text:
    Frierson, ex'r, et al. vs. Branch, ex'r.
    1. Election: The doctrine of applies to creditors claiming under on assign-meat.

    A creditor who elects to accept the benefit of a provision contained in a deed of assignment, cannot attack provisions contained in it in favor of other creditors on the ground of fraud. He must either accept or reject it in toto.

    2. Taxes, Tax-sales, etc.: Bights and duty of cestui que trust in regard to.

    If the taxes on land embraced in a deed of trust remain unpaid; any benefioiai'y may pay them, and claim reimbursement out of the trust fund, but he could not permit the land to be sold for taxes, and acquire a title under the sale.

      APPEAL from Desha Circuit Court in Chancery.
    Hon.-, Circuit Judge.

      L. A. & X. J. Pindall, for appellants.
    The doctrine of election applies only where it is necessary for substantial justice. 2 Sto. Eq. Ju., 1077, 1088; Birmingham v. Kirwan, 2 Schoales & Lefroy, 449-50. Not against creditors enforcing legal claims Sto. Eq., 1090; 1 Swanston, 407, and authorities. A court may settle equities amongst beneficiaries Sto. Eq., 188, 184, 1038-9; 2 Piar, on Frauds, 89; Pinneo v. Kart, 30 Mo., 661; Star v. Dugan, 22 Md., 58; Mande/1 v. Peay, 20 Ark., 325; 17 Md., 229; (Young v. Nutwett,) 16 Ohio St., 366 ; 14 Pa. St. (Greenfield’s estate.) No trust on appellants to pay taxes. Notes to Marsh v. Lee, 1 Ld. Ca. in Eq., 605; Adams v. Buchanan, 49 Mo., 70.

      W. G. Weatherford, for appellee.
    The doctrine of election applies. Sto. Eq., sec., 1077; Birmingham v. Kirwan, 2 Sch. & Lef., 449; Swanson v. Tarkington 7 Heisk., (Tenn.) 615; Adlum v. Yard, 1 Rawl., 163; Hill on Trustees, sec. 337; Perry (do) 593; French v. Shotwell, 5 John ch. 567; Shufett v. Shufelt, 9 Paige, 146; Cole v. Savage, 10 (ib)., 591; Pratt v. Adams, 7 (ib)., 617 ; Green v. Morse, 4 Barbour, 332.
   English, Ch. J.:

On the 11th March, 1867, Thomas G. Martin executed a deed of trust to Joseph Branch on certain tracts of lands in Desha County, amounting to 320 acres, to secure the payment of a number of debts therein specifically mentioned and described, and among them two notes to Martin & Branch for about eight thousand dollars and the interest due thereon.

The deed provides that the trustee should take possession of the lands, and apply the rents and profits first to the payment of a note due to S. D. Frierson, one of the creditors named in the deed, for $936, and then to the payment of the other debts secured by the deed, and if all the debts should not be paid within two years from the date of the deed, then the trustee was empowered to sell the lands, and pay all the debts, and if the proceeds of the sale were not sufficient to pay the'debts in full, he was to pay on them pro rata, etc.

In June, 1870, Mary P. Branch, the executrix of Joseph Branch (the trustee in the deed) filed a bill in the Desha Circuit Court against Thomas G. Martin, the maker of the deed, the heirs at law of Joseph Branch, deceased, and creditors named in the deed, etc., alleging in substance:

That her testator, Joseph Branch, in his lifetime, and one Geo. W. Martin, were partners in business, under the firm name of Martin & Branch.

That Thomas G. Martin was indebted to said firm in a large amount evidenced by two notes, which are described and exhibited, to secure the payment of which, as well as certain other debts, he executed the deed of trust above described, which is set out and exhibited.

That soon after the execution of the trust deed, George W. Martin, one of the firm, died, leaving said Joseph Branch as surviving partner, entitled to the assets, and liable for the debts of the firm. That in November, 1867, said Joseph Branch died, before he had disposed of the lands conveyed to him by the trust deed, and that complainant had been appointed, and duly qualified, as his executrix, in Tennessee, etc. That it was incumbent on her to close up the estate, that the debts secured by the deed of trust were unpaid, there was no administration on the estate of Joseph Branch in Arkansas, and that his heirs were minors, etc.

Prayer that a commissioner be appointed to sell the lands, and the proceeds applied in accordance with the terms of the deed of trust.

One of the notes executed by Thomas G. Martin to Martin & Branch is for $5,395.15, dated January 8th, 1859, payable twelve months after date, and the other $3,840.54, due one day after date, and both bearing ten per cent, interest. These are the notes made exhibits to the bill, and alleged to be secured by the trust deed to Martin & Branch.

By an amendment to the bill it was shown that Thomas G. Martin had been adjudged a bankrupt before the filing of the original bill, and discharged from his debts, and that his assignee, who was made defendant, had made no disposition of the lands covered by the trust deed, etc.

On the 3d of May, 1871, after answers, etc., had been filed, the court appointed a commissioner to sell the lands, and he afterwards reported a sale to Frierson and Mayes for $1,525, and by final decree, November 8th, 1873, the proceeds of sale were distributed pro rata, among the creditors secured by the deed, a ratable share being allowed upon the notes to Martin & Branch ; and the executrix of S. D. Frierson, and the executors and executrix of S. F. Mayes, creditors, and James M. Mayes, in his own right, who by answer and cross bill contested the Martin & Branch claim as fraudulent, etc., appealed.

In the deed of trust a debt to S. D. Frierson of $936 was secured, as above shown, and the appellant, Mary M. Frierson, his executrix, represented this debt in the Court below.

The deed of trust also secured a note to S. F. Mayes for $500, and this debt was represented in the court below by the appellants, John M. Mayes, James M. Mayes, and Mary Mayes, executors and executrix of S. F. Mayes.

The appellants filed joint and several answers and a cross bill, in which they alleged, in effect, that the notes executed by Thomas G. Martin to Martin & Branch were without consideration, and put into the deed of trust in fraud of the claims of other creditors provided for by the deed, and the appellants insisted that the debts represented by them, and other disputed debts, should be paid out of the proceeds of the sale of the trust lands, to the exclusion of the notes executed to Martin & Branch.

Could the appellants claim under the deed, and at the same time attack and defeat a provision made by it for the benefit of other creditors? In other words, could they be permitted to claim under the deed, and yet allege a fraud in its execution which would avoid it on a bill brought by them, or any other creditor who did not think proper to claim the benefit of the deed, for the purpose of setting it aside ?

This question involves the doctrine of election.

“An election, in equity, is a choice which a party is compelled to make between the acceptance of a benefit under an instrument, and the retention of some property already his own, which is attempted to be disposed of in favor of a third party, by virtue of the same instrument. The doctrine rests upon the principle that a person claiming under an instrument shall not interfere, by title paramount, to prevent another part of the same instrument from having effect according to its construction; he cannot accept and reject the same instrument. It is a doctrine which is principally exhibited in cases of wills ; but it has been applied, also, to cases of voluntary deeds, to -cases of contracts for value resting upon articles, and to contracts completely executed by conveyance and assignment.” Bisphams Pr. Eq., sec. 295.

The earliest cases in which the doctrine was applied in English jurispfudence (says Judge Story) seem to have been those arising out of wills; although it has since been extended to cases arising under other instruments. 2 Story Eq. Jurisp., sec. 1079. See Streatfield v. Streatfield, 1 Leading Cases in Equity. (Hare & Wallace’s notes) 273, where English and American cases are ■collected and reviewed.

In Birmingham v. Teirwan, 2 Schoales & Lefroy, 448, the question was whether the widow of the testator, could claim her dower out of the whole estate as against creditors and the principal legatee, and at the same time take a provision made for her by the will.

The Lord Chancellor (Redesdale) said: “The general rule is, that a person cannot accept and reject the same instrument, and this is the foundation of the law of election, on which courts of equity, particularly, have grounded a variety of decisions, in cases both of deeds and wills, though particularly in cases of wills: because deeds, being generally matter of contract, the contract is not to be interpreted otherwise, than as the consideration, which is expressed, requires; and voluntary deeds are generally prepared with greater deliberation, and more knowledge of preexisting circumstances, than wills, which are often prepared with less care, and by persons uninformed of circumstances, and sometimes ignorant of the effect even of the language which they use. In wills, therefore, it is frequently necessary to consider the general purport of the disposition, in order to extract from it what is the intention of the testator. The rule of election, however, I take to be applicable to every species of instrument, whether deed or will, and to be a rule as well of law as of equity.” But the Lord Chancellor held, on looking at the whole will, that the provision made by the testator for his wife, was not intended to be in lieu of dower.

In Freke v. Barrington, 3 Brown’s Ch. Rep., 275, the question of election arose upon a deed, and the Master of the Rolls is re- . ported in the text to have said: “It is now settled that no man can claim under a deed, or will, without confirming the instrument under which he claims; therefore William could not be entitled to take any benefit of the settlement of 1872, without confirming that settlement.”

In a note the Master of the Rolls is reported to have said: “He did not at all mean to impeach the rule of election, which had been insisted upon in argument for the plaintiff, but on the contrary, whatever doubts might have been held formerly, whether a person should be bound to elect under a deed, as well as under a will, it was now established, and, in his opinion, on very good grounds. But that this was not a ease of election, and if it were, that William, the grand son, had made no election to bind him; if he had, the plaintiff should either have the thing, by election, the party had taken upon him to convey, or a compensation for it. That this was a case of a condition expressed by a deed; and that whatever intention might be entertained beside or contrary to that expressed, he could not violate the deed to get it; nor could he judicially say such was the intention of William, the grand father, or any other than what was expressed.”

In Kidney v. Coussmaker, 12 Vesey, Jr., Ch. R., 154, the Master of the Rolls (Sir William Grant) said: “Another objection made for the widow is, that the creditors take a benefit under the will of the testator by the devise for the payment of the debts, generally; and therefore they shall not be permitted to disappoint that part of the will, by which a provision is made for the widow; that is that the doctrine of election is to be applied to creditors. It is utterly inapplicable. It never has been so applied, and half the decrees upon marshalling assets are wrong, if there is any ground for that claim. It is true, creditors by simple contract cannot have any right, except by marshaling, against the real estate,- unless the testator thinks fit to devise it for satisfaction of the debts, generally ; yet they have never been held, to stand in the same light as legatees. When the testator lets in such creditors by a charge, it is now settled, whatever doubt may formerly have been entertained upon it, that creditors, under a charge of debts and legacies, are to be paid in preference to legatees,’ fc> ” etc.

Mr. Bispham says: “It was said by Sir William Grant, in Kidney v. Ooussmaker, 12 Vescy, 156, that the doctrine of election did not apply in the case of a creditor. This dictum is true enough if confined only to those cases in which property is charged by will with debts; for, in such a case, the creditor may claim the benefit of the charge, and still seek satisfaction of his debt out of other assets. But the rule is, nevertheless, not of universal application; for it has been decided that when a creditor decisively acquiesces in a certain disposition of the debtor’s property, he will not be allowed to enforce the collection of his debt by proceedings by which that disposition may be violated. Thus if a creditor accepts a dividend under an assignment for the benefit of creditors, he will not afterwards be allowed to avoid that assignment in order to render assets covered thereby liable to execution for his debt.” (Citing Adlum v. Yard, 1 Rawle, 163; Perry on Trusts, sec. 596;) Bispham’s Prin. Eq., sec. 306.

Mr. Perry says: “ By accepting the trust (under an assignment for the benefit of creditors) a creditor made trustee waives all claims and liens upon the property inconsistent with the deed. (Citing Harrison v. Rock, 10 Ala. R., 185.) So creditors who accept the benefit conferred under' such deed, and receive dividends or other advantages thereby, cannot set up rights inconsistent with the deed; nor can they, after receiving such advantages, impeach it, and procure it to be set aside, but they must (comply with its provisions.” (Citing Adlum v. Yard, 1 Rawle, 163; Gutzwiller v. Lackham, 23 Mo., 168; Pratt v. Adams, 7 Paige, 615; Burrows v. Alter, 7 Miss., 424; Jewett v. Woodward, 1 Edw. Ch., 195; Lanahan v. Latrobe, 7 Md., 268;) 2 Perry on Trusts, sec. 597.

In Harrison v. Mock, 10 Ala., 185, a debtor made an assignment of his property to one of his creditors as trustee, for the benefit of all of his creditors, who were' to be paid ratably if the property were not sufficient to pay all of them in full. The trustee had a judgment and execution against the maker of the deed when it was executed; he accepted the trust, took possession of the property, and afterwards caused part of it to be levied on and sold to' pay his debt. Held, on a bill filed against him by other creditors, that having accepted the trust, he was bound to take ratably with the other creditors, under the provisions of the deed, and had no right to cause part of the trust property to be sold on execution to pay his own debt — that by accepting the trust he waived his special lien on the property.

In Gutzwiller v. Lackham, 23 Mo., 173-4, the court says: “We are not prepared to depart from the rule laid down in Adlum v. Yard, 1 Rawle, 163, that though an assignment be in its nature calculated to delay creditors, and therefore voidable, yet, if a creditor take a dividend under it, he cannot afterwards question its validity.”

In Lemay v. Bibeau, 2 Minn., 293, the court said.: There can be no doubt but that a conveyance of real estate, in due form, even if made with intent to defraud creditors, is good as between the parties and privies, and can only be avoided by a creditor of the fraudulent grantor. And the creditor may have his election, either to confirm the conveyance or attempt to avoid it, but he cannot do both. He cannot receive a benefit under the conveyance, and then turn around and claim that the conveyance is fraudulent and void: And it is held that by receiving a benefit under the conveyance claimed to be fraudulent, he thereby affirms it, so as to be estopped from setting up fraud or other facts in avoidance of it. He cannot hold on to such part of the contract as may be desirable on his part, and avoid the residue, but must rescind in toto if at all,” etc.

In Scott v. Edes, 3 Minn., 387, the court said: “ That the acceptance of dividends under the assignment, is an assent to, .and confirmation of such assignment, by the creditor, has been uniformly held.”

In Merrill v. Englesby, 28 Vermont, 150, held that an assignment which is void or inoperative will, if assented to by the creditors, become operative and binding upon them.

In Geisse et al. v. Beall et al., 3 Wisconsin, 391, the court said: '“The creditor must either treat the assignment as altogether valid or altogether void. He cannot hold it void in part and good in part. He cannot recognize and act upon it as valid, and afterwards repudiate it and treat it as void.”

A judgment lien creditor, who accepts a dividend with other creditors under an assignment, thereby affirms the deed, and can not afterwards enforce his judgment against property embraced in the deed of assignment. Moule et al. v. Buchanan et al., 11 Gill. & John., 314; Lanahan v. Latrobe, 7 Md., 268.

In Swanson & Gray v. Tarkington et al., 7 Heiskell, 612, creditors who claimed the benefit of a deed of assignment, filed the bill against the trustee and others to enjoin the sale of the trust property for the payment of certain preferred debts, alleging that they were Confederate money debts, illegal and void: Held, that a party accepting the provision of a deed of trust for his benefit thereby affirms the instrument in toto, and is estopped from impeaching any of its provisions for the benefit of other parties.

In Irwin v. Tabb, 17 Serg. & Raw., 442, the same rule was applied as between creditors claiming under a mortgage made by a debtor in failing circumstances. Gibson, Ch. J., said: “The books are full of cases which show that a party shall not contest the validity of an instrument from which he draws a benefit, or .affirm it in part and disaffirm it in part.” The plaintiff might have repudiated the mortgage as fraudulent, but, electing to claim .under it, he could not contest, as invalid, a provision made for .the“benefit of another.

This case was followed by the same learned judge in Adlum v. Yard, 1 Rawle, 168, who said: “But it is supposed that the doctrine of election is inapplicable to creditors. There is no adjudication in support of this, but Kidney v. Coussmaker, 12 Ves., 154, * * * and from which, in the broad terms in which the principle is predicated I entirely dissent.” After explaining the character of that case, and conceding that the doctrine of election did not apply in the case there made, he adds: “ But the unqualified assertion of the Master of the Rolls, that the doctrine of election is utterly inapplicable to creditors, seems to be received with many grains of allowance, even in England. (1 Herndon’s Notes to Vesey, 172.) In Irwin v. Tabb we applied it to creditors claiming different debts under the same mortgage.” The same doctrine has been recognized in the New York cases. Greene v. Morse, 4 Barb., 335; Pratt v. Adams, 7 Paige, 615; Maynard v. Maynard, 4 Edw., ch. 711.

“ In the case of a voluntary assignment, where the assignee creates his own trusts, a creditor who comes in to claim a share of the fund under it, must be content to take such share of it as the assignor intended to give him, and cannot claim that which was intended to be given to the assignee in trust for others. A creditor of the assignor, whether provided for by the assignment or not, who wishes to repudiate the trusts of the assignment on the ground that they are illegal and a fraud upon the honest creditors of the assignor, must apply to set aside the assignment as fraudulent and void against him, as a creditor, instead of coming in under the assigxxment itself as a preferred creditor or otherwise.” Burrill on Assignments, p. 527, note 1.

It seems that Thoxnas G. Max’tin, after he xnade the trust deed, contracted other debts, and finally wexit ixxto bankruptcy. The appellants had the right to file a bill, had they thought proper, to set aside the trust deed on the ground of the alleged fraudulent provision ixi favor of Martixx & Branch. This they did not choose to do, perhaps for the reason that, had they done so, the trust property might have gone into the hands of the assignee in bankruptcy of Martin, to be administered for the benefit of all of his creditors. They elected to claim under the provisions of the trust deed, and cannot be heard, as correctly ruled by the court below, on demurrer to their cross bill, to repudiate and defeat the provisions of the deed in favor of Martin & Branch.

Second — The appellants state in their answer that after the execution of the trust deed, and in October, 1869, the lands embraced in the deed were sold for taxes and purchased by persons-named, who obtained certificates of purchase and assigned them to appellants for value, whereby they obtained the legal title to-the lands, and they submitted that this gave them a superior right to have the entire debts represented by them, and secured by the deed of trust, paid in preference to other debts, as well as the amount advanced by them to purchase in the tax certificates,, etc., out of the proceeds of the sale of the trust lands, etc.

The court decreed to them out of the trust fund the amount advanced by them for taxes, etc., and a pro rata upon the debts represented by them out of the remainder of the fund, which was a fair disposition of this feature of the case.

If the maker of the trust deed, and the trustee, neglected to pay the taxes on the lands, any beneficiary in the deed could' advance the taxes and ask contribution from the other beneficiaries, or claim re-imbursement out of the trust fund, but he could not permit the land's to be sold for taxes and acquire a valid legal title by purchasing in the certificates of sale. Pettus & Glenn v. Wallace et al., 29 Ark., 476.

Third — There is a controversy in the pleadings as to whether the appellee, Mary P. Branch, as executrix of Joseph Branch,, surviving partner of the firm composed of George W. Martin and Joseph Branch, under the firm name of Martin & Branch,. was the legal owner and proper representative of the notes described in the deed of trust as due to Martin & Branch, or whether the legal title to the notes was not in Narcissa Martin, as executrix of George W. Martin.

The notes seem to have been in the custody of appellee, who made them exhibits to her bill.

Narcissa Martin, who was made a defendant to the cross bill of appellants, in her answer, in effect, disclaims title to the notes as executrix of George W. Martin, and concedes the right of appellee to collect and distribute any amount that might be pa;d upon them from the trust fund, and this ought to be satisfactory to the appellants, who have no interest in so much of the trust fund as was decreed to be paid on these notes.

Decree affirmed.


source: Caselaw Access Project

author: Harrison, J.:

license: Public Domain

text:
    Refeld vs. Ferrell.
    Vendor’s Lien : Exists only as to purchase money.

    A vendor of real estate has no lien thereon for indebtedness of the vendee arising from other transactions.
    APPEAL from Arkansas .Circuit Court.
    Hon. P. C. Dooley, Circuit Judge.

      Cockrill for appellant.
    The appellant has a lien by force of the former decision of this court in this case. See same case in 27 Ark., 538. The case here will be determined by the evidence, without following the finding of the chancellor. Ringgold v. Patterson, 15 Ark., 209.

      Dodge & Johnson for appellee.
    Rest also upon the decision in Refeld v. Ferrell, 27 Ark., 534.
   Harrison, J.:

Joseph M. Refeld sued Leroy Ferrell to recover possession of a lot of ground in the town of Arkansas Post.

The defendant, in his answer, claimed that the plaintiff, in the year 1866, sold the lot to one W. R. "Watkins for $100 on a credit. That Watkins took possession and made improvements on the lot to the value of $1500, and on the 11th day of July, 1867, he sold the same to the defendant, who paid' him for it, and transferred to him the possession. That after his purchase the defendant tendered the plaintiff the sum Watkins was owing him for the lot, and demanded a deed, but he refused to accept the money or make the deed. He, again, in his answer, tendered the money with the interest thereon, and brought the same into court. He made his answer a cross complaint, and prayed that the plaintiff might be decreed to make him a deed for the lot, and on his motion the case was transferred to the equity side of the court.

The plaintiff filed a replication to the cross complaint. He admitted the sale of the lot to Watkins, but denied that the $100 was the consideration therefor. Watkins, he alleged, was at the time indebted to him in the sum of'$1700 or $1800, and in addition to the $100 he promised, in consideration of the purchase, to pay that indebtedness also, and that it was distinctly understood and agreed between them, that a deed was not to be made until he paid not onty the $100, but his other indebtedness besides, which fact the defendant well knew when he purchased from Watkins, and that no part of the said purchase money or consideration had been paid.

The defendant demurred to the plaintiff's answer on the ground that it did not state facts sufficient to constitute a defense to his cross complaint. The court sustained the demurrer and rendered a decree that the plaintiff, on being paid the sum of $100, make the defendant a deed for the lot, and that he pay the cost of suit.

From that decree the plaintiff appealed to this court.

This court held the plaintiffs answer sufficient, and reversed the decree and remanded the case for further proceedings.

Upon the return of the case to the court below it was heard upon the pleadings and depositions, and the court decreed that, upon payment being made by the defendant of the said sum of $100, the said purchase money, with interest from the 12th day of October, 1866, until the said 25th day of April, 1871, andthe costs which had accrued up to that day, which were declared to be a lien on the lot's, the plaintiff should make the defendant a deed for the lot, and he was adjudged to pay all other costs.

The plaintiff again appealed.

The only question now for consideration is whether the decree is in accordance with the evidence and pleadings, all others that might be raised having been directly or virtually settled when the case was here before.

R. W. Watkins testified for the plaintiff that he purchased the lot from the plaintiff in the fall of 1866, and was to pay $100 for it. He was at the time otherwise indebted to the plaintiff, but in what amount he did not know, but there was no understanding between them that the plaintiff should have a lien on the lot for what he owed him besides the purchase money. He received no deed, and had not intended to ask for one until t\ he hadjfully settled with the plaintiff. He had, however, never supposed that the plaintiff had a lien on the lot for anything more than the purchase money. After he purchased he took possession of the lot and built a storehouse on it. He afterwards sold the lot to defendant, who was to pay plaintiff, as part of the consideration, what witness owed him for the lot, the remainder of the price he paid witness. He was, when he sold to the defendant, solvent and could have paid plaintiff for the lot.

The plaintiff himself testified that he sold the lot to Watkins for $100, but gave no deed or title bond; that Watkins, at the time, was in debt to him $1,700 that was still unpaid, and he did not expect to make him a deed until the whole of his indebtedness was paid, and it was his impression that he was not to have a deed until then, and such he thought was the understanding between himself and Watkins; there was, however, no express agreement or understanding that the improvement Watkins put upon the land was to be a security for the $1,700 debt. He asked Watkins, about the time of the purchase, if he expected a deed before the whole of his indebtedness was paid, and he said he did not. The lot had never been paid for, and no tender of the money was made before the commencement of the suit.

The defendant testified that "he purchased the lot from Watkins in July, 1867, and at the time knew nothing about any other lien or incumbrance, except for the $100 purchase money, and that he agreed to pay to the plaintiff. He gave $1,500 for the property, all of which he paid except the $100. He occupied the lot and sold goods in the storehouse from the time of his purchase until sometime in 1869, and still held possession of it. Sometime in 1868 he applied to the plaintiff for a deed, and offered to pay him, what Watkins owed him for the lot, but he refused to make the deed unless he would pay Watkins’ other indebtedness, which was the first he ever heard of any other claim on the property except the lien for the $100. Watkins was, when he purchased from him, solvent, but was then in failing circumstances. Some four or six months afterwards, in 1869, in a conversation with the plaintiff about the property, he asked him if Watkins gave him a lien on the lot for the $1,700 debt, and he replied “no,” but he “intended to hold it for it.” He tendered the plaintiff the money for the lot, again, on the 25th day of April, 1871, after the commencement of the suit, but on the day the writ was served.

The evidence sustains every allegation of the defendant’s cross complaint, and there is no proof whatever, that the plaintiff had any lien on the property except' that for the purchase money due from Watkins, and the defendant appears clearly entitled, upon the payment of that, to a deed for the lot as decreed by the court.

The decree is accordingly affirmed.


author: S. W. Williams, Sp. J.:

text:
    Seaborn vs. Henry & Co.
    1. (.'onfliot of Laws. Presumption as to foreign laios.

    This court presumes that the laws of Texas are the same as the laws of this Stale, in the absence of any averment or proof to the contrary.
    2. ---. Foreign judgment.

    An action may bo maintained in the courts of this State, on a personal judgment rendered against the defendant in a proceeding to foreclose the vendor’s lien in a District Court of Texas.
    APPEAL from St. Francis Circuit Court.
    Hon. John W. Fox, Circuit Judge.

      Adams for appellant.
    A judgment of another State, sought to be executed here by suit, must be executed according to our laws, unless the effect of the judgment be shown by proof to be different in the State where rendered. Story’s Con. of Laws, sec-. 556, pp. 467-68; secs. 637-38, pp. 527-28; Wharton’s Con. of Laws, secs. 888, 780-.
    Execution could not here issue upon such á judgment before sale of land. Code, of Practice, secs. 406 and 422.
    This judgment sued on is in the natmre of a fi. fa. levied, and is prima facie satisfaction. Yonst v. Hopltins, 24 Illinois, 329; Cummins v. Webb, 4 Ark., 231-32 ; Whiting v. Beebe, 12 Ark., 547-48-49-50; Petit v. Johnson, 15 Ark., 55; Trapnall v. Richardson, 13 Ark., 548-49.
   S. W. Williams, Sp. J.:

The appellees sued appellant in the St. Francis Circuit Court on a judgment rendered in the District Court of the County of Cass, in the State of Texas. The complaint in that court, upon which the judgment was rendered, counts upon a note in the form following: “ $1290. Davis County, Texas, June 4,1869. On or before’the 1st day of January, A. D. 1871, I promise to pay G. W. Seaborn, or bearer, the sum of twelve hundred and ninety dollars for land sold C. S. Myers by G. "W. Seaborn, being a part of the headright of E. D. Hanks. (Signed) C. S.. Myers.”

The complaint is in the ordinary form of a complaint at law against C. S. Myers, as maker, and Seaborn, as guarantor of the note, setting out the making of the note and delivery 'thereof to Seaborn by Myers, and the endorsement and guarantee thereof to Henry & Co. by Seaborn. The appellees in that complaint then proceed to state that the note was given for the purchase money of land, describing its location and exhibiting a copy of a quit-claim deed from Seaborn to Myers, and claimed that the debt was a lien on the land in law and equity. The complaint then concludes with the usual averments of non-payment, etc., and with a prayer for judgment against defendants in that suit for the debt, and that the land be held bound for the same, and be decreed to be sold, and that the proceeds be applied in payment.

On this complaint the Texas court rendered a perso:ial judgment in the ordinary common law form, against Seaborn and Myers, as follows: “ It is therefore considered by the court that plaintiff, John Henry & Co., do have and recover of and from defendant, C. S. Myers and George W. Seaborn, the sum of twelve hundred and ninety dollars, principal, and the further sum of sixty and 75-100th dollars, interest, making in the aggregate, etc., and all costs of suit, etc.,” after which the record proceeds as follows : “It is ordered, adjudged and decreed by the court, that the vendor’s lien be hereby foreclosed upon the following described tract of land, to-wit:” (describing it,) “ and that the clerk of this court issue an order ©f sale to the sheriff of said county,” (Davis, where the land was described as lying,) “ commanding him, the said sheriff, to seize and sell the above described land in lots,” of 10 nor more 40 acres each ” “ as under execution,” and that he apply the proceeds to the “ payment and satisfaction” of the sum of one thousand three hundred and fifty 25-100th dollars, with all interest that may be due thereon, and all cost of this suit, and if the said land shall sell for more than sufficient to pay off and satisfy said sum of money “ then the said is hereby ” directed to pay over the excess to the defendant. But if the said land shall not sell for enough to pay off and satisfy this judgment then the clerk of this court is directed to issue execution for the balance unpaid.

Appellant, in the court below, demurred to the complaint; Avhich demurrer was confessed, and an amended complaint was filed, whereby appellant set out .the recovery of the judgment in Texas, and that the same remained in full force, in nowise set aside, reversed or satisfied; exhibiting a transcript of the record of the judgment recovered in Texas, concluded with the usual averment of non-payment and prayer for judgment.

To this amended complaint Seaborn demurred on the grounds that the judgment was for the sale of land, and execution was only to be issued for balance. The court overruled this demurrer, and rendered judgment for Henry & Co., on failure of Seaborn to answer. Seaborn appealed and here argues that the Circuit Court of St. Francis county erred in overruling his demurrer, which is the only question presented upon the record.

Passing by all questions as to whether the objection here raised was properly presented by demurrer, and whether or not the complaint, if good on its face, should have been looked to on demurrer alone, without regard to the exhibit; we presume that tbe laws of Texas are like those of Arkansas, in the absence of any averment or proof to the contrary, on the part of the party upon whom the affirmation of showing a difference may rest.

Here we have exhibited a personal judgment against Seaborn for a specific sum, based on a personal liability. In this State, if from a lapse of time, or death of parties, or other cause, it were to become necessary to sue on such a judgment, either to revive it by sci. fa., or to procure its allowance in the Probate Court, or under proper circumstances to make it the foundation of an action of debt, we think the suit could be maintained, and that it would devolve on the defendant to show satisfaction, by sale of the land or otherwise, before he could bar a judgment for this cause.

Holding these views and being bound to give full faith and credit to the records of a sister State, we find no error in the record of the proceedings of the Circuit Court of St. Francis county in overruling this demurrer, and affirm its judgment.


author: English, Ch. J. :

text:
    Maxey vs. Mack.
    X. Jurisdiction: Of Oounty Board of Supervisors to try contested election.

    Under the provisions of a special act of tbe General Assembly, approved the 23rd of May, 1874, authorizing an election for the County seat of Clayton (now Clay) Caunty to be held, and the result determined by the election boards provided for in the act calling the Constitutional Convention of that year, the Board of Supervisors for that County had no jurisdiction to entertain a contest as to the validity of such election,
    2. Contested Election for County Seat: Where Courts to be held pending contest-.

    Where an election was held, and the result duly declared in favor of removal, in pursuance of the provisions of an act authorizing a vote to be taken as the removal of a County seat, and a bill in chancery-was subsequently filed to enjoin the removal and purge the returns for fraud; Held, that during the pendency of the proceeding it was the duty of the Circuit Judge to hold his Courts at the new County seat, which would be enforced by mandamus from this Court.

      MANDAMUS to the Hon. L. L. Mack.
    Rose, for petitioner.
    The Board of Supervisors had no power to contest the election, their proceedings were void, Brooks v. Baxter, 29 Ark., 173.
    Court of Chancery has no jurisdiction, Moore v. Haismgton, 31 111., 243; State v. Judge, etc?, 13 La. An., 89; Bacon v. York Co., 26 Me., 491; Hart v. Harvey, 32 Barb., 55 ; O’Locherty v. Archer, 9 Texas, 295; Walker v. Tarrant Co., 20 id., 16 ; Bonner v. Lynch, 25 La. An., 267.

      J. M. Moore, for defendant.
    Petitioner does not show sufficient interest to entitle him to the writ, 25 Me., 291; 4 Mich., 98-; ibidá 187; 1 Ark., 187; Topping, 27 and 8 Marg. The County Court has jurisdiction and its order is binding, 5 Ark., 22; 21 id., 444 ; 22 id., 214 et seq ; Gantt’s Digest, 595; Acts, ’74, p. 12, sec.' 3.
    The chancery proceedings a bar to this. Tapping 23 Marg.; ibid 17; High on Inj., sec. 800; 21 Miss., 387.
    If this court takes jurisdiction it must look to the vote, and decide upon a canvass of that. 2nd Mete., (Ky.) 68; 11 "Wis., 17 and 27 ; Gantt’s Digest, sec. 4154; Topping, 182 Marg.
   English, Ch. J. :

The petition for mandamus, in this case, states that the petitioner, Robert B. Maxey, is a citizen, tax payer and practicing lawyer of Clayton county.

That he is engaged in the prosecution of divers causes in the Circuit, and other courts of record, of said county.

That the county seat of said county was legally located at 'the Town of Corning in the early part of the spring of 1873, and the courts of record of the county were there held until sometime in the month of August, 1874.

That by act of the Legislature, approved 23rd of May, 1874, the electors of the county were permitted to vote on the proposition to remove the county site from Corning to Boydsville, at an election, provided by another act to be held on the 30th of June, 1874, on the question of calling a Constitutional Convention, etc.

That at said election Corning received the highest number of votes, as duly certified and returned by the County Board of Election Supervisors to the State Board, and was declared to be and remain the county site as provided by law.

By an exhibit to the petition, it appears that the County Board certified to the State Board of Election Supervisors, that 675 votes were cast for Corning and 655 for Boydsville.

The petitioner further states, that Corning is now the lawful county site of said county, and that the courts of record should be held at that place, but that the Hon. Littleberry L. Mack, Judge of the second Judicial Circuit, embracing said county, refuses to hold the Circuit Court at Corning, and holds it at Boydsville, to the great injury, complication and confusion of all legal proceedings of said county, etc.

Prayer for mandamus to compel said judge to hold the November term, 1875, and other terms of the Circuit Court for said county, at Corning.

To an alternative writ, ordered by the Chief Justice of this court, in vacation, 2d November, 1875, a response was made.

In the x’esponse of the Jxxdge, he relies upon an order of the Board of Supervisors of the coxxnty declaring Boydsville to be the county seat, and directing the courts to be held there. Also an injunction awarded by the Coxuxty Judge, on a bill filed in the Circuit Court, prohibiting the Clerk of the Circuit Court from removing the public records from Boydsville to Corning, etc.

The relator demurred to the respoxxse, on the grounds that neither the Board of Supervisors nor the Chancery Court had any jurisdiction in the matter.

First — Had the Board of Supervisors jurisdiction?

The act of May 23d, 1874; provides “that the proposition to. remove the county site of Clayton county from Corning to Boydsville, etc., shall be submitted to a vote of the qualified electors on the 30th day of June, A. D. 1874, at the same time that the Constitutional Convention is voted upon, and delegates thereto, and the said election shall be governed by the law prescribing the method of holding said election, and subjected to the same penalties, as for violation, as provided in said law.”' Sec. 1.

Section 2 provides that the electors voting for Corning shall place Corning on the tickets, and those voting for Boydsville shall place Boydsville on their tickets, the returns to be cast up,, and made in the same manner as prescribed in the law for the Constitutional Convention.

The Convention act of 18th of May, 1874, provided that an election should be held on the 30th of June of the same year, at the several election precincts of every county in the State, for delegates to a Constitutional Convention, etc. It provided for a State Board of Election Supervisors, and a Board of Election Supervisors for each county. No person was permitted to vote elsewhere than in the precinct where he resided. The precinct judges were to make returns to the County Boards, and they to the State Board of Election Supervisors. Frauds in voting, or making returns, were made punishable by imprisonment in the Penitentiary. The Convention was to determine the election qualifications and return of its members.

The act of 23d of May, 1874, relating to the county site of' Clayton county, further provides: “That if a majority of the votes should be cast in favor of Boydsville, then the county site shall be removed to Boydsville within twenty days after the passage of this act, and remain there as provided by law. It shall be the duty of the Clerk, immediately after the expiration of twenty days, to remove all the records from Coming to Boydsville,” etc., etc. Sec. 3.

The act makes no provision for the Board of Supervisors (then acting in the place of the former County Court) to entertain any contest about the election, or make any order about the removal of the county site. If the election resulted in favor of Boydsville, the county site was to be removed there within twenty days, and it was made the duty of the Clerk, immediately after •the expiration of the twenty days, to remove the public records from Corning to Boydsville, etc. The meaning of the act manifestly is, that the removal of the county site was to occur within twenty days after the result of the election was ascertained and declared by the returning officers. The removal could not possibly be made within twenty days after the passage of the act, for the election was not to occur until about thirty-seven days after its passage.

From a transcript of the record of the Board of Supervisors’ Court of Clayton county, made an exhibit to the response, it appears that’ on the 10th of August, 1874, some sort of a suit was pending in said court, wherein Samuel Blackshear, et al., were plaintiffs, and George H. Stephens, et al., were defendants. It appears to have been a special term of the court, called by the President of the Board.

In the first entry, after the caption, the Constable, on motion ■of the attorney of defendants, was granted leave to amend the return on the notice served on the defendants according to the facts. On motion of the same attorney, the summons was quashed, and he also filed a motion to quash the notice.

On the next day (11th of August) on motion of the plaintiffs’ attorney, the Clerk was permitted to amend the “subpoena,” and thereupon the attorneys of the parties argued a motion to dismiss the cause for want of jurisdiction, which motion the coui’t overruled, and decided that the notice to defendants was good,. Thereupon the defendants filed an answer, to which plaintiffs demurred, and the demurrer was sustained. Then the plaintiffs read the complaint in the cause, and proceeded to introduce evidence.

Neither the complaint nor answer appears in the transcript.

On the next day (August 12th) one of the election supervisors produced in court the poll books and ballots of the election held in Clayton county, on the 30th June, 1874, and the court proceeded to open, count and examine the ballots of. Killgore township, etc., after which the court continued to hear evidence.

On the next day (August 13th) the court rendered the following judgment, in substance:

“ After hearing the evidence and argument of counsel, the court finds, after a thorough inspection of the poll book of Kill-gore precinct, of the election held on the 30th June, 1874, for the removal of the county site of Clayton county from Corning to Boydsville, that the number of 336 illegal votes were cast and counted for Corning at said precinct, etc., by persons being fraudulently permitted to vote, etc.-, who were not qualified electors, or entitled to vote,-etc. 'And the court further finds that there were -217 votes of the Killgore precinct for Corning, instead of 550 votes, and three votes for Boydsville, after purging and striking from the books the said 336 illegal votes cast and counted for Corning. And the court further finds that Boydsville received a majority of 316 votes of all the legal votes cast and counted at the various voting precincts of Clayton county at said election, etc. It is, therefore, considered by the court that said 336 illegal votes cast, counted and certified for Corning at said election in Killgore township, be’purged, struck off and not counted for Corning, and that Boydsville received a majority of 316 votes, of all the votes cast at said election at the several and various voting precincts of said county. And it is further considered and ordered by the court that the county site of said county is Boydsville, pursuant to law, and that the clerk is ordered to immediately remove all the records of all the courts, and all records belonging to said count}'- now at Corning to the county site of said county, and place the same in the house known as Horten & Nevman’s storehouse, in Boydsville, and said house shall hereafter be the courthouse and clerk’s office of said county, in which house all the courts of record of the county shall hereafter be held, as provided by law, and all orders of this court, fixing the court house and clerk’s office of this county at Corning, are hereby annulled and revoked, and the next term of the Circuit Court, etc., shall be held at said court house in Boydsville, and that plaintffs recover costs,” etc.

A motion for' a new trial was overruled, bill of exceptions taken, and an appeal to the Circuit Court prayed and granted, but it does not appear to have been prosecuted.

Under the above judgment of the Supervisors’ Court the public records were removed from Corning to Boydsville, and the ■courts held there.

By act of April 3d, 1873, the county courts were abolished, and the jurisdiction, powers and duties exercised by them under •existing laws transferred to boards of supervisors, provided for ■by the act. Gantt’s Digest, ch. 17, p. 233.

By the Constitution of 1836 the County Courts were given jurisdiction “ in all matters relating to county taxes, disbursements of money for county purposes, and in every other case •that may be necessary to the internal improvement and local concerns of the respective counties.” Art. 6, sec. 9.

The same provision was repeated in the Constitution of 1864. Art. 7, sec. 11.

By the Constitution of 1868, it was provided that “the inferior courts of the State, as now constituted by law, except as hereinafter provided, shall remain with the same jurisdiction as they now possess: Provided, that the General Assembly may provide for the establishment of such inferior courts, changes of jurisdiction, or abolition of existing inferior courts, as may be deemed requisite,” etc. Art. 7, sec. 5.

By a general statute (GannPs Digest, eh. 34), it is provided that whenever one-third of the qualified electors of any county .shall petition the board of supervisors (County Court in the act as originally passed) for a removal of the seat of justice of such county to any other designated place, the board shall order an election, directing that the proposition. to remove such seat of justice to the place named in the petition be submitted to the qualified electors of the county, and shall order that public notice be given of such proposed removal, etc., etc. If it shall appear 'by such election that a majority of the qualified voters voting at such election, etc., arc in favor of the removal of the county site of such county, then the board of supervisors shall appoint three commissioners to select a site whereon to locate the public buildings. Provisions follow to the effect that the commissioners, after qualifying, shall select the most suitable place designated in the petition, whereon to locate the public, buildings, and may purchase not less than one nor more than fifty acres of land, and may receive, as a donation, such parcel of land, or town lots, including the place selected as a seat of justice for the county. That the vendor or donor shall execute a deed to the county, etc., and the commissioners shall make a report, etc., accompanied by the deed, etc., to the Circuit Court, at the next term thereof, and if approved by the judge, he shall so certify to the board of supervisors, then the place so selected shall be the permanent seat of justice of the county, etc., etc. Then the board of supervisors shall, within a reasonable time, not exceeding eighteen months from the date of the election, etc., provide the necessary means for and proceed to the erection of all necessary county buildings, and as soon as such buildings are completed at such new seat of justice, the board of supervisors shall notify the judges of the several courts holden in the county, at the next term thereof, who shall cause the sheriff to make proclamation at the court house, in term time, that such court will thereafter be held at the place so selected.

Possibly, where an election was held under this general law, ordered and conducted under the direction and supervision of the supervisors’ court, the court had the implied power to inquire into the regularity and fairness of the election, and-to see that a majority of the qualified electors voting at the election had voted for the removal of the county site to the place designated in the petition for the election, before appointing commissioners to select and purchase a site for the public buildings.

But the election in question for the removal of the county site of Clayton county was not ordered by the board of supervisors, nor conducted under their supervision, nor were the returns made to them, nor were they authorized to canvass the returns and declare the result.

The Legislature thought proper to authorize the qualified voters of the county, by special act, to vote upon the proposition to remove the county site from Corning to Boydsville at the election for delegates to the Constitutional Convention, and the returns were to be made to, canvassed, and the result ascertained and declared by the election boards, and in the manner provided for in the act authorizing the election for delegates, etc.

It was provided by the special act, as we have above stated, that if the majority of the votes should be cast in favor of Boydsville, the county site was to be removed to that place within twenty days, and the clerk, immediately after the expiration of that time, was to remove all the records from Corning to- Boydsville, and all writs were to be returned there, and persons held to bail were to appear there, and all sales to be made under decrees and executions were to be made there.

There was to be no delay for commissioners to select and purchase a site for public buildings, and for buildings to be erected, etc., as under the general act for the removal of county sites. It was evidently contemplated by the special act, that the courts, as well as the clerk and the public records, would go at once to the new county site.

But the result of the election, as ascertained and declared by the election boards entrusted with that duty, was in favor of Corning, and not Boydsville.

On the face of the returns, Corning was elected and Boydsville defeated; by what authority then, did the board of supervisors, entrusted by the special act with no duty relating to the election, undertake to go behind' the returns, inquire into the qualifications of persons who voted, purge out votes cast for Corning, declare Boydsville elected, and order , the clerk to remove the public records there, and direct that the Circuit Court should be held there ?

The counsel for the respondent submits, that the board of supervisors had general jurisdiction in all cases necessary to the internal improvement and local concerns of the county,” and that the election in question was a local concern, and within the general grant of jurisdiction.

The existence and general jurisdiction of the county courts were provided for by the constitutions of 1836 and 1864, but under the constitution of 1868, they were subject to the legislative will; hence, as we have seen, the legislature abolished the county courts, and substituted boards of supervisors, transferring to them, the jurisdiction previously exercised by the county courts, subject to legislative control.

In the special act in question, the legislature thought proper to pass by the board of supervisors, and entrust the management of the election to the election beards provided for in the convention act. The legislature might have gone further, had it thought proper, and authorized other agents than the board of supervisors, to provide temporary, finally permanent, public buildings, at Boydsville, in the event that the election resulted in favor of that town for the county site, but this was not done, and the board of supervisors were left to exercise such jurisdiction in relation to the public buildings, under the general law, as was consistent with the special act.

Our conclusion is, that the judgment of the board of supervisors in question, was void for want of jurisdiction of the subject matter, and furnished no legal excuse for the refusal of the respondent to hold the Circuit Court at Corning.

Second — As to the jurisdiction of Chancery.

Another transcript made an exhibit to the response of his honor, the circuit judge, shows that on the 14th of July, 1875, and after the present constitution went into force, a bill was filed on the chancery side of the Circuit Court of Clayton county, wherein Samuel Blackshare and others were plaintiffs, and William H. South, as clerk of said Circuit Court, and sixteen other persons named, were defendants, alleging in substance as follows:

The plaintiffs, for themselves and others, allege that they are citizens and tax-payers of Clayton county, owners of valuable lots and lands in Boydsville, and interested in suits pending in the said Circuit Court, etc.

That an election was held on the 30th June, 1874, at the several precincts of the county, under the convention act of 18th May, and the special county site act of 23d May, 1874, setting out the purposes of the election, etc.

That defendants named fraudulently combining and confederating together for the purpose' of preventing the County site from being removed from Corning to Boydsville, falsely, wilfully and fraudulently did procure the following named persons, ±o-wit: [Here follows names covering over six foolscap payes.] to illegally cast their votes, at Külgore.. precinct, for Corning, etc. That said persons were not residents of Killgore precinct, and not otherwise qualified electors, etc., etc., which defendants well knew at the time they procured 'them to vote, etc.

That defendants, on the day of election, forged and placed on the poll books of Killgore precinct,- after the polls were closed, the names of seventy-three persons, not present at the election, and also forged a like number of ballots for Corning, numbered to correspond with the forged names, which were counted and certified for Corning by the Judges and Clerks of said election precinct, etc.

That defendants, in order to defeat Boydsville, fraudulently procured the three persons (naming them) who had been appointed, by the County Board of Election Supervisors, to act as Judges of the election at the Killgore precinct, not to be present at the opening of the polls at the time required by law, and fraudulently procured three other‘persons (naming them) to be appointed Judges, and three others (named) Clerks, so that the frauds and forgeries above mentioned might be committed.

That defendant frudulently procured 353 illegal votes to be cast for Corning, at Killgore precinct, and by threats and intimidation compelled the County Supervisors of the election "(who are named) to receive the poll books of Killgore, on which said illegal votes were counted for Corning, etc.

That at the time of the election there were not more than 200 legal voters residing in Killgore precinct, but that defendants fraudulently caused to be falsely certified that 553 legal votes were cast for Corning, etc., having procured 353 illegal votes to be voted for Corning, etc.

That to carry out their fraudulent purpose, defendants gave a barbacue on the day of the election, and procured the Cairo & Fulton Railroad Company to run a special train from Newport, Jackson county, and bring to the polls a lot of railroad “pluguglies,” etc., etc., who were along the line of the road from Corning to Newport, and after feeding, and giving them whisky, marched them to the Killgore polls and voted them for Corning.

That defendants also procured said company to run a special train from Bismarck, Missouri, to bring illegal votes for Corning, etc.

That of all the legal votes cast in the county, Boydsville received a majority of 350 votes over Corning, etc., and was duly elected as the county site, etc. That defendants caused to be perpetrated the grossest frauds at said election in order to defeat Boydsville, etc.

That William H. Smith, the Clerk of the Circuit Court, etc., one of the defendants, combining and confederating with the other defendants, was threatening to illegally remove the records of the county from Boydsville, the county seat, to Corning, a railroad station, etc.

Prayer that the Clerk be enjoined from removing the records from Boydsville to Corning, that the Killgore poll books be purged of the 353 illegal votes east and counted for Corning; the illegal and fraudulent certificates of said election annulled, and that Boydsville be declared the county site, etc.

The Cixeuit Judge being absent from the county, a temporary injunction was gi’anted by the Judge of the County Court under section 37, article 7 of the present constitxxtion. It does not appear from the transcript before us that any further steps have been taken in the case.

The allegations of the bill, if true, make a case of gross fraud in the election at the Killgore precinct.

Mr. Cooley says: “As the election officers perform for the most part ministerial functions only, their returns, and the certificates of election, which are issued upon them, are not conclusive in favor of the officers who would thereby appear to be chosen, but the final decision must rest with the courts. This is the general rule, and the exceptions are of those cases where the law, under which the canvass is made, declares the decision conclusive, or where a special statutory board is established with powers of final decision. And it matters not how high and important the office, an election to it is only made by the candidate receiving the requisite plurality of the legal votes cast, and if any one, without having received such plurality, intrudes into an office, whether with or without a certificate, the courts have jurisdiction to oust, as well as to punish him for such intrusion. "When, however, the question arises collaterally, and not in a direct proceeding to try the title-to the office, the correctness of the decision of the canvassers cannot be called in question, but must be conclusively presumed to be.correct,” etc. Const. L., 623-4.

These remarks of the learned commentator relate directly to elections for public officers, and it may be said, in general terms, that so careful are our laws that the will of the qualified electors shall be fairly expressed, and carried out by the election officers, that provision has been made to contest, either before the Legislature, or the courts of law, in some mode, the election of all state and county officers, from the highest to the lowest.

But this was not an election of a public officer. It was an election authorized by a special act on a proposition to remove a county site, and cannot be contested in the ordinary modes, on quo viarranto, or suit for usurpation of office, nor does the special act authorizing the election provide any mode of contest, or expressly make the certificate of the election supervisors final and absolute.

It may be laid down as a general rule, subject to few exceptions, that courts of equity exercise a general jurisdiction in cases of fraud, sometimes concurrent with, and sometimes exclusive of other courts. 1 Story Eq. Jur., sec. 184, etq.

Whether the case in question falls within the general rule, or the exceptions, is not free from all doubt: There are decisions in cases somewhat similar, which ate not in harmony. Walker v. Tarrant County, 20 Texas, 16; Sanders v. Metcalf, 1 Cooper Tenn. Ch. R., 424; Rice v. Smith, County Judge, 9 Iowa, 570; People ex rel. v. Mitchell & Warfield, 20 Illinois, 163; Sweat v. Faville, 23 Iowa, 326 ; Board of Supervisors v. Keady et al., 34 Ill., 293; Edwards et al. v. Hall et al. (Prairie county seat case), ante.

But suppose it be conceded, for the purpose of disposing of the only matter before us in this case, that the Circuit Court, sitting in chancery, has jurisdiction of the case as made by the bill, where is the court to sit until the matter is adjudicated? At Boydsville ? Surely not. At the time the special act authorizing the election was passed, Corning was the established county seat, the certificate of the County Board of Election Supervisors, that a majority of the votes was in favor of Corning, must be taken as true until overturned in some legal mode, and the order of the Board of Supervisors, declaring Boydsville to be the county site, being void for want of jurisdiction of the subject matter, and furnishing no valid authority for respondent to hold the Circuit Court there, he must necessarily hold it at Corning until the case made by the bill in chancery is finally adjudicated.

But it is objected by counsel that if respondent be compelled by mandamus to hold the court at Corning, the Clerk is nevertheless enjoined, by a fiat of the County Judge, from removing the records from Boydsville to Corning. Very well, but we have seen that the Clerk had no valid legal warrant for removing the records from Corning to Boydsville, and that, under the present aspect of the matter, Corning is the proper place for the records. ' And the Circuit Judge has the power, in vacation or term time, to set aside the temporary injunction awarded by the County Judge, and save the Clerk of his own court harmless in the premises. Art. 7, sec. 37, Const., sec. 2, act March 5, 1875.

The demurrer to the response must be sustained, and a peremptory mandamus awarded.' -


author: English, Ch. J.

text:
    Files vs. Robinson & Co.
    1. Judgment. Be/ore the clerk in vacation.

    The case of Smith v. JSgner, 28 Ark., 475, holding that there was no act in force authorizing the clerk to enter judgments in vacation on failure of the defendant to answer, re-affirmed.
    - 2. Statutes. When they went into effect under the Constitution of 1868.
    Under the provisisns of section 22, art. 5, of the Constitution of 1868, an act of the Legislature did not take effect until ninety days after the expiration of the session at which it was passed, unless it was otherwise provided in the act.
    3.--. Construction.

    A statute authorizing a clerk to enter judgment in vacation, on failure of the defendant to answer, is a summary proceeding, out of the ordinary course of the common law, and must be strictly construed and closely followed.
    APPEAL from Ashley Circuit Court,
    Before W. J. "White, Clerk of the Circuit Court. .

      A. W. Files for appellant.
    The act of March 27, 1871, was unconstitutional and void. Const, of 1836, art. 6, sec. 3- of 1864, art. 7, sec. 3; of 1868, art. 7, sec. 5 ; Code, ch. 2, sec. 18. There must be service of summons returnable to court and a day for trial.

      A note payable at a particular time and place must be then and there prosecuted before action will lie. Smith’s Mercantile Law, p. 275.
    J. M. Moore, for appellee.
    Cited acts of 1871, p. 227. The act of the clerk was ministerial, and the judgment results by operation of law. Picket v. Thruston, 7 Ark., 397; Rearden ex parte, 9 id., 450; Ruddellv. McGruder, 11 id., 578; Biseoe v. Sandefur, 14 ib., 584; Brown v. Clark, 4 How. (U. S.) 4 — ; Russell v. Gayer, 4 Am. Rep., 384; Freeman on Judgments, secs. 129, .513 and 15; Wallace v. Eldridge, 27 Cal., 496 ; Kelly v. Van Austen, 17 ib., 564. Analogous to judgment against party on supersedeas. 4 Wheaton, 240.
    No demand at the place was necessary. 4 Ark., 592.
   English, Ch. J.

On the 10th June, 1873, J. M. Robinson & Co. filed a complaint in the office of the clerk of Ashley Circuit Court, against Files, Norris & Co., on a note for $3145.52, dated Louisville, Kentucky, May 27, 1872, due four months after date, negotiable and payable with current rate of exchange at the Merchants’ Bank of Kentucky.

Upon the filing of the complaint and bond for costs, the clerk issued the following paper:

State of Arkansas, county of Ashley. The State of Arkansas to Abner W. Files, William O. Files and Joseph W. Norris, under the style of Files, Norris & Co., defendants: You are required to file in this office within twenty days, exclusive of the day of service, your answer to the complaint of John M. Robinson, Obadiah T. Sutfeld and Joseph Knowles, partners under the style of J. M. Robinson & Co., against you, for the sum of thirty-one hundred and forty-five dollars and fifty-two cents. In testimony whereof, I have hereunto set my hand and seal of office, this 10th day of June, 1873. W. J. White, clerk.
“ Note — The plaintiff will take judgment for said sum if you fail to answer said complaint within twenty days after service of this summons. W. J. White, clerk.”

On the above paper was endorsed: “T executed this summons by delivering to the defendant W. O. Files and A. W. Files a copy of the original. June 13th, 1873. Not served on J. W. Norris. M. H. Dean, sheriff.”

The clerk made the following entry (after stating the names •of the parties, plaintiffs and defendants) :

“ Come the plaintiffs by their attorney, and file with the clerk the summons issued herein, whereby it appears, from the return of the sheriff endorsed thereon, that he executed the same by delivering to the defendants A. W. Files and W. O. Files copies of the original, and not served on J. W. Norris, June 13th, 1873, which was twenty days before this date. It also appearing that the defendants, A. W. Files and W. O. Files, have failed to answer the complaint of plaintiffs herein filed, and it appearing to the clerk that this action is founded on a contract for the payment of money only; it is, therefore, considered by the clerk that the plaintiffs have and recover of and from the defendants A. W. Files and W. O. Files the sum of thirty-one hundred and forty-five 52-100 dollars, the money mentioned in the plaintiffs’ complaint, and the further sum of one hundred and thirty-six and 54-100 dollars damages for the detention of said sum of money, in plaintiffs’ complaint specified, the same being for interest at the rate of six per cent, etc., and for costs, etc., and have execution thereof,” etc.

Upon this judgment the clerk issued an execution, which was levied upon lands, and the defendant A. W. Files obtained an appeal from the clerk of this court.

The counsel for the appellant submits that the rendering of a judgment is a judicial act, and the clerk of the Circuit Court being a ministerial officer only, could not render a valid judgment. The counsel for the appellees insists that on the failure of the defendants below to answer the complaint on the day fixed in the notice, the law gave the judgment, and the clerk merely entered it as a ministerial officer.

This is a grave constitutional question, but we will first inquire whether there was any statute, in force at the time this judgment was entered, authorizing the clerk to enter a judgment in vacation, and, if so, whether its provisions have been followed in this case. The Code, as originally adopted, contained the following provisions: “ A civil action is commenced by filing in the office of the clerk of the proper court a complaint, and causing a summons to be issued thereon.” Title 4, ch. 1, sec. 58.

“ The summons shall be directed to the sheriff of the county, and command him to summon the defendant, or defendants, named therein, to answer the complaint filed by the plaintiff, giving his name, at the time stated therein, under the penalty of the complaint being taken for confessed, or of the defendant being proceeded against for contempt of court on his failure to do so. The summons shall be dated upon the day it is issued, and signed by the clerk.” Ib., sec. 59.

In actions by proceedings at law, the time fixed in the summons for the defendant to answer shall be the day the summons is returnable; in actions by equitable proceedings it shall be twenty days after the service of the summons.” Ib., sec. 62.

The summons shall be made returnable the first day of the next term of the court, unless the term begins within ten days from the date of the summons, when it shall be returnable the first day of the term following.” Ib., sec. 64.

Section 126 provides that the defense in an action at law must be filed on the day of the term on which the case is set for trial; when the summons has been served ten days before the commencement of the term, in the county in which the action is brought, or in an adjoining county, or twenty days elsewhere in the State, etc., etc. And section 411 provides how an account is to be taken, or damages assessed by the court or jury, on failure to answer. But there is no provision in the Code, (as originally-adopted,) requiring an answer to be filed, in an action at law, in vacation, or authorizing the clerk to enter judgment on failure to answer.

In the act of March 27th, 1871, amending the Code of Practice, is a section as follows: “Section 62 (of Code). When defendant must answer. In actions by proceedings at law, the time fixed in the summons for defendant to answer, shall be the day the summons is returnable; in actions by equitable proceedings, it shall be twenty days after the summons: Provided,. That in all actions arising on contract for the recovery of money only, the summons shall be directed to the defendant, and shall require him to answer the complaint and file his answer in the office of the clerk of the proper court, within twenty days after the service of the summons, exclusive of the day of service. The clerk shall also insert in the summons a notice in substance as follows: That the plaintiff will take judgment for a sum specified therein, if the defendant fails to answer the complaint in twenty days after the service of the summons.” Acts of' 1871, p. 227.

By another section of the same act,, amending section 126 of the Code, it is provided : “ That in all actions arising on contracts for the recovery of money only, the answer shall be filed in the office of the clerk of the proper court, within twenty days after the service of the summons, exclusive of the day of service.” Ib., p. 230.

And by a further section of the same act, amending section 411 of the Code, it is provided: “That in actions arising for the recovery of money only, when the defendant fails to answer the complaint, judgment may be -had in vacation as follows: The plaintiff may file with the clerk proof of personal service of the summons, on one or more of the defendants, etc., etc. If no answer shall have been filed with the clerk he shall thereupon enter judgment for the amount mentioned in the summons, against the defendant, or against one or more of several defendants, in the following cases :

First — “If the action be against defendants, jointly indebted upon contract, judgment may be entered against all the defendants thus jointly indebted, but so far only as that it may be enforced against the joint property of all, and the separate property of the defendant served.

Second — “ If the action be against defendants severally liable, he may proceed against the defendant served, in the same manner as if they were the only defendants.

Third — “If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendants, if the action had been against them, or any of them alone.

“ But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff therein ; and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter judgment for the amount so assessed or ascertained,” etc. Ib. p. 240.

In a section of the act of April 27th, 1873, amending section 411 of the Code, it is provided: “-That in actions arising on contract for the recovery of money only, where the defendant fails to answer the complaint, judgment may be had in vacation as follows : The plaintiff may file with the clerk, proof of personal service of the summons, on one or more of the defendants. If no answer shall have been ■ filed with the clerk, he shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the following cases(Acts of 1873, p. 220.)

Here the section stops short, and there is no following provision of the act specifying in what cases the clerk may enter judgment.

In Smith et al. v. Egner, 28 Ark., 475, this court held that the above section of the act of 1873, was incomplete and inoperative, and that by the first section of the act, the section of the act of 27th March, 1871, amending section 411 of the Code was repealed, and hence there was no act in force authorizing clerks to enter judgments in vacation on failure of a defendant to answer. Hence Mr. Gantt left out of his Digest the provisions of the act of March 27th, 1871, authorizing clerks to enter such judgments. See Digest, p. 804, notes.

But in the act of April 27th, 1873, there is no provision declaring when it shall take effect, hence it was not in force, under section 22, article 5 of Constitution of 1868, until ninety days from the expiration of the session of which it was passed.

The clerk entered the judgment in this case on the 3rd July, which was before the act of 27th of April, 1873, went into effect, and hence the provisions of the act of March 27th 1871, above referred to, were then unrepealed.

If a clerk could be constitutionally empowered to enter a judgment, on failure to answer, were the provisions of the Code, as amended by the act of 27th March, 1871, so followed in this case as to make the judgment regular, or to warrant the clerk in entering it ?

The paper issued by the clerk in this case as a summons, is wanting in several features to make a good writ. It does not .state the court in which the suit was brought, (Smith et al. v. Egner, Sup.) nor the place where the court was held (Womsley v. Cummins, 1 Ark., 125.) The defendants were required to file their answer “in this office,” but what office that was, or where located, does not appear on the face of the paper. The person who issued the paper styles himself “Clerk,” but of what Court is not stated. He set his “seal of office” to the instrument, but of what office does not appear; nor is the paper made returnable •to any court, or at any time. (Jones v. Austin, 16 Ark., 336).

. Whether regarded as a summons or a mere notice, the paper in question was very defective.

Though our system of amendments is very liberal (Mitchell v. Conley, 13 Ark., 414,) the clerk could not have amended the summons, had the plaintiff moved to amend, nor could he have quashed the summons if the defendants had filed a motion to quash. Both the power to amend and to quash was in the court, and not in the clerk. It is a judicial power involving discretion.

■ This was a summary proceeding, out of the course of the common law, authorized by a statute of doubtful constitutionality, at least, and no liberal construction, or intendments are to be indulged in order to uphold the summons or judgment entered by the Clerk, on default, in vacation.

Wallace v. Eldridge, 27 Cal., 497, was an appeal from a judgment entered by a clerk, in vacation, on default, under a statute of California. The notes declared on were payable in dollars, but the Clerk entered the judgment for gold and silver coin. The court said: “The plaintiff was entitled to have a judgment •entered for the amount due on the notes. The statute pronounces the judgment of the law, arising upon the facts stated in the complaint in an action upon a contract for the recovery of money, in case the defendant makes default; and that judgment is that the plaintiff recover of the defendant the amount specified in the summons and costs. The clerk adjudges nothing, can grant no relief, he is merely the hand that enters the judgment of the law.” In the language of Mr. Chief Justice Field, the clerk in entering judgments upon default, acts in a mere ministerial capacity; he exercises no judicial functions. The statute authorizes the judgment, and the clerk is only an agent by whom it is written out and placed among the records of the court. He must therefore conform strictly to the provisions of the statute, or his proceedings will be without any binding force.” (Kelly v. VanAustin, 17 Cal., 564.) The facts stated iit the complaint do not show that the money mentioned in the contracts sued on was made payable in a specified kind of money or currency, and therefore, it was not the judgment of the law that the plaintiff recover the amount in any specified kind of money, and for that reason that portion of the entry of the clerk, specifying the kind of money in which the judgment was to be paid is void.”

The case was remanded, with directions to the court below to amend the judgment.

If the clerk had listened to the admonitions of the law, which is said in the old books to be the perfection of reason, he would hardly have entered up a judgment on so lame a summons as he had manufactured in this case.

An appeal from such a judgment is a novelty in this State, but if the Legislature had the constitutional power to authorize the clerk to enter judgment in vacation, on failure to answer, the defendant could not be deprived of a constitutional right to have any error committed by the clerk reviewed ©n appeal or writ of •error. A default is not a waiver of errors like a confession of judgment.

Under the Code practice, when the defendant is served with a ■defective summons he must move to guash, or, if judgment be rendered on default, to ask the court to set it aside before he appeals or takes a writ of error. This seems to be the general rule.

But an application to the clerk in this case by the appellant to-quash the summons, or set aside the judgment, would have been unavailing, for he had the power to do neither. If it be said that the appellant should have waited until the court met, and moved to set aside the judgment before appealing, it may be answered that the clerk might issue an execution immediately on entering the judgment, and the defendant’s property might be sold before the meeting of the court.

The statute authorizing clerks to enter judgments on default in vacation, having, as decided by this court, been repealed and passed from the statute book, we do not deem it necessary in this case to give any opinion as to its constitutionality, which is a question on which much might be said pro and con.

The judgment entered by the clerk in this case must be reversed, set aside, annulled and held for naught, and the cause remanded to the Circuit Court of Ashley county for such proceedings before the court as the plaintiffs may think proper to take in their complaint.


author: English, Ch. J.:

text:
    Sikes vs. The State.
    1. Criminal Law: Illegal solemnization of marriage between infants.

    It Is no excuse or justification to one who solemnizes a marriage between minors, without the consent of the parent or guardian, that the parties to-the marriage informed him that they were of age; he acts at his peril, and must ascertain the facts.
    2. --. Indictment, requisites of.

    An indictment against a person who solemnizes a marriage between infants, without the consent of the parent or guardian, must allege the existence-of a parent or guardian in this State; hut the omssion to follow the allegation of the age of the parties with the word “ years,” will not vitiate.
    3. ---. Penalty for illegal solemnization of marriage between minors.

    Section 1590, oi Gantt’s Digest, fixes the penalty for solemnizing a marriage-between minors without the consent of the parent or guardian. -

      APPEAL from Benton Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.
    By appellant.
    In support of demurrer:

      First — The indictment fails to charge that he was a regularly ordained minister of the gospel of any religious denomination authorized to solemnize marriage. Gantt’s Digest, secs. 4178 and 4179; also State v. Willis, 9 Ark, p. 196.

      Second — The indictment omits the word “ years,” in describing the age of the female married. 6 Ark., p. 165. Omits to state that her parents were residents of this State. Gantt’s Digest, 4186.
    The court erred in permitting evidence on any other point than defendant’s authority to perform the ceremony. Gantt’s Digest, sec. 1588; also sec. 4179, acts of 1873, amendment to ch. 109 of Gould.
    Due diligence was exercised, and the minister was not i-esponsible for mistake in ages.
    There was error in instructions regarding the penalty. Gantt’s Digest, sec. 1590.

      Attorney General Hughes for State.
    Cited Gantt’s Digest, secs. 4186, 1588, 1590; 9 Ark., 196 : Smyth v. State, 13 Ark., 696.
   English, Ch. J.:

There were two counts in the indictment in this case.

The first count charged that “the defendant, J. W. Sikes, being a minister of the Gospel, in said county (of Benton), on the 10th day of March, 1875, unlawfully did solemnize a marriage contract between one Hayden Looney and Cora A. Taliaferro. She, the said Cora A. Taliaferro, then and there being a minor over the age of seventeen and under the age of eighteen, without first obtaining the consent of the parents of her the said Cora A. Taliaferro, the parents of her the said Cora A. Taliaferro then and there being residents of the State of Arkansas, against the peace,” etc.

The second count charged that “the said J. W. Sikes, in said county, on the 10th day of March, 1875, he, the said J. W. Sikes, then and there being a minister of the Gospel, unlawfully did perform a marriage ceremony between one Hayden Looney and Cora A. Taliaferro, he, the said Hayden Looney, then and there being a, male person under the age of twenty-one years and over the age of seventeen years, and the said Cora A. Taliaferro then and there being a female over the age of seventeen years and under the age of eighteen years, without first obtaining the consent in person, or in writing, of the parents of them the said Hayden Looney and Cora A. Taliaferro, against the peace,” etc.

The defendant demurred to the indictment “because the facts set forth in it do not constitute a public offense against the laws of the State,” etc.

The court, as stated in the record, overruled the demurrer, holding the indictment to be bad under section 1590, of Gantt’s Digest, as insisted by defendant, but good under section 1588, of the Digest.

The defendant was then tried upon'the plea of not guilty, convicted, fined $100, filed a motion for a new trial, and also a motion in arrest of judgment, which were overruled, and he took a bill of exceptions and appealed.

The only specific objection taken to the first count of the indictment, in the brief filed for appellant, is that the word years is omitted immediately after the word seventeen, and again after the word eighteen. The clause complained of is this: “ She, the said Cora A., etc., then and there being a minor over the age of seventeen and under the age of eighteen.” No doubt but that the clause would have been more accurate, and better composition as well as pleading, if the word years had followed both the words seventeen and eighteen, but the omission was hardly prejudicial to any substantial rights of the appellant on the merits. (Gantt’s Digest, p. 404.) He, his counsel, the court and jury, must all have understood that the omitted word was plainly implied after the words seventeen and eighteen, preceded by the words, as the one was,. “over the age of,” and the other “under the age of.”

The second count in the indictment is bad because it did not ■aver that the parties married by appellant had parents or guardians living in this State. If the parties be of the age to contract marriage, that is, if the male be of the full age of seventeen years, and the female of the full age of fourteen years, and have neither parent nor guardian, living in this State, it is no offense, for a minister, priest, or civil magistrate, to marry them without obtaining the consent of parents or guardian, but if the parents or guardian live in this State, such consent must be obtained in person or in writing.

•The second count alleges that such consent ,was not obtained, but does not aver that the parents were living in the State.

Revised statutes, ch. 94, see. 19, 20, 21; Gould’s Digest, ch. 109, secs. 20, 21, 22; Gantt’s Digest, secs. 4186-87,1590, 1592; State v. Willis, 9 Ark., (4 Eng.) 196.

On the trial, the State proved by C. D. Taliaferro that he was the father of Cora A.; that she was over the age of seventeen and under the age of eighteen years at the time of her marriage with Hayden Looney; that he had never given his consent, either in person or in writing, to the marriage, and that he resided in Benton county, etc.

Jane Taliaferro testified that she was the mother of Cora A., and that she was, on the 24th day of March, 1875, the time of the marriage, over seventeen and under eighteen years of age, and that witness had never given her consent, either in person or in writing, to the marriage.

The State proved by Mr. and Mrs. Looney that they were married by appellant, in Benton county, on the 14th March, 1875, and that Mr. Looney told appellant that they were on a runaway expedition or match.

The State introduced the marriage certificate given by appellant, in which he certified that he was an ordained minister of the gospel, of the Baptist denomination; that his credentials were recorded in the clerk’s office of Benton county on 1st May, 1866, and that he solemnized the rites of matrimony on the 24th March, 1875, between Playden Looney, age twenty-one years the 1st May, 1875, and Cora A. Taliaferro, age eighteen years the 9th November, 1874, both of Benton county. Dated 25th March, 1875.

Mrs. Looney, on behalf of appellant, testified that in the evening of the 24th of March, 1875, and before the marriage, she told appellant she was eighteen years old on the 9th of March, 1874, and offered to give him a certificate to that effect. Other witnesses testified that she made such statement to appellant.

Hayden Looney also testified that before appellant saw Cora A., he told him twice that she was eighteen years old.

The appellant asked the court to instruct the jury, That if they believed from the evidence that the defendant used proper diligence to ascertain the age of said Cora A. Taliaferro from the parties married before he performed the rites of matrimony between her and said Hayden Looney, they should find him not guilty.”

Which instruction the court refused.

The court, of its own motion, after stating to the jury the material allegations of the indictment, and that it was necessary for the State to prove them, instructed them that “’If the jury find from the evidence, beyond a reasonable doubt, that the defendant solemnized the rites of matrimony between Hayden Looney and Cora A. Taliaferro, in the county of Benton, within one year before the finding of this indictment, that said Cora A. was, at that time, over the age of seventeen and under the age of eighteen years; and that defendant .had not the consent, in person or in writing, of the parents or guardian, living in this State, of said Cora A., it is no excuse or justification of the act that it was without any criminal intention, or that a deception had been practiced upon defendant by a false representation that the said Cora A. was of the age of eighteen years. The violation of the statute is made a crime, regardless of the intention of the parties.”

The court also instructed the jury that if they found the defendant guilty, as charged in the indictment, they would assess his fine at not less than one hundred dollars.

The jury found the appellant guilty, and assessed his fine at one hundred dollars.

The statute, under which the indictment was preferred, provides that: “Persons authorized by this act to solemnize marriage, shall not perform any marriage ceremony of any male over the age of seventeen years and under the age of twenty-one years, nor of any female over the age of fourteen years and under the age of eighteen years, without the consent’, in person or in writing, of the parent or guardian of such male or female minor, if they have either parent or guardian living in this State.” Gantt’s Digest, sec. 4186; Gould’s Digest, ch. 109, sec. 20; Revised Statutes, eh. 94, sec. 19.

“If any minister, civil officer, or priest shall marry any minor without the consent of parent or guardian, as prescribed by law [this act in the original], such person so offending shall be deemed guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than twenty-five nor more than five hundred dollars.” Gantt’s Dig., sec. 1590; Gould’s Dig., ch. 109, sec. 22; Rev. Stat., ch. 94, sec. 21.

The statute makes it the duty of the civil magistrate, minister or priest, previous to solemnizing any marriage, to ascertain the given or Christian names and family names of the persons applying to be married; also, their respective ages and residences, etc. Gantt’s Dig., sec. 4183.

In The State v. Willis, 9 Ark., 198, Mr. Justice Scott said: “If the parents of the minor resided in the State, the defendant was bound, at his peril, to ascertain and know who they were, and that their consent had been obtained before he solemnized the marriage.”

In Smyth v. State, 13 Ark., 699, Chief Justice Watkins, after quoting the above provisions of the statute, said : “The policy of the statute is to be upheld upon many grave considerations. Experience has demonstrated the necessity of fixing some period of lawful age, when the mino*” is to become emancipated from the duty of obedience to parental authority, and qualified to assume the responsibilities of life. Marriage by persons of immature age, are not only against public policy, because in violation of a physical law of our nature, but, because they are liable to be rashly and inconsiderately contracted, and are often disastrous in their consequences. The law, which esteems marriage as the most solemn, the most binding, and important of all contracts, does not punish the parties to it, if within the ages prescribed by the 20th section (of the marriage act) by avoiding the contract, but its policy is to discourage such marriages, and to punish those who engage in celebrating them without the consent of the parent or guardian. * * * * The minister or magistrate performing the ceremony, does sq at his peril, and he must assure himself that the consent of the parents or guardian, in one or the other modes, is in fact given. He cannot justify or excuse his agency in the violation of the law, by showing that it was without any criminal intent on his part, or by reason of a deception practiced upon him, as, for instance, it had been falsely represented that the minor was of age.”

■ The court below properly refused the instruction moved by appellant, because it asserts, in effect, that he exercised proper diligence to ascertain the age of the female minor by inquiry of the parties applying to be married, and was excusable in acting on their representations.

It seems, from the evidence, that he was informed by the parties that they were on a runaway match, which indicated that they were acting in disobedience to parental authority, and should have admonished him to extend his inquiry as to their ages beyond their own statements.

The instructions given by the court, of its own motion, on this point, was in harmony with the decisions above cited, made under the provisions of the statute applicable to this case.

A public offense is any act or omission for which the law has prescribed a punishment, (Gantt’s Digest, p. 325) and an intention to commit an offense may be imputed to the actor from criminal negligence; at least he is answerable in many instances for such negligence. Our law treats marriage as a civil contract, and the applicant, in undertaking to perform a marriage ceremony, was acting, not strictly as a minister of the gospel, but as a minister of the law, or quasi officer, for he derived his authority from the statute to perform the ceremony, and he was obliged not only to know the requirements of the law, but to conform to them carefully and without negligence. The jury had the right, however, to take into consideration, when they came to fix the measure of punishment to fee inflicted upon him, the fact that he may not have wilfully violated the law, but negligently confided in the representation of the parties applying to him to unite them in marriage, that the female had arrived at an age when she could legally disregard the will of her parents. And the statute applicable to cases like this allows the jury a large discretion, for they may fix the fine at not less than $25 nor more than $500.

But the court below charged the jury that if they found the appellant guilty they must assess his fine at not less than one hundred dollars, thereby limiting the discretion of the jury to mitigate appellant’s punishment by a larger amount than that fixed by the statute applicable to the case; and they rendered their verdict for a fine of one hundred dollars, when possibly they might have fixed it at a less sum, on the facts proven, if they had been correctly instructed.

The court applied to the case section 1588 Gantt’s Digest, which is part of section 3 of the act of January 21, 1873, (acts of 1873, p. 3,) and which was substituted for section 12, ch. 109, Gould’s Digest, p. 761,. and prescribes the penalty for the failure of a minister of the gospel or priest to have his credentials recorded before solemnizing the rites of matrimony, etc.

The previous digesters placed the various sections prescribing penalties for violations of the marriage act in their proper connections under the title “marriages,” but Mr. Gantt deemed it a better classification to bring all the penal sections together in an article under the general head of Criminal Law, (p. 378), and hence they are not so readily applied, without liability to mistake, as when in their original places. The' penal section applicable to this case, as above indicated, is section 1590 Gantt’s Digest.

The verdict being general was good, though one count in the indictment was bad (Brown v. State, 10 Ark., 618), and hence the court below did not err in overruling the motion in arrest of judgment. But for the error of the court in the charge to the jury in relation to the penalty, as above indicated, a new trial ‘should have been awarded.

The judgment must be reversed, and the case remanded, with instructions to the court to sustain the demurrer to the second count of the indictment, and grant the appellant a new trial on the first count.