author: English, Sp. J.

text:
    Campbell vs. Rankin et al.
    Vendors Lien : When and how assignee may enforce, eta.

    Where lands are sold and notes executed by the vendee for the purchase money, and the vendor in the face of the deed retains a lien upon the lands for the payment of the notes, and the assignee, or holder of one of the notes, brings before a court of equity the vendor as well as the vendee, and the holders of the notes given for the purchase money of the lands, and asks'that the holders of the notes be subrogated to the right of the vendor, and the lands be sold, etc., the rule of decision as held by this court, that the assignment of a note secured by a lien reserved in the face of the deed does not transfer the lien to the assignee, so as to enable him to maintain a bill, in his own right, against the vendee to inforce the lien upon the lands, does not apply.
    APPEAL from Phillips Circuit Court.
    Hon. John E. Bennett, Circuit Judge.

      Garland & Nash, for appellant.

      Palmer & Panders and JJ. M. Pose, for appellees.
   English, Sp. J.

This was a bill to enforce a vendor’s lien, etc. The bill was filed by Leonidas A. Campbell, in the Phillips circuit court, in October, 1866, and its material allegations are as follows:

In January, 1861, Robert P. Ranldn sold to Archibald T. Dobbins for $210,000, a large plantation in Phillips county, with the slaves, horses, mules, cattle, hogs, etc. thereon. Dobbins paid Rankin $25,000 of the purchase money in cash, and agreed to pay tbe remainder in seven annual installments, which were subdivided and evidenced by thirty-two notes, one of which was for $9,000, payable January 12, 1862. By deed bearing date the 13th of January, acknowledged and delivered on the 7th and recorded on the 11th of March, 1861, Rankin and wife conveyed the property, real and personal, to Dobbins. The deed states the terms of the contract of sale, describes the property and all the notes, by dates, amounts, etc., given for the purchase money; conveys the property to Dobbins, and retains a lien on all of the property conveyed to Secure the payment of the notes, in the following words : “ It is further contracted and agreed, however, that said parties of the first part, in order to secure the payment of each and all the deferred payments aforesaid, evidenced by the notes aforesaid, do hereby retain a lien on all real estate, slaves and other personal property herein above conveyed, and upon all increase of said slaves which may take place between' this-time and the payment of all the said notes; and they will hold and retain said lien on all said property, real and personal, until such time as the whole consideration of the sale herein above set forth is finally paid.”

Some time in the year 1861, Rankin indorsed the note for $9,000, payable the 12th of January, 1862, to Campbell. The note is an ordinary promissory note, dated at New Orleans, payable to the order of Rankin at the bank of Louisana, in New Orleans, for value received, bearing eight per cent, interest; the indorsement: “ Pay Leondias A. Campbell,” signed by Rankin.

The bill alleges that Campbell took this note in due course of trade, and that no part of it had been paid, and that by the assignment of the note, he had become the mortgagee of Dobbins and subrogated to all the rights of Rankin under said deed and mortgage, for the collection and security of said note, etc. That Ward, Hunt & Co., were the owners and assignees of four of the notes secured by the deed, which are described. That James O. Harrison was the owner of one of the notes, and the Northern Bank of Kentucky another, and that complainant had made diligent inquiry, but had not been able to ascertain who were the owners of the other notes described in the deed, nor how many of them were unpaid.

He prays that Rankin and Dobbins, both of whom are made defendants, be required to discover which of the notes described in the deed were unpaid, and who were the owners and holders, thereof, that when discovered, they might be made defendants, with the holders of notes above named.

The bill further alleges that Rankin was in possession of the lands described in the deed, holding and claiming the same under some contract or agreement with Dobbins, but that he held them charged with all the equities created by the mortgage lien retained in the deed, which had become vested in the complainant by the assignment of said note to him, etc.

That by the proclamation of the president of the United States, and the constitution and laws of the state of Arkansas, the slaves mentioned in the deed had been emancipated, and that all the other personal property had been wasted or destroyed by the ravages of the late war, leaving no portion of the mortgaged property upon which the lien existed that could be subjected to the payment of the debts except the real estate described in the deed.

Prayer for discovery, as above: That the lien retained in the deed be decreed to operate as a mortgage upon the property therein described, to secure the payment of the unpaid purchase money expressed in the deed and evidenced by the notes; that the court marshal the debts secured by the mortgage, and ascertain the amount of purchase money remaining unpaid, and a lien on the lands; that complainant be subrogated to the rights of Rankin, etc.; that the holders of the notes above named, and others when discovered and made parties, be required to unite with complainant in the enforcement of the lien retained in the deed; that the amount of debt remaining unpaid be declared a lien on the lands, etc.; that a decree be rendered for the whole amount of the debt and interest, etc., and the lands sold for the satisfaction thereof, and the fund brought into court and appropriated in payment of the notes, etc.; that Rankin be decreed to hold the possession of the lands subject to the lien retained in his deed to Dobbins, and that upon a sale of the lands, he be required to deliver possession thereof to the purchaser, and that the equity of redemption of Dobbins, or Rankin, etc., in the lands be barred and foreclosed, and for general relief.

Rankin' filed a demurrer to the bill, which was sustained, and the bill amended.

Harrison and the Northern Bank of Kentucky entered their appearance, and consented that a decree might be entered in accordance with the prayer of the bill.

A decree pro confesso was entered against Dobbins, Hunt and Ward.

Rankin filed an answer to the bill as amended, which contained a demurrer.

In the answer he admits the sale of the lands, etc., to Dobbins, the execution of the note, the de.ed, the retaining of the lien upon the property, etc., as alleged in the bill; but denies that the lien was a mortgage, and avers that it was personal, and not transferred by assignment of the notes. Admits the emancipation of the slaves, the waste of the other personal property, the assignment of the note for nine thousand dollars to Campbell, and that no part of it had been paid. Denies that by the assignment of the note complainant had become the mortgagee of Dobbins, and subrogated to the rights of Rankin, etc. Admits that all of the notes executed by Dobbins to him were unpaid, and states the names of the. holders thereof, so far as he knew them. Admits that he was “ in possession of the lands under and by virtue of an arrangement with Dobbins,” and insists, by way of demurrer, that the note sued on was not a lien upon the lands described in the deed in favor of complainant, as assignee thereof.

The complainant filed a replication to the answer of Rankin, and the cause was continued. A subsequent term the demurrer of Rankin was submitted, and sustained, etc. Campbell appealed.

In Shall, Adm’r, et al. v. Biscoe, 18 Ark., 162, it was held, on weight of authority, that where the vendor conveys land by deed, taking the note of the vendee for the purchase money (and reserving no lien in the face of the deed for the payment of the note), a mere assignment of the note does not transfer to the assignee the benefit of the vendor’s equitable lien upon the land for the payment of the purchase money. This case was approved in Williams et al. vs. Christian et al., 23 Ark., 257.

In Smith v. Robinson et al., 13 Ark., 533, it was held that where the vendor gives a bond to make title on the payment of the note for the purchase money by the vendee, the transaction is a security for the debt, and the same in effect as the making of a deed, and taking a mortgage back to secure the payment of the note.

And in Moore and Cail, Adm’rs, v. Anders, 14 Ark., 635, that the assignment of a note thus secured, carried the lien or security with it, as an incident to the debt. In this case the court said: “Whenever we assimilate the sale of land, by means of a bond, etc., to make title on payment of the purchase money to a conveyance, and mortgage back to secure the same end, the usual incidents of a mortgage attach to the transaction, and the rights of the parties growing out of it are to be governed by analagous rules. The weight of authority no doubt is that the equitable lien of the vendor is personal to him, and is not, unless under some peculiar equitable circumstances, assignable,” etc. * * But, “clearly the lien, under a bond for title on payment of the purchase money, being expressly reserved by contract tantamount to a mortgage security for the benefit of the vendor, and the note for the purchase money transferable like any other chose in action made assignable by law, the assignment of the note tacitly carries with it the vendor’s lien by way of mortgage security, and as an incident to the debt. The value of the note as a negotiable instrument in the hands of the vendor would be impaired, if the security could not accompany a transfer of it to an assignee,” etc.

In Williams el al. v. Christian et al., 23 Ark., 256, held that where a note for purchase money thus secured is assigned by the vendor without recourse, the lien does not pass by the assignment, but the assignee implicitly relies on the personal responsibility of the maker of the note.

In Crowley v. Riggs et al., 24 Ark., 563, it was held that the equitable lien of the vendor might be enforced by one holding the notes of the vendee as collateral security for the payment of a debt of a vendor; that the holder of the notes was subrogated to the equities of the vendor. In that case the holder of the notes filed the bill to enforce the lien, and made the administratrix of the vendor and the vendee defendants ; all the parties interested were before the court.

The decision in this case was followed and applied in Carlton v. Sessions et al., ante.

In Hutton, Adm'r, el al. v. Moore, Adm’r, 26 Ark., 396, this court said: The better opinion is, that when a Vendor conveys title without reservation, his lien is an. individual equity of no force until decided by a court of equity, and does not pass as a right to an assignee of the notes for the purchase money.”

But where the vendor, as in that case, withheld the title, taking notes for the purchase money, showing on their face that they were given for the lands, the lien of the vendor passed to the assignee by assignment of the notes.

In Sheppard v. Thomas, 26 Ark., 626, the vendors executed a deed to the vendee for lands, etc., reserving a lien upon the lace of the deed for the payment of notes taken for the purchase money, and assigned the notes to Thomas, who filed a bill against the vendee to enforce the lien. A majority of the court held that the lien reserved by the vendors in the face of the deed did not pass to the assignee by the assignment of the notes, and that he could not maintain a bill against the vendee to enforce the lien. This case-was followed by a majority of the court in Jones v. Doss et al., 27 Ark., 518.

In both of these cases the views of a minority of the court were expressed in dissenting opinions.

By section 28 of the act of .April 21, 1873 (Pamph. Acts of 1873, p. 217), the legislature declared that the lien or equity held or possessed by the vendor of any real estate, for the sale of the same, shall inure to the benefit of any assignee of the notes or obligations given for the purchase money of such real •estate, and such lien or equity shall be assignable and payable by indorsement or otherwise, in the hands of such assignee; .and any such assignee may maintain an action or suit to enforce the same, provided the said lien or equity is expressed upon or appears from the face of the deed of conveyance.”

In the absence of any clear expressions showing it to have been the intention of the legislature to give this act a retrospective effect, we think it safest to hold that it can only be applied to assignments made after the passage of the act.

The notes in this case having been assigned before the passage of the act, the case must be decided on general principles, but the question involved in the ease, and upon which the court has heretofore, as above indicated, been divided, has been rendered of less practical importance by the passage of the act.

Here, upon the face of the deed, the vendor retained an express lien upon the lands conveyed for the payment of the notes executed by the vendee for the .purchase money. This lien was created by contract of the parties, expressed upon the face of the deed, and put upon the public records. This was not technically a mortgage, but like a mortgage, it was a securityfor the payment of the debt, as much a security for the payment of the debt as if the vendor had made the deed absolute on its face and taken a mortgage back from the vendee to secure the payment of the notes given by him for the purchase money.

The lien reserved in the face of the deed being, like a mortgage, a security for the debt, I should hold, if the question was res novo in this court, as was held by the dissenting judges in the cases above referred to, and as has been held by the circuit court of the United States for this district, and by the supreme courts of several of the states, that the assignees of the notes were entitled to the benefit of the lien by which their payment was secured. Lincoln v. Purcell et al., 2 Head., 151; 3 id., 534; 2 id., 131, and cases cited in dissenting opinions above referred to.

But conceding the law to be, as decided by a majority of the court in the above causes, that the assignment of a note - secured by a lien, reserved in the face of a deed, does not transfer the lien to the assignee so as to enable him to maintain a bill, in his own right against the vendee to inforce the lien upon the lands, yet such is not precisely the attitude of this case. But here the holder of one of the notes brings before a court of equity the vendor, as well as the vendee, and the holders of the notes given for the purchase money of the lands, and aslcs that the holders of the notes be subrogated to the rights of the vendor, and that the lands be sold, the debts marshaled, and the proceeds distributed ratably among them.

"Why should not this be done? The vendee has not paid for the lands; they are bound, upon the face of his deed, for the purchase money, and he should not be permitted to keep them without paying for them. The vendor might have enforced the lien by bill against the vendee and the holders of the notes to protect himself as indorser of the notes, but he has not done so, and may never choose to do so. He may be insolvent and indifferent about the matter. Then, unless this bill can be maintained, though the lands stand charged upon the public records with a lien for the payment of the notes given for the purchase money, no one can enforce this lien even in a court of equity.

And why should a court of equity, with all the parties before it, not decree a sale of the land and give the proceeds to the holders of the notes for the purchase money ? Surely the mere technical conclusion that the lien reserved in the deed did not follow the notes into the hands of the assignees is not a good reason why a court of equity, with all the parties before it, should not decree that the purchaser of the lands should pay for them, or the lands be sold for the satisfaction of .the debt, and that the money should go to the persons equitably entitled to it.

The decree of the court below must be reversed, and the cause remanded with instructions to the court to overrule the demurrer to the bill, and proceed with the cause, etc.

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


source: Caselaw Access Project

author: McClure, C. J.

license: Public Domain

text:
    State vs. Brandon.
    Practice : Indictment, defects in, how reached.

    Objections to an indictment on the ground that the names of the witnesses, upon whose testimony it was found, are not indorsed thereon, or that‘the indictment was not presented by the foreman of the grand jury and filed in court as required by law, can only be reached by motion to set aside the indictment, and is not ground of demurrer.
    Construction op Statutes : Grocery licenses, how and by whom issued.

    Sec. 155 of the revenue law of 1871 does not repeal the acts of January 11,1855, and February 14, 1867, respecting the granting of licenses for the retail of vinous or spirituous liquors, and, under these acts, the county court is the only authority in the state to grant such license; and, where a party has a license signed by the clerk and authenticated by the seal of the county, and countersigned by the collector, he has all the law requires him to have, and the presumption will be that the county court authorized the issue of the license upon a proper petition presented to it.
    APPEAL from White Circuit Court.
    Hon. John Whytock;, Circuit Judge.

      T. D. W. Yonley, Attorney General, for appellant,
   McClure, C. J.

The only- question in this case is the sufficiency of tbe following indictment:

“White Circuit Court — The State of Arkansas v. William L. Brandon — Indictment.
“The grand jury of White county, in the name and by the authority of the state of Arkansas, accuse William L. Brandon of the crime of keeping grocery without license, committed as follows, viz.: The said William L. Brandon, on the 20th day of January, A. D. 1873, in the county and state aforesaid, unlawfully did keep a grocery for the retail of ardent spirits by quantities less than one quart, without first .having obtained a license from the county court of said county authorizing him to exercise the privilege of a grocery keeper, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Arkansas.”

This indictment was demurred to, but the grounds of demurrer are not stated. Under the criminal code there are five grounds or demurrer (section 165):

First. Where it appears from the indictment that the offense was not committed within the local jurisdiction of the court.

Second. Where it does not substantially conform to the requirements of article two o£ chapter two of title six.

Third. When more than one offense is charged in the indictment.

Fourth. Where the facts stated do not constitute a public offense.

Fifth. Where the indictment contains matter which is a legal defense or bar to the prosecution.

These are the only grounds of demurrer allowed in a criminal case; and tested by these rules, we incline to the opinion that the demurrer ought not to have been sustained. The indictment before us is a literal copy of that submitted to this court in the case of Ramsey v. The State, 11 Ark., 35, with the single exception of the word “ unlawful,” which cannot, in our opinion, invalidate it.

Section 119 of the Criminal Code declares that “ when an indictment is found, the names of all witnesses who were examined must be written at the foot of or on the indictment, and section 120 declares that “ the indictment must be presented by the foreman of the grand jury to the court, and filed with the clerk, and remain in his office as a public record.” The requirements of neither of these sections have been complied with, if we treat the copy of the indictment before us as a literal copy of the one before the court; but 'this is not a ground of demurrer. Defects of this kind can only be reached by a motion to set aside the indictment, which motion should be made before filing a demurrer. Sec. 159, Crim. Code.

If the appellee intended to raise the question as to whether or not the legislature, under the constitution, could tax or, authorize an indictment for keeping a grocery for the retail of ardent spirits, our response to that proposition will be found in the case: Scott v. The State, and Henry v. The State, 26 Ark, 523.

Since writing the foregoing opinion, we have been asked to recall the same and announce our conclusions as to the effect sec. 155 of the revenue law of 1871 may have on the question. It is true our attention was not called to the section mentioned, and for this reason, and on our own motion, we have recalled the opinion.

It is claimed that sec. 155 dispenses with the necessity of procuring a license or permit from the county court to retail vinous or spirituous liquors in less quantities than one quart, and that all a person desiring a license to retail ardent spirits has to do is to go to the collector and pay the price fixed by law for a license, and that there his duty ends. In other words, that the county court has nothing to do with the matter of selling ardent spirits, and that no petition of the resident voters of the political township is required since the enactment of the revenue law of 1871.

Let us examine the legislation on this subject and see if the view taken by the appellee can be sustained. In examining Gould’s Digest (ch. 148), under the head of revenue, we find the following sections:

“ Sec. 80. In all cases where licenses are taxable by law, and required to be issued by the county court or the clerk thereof, the clerk — unless otherwise provided in some other law — shall, from time to time, issue as many blank licenses of each kind as may be necessary, and deliver them to the collector, and charge him with the amount thereof, specifying in. every charge the number and amount of each kind of license.
“Sec. 81. Each blank license shall be signed by the clerk and authenticated by the seal of the court; and the collector, in granting every such license, shall fill up and countersign one of the blank licenses delivered to him by the clerk; and no license not so signed, countersigned and authenticated shall be available to the party claiming to act under the same.
“Sec. 82. The several county courts shall, at each regular term, cause the collector to settle his account of all blank licenses with which he stands charged; and, after giving him credit for all licenses returned, shall ascertain the amount due from him on that account, and shall cause the same to be entered of record, so as to show the amount due the state and eounty respectively.”

The practice of delivering blank licenses to the collector originated more than thirty-five years ago, and is not a new thing, as the appellee seems to suppose. It seems that up to January 11, 1855, all a person desiring to retail ardent spirits had to do to obtain a license was to go to the collector and pay for the same, and ply his vocation. But in January of 1855, the legislature made an attempt to, in some respects, restrain the sale of ardent spirits; and instead of leaving the question, whether or not it should be sold in the community, to the discretion of the applicant for license, vested the discretion in a majority of the resident voters of the township where the vinous or ardent spirits were to be retailed. Said act is as follows:

“ Sec. 1. Hereafter it shall not be lawful for the county court of any county in this state to grant a license to any person for the retail of vinous or ardent spirits by less quantities than one quart, except as hereinafter provided.
“ Sec. 2. Every person who may become desirous to obtain a license to establish any grocery or dramshop shall first produce to the county court of the county in which he proposes to obtain said license, a petition setting forth the political township in which the same is to be established, signed by a majority of the resident voters of the same, and pay into the county treasury such tax for said license as may be prescribed by the court under the existing laws.
“Sec. 3. Whenever any person shall file the petition and pay the money into the county treasury of the proper county, as prescribed in section two, it shall be the duty of the county court to grant said applicant a license to establish said grocery or dramshop in the township mentioned in said petition, subject to all the laws now in force for the government of grocery and dram shop keepers.”

It will be observed that the third section of this act, which is the tenth section of chapter one hundred and sixty-nine of Gould’s Digest, makes it the imperative duty of the county court, when the applicant presented a petition signed by a majority of the resident voters of the political township where the grocery or dramshop was to be established, and - the evidence that he had paid into the county treasury the amount fixed by the county court as the price to be paid for such privilege, to grant the license. On the 14th of February, 1867, the legislature seems to have been impressed with the idea that a majority of the resident voters of a political township might not know what was best for them, and it passed another act, which in effect repeals so much of the tenth section of chapter 169 of Gould’s Digest, as vests the discretion in a majority of the resident voters, and clothes the county court with power to refuse the license, notwithstanding a majority of the resident voters may have signed the petition of the applicant, if in the opinion of the county court the interest and general welfare of the county will be subserved thereby. No one can read these different acts without becoming impressed with the opinion that the legislature intended to place restrictions on the sale of vinious or ardent spirits' by retail.

Under the acts we have alluded to, the inference is, that blank licenses for the sale of intoxicating liquors, after the passage of the act of January 11, 1855, up to the passage of the revenue act of 1871, were not delivered to the sheriff, and it is urged that because the law directs the delivery of grocery and dramshop license to the collector, that all restraints are removed from the retail of intoxicating liquors, and that neither the county court nor the resident voters of a political township can, in any manner, restrain or control its sale, and that the holder of a license may squat himself down where he pleases and furnish the motive power of crime without the assent of any one.

The section which it is said 'does away with the necessity of applying to the court for a license is as follows:

“Sec. 155. It shall be the duty of the county clerk, from time to time, to issue blank licenses for the purposes mentioned in the preceding sections, and deliver them to the collector, and charge him with the amount thereof, specifying in every charge the number and amount of each kind of license. Each blank license shall be signed by the clerk, and authenticated by the county court, and the collector in granting every license shall fill up and countersign one of the blank licenses delivered to him by the clerk, and no license not so signed, countersigned and authenticated shall be available to any party claiming to act under the same.”

Upon examination of this section, it will be found it is in substance but a reenactment of sections 80, 81 and 82 of chapter 148 of Gould’s Digest. It is true, that blank licenses for the sale of vinous or ardent spirits were to be delivered to the collector by the provision of section 155; but the law presupposes that blank licenses will not be delivered to the sheriff, for the sale of vinous or ardent spirits, in excess of the grants made by the county court. It may be that the legislature intended to authorize any and every person to become a retail liquor dealer who would pay the price fixed on the privilege, and to repeal all legislation restraining the sale of intoxicating liquors; but if such was the intention, it is not clearly expressed. Repeals by implication are not favored, and we shall not indulge in a construction that deprives a community of the power of having a voice in preventing the keeping of a dram shop in its neighborhood, when there is no better argument in favor of its construction, than that it may increase the state and county revenue.

The revenue act of 1873 places a tax upon the sale of intoxicating liquors because the- occupation of selling “ was of no real use to society.” While this is not evidence of an intent that it did not intend to dispense with the petition from the resident voters of the political township, or the action of the county court, it is evidence that it regarded the pursuit as pernicious, and, being so, we do not feel at liberty to indulge in the presumption that the legislature intended to either foster, promote or protect the sale of an article the immoderate use of which has contributed to and induced the commission of four-fifths of the crime committed in the state, and that annually costs the state and counties ten times the revenue derived from the tax imposed on the retailer.

' Whether or not the appellee obtained a license from the county court is a matter of proof. There is no other authority in the state that can grant such a license. If the appellee has a license signed by the clerk, and authenticated by the seal of the county, and countersigned by the collector, he has all that the law requires him to have. The license he is required to have comes from these officers, and if he have it, the presumption is, that the county court authorized the issue upon a proper petition presented to it. The county court, for the purpose of issuing or rather permitting such a license to be issued, is a court of original jurisdiction, and its proceedings in another cause cannot be collaterally inquired into. If it permitted the collector to deliver a license to the appellee, without the proper petition first being filed, it has- violated the law; but because this is so, does not establish the fact that the appellee was keeping grocery without first having obtained a license from the county court. The license itself is evidence that it was granted by the county court, and is protection' to the person therein named, no matter whether the records of the court show the granting of the license or not.

The j udgment is reversed and cause remanded, to be proceeded in not inconsistent with this opinion.


author: Bennett, J.

text:
    Coit vs. The State.
    Circuit Courts : How and for what, may suspend circuit clerics.

    Coit, circuit clerk, was indicted for forgery; whereupon, the court, upon presentment of the indictment, suspended him from the functions of his office. On mandamus by Coit to be reinstated; Held, 1st. The record should show service on the defendant in the indictment, or that he was present in court at the time the judgment of suspension was rendered. 2d. That under sec. 15, chap. 30, Gould’s Digest, before the clerk of a circuit court can be suspended, it must be shown affirmatively that he has been guilty of some misdemeanor in office, or of some misconduct denounced by the statute, or is incapacitated. 3d. That the court in the first instance, cannot render judgment of absolute removal, but only, suspension until the trial of the charge.

      APPEAL from Ouachita Circuit Court.
    Hon. J. T. Elliott, Circuit Judge.

      Compton & Martin, for appellent.

      Rose & Green, for appellee.
   Bennett, J.

William B. Coit was circuit cleric of Ouachita county. At the October term of 1873, of the circuit court of that county, the following proceedings were had: Came the grand jury, and said grand jury informing the court that they have found a true bill of indictment against William B. Coit, the cleric of this court; it is therefore ordered by the court that the said William B. Coit be suspended from exercising the functions of clerk of this court, and that the sheriff, for the time being, take charge of the records and papers pertaining to said office.”

The record does not show that there was any service upon the defendant, but that the judgment was rendered in a very summary manner. The defendant not being before the court, it did not have jurisdiction of his person or property, and any judgment rendered against him is erroneous.

Subsequently, at the same term, it was ordered “ that said Coit be held in custody and suspended from office, on account of the indictment in this case, numbered 900.”

Coit was afterward released on bail.

The action of the court undoubtedly was based upon section 15, chapter 30, Grould’s Digest, which reads as follows: “ When the circuit court shall be satisfied from its own knowledge, or from the information of others on oath, that the clerk of such court has been guilty of any misdemeanor in office, or shall be incapable of discharging the duties of his office according to law, or shall be a drunkard, such court shall give notice thereof to the prosecuting attorney, stating the charges against such clerk, requiring him to prosecute the same; and such clerk may be suspended from office until a trial can be had.”

Before a clerk of the circuit court can be suspended under this statute, it must be shown affirmatively that he has been guilty of some misdemeanor in office ; or that he is incapable of discharging the duties of his office according to law; or that he is a drunkard. It was designed to protect the public from the wrongs which might be committed by a dishonest, or an incapable or a drunken official.

This is a summary proceeding, and a court will not be warranted in suspending one of its officers only upon the most convincing and indubitable proofs that the best interest of the public will be subserved by such suspension, and such evidence should be placed on record in such substantial manner as would show that the action of the court was based upon tangible premises.

The record before us does not disclose any such facts in relation to Coit. The only showing .presented for the suspension is stated in the order of the court “that the grand jury have found a true bill of indictment against William B. Coit, the clerk of this court.” A copy of this indictment is not found in the record, nor have we any means of knowing what it contains, or of what its allegations consist, except from its style, which is as follows: “State of Arkansas v. William B. Coit. No. 900. Eorgery.”

Erom this we would presume (if presumptions are allowable) that the court suspended Coit because it had good reason to believe he was guilty of a misdemeanor in office. It must have been this or nothing.

A “ misdemeanor in office ” is to use improperly or to abuse the functions of an office, to do some act by virtue of an offica which is not lawful to do. It is not every misdemeanor or every crime which may be charged against a circuit clerk that will warrant a suspension of him from his duties.

He may be charged with an assault, or even of robbery, or any other misdemeanor or crime alleged to be committed in a manner entirely unconnected with the duties of his office, yet he would not be liable to a suspension under the provisions of this statute. The act charged must be directly pertaining to or connected with his office, and tending to raise a violent presumption that he was an unfit person to be intrusted with its duties.

The usual presumption in favor of a judgment of a court of record cannot prevail in this instance, because there is nothing shown in the record upon which to base it. It is true that an indictment was found against Coit for forgery, but it is not shown what is alleged to have been forged — whether a note, bond or other instrument of writing not connected with his office, or whether he is accused of falsely making, altering or forging any record of which he was the lawful custodian.

The case of Farish v. Jones, 23 Ark., 323, was an action of debt by petition and summons upon a promissory note. At the ret urn term the defendant appeared and filed two pleas — nil debit and a special plea in bar. At the next term the court struck out the first plea, sustained a demurrer to the second, and rendered judgment for the plaintiff. Judge English, in delivering the opinion of the court,’ says: “ For what cause the court struck out the plea of nil debit does not appear. The counsel for the appellee insists that it must be presumed, for the purpose of sustaining the judgment, that the plea was stricken out for some good and sufficient cause. But such presumption cannot be indulged against the affirmative showing made by the record that the court erred.” The case of Ayres v. Dobson and Hughes, 5 Stewart and Porter, 441, was a writ of error to review the proceeding of a county court, whereby a judgment had been entered on motion against a sheriff, under a statute of Alabama providing for such a proceeding.

In delivering the opinion of the court, Judge Thornton says: “ It is important, in deciding, upon this case, to determine for what particular violation of his duty the sheriff was sought to be made liable. The mode of recovery against a sheriff by motion is a cumulative remedy given by statute, and only lies when it is so expressly given. It is allowed for not levying money on execution, when practicable; for not paying it over when levied; for making a false return and for not returning the writ. * * If the motion in this case were for any thing else than the failure to return the writ itself back to the office, the evidence which is spread upon the record would not furnish a shadow of support to it. * * If this were an ordinary case where the question raised by demurrer to the evidence were decided upon below, and brought up properly for our revision, we could not hesitate, from our view of the evidence, to reverse the decision of the county court. But the only judgment which can be rendered in a motion like this, if it be considered as made for detaining the execution from the office, being a fine which is placed by statute in the discretion of the inferior tribunal, and the exercise of discretionary power not being the subject of supervision, we would not disturb this judgment. * * This discretionary power, however, is confined to the amount of fine to be assessed within the limits of the statute and to the evidence which, in contemplation of law, affects that amount — power over the evidence being an incident to power to fine.

“But, when this discretionary power wanders from the channel which the law has prescribed for its course, it is subjected immediately to the controlling influence of this court. Claiming thus far a supervising authority, let us look into the proceeding.

“Without deciding whether the notice required by the statute was good in the manner it was issued, we think that the judgment itself cannot find any support in the record, and should be reversed as a nullity. Every judgment should rest upon some certain and definite basis which the record discloses.

“ I ask, for what violation of duty by the officer was this judgment pronounced? The record is silent on this subject, or speaks with oracular ambiguity. In summary proceedings of this kind, a motion should be entered upon the record showing for what cause the action of the court is sought. Sometimes the notice, which is properly evidence under the motion, is adopted as the motion, and this will do when the notice itself is single or for one cause, and that unequivocally set forth.

“From reading the notice, the other evidence accompanying it, and the judgment itself, my mind is irresistibly led to the conclusion that the whole proceeding was had upon a misconceived apprehension of this summary proceeding. * * It is unnecessary, however, to speculate about the meaning of the record; whén there is room for conjecture there is a palpable error, and this record is so fruitful of it the judgment it contains must be reversed.”

The statute upon which this proceeding was based was very similar in spirit and effect to the one under which Coit was suspended, except under one,‘jthe officer was summarily fined, and under the other, summarily suspended from office, and we can with propriety say, as was said in the Alabama case, “that the judgment itself cannot find any support in the record, and should be reversed as a nullity.” And' we could also ask, for what violation of duty, or for what misdemeanor in office was Coit suspended ? The record is silent on this suject; In summary proceedings of this kind the record should speak no uncertain sound. It should show clearly and distinctly the cause of the action of the court.

But we are told that there is nothing in this case to take it out of the rule asserted in Steck v. Mahar and Ashley v. Stoddard, and several other decisions, viz : That an error would not be corrected unless incorporated in a motion for a new trial.

The record shows that Coit had no trial. The court arbitrarily, without any cause, by'an order, suspended him from •office. Coit did all he could — entered his exceptions to the proceedings, which exceptions were in the nature of a general demurrer to them. All that was done in the premises is •disclosed by the record, and there was no necessity for a bill ■of exceptions to place evidence on it. The action of the court was the charge, the evidence and the sentence, as much so as judgments rendered on demurrers. No decision has ever required a motion for a new trial in such cases.

Proceedings of the kind now under consideration are, by the statute, based:

First. On the knowledge of the court;

Second,. On an affidavit.

While in the first case no formal complaint, declaration or indictment is necessary, yet, it is essential that the record should show what is the gravamen of the charge. By the constitution the supreme court has general supervision and control over all inferior courts, and their action in all matters may be revised either by certiorari or appeal, and when matters affecting the substantial rights of an officer are passed upon, no good reason can be adduced why they should not appear upon the record in a substantial manner. Otherwise it would not be known when the inferior tribunal has acted within the bounds of discretion.

Another palpable error of the court was the indefinite suspension of Coit. The judgment rendered makes it an absolute removal from office. This is in violation of the plain provisons of the statute. He should only have been suspended until a trial of tbe charge against him was had. (See sections 15 and 19 of the act.) The design of the statute was, if the clerk was acquitted upon the charges, he could be placed so he could immediately resume the duties of his office without delay. In this case it will be necessary to have the judgment of suspension set aside, before Coit' can take charge of his office.

Judgment reversed ; cause remanded, with instruction te* set the proceedings aside.

Gbegg, J., dissenting.


author: Stephenson, J.

text:
    State ex rel. vs. Feibleman.
    Supervisors and Circuit Clerks : Offices of, not incompatible.

    Millen was appointed and qualified as supervisor; subsequent thereto he accepted the office of deputy circuit clerk. On quo mvrranto, and plea that the duties of the two offices were incompatible and , within the prohibition of sec. 2, art. IV of the constitution: Held, that the functions exercised by a supervisor are chiefly ministerial, and those of the clerk wholly so, and the discharge of the duties of the two offices, by the same person, are not incompatible or repugnant.

      QUO WARRANTO.

      T. D. W. Yonley, Attorney General, for plaintiff.

      Rose & Green, for defendant.
   Stephenson, J.

The only question presented by the record in this case is, whether Millen, by accepting the office of deputy circuit clerk of Ouachita county, vacated the office of supervisor of said county.

Sec. 2, art. IV of the constitution prohibits, in express terms, persons belonging to one department from exercising the powers properly belonging to another.

The proof in this case shows that Millen, subsequent to his appointment and qualification as supervisor, was appointed, entered upon and discharged the duties of deputy circuit clerk of said county. We are referred by defendant’s counsel to Hutt v. The State, 2 Ark, 281, and State Bank v. Curran, 10 id., 142. In both cases the question arose directly under the provision of the constitution of 1836, which is, in substance, the same as that of the present constitution, above referred to, and it was correctly held that the offices in question were repugnant to it. In the case at bar we do not think such a repugnance can be shown. The offices of supervisor and circuit clerk both belong to the judicial department of the government. The functions exercised by a supervisor are chiefly ministerial, and those of the clerk wholly so.

The term ministerial, when applied to an office, is used to distinguish its duties.from those which are strictly judicial; but the duties devolving upon the ministerial office do not the less belong to the department to which, in the natural division of the three great powers of government, they would be assigned.

The wisdom of the rule forbidding persons of one department from exercising the duties of another will not, we presume, be questioned; yet there are many cases which do not fall within this rule, where sound public policy, and a due regard for a fair and impartial administration of justice, require a like prohibition. Eor example, the same person ought not to exercise the functions of circuit and supreme judge at the same time; or that of justice of the peace and either of the others named, for reasons too obvions to need mention here; but as all these offices belong to the same department of government, there is no constitutional prohibition against their exercise by the same person.

It is not a sufficient answer to the inquiry that the offices are not repugnant to tbe constitutionl prohibition. The framers of that instrument saw fit to prohibit the exercise of the power belonging to one department by a person doing duty n another ; but this negation by no means implies an affirmative right as to all others not embraced in it. At common law the incompatibility of offices has been clearly defined, and their exercise by the same person prohibited. Com. Dig., title Office, 6 Doug., 398; 4 Inst., 310; D. G., 159; Cro. Ca., 127, 128; D. G., 332; 197 b., 1 Sid., 305; 2 T. R., 86; see also Commoniuealth v. The Sheriff, etc., 4 S. & R., 275.

The proper inquiry in this case is, Are the offices of supervisor and circuit clerk incompatible? In other words, does the discharge of the duties of the one conflict with the duties of the other, to the detriment of the public good ?

The office of circuit clerk is of recent creation, and the duties thereof, with the execution of those as ex officio recorder, relate solely to the business of the circuit court, and in no ■wav, that we can now conceive, is the incumbent called upon to minister to the court of supervisors. We can very readily see how the office of county clerk might be incompatible with that of county supervisor; for, in that event, the supervisor, acting as clerk, might be called upon to execute his own orders; but the act creating the office of supervisor expressly provides that, in those counties entitled by law to the office of circuit clerk, the county clerk shall be clerk of the supervisors’ court. Acts of 1878, p. 55.

The holding of the two offices b} the same person, being neither repugnant to the constitutional prohibition, nor incompatible in themselves, we are of opinion that the duties of both may properly be exercised by the same person.

This conclusion leads us to declare that Mi'llen’s acceptance of the office of deputy circuit clerk did not vacate his office of supervisor. It must follow therefore that, there being no vacancy, the governor could not appoint Eeibleman to the office while Millen was in commission.

Judgment of ouster will be entered.

Gregg, J., dissenting.


author: Searle, J.

text:
    Rison, Assignee, etc., vs. Powell et al.
    Bankruptcy: Jurisdiction of state courts in.

    Bill was brought in a state court, by an assignee in bankruptcy, to set aside conveyances of property alleged to have been fraudulently made by the bankrupt, prior to being adjudicated such. On plea to the jurisdiction of the state court: Held, that the state courts have concurrent jurisdiction of such causes with the national courts.
    APPEAL from Jefferson Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Watkins & Rose, for appellants.

      Bell & Carlton, for appellees.
   Searle, J.

This was an action in equity brought in the Jefferson circuit court, to the May term thereof, 1867, by the appellant. In his complaint, he alleges that John C. Ward & _Co., being seized in fee of certain lands situated in Jefferson county, on the 24th of January, 1868, conveyed them, together with a large amount of personal property, to Jesse R. Powell, one of the appellees herein; that Ward & Co. were insol-vent or in contemplation of insolvency, and being largely indebted to Powell, made these conveyances to him for the purpose of making him a preferred creditor; that Powell knew of their failing circumstances, and that the conveyances were made in fraud of the provisions of the act of congress, entitled “ an act to establish a uniform system of bankruptcy throughout the United States,” approved March 2, 1867.

The appellant further alleges that on the 20th of April, 1868, certain creditors of Ward & Co., filed their petition in the United States district court for the eastern district of Arkansas, against the said Ward & Co.,'stating that they had committed acts of bankruptcy, among which especially were the conveyances to Powell; that on the 24th day of October, 1868, upon said petition, by the judgment of said district court, Ward & Co. were adjudged bankrupts, and that the appellant, by deeds of assignment from the register in bankruptcy, was made assignee of all the property, real and personal, of said Ward &. Co., with all their deeds, books, etc. And the appellant prays that said conveyances to Powell be set aside and cancelled as having been made in fraud of bankrupts’ creditors; that he be' quieted in his title to the property against the claims of any and all the appellees, and that an account be taken, etc. The appellees answered and moved the court to dismiss the complaint for want of jurisdiction. The court sustained the motion and dismissed the complaint, and from this judgment this appeal was taken.

The question presented for determination is, Had the circuit court of Jefferson county jurisdiction o£ this cause?

We apprehend that the present constitution of the state doesnot change the jurisdiction of circuit courts. (Article VII, section 5.) The circuit courts, then, have jurisdiction of “all civil cases not cognizable before justices of the peace.” Const of 1836, art. VI, sec. 3; Gould’s Digest, ch. 47, sec. 7. It will not be disputed, therefore, that circuit courts, under the limitations above indicated; have jurisdiction ordinarily of cases where the title of property, real and personal, is in question.

But the inquiry suggested more especially for our consider-. ation is much narrower, for the allegation upon which the appellant’s case rests is, that “Ward & Co., were largely indebted to Powell, and made the conveyances to give him a preference Qver his other creditors,” and, “therefore,” they say “ they were fraudulent under the provisions of the bankrupt law, and should be set aside.” Now, neither by the common law nor by the statute laws of this state is a debtor prohibited from preferring a creditor when such preference is made in good faith. Only in the bankrupt law is such preference denied. It is, therefore, insisted by appellee’s counsel that the state courts have no jurisdiction of this cause, because the title to the property in controversy is to be determined, not by the laws of this state, properly so-called, which allows debtors to prefer creditors when it is done in good faith (see Doswell v. Adler et al., ante, p. 82), but by the provisions of the bankrupt law of congress, which makes such preference ipso facto fraudulent when the conveyance is made within certain prescribed limits previous to the institution of proceedings in bankruptcy. They also insist that the state courts have no jurisdiction, because the property belonging to an assignee in bankruptcy, as such, is exclusively under the control of the United States district court. The sole inquiry, thus narrowed, is as to whether or not a circuit court of the state has jurisdiction of an action brought by an assignee in bankruptcy to set aside and cancel conveyances of property for fraud solely under the bankrupt law of congress.

As to whether the title to property be derived through the laws of the United States or those of the state, cannot be a question of jurisdiction. This proposition gives us a rule of general application, and is not difficult, we think, of substantiation. As above intimated, the circuit courts of this state, with certain exceptions in favor of courts of j ustices of the peace, have jurisdiction ordinarily of controversies regarding the title to..property, both real and personal, and they will pass upon the validity of the titles thereto, whether acquired by or under the laws of the United States or those of the state. Indeed, as regards real property, all the titles thereto come in the first instance by the laws of the United States. In Ashley, Ex’r, etc., vs. Cunningham, 13 Ark., 296, which was an action in equity, both parties claimed title alone under the laws of the United States. Very many such cases might be cited. Nor is there anything unreasonable in this. In the adjudication of causes coming within their jurisdiction, the state courts are as much bound by the laws of the national government as by their own state laws. Indeed, where there is a conflict between the former and the latter, the latter must give way, as the former in such cases are paramount. State judicial officers are bound by their official oaths to observe the laws of the general government, and they do, as all must know, constantly construe and enforce them in the state tribunals; and the only restraint placed upon the state tribunals is by the twenty-fifth section of the judiciary act of congress, passed in 1789 (1 U. S. Statutes at Large, p. 85).

It is asserted by counsel that the national government cannot control the jurisdiction of the state courts by adding anything to them. This, of course, no one will presume to deny. But have not the circuit courts of this state always had jurisdiction of causes involving titles to property ? And is it not their duty to pass upon such titles, by whatever laws derived ? If congress pass any valid law affecting such titles, this certainly does not enlarge the jurisdiction of the state courts, but only furnishes a new rule of decision. In this way congress may add new questions of controversy to be adjudicated upon by the state courts. Do not the state laws do the same thing in the national courts? They are as much bound by the state laws, as far as valid, as the state courts are by the laws of the national government. But this, we apprehend, has nothing to do in determining jurisdiction. Mr. Hamilton, upon the judiciary powers of the national government, said that, “the judiciary power of every government looks beyond its own local and municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than those of New York, may furnish the objects of loyal discussion to our courts,” etc. (see No. 82 Federalist.) Mr. Dana, in Y American Law Review, page 615, says: As we have seen, if a state enlarges the landed rights of married women or aliens, the national courts are obliged to accept this practical increase of business and the new application of its process. Such a state law does not alter their jurisdiction or control their process.”

In the case before us the bankrupt law vested all the property of the bankrupts, Ward & Co., in the appellant, as fully as if they had conveyed it to him, and he alone is entitled to sue for the recovery thereof. Bankrupt Law, secs. 14 and 16. Moreover, for the purpose of obtaining possession of the property of his bankrupts so vested in him, the assignee is armed with all the rights of the bankrupts’ creditors, and may have the same remedies as the creditors might have had against the bankrupts previous to their bankruptcy. Bradshaw v. Kline, 4 B. R., 146. The appellant, therefore, thus invested with his bankrupts’ property free from any fraudulent claim which the bankrupts may have created, and thus armed with all the rights of their creditors, having obtained service, might have enforced his claims in the national courts. And why not also in the state courts 7 To say that his title comes through the bankrupt law is not to assert any principle of jurisdiction any more than to say that he has title under the preemption or the homestead laws of the United States, were he claiming under sucb laws. In cases where the title depends upon the laws of the United States, the state tribunals will adjudge according to those laws, subject, in certain cases to an appeal to the supreme court of the United States. In numerous cases the state courts do pass upon the validity of' titles to property under such laws. Indeed, they cannot avoid so doing under the bankrupt laws of the United States, since a large portion of the property in the state has been transmitted through their agency. King v. Morrison, 5 Ark., 519; State Bank v. Wilburn et al., 6 id., 35; McCullough v. Caldwell, 5 id., 237.

‘ Again : the bankrupt law, by substituting the assignee for the bankrupt and clothing him with certain rights, does not, upon general principles, enlarge, diminish or change the jurisdiction of the state courts. This proposition is so clear as not to need a substantiation. Such courts have unquestionably the jurisdiction that they always had, which is to entertain suits brought by any person without regard to the character in which he sues, so he be competent to sue, and also to pass upon the titles of lands or other property, though acquired under the bankrupt or any other law, unless forbidden by the constitution of the United States or the laws made in pursuance thereof. But this is not forbidden in this case either by the constitution or by the bankrupt law, either expressly or by implication. As to the jurisdiction of the state and national courts, considered relatively to each other, the following, in brief, are the general principles laid down and recognized by the best authorities in the nation:

“ The principles established in a former paper (No. 32) teach us that the states will retain all preexisting authority which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of hese cases — when an exclusive authority is, in express terms,granted to the Union, or when a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the states; or when an authority is granted to the Union, with which a similar authority in the states would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are in the main just with respect to the former as well as the latter. And under this impression I should lay it down as a rule that the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.” Federalist, No. 82. “But the doctrine of .concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the state courts have previous cognizance. It is not equally evident in relation to cases which may grow out of and be peculiar to the constitution to be established; for not to allow the state courts a right of jurisdiction in such cases can hardly be considered as the abridgment of a preexisting authority. I mean not, therefore to contend that the United States, in the course of legislation upon the objects intrusted to their discretion, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the state courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. * * When, in addition to this, we consider the state governments and the national governments, as they really are, in the light of kindred systems, and as parts of one whole, the inference seems to be conclusive that the state courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, when it was not expressly prohibited.” Id.

After an extended consideration of this subject, Chancellor Kent said, “the conclusion then is, that in judicial matters the concurrent jurisdiction of the state tribunal depends altogether upon the pleasure of congress, and may be revoked or extinguished whenever they think proper, in every case in which the subject matter can constitutionally be made cognizable in the federal courts; and that, without an express provision to tbe contrary, the state courts will retain a concurrent jurisdiction in all cases where they had jurisdiction originally over the subject matter.” 1 Kent Com., 400. Justice Story said, in his commentaries on the constitution of the United. States (2 Story on the Con., sec. 1754), “That there are some cases in which that power (the judicial power of the courts of the United States) is exclusive, cannot well be doubted; that there are others in which it may be made so by congress, admits of as little doubt; and that in other cases it is concurrent in the state courts, at least until congress shall have passed some act excluding the concurrent jurisdiction, will scarcely be denied. * * And it is only in those cases where, previous to the' constitution,, state tribunals possessed jurisdiction independent of national authority, that they can now constitutionally exercise a concurrent jurisdiction.” Also, in Ward v. Mann, in the supreme court of Massachusetts, it was adjudged, after an able consideration of the case, that if a case be within the ordinary jurisdiction of a state court, the court may take cognizance of it, though the cause of action arises under the rights acquired by a statute of the United States, provided there is no restriction under the constitution or the statute of the United States .confining the. jurisdiction to the national courts. 1 Kent, 397, note; see also Cohens v. Virginia, 6 Wheat., 396; Martin v. Hunter, 1 id., 336; Houston v. Moore, 5 id., 49; State v. Penney, 10 Ark., 629. The practice of the general government has been uniformly conformable to these rules. When the congress of the United States intends to vest exclusive jurisdiction in the national courts, it is explicitly so provided in her legislation. Thus, in the judiciary act of congress of 1789, “ The district courts shall have exclusively of the several states, * * * and shall also have exclusive cognizance of all civil causes of admirability and maritime jurisdiction.” So, also, “that the district courts shall have, exclusively of the courts of the several states, cognizance of all causes,” etc. 1 U. S. Stats, at Large, 76. The exclusive and concurrent jurisdiction conferred on the courts by the act just quoted were clearly distinguished and marked, and shows that in the opinion of congress a grant of jurisdiction generally was not of itself sufficient to vest an exclusive jurisdiction; and this doctrine has been acted upon by that body in her legislation upon those subjects down to the present time. Having said thus much in relation to the general rules as to the concurrent jurisdiction of the state courts in matters judicially cognizable by the national courts, we are prepared to consider more especially the authorities bearing upon the questions involved in this case.

One of the leading cases upon these questions is Ward v. Jenkins, 10 Met. (Mass.), 586. The supreme court of Massachusetts, in this case, decided that an assignee of a bankrupt, under the United States bankrupt law of 1841, might maintain an action in his own name in a state court for the breach of covenant made with the bankrupt. This decision, we believe, has never been seriously questioned since its delivery. See also Hastings v. Fowler, 2 Carter (Ind.), 216; Pindell v. Vimont, 14 B. M., 322; Comstock v. Grant, 17 Vt., 515; Delafield v. Illinois, 26 Wend., 217; Johnson v. Bishop, 1 Woolw. C. C., 324; Peiper v. Harmer, 5 R. R., 252; Bolander et al. v. Gentry, 36 Cal., 105; Hall v. Sewell, 9 Gill., 146; Porter v. Douglass, 27 Miss., 379; Stewart v. Hargrove, 23 Ala., 429; Peel et al. v. Ringgold et al., 6 Ark., 546. In the matter of Reed, 21 Vt., 643; Hobart v. Haskall, 14 N. H., 127; Kittredge v. Warren, id., 509; Kittredge v. Emerson, 15 id., 228. See also Peck v. James et al., 7 How., 625, where it was expressly held that the jurisdiction of the national courts in the matters of bankruptcy was not exclusive.

See also the following cases recently decided: Stevens v. Mechanics' Saving Bank, 101 Mass., 109; Forbes v. Howe, 102 id., 427; Mays v. Manufacturers' Bank, 64 Penn., 74; Boone v. Hall, 7 Bush (Ky), 66; Gilbert v. Priest, 8 Bank. Reg., 159; In re Central Bank, 6 id., 207, and Paine v. Caldwell, id., 566. In the last mentioned but one of these cases an application was made to Judge Blatchford to enjoin proceedings by an assignee in a state court.

The ju'dge said: “The application is based upon the ground that the state tribunals are without jurisdiction to entertain such an action as the one referred to. I do not so understand the law. The provision of the second chapter of the bankrupt act does indeed confer upon the district and circuit courts jurisdiction of certain actions; but I have never supposed the effect of that section to be to oust the jurisdiction of the state courts.”

In Paine v. Caldwell, 6 B. R., 566, an assignee in bankruptcy had sued a nonresident, which is the case here, in the United States district court of Maine, and the court having discovered that said district court could not obtain jurisdiction, in consequence of the inability of obtaining service upon the defendants under the bankrupt law, said: “ It is argued that, if the district court does not possess this power and authority, an assignee is without remedy to enforce his claims in behalf of the estate against nonresidents of his district and not found therein, but such, I apprehend, will not prove to be the case, as it is shown that the state courts are ready to exercise jurisdiction over their own citizens in suits against them in behalf of assignees in bankruptcy.”

Erom the foregoing, our conclusion under this head is as follows: The state courts not being prohibited expressly by the constitution or laws, or bankrupt law of the United States, nor by implication therefrom forbidden to take cognizance of causes like the one at bar, we are clearly of opinion that such courts have concurrent jurisdiction of such causes with the national courts. We will now more explicitly no tice some of the objections urged by the appellee’s counsel to this suit as instituted in the court below. It is said that the United States district court has complete control of the bankrupt’s property, etc. Yery true. But is there anything in this inconsistent with the jurisdiction of the state courts in cases like this ? It has been admitted that an action by the assignee to recover a debt due the bankrupt, or to recover property belonging to the bankrupt, or to set aside a conveyance void under the statute of fraud and perjuries, or any other cause of action arising under rights acquired by the statute or common law of Arkansas, might be brought in the state courts. Has not the district court control of the property in these cases as well as of the property in cases like the one before us ? If the objection applies to this, why not to all ? Surely, if the district court has such control of a case like the one before us, when the title to the property depends entirely upon the bankrupt law, so as to make its jurisdiction-exclusive, its control must operate in like manner in all cases. McLean v. La Fayette Bank, 3 McLean, 184, has been relied ■upon as proving that the state courts have no jurisdiction in this case. This is one of the first cases under the law of 1841, and contains several propositions which will not be contended for. But, nevertheless, the judge said: “On general principles a state court has an undoubted right to determine a question arising under the laws of the United States.” The fact is that the matter decided in McLean v. La Fayette Bank, is not against the position assumed in this case. It was a suit against an assignee in a state court to enforce certain liens, and the court merely held that the parties claiming the liens must bring their claims into the district court where the fund was and where it was to. be distributed. This is essential in relation to all claims against a fund in court. Even a judgment in the circuit court previous to the abolishment of the probate courts could not be enforced against an administrator, but it had to be taken to the probate court where the fund remained for distribution, though the administrator might have enforced his rights in any court having jurisdiction of the subject matter of his demand.

In re Wynn, 4 B. R., 5, is precisely a similar case to the above. In re Burrow, 1 id., 125, the court merely decided that the court of bankruptcy could order a sale free from all liens. Ex parte Christy, 3 How., 272, upon which appellee’s counsel seems chiefly to rely, has nothing in it so far as we can discover, denying that the jurisdiction of suits by assignees can be entertained by the state courts. It merely decides that the district courts have plenary jurisdiction in marshaling the assets of the bankrupt and paying off all liens against the fund in the hands of the assignee which is administered in that court. The case of Van Norstrand v. Barr, 2 S. R., 154, only decided that the bankrupt law suspended the operation of all state insolvent laws; and this was not a new question in this case, for it had been decided before in the case of Sturgis v. Crowninshield, 4 Wheat., 122.. In re Longley, 1 B. R., 155, substantially decided the same thing.

That after an adjudication in bankruptcy, all claimants holding liens against the estate of the bankrupt must go into the bankrupt courts where the fund is, so that everything pertaining to the marshaling of the assets may be considered at the same time, is a doctrine well settled. But this certainly does not prevent the assignee bringing his suit in any court, state or national, for the purpose of enforcing his rights to property belonging to him as assignee. Just the same is this as in claims against an administrator or guardian, which must be taken to the court having control of the funds of the estate for classification and allowance. And this does not prevent such administrator or guardian from suing in any court having jurisdiction of the subject matter of the suit, and the same may be said of a receiver in chancery. Neither the cases cited by appellee’s counsel, nor any other, with one solitary exception, we have been able to find, have decided or held that an assignee may not go into a state court to assert his title to property against any one, the same as an administrator or a guardian. The exception referred to is Voorhees, Assignee, etc. v. Frisbie et al. (see Am. Law Reg., vol. 12, No. 2, p. 108), decided recently by the supreme court of Michigan, and is supported neither by authority nor reason. The cases cited by appellee’s counsel are usually those of claims against an assignee, and we have been able to discover no conflict between them and the very many cases that favor the jurisdiction of the state tribunals in cases like the one at bar, save the Michigan case just referred to, from all of which we not only infer but conclude that it was most emphatically the duty of the court below to assume jurisdiction of and to try this case.

We are therefore of opinion that the court below erred in dismissing this case for want of jurisdiction ; and for this error the decree must be reversed and the cause remanded, with instructions to the court below to overrule the motion to dismiss, and further proceed according to law and not inconsistently with this opinion.


text:
    Davis et al. vs. Gaines.
    Promissory 3ST otes : When possession of, by payee not evidence of nonpayment.

    The possession of a note by a payee is prima facie evidence of nonpayment, but when such note was given as security for future advances by the payee on general account, and when such general accounts are rendered, the payor is charged with the amount of the .note, which constitutes the security for the items of the accounts, and is given credit fpr assignments, etc., which go to the reduction of the general indebtedness, it will be considered as evidence of payment,, if such credits are equal to the debits, or if not equal, pro tanto, and will rebut the presumption of nonpayment raised by the possession of the note by the payee.
    Payments on General Account : When appropriated by law, to what items of account applied.

    The rule in the state of Louisiana as to payments made on general account, where no appropriation has been made either by debtor or creditor, is, that such payments, when appropriated by law, should be made to those items of the account most onerous to the debtor,, and which it is most to his interest to have discharged.
    APPEAL from Chicot Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      A. H. Garland, for appellants.

      Bell & Carlton, for appellee.
   Stephenson, J.

Anthony H. Davis was, in the year 1855,. a planter in Chicot county, engaged largely in the cultivation of cotton. Abner L. Gaines was at that time a factor and commission merchant doing business in New Orleans, La., dealing in cotton, furnishing supplies and making advances to planters.

On the 13th day of January, 1855, Davis made five promissory notes to Benjamin P. and Richard M. Gaines, of Chicot county, each for $7,000, payable at the bank of Louisiana, in the city of New Orleans, on the first of February, in each of the successive years 1856, 1857, 1858, 1859 and 1860. The payment of these notes was secured by a deed of trust executed by Anthony H. and Mildred P. Davis, his wife, to the said Benjamin P. and Richard M. Gaines, on a large plantation in Chicot county, constituting his homestead or residence, together with all improvements, negroes, horses, mules, oxen, farming utensils, etc., thereon or belonging thereto. Benjamin P. and Richard M. Gaines were also named as trustees in said deed of trust. The notes were indorsed by the payees and returned to Davis, who subsequently placed them in the hands of Abner L. Gaines, who was his commission merchant. The notes were made to the Gaines’ without value, the object being to secure by means of their indorsement such paper as could be advantageously negotiated in the market. Benjamin P. and Richard M. Gaines were, in fact, simply accommodation indorsers, and as such they secured themselves against loss by said trust. Such is the expressed intent and object as set-out in the deed. The deed contains a further stipulation that in case Davis failed to pay either or any of the notes at maturity, the trustees, or the survivor in case of the death of either, should, at the request of the holders, or on their own motion, proceed to sell so much o£ the property as might be necessary to satisfy the 'note or notes then due and unpaid, after giving sixty days notice, etc. It was further stipulated that Davis should remain in possession until default and sale. Abner L. Gaines received the notes from Davis, discounted them, and placed the proceeds to Davis’ credit. From the time the notes were given until the last one was due, Davis continued his business of planting and his dealings with his factor, Gaines ; and from the magnitude of the accounts rendered from time to time by the latter, it would seem that their transactions were extensive. Davis died in 1863, and in 1866 the trustees, at the request of Abner L. Gaines, who alleged that the last three notes were unpaid, advertised and sold the trust property to satisfy -and pay said notes. The sale took place on the first of August, one Chapman Johnson becoming the purchaser for the sum of $20,000. Chapman subsequently conveyed to Abner L. Gaines, reciting in the deed that he had purchased as the agent of Gaines, who had paid the purchase money in the notes upon which the sale was made.

On the 18th day of February, 1870, Mildred P. Davis, widow of Anthony H., in right of dower and as administratrix of the estate of her deceased husband, and the heirs of the said deceased, who sue for themselves, as well as the creditors of said deceased, filed a bill in Chicot circuit court against Abner L. Gaines, to set aside the sale of the property, under the deed of trust, as fraudulent, and prayed that the deed of the trustees to Chapman, the deed of the latter to Gaines, and the original deed of trust be delivered up and can-celled, and that the notes, to satisfy which the sale was made, be surrendered to the administratrix, and that the property ‘be decreed to her as such administratrix, to be by her disposed of by due course of administration, subject to her right of dower therein, etc.

The grounds argued in the bill for relief are: First, payment of the notes. Second, that, by reason of the failure of the holder of the notes to notify the indorsers of the nonpayment thereof, they ceased to he liable on the notes; and as the security taken was solely for their own indemnity, that it could hot, after the liability of the indorsers had ceased, be held for the original debt. Gaines answered, denying payment, and the discharge of the trust property from liability. The bill went to the hearing upon the bill and exhibits, answer and exhibits, and depositions. The court found the sale by the trustees to Chapman to be valid, and decreed that Gaines be quieted in his title to the property. The plaintiff appealed. The record presents but two questions: First, Were the notes paid? Second, Was the property taken by the indorsers for their indemnity subject to the liability ofj the maker on the notes?

Before entering into an examination of the proof offered, it may not be amiss to state that the transactions between planter and factor are somewhat peculiar. The factor or commission merchant supplies the planter, not only with such supplies as he may need in his business of planting, but furnishes all else his needs require. Various methods are resorted to to secure these advances. Mortgages are sometimes taken upon the crops, or upon both crop and plantation, or, as in this case, such paper placed on the market, as can be negotiated for money. This method of transacting their business may serve to explain many items in stated accounts between them, which have no connection whatever with the business of planting. The notes, which are the basis of this suit, were given to secure advances made to Davis; they were placed in the hands of Gaines for that purpose. The further history of them will appear in the investigation of the evidence.

We will now proceed to the examination of the several accounts current rendered to Davis by Gaines, at irregular intervals, during the time covered by the notes. It will be borne in mind that the notes were given on the 4th of February, 1855. The first account current, exhibited in proof rendered by Gaines, runs from April 30, 1854, to January 29, 1855, and shows a debit against Davis of $16,905.65: The next running from Eeb. 1, 1855, to Feb. 28, 1855, shows a debit against Davis of $17,961.08. The account running, from Feb. 28, 1855, to April 1, 1855, shows a credit, in Davis’ favor of $7,407.95. An examination of the credit side of this account shows that three of the notes here in controversy, to wit: those falling due in 1856, 1857 and 1858 •were discounted by Gaines, and the proceeds, $6,397.22, $5,697.22 and $4,997.22, respectively placed to Davis’ credit, as also were the proceeds of two other notes for $5,500 each, ■and the balance in his favor obtained,by applying the proceeds of the several notes to the extinguishment of the balance due on the account.

The next account run from April 4, 1855, to April 1,1856, and shows a balance due Gaines of $10,544. In this account, Davis is charged with the note which fell due Feb. 4, 1856 and he received credit for the proceeds of the remaining notes for $7,000 each, which fell due in 1859 and 1860. These notes were discounted by Gaines, and the proceeds, $4,900 and $4,200, respectively, placed to Davis’ credit. The account running from April 4, 1856, to Sept. 1, 1856, shows a credit in favor of Davis of $567.89, which was again produced, in part, by discounting other notes for $10,500. The account running from Sept. 16, 1856, to July 16, 1857, shows a balance in favor of Davis of $372.40. On the debit side he is charged with the $7,000 note falling due February 4, 1857, and is also credited with the proceeds of two notes for $5,000 and $2,500, discounted as others had been. There is no account covering the time from July 16, 1857, to January 4, 1858, but the account commencing on the latter date states a balance brought forward due Gaines of $6,340.22. The account runs from January 4, 1858, to June 12, 1858. On the 4th of February, 1858, Davis is charged with the note for $7,000, falling due that day. The account shows a balance due Gaines, June 12, 1858, of $4,501.21. The account from June 12, 1858, to April 15, 1859, shows that on the 4th of February, 1859, Davis was charged with the $7,000 note then falling due, and that he received credit for the proceeds of a .$5,000 note, discounted as other similar ones had been. The amount down to Davis’ debit, April 15, 1859, is shown to be $14,447.46. The next account is rendered by H. Gaines, curator of the estate of A. L. Gaines, who had been interdicted by the court in Louisiana on account of mental derangement.

This account commences with the amount of $14,447.46, standing to the debit of Davis, as shown by the last account rendered by A. L. Gaines, and runs from April 15, 1859, to May 28, 1860, showing a debit against Davis, at the latter date, of $7,662.85. In this account Davis is charged with the $7,000 note falling due Feb. 4, 1860, being the last of those in controversy, and is credited with the proceeds of notes of his own and those of J. F. Robinson, amounting in the aggregate to over sixty thousand dollars. The last of these accounts runs from May 28 to November 16, i860. The debit side receives no other item than that of interest, while Davis is credited with the sale of 396 bales of cotton, and, as finally rendered by the curator, shows a balance to the credit of Davis of $5,453.58. If we take the showing made by these accounts as conclusive, it would seem that the notes had been fully paid off under any rule of applying payments, but Gaines, in his answer which is part of the evidence in the case, positively denies the payment of the notes falling due in 1858, 1859, and 1860, described as numbers 3, 4, and 5. As to notes 3 and 4, he swears that they remained in his possession, and insists that such possession is prima facie evidence of nonpay ment. As to No. 5 he says the curator of his estate had no right, and could not legally deliver it up as paid, thereby discharging the ample security, and take in lieu thereof notes of ‘the debtor or any other person wanting in this important particular. He states further that by a special understanding with Davis, notes 3 and 4, notwithstanding the fact that they • were charged in the account, were held by him as a special security for future advances. Ordinarily the possession of notes by the payee would import nonpayment, but the circumstances of this case, and the peculiar manner of transacting business between the planter and his commission merchant as testified to by several witnesses, weakens, if it does entirely overturn the presumption.

It will be seen that the notes are uniformly made a part of the accounts against Davis as they became due, and if the credits equal the debits, it would seem that such a statement, made by the payee or holder of the note, would be ample evidence to rebut the presumption raised by the mere possession of the notes; neither would such presumption necessarily follow, if, after credits given to the general account, there should remain an amount due equal to the note; for a proper application of such credits might discharge the notes and leave other items of the account unpaid. The' notes given in this case were not taken in payment of a debt account, but were intended to secure an anticipated indebtedness by reason of advances made. The mode of paying such advances was mainly by the consignment of his crop to his creditor. The stated accounts were intended to show the condition of their affairs as from time to time either might desire. The notes, while they do not represent the debt itself, mark the extent of the planter’s liability to his merchant, and they are for that reason charged in the account. The proceeds of the notes, when discounted, constitute an item of credit to be entered in favor of the planter, and such credit, which he is at liberty to exhaust at pleasure by drawing upon it, is what is termed advances. Now, when consignments of produce, etc., are made and credit given therefor on the general account, the irresistible conclusion must be that such credits must go to the extinguishment of the debt, of which the notes are at once the evidence and security; and, when such accounts are rendered in which the debtor is charged with the amount of the note which constitutes the security for the items of the account, and he is given credit for consignments of produce which goes to the reduction of the general indebtedness, it will be considered as evidence of payment if such credits are equal to the debits; or, if not equal, so pro tanto, and will rebut the presumption of nonpayment raised by the possession of the notes by the payee, and are so contradictory of his statement of nonpayment that it must be disregarded. Gaines swears to an understanding between himself and Davis, subsequent to the making, that notes three and four were to be held by him as a special security for future advances. This statement comes within the prohibition contained in sec. 22, art. YII of the constitution, and is inadmissible. But, if this were not so, his accounts are flatly contradictory of such a theory. As they fell due, these notes were charged against Davis, and his letter to Davis of October 11, 1860, written after the debit of note 4 was made, states that the amount then to his debit is $2,339.48. We are of opinion, therefore, that notwithstanding his possession of the notes and his denial of their payment, he has, by his own accounts rendered at the time, and which are equally as conclusive of payment as his present statement is of nonpayment, furnished, evidence which must be taken in preference to the afterthought found in his answer. The accounts as rendered by Gaines, which are sufficiently authenticated to be admissible in evidence, are conclusive upon him, and the question of payment must be determined by them. It is obvious that the accounts, so far as they affect the question of the liability of the parties, are not conclusive. Although the last one shows a balance down to the credit of Davis of over $5,000, it is apparent that such statement as to the true condition of their affairs cannot be taken as true; for this credit was largely obtained by crediting him with -the proceeds of over sixty thousand dollars in notes.

The actual state of the account, if made upon final settlement, would be found by ascertaining what of these notes remains unpaid and not charged in the account to Davis’ debit and setting off against the whole debit, the sums for which he is rightfully entitled to credit. But this it is impossible to do,’ as neither their character nor the time when given or when falling due can be ascertained from the proof; nor is it material to this issue that we enter into such an inquiry. Sufficient can be ascertained from the accounts to enable us to settle the question as to the payment of the notes in controversy here. • It will be seen from the accounts, that at the time the notes were given no other debt existed against him of the onerous character created by the trust given to secure their payment. But if this were not so, the earlier accounts current show that all indebtedness, prior to their execution, was fully paid off by these notes and proceeds of cotton, etc. And Gaines himself concedes the payment of notes 1 and 2, so that whatever indebtedness is found to exist against Davis, we must presume to have been contracted in or subsequent to the giving of the notes. It must be assumed further that the contract entered into, at the time the notes were given, was of the highest class, and the most onerous to the debtor Davis existing at the time; and although nothing is shown as to the character of subsequent transactions between the parties when other notes were taken, it cannot be presumed that Davis entered into more onerous ones, for the absolute sale of his homestead and personalty belonging to it, as a security for a debt, we take it, is the highest possible security one could give; it is certainly the most onerous debt which can be contracted. The notes were made payable at New Orleans, and Gaines was doing business there; the laws of Louisiana, therefore, must be applied to the transaction of the parties. The rule in that state, as to payments made on general account, when no imputation has been made either by debtor or creditor, is that such payments, when imputed by law, should be made to those items of the account most onerous to the debtor, and which it is most to his interest to have discharged. This rule is derived, as is the whole Code of Louisiana, from the civil law.

The reports of the state abound in decisions upon the subject, and almost every conceivable character of debt has been assigned its proper place in this theory of imputation. We cite such only as seem to embrace the class to which we con. oeive these notes belong. N. O. Ins. Co. v. Tio, 15 La. Ann., 174; Spiller & Allen v. Their Creditors, 16 id., 292, 375; Wickner v. Croghan, 4 La. (N. S.), 79; Johnson v. Sterling, 3 id., 483; Abodie v. Poydras, 6 id., 26; Pargoud v. Griffing's Adrn'r, 10 La., 356; Cox v. Rees, 10 id., 232; Morine Denis v. Ramouin, 1 Rob., 318; Follain v. Orillion, id., 506; Dunlop & Co. v. Farkington, 5 La. Ann., 569; Compton v. Compton, id., 616; Dunbar v. Bullard, 2 id., 810; Byrne v. Grayson, 15 id., 457. Applying this rule to the case at bar, we find that inasmuch as neither party imputed the amounts paid by Davis, and as the five notes were the most onerous, and such as Davis had the most interest in having discharged, the payments, as they severally fall due, must be imputed to them.

The evidence shows conclusively that the consignments of cotton alone, leaving out of the question the new notes given, and the questions of novation raised upon them, was more than sufficient to discharge each and all of them, and they must, under the operation of the Louisiana rule, be considered by us as paid. This conclusion renders it unnecessary to consider the second question raised in the case.

The decree of the court below, for the reasons given, must be reversed, and a decree will be entered in this court in ac' cordance with the prayer of the bill.


text:
    White vs. Prigmore.
    Motion eor New Trial: When error in overruling, not considered.

    A motion, for a new trial is not a part of the record unless made so by bill of exceptions, and unless so made, error in the inferior court, in overruling such motion, will not be considered in this court.
    APPEAL from Grant Circuit Court.
    Hon. John Whttock, Circuit Judge.

      J. A. Williams, for appellant.

      A. H. Garland, for appellee.
   McClure, C. J.

Prigmore sued White for the fees of the office of recorder of Jefferson county, from the 6th of April, 1871, to March, 1872, claiming the sum of $1,816, as fees received by White, during the time White deprived Prigmore @f the possession, fees and emoluments of the office of recorder. A change of venue was had to Grant county, and a special judge elected to try the cause. At the hearing, the jury found for Prigmore, and assessed his damages at $1,110, and judgment for that sum was rendered in his favor.

White made a motion for a new trial, which was overruled, and he appealed to this court.

Whether the court below committed error, it is impossible for us to say, as there is no bill of exceptions presented with the record. In the transcript filed in this court, we find what purports to be a copy of a motion for a new trial, in which a new trial is asked upon these grounds:

First. Because the court erred in sustaining the demurrer of plaintiff to paragraph VI of defendant’s answer.

Second. Because the verdict is contrary to law and unsupported by evidence.

Third. Because the court erred in overruling the defendant’s motion for a continuance filed in said case.

Whether these are the grounds on which a motion for a new trial was based, we have no means of ascertaining. The law recognizes but one method by which the judgment of an inferior court can be reviewed for error committed in overruling a motion for a new trial, and that is by a bill of exceptions, authenticated by the signature of the judge, or in the manner prescribed by the statute.

A motion for a new trial does not become a part of the record, unless it is so made by a bill of exceptions; for this reason we decline to consider either the second or third grounds for a new trial.

We have examined paragraph six of defendant’s answer, and we find no error in sustaining the demurrer thereto. The judgment of the circuit court is, in all things, affirmed.


author: Seakle, J.

text:
    Lambert vs. Gallagher.
    Circuit Courts: Jurisdiction of, in contested elections.

    Under chapter 12 of the Civil Code of Practice, circuit courts have jurisdiction in cases of contested elections for the office of sheriff; and such chapter of the code operates as a .complete substitution for the sections in G-ould’s Digest, ch. 62, providing for certain election contests in the county courts.

      APPEAL from Monroe Circuit Court.
    Hon. W. H. Clayton, Circuit Judge.

      Hughes & Smith and A. H Garland, for appellant.

      C. C. Waters and Tappan & Horner, for appellee.
   Seakle, J.

This action was brought by tbe appellant against the appellee, to recover the office of sheriff of Monroe county, under chapter twelve of the Civil Code of Practice. The appellee demurred to the complaint for want of jurisdiction in the circuit court. The court sustained the demurrer and dismissed the complaint, and thereupon this appeal was taken.

The sole question in the case is as to the jurisdiction of the circuit court. The appellant alleged in his complaint, that at the general election held in November, 1872, he was elected to the office of sheriff of said county, over the appellee, but in violation of his rights by virtue of said election, a commission was issued by the governor of the state to the appellee as such sheriff, and that by the authority of said commission he was exercising the functions of said office. This proceeding was clearly intended to be a contest as to the election of the appellee to the office of sheriff, and because it was brought as a contest, it is contended by appellee’s counsel that the circuit court had no jurisdiction thereof, under chapter twelve of the civil code.

Said chapter provides remedies against the usurpation of offices and franchises. It is argued that among these remedies cannot be included an election contest, because an election contest goes back of the commission, etc., and that one holding under a commission has a color of right, and is not therefore a usurper. The counsel are mistaken in this. Any person is a usurper who, contrary to, or in violation of law, enters into and holds an office. And this would be the case, we apprehend, even though he might have color of right, as under a commission, if he were not elected by the people, when such election was necessary; or if not qualified on any other account to hold the office under the law. Unquestionably, then, the provisions of chapter twelve of the civil code contemplate or include proceedings that have for their object a contest in relation to an election. This being the case, the circuit court has jurisdiction of this case.

Another inquiry has been suggested by counsel, and that is as to whether the provisions of this twelfth chapter operate as a repeal of certain sections in chapter sixty-two of Gould’s Digest, which provide for certain election contests in the county courts (or before the boards of supervisors, since the abolishment of the county courts). We are inclined to think that they do. This twelfth chapter providing the same remedies that the above mentioned sections of Gould’s Digest provide, operates as a complete substitution for the latter, and by force of section 857 of the civil code, the latter are clearly abrogated.

The court below erred in sustaining appellee’s demurrer and dismissing this cause for want of jurisdiction; and for this error the cause must be remanded to the court below, with instructions thereto to overrule the demurrer, and to further proceed in this cause according to law and not inconsistent with this opinion.