author: Harrison, J.:

text:
    Cole vs. White County.
    1. Appeal: By County, etc.

    Prior to the adoption of the Constitution of 1874, an appeal was not authorized by or on behalf of a county, from an order or judgment of the County Court, allowing a claim against the county.
    2. Pees fob official sebvioe:
    Where the compensation of an officer is regulated by fees, he can only demand such as are authorized by law, he cannot charge for a particular service, for which no special fee is provided, unless there is a general provision of law 'covering all services not specially provided for; such a general provision would not embrace services for the State or a county, unless they are expressly named, or necessarily implied.

      3. Statutes: When the State or County is affected by.

    A general statute, declaring or affecting rights and interests, does not include the State, unless it be included expressly or by necessary implication; and counties being but political sub-divisions of the State are-within the same rule.

      4. County Clerk’s Fees:
    The fee of 10 cents, allowed in the table of fees of the clerk, for filing every paper not therein specified, relates to personal matters of individuals, aud' not of the county. Such services as are incidentally rendered the county in discharge of the officer’s general duties, is contemplated in the compensation allowed him for such public services as are paid for. and the-fees paid by individuals.
    5. Same.

    The per diem allowed the County Clerk as a mem ber of the Board of Equalization, is intended as compensation for all service rendered the county in that capacity.
    6. Same.

    The law did not require the County Clerk • to issue the summonses for-grand and petit jurors and justices of the peace, to attend the County Court, nor to turnish the Auditor a copy of the delinquent list or record: the same, and he was not entitled to compensation tor such service.
    7. Allowances to County Clerk for expenses of his office.

    It is the duty of the sheriff to furnish fuel for the county, and the County Clerk is not entitled to an allowance for fuel for his office. He is entitled1 to an allowance for postage stamps, as stationery.
    8. Appeal: When error will not be corrected in.

    A valid item in a claim presented by a County Clerk, was rejected by the-court below, from which he appealed. It appearing that a larger item in the same claim was improperly allowed, the ruling will not be. reversed.
    APPEAL from tbe Circuit Court of White County.
    Hon. John 'Whytock, Circuit Judge. •

      Kimball, for appellant.

      Coody, contra.

   Harrison, J.:

Tbe appellant, John A. Cole, presented to the County Court of White County, for allowance, nine several claims for services and expenditures by him as clerk of said county, as follows :

CLAIM ONE.

For furnishing county assessor abstract of real estate in the assessment of 1872...............$100 00

For keeping abstracts of county warrants issued, 100 00

For services rendered in keeping county audit four years and six months........................ 250 00

For filing 835 county warrants..................... 83 50

$533 50

CLAIM TWO.

For 1911 indexings to records of deeds, J., len cents each............................................$191 10-

CLAIM- THREE.

For filing 302 county warrants at ten cents each...................................................$ 30 20-

CLAIM FOUR.

For entering 1537 orders of County Board of Equalization, twenty-five cents..................$384 00 '

For indexing same, ten cents each............... 153 70-

For 4200 filings of schedules of personal assessments 1872, ten cents each....................... 420 00

For sixteen summons for grand jurors........... 16 00-

For sixteen copies of same.......................... 4 00

For six summons alternate grand jurors......... 6 00

For six copies of same, twenty-five cents each, 1 50-

For twenty-four summons petit jurors........... 24 00-

For six summons for alternates.................... 6 00

For copies of summons for petit jurors........... 7 50<

$1022 70-

CLAIM FIVE.

To summoning nineteen justices of the peace to organize County Court — January, 1871...$ 9 00-

CLAIM SIX.

For copy of Delinquent List of Real Estate to

Auditor for 1870-71, at ten cents per tract...$ 65 60

For a copy of Delinquent List of Real Estate, , 1870-71, entered, on record at ten cents per tract................................................... 65 60

For fifteen days services making settlement with collector of taxes, 1871..................... 100 00

. $231 20

CLAIM SEVEN.

For amount paid for cutting wood for office...! 1 65

For amount paid for postage stamps.............. 3 30

For amount paid for same.......................... 4 95

For filing and canceling 668 county warrants.. 66 80

For qualifying fourteen school trustees........... 3 50

For twenty-two filings, reports and oaths of office of county school trustees.................. 2 20

For two loads wood for office....................... 4 40

For five loads of same............................... 11 00

For postage stamps for office....................... 4 90

For fifty-two orders — Circuit Court Criminal Record, April Term, 1869, twenty-five cents each................................................... 13 00

For thirty-five opening and closing and other orders on Circuit Court Equity Record, April, 1869, fifty cents each.............................. 17 50

For thirty orders on Common Law Record Circuit Court, November Term, 1869, twenty-five cents each........................... 7 50

For twenty three Circuit Court Equity Record from April 8th, 1868, to January 20th, 1869, fifty cents each...................................... 11 50

For 106 opening and closing orders on Probate Court Record, from January 10th, 1868, to January 31st, 1869j fifteen cents each......... 15 90

$168 10

CLAIM EIGHT.

Eor 1648 indexings to Marriage Record, ten cents each............................................$160 80

Eor 1648 reversed indexings to same............ 160 80

Making general index of official bonds......... 20 00

$341 60

CLAIM NINE.

This claim consists of more than a hundred items, amounting in the aggregate to $2,164.72, but is credited, thus: By allowances on general account - made at former terms, $1350.” Balance claimed, $814.72. Erom the view we take of it, hereinafter stated, it is unnecessary to set it out more particularly.

The court allowed the whole of claims, one, two, eight , and nine; the third item, and thirteen dollars of each of the other charges in claim six; the first to the third, and the fifth to the thirteenth items inclusive, and rejected all the others of claim seven; allowed $180 for the first and second items, and the third entirely of claim eight; and refused to allow, either in whole or in part, claims three, four and five. Although the court allowed the whole of nine, it ordered that no warrant should be issued until Cole should pay into the county treasury $1878.79, that he had drawn for the county from the State Treasury, and retained in his hands.

Cole appealed to the Circuit Court in the cases of claims three, four, five, six, seven and also nine; and it appears the county, by her attorney, in the cases of claims one, two and eight.

In the Circuit Court the cases were severally tried by the court sitting as a jury — and in claim one, Cole recovered 10 cents, only, — for filing the county warrants; on claim two, $48; on claim three, 10 cents; on claim four, $6, for summonses for alternate grand jury; on claim six, $26.10 — $26 for the first two items, and 10 cents for the third; on seven, $66.65, for wood furnished the office, cutting the same, and for the orders on the several courts’ records, except the Probate, as charged; and on eight, $200 — $180 for the indexes to the Marriage Record, and $20, as charged, for the index to the record of official bonds. In the cases of claims five and nine, the judgments were for the county.

Cole appealed in all cases to this court.

The cases were determined in the County Court, and the appeal taken to the Circuit Court before the adoption of the present Constitution; until which time the law made no provision for an appeal, by or in behalf of the county, from an order or judgment of the County Court, allowing a claim against the county. Chicot County v. Tilghman, 26 Ark., 461; Austin v. Crawford County, 30 Ark., 578. The Circuit Court, -therefore, acquired no jurisdiction in the cases of claims one, two and eight, by the appeals attempted in behalf of the county by her attorney, and those cases are not properly before us for review.

All the cases having been submitted as one, we will consider the others together.

It is an established rule of law, that where the compensation of an officer is regulated by fees, he can only demand such fees as are fixed and authorized for the performance of his official duties, and he cannot charge for a particular service for which no special fee is given, unless its payment is allowed by some general provision, likeithat of sec. 2894, Gantt’s Digest, that in all cases where any officer or other person is required to perform any duty for which no fees are allowed by any law, he shall be entitled to receive such pay as would be allowed for similar services. Crittenden County v. Crump, 25 Ark., 235; Debott v. Trustees, etc., 7 Ohio St., 237; Baker v. Utica, 19 N. Y., 326; Bicknell v. Amador County, 30 Cal., 237; Town of Carlyle v. Sharp, 51 Ill., 71; Rawley v. Commissioners of Vego County, 2 Blackf., 355.

Such general provision, however, does not embrace services required to be performed for the State or county; for it is also another well settled rule, that in the construction of statutes declaring or affecting rights and interests, general words do not include the State or affect its rights, unless it be especially named, or it be clear by necessary implication, that the State was intended to be included. Sedg. on Con. and Stat. Law, 337; 1 Black. Com., 261; 1 Kent Com., 460 ; Josselyh v. Stone, 28 Miss. 753; United States v. Hoar, 2 Mason, 311; People v. Rossiter, 4 Con., 143.

Counties are civil divisions of the State for political and and judicial purposes, and are its auxiliaries and instrumentalities in the administration of its government. 1 Black Com., 113; 2 Kent. Com., 274 ; Boone County v. Keck, 31 Ark., 387; United States v. Railroad Company, 17 Wall., 322; Ward v. County of Hartford, 12 Cown., 404; Commissioners of Hamilton County v Mighels, 7 Ohio St., 109 ; Granger and Wife v. Pulaski County, 26 Ark., 37; English v. Oliver, 28 Ark., 317; Knowlton v. Supervisors of Rock County, 9 Wis., 410; Burnham v. City of Fond du Lac., 15 Wis., 193; Hawthorne v. City of St. Louis, 11 Mo., 59; Mayor of Mobile v. Rowland & Co., 26 Ala., 498 ; Erie v. Knapp, 29 Penn. St., 173; Baltimore v. Root, 8 Md., 94.

The Supreme Court'of the United States in the case of United States v. Railroad Company, says: A municipal corporation like the City of Baltimore is a representative, not only of the State, but is a portion of its governmental, power. It is one of its creatures made for a specific purpose to exercise within a limited sphere, the powers of the State.”

In the case of Commissioners of Hamilton County v. Mighels, the Supreme Court of Ohio, say : A county organization, is created almost exclusively with a view to the policy of the State at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. "With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the State, and are in fact, but a branch of the general administration of that policy.” And this court in Granger and Wife v. Pulaski County, say : Counties are political divisions of the State government, organized as a part and parcel of its machinery, * * * Their functions are wholly of a public nature, and this creates a matter of public convenience and governmental necessity.”

It follows then, that counties which are component and essential parts of the State, and the necessary agencies of its government, embodiments of the public, are no more embraced in the general words of the statute, than the State itself.

No question like the one before the court can hereafter arise, as'sec. 604, Gantt’s Digest expressly prohibits the County Court from “ auditing and allowing to any officer any fee or allowance, not specially allowed such officer by law; ” but the services for which compensation is here claimed, were all performed before that prohibition was enacted.

In the table of fees of the clerk, especially as clerk of the County Court, he is allowed 10 cents for filing every paper not therein specified. Sec. 2839, Gantt’s Digest. The papers there meant, are such as relate to the personal matters of individuals, who must pay for filing them. And this remark disposes of the charges in claims three, four and seven, for filing canceled warrants, schedules and personal assessments — and reports and oaths of county school trustees.

The orders on the several .county records, charged for in claim seven, were, it seems, such as were incidental to the business of courts, and requisite to a complete history and record of their proceedings, and not separable to any particular action or proceeding. The remuneration for such services as are incidentally rendered the county in the discharge of the officer’s general duties, for which no fee is allowed, is had in the compensation he receives for such public services as are specially paid for, and in the fees paid by individuals in their personal matters, which the legislature has intended to be sufficiently liberal to be an equivalent for all the duties required of him. Irwin v. Commissioners, etc., 1 Serg. & Rawle, 505; Tarpen v. Board of Commissioners, 7 Ind., 172.

The charges in claim four, for entering and indexing the orders of the County Board of Equalization, have not even such semblance of right as for services for which compensation has not been specially provided. The clerk was a member of the board and its clerk, and received $5 per day for the time he served as such. Revenue act of March 25, 1871, sec. 187.

No such service as issuing summons for grand and petit jurors and their alternates was required of the clerk. He was required only to furnish the sheriff with copies of the lists of the jurors and their alternates, that had been selected, and he summoned them without other process. Gantt’s Digest, sees. 3677, 3678.

A similar unauthorized and idle act, was the issuing of summonses for the justices of the peace to attend and hold the County Court, charged for in claim five. The law fixes the times at which the County Court is to be held, of which the justices take notice and attend, without being summoned or called together by the clerk. Nor did the law require him to furnish the Aixditor a copy of the Delinquent List of Real Estate, or to record the same. The revenue act of March 25th, 1871, sec. 104, required him to record the sales of lands for taxes, and to forward to the auditor by the collector, at the time he made his annual settlement, a certified copy of the list of lands sold to the State, and upon which no taxes had been collected. See sec. 5192, Gantt’s Digest.

According to sec. 184, of the Revenue Act of 1871, the clerk was entitled to $5 for each day he was employed in making settlement with the collector. Cole swears he was engaged fifteen days, which was all the evidence as to the time he was employed. The court below allowed him only 10 cents, for his settlement with the collector, and $26.10 on claim six, where he should have been allowed $75, for making settlement with the collector; but nothing for furnishing the auditor with the Delinquent List of Real Estate, and recording the same.

The clei'k is doubtless entitled to a fee for adminstering the oath of office to a school trustee, but the trustee, and not the county should pay it.

It is the duty of the sheriff to furnish .fuel for the courts, and of the clerk, all blank-books and stationery — the accounts for which must be audited and adjusted by the court for which the same is furnished, secs. 1172, 1173, Gantt’s Digest. Cole was not, therefore, entitled to charge the county for wood, and cutting the same for his office. Though it may have been used, when no court was in session, yet it was the duty of the sheriff to furnish it for the office, and have the account for it audited and allowed by the County Court. Postage stamps are often necessary in the discharge of the duties of the clerk’s office, and may properly be considered as stationery, and Cole swears he used the amount charged in the business of his office, and the County Court allowed therefor. We think it a valid charge against the county; yet, as we have seen, the appellant was allowed charges not legally such against the county in the same claim, exceeding in amount what he was entitled to for the postage stamps. The error in the judgment, in the case of claim seven, is not one of which he may complain.

Although the County Court allowed the whole of claim nine, and the sole ground of Cole’s appeal to the Circuit Court, evidently, was the order, withholding the warrant until he paid into the county treasury, the moneys of the county in his hands, the case stood in that court for trial de novo.

The form in which the claim was before the County Court, and went into the Circuit Court, would seem to show, that the balance stated $814.72, was the matter in controversy, ráther than the particular charges; and the finding of the court being general, without any reference to particular items, leads to the conclusion, that on the trial, it considered the $1350, previously allowed by the County Court, covered the full amount due on the account. There was nothing in the case to show which particular items, the allowance of the $1350 was intended to apply, nor in the finding of the court, what items it considered were improperly charged, to make up the balance of $814.72. The only evidence in the case was the deposition of Cole,— that he rendered the services charged for; and that the claim was correct and justly due.

In looking into the claim, we find, that most of the charges are for such services as those we have shown, the law allows no fees for, and costs in State cases, which did not appear to have been adjusted and certified by the Circuit Court, as required by sec. 2017, Gantt’s Digest; and there was the erroneous charge of $1000, for making out the tax books of real and personal property, in 1872. The Circuit Court did not err in its finding and judgment in this case.

The judgment of the court below, in each of the cases of claims three, four, five, seven and nine, is affirmed, its judgment in the case of claim six, for the error we have indicated is reversed and the cause remanded for a new trial; and its judgment in each of the cases of claims one, two and eight, is reversed, and the causes are remanded, with instructions to dismiss the appeals.


source: Caselaw Access Project

license: Public Domain

text:
    Key vs. Fielding.
    1. Collateral Security: Authority of holder.

    The assignee ol a note held as collateral security for a dobt due from the assignor, has no power to deal with it, except to accomplish the purpose for which he holds it. He cannot bind the assignor by a contract with the maker for forbearance.
    2. Consideration:
    His ability to perform such contract is dependant upon the will of the assignor, who may pay his debt and take back the collateral at any time, and, therefore, a promise of the maker to pay a larger interest, in consideration of such forbearance, is without consideration and not binding upon,him.
    3. Solder of Collatei'al Security a Trustee.

    Such assignee is a trustee for his assignor, and all profit, benefit, or advantage, made by him, by his dealing with the note, belongs to the assignor, and not to himself, and must be applied to the satisfaction of the assign- or’s debt, and the excess, if any, paid to the assignor.
    APPEAL from White Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Coody & MoBae, for appellant. ■

      J: M. Moore, contra.

   Harrison, J.:

This was an action by Plenry R. Fielding against James T. Key, on a promissory note, made by the latter to William C. Petty, for $700, payable January 1st, 1873, drawing ten per cent, interest from maturity, and which was assigned to the plaintiff before maturity; and the complaint averred that, after the note fell due, the defendant agreed with the plaintiff to pay him, in consideration of forbearance to sue on the note for three months from its maturity, interest thereon at the rate of three per cent, per month until paid, which agreement was endorsed on the note, and signed by the defendant, and that the plaintiff did forbear to sue for that time; and demanded with the principal, interest according to the tenor of said agreement.

The defendant in his answer alleged, that the note was assigned to the plaintiff, as collateral security for the debt that Petty owed him, and that since the arrangement, Petty had died, and his administrator had paid the plaintiff the debt, and taken back the note; and that the defendant had thereafter paid the same to the said administrator.

The case was tried by the court sitting as a jury, upon the following agreed statement of facts; Petty, before the note fell due, assigned it to the plaintiff as a collateral security for a debt of $850. After it became due, the defendent agreed with the plaintiff to pay interest on it, at the rate of three per cent, per month, from maturity until paid, in consideration, that he would forbear to sue for three months from the time of its maturity; which agreement was endorsed on the note, and was signed by the defendant; and that the plaintiff did forbear to sue for the time agreed on. That after the suit was commenced, (on the 10th day of January, 1874), the administrator of Petty, paid the plaintiff the debt for which the note had been assigned to him, as a collateral security, and it was delivered back to him, and the defendant then paid the administrator the note and took it up; and he afterwards tendered the plaintiff the costs in the suit, which the plaintiff refused to receive.

The court made the following declaration, which was excepted to by the defendant:

The agreement between the plaintiff and the defendant, was upon a valid consideration; and it is an independent contract, in no manner affected by the terms of the note, or the relation of the plaintiff to Petty — the payer thereof, or his administrator, and the plaintiff is entitled to recover interest on the principal of the note, -at the rate specified in the said agreement, from the maturity of the note up to the time of the payment of the debt to the plaintiff by Petty’s administrator, and at six per cent, thereafter; ” and thereupon found for the plaintiff $282.24.

The defendant moved for a new trial, on the grounds, that the declaration of the court was contrary to law, and its finding against the evidence. The motion was overruled, and he appealed.

The note being assigned to the plaintiff merely as a collateral security, he bad no power to deal with it, except in the accomplishment of the purpose for which he held it. The relation between the assignor and himself being analogous to that of principal and agent, and as the assignor might at any time pay the debt for which it was held as security, the plaintiff could not bind him by a contract with the defendant for forbearance. Inasmuch, therefore, as the plaintiff’s ability to perform on his part, the agreement with the defendant, depended upon the will of the assignor, who was in no wise bound, whether he would sooner pay the debt or not, and he had no authority from him to make such agreement, the promise of the defendant to pay the increased interest, was without consideration, and not obligatory upon him.

Again, a trustee, and such was the plaintiff, can make no profit to himself, by dealing with the trust property, and the cestui que trust, is entitled to whatever benefit or advantage, he makes by speculating with it in his own name. Perry on Trusts, secs. 128, 196, 428-432; Hill on Trustees, 534.

The interest stipulated for, in the agreement between the' plaintiff and the defendant, if the same had been collected before the plaintiff’s debt on Petty was paid, must have been applied towards the satisfaction of that debt, and if the proceeds of the-note including such interest were more than sufficient to pay the debt, the surplus would have belonged to Petty, or his estate, and not to the plaintiff. The fact that the debt was not paid with the note, could not, certainly, make any possible difference.

The court erred in its declaration of law, and its finding was clearly unsupported by the evidence, and the defendant’s motion for a new trial ought to have been sustained.

The judgment is reversed, and the cause remanded, with instructions to grant the defendant a new trial, and to proceed according to law.


author: English, Ch. J.:

text:
    White vs. Chaffin.
    1. Contract: Construction of.

    A promise to pay for property purchased, “out of the proceeds of tLe first cotton ginned,” is evidence conducing to show the time of payment, but does not prove, or tend to prove, that the seller of the property is to look for his pay, alone to the profits made in ginning that season.
    2. Instruction : When party not prejudiced by.

    A party is not prejudiced by the court’s refusal of his instruction, if the jury finds as asked by the instruction.
    3. Mechanic’s Lien: Machinery.

    No statute, prior to that of 25th April, 1S73, gave any lien for machinery placed in a building, or otherwise, on land. That act made important changes and enlargements of the lien law.
    4. --: Limitation, etc.

    The account for which the lien is claimed, must be filed within ninety days from the time the machinery is placed upon the premises, to be charged with the lien.

      5. -:. Construction of Statute.

    It is immaterial whether the building for which the machinery is purchased, is being erected, or already completed, at the time of the purchase — tho lien attaches alike in both cases.
    6. --: Judgment under, who affected by.

    If the owner of the land, at the time the machinery is placed upon it, is not a party to the proceeding for the enforcement of the lien, the judgment against, and sale of the lands, will not effect his title.
    7. --: From what time it dates.

    When the lien is fixed by filing the account in the clerk’s office, it relates to the time when the machinery was placed upon the premises, and is superior to intervening incumbrances or conveyances.
    8. --: What interest subject to.

    A less interest than the fee, may be subject to the mechanics’ lien.
    9. --: Extent of.

    The mechanics’ lien is limited to two acres, and a judgment condemning more than two acres is erroneous.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Bell and. F. J. Wise, for appellant.
   English, Ch. J.:

On tbe 26th, April, 1873, Edward H. Chaffin filed a complaint against David C. White, in the Circuit Court of Jefferson County, alleging in substance:

That on the 24th of October, 1875, plaintiff sold and delivered to defendant, at his special instance and request, two fifty-saw gin stands, of the value of $200 each, and one extra idler of the value of $3, (articles and value set forth in bill of particulars-filed, etc.) as part of the machinery of the defendant’s gin house, on the premises hereinafter mentioned; and by agreement, plaintiff set.up in running order said gin stands and idler in said gin house on said land, etc. That plaintiff so set up and put in running order said gin stands and idler according to such agreement on the 28th day of October, 1875, and the same then became a part and parcel of the machinery, and fixtures in said gin house on said land, and so remained.

That said machinery and fixtures were placed in, and set in running order, in the gin house, on the south-west quarter of the south-west quarter of the north-east quarter of section twenty-one, town four south, range nine west, in Jefferson County, etc., which was the property of defendant at the time of such sale and until and after the filing of the lien hereinafter mentioned.

That on the 22d day of January, 1876, and within ninety days after the performance of said contract, plaintiff duly filed with the clerk of the Circuit Court of the said county, a just and true accouut of the demand aforesaid due him, with a correct description of the property to be charged with his lien, verified by his affidavit, and had the same entered, on the judgment docket for the purpose of establishing his lien, all as the law requires: a copy made an exhibit, the original remaining on file in the clerk’s office, etc.

That by the terms of said contract and sale, said sum of $403 became due and payable on the 1st of November, 1875, but though demanded of defendant, he has not paid the same, or any part thereof.

Prayer for judgment, directing a sale of the interest of defendant in said premises, or such portion as provided by law, with the buildings and appurtenances above described, and that the proceeds of sale be applied to the payment of the costs of the suit, and the plaintiff’s claim, etc.

The defendant demurred to the complaint, on the grounds:

First — That it did not show that plaintiff filed a just and true account of his demand, with the clerk of the Circuit Court, within the time prescribed by law.

Second — That it did not state facts sufficient to constitute a cause of action under the amended mechanic’s lien law.

The demurrer was overruled, and the defendant filed an answer in substance as follows:

. That he purchased the said two gin stands on the 25th day of October, 1875, on a credit, payable out of the cotton crop that year, and the same were delivered to him on that day.

That said gin stands and idler were not placed and erected in said gin house and saw mill by plaintiff, or any one for him, but on the contrary were delivered to defendant, or his agent, in Pine Bluff, and the said machinery was not placed, set up, and put in running order by the plaintiff, on the 28th’ day of October, or on any other day.

That defendant is not the owner of the land described in the complaint, but the same was purchased on the 29th day of December, 1875, by Mary P. White, wife of defendant, and Bichard S. and Joel B. White, their children, under the age of eighteen years, who then became invested with the title.

That said schedule was not filed in the clerk’s office, within the time prescribed by law.

That the purchase and delivery of said machinery, was long after the erection and completion of said gin house, and was a separate and independent contract, on credit payable at no specified time.

On the trial, the plaintiff testified, that he was the builder and manufacturer of what is known -as the “ Chaffin Gin,” and his factory was in the City of Pine Bluff. That he manufactured at the instance and request of defendant, to be placed in his gin house, on the land mentioned in the complaint, two fifty-saw gins, one right and the other left handed, at $4 per saw, and delivered the same to him on the 24th day of October, 1875, in the City of Pine Bluff; also sold the idler mentioned in the account, and delivered it to the defendant about two months prior to the 24th day of October, 1875. That he did not erect and place the gin stands in position in the gin house of the defendant, but that he had spoken to one Foster to do the work for him,. and he promised to do it. He had never paid Foster anything for erecting and placing the gin stands in order in the gin house of defendant, and had never been on the land described in the complaint himself. That the account sued on was correct.

The son of plaintiff testified, that his father sold the gin stands at the price mentioned, and delivered them to defendant in Pine Bluff, but he knew nothing of the arrangement for their erection in the gin house of defendant, nor did he know who placed them in order.

Plaintiff read in evidence the account filed in the clerk’s office, which appears to have been filed, and entered on the judgment docket, 22d January, 1876. ■

The defendant testified, that he purchased the gin stands and idler mentioned in the account of plaintiff ; that he purchased the gin stands on the 23d October, 1875, which was Saturday, for the price mentioned; that he contracted for the gin stands sometime before, and they were delivered to him on the 23d of October, 1875; that he purchased the idler for his saw mill, some two months prior to that time; that he was to pay for the gin stands out of the proceeds of the first cotton ginned; that he was unable to do so, on account of attachment suits on his crops, though the attachment suits did affect the cotton ginned on said gins, except that he was driven to expense and costs in defending the suits; that he ginned during the season about two. hundred bales of cotton, on said gins, at about $4 per bale; that the gin stands were delivered to him in Pine Bluff, on Saturday, the 23d of October, 1875, without reference to any building in which they were to be placed; that being a mechanic himself, he and E. Foster erected and placed the gin stands in position; that Foster was in his employ at that time, and he paid for the erection of the gin stands; when he purchased the gin stands, nothing was said about placing them in position; he never heard anything about plaintiff employing Foster to erect the gin stands; Foster was in his employ during that year. The gin stands were not delivered on the 24th, but on the 23d of October, as above stated. He did not own the land, but bought the gin stands on his own account.

E. Foster testified, that he was in Pine Bluff when the cotton gins were delivered to defendant, which was on the 23d of Octo*, ber, 1875; that he was a mechanic, and in the employ of defendant for that year, and paid by him. He assisted the defendant in erecting and placing in position the cotton gins in question. Plaintiff never employed him to erect the gin stands, nor was he ever on the place while witness was there. The gin stands had been placed in position when the plaintiff spoke to him about them, the first and only time, at Potterfield’s shop, and then he only inquired if they were in position, and how they worked ; he never did say anything to witness about erecting them.

Henderson testified, that he was in the employ of defendant, and drove his wagon when they came for the gin stands; that they were delivered and placed in defendant’s wagon on the 23d October, 1875, which was Saturday, at McKenny’s shop, in Pine Bluff; that defendant and Foster put them in the gin house, and fixed them up; that plaintiff had nothing to do in putting them up; that witness helped Foster most of the time.

Plaintiff, recalled, testified that he was not certain that the Foster who had testified, was the man he had spoken to about placing the gin stands; that he looked like him.

There is copied in the bill of exceptions, a deed from Wm. P. Grace and wife to Mary P. White, wife of David C. White, Richard S. White and Joe B. White, but by which of the parties it was offered in evidence, or whether it was read in evidence at all, does not appear from the bill of exceptions. It was, perhaps, offered on the-part of the defendant.

The deed bears date December 29th, 1875, and the vendors, in consideration of $1, paid them by Isaac Moone, convey to vendees all their right, title, claim and interest in and to ten acres of land in a square, to be laid off in the southwest corner of the northeast quarter of section twenty-one, town four south., range nine west. .The. defendant moved the court to give to the jury eight instructions, all of which the court gave, except the fourth, fifth, and senventh, which follow:

“Fourth — If the jury believe from the evidence, that the said cotton gins were sold and delivered to the defendant with the understanding, and upon an agreement, that the plaintiff was to look to the profits made in ginning the crop of 1875, for his pay, it was an ordinary sale on credit, ánd a waiver of his lien, and the jury will find for defendant.”

“Fifth — If the jury believe from the evidence, that the extra idler was purchased two months prior to the sale and delivery of the cotton gins, it was wrongfully included in the account filed, and no lien attached as to that.”

“Seventh — If the jury believe from the evidence, that plaintiff sold and delivered to defendant the two gin stands in controversy, and that the sale and delivery was independent of the erection of the building, and had nothing to do with it under the contract, it was a sale beyond the contemplation and meaning of the mechanics’ lien law, and as much so as if it had been a coffee mill or sausage grinder, and the jury will find for the defendant as to the lien.”

The court gave three instructions, moved by the plaintiff, the defendant objected to the first and third.

The plaintiff’s instructions follow :

“First — If the jury believe frqpi the evidence, that the defendant purchased the machinery specified in the complaint, from the plaintiff, and for the price therein stated, and that it was the understanding, that said machinery was to be used in the gin house of which defendant was in possession and proprietor, and that the same, afterwards, became a part of the machinery of such building, and that said machinery has not been paid for, and that the mechanic’s lien herein sought to be enforced, was filed in the clerk’s office, within ninety days from the time the said machinery was set up in said gin house, if set up by or for the plaintiff, they will find for the plaintiff.”

“Second — The ninety days mentioned in the law, as the time in which a mechanic’s lien shall be filed, in cases of machinery furnished for any building, means ninety days from the time such machinery is set up in such building, or on the land upon which the lien is claimed.”

“Third — Where a certain number of days is required to intervene between two acts, the day of one of the acts only can be counted.”

The jury returned the following verdict:

“We, the jury, find for the plaintiff, with lien on the building and land in complaint for the gin stands, and assess the damages at $400, with interest at the rate of six per cent., from October 24th, 1875, up to this date, and judgment for the idler without any lien, and assess the damages thereupon at $3, with interest at the rate of six per cent., from August 24th, 1875, up to this date.”

The defendant moved for a new trial, on the grounds:

First — Verdict not sustained by evidence.

Second — Contrary to law.

Third — The court erred in refusing to permit defendant to give in evidence, a deed for the land described in the complaint. ^

Fourth — In overruling the fourth, fifth and seventh instructions asked for defendant.

Fifth — In giving the first and third instructions, moved for plaintiff.

The court overruled the motion, and judgment was entered in accordance with the verdict, condemning the gin stands, gin house, and the land, as described in the complaint, to be sold in satisfaction of so much of the demand as was for the value of the gin stands, interest and costs, etc.

The defendant took a bill of exceptions, and appealed to this court.

I. The court did not err in refusing the fourth instruction moved for appellant. There was no evidence that the appellee sold and delivered the cotton gins to appellant, “ with the understanding, and upon agreement, that he was to look to the profits made in ginning the crop of 1875, for his pay.” The appellant testified, that he was to pay for the gin stands, out of the proceeds of the first cotton ginned,-but was unable to do so, on account of attachment suits on his crops, etc.”

This was evidence conducing to show the time of payment, but it did not prove, or tend to prove, that appellee was to look alone to the profits, made in ginning the crop of 1875, for his pay. The suit was not commenced until the 26th of April, 1876, when the usual ginning season for the crop of 1875, was over, and the appellant, by his own admission, failed to pay for the gin stands out of the proceeds of the first cotton ginned, or any other.

II. As the jury found no lien for the item in appellee V account for the idler, appellant was not prejudiced by the refusal of the court to give the fifth instruction moved for him.

III. The seventh instruction assumes it to be law, that if the sale and delivery of the gin stands were independent of, and had nothing to do with the erection of the building, appellee was not entitled to a lien, any more than if he had sold appellant a coffee mill or a sausage grinder.

When, or by whom, the gin house in which the gin stands were placed, was erected, docs not appear from the evidence. Appellee testified, that he manufactured them at the request of appellant, to be placed in his gin house, on the land described in the complaint, and it seems they were placed in the house soon after their delivery. It may, or may not, have been in process of construction, at the time the appellant contracted for the gin-stands.

The mechanic’s lien law, as contained in Gould’s Digest, ch. 112, gave all artisans, builders, and mechanics who performed work and labor on any building, edifice, or tenement for the owner or proprietor, etc., a lien on such building, edifice or tenement for such work and labor, as well as for all material furnished by them in and about such work and labor, and for money paid fop such materials, etc. The lien was also given upon the land on which the building, edifice or tenement was erected, etc. Sec. 1, 19.

No lien was given to a person, other than the artisan, builder, or mechanic, who furnished materials, etc. Duncan v. Bateman, 23 Ark., 327.

By act of 12th April, 1869, the lien was extended in favor "of all persons furnishing materials for aery building, edifice or tenement. Cohen v. Hager, 30 Ark., 28.

But neither the original nor amended statute, gave any lien for machinery placed in a. building, o,r otherwise, on land.

The act of 25th April, 1873, to secure liens to mechanics and others, made important changes and enlargements oí the lien law.

Sec. 1, provides: That every mechanic, builder, artisan, workman, laborer, or other person who shall do or perform any work or labor upon, or furnish any materials, machinery or fixtures for any building, erection, or other improvement upon land, including contractors, sub-contractors, material furnishers, mechanics and laborers, under or by virtue of any contract, ex- ■ press or implied, with the owner or proprietor thereof, or his agent, trustee, contractor or sub-contractor, upon complying with the provisions of this act, shall have for his work or labor done, or materials, machinery or fixtures furnished, a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor on which the same is situated, to secure the payment of such work or labor done, or materials, machinery or fixtures furnished.” Gantt’s Digest, sec. 4056.

The theory, that the mechanics’ lien act is in derogation of the common law, and should, therefore, be construed strictly against those seeking to avail themselves of its benefits, is not supported by the better decisions, which hold that its provisions should be so interpreted as to secure the classes of persons named in the act, on their complying substantially and in good faith with its provisions. Putnam, et al. v. Ross, et al., 46 Mo., 337 ; Oster, et al. v. Rabeneau, Ib., 595.

It would be a narrow construction of the statute, to hold that a person who has a building in process of erection, in which he intends to use machinery, may purchase such machinery on credit upon faith of a lien upon the building and land on which it is located, while one who has a house or shed completed, and ready to receive machinery, cannot make such purchase. The machinery is often more costly, and enhances the value of the estate, more than the building or shelter in, or under which it is placed.

The owner or proprietor of the land, may construct the building or shelter himself, or employ another to do it, and the man who furnishes the machinery may have no connection with the erection of the structure, or he may furnish machinery and it may be placed upon and become attached to the soil, before any shelter is built for it, and why should he not have a lien.

If appellee had furnished appellant with an 'ordinary sausage grinder or coffee mill, such as are used in families, he would probably have put it in his kitchen, and not in his gin house, but whether put in one or the other, there would be no lien upon the building and land for the price of it, because not machinery within the manifest meaning of the statute.

But, if a man has fitted up a house for grinding sausage meat, or parching and grinding coffee, in large quantities for market, and desires a mill and steam engine for such purpose, there is no good reason why a person who furnishes such machinery should not have a lien under the statute.

Under a similar statute-of Missouri, it was held in Reilly v. Hudson, et al., 62 Mo., 383, that where a man had furnished and fitted up a cooking range in the basement of a building, so as to make it a fixture, he was entitled to a lien, though the building had been erected four or five years before the range was fitted up in it.

So a boiler in a brew-house, is a fixture, and subject to the mechanic’s lien. Gay v. Holdship, 17 Serg. & R. (Pa.), 413.

So burr-mill stones, like any other machinery. Wademan v. Thorp, 5 Watts, 115.

So a cotton gin placed by the owner of land in a gin house, and fastened to the floor in any manner, held to be a fixture passing with the land as between vendor and vendee, or mortgagor and mortgagee: Ewell on Fixtures, p. 296, notes and cases cited. Bond v. Cole, 71 North Carolina R., 97; Latham v. Blakely, 70 Ib., 368; McDaniel v. Moody, 3 Stewart (Ala.), 314.

IV. The appellee testified, that he manufactured the gin stands at the request of appellant, and delivered them to him at Pine Bluff, on the 24th of October, 1875.

Appellant testified, that he contracted for them some time before, and they were delivered to him at Pine Bluff, on the 23d of October, and as to the time he is corroborated by the witnesses, Foster and Henderson.

This was a disputed fact to be determined by the jury, on the credibility of the witnesses.

The account was filed in the clerk’s office, on the 22d of January, 1876.

Sec. 5, of act of the 25th April, 1873, provides that: “It shall be the duty of every person, except as has been provided for sub-contractors, who wishes to avail himself of this act, to file with the clerk of the Circuit Court of the county in which the building, erection, or other improvement to be charged with the lien is situated, and within ninety days after all'the things aforesaid shall have been furnished, or the work or labor done or performed, a just and true account of the demand due or owing to him; after allowing all credits, and containing a correct description of the property to be charged yrith said lien, verified by the affidavit.” Gantt’s Digest, sec. 4060.

We think the better rule is, that the account should be filed within ninety days from the time machinery is placed upon the premises to be charged with the lien. Cohen v. Hager, 30 Ark., 29; Hunter, et al. v. Blanchard, 18 Ib., 322; Simmons, Garth & Co. v. Carrier, et al., 60 Mo., 581; Fitzpatrick v. Thomas, 61 Ib., 512; Strigelman, et al. v. McBride, 17 Ib., 301.

The first and second instructions given by the court below, at the instance of the appellee, are in harmony with this rule. To the second, appellant did not object.

It was not necessary, however, for the appellee to prove that he fixed the machinery upon the premises, or that he procured Foster to do it, or paid him for it. There was no charge in the account for placing the gin stands, the value of the machines only was charged. It was sufficient for the appellee to prove that he furnished the machines, and that they were placed upon the premises, and that he filed his account in the clerk’s office within ninety days thereafter. One man may furnish machinery, and the others may do the labor of fitting it up upon the premises. So one man may furnish the lumber for a house, and another may construct the house of the materials so furnished.. Each of them contribute to the improvement, and each may establish a lien upon the premises.

Whether the account was filed in the clerk’s office within ninety days from the time the gin stands were placed upon the premises, was a question of fact to be determined by the jury upon the evidence. The appellee swore that he delivered the gin stands to appellant at Pine Bluff, on the 24th of October, 1875, and the evidence introduced by appellant, proves that they were afterwards fitted up upon the premises. Even if taken to the premises, and placed in the gin house on that day, though bad morals to do such labor on Sunday, yet the account having been filed on the 22d of Jauuary, 1876, was filed within" ninety days from the time the machines were placed upon the premises, omitting the 24th of October, and counting the day of the filing (Gant’s Digest, sec. 5648). The jury seem to have believed the statement of the appellee as to the time of the delivery of the gin stands, for they allowed him interest on the sum charged for them, in the account from the 24th of October.

The complaint alleged that plaintiff set up and put the gin stands in running ordei’, on the premises, on the 28th of October. The answer denied that they were placed, set up, and put in running order on the premises, by plaintiff) on the 28th of October, or any other day. This made an issue, not as to the time when they were so placed upon the premises, but as to the person by whom placed, which, as we have above stated, was. not material.

The appellee and two of his witnesses swore, that the gin stands were delivered to him, at Pine Bluff, on the 23d of October, but they did not swear that they were' taken to, and placed upon the premises on that day.

V. The rule for the computation of time, as given to the jury.by the court on the third instruction moved for appellee, and objected to by appellant, is that prescribed by the statute. Gantt’s Digest, sec. 5648.

VI. It is stated in the motion for a new trial, that the court excluded from the jury, a deed offered in evidence by appellant. This, perhaps, refers to the deed from Grace and wife to Mrs. White, and her two sons, which is copied in the bill of exceptions, and which we have above mentioned. The bill of exceptions does not state that it was offered in evidence by appellant, and excluded by the court, which it should have done if appelant wished to reserve any question of law ruled by the court in relation to the admissibility of the deed.

Mrs. White, and her sons, were not made defendants to the suit, nor did they interplead for the property, and if they in fact owned the land at the time the machinery was placed upon it, the judgment or sale of the land under it, will not effect their title. Gantt’s Digest, secs. 4063-4-5-8.

But if they had interpleaded for the property, and had read in evidence the deed from Grace and wife to them, it would have availed them nothing, because it bore date on the 29th December, 1875, which -was after the machinery furnished by appellee was placed upon the premises; and when his lien was fixed by filing his account in the clerk’s office, it related back to the time when the machinery was placed upon the premises, and was superior to intervening incumbrandes or conveyances. Xb., secs. 4062-3.

On the trial, appellant stated in general terms, that he did not own the land; but it appears from the evidence, that he had a gin house and mill on it, and purchased machinery for them. Though he may not have been the owner in fee of the land, yet he may have had an interest in it, which was subject to appellee’s lien. McCullough v. Caldwell, 5 Ark., 238.

VII. The court below erred in condemning the whole tract of ten acres to be sold in satisfaction of the lien debt. The statute limits the extent of the lien to all the right and title of the defendant to the land on which the building, etc., may be erected, as well as to a convenient space around the same, not exceeding two acres clear of the building, etc. Gantt’s Digest, sec. 4068.

So much of the judgment as is in personam for .the whole demand, is affirmed.

So much of the judgment in rem as condemns the quantity of land authorized by the* statute, is affirmed, but so much as is in excess of the statute limit, is reversed, and the cause remanded with instrutions to the court below to so modify its judgment.


text:
    Saleski vs. Boyd.
    1. Appeal:
    No appeal lies from a decree by consent, but the refusal of the court below to open such decree reviewed on appeal.
    2. Attojsmi at Law; IRs authority. When consent decree will be set aside.

    An attorney-at-law, acting- under a general retainer, and without special authority, has no right to compromise his client’s case, and consent to a judgment or decree against him. But the court will not set aside such decree merely for want of special authority from the client, to give such consent, it will examine whether from the facts and circumstances, the attorney might well have consented to it in the exercise of his general authority to stop litigation and expense. If it appear that he consented fraudulently, or by collusion with adverse counsel, or under a mistake, or misapprehension oí law or facts, and his client was seriously prejudiced by it, the court will open the decree.

      APPEAL from Pulaski Chancery Court.
    Hon. J. R. Eakin, Chancellor.

      Dooley, for appellant.

      Watkins, contra.

   English, Ch. J.:

On the 24th of September, 1870, Louis Saleski filed a bill in the Chancery Court of Pulaski County, against Fleetwood H. Boyd, his co-tenant, for a portion of Lot No. 1, in Block No. 1, in the Town of Argenta, and for an account of expenditures, rents and profits, etc.

The bill alleged, in substance, that plaintiff and defendant purchased the lot on joint account, on the 16th day of August, 1866, and obtained a deed therefor. That there was upon the lot, at the time they purchased it, a large, two-story, unfinished building, etc. That of the purchase money, plaintiff advanced $391, also $90 to remove an incumbrance, and had. paid $42.91 taxes upon the property, etc. That defendant had been in possession of the premises ever since they purchased the lot, and had taken the rents and profits, and had not accounted to the plaintiff for any portion thereof, etc.

Boyd filed an answer .and cross-bill 12th May, 1871.

He admits that the lot, on which there was the frame of a two-story building, was purchased on joint account, by him and plaintiff, at the time stated in the bill, and that plaintiff advanced upon the property as alleged in the bill.

Avers that at the time they purchased the property, it was agreed that plaintiff and defendant should share equally in the expense of the purchase, and of the finishing of the building thereon, and in placing other improvements on the lot; and that' they should be equal owners of the property; and that in pursuance of said agreement, defendant proceeded to finish the said building, and to put othc>' improvements on the lot at a great outlay of money, time, etc.

-He avers that he paid $50 in part satisfaction of the same incumbrance (a mechanic’s lien) on which plaintiff advanced $90.

For material, labor etc., to complete the unfinished building on the lot, $1219.

For material and building kitchen and store room, $200.

For material and building stable, fences and gates, $300.

For digging well, etc., $25.

For material and building house on corner of the premises, $400.

For taxes upon the property for 1868, $12.92.

For examination of title and drawing deed for the lot, $15.

Making the total sum claimed to have been expended upon the property by the defendant, $2221.92, while plaintiff claims to have expended before the filing of the bill, $523.91.

Defendant further alleges, that plaintiff was indebted to him as follows:

For board from April 7th to September 7th, 1867, at $30 per month........................$150 00

Loaned money from time to time.................. 45 00

One pair of pants...................................... 4 00

Bar bill.................................................. 33 00

' $232 00

Which sum he prays to be taken into account on final hearing and charged against plaintiff. ■.

Defendant admits that he resided in and used said property, and is willing to pay a reasonable rent therefor; and that he has rented, and does rent, the above mentioned house on the corner of the premises, and is willing to account for all receipts therefor.”

Prayer for an account between the parties, and that he have a lien upon the property for any balance found to be due him, and that it be sold, etc.

On the 18th March, 1872, plaintiff filed a demurrer to so much of defendant’s answer, etc., as sought to charge him with board, money loaned, pants and bar bill, because the same could not be settled in a proceeding for partition, etc.; and the demurrer was sustained 13th of June, 1873.

On the 5th of February, 1872, upon motion-of defendant, the cause was referred to D. P. Upham, then clerk and master of the court, to take and state an account between the parties.

On the 14th of March, 1872, the parties appeared before Up-ham, as master, and took the depositions of four witnesses by consent, and plaintiff filed with the master two receipts for taxes paid by him upon the property, after the commencement of the suit, one for $18.71. for the year 1870, and the other for $4.61, for the year 1871. Upham was removed from office before he made any report in this cause as master, and, it seems, placed the depositions, etc., taken before him among the papers of the case, and they have been copied into the transcript before us. They relate mainly to the defendant’s possession of the premises in controversy, and the value of the rents, etc., and will be noticed again hereafter.

On the 11th February, 1875, the preyicius order referring the cause to Upham, as master, was revoked, and A. R. Witt having become clerk and master of the court, the cause was referred to him to take testimony, and state an account between the parties, and report at the next term.

On the 27th of March, 1875, the parties made an agreement that the depositions of defendant’s witnesses might be taken on that day, and from day to day, at the Chancery Clerk’s office, and that plaintiff be allowed to take depositions, also, at the same time and place.

The master, accordingly, took the depositions of defendant and four witnesses. It does not appear that plaintiff produced any witnesses, or that he or his solicitors attended to cross-examine the defendant’s witnesses. It may be stated, in general terms, that it appears from their depositions, that defendant commenced improving the premises in December, 1866; that he furnished labor and materials and completed the building that was on the lot (a .frame) at the time the parties purchased it, and which 'was designed for a hotel, and contained about twenty-eight rooms; and that he put upon the lot the other improvements described in his answer, and that the charges made in his answer for expenditures upon the premises were reasonable.

The depositions also prove, that defendant was occupying the main building in April, 1867, when plaintiff commenced boarding with him, and continued to occupy, use, and take rents and profits of all the improvements on the lot, until they were destroyed by fire in April, 1869, and that he afterwards continued in possession of the lot to the time the depositions were taken.

Defendant also proved, that plaintiff was indebted to him for board, money, clothing, and bar bill, as charged in his answer.

The master did not inquire of the witnesses, as he should have done in the absence of the plaintiff and his solicitors, as to the value of the rents and profits of the premises.

On the 1st of July, 1875, one of the solicitors of the plaintiff (Mr. Farr) filed a motion to continue the cause. Stating that he had been too much engaged in court to attend to the examination of witnesses before the master, and that plaintiff wished to prove, by absent witnesses, the value of the rents and profits of the premises, of which defendant had been in possession for many years. The court continued the cause, and ordered the master to make his report on the evidence then before him, and to be thereafter taken, before the next term.

On the 2d of December, 1875, the master, without taking any further depositions, made his report. He allowed the plaintiff' all the- charges claimed by him in the bill for moneys expended upon the property, adding thereto the sums named in the twm tax receipts filed by him before Upham, as master, making total . allowance to plaintiff of $547.23.

He allowed defendant all the sums claimed in his answer, to •have been expended upon the property, amounting to $2221.92.

He made no account, he states, of defendant’s private claim against plaintiff for board, etc.

He also stated, that defendant had never accounted to plaintiff for rents and profits, etc., but as there was no definite proof in the evidence adduced by the parties as to that matter, he was unable to make up any further account between them.

At the time the master’s report was filed (December 2, 1875), on motion of plaintiff, the cause was, by order of the court, referred to the master for further proof as to the rents.

On-the 14th of December, 1875, and before the master had made any further report, the following decree was entered:

“Come the parties, by their respective solicitors, and the master’s report heretofore filed herein, is in all things approved and confirmed, and a fee of $25 allowed him and taxed as costs in this suit; and this cause was heard, and by consent the following decree is entered herein ; and it appearing to the court that plaintiff and defendant are joint owners of Lot No. 1, in Block ■ No. 1, in the Town of Argenta, etc.; that they jointly purchased the same for the purpose of erecting a hotel thereon, and at the time of purchase agreed to put in an equal cash capital, in the purchase and improvement of said lot, and to bear equally all expenses of carrying on said business, and share equally in the profits thereof; and it appearing that said plaintiff has advanced and expended the sum of $547.23, toward the purchase and improvement of said lot; and it further appearing to the court, that it is impracticable to divide the said lot, and that the same cannot be partitioned without manifest injury to both parties. It is therefore adjudged, ordered and decreed that said lot, together with all the buildings, appurtenances and improvements thereon, be sold at public auction, etc., by a commissioner, etc., and that said commissioner, after first paying the costs of this suit, and expenses of sale out of the proceeds of sale, shall' pay the residue thereof to plaintiff and defendant as follows, to-wit: 547.Siths to plaintiff, and to defendant, 2221.llths of said residue; and it is further adjudged, ordered and decreed, that if said property shall not sell for enough to reimburse both plaintiff and defendant to the full amount respectively advanced and expended by them in the purchase and improvement of said lot, defendant shall be first reimbursed to the extent of $1675.69, that being the excess expended by him over the amount expended by plaintiff, and the residue to be divided equally between them; and if said property shall sell for less than $1675.69, that the whole of the purchase money, less costs of suit, and expenses of sale, shall be paid to defendant, and that he also have and recover of plaintiff the difference between the sum of $1675.69, excess of amount expended by plaintiff in the purchase and improvement of said lot, and that he have execution therefor as soon as the specified amount can be judicially ascertained on the further hearing of this cause.”

This decree, manifestly gave to defendant the lion’s share. It visited upon plaintiff a larger portion of the loss of the joint adventure than upon defendant, if there should turn out to be a loss upon sale of the lot, left defendant to retain all of the rents of the premises, and at liberty to collect of plaintiff his bill of $232.00, for board, loaned money, pants, etc.., which has been ruled out upon demurrer.

Messrs. Farr & Fletcher, appear to have been the solicitors of the defendant, from the commencement of the suit down to the time of the entering of the decree.

On the 24th of January, 1876, and during the same term at which the decree was entered, the plaintiff, by Mr. Dooley, his solicitor, filed a motion to set aside the decree, supported by his own affidavit and the affidavit of another person.

From the motion and affidavits, it appears that plaintiff was sick in the country, at the time the decree was rendered, and had been sick aiid unable to attend to business from some time in the previous summer. That he had been prevented by sickness from appearing before the master to prove the value of the rents, etc. That defendant was in the possession and use of the main building on the lot, for about two years before it was burned down, and that the rent was of the value of $60 per month, etc. Plaintiff, in his motion and affidavit, claims to have furnished material and labor for the improvements upon the lot, which are not charged in his bill. He also refers to a contract between him and defendant, and to which defendant referred in his deposition before the master, but which is not alleged in the bill nor in the answer, and was properly disregarded by the master in making up his report. The principal, and only possible objection, made to the decree in the motion, is that defendant was not required to account for the rents of the property. There is a general allegation in the motion, that the decree was a fraud upon plaintiff’s rights.

The chancellor overruled the motion, on the ground that it would be bad practice to set aside a decree entered by consent of the counsel in court, in the absence of any showing that counsel consenting to the decree acted with fraud or bad faith to the client. That “if the consent were a mere mistake in judgment, or an act of improvidence, being solemnly made in open court, the opposite party had a right to rely upon it, and the client should be bound.- It becomes a matter then between attorney and client alone,” etc.

The chancellor, after giving his reasons for overruling the motion to set aside the decree, added : “ I observe in the decree a manifest misprision, which of my own account, I will correct for the benefit of the complainant, inasmuch as it is consistent with the consent, and with other parts of the decree to do so. If the sale of the property should fail to make good the whole of the excess of the expenditures made' by defendant as detailed in the decree, he is only entitled to claim of the complainant half the deficiency instead of all as stated in the decree. To- this correction the defendant consents as obviously proper, and in other respects the decree must stand.”

The plaintiff filed an amended motion to set aside the decree, which was signed by Messrs. Farr & Fletcher, as well as Mr. Dooley, stating in substance :

That the decree recites, that it is based upon and in accordance with the report of the master of 2d December, 1875, on file in court, when in fact such report was not on file in court at the time the decree was entered.

That the report of the master of 2d December, had beexx re- . ferred back to him to take account of rents, etc.; and that he had not reported at the tixxie the decree was entered, and that if he had taken testimoxxy as to the rents and reported as directed, it would have shown á large balance in favor of plaintiff.

That neither plaintiff nor his counsel assented to the decx’ee as entered. That there was no consent to a decree in accordance with the report of the master of 2d December.

That if plaintiff’s attorney ever consented to a decree, it was under a misapprehension that a report of the master was on file in court, and that he was misled when he consented to the decree, if he assented to it at all, and did so consent with the full understanding and belief that the master’s report was in court, other than the report of 2d December.

That the modified decree, as well as the orginal, does great injustice to the plaintiff. And he asks the court to set aside the decree, and if not, to strike from the entry so much as recites that it was entered by consent.

The court overruled the motion, to which ruling the plaintiff excepted, and took an appeal to this court.

No appeal, it seems, lies from a decree rendered by consent. Webb v. Webb, 3 Swanton, 658. French v. Shotwell, 5 John. Ch., 562. Williams et al. v. Neil et al., 4 Heiskel, 280. Musgrove v. Lusk, 2 Cooper’s Tenn. Ch., 580.

But the appeal in this case is not directly from the decree, but from the decision of the chancellor overruling the appellant’s motion to set aside the decree, on the showing made by him, the motion having been made during the term at which the decree was entered, and while it was under the control of the chancellor.

An attorney at-law acting under a general retainer, and without special authority, has no right to compromise his client’s case, and consent to a judgment or decree against him. Holker et al. v. Parker, 7 Crunch, 452. Mayor v. Foulkrod et al., 4 Wash. C. C., 511. Davidson v. Rozier, 23 Mo., 389. Dodd v. Dodd, 9 Barr., 315. Nolan v. Jackson, 16 Ill., 275. Lockhart v. Wyatt, 10 Ala., 235. Smith v. Bossard, 2d McCord Ch., 409. Denton v. Noyes, 6 Johnson, 295. 5 Randolph, 645. Miller v. Edmonston, 8 Blackf., 291.

But the court will not set aside a decree entered by consent of an attorney, merely because he had no special authority from his client to compromise the case and give sueh consent; but will look into the facts and circumstances of the case and ascertain -whether it be such a decree as the attorney might well have consented to in the exercise of his general authority, to prevent further litigation and expense. If it appear that the attorney consented to the decree in fraud, or by collusion with adverse counsel, or under a mistake or misapprehension of law or facts, and that the rights and interests of his client were thereby seriously compromitted, the court will open the decree.

In Holker v. Parker, 7 Cranch, 452; Chief Justice Marshall said : “Although an attorney-at-law, merely as such, has, strictly speaking, no right to make a compromise, yet a court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on, or not fairly exercised in the case. But where the sacrifice is such as to leave it scarcely possible that, with a full knowledge of every circumstance, such a compromise could be fairly made, there can be no hesitation in saying that the compromise, being unauthorized and being therefore in itself void, ought not to bind the injured party. Though it may assume the form of an award or judgment at law, the injured party, if his own conduct has been perfectly blameless, ought to be relieved against it.”

In Decarters v. LaFarge, 1 Paige, 574; after the complainant’s counsel had opened the argument upon the hearing, the counsel for defendants declined to reply, stating that two points had been taken which he deemed to be so decidedly against the defendants, that in his opinion their defense could not be sustained, and a decree was therefore entered in favor of the complainants.

A motion for rehearing was made, on the grounds that the proofs of defendants had not been read at length, and that the cause had not been argued on their part, etc.

The chancellor refused the re-hearing, there being no showing of merits in the defense; remarking, among other things, that <c to obtain a re-hearing in Such case the defendants should show a violation of equity on the part of their counsel, or that he had acted under a clear mistake, either as to the law or facts.”

In Pike v. Emerson, 5 New Hampshire, 393, pending the cause in the Court of Common Pleas, the attorney for the plaintiff signed an agreement that the judgment of the court, if against the plaintiff, should be final and conclusive, waiving his right of appeal. The cause was tried afterwards, and verdict and judgment against plaintiff, and without moving to set the judgment aside, or impeaching the agreement made by his counsel, he appealed. On motion the Supreme Court dismissed the appeal. The court said: The court has the power, without doubt, in case of fraud or mistake, to relieve a party from the effects of such an agreement. But while an agreement like that made by these parties in the court below, remains unimpeached, we are of the opinion that no appeal can be prosecuted.”

In Denton v. Noyes, 6 Johnson, 295, an attorney appeared for defendant, who had not been served with process, and, without authority, confessed judgment. The court refused, on motion, to set aside the judgment, but suspended its execution, and gave the defendant time to plead matters in bar, and have a trial on its merits, and ordered a rule against the attorney to show cause why an attachment should not be issued against him, etc.

In Harvey et al. v. Thorpe, 28 Ala., 261, the court said, that where an admission is improvidently, or by mistake, made by an attorney, the court, by means of its coercive powers over Its own officers, has authority to relieve against the consequences of the admission; regulating its action in this respect with a just regard to the rights of both parties, which it can do by setting aside the agreement upon terms which will meet the justice of the particular case.'

We have carefully looked into the facts and circumstances of this case as they appear in the pleadings and depositions, and motions, and accompanying affidavits, to set aside the decree, and are of the opinion that if the counsel for appellant consented to the deoree, which it seems from the record entry they did, they must have acted under a grave mistake or misapprehension of the law or facts of the case, in abandoning the claim of their client to have the appellee account for the rents of the premises, and that the chancellor, in addition to the correction of the decree ordered by him, should have opened it to the extent of permitting an account of the rents to be taken.

Without deciding whether the depositions taken before Up-ham, while he was acting as master, by consent of the parties, and upon cross-examination, could have been treated as evidence in the cause, we have looked at them, as well as the depositions taken before the second master, for the purpose of forming some estimate of the value of the rents. The depositions conduce to prove, that beside the value of the rents of other buildings on the lot, the hotel building was of the monthly rental value of $60, during the two years in which it was occupied by appellee before its destruction by fire.

We think it would have been the better practice for the chancellor to have stayed the execution of the decree, and opened it to the extent of letting in an account of the rents, while it was in fieri and under his control, than to overrule the motion on the ground that there was no showing that appellant’s counsel had acted in fraud or bad faith, and leaving him to his remedy against them.

The decision of. the chancellor upon the motion must be reversed, and the cause remanded with instructions to the court below to open the decree for the purpose of causing an account of the rents of the premises to be taken, and upon ascertaining the value of the rents, to make such modification of the decree as may appear to be equitable between the parties.


text:
    Collins, et al. vs. Warner, Adm’r.
    1. Right of Action: To set aside fraudulent settlements by Administrator.

    The administrator or executor of a deceased legatee only, and not his heirs, should sue to set aside the settlements of the administrator of his testator’s estate.
    But the-heirs may sue concerning the land descended to them from him.
    2. --; For loaste, conversion, etc.

    A suit for waste or conversion of personal property of an estate, or to have the title to real property, purchased with the money of the estate, declared to be held in trust for the estate, must be brought by the administrator or executor.
    APPEAL from Chicot Circuit Court in Chancery,
    lion. Tiieodoric F. Sorrells, Circuit Judge.
    Hose, for appellant.

      Reynolds, contra.

   Harrison, J.:

This, was a complaint in equity, filed in the Chicot Circuit Court, by Sanford Collins, Thomas D. Collins, William R. Collins, R. E. Collins, J. C. Collins, R. S. Collins, Sr., Ephia Collins, Ann Eliza Collins, Bettie Collins, Benjamin Collins ^nd Henry Collins, and Maria Collins as administratrix of F. G. Collins, deceased, against James H. Warner, and Elizabeth B. Warner, his wife, Benjamin P. Gaines, and Edward Collins; the material allegations of which, or such as need be stated, were that Henry H. Collins of said county, died some time in the early part of the year 1862, seized and possessed of considerable estate consisting of land, slaves, money, and other personal property in said county, and also a tract of land in Kentucky; and leaving a will,"by which, after bequeathing to his wife the said Elizabeth B., all his household and kitchen furniture; to Eli T. Wills $500, and to Margaret Bledsoe, a horse, saddle and bridle, he devised and bequeathed to his wife one-half of all his other property, both real and personal, for and during her life; and to his brothers, Sanford Collins, Thomas Collins, Samuel Collins, Tolbert Collins, John C. Collins, James Edward Collins and Robert Collins, the other half and the remainder of the half given his wife, after her death, in equal shares, except that Tolbert Collins was to have $200 more, and James Edward Collins one-tenth more than an equal portion with the others; and the portion of James Edward Collins was given for his life only, and after his death to his wife and children. If, however, so much as two-thirds of the estate was taken by the Federáis, or destroyed by the Avar, his wife Avas to take all that remained, one-half absolutely, and the other for and during her life, with remainder to his said brother; but the share, or portion, to each brother Avas given upon condition, that he was true to the cause of the South in the Avar then between the states, and the shares of such of them as were not, Avas given to the others.

The property, except the legacies to Eli T.Wills and Margaret Bledsoe, which were directed to be paid immediately after his death, he directed to be kept together until the close of the war; and he appointed his wife and John C. Collins his executors.

That the Avill Avas duly probated ; but neither of the executors named qualified and assumed the execution of it.

The Avidow, however, took charge of the property, and continued in the sole possession and control thereof, until some time in the latter part of the year 1863, when she intermarried with Owen L. Richardson, who thereafter had the possession and control of it.

That previous to her marriage with Richardson, she purchased with money belonging to the estate, from Edward T. Jordan, a certain house and lot in Monticello, in Drew County, for which she paid $4500, the title to which she took in her own name ; and she and the said Richardson otherwise wasted the property of the estate, and converted much of it to their own use; and the particulars of such waste and conversion were distinctly charged and set out, and that two-thirds of the property was not taken by the Federáis, or destroyed during the war.

That, Richardson was, on the 19th day of May, 1866, appointed administrator, with the will annexed of the estate; that he filed an inventory, and thereafter three annual accounts of his administration, which inventory and accounts, were untrue and fraudulent, and in what respect and particular each was so, was specially charged and stated, and the accounts were approved and confirmed by the Probate Court, and that, because of the errors and frauds in them, the estate was shown upon his third and last settlement, to be on account of payments and disbursements for it, in debt to Richardson in the sum of $3590.33.

The defendants, James H. Warner and Benjamin P. Gaines, were the securities in the bond of Richardson, which was in the penal sum of $5000.

That Richardson died in 1872, intestate, and after his death the said Elizabeth B. qualified as executrix of the will, and she also took out letters of administration upon Richardson’s estate, and that she had filed in the Probate'Court, a petition, representing and setting forth, that two-thirds of the property of the testator’s estate had been taken by the Federáis, or otherwise destroyed during the war, and also that his estate was indebted to that of Richardson’s in said sum of $3590.33, as found due on his last settlement, and that there was not personal property sufficient to pay the same, and praying her title to one-half of the estate, exclusive of the household and kitchen furniture, and the legacies to Eli T. Wills, and Margaret Bledsoe, which appear to have been paid, absolutely, and of the other half for life, be declared and established by the court; and for an order for the sale, by a commission appointed for that purpose, of the land in Chicot County, or so much thereof as might be necessary to pay said indebtedness; and that the plaintiff appeared in the Probate Court and resisted the petition, which was still pending therein.

And that since the filing of the said petition, the said Elizabeth B. intermarried with the defendant, James H. Warner.

The prayer of the complaint was, that all further proceedings on the petition in the Probate Court to determine and declare the right of Mrs. Warner, under the will; and for the sale of the land to pay the demand of Richardson’s estate, be restrained and enjoined; that the settlements of the accounts of Richardson be 'opened and set aside, and the accounts be corrected; that Mrs. Warner be declared to hold the title to the house and lot in Monticello, in trust for the estate, and be required to account for the rents and profits, and she and the securities of Richardson be decreed to pay the plaintiffs what they should be found to be entitled to.

Mrs. Warner filed a demurrer to the complaint as showing no equity or cause of action. The other defendants made no defense. The demurrer was sustained, and the complaint dismissed.

The plaintiffs appealed. .

The complaint fails to show any interest in the subject of the suit in some of the plain tills. It appears, but only in the style of the action, that Ephia Collins, Ann Eliza Collins, Bettie Collins and Henry Collins are heirs of Tolbert Collins, but who or what the interest of F. G. Collins was, or who William R. Collins, R. E. Collins, J. C. Collins and R. S. Collins, Sr., are, or what interest they have in the estate, is in no manner stated or shown.

Mrs. Warner, upon her marriage with James H. Warner, ceased to be executrix of the will of Collins, and the adminstratrix of Richardson — sec. 35, Gantt’s Digest; and no representative of either Collins’ of Richardson’s estate was before the court.

The administrator or executor of Tolbert Collins only, and not his heirs, can sue to set aside the settlements of Richardson. Lemon’s heirs v. Rector, 15 Ark., 436; Pryor v. Ryburn, 16 Ark., 671; Atkins v. Guice, adm’r, 21 Ark., 164; Jacks v. Adair, 31 Ark., 616.

Yet the heirs may maintain an action concerning the land descended to them from him; and a suit for waste or conversion of the personal property by Mrs. Warner; and to have the title to the house and lot purchased with the money of the estate, declared to bo held by her in trust for the estate, must be by John C. Collins, the other executor named in the will, if he should undertake its execution, or by an administrator with the will annexe)!.

We are uanble to see why a Court of Equity should interpose to restrain the proceeding instituted by Mrs. Warner in the Probate Court, as any-one interested in the estate might appeal from any order that might be made therein, affecting his rights, and when the complaint was filed, she had ceased to be administratrix ; and the application for the order for the sale of the land, which order, if made, would have been clearly unauthorized by law, was abated and no longer pending.

The court below did not err in sustaining the demurrer, and •dismissing the complaint and its decree is affirmed.


author: English, Ch. 'J.:

text:
    Bowles vs. Dixon.
    1. Parent and Child; Guardianship.

    A father, both by statute and common law (unless unfit or incompetent), is the natural guardian, and entitled to the custody, care, and education of his minor children.
    2. ___
    He is not bound by proceedings in the Probate Court, appointing a guardian for his child, to which he is not a party.
    S.--; Chancery Jurisdiction.

    Chancery has jurisdiction to take the child from the statutory guardian, and restore it to the father.
    APPEAL from Chicot Circuit Court in Chancery.
    Hon, Theodoric F. Sorrells, Circuit Judge.

      Reynolds, for appellant.

      Carroll & Jones, contra.

   English, Ch. 'J.:

The petition in this case was addressed to the Hon. Theodoric F. Sorrells, Judge of the Eleventh Judicial Circuit.

The petitioner, John Dixon, stated, in substance, that he was the father and natural guardian of two minor children, named John M. and Elizabeth, and entitled to the care of their persons, and to have the supervision of their education. That they had no property in their own right, and there was no cause whatever why he should not have the possession and custody of said children. That Elizabeth E. Bowles, of the County of Chicot, in the Circuit¿of His Honor, the Judge, had said children in her possession, custody andbontrol, and withheld and restrained them from petitioner’s possession unlawfully, and without his consent, and against his will.

Prayer for a writ of habeas corpus commanding said Elizabeth E. Bowles (or any other person having them in custody) to bring .said children before His Honor, at such time and place as he might appoint, and that upon a hearing, they be delivered to petitioner, and for other relief in the premises, etc.

The petition was manifestly framed with the view of presenting it to the judge in vacation, or at chambers;' but whether so presented, does not appear.

At the October Term of the Circuit Court of Chicot County, Wm. W. Bowles, who is styled defendant in the cause, filed the following answer to the petition :

“Comes the defendant, Wm. W. Bowles, and for answer to petition says, he is the lawful and duly constituted guardian of the minors mentioned in the petition; appointed as such by the Court of Probate for the County of Chicot, and as such, claims the custody of said minors. And the defendant for further answer says, this court has no jurisdiction of the subject matter of this suit, as between the defendant, as the lawful guardian, and petitioner, for the custody of said minors.”

At the same term of the court, and on the 6th of November, 1875, the matter seems to have been finally heard and disposed of by the following entry:

“On the first day of this term of court this cause came on to be heard upon the petition of John Dixon and the answer of Wm. W. Bowles, as guardian, and all other matters connected with the writ of habeas eo7pus and the attachment for contempt having been disposed of by the court, and dismissed from the cause.

“And it being admitted by respondent, that petitioner, John Dixon, is the father of the minors, John M. and Elizabeth, and it being also admitted by petitioner, that respondent, Bowlós, has been appointed guardian of said minor children, by the Chicot Probate Court, on the 17th day of September, 1874, and that he held them by .virtue of said appointment.

“And it appearing to the court from the testimony adduced, that said minor children had been residents of Chicot County, from their early infancy, and had been cared for by their grandparents, the father and mother of said respondent, until the death of said grandfather, said respondent had been, upon his own petition, appointed by the Chicot Probate Court as guardian of said minors, and that he still claims the custody of said minors by virtue of said appointment.

“And it further appearing to the court, that John Dixon is pecuniarily able to provide for said children, and that he is morally, religiously, and intellectually qualified to rear up said children in a proper manner.

“And the court being fully satisfied, that it has the jurisdiction and the right to pass upon the question of the right to the custody of said children, in this [proceeding, as between their father and natural guardian, and their uncle as guardian by the appointment of the Chicot Probate Court.

“And the court being fully advised in the premises, and being-satisfied that the father should be awarded the 'custody of his said children.”

“ It is therefore ordered and adjudged, that said John Dixon do have the control, possession and custody of said minor children, John M. and Elizabeth, and that defendant pay the costs of this part of the proceedings.

“And defendant excepts to the decision and judgment of the court in holding- that it has jurisdiction in this proceeding to hear and determine the right to the custody of the children as between the father and natural guardian, and the guardian by appointment of the Probate Court, and in awarding the custody of the children to their father, instead of remanding them to the custody of their guardian by appointment of the Probate Court; and prays an appeal from the decision and judgment of this court to the Supreme Court.”

'While the record was in this condition, a transcript was brought to this court, filed, and the case docketed as upon appeal, but'the transcript failing to show that an appeal was granted by the court behnvj the case was stricken from the docket.

Afterwards, at the January Term, 1876, of the Circuit Court of Chicot County, the following orders were made:

January 18th. “On motion, and it appearing to the court that the order in this cause entered of record at the October Term, 1875, failed to show that the appeal prayed for was granted, when in fact said appeal was granted as prayed for at that time. It is therefore ordered, that an order granting said appeal be entered of record now for then, in the following words: It is ordered that the appeal prayed for in this cause be granted.”

And “it appearing that the clerk at the last term of this court had entered the proceedings and orders in this case on the common law record, when the proceedings were had in chancery, it is ordered that the records of this court show this fact!”

A transcript was again filed in this court on the 29th of January, 1876, and within ninety days from the time when it seéms the appeal was in fact granted, but not entered of record in the court below.

The appellant also prayed for an ancillary writ of habeas corpus, commanding appellee to bring the minors before this court, and that, upon a hearing they be awarded to the custody of appellant, alleging a want of jurisdiction in the court below to render the judgment appealed from. Action upon this application has been reserved by this court, until the hearing upon the appeal, it appearing that appellee was .a suitable person to have the custody and care of the minors pending the litigation here.

The .court below being invested, by the Constitution, with chancery as well as common law jurisdiction, had the right to make its record show -whether the cause was heard and determined on its law or equity side, as it did. We shall, therefore, .try the case as a contest in chancery between the" father and the guardian for the custody of the minors ; and the only question to be decided, on this appeal, is whether the court below, sitting in chancery, had jurisdiction to take the minors from the latter and deliver them to the former.

Whether the order of the Probate Court appointing appellant guardian of the minors, on his own application,-was regular, or erroneous is not a question before us in this case.

By statute, as well as by the common law, the father (unless incompetent or unfit) is the natural guardian, and entitled to the custody, care and education of his minor children. Gantt’s Digest, secs. 6035-6. Tyler on Infancy and Coverture, ch. 16., and authorities cited. Mercein v. The People, 25 Wend., 73.

It seems that appellee was not a party to the proceedings in the Probate Court, by which appellant was appointed guardian ; it cannot therefore be assumed that that court adjudicated upon his fitness to have the personal custody and care of his minor children, or that its judgment is conclusive against him.

That the court below, sitting in chancery, had jurisdiction to take the minors from the custody of the appellant, their statute guardian, and deliver them into the custody and care of appellee, their father and natural guardian, we think there can be no well founded doubt. 2 Story Eq., secs. 1339-4081. Wood v. Wood, 5 Paige, 605; The People v. Mercein, 8 Paige, 56; People v. Wilcox, 22 Barbour, 189.

It affirmatively appears of record that the father was a suitable person to have the care of his children, and hence there was no abuse of discretion by the court below in .awarding them to him.

How old the minors were, or whether they had any preference in the matter, if of sufficient age to choose, does not appear.

Affirmed.