Ninth. The demand sought to be enforced is stale, and the State, by her bill, shows she has been guilty of gross laches: 2 Storys’ Eg. J., 1th Ed., 1520; 8 Peters, 420; 8 Craneh-, 471: 17 How.; 340; Pandill vs, Mullikin, 1 Black., 585; Wagner ys. Baird, 7 IIow., 234; Badger vs. Badger, 2 Wallace, 94, et seq.

      Tenth. A receiver being appointed, he had charge of all the assets to be fully and completely administered, and being-now receiver, under the complaint of the State to execute the trust in place of the trustees, and pay the debts, he and no one else should sue to foreclose these mortgages for the benefit of all interested: Edwards on Receivers, 95-354. As tong-as he is in power, and assented to, the State must leave him to ask, sue for and recover here for the benefit of all: Swords vs. Blake, 3 Edw. N. Y. Ch. R: 112; Kennedy vs. Gibson, 8 Wall. 506; Libby vs. Rosekrans, 55 Barb.

      Eleventh. The supposed State of Arkansas, in whose name the suit was brought, was not a State, and she was not bound • for the debts of the bauk.
    When this suit was filed, as everybody now knows there was no State of Arkansas, and there was no right in what was then called Arkansas to sue. The right to sue must exist when suit is brought, and if not then existing the suit cannot be maintained, and the question can be presented by demurrer: 17 Ark., 442; 21 lb., 189; Hornor vs. Hanks, 22 Ark., 572; Adams Eq., 413.

      Benjamin, Solicitor General, for tlie State.

      First. Tlie first point raised in the denunrer is, that there is no equity in the bill. As this one is included in, and depends upon, others, it will be passed for the present.

      Second. The second point raised in the demurrer is that the State of Arkansas shows no right in herself to sue in behalf of herself and for the use of the creditors and bondholders of the Real Estate Bank. She is authorized to do so by express statute: See Acts of 1860-1, page 236; which is always the highest law known to the State, and which is, of itself, sufficient authority for bringing the suits, if there was no other law upon the subject; but, if there was no express statute authorizing the suits, the State would still be authorized to sue, etc.
    The Constitution of the State of Arkansas authorized the General Assembly to estabish a bank for the promotion of the agricultural interests of the State, and loan the faith and credit of the State for the same; Provided, such security can be given by the individual-stockholder as will guarantee the State against loss or injury.”
    It is a well-established doctrine that sureties and guarantors have the right to enforce mortgages or other counter securities given" to indemnify or guarantee them against payment, loss, or injury, as soon as they are endangered: Tankersly vs. Anderson, et als., 4 Dessaussure’s Equity Reports-, Bishop vs. Bay et als., 13 Vermont’, page 88; Bellune vs. Walace, 2 Richardson’s Reports, p. 80; Touhnin et als. vs. Hamilton et als., 7 Ala., 362, and Ohio Life Insurance Company vs. Ledgard et als., 8 Ala., p. 872; Hunter Davis vs. Levan and wife, 11 Cal. p. 1.
    See, also, the following authorities, which fully sustain the same doctrine: Fells’ Law of Guaranty and Surety,pages 278, 279, and cases there cited. See, also, Wagman etals vs. Hoag, 14 Barbour, 232; Bobbett, executor, et als. vs. Flowers, et als., 1 Swann, (Term.) page 511; Barker et als. vs. Bacl et als., 5 Cushing (Mass.), 520; Teeter vs. Fierce, 11 B. Monroe, 379.
    But the right to sue on these mortgages has been fully settled by our own Supreme Court: Wilson vs. Biscoe et al.,11 Ark. 44.
    The third reason assigned for cause of demurrer is, that the State of Arkansas does not show that she has paid the debt or any part thereof.
    The State of Arkansas is not a simple surety for these bonds without'any special guarantee or security whatever. The State in these bonds became the principal, as between the State and bond-holder, and, in consideration for doing so, was secured by mortgages and special guarantee from the individual stock-holders of the Real Estate Bank.
    Can there be any question blit that the guarantee to pay and the guarantee against loss or injury are broken, and that a cause of action has accrued on each thereof? See Faust, assignee, etc., vs. Bwrgevin et als., 25 Ark., 170; Thomas vs. Allen, 1 Hill, 145; Churchill and Hays vs. Hunt, 3 Bienio, 321; Ramsay vs. G-ervais, 2 Bay, S. C., 145 ; Fast River Bank vs. Rogers, 7 Bosworth, 493 ; Gilbert vs. Wiman, et als., 1 Comstock, 550 ; Chace vs. BLinman, 8 Wendell, 452; Town of Byman vs. Bull, 4 N. H, 495 ; in matter of Negus, 7 Wendell, 499.
    As to the fourth and fifth causes assigned, it is sufficient answer to say that the act of 1860-61 expressly provides that the State may sue without bringing the bondholders or claims before the court.
    As to the sixth and seventh causes assigned, it is sufficient to say that the receiver’s reports show what was seized and what disposition was made of it. Furthermore, the law of 1860-61 provides that these cases be referred to a master to ascertain how much is now due thereon.
    As to the eighth cause assigned, that the law of 1860-61 is in violation of the Constitutions of this State and of the •United States, See The State vs. Fairchild, 15 Ark., 619; Bronson vs. Kinzie et al.fi Howard, 315 ; Gordon vs. The South Fork Canal Company et al., 1 McAllister, 513; U. S. Bank vs. Bong-worth, 1 McB., 35; U. S. vs. Jas. S. Comoay, Hemp., 313.
    As to tlie objection that the law did not take effect until after the passagé of the ordinance of secession, See Farrelly vs. Milor, 25 Ark., 353.
    As to the ninth cause assigned, that the demand is stale, it is answered, by matter of fact, that the State has shown due diligence, and further laches do not apply to a government. See Marion County vs. Moffett, 15 Mo., 604; Bark vs. The State, 7 Mo. Rep., 194.
    As to the tenth cause assigned, it is sufficient to say that the mortgages Were not due at-that time and could not be foreclosed — (See Edwards on Receiver, p. 5).
    As to the cause that the supposed State of Arkansas, in whose name the suit was brought, was not a State, and not bound for the debts of this State, See State of Texas vs. G. W. White, 3 Am. B. R., 770.
   Gregg, J.

Under the act of the Legislature of January 16th, 1861, the State of Arkansas filed her bill of complaint against the east half southwest quarter, and west half southeast quarter of section twenty, in township thirteen south of range twenty-nine west, in which she alleges that under the act of the State Legislature of October 26, 1836, the State issued two -millions of dollars in her bonds, bearing interest at five per cent., and payable at twenty-five years, to the order of the Heal Estate Bank, and transferrable by indorsement; and that it was further provided in said act that said bank was to pay the interest, and when due, the principal of said bonds; that stock should be first subscribed to the amount of §2,250,000, and such subscription secured by mortgages on real estate, conditioned for the payment of all moneys recei ved from the bank and the final payment of the bonds of the State, which mortgages were the base of the capital of the bank; that afterwards the interest upon the bonds, by-act of the Legislature, was increased to six «per cent., and that on the first day of January, 1838, the Governor issued fifteen hundred and thirty of such bonds, each for one thousand dollars, which were indorsed and, in September of that year, sold five hundred of them to the - Secretary of the United States Treasury, and one thousand to Joseph 1). Beers, and thirty to R. M. Johnson, but that the present holders are unknown; that under the act of the Legislature of 1838, to establish a western branch bank, five hundred bonds, of like conditions, amounts and terms, were issued on the first of Januaiy, 1840, upon similar subscriptions of stock and mortgages, which stock, bonds and mortgages were transferred to the State and the holders of her- bonds, as an indemnity for the payment of the State bonds.

It is further alleged that these five hundred bonds were hypothecated for $121,336 59, without authority of law, and that the State is not bound to pay them.

It is alleged that Thomas B. Hayne, on the 10th day of June, 1837, having subscribed for forty shares, gave his stock bond for $4000, payable to the bank, or order, with five per cent, interest, half yearly, and due 26th of October, 1861; and that he, on said 10th day of June, executed his mortgage to said Real Estate Bank, conditioned as aforesaid, on the cast half southwest quarter, aiid west half southeast quarter section twenty, township 13 south of range twenty-nine west; that afterwards, on the 16th day of September, 1837, thirty-eight shares of stock (valued at $100 each), were awarded said Ilayne, and he became a stockholder to that extent, and that he has not paid off’ said stocK bond, nor has he paid so much of the bonds of the State issued to said bank, etc.

It is also alleged that said Real Estate Bank, on the second day of April, 1842, by deed of assignment, conveyed to Henry L. Biscoc and others, as trustees, all the property and effects of said bank, in trust to pay off her liabilities' in the order therein stated, who took charge of said effects and ad ministerecl said trust until the second day of April, 1844; that in ■ July, 1844, upon quo warranto before the Supreme Court of this State, the charter of said bank was declared forfeited, and it ceased to exist as a corporation; that by a decree of the Chancery Court, rendered, on the 20th day of April, 1855, upon a bill against the residuary trustees, charging fraud and waste in the administration of said trust, said trustees were removed, and a receiver appointed to take charge of all the assets of said bank, to administer the same, make reports, etc.; that to secure the 22,500 shares of stock awarded under the act of 1836, mortgages had been executed upon 127,-829 65-100 acres of land, valued at $2,603,922 72-100; that to secure the 5640 shares awarded stock-holders under the act of 1838, to establish the Western Branch Bank, one hundred mortgages were executed to said Beal Estate Bank upon 60,290 24-100 acres of land valued at $776,840 6-100; that by the receiver’s report of October, 1866, there were outstanding- and unredeemed 888 of the 1530 bonds, on which Ayas due of' principal $888,000, and of interest $1,066,000, that there was. also unpaid the sum of $121,336 59, obtained by the hypothecation of said five hundred bonds, and interest on said sum-from the 7th of September, 1840, to the date of said report, amounting to $189,750 27, and of notes out, in circulation, $12,755; and that the-total available assets at that date were' $512,341 31, and therefore the liabilities over the assets were $1,771,500 59, and that the condition of said assets remain as then, and she prayed for a foreclosure of the said mortgage for her protection, as .well as for the benefit of the holders of the bonds of the State and the creditoi-s of the bank, to enforce the payment of said bonds and the interest thereon, Avhich she is bound to pay to preserve her faith, etc., and that if payment of such proportional sum as may be chargeable upon the lands, aboA'e described, be not paid, that they be sold, etc.

Under the act of the Legislature, first referred to, the appellant appeared in the Chancery Court and claimed to be the owner of tlie lands proceeded against, and by order of that court he was made a party and allowed to defend the action; whereupon he -interposed a demurrer to the bill, in which were eleven specifications.

The first was a general denial of equity on the face of the bill.

The second was that the State had no right to sue in behalf of herself and the creditors'and bond-holders.

The third, that the State does not show that she has paid or secured the debt.

Fourth. That the State has failed to bring the bond-holders before the court.

Fifth. That the State does not bring into court the claims or debts for which she seeks a foreclosure, nor does she show that she has control of them.

Sixth. That the State fails to show what disposition has been made of the funds she seized as assets of the bank.

Seventh. The State fails to offer to turn over such assets.

Eighth. That the law under which suit is brought is unconstitutional.

Ninth. That the demand is stale.

Tenth. That the State’s rights were equitable only, and she should have proceeded to foreclose when she seized the assets and had a receiver appointed.

Eleventh. That there was no State of Arkansas when this suit was bfbught.

"We propose a short review of these several causes of demurrer, mainly in their inverse order.

The last cause assigned, that Arkansas was not a State needs no comment.

The ninth and tenth assume that the State is barred by lapse of time and her. neglect to sue. The record discloses the fact that the mortgage sought to be foreclosed fell due in October, 1861; until that time it would not have been proper for any party to have brought a bill to foreclose this mortgage. The legal presumption is that a mortgagor will pay his debt and relieve Ms property before a forfeiture of the right of redemption. At all events he should not have been harrassed by suits, and taxed with attorney’s fees, etc., until in default by the terms of his contract. Therefore, the right to sue properly accrued in October, 1861, at which time the State was in rebellion, and this action was brought in 1867; not an unreasonable time after the close of the war, anddience it is not necessary to pass upon the question mooted by counsel, us to whether or not in such case time runs against the State.

The eighth assignment challenges the constitutionality'Of the act of the Legislature of 1861. It is not controverted that a law which merely changes or regulates the remedy is not unconstitutional, although it affects the enforcement of •existing as well as future obligations. Nor can it be controverted that an act of the legislature which impairs the obligation of a contract, or which cuts off or so modifies the remedy that it cannot be made effective, is unconstitutional .and void, and the validity or invalidity of the act in question depends upon how it classifies under these definitions. From the whole object and scope of this act, it was clearly intended to furnish a remedy different from that which existed when these obligations were entered into; the matters of expected litigation appeared so complicated and extensive that the will of the Legislature seemed to be to abridge the pleadings, to narrow down and simplify the issues so as to reach the end •of litigation by the shortest practicable way. And all this is within the power of legislation, if the acts do not infringe upon existiug rights.

The State assumed a large liability. To indemnify her the bank promised to pay off her bonds, and the mortgagors "bound themselves to pay off their stock bonds with all the interest that might accrue, or to pay such an amount of the bonds of the State, issued in favor of the bank, equal to the amount of stock granted to them respectively or their equity of redemption was subject to foreclosure.

Now the act in question does not lessen the time for, or increase the amount of -payment to be made by the mortgagor, nor does it change the funds required or the manner of payment. It only regulates or prescribes the mode of obtaining judgment and sale and, in this, it cuts off’ no defense, but allows the mortgagor, and all others who claim any interest, to appear, defend and maintain such rights as they may have, and although the manner of commencing the action, serving notice and proceeding to judgment, is not the same as when the obligation was entered into, yet, while the obligor is secured in all his rights under the contract, where he is liable to pay no more than formerly and within no less time than stipulated, and no new conditions added, it is but a regulation of the remedy and does not impair the obligation of the contract.

The sixth and seventh causes allege that the State has not turned over, or shown what disposition has been made of the -funds seized and placed in the hands of the receiver; -while this is not done with as much particularity and fullness as might have been done, yet, by examination of certain reports refered to, among other things, containing a statement of the amount of these assets, in October 1866, with an allegation that the condition of these assets remain as then, it seems tons that they are sufficiently accounted for to enable the claimant to form an issue upon this allegation, or, if it be conceded, to estimate the amount thus paid, by the offer of the State to deduct those available assets by her so received.

The fourth cause of demurrer is that the State has not brought the bond-holders before the court; and the fifth, that she has not the bonds or claims before the court.

The Act of 1861, which we have shown was not unconstitutional, expressly provided for prosecuting such suits, as this, without making profert of the State’s bonds, or paying them off. The suit is being prosecuted in the interest of the holders of the State’s bonds as well as that of the State, and the bill alleges that they are unknown, too numerous, etc., to be brought before the court, but they may be satisfied, if not under this law, they have a perfect right to come in and set up any equity they may have, and by the terms of this Act, they have been notified of the pendency of this suit, and if they are content, we see no good reason or law requiring this defendant to here complain for them, and his future interests, under the decrees that. may be in this cause, are fully protected by the faith and credit of the State; and we must recognize some difference between a proceeding carried on by a sovereign State, and one' by an individual man. The sovereignty must be presumed capable of protecting every interest of all her citizens, while the promise and solvency •of an individual, in equity, are so far questioned that he is required to perform all his equitable obligations beforb his opposing suitor will be decreed to perform his part of the •agreement.

The remaining causes of demurrer go to the right of the State to sue without first paying the bonds, etc. We have ■already expressed the opinion that the Act of 1861 is constitutional, and it authorizes the State to proceed in this matter.

Whether or not profert of instruments sued on shall be made, and what papers shall be filed at the commencement or during the pendency of a suit, are matters of practice and subject to legislative discretion; and whether or not the evidences of liability are filed and made of record, does not affect the rights of a litigant, so he is fully protected against fui’ther recovery upon the settlement of what he justly owes. And under the Act of 1861, the sovereignty of the State is pledged for his protection; by a solemn enactment of law she vouches, upon her faith and credit, that the lands redeemed, or by her sold and conveyed, shall be forever saved and protected from any further liability on account of these stock mortgages. As a court, we cannot impute improper motives ■or charge bad faith upon the State; we must presume she will fulfill her obligations and make good all her pledges. Equity practice may require individuals, not primary in interest, who seek contribution or protection, to make sure their offers by payment or other satisfaction, before appealing to a court to seize funds held by another as indemnity. But when the government assumes the liability, the presumption is that she will in good faith carry out her agreements, and therefore the reason ceases for enforcing such rule as applies-to individual citizens.

In this case the appellant bound himself to pay and when such payment extinguishes his liability and protects him against all further suit or demand, and to this extent he is protected by the law and the absolute guarantee of his government, he cannot complain that injustice has been done him,, and he ought not to complain at being required to fulfill his own contract. But he says the State ought not to sue. "Who then, by the terms of his contract, was to be plaintiff, upon the ultimate failure to pay the amount of these stock bonds- and mortgages ? By the law, Section 14, Act of October 1836,. which was a part of the contract, all the bonds and privileged mortgages, executed for stock, were transferred to the State and the holders of the bonds to bo insured by the State as a guarantee of the State’s bonds, and these mortgages were all so executed and transferred before the State executed her bonds. Now, why were these bonds and mortgages, by a provision of law before that time enacted and agreed to, thus transferred to the State, if she was not to sire in case the obligors did not fulfill their agreement? It was the State and not the bondholders that took these steps, and for her own protection incorporated these provisions in her contract. Yet it is urged that these mortgages were to the bank and not to the State, notwithstanding this solemn provision of law -that up'on their execution they were to be transferred to the State, and it is altogether clear that the parties contracting never contemplated a foreclosure of these mortgages by the bank, because the bank was to go out of existence the very day the stock-bonds and mortgages fell due; hence, it seems clear that they intended some other, and not the bank, should enforce these claims.

But it is urged that the receiver, appointed by tlie chancellor, to take charge of the assets of the bank, should have brought this suit. If we grant that he could have done so, if he, an individual, could thus act for the State and the bondholder, under the law, could she not likewise act for herself and the bond-holders when expressly empowered by an Act of tlie Legislature? Is not the wealth and honor of the sovereign State security to the claimants, and the bond-holders, of as high a grade as the bond of a trustee with such surety as he could command? And the will of the people, when properly expressed by the Legislature, if not in conflict with the Constitution, is the rule of action for both State and citizen. "We see no sufficient reason in law to estop the State from maintaining such suit. If she cannot sue, no suit can be maintained, and this would present a legal anamoly of most deliberate contracts, involving millions of dollars gain to one party and a corresponding loss to the other, and no right of recovery.

The Solicitor of the State is certainly in error in attempting to proceed in this form of action to recover the amounts received upon the five hundred bonds, hypothecated for funds to establish the western branch bank. At and before this time, the Legislature had assumed that these bonds were illegally disposed of, and that the State was not liable for their payment, and they and the mortgages to secure the State therefor, were not embraced within the provisions of the Act of 1861, and a suit under that Act, so far as they are concerned, cannot be maintained. But as she had the right to proceed for the amount of tlie 1530 bonds, her claim for an additional sum, not collectable by such proceeding, should have been otherwise met and was not the subject of demurrer.

Upon the whole case, taking the bill as confessed, it appears to us that the appellant has only been decreed to pay what. in duty and law he ought to have paid. And the mortgagor’s inquiries as to whether the State stands in the attitude of surety, acts as trustee, or as principal, need be of but little concern so lie pays no more than he obligated himself to pay, and no more than a just recompense for what he received, and thereupon is exonerated from all further liability.

The decreg of the Chancery Court is in all things affirmed and the cause remanded.


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    NORMAN v. CURRY.

      Appeals — Regulated by the Code — The provisions of the Code of Practice, in relation to appeals, regulate the practice and are the general law for proceedings in that respect in all the courts, and they prescribe the requisites for all changes from one court to another, in bringing and prosecuting suits through all the courts.
    Construction op Statutes — See. 1C, Act of 1868. — Section 16, of “An act to amend chapter sixty-nine of Gould’s Digest, etc., approved July 1G, 1868, was not enacted under its appropriate title, and further, in so far as it prescribes a condition precedent to the right of appeal, by the payment of all costs, is in conflict with See,. 4, Art., 1, State Const., and is inoperative^
    PETITION FOR MANDAMUS.

      A. II Garland, for Petitioner.
   Gregg, J.

On the, Gth of February, 1872, Norman filed in this court his application for a mandamus against John J. Curry, as the clerk of the Ashley Circuit Court, and alleged that one Henry Leo had, at the October term, 1871, obtained judgment against him for $689 00, from which judgment lie had duly appealed to this court, and that he had filed in that court his supersedeas bond, which had been legally approved and a supersedeas awarded; that, thereafter, he demanded of said Curry a transcript in that cause, and tendered him all his fees for making out and certifying such transcript, but that said Guriy refused to make out and deliver to him such transcript.

'Gurry responds that the allegations in the petition are true; but he insists that he was not bound to make out such transcript until the petitioner, who was the appellant in the cause in that suit, had paid all the costs that had accrued in the cause, and he refers to Section 16, p. 243, session acts of 1868, which is as follows : “That in all cases of appeal to any superior court, the clerk of the court, or the justice of the peace, from which the appeal is taken, shall not be required to deliver or forward the transcript until his fee for such transcript, together with all costs that may have accrued, are paid.”

This section was interpolated in an act declaring the amount of fees allowed certain State and county officers, which was not an appropriate title under which to insert a general provision of law regulating practice and prescribing conditions of appeals in the courts. During the same session of the Legislature they enacted and adopted a Code of Practice which, on the first day of January next, thereafter, was to, and did go into effect for all purposes, and all proceedings were, after that time, to conform to its provisions. Civil Code, Sec. 890.

This Code provides, Sec. 859, that the judgment or final order of an inferior court may be taken to the Supreme Court by an appeal. By Sec. 866, the appellant may be required to give security for costs, Sec. 869, provides that air appeal shall not stay proceedings on the judgment, unless a supersedeas is issued. The next section prescribes the conditions of a bond “for supersedeas. Section 871 provides that where a proper bond is executed a supersedeas shall be awarded. Section 873 provides that if the appellee believes the bond defective, or the securities insufficient, he may move the Supreme Court, or a judge thereof^ to discharge the supersedeas, etc.

These Code provisions are intended, especially, to regulate the practice in all the courts. This is the general law for proceedings in the courts and for all changes from one court to another, and it was evidently intended to* prescribe the whole course of bringing and prosecuting suits through all the courts; and it proscribes all the requisites necessary to give an appeal from one court to another, and to secure the appellee and officers of court in all their rights. Under the Code the payment of costs is not a prerequisite, and upon complying with what is prescribed, this law declares an appeal shall be granted, and, if the clerk of the inferior court is not bound to make out a transcript., no appeal can be prosecuted against his consent.

This Code of law being complete in itself and enacted, especially to regulate the practice in the different courts, and as it is enacted, in its own" provisions, that other laws may be in force until the first of January, then next following) but thereafter all practice and proceedings should conform to its provisions, and that none of its provisions should be repealed unless such intention be expressly stated, and title, article or section to be amended or repealed, shall be particularly referred to and recited in the act amending or repealing the same; and hence lays down the general rules of practice on this subject. Sedg. Stat. & Const. L., 124.

But as this statute prescribes a condition precedent to the right of appeal and, in instances where a litigant is appealing from an erroneous judgment for costs only, would deprive him of the benefit of his appeal, we hold that it is in conflict with Section 4, of Art. 7, State Const., which authorizes the bringing of final judgments of inferior courts into the Supreme Court for revision, and therefore it is inoperative; Simptson vs. Simpson, 26 Ark.

A mandamus is awarded.


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    JOHN S. HORNER, ex parte.
    APPEAL FROM PHILLIPS CIRCUIT COURT.
    Hon. M. L. Stephenson, Circuit Judge.

      A. H. Garland, for Appellant.
   Gregg, J.

John S. Horner presented the will of William J. Ningo for iirobate, which was rejected by the Probate Court of Phillips county; he excepted and appealed to the Circuit Court, wherein the matter was heard anew, and the judgment of the Probate Court affirmed. He moved for a new trial; his motion was overruled; he excepted, and appealed to this court.

The only question before this court is whether or not a will written and signed.by a testator, in liis own proper hand writing, without attesting witnesses, is valid. The statute expressly provides that such wills are valid, and may b?admitted to probate upon proof by three unimpeachable and disinterested witnesses to the handwriting and signature: Gould’s Digest, Chap. 180, Sec. 4, p. 1073; Rogers et al. vs. Diamond, 13 Ark. 474.

' The court below held that this law had been repealed by Chap. 12, p. 81, of what was known as “ Chapters of the Digest,” published in 1869. This was an error, as the chapter referred to was never enacted as law: Vinsant vs. Knox, page 266, 27 Ark.

For this error the judgment of the Phillips Circuit Courtis reversed, and this cause remanded to be proceeded in according to law.


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    COWSER et al. v. THE STATE ex use BURT, Adm’r.
    Confederate Courts — Acts of void. — All acts and proceedings of the different courts of the State, done and had under authority of the Convention of 1801, or while the State was in rebellion, are void.
    APPEAL EROM UNION CIRCUIT COURT.
    IIon. G-. W. McCown, Circuit Judge.

      J. H. Carlton, for Appellants.
   Gregg, J.

Burt, as the administrator de bonis non, of the estate of John O’Guinn, brought suit against William R. Cowser, former administrator of said estate, and the sureties upon his official bond, alleging that they executed bond in the usual form; that said William R. took into possession the effects of the estate; that in 1861 he removed from the State; that the Court of Probate required him- to make settlement; that he failed to do so, and that in August, 1861, said court ordered his letters revoked, and adjusted his account and found $3063 in his hands, and thereupon appointed said Burt such administrator de bonis non, and that said effects had not been turned over according to the order of the Probate Court, etc.

William R. -Cowser was not served with process. James Cowser and Hicks, the securities, had notice; they appeared and demurred to the declaration; their demurrer was overruled, and, it seems, final judgment rendered against all three.

The demurrer should have been sustained.

The 25th section of the bill of rights, of our present Constitution, declares that, “The action of the Convention of the State of Arkansas, which assembled in the city of Little Rock on the 4th day of March, 1861, was, and is, null and void. All the actions of the State of Arkansas, under authority of said Convention, of its ordinances or its Constitution, whether legislative, executive, judicial or military, was, and is hereby declared null and void,” etc.

The acts alleged to have been clone by said Probate Court, were judicial acts, under authority of the Convention of 1861, and consequently void, as enacted and declared by the present Constitution. The courts aré bound by the Constitution, in force, and the acts of the Legislature consistent therewith, and they cannot now give the acts of that court the force and effect of judgments. See Penn vs. Tollison, 26 Ark. 545; Thompson vs. Mankin, 26 Ark. 586; and Knox vs. Vinsant, 27 Ark.

The judgment is reversed, and the cause-remanded for fur.ther proceedings.