text:
    Crittenden County v. Crump.
    Fees. An officer is entitled only to such, fees as the law expressly ptescrihes.

      Appeal from- Crittenden Circuit Court.

    lion. J. W. Hanks, Circuit Judge.
    Watkins & Rose, for appellants.
    J'. M. Harrell, for appellee.
   Gregg, J.

It appears from the transcript that the appellee, at the April term, 1867, presented to the Crittenden county court his account for $100, for alleged services in making and filing a copy of the original assessment list for the year 1866-7, and $30 for three months office rent. Total, $130.

The claimant submitted to the court his account and proofs. Upon consideration ivliereof, the court overruled and disallowed the account, and the appellee filed his motion for a new trial, which was overruled, and he tendered his bill of exceptions and prayed an appeal to the circuit court.

The case ivas heard de novo in the circuit court, and a finding in favor of the claimant of $100, for copying assessment list.

The record shows that complainant proved that he “ made out and filed, in the office of the clerk of Crittenden county, for said county, a copy of the original assessment list, made by him of the taxable property in said county, for the year 1866,. which was all the testimony produced.”

Whereupon the county moved the court to declare the law to be, “that the said appellant (Crump) having been elected and accepted his office since the passage of the law requiring him to make and file a copy of the original assessment list, is not entitled to any additional pay therefor, beyond the commissions allowed him by law for assessing and collecting the same for the State and county;” which the court refused to do, and the appellant excepted. The court, sitting as a jury, found for the appellee one hundred dollars, and rendered judgment accordingly; to which finding and judgment the county excepted and appealed to this court. She here assigns for error: 1st. -The refusing to declare the law as moved. 2d. The court erred in its finding. 3d. The court erred in overruling the motion for a new .trial.

The appellee insists that he -was required to render the service charged for; and, as there was no provision made by law to pay for such services, he was entitled to what other officers received for similar services under sec. 28, chap. 69, Gould’s Digest.

An officer is not entitled to fees for every specific act done by him officially. lie can only collect where the law makes provision to pay him. See cases hereinafter cited.

The law declares the assessor shall, within a fixed time, take an account of the taxable inhabitants, property, and privileges made taxable in his county, and make separate alphabetical lists of residents and non-residents; he shall advertise throughout the county the time he will meet tax-payers at their respective precincts; he shall make lists of his assessments, and furnish owhers of property with lists, if required, and administer an oa,th to each tax-payer; he shall have non-residents’ lands valued by three householders, &c.; he shall file, in the office of the clerk of his county, his assessment list, with a certified copy thereof; he shall, within every three months, call on each merchant, grocer, druggist, &c., &c., and know if they have purchased or received any goods, &c., &c.

Now, the question is, did the General Assembly intend the 2J per cent, allowed on the amount of the tax list, should compensate the assessor for all these various acts; if not, for which particular duty shall he receive his 2|- per cent.? Is it for taking an account of tlio taxable inhabitants, property and privileges, and making the alphabetical lists of residents and non-residents, or for going around and advertising, or for meeting the tax-payers at their respective precincts and swearing them to their respective lists, or for filing his original tax list and ropy thereof? The whole subject of assessing taxes is embraced in one act, and the various duties of the assessor therein prescribed, and a general provision made to pay for such services.

The law does not declare that the assessor shall have fees or a certain per cent, for listing the ¡n’pperty, for obtaining its value, for returning, copying, &c.,but his duties are prescribed, and the law declares that “ each assessor shall receive and be entitled to two and a half per centum on the amount of taxes levied on his assessment list.” For what was it intended he should have this emolument ? Certainly, for all the duties to be by him performed as assessor.

It is urged that certain county courts have been accustomed to ordering large bills paid their sheriffs, for such services as claimed in this account. Such arguments show the public necessity for correcting the abuse, rather than influence higher courts to sustain such wrongs upon the body politic.

If the assessor can charge the county for copying his assessment list, he could, with equal propriety, charge for riding over his county and advertising, for summoning and swearing householders to value of property, or for mileage, in cases wherein he is required to visit each merchant, trader, grocer, &c., once every three months; and, upon the ground here assumed, that no fees are prescribed and other officers get pay for similar services. Such unusual riding, &c., is certainly as distinct from what may be called assessing, as the copying of tax lists. And will it be contended he is to have fees for that service ? A large sum for advertising, swearing householders, &c., &c. ? We think not, and we repeat, the law does not say the assessor shall have so much far assessing, but declares the duties to be performed, and then declares the assessor shall have 2-J per cent, for his services; and, to our minds, it is quite clear the Legislature intended lie should receive that sum only, for all the duties by law enjoined upon him, and this conclusion is well sustained by authority. See 7 Ohio, 239; 1 Const. Rep.,(S. C.,) 198; Baker v. City of Utica, 19 N. Y., (5 Smith,) 326; Jones v. Supervisors, &c., 14 Wis., 518; Minor, ex parte, 2 Hill, (N. Y.,) 411; 4 Scam., (Ill.,) 163; Miami v. Blake, 21 Ind., 32.

The court erred in not declaring the law as moved by the attorney for the county.

And we might add, the evidence, as disclosed by the bill of exceptions, wholly failed to show the number of words copied from the tax list, or otherwise disclose the value of the services rendered, from which the court below could legally have found the sum of one hundred dollars adjudged to the appellee, had the law entitled him to a recovery. And for that reason the court should have granted the motion for a new trial. Watkins, surv., v. Rogers, 21 Ark., 298; Russell v. Cady, surv., 15 Ark., 540, and other reported cases of this court.

For the errors pointed out, the judgment of the Crittenden circuit court is reversed, and the case remanded, to bo proceeded in according to this opinion.


source: Caselaw Access Project

author: G-regg, J.

license: Public Domain

text:
    Ruddell, executor, &c., v. Landers.
    Promissory notes — against public policy — assignment. A note, tlie consideration of which was horses sold for the well understood purpose of mounting men in the rebel service,' is treasonable in its inception, and void as against public policy.
    The maker has the same right to set up the illegality of the consideration against the assignee as he has against the payee, there being no proof of the time when the note was assigned.
    Where a note is assigned, and it does not appear affirmatively that the assignment was made before the maturity of the note, the defendant is entitled to all the defenses which he could have made against the note in the hands of the original holder.

      In such a case, the assignment is presumed to have been made at such a time as is most to the advantage of the maker.
    If it appears from the evidence that the consideration for which the note was given was illegal, the court, sitting as a jury, should find for the defendant.

      Appeal from Independence Circuit Court.

    Hon. Richard H. Powell, Circuit Judge.
    Byers & Cox, for appellants.
   G-regg, J.

Tho appellee brought suit before a justice of the peace of Independence county, against the testator of the appellant, upon a promissory note, executed by the deceased to William E. (3-ibbs, or bearer, for $75, and transferred to appellee by delivery.

Upon the trial the justice of the peace found for'the plaintiff, and rendered judgment for the amount of the note and interest. Ruddell appealed to the circuit court, and upon a trial there had, before the court, a like finding and judgment wa^ held, and Ruddell appealed to this court.

Upon the trial in the circuit court, the appellee read the note sued upon, as evidence, and rested his case.

The appellant then introduced William Byers as a witness, by whom he proved that the note sued upon was given in part payment for certain horses, which had been purchased for the express and well understood purpose of mounting certain men, who had volunteered to engage in rebellion and war against the United States; that a company of cavalry were organizing, under the payee of tho note as a captain, for that purpose, and that a part of the men had no horses, and were unable to buy, and to secure their services the maker of the note, and others, who were not engaged in the rebellion, but who wished to aid it, agreed with one Ilirsch, who had horses he wished to sell for such purpose, that each of them would become responsible for a certain amount, if lie would let the unmounted men, so desiring to go into the war, have the horses; and it was agreed, between all concerned, that the horses should be furnished upon these terms, and that the said Gibbs should endeavor to collect of his soldiers, and pay over to Ilirsch, &c., and that the note sued upon was given for such consideration.

There can be no question but the whole transaction was not only contrary to public policy, but was palpably illegal and treasonable from its inception, and all attempted obligations made or passed between the parties were absolutely void, as has been settled by this court, at the present term, in the case of Tatum, et al., v. Kelley. See Story on Contracts, (4th ed.,) 486 and 595; 1 Parsons, 393 and 395; Wilamowicz v. Adams, 13 Ark., 22.

The appellant had the same right to set up the illegality of' the consideration against the appellee as against the original payee. See note in Gould’s Dig., chap. 15; Williams v. Mathews, 3 Cowan, 252; Chitty on Con., 575, and note; Swift v. Tyson, 16 Peters, 1; 9 Barbour, 2, 14.

Upon the trial, before the court below, the appellant asked the court to declare the law to ho, first, “that, unless it'appears from the evidence that the plaintiff became the owner of the note sued upon before it became due, the defendant is entitled to all the defenses which he or his testator could have Made against the party to whom the note was given.

2. “ That the transfer or assignment of a note should be taken to have been made on such day as is most to the advantage of the defendant, unless it appears by the evidence the time, in fact,'when the transfer or assignment was made.

3. “ If it does not appear, in this case,' when the note sued upon was transferred or assigned to the plaintiff, then the defendant can make any defense which he could have made against the party to whom the note was given.

4. “ If it appears from the evidence that the consideration for which the note ivas given ivas illegal, the court, sitting as a jury, should find for the defendant.”

' To the declaring of which to be the law applicable to the case, the plaintiff objected. The court sustained the objection, and refused to declare said propositions, or any of them, to be the law applicable to this case. In this the court certainly misapprehended the law. "We are of opinion the appellant did not state the law as strongly in his own favor as he might have done, and that the court erred in refusing to declare the law as moved by him, as well as finding against the appellant, upon the evidence. For which error, the judgment of that court is reversed, and this ease remanded.


author: .WlLSHIRE, C. J.

text:
    Coolidge, et al., v. Burnes.
    Slave contract — warnmty. Where a bill of sale of four negroes contained a covenant of warranty that the negroes were “slaves for life and sound in body and mind,” the vendee and his assignee are the only persons who have a right of action for breach of the warranty.
    Where a bill of exchange for the consideration of negroes is drawn by the vendee upon C. & Son, payable to the vendor, as there is no assignment t.o the drawees of the bill of sale, and the latter have no interest in the negroes, the drawees can not avail themselves of the defense of failure of consideration arising from the subsequent emancipation of the slaves.
    The vendee, when sued on the bill of exchange, may avail himself of any breach of the warranty, even as against the assignee of the bill of exchange.
    Recoupment. It is well settled that a defendant can only recoup damages sustained by him growing out of the contract sought to be enforced.
    The drawees in this ease, not being parties to the contract of sale, and not having any interest in tlxe negroes, can not recoup for damages arising from a total or partial failure of the consideration of the bill of sale.

      Appeal from Phillips Circuit Court.

    Mod. James M". Hanks, Circuit Judge.
    Carl and & Nash, for appellants.
    The second and third pleas set up, in different shape, the freeing of the negroes, and therefore the consideration; on which the drafts were based failed, and we presume nothing more is needed to show the court that they were good, and the .demurrer to them should not have been sustained, than to cite section 14, article 15, (miscellaneous provisions,) new Constitution.

    The fourth plea was unquestionably good, as a plea of partial failure of consideration. Desha v. Bobinson, 17 Ark., 228; Botan v. Nichols, 22 ib., 248 ; Turner v. Huggins, 14 Ark., 21. The demurrer to this plea was improperly sustained.
    After the court sustained the demurrer to the fourth plea, certainly they would use this matter by way of recoupment— that is, by keeping back so much of the purchase money to he paid as this unsoundness amounted to, and it was perfectly legitimate for them to do so. Billsbury v. McNally, 22 Ark., 409.; Tatum v. Mohr, 21 ib., 858; McClure v. Hart, 19 ib., 119; Brunson v. Martin, 17 Ark., 270; Key.v. Henson, ib., 25'4; Desha v. Bobinson, ib., 245; Bobinson v. Mace, 16 ib., 97; Sedgwick Measure of Damages, (2d ed.,) %>. 429, et seq. The court below then erred in not allowing Coolidge to defend in this plea.
   .WlLSHIRE, C. J.

In this case Samuel L. Burnes, who sued for the use of Garrison Bush, brought an action of assumpsit in the Phillips circuit court, at the June term, 1866, against Henry P. Coolidge and Charles B. Coolidge, partners under the name and style of II. P. Coolidge & Son, on two bills of exchange, drawn by one. Alexander G. Clements, on and accepted by II. P. Coolidge & Son, bearing date October 10, 1860, and payable to Isaac Gregg and William Witherspoon, by their firm name.and style of Gregg & Witherspoon — 'the first for $1,500, with interest at 8 per cent., at thirteen months; the second for $1,825,’with the samé rate of interest, on the 25th day of December, 1861, which were, subsequently, indorsed by Gregg & Witherspoon to Samuel L. Burnes & Co.

The appellants interposed, in the court below, four pleas: 1st. A plea of non-assumpsit. 2d. That the hills of-exchange, ■sued on, were given for the purchase money of certain negroes, ■sold by Gregg & Witherspoon to Clements, who were warranted to be sound in body and mind and to be slaves for life ; that, by the proclamation of the President of the United States, of the 1st day of January, 1863, said negroes were declared to be free, and were free and no longer slaves, and that the consideration for which the bills of exchange were executed, thereby wholly failed. The third plea, alleging a failure of consideration, differs from the second plea only in the allegation that the negroes, before the payment of the purchase money therefor, were emancipated and declared free and no longer slaves, by the acts of Congress and the Constitution of the State of Arkansas, and thereby the consideration for which ■said bills of exchange were executed and accepted wholly failed. The fourth plea alleges a partial failuruof consideration, namely, that the bills of exchange were drawn by Clements on and accepted by Coolidge & Son, payable to Gregg & Witherspoon, for the consideration of four certain negroes, named, respectively, Aleck, Judy, Dock and Delia, sold by Gregg & Witherspoon to Clements, and that Gregg & Witherspoon covenanted with Clements that the negroes were each sound in body and mind, and were slaves for life, and averred that one of said negroes — the boy Dock — of great value, to wit: of the value of fifteen hundred dollars, was so much diseased and unsound in body as to be of very little value, and that thereby the •consideration for which said bills of exchange were executed by Clements, and accepted by Coolidge & Son, had partially failed, &c.

There-was issue taken to the first plea, and the appellee, Burnes, demurred to the second, third and fourth pleas, which demurrer the court below sustained ; whereupon the appellants plead an additional plea of recoupment, based upon the unsoundness of one of the negroes, as alleged in their fourth plea; to which •additional plea the appellee demurred, and the demurrer thereto was sustained by the court below. The appellants thereupon, •by leave of the court, withdrew' their plea of non-assumpsit, and judgment of nil dicit was rendered for the appellee, and his damages assessed by the court at $5,099,^, and judgment rendered in favor of the appellee against the appellant for that sum, and intei’est thereon at eight per cent, and costs, and the defendant appealed to this court, and assigns as error:

That the court below erred in sustaining the demurrer of the appellee to the second, third, foui-th and fifth pleas interposed by the appellants.

The ruling of the court below, upon the demurrers to the appellants’ second, third, fourth and fifth pleas are the only matters relied upon in this court by counsel for the appellants.

To determine the question presented by the action of the court below, complained of, we must examine the several pleas reached by the demurrers, and arrive at the effect the matters they contain have on the rights of the parties to this cause. The second, third and fourth pleas, of the appellants, allege that Gregg & Witherspoon, on the 10th of October, 1860, sold to Clements four negroes, and warranted them to be slaves for life, and that the bills of exchange were drawn by Clements on the appellants, and by them accepted, payable to Gregg & Witherspoon, in consideration of the negroes sold by Gregg & Witherspoon to Clements, and for no other consideration, and allege that the negroes were emancipated and set free by the proclamation of the President of the United States, and by act of Congress, and the Constitution of the State of Arkansas. These pleas do not allege that the appellants were parties or privy to the sale by Gregg & Witherspoon to -Clements, and there is nothing appearing in the record of this case to show, or from which we can infer, that the appellants had or were to have any interest in the negroes sold to Clements, nor do the appellants allege that the bill of sale of the negroes, containing the covenant of warranty, executed by Gregg & Wither-spoon to Clements, was assigned to them. Gregg & Wither-spoon made their covenant of warranty — that the negroes were slaves for life, &e., with Alexander G. Clemenfs, and he,or his assignees of the warranty, are the only ones that can complain of the breach of that covenant. Prom the facts alleged in the appellants’ second, third and fourth pleas, we can eometonoother conclusion than-that the acceptance of the appellants of the bills of exchange drawn by Clements upon them, payable to Gregg & "Witherspoon, or order, was upon the solvency o£ Clements, or on funds belonging to him in their hands, and not upon the security of the property or negroes sold by Gregg & Witherspoon to Clements. The appellants were not the purchasers of the negroes, nor do they pretend or claim that the •covenant of warranty that the negroes were “slaves for life, and sound in body and mind,” was ever assigned to them by Clements, the covenantee, or that they ever had any interest in the negroes. Then they lost nothing by the breach of the warranty in any particular, and hence they had no right to complain of the breach of the covenant. Suppose that Clements, instead of paying Gregg & Witherspoon for the negroes by his drafts upon the appellants, had drawn the same bills of •exchange payable to his own order, and indorsed them to a bank, and thereby procured the money and paid Gregg & Witherspoon for the negroes, and the appellants had accepted the drafts, as they did in this case, would it be contended that they could, when sued upon their acceptance, avail themselves •of any breach of warranty from Gregg & Witherspoon to the •drawer of these drafts? We think not. Clements, if sued .as the drawer of the bills of exchange, could avail himself, under our statute, of any breach of the covenant of warranty that may have occurred, though the collection of the bills of •exchange may be sought to be enforced by the assignee of •Gregg and Witherspoon.

As to the fifth or additional plea of recoupment, interposed by the appellants, we fully recognize the doctrine, as held in the cases of Rotan v. Nichols, 22 Ark., 247; Tatum v. Mohr, 21 Ark., 349; Robinson v. Mace, 16 Ark., 97, and Brunson v. Martin, 17 Ark., 270; and had the appellants been parties to the •contract between Gregg & Witherspoon and Clements, and had any interest in the negroes purchased by Clements, or had they purchased the negroes and taken an assignment of the bill of sale containing the covenant of warranty from Clements, then they might have put themselves in a position to he damaged by a breach of the covenant of warranty; but, as we have said in regard to the second, third and fourth pleas, the covenant run from Gregg & Witherspoon to Clements, and he, as-appears by the record in this, case, is the only one entitled to, complain of the breach of the covenant of warranty. It is well settled that a defendant can only recoup damages sustained by him growing out of the contract sought to be enforced. It is not claimed by the appellants, or alleged in their plea of recoupment, that Clements perpetrated any fraud upon them in procuring their acceptance of the bills of exchange, nor do they set up any defense that they would have been entitled to in case Clements had brought suit upon the-bills of exchange against them as acceptors. The counsel for1 the appellants dwell on the facts alleged in the several pleas, that the negroes warranted by Gregg & Witherspoon to Clements, to be slaves for life, had been emancipated and set free by the proclamation of the President of the United States, and acts of Congress, and the Constitution of the State of Arkansas. We do not think it necessary to discuss this question, for the reasons already given. We think it has no bearing on the rights of- the parties in the cause. Discovering no error in the record, the judgment of the circuit court is, therefore, in all things affirmed.


author: Story, Special C. J.

text:
    Leach v. Smith and wife.
    Confedérate money act. The act of March 5, 1867, known as the Confederate money act, is mconstitutional.

    Confederate money. A contract made in consideration of or payable in a currency, the issuance of which is prohibited by law, is void.
    Contracts. Where parties contract to pay in a fluctuating medium, whether it be a legal tender currency or not, they contract in view of and are each bound'without regard to the fluctuations.

      At the time a contract is to he executed, the maker is entitled to satisfy it by a specific performance.
    Where a party neglects to satisfy a contract by a specific performance at the time it is due, he can hot afterwards do so.
    Measure op damages. The measure of damages in such a case (unless the contract is for the payment of a legal tender) is the value of the article at the time it is due.
    If the contract is payable in legal tender, the measure of damages is the amount and interest.
    Pleading. Where the plea, in an action on a note, -sets up that it was agreed that the note should be paid in Confederate money, which was a depreciated currency, this is not a plea of failure of consideration.
    The declaration is confessed by the defendant refusing to plead further, after the demurrer to the plea is sustained.
    Practice. It is proper for the court to assess the damages, in a suit upon an instrument of writing, after rendering an interlocutory judgment upon demurrer.
    Where the declaration sets forth the notes sued on, it is not error for the judgment to fail to show that the notes offered in evidence were the same. The maxim ‘1 Omniaprcesumuntw selemniter esse pacta’ ’ governs in such cases.
    Evidence. At the common law the defendant can not show that a note payable on its face in so many dollars was agreed to be paid in a depreciated currency.

      Error to Ashley Circuit Co-urt.

    Hon. William M. Harrison, Circuit Judge.
    Garland & Nash, for plaintiff.
    The plea in this ease is, in truth, but a plea of partial failure of consideration. It is not an attempt to change or vary the written contract, but simply one to show that, as to so much of the money demanded, there ivas no consideration. And under this view of the matter, it was unquestionably proper for Leach to go behind the notes and show the parts of the contract. 2 Parsons Con., 59, 62, 63, 70, 79.
    The rule, as well and justly laid down by this court in Roane ■v. Green cf* Wilson, 24 Ark., 210, does not apply here. This is a very different ease from that, and proceeds upon altogether other points.

      If • our position be correct, so much, of the demurrer as attacks the plea for setting up two contracts, or for being-double, is not well taken.
    And also that part of the demurrer which relates to the tender is not good. 17 Ark., 445.
    Then, as to the other point, setting up a private contract between Leach and Lassiter, it is a -clear proposition of law that whatever rights,-legal or equitable, Leach had against these notes as against Lassiter, (the payee,) he still held them as against the assignee of Lassiter. Worthington v. Card § Co., 22 Ark., 277; Walker, et al., v. Johnson, et al., 13 Ark, 531; 4 Png., (9 Ark.,) 501 — 5; Dig., ¶. 158, se.e. 3.
    English & "Wilsiiire, for defendants.
    The notes sued on were payable in “dollars.” The. plea does not state what the consideration of the notes was, but sets up a verbal agreement that they were to be'paid in Confederate money, or bank bills then current. Such parol agreements can not be set up to vary the plain terms of a written contract. Roane v. Green Wilson, 24 Ark., 210.
    The plea was an attempt to bring the case within the provisions of the act of March 5, 1867. If the act is valid, tile plea is bad in not averring the value of either Confederate money or bank bills.
    If the contract be in the alternative, as to do a thing on one day or another, or in one way or another, the right of election is with the promissor, if there be nothing in the contract to control the presumption. 2 Parsons on Con., 657.
    If the contract is to do one of two things by a given day, the debtor has until that day to make his election ; but if he suffer that day to pass, without performing either, his contract is broken, and his right of election gone. 2 Parsons on Con., 657, note c, and cases of Choicer. -Moseby, 1 Daily, 136; McNeil r. Clark, 4 Johnson, 465, cited.

    Here the plea sets up an agreement to pay the notes in Confederate money, or bank bills current at tbe date of the notes, two distinct modes of payment. Until and at the maturity of the notes the maker had the right to elect either mode of payment; after that the right of election was in the holder. If the maker in fact made an election, he should have averred it, and alleged the value of the currency so elected as the means of payment. If he made no election the plea should have averred the value of each currency, so that the amount to be recovered by the holder might be put properly in issue.
    Such parol agreement being worthless by the common law, and the notes being commercial, the assignee took them unincumbered with any such defense ; and to create such defense by an act of the Legislature, would be to legislate away his rights, and impair the obligation of the contract, which could not be done.
   Story, Special C. J.

Smith and wife brought assumpsit against Leach, on two promissory notes executed by. Leach, each bearing date of August 1,1862, each for the sum of “two thousand and eighty-five dollars,” with interest at the rate of eight per cent., from due, payable to the order of Charles J. Lassiter — one on January 1,1864, and the other on January 1,1865, both of which were indorsed by Lassiter to Laura A. Smith.

The defendant in the court below interposed the following plea: “And the said defendant, by his attorney, comes and defends the wrong and injury, when, &e., and says actio non, as to the sum of $8,383^0-, part and parcel of the sum of said two promissory notes in plaintiffs’ declaration mentioned, because he says it was understood and agreed by and between the defendant and Charles J. Lassiter, the payee in said two promissory notes in plaintiffs’ declaration mentioned, at the time of making said notes, that said promissory notes were to be paid in Confederate money, or other bank bills then current; and the defendant avers, that at the date of said promissory notes, in said plaintiffs’ declaration mentioned, the value of said promissory notes in United States legal tender notes was the sum of $836^^-, which said sum of $8363^ is due to the plaintiff, and he may have judgment therefor, and that the said sum of $3,333-]^ is the excess over such value, and this the said defendant is ready to verify.” “To which the plaintiffs interposed their demurrer, which was by the court sustained, and the defendant refusing to plead further,” says the record, “ it is ordered that the said plaintiffs have judgment, and on motion, the instruments sued on are filed, whereby it appears that the plaintiffs’ damages are reduced to a certainty, and are by' the court assessed at $5,226^-. It is therefore considered,” &c.; judgment in the usual form.

The first error assigned is that the court below sustained the demurrer'to the defendant’s plea.

It was evidently attempted by this plea to set up, under the act of March 5,1867, laws of 1866-7, page 195, other and different contracts from those imported by the instruments on which suit was brought. Certainly it can not be held to be a plea of partial failure of consideration, as argued by the appellant, for the plea does not even state’ what was the consideration of the notes, but attempts to show that the notes were payable in one or' more kinds of depreciated currency. 2 Blackstone, 443. This, as has been well settled in the case of Roane v. Green & Wilson, 24 Ark., 210, under the common law rule of evidence, the defendant would not be permitted to show.

Conceding, for the present, the validity of the act of the Legislature, to which reference is above made, the plea is still defective. The act provides “that in all suits at law or in equity, ixpon any bond, bill, promissory note, or other contract for the payment of money, which was intended and understood or agreed by the contracting parties should be paid in Confederate money or other paper currency, the plaintiff or complainant in such suit shall recover in gold and silver or United States legal tender notes only th% value of such Confederate money, or otherpaper currency, as estimated in the community at the ¿¿me and place of making said contract, and interest thereon.”

And it is further provided “ that where any such bond, bill, promissory note, or other written contract does not express the kind of money to be paid, it shall be allowed the defendant to plead or answer such intention and understanding or agreement in bar of the excess over such value, and prove the same by parol testimony.”

There is no allegation in the plea of the value of Confederate money or bank bills then current, in which, as the plea alleges, the notes were to be paid. The allegation is, “ the value of said promissory notes,” &c. The value of the promissory notes, and the value of Confederate money or other bank bills, might be very different. The value of the promissory notes, in business parlance, was whatever they would bring in the market, and would depend greatly upon the responsibility of the maker. The statute provides for the recovery of the value of “Confederate money or other paper currency;” the plea for the recovery of the value of the promissory notes, the respective values of which, as we have seen, might be very different.

But we think our duty requires us to go further, and decide whether the Legislature has not exceeded its powers, and passed an act prohibited by the Constitution of the United States or of this State. It is conceded to be the correct doctrine that every enactment of the State Legislature is presumed to be constitutional and valid; that, before it can be pronounced otherwise, that clause of the Constitution must be clearly designated with which the act of the Legislature conflicts, since the Legislature, representing the people, have, as a rule, power to pass any and all acts, except those which are prohibited by either the State or Federal Constitution; and, under our system of government, it is only from the Constitution that the judicial department derives its authority to nullify the acts of a coordinate department. State v. Ashley, 1 Ark., 513. Eason v. State, 11 Ark., 481.

When we call to mind the changes effected by this law, and its importance to the people of this State, and doubting not that the purest motives of public policy influenced the legislative action, we are admonished to approach a subject of so much moment in that calm aqd even frame of mind which can only be produced by laying aside all extraneous considerations, and to decide it as a pure question of constitutional law.

For the purpose of considering the question, we will grant that the parties in this case contracted with a distinct understanding that the payment was to be made in Confederate money. This contract must be enforced according to its terms, or the obligation of the contract is changed and impaired. The terms of the contract, then, would be, that the defendant, in one and two years after date, respectively, would pay the sum of $2,085 in Confederate money, with interest from maturity, at the rate of eight per cent. Here the parties contract for a fluctuating currency, and will any one contend that at the time the note became clue the maker of the note was not entitled to pay it in Confederate money, though during the time the currency may have depreciated fifty per cent.? In other words, where parties contract to pay in a fluctuating medium, do they not contract in view of and are not each bound without regard to the fluctuations ? This is certainly so, whether the payment is to be made in a legal tender currency or not. Wallace v. Henry, 5 Ark., 105. Story on Notes, sec. 390-394. Story on Con. of Laws, sec. 311-314.

"We have assumed that no question is raised as to the legality or illegality of Confederate money; for, if a contract is made in consideration of or payable in a currency the issuance of which is prohibited by law, the entire contract is void. 5 Ark., 684; 4 Peters, 410; 8 Peters, 40; 5 Bing., (N. C.,) 675; 4 Coldwell, 275, 300; 3 Coldwell, 20, 157, 295, 419 and 468.

But, passing on: At the time the contract was to be executed, the maker was entitled to satisfy it by a specific performance. 5 Ark., 105. But the act takes away this right, and provides that it shall be discharged in a different manner. Though the obligation of the contract may have been to pay in Confederate money, yet the act attempts to force payment in gold and silver, or United States legal tender notes, for the operation of the statute is not confined to contracts which had become due before its passage, and the time for the specific performance of which had, therefore, gone by, but extends also to contracts which might fall due after the passage of the law.

Again: The contract was to pay at a certain time after date; and, although where a party neglects to satisfy a contract by a specific performance at the time it is due, he can not after-wards do so. The measure of damages (if the contract is not for the payment of a legal tender) is the* value of the article at the time it is due, but the statute attempts to make the value of the article at the time the contract was made the measure of damages. Wallace v. Henry, 5 Ark., 105; Douglass v. McAllister, 3 Cr., 298; Blydenburg v. Welch, Bald., 331; Barnard v. Conger, 6 McL., 497; Shephard v. Hamptin, 3 Wheaton, 200; Halsey v. Hurd, 6 McL., 102.

If the contract is payable in legal tender, the measure of damages is the amount with interest. Sedgwick on Meas. of Dam., 233; 6 Howard, 146.

Again: The contract was to pay interest, after one and two years, at eight per cent., while the act provides that legal interest, or six per cent., shall be paid/rom the time the contract was iiutdc.

In Greene v. Biddle, 8 Wheaton, 84, the Supreme Court of the United States say, that “the objections to a law on the ground of its impairng the obligation of a contract can never depend upon the extent of the change which the law affects in it. Any deviation from its terms, by postponing or accelerating the period of its performance, imposing conditions not expressed in the contract, and dispensing with those which are, however minutely or immaterial in their effect upon the contract of the parties, impairs its obligation.” And, in Ogden v. Sanders, 12 Wh., 256, the court say, “it is perfectly clear that a law which enlarges, abridges, or in any manner changes the. intention resulting from the stipulation of the contract, necessarily impairs if.

"We have seen that the statute does impose conditions which ai’e not expressed ixx the contract, and dispexxses -with some of those which are; that it materially “changes the ixxtexxtion insulting from the stipulations of the contract.”

The statute, in effect, provides that if A px’omises to. pay to B, five years after date, in Confederate money, one thousand dollars, with interest at the x-ate of eight per cexxt. from maturity, it shall be held to be a promise by A to pay to B, ixi gold and silver, or United States legal tender notes, say one hundred dollars, with interest’ at the rate of six per cent, from the date of the contract.

The cases of Satterlee v. Mathewson, 2 Peters, 380, and Watson, et al., v. Mercer, 8 ib., 110, which have been cited ixx support of the validity of the act of March 5, 1867, so far as they have any beaxdng on the subject, sustain our position. The same principle runs through both, and a referexxce to oxie case will be sufficient. The facts ixi the latter case were as follows: Ixi 1785, James Mercer and his wife, Margaxnt, executed a deed to Nathan Thompsoxx, for the premises in controversy, which belonged to Mercer’s wife, and Thompsoix conveyed the same premises back to James Mercer. The certificate of acknowledgment of the conveyance to Thompsoix was defective, under the law in existence at the time. After the death of Margaret Mercer, her heii’S at law, -Watson and wife, brought ejectment for the premises. In this suit, the deed fi’om Mercer axxd wife to Thompsoix, being defective, as above stated, it could xxot be iixtroduced in evidence, and Watson and wife, as such heirs at law, recovered the pi’emises and wexxt into possession. In April, 1821, the Legislatui’e passed an act upon the subject of conveyances by wives, providing that no such deed should be invalid for waixt of proper . acknowledgment, but in all cases should be as effectual for passing title as if all necessaxy requisites had been complied with. In 1829, after the passage of this act, the Mei’cers brought suit and recovered judgmeixt, which, oix appeal to the Supreme Court of Pennsylvania, was affirmed. Watson and wife then appealed to the Supreme Court of the United States.

The argument for tire plaintiff in error was, first: “ That’the act violated the Constitution of the United States, because it divested their vested rights, as heirs at law, in the premises in question; and secondly, that it violated the obligation of a contract, that was, of the patent granted by the proprietaries of Pennsylvania to the ancestors of the original defendants, from whom they trace their title to the premises in question by descent through Margaret Mercer.” The court say: “As to the first point, it is clear that this court has no right to pronounce an act of the Legislature void, as contrary to the Constitution of the United States, from the mere fact that it divests antecedent vested rights of property. The Constitution does not iDrohibit the States from passing retrospective laws generally, but only ex post facto laws. -»**-*** In the next place, does the act of 1826 violate the obligation of any contract ? In our judgment it certainly does not, either in its terms or its principles. It does not even affect to touch any title acquired by a patent, or any other grant. It supposes the title of femes covert to be good, however acquired, and only provides that their deeds shall not be void by reason of defective acknowledgments, where they have sought to convey them. So far, then, as it has any legal operation, it goes to confirm, not to impair, the contracts of the femes covert. It gives the very effect to their acts and contracts which they intended to give.” No one can doubt the correctness of the decision. The contract of conveyance by Mercer and wife to Thompson wras enforced according to its terms, and the desire and agreement of the parties. If there was any contract between the plaintiff in error and any other party that was violated, we have failed to discover it, and the Legislature could not well have violated an obligation, there being.no contract. The facts in this case are very different. There is a contract between the plaintiff and defendant in error, the terms of which are changed'as we have seen. Only because these cases have been relied upon to sustain the statute, have we devoted so much time to their consideration.

If the act of March 5,1867, kno^vn as the -‘Confederate money act,” had been framed for the purpose of allowing parties to show that it was agreed at the time of making any contract, that it should be paid in Confederate money, or other paper currency, and permitted the usual rule of damages to follow a breach of such contract, a different conclusion might have been reached. On this point, 'we do not intend to express an opinion, unless it may be necessary, in order to decide whether the defendant may not, under the act of March 5, 1867, plead that it was intended and understood, or agreed between the contracting parties, that such bond, bill, promissory note or contract, should be paid in Confederate money, without alleging the value of Confederate money, or attempting to recover in that shape.

It is well settled that a statute may he unconstitutional in some provisions and not in others, with this limitation, however, that the parts so held respectively constitutional and unconstitutional, must be wholly independent of each other; but where the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected, in meaning or intention, that it can not be presumed that the Legislature would have passed one without the other, all of the provisions which are thus connected or dependent, must fall with the unconstitutional provision. 2 Gray, 98 and 99; 1 Gray, 1; 5 Gray, 97; 16 Pickering, 95; 5 Ohio State, 573; 29 Ala., 573; 5 Gray, 482 and 486, n.

A fair inspection of the act will satisfy any one who may examine that all of its provisions are connected together in subject matter, are operating together for the same purpose, and that the Legislature had but one object in view — that is, to enjoin the payee of such bond, bill, or promissory note from recovering “in gold and silver or United States legal tender notes, the excess over the value of such Confederate money or other paper currency, as estimated in the community, at the time and ¡)lace of the making of said contract and interest thereon.”

The repugnancy between the statute and the Constitution of the State, us well as the Constitution of the Tinted States, is not doubtful, but clear.

Any course of reasoning that arrives at a different conclusion, we think, must, be logically untrue. We should violate the solemn obligation we have taken upon ourselves, if wo failed to declare the act unconstitutional and void.

The second error assigned is, that the evidence was insufficient to sustain the judgment. It is a sufficient answer to say that, the <lec.lara.tion was confessed by the defendant refusing to plead further. The record shows that the instruments on which suit was brought were filed, and that, the court by calculation assessed the damages. Vide. Johnson v. Frank, 16 Ark., 199.

The third error assigned is, that the judgment is informal and voidable, because the damages were assessed by the court. It was not only proper,' but the statute requires “the coui’t to assess the damages, after rendering an interlocutory judgment upon demurrer, in a suit founded upon an instrument of writing, and the demand is ascertained by such instrument.” Gould’s Dig., ch. 133, sec. 8.

The fourth error assigned is, that the judgment is informal and voidable, because it does not show the dates and amounts of the notes on which suit was brought or that the notes filed and offered in evidence were the same.

There is nothing in this assignment. The declaration, which is a part of the record, clearly sets them forth, and it would certainly be a singular ruling for this court to presume Unit, the circuit court received other notes than those on which suit, was brought, in evidence, when no objection appears to have been made to their introduction. The maxim, “ Omnia pra'.smauntar solemniter esse artay’ governs in such cases. 3 B. and C., 327; Lenox v. Pike, 2 Ark., 14.

We think the proceedings and judgment are in every respect, sufficient. Vide 19 Ark., 680; 1 Monroe, 250.

Judgment affirmed.

Chief Justice Wilsiiiiik being disqualified, did not sit in this case.

lion. WrLLiAM Htoiiy, special Chief Justice.


author: McClure, J.

text:
    Jordan v. Mitchell.

      Usury — intent—plea. To constitute usury, there must always he a loan in contemplation by the parties.
    No contract which in its inception is unaffected by usury can ever be invalidated by any usurious transaction.
    To constitute usury, there must be an intent to contract for and to take usurious interest.
    If neither party intends usury the law will not infer a corrupt agreement.
    A note for $700, bearing interest at ten per cent., the consideration of which was oxen worth $200, and $500 of Confederate money, worth but fifty cents on the dollar, is not usurious in its inception.
    The facts and acts which constitute usury, and an usurious intent, must be averred in the plea with certainty, and not left to inference.

      Appeal from, Drev) Circuit Court.

    Non. John Murry, Special Circuit Judge.
    W. T. Wells, fox* appellant.
    L. II. Piice, for appellee.
   McClure, J.

This was an action of assumpsit by attachment, brought by Jordan against Mitchell in the Drew circuit court, on a promissory note executed and delivered to plaintiff, on the 9th day of February, 1968, for $700, with ten per cent, interest.

The error complained of, by plaintiff in error, is: “That the said circuit court overruled the demurrer of the plaintiff to the defendant’s second plea, and rendered judgment thereon in favor of the defendant, when said demurrer should have been sustained, and judgment rendered thereon in favor of the plaintiff.”

The second plea here complained of admits the indebtedness of defendant to plaintiff, in the sum of $200, for two yokes of oxen, and that he, defendant, borrowed $500, in depreciated currency, commonly called “Confederate money,” from plaintiff, and executed his promissory note to plaintiff therefor, as alleged in plaintiff’s declaration, and avers that the depreciated currency, borrowed as aforesaid, was not worth more than fifty cents on the dollar; that the act aforesaid was corrupt and against the form of the statute, &c.; that the •said sum of seven hundred dollars, in said plaintiff’s declaration mentioned, so agreed to be paid, as therein stated, for the sum of two hundred dollars, and for the loan, as aforesaid, exceeds the rate of ten per centum per annum for the forbearing of four hundred and fifty dollars, for five months, and was and is usurious and void, &c.

To this plea plaintiff demurred upon the ground:

First. “ That said second plea does not allege the sole consideration of said promissory note was Confederate • money, but shows that only á part of the consideration was Confederate money.”

Second. “ That said plea is a defense to the whole action, when it shows there was a consideration for a part sued on, that was not Confederate money, and is not impeached.”

Third. “ That said Confederate money was not money, the same never having been issued or put in circulation by any lawful authority as money,” &o.

The demurrer was overruled, and plaintiff refusing to plead further, the court rendered judgment few defendant, and plaintiff took his appeal to this court.

This coart held, in Gregory v. Bewley, 9 Ark., 22, that, to constitute usury, there must be an intention to take usurious interest, and that where .one. loans depreciated .bank paper and takes his note therefor, payable in dollars, the transaction is not usurious, unless the form given to the transaction was. a device to covey usury. .

There are two cardinal rules in the doctrine of usury, which must be regarded in all adjudications on the .subject.

First. To constitute usury, there must be a loan in contemplation by the parties.

Second. That a contract, which in its inception is unaffected by usury, ,can never be invalidated by any usurious transaction.

There must be an intention knowingly to contract, for and to take usurious interest, for, if neither party intend it, the law will not infer a corrupt agreement. See Moody v. Hawkins, decided at this term.

Here, then, was a transaction which, at the time, appears not to have been usurious at its inception, because the defendant admits that he purchased the oxen, and that they were worth $200. There is no allegation or averment in the plea that the defendant was asked, forced or compelled to take the oxen at $200, in order to secure the loan of $500 in depreciated currency; nor is there any allegation or averment in the plea,, that the plaintiff' and defendant resorted to the. use of this depreciated currency as a form or device to cover an usurious transaction.

The defendant does not aver that the note, or any part thereof, was illegal; he simply states that the Confederate money, •for which ho executed his note, was worth but fifty cents on .the dollar, and from this, expected'the court to deduce the conclusion that the contract was usurious. This is not sufficient. The facts and aqjbs that constitute usury, and an intent to take more than legal interest, must be averred with certainty and not left to inference.

The:, sufficiency of the plea is the only cpiestion presented, and -yve are of opinion that there was error in the court below in overruling the demurrer.

Let the judgment be reversed, and cause remanded to the court below, to be proceeded in according to law and not inconsistent with this opinion.

Judge Harrison, being disqualified, did not sit on this case.

Hon. John 'Wiiytock, special Supreme Judge.


author: Giikgo, 3. McClure, J'.,

text:
    Parsel v. Barnes & Bro.

      Mandamus — affidavit to response. An affidavit is not necessary to the response to a petition for a mandamus, in the absence of an order of court requiring it. The propriety of presenting that question by general demurrer to the response is well questioned.
    County courts — power, to call in scrip. In sections 58, 59 and 60, of chapter 147 of QotM’s Digest, p. 025, authorizing county courts to call in county ■scrip, to classify, cancel and reissue it; to fix a time for scrip to be presented; and providing that all holders, failing to present, shall be barred from collecting, the intention of the Legislature clearly is, that all county scrip thereafter issued should be subject to the conditions and restrictions of those provisions.
    It was the clear intent of the law to operate prospectively; this law is constitutional.

    Lex loci contractus. The law existing at the túne and place of making a contract is a part of the contract: as much so as the stipulations expressed in the agreement.
    County warrants — order of county court required for. The statutes confer no power on the county clerk to issue* county warrants otherwise than upon the order of the county court. . . ‘
    Public oppicers. It is well settled that x>ublic officers and agents are held more strictly within the limits of their prescribed powers than private-general agents.
    It is well settled that tiro fact that a contract made by a public agent, relating to a subject within the general scope of his powers, does not bind his principal, if there was a want of si>ceific power to make it.
    Law op agency. A pirivate agent, acting in violation of specific instructions, yet within the scope of his general authority, may bind his principal.
    The rule is otherwise as to the effect of a like act of a public agent.

      Appeal from Pulaski Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.
    Gallagher & Newton, for appellant.
    Sections 58, 59 and 60, Gould’s Digest, give county courts power to order in all scrip; and, under sec. 60, the scrip was annulled, if not presented. The appellees having failed to present the same, lost their claim against the county. Parties to the contract are presumed to have contracted according to existing laws. Newton v. Peay, 21 Ark., 86. The statute above referred to was in the statute book long before said scrip was issued; said parties must' be presumed to have taken it subject to its being called in at any time by the county court. No case is shown for the issuance of a mandamus, because the petition does not show that the appellee has no other adequate remedy. Goings v. Mills, 1 Ark., 11; Taylor v. The Governor, 1 Ark., 21; Webb v. Hanger, id., 121; Trapnall, ex parte, 1 Png.,9; Williamson, ex parte, 3 id., 427; Hanley v. Whiteley,14 Ark., 687.
    Garland & Nash, for appellees.
    The act of the Legislature which seems to authorize the calling in of scrip, and under which the county court proceeded here, is unconstitutional, so far as it affects the rights of the holders of scrip issued before that order. Gould’s Digest, 925, sec. 580. The scrip is held as a contract between the parties, not to be interfered with, neither to be diminished or added to, no more than a contract between individuals. Bertrand v. ‘Byrd, 5 Ark., 651; Woodruff v. State, 5 Ark., 285 ; Woodruff v. Trapnall, 10 Howard,, (U'. S.,) 190; Lafayette County v. Underhill’s heirs, 19 Ark., 360, 409.
    The clerk issuing this scrip all in due form, acting within the scope of his authority, as he did, under our law, his acts are conclusive, and are binding on tlie county and all others. See Story’s Agency, p. 451-2, (notes 1, 2, 3); ib., 307-19-20; ib., 322 and notes; Lee r. Monroe, 7 Crane/)., 366 ; 8 Wendell, (N. Y.,) 403, 422; 9 Wheaton, IMS.

    And this is particularly so when the officer is not a party to the suit. State v. .Brennrat’s Tjirptors,ió Conn. Itep., 278.
   Giikgo, 3.

This suit ivas instituted by the appellees petitioning the Pulaski circuit court for a mandamus against the- appellant, as treasurer of said county', and to compel him to accept and pay off certain claims held by the appellees, which they alleged were warrants, legally issued by said county, and for the payment of which the said Parsel, as such treasurer, was liable.

Bo far as appears by the record, the claims held by the appellees were in the usual form of county warrants, duly issued, and were signed by the clerk of the county, and amounted in the aggregate to $975-^/^-, which were duly presented to the appellant for payment, and which he had refused to pay.

Upon the presentation of the appellees’ petition, an alternative mandamus was issued, upon the return of which the appellant appeared and filed 1ns response to the writ, in which he admits the petitioners are the holders of what purports to be twenty-seven pieces of Pulaski county scrip, issued previous to the 15th day of October, 1866, and that the same had been presented to him, as treasurer, for payment; he responds, that at the October term, 1866, of the county court of said county, the court ordered that all county' scrip issued previous to the loth day' of October, 1866, and then outstanding, should be presented to said county court on or before the 13th day of February, 1867, for classification and reissuing, &e.; that said appellees had due notice, and failed to present said supposed county warrants to the county court, &c.; and that thereby they were forever debarred from collecting the same.

The appellant further responded that no order was evermadebyr said county court allowing the demand and directing said clerk to issue warrants tlierefor, but that said clerk issued said supposed warrants wrongfully, without due authority from said county court, and. for that reason ho was not bound to pay the same, and asked to be discharged from the writ.

To which response the appellees interposed- their demurrer, and the court, after taking the case under advisement until a subsequent term, found in favor of the demurrer, and rendered judgment, making the mandamus peremptory against appellant, to Avhich finding and judgment he excepted and appealed to this court.

To sustain the demurrer the appellees insist that the order of the county court, calling in the outstanding scrip, was unconstitutional and void, so far as it was intended to affect the scrip previously disbursed.

Secondly. That the clerk of the county, in the issuance of county warrants, is the duly authorized agent of the county; and if such warrants were regular upon their face, 'and duly signed by him, the county is bound thereby, and it is immaterial to the holder whether or not the county court had made an order allowing such scrip and directing the clerk to issue the same.

Thirdly. That the response wars not verified by affidavit.

In reference to the last cause assigned, we do not hold, in the absence of any order requiring it, that an affidavit was. necessary to this response; but, if we did, we might well question the propriety of presenting that question by general demurrer.

We come to the main questions: Whether the order calling in the county scrip is binding on holders; and whether the county is liable for warrants issued and signed by the clerk without the order of the county court.

By the.act of the General Assembly of January 6, 1857, (secs. 58, 59, and 60, of chap. 147 of Gould’s Digest, p. 925,) it is provided that “ if the county court of any county may deem it expedient to call in the outstanding scrip of such county, in order to redeem, cancel, reissue, or classify the same, or for any other lawful purpose whatever, it shall be the duty of' such court to make an order for the purpose-of fixing a timo for such scrip to be presented, of which order holders of county scrip shall have notice;” and prescribes the manner in which such notice shall be given., requiring it to be published in each township in the county, as well as in newspapers printed and published in the State ; and providing that all persons who hold any scrip of such county and neglect or refuse to present the same, as required by such order of the county court, after the notice aforesaid, shall be forever debarred from deriving any benefit from their claims. It is admitted that the scrip in question was issued since the passage of this act.

The intcntkm of the Legislature is too clear to admit of any doubt. The neglect of duty, or incapacity of • some of .the county officers, often rendered it impossible for the county court, or the tax-payer, to determine the amount of outstanding county scrip; in whoso hands- the same -was, and for what purpose issued; and that the court and the citizens of the county might 1)0 fully advised — might know what amount of revenue was necessary to be raised, etc. — such act seemed important, and there can be no question but the Legislature intended to give the county courts such control over the warrants or scrip of the county as would enable them to take such action as would be most advantageous to the public, and fully intended that all county scrip issued thereafter should be subject to such conditions and restrictions ; and if the law only operated prospectively, as was clearly its intent,'there was certainly no violation of the Constitution in its enactment. But counsel insist that the order was unconstitutional, because made after the issuance of the warrants, without so attacking the law. .It seems well settled that the law existing at the time and place of making a contract must be considered as a part of the contract. See Thurston v. Peay, reer., 21 Ark., 86.

None, of the parties to this suit'question the proposition that the existing law is as much a part of the contract as are the stipulations expressed in the agreement. Should individuals, by express contract, stipulate that the one should acknowledge an indebtedness to another upon the condition only that he have a discretion left him, that the obligation given be presented to him at a time specified, or that he should name a time and place at which he should have the privilege of redeeming or renewing the same, and in case the holder refused to present the same, he should forfeit the claim, it certainly would not be insisted that such contract was unconstitutional, illegal or void by reason of such stipulations between the parties. Can it be so, when the law, which is admitted to be part of the contract, fixes such conditions and restrictions ? If individuals can be so bound, a community at large, acting through their corporate officers or agents, would have equal privilege, and if the county scrip occupied precisely the same grounds as bills of exchange, which is by no means admitted, the holder could not justly complain, because the law .was public, was a part of his contract, and he had full notice of its restrictions, terms and conditions at the time the scrip was issued and .come into his hands, and ho accepted the scrip with such conditions in law attached, and he is bound thereby.

Lastly. Were the warrants issxxed and signed by the clerk binding upon the county, if issued withoxxt the direction or order of the county court? Sec. 7, chap. 49, of Gould’s Digest, declares that the “ county court shall have power in all matters relating to county taxes, disbursements of money for county purposes,” &c., and “to audit, settle and direct the payment of all demands against the county.” Sec. 16, chap. 147, p. 918, declares “ that the treasurer shall receive and receipt for all moneys payable into the county treasury, and pay and disburse the same on warrants drawn by order of the county court.” Section 46 of the same chapter, p. 928, provides “ that when any county court shall ascertain that any sum of money is due from the county to airy person, body politic or corporate, an order shall be made allowing the same, and directing the clerk to issue a warrant therefor,” &e. These are the principal clauses bearing upon the question before the court, and there is no authority or power whatever conferred upon the clerk to issue warrants otherwise than upon the order of the county court. And the law requires all the orders and proceedings of the county court to be made matter of public record. So the full extent of the power and authority of the clerk can readily be seen, by referring to the law and orders regulating his duties, and the complaint that trade is incumbered by thus taxing the diligence of dealers, can have no force, when in conflict with well established principles of law and the general interest that the whole community have in being protected against improvident. or fraudulent acts of faithless officers or agents. See 18 Md. Rep., 282-3. Also ease of Mayor & C. C. of Baltimore v. Reynold, 20 Md. Rep., 11, and Lee v. Monroe, 7 Cranch, 366. We deem it well settled that public officers or agents are held more strictly within the limits of their prescribed powers than private general agents — not only because the extent of their power is more easily seen, but because the rights of large communities are in greater need of diligent guards than those of individuals, whoso selfishness is quite apt to hold in frequent, review the acts of all employees. See Clapp v. Cedar county, 5 Iowa, R., 16. In the ease of Williams v. Payton’s lessee, 4 Wheaton, 77, Chief Justice Marshall said, “ when an agent has a naked power, not cdujaled with an interest, the law requires that every prerequisite to the exercise of such power must precede its exercise — that the agent must pursue the power or his acts will not be sustained.”

So it seems -well settled, also, that the fact that the contract made by a public agent related to a subject within the general scope of his powers, does not bind his principal, if there was a want of specific power to make it. Although a pi’ivate agent, acting in violation of specific instructions yet within the scope of his general authority, may bind his principal, the rule as to the effect of a like act of a public agent is otherwise. See 20 Md. R., 10, and 26 Wend., 193.

Upon these conclusions we find the circuit coui’t of Pulaski county erred in sustaining the appellees’ demurrer to appellants response, for which, the judgment of that court is reversed, and this cause remanded, to be proceeded in according to law, and not inconsistent with this opinion.

McClure, J'.,

dissenting, says :

The principle involved in the decision just announced, and • its effect- upon the law, forbids that I should withhold, a - full and explicit statement of my solémn convictions' touching the grounds of my ’dissent, with the reasons upon which they are based.

"With all due deference for the opinion of the majority of the court,-! must be permitted to say that, in my humble opinion, they have delivered a dissertation on the powers and authority of the county courts, and seem to have ignored the question presented by the record in this case. If the determination and finding of the court upon their argument was correct, the reason they have given would be a matter that I would scarce take the time to refute, but both, in my opinion, being wrong, I shall briefly state the reasons that have' forced my present convictions.

This was an application for a mandamus by Barnes & Bro., against the treasurer of Pulaski county, to compel the payment of certain county warrants or scrip -in the hands of Barnes &' Bro.

The record presents but one question, and that is: Bid the court err in sustaining the demurrer of Barnes' to the answer or response of the treasurer?

The response of the treasurer says that the county' court ordered all county scrip, issued previous to the 15 th of October, 1866,then outstanding, should be presented to said court on or before the 18th day of February, 1867, for the purpose of classification and reissuing, and refers to the order of the court and makes it a part of his response, whereby the collector and treasurer are directed not to receive • any scrip issued prior to October 15, 1866.

Tlie office of collector and treasurer are created by law; they are not members of the county court, and their duties áre as independent of the county court as the Executive of the State. Arrogating to themselves almost dictatorial powers, the county court, on its own motion, attempts to issue a perpetual injunction against the collector and treasurer of the county, prohibiting them from receiving the scrip issued by the clerk of the county.

Under the provisions of see. 58, chap. 147; Gould's Digest, the county courts arc empOAvered to call in their county scrip once in every three years. The 59th section of same chapter requires the sheriff to 'give notice, in the manner therein prescribed, to the holders of the scrip to present the same. The 60th section debars all scrip not presented Avithin the time given for presentation.

Tlie amended petition of ’Barnes stated that, before the 13th of .February, 1867, he presented said scrip to the .clerk of the county, according to the terms of the order, set forth in said petition, made by the county court.

The validity of the action of the county court, in calling in the outstanding county scrip for classification and reissuing, is a matter that I need not discuss.

Under this form of proceeding, had the county court any power or authority to issue an order or command to the collector or treasurer, directing them to not receive or protest any scrip issued before the loth of October, 1866? I am clearly of opinion that it had not, and that., in that respect, their action was illegal and void; and, being illegal and void, tlie court boloAv did right in treating it so; and their action was no authority under Avhicli the treasurer could protect himself, lie could not plead tlie order, because it had rio legal effect.

If the county court desired to control the action of these officers, they should larve applied for an injunction to the circuit eóurt.

So far as the treasure)- is concerned, in the absence of any legal command to the contrary, heAvasand is bound to pay tin1 scrip of the county, when presented, if he has the funds in his possession for that purpose. It is not for him to say that the county court never made an order authorizing the county clerk to issue the scrip, or that the clerk issued the same without authority.

The scrip itself purported to be the warrant of the court, under the seal thereof, commanding- him to pay, and, so far as he was concerned, he was bound to presume that all the requirements of the law had been complied with.

The validity of this scrip is not before the court, nor are we called upon, in my opinion, to decide whether warrants issued and signed by the county clerk are binding on the county. The county is not a party to this proceeding, and we have no power or right to adjudicate upon such questions at this time.

The alternative writ had been issued, and to this writ the treasurer makes his return, and if good cause is] not shown by him, no matter what the merits or demerits of the county may be, the peremptory writ ought to issue. To say that a county may have dishonest, incompetent and unfaithful officers, as it appears was the.case in this instance, and that the county authorities, who arc charged with the protection of its interest, can sit idly by and see an application made for a mandamus against] the treasurer, to compel the payment of the scrip that they have ordered refunded, without taking stejis to restrain the payment, certainly shows a dereliction of duty that deserves a severe reprimand, rather than the sympathy expressed by the majority of the court.

The return must contain a full and certain answer to all the averments made by the petition, and a fair and legal reason for disobeying the mandamus. In point of form, it requires the same certainty and precision necessary in other declarations and other pleadings. 6 Bacon Abrg., 447.

Every allegation of the petition, save one, is admitted by the answer, and the only thing denied by the answer is, that Barnes presented the scrip to the county clerk before the 18th of February, 1867. If, then, the same certainty is required as in other pleadings, from the person making the return, what fact or legal reason is set forth for disobeying the mandate to pay, or show cause why he should not, is or was presented to the court below.

Mandamus, although not a chancery proceeding, so far as the pleadings are concerned, partakes of that nature. If, then, this return had been an answer to a bill in chancery, and had not been sworn to, would it not have admitted all the allegations of the bill, and would not the Chancellor have granted the prayer of the bill, if no other defense had been made? This being true, was not the court below placed in just the same condition as though no return had been made by the treasurer; or was not the court, at least, placed in the same condition as though no sufficient return had been made; and, having been so placed, was it not the duty of the court to have awarded the peremptory writ? I think it was, and that the return made by the county treasurer admits all the allegations of the petition, and can not be construed into denying any thing, or setting up any defense, or showing any reason why the peremptory writ should not issue.

Whether a general demurrer was the proper manner to raise the question of verification, I do not propose to discuss. I know that the general demurrer, in effect, said that the return was not in law sufficient. It is ■ nowhere asserted by the return that the county is not legally indebted in the amount of these pieces of scrip, and the attempted defense set up by the treasurer would not, in my opinion, be sufficient to have delayed the issuing of the peremptory writ.

The treasurer does not show any legal authority restraining him, or that he did not have the funds to redeem the scrip, and the peremptory writ ought to have issued.


author: Gregg, J.

text:
    Parsel, Treasurer v. Merchants’ National Bank.

      Appeal from Pulaski Circuit Court.

    lion. Liberty Bartlett, Circuit .Judge.
    Gallagher & Newton, for appellant.
    Garland & Nash, for appellee.
   Gregg, J.

The decision of this court, in the case of Thomas Parsel v. Barnes & Bro., is conclusive in this case. No question is presented for adjudication herein but what has been determined in tliat suit.

The judgment of the Pulaski circuit court is'reversed, and this cause remanded, to be proceeded in according to law, and not inconsistent with this opinion.


author: Harrison, J.

text:
    Tunstall, executor, &c., v. Jones.

      Arrears — exceptions. Where a. defendant moves to set aside a sale, under an execution, upon a motion, answer and reply, and no motion is made for a rehearing, or a new trial, and no error is in' any manner designated, there is no case presented'for the consideration of this court. State Bank -p. Conway, Cl Ark., 35//.. Approved.
    Vendor’s Lien — homestead. A vendor’s lien is in the nature of a trust.
    Equity regards the vendee as holding’ the estate in trust for the payment of the purchase money.
    The trustee can not set up an adverse title, or do any thing which can place him in a position inconsistent with the interests of the trust, or which has a tendency to interfere, with his duty in discharging it.

      A homestead, exempt as such from sale under execution, may still remain subject to the vendor’s lien.
    The bare existence of a vendor’s lien upon a homestead does not remove the exemption and subject the property to sale under execution.

      Appeal from Jack&on Circuit Court.

    Hon. L. Yj. Mack, Circuit ,Judge.
    Byers & Cox and Garland & Nash, for appellant.
    W atkjns & Nose, for appellee.
   Harrison, J.

This was a motion by d ames W. J ones, in the <J ackson circuit court, to sot asido and vacate the .sale of certain parcels of land, and the levies thereon, made by virtue of four executions, from that court, against him, in favor of James M. Tun-stall, as executor of William W. Tunstall, deceased, upon the ground that the land was part of his homestead, and as such exempt from execution.

Tunstall and the purchaser, Solomon G-. Kitchen, tiled an answer to the motion, denying that the land sold was a part of the homestead, and setting up a vendor’s lien upon it for the payment of the moneys recovered by. the. judgments upon which the executions issued.

To the answer Jones replied in short upon the record.

Upon the hearing of the matter, as thus presented, the court net aside the sale and quashed the levies. Tunstall and Kitchen excepted to the judgment of the court, and setting out in their bill exceptions the motion and answer, together with the evidence, appealed to this court.

No motion was made for a rehearing, or new trial, and no proposition was submitted to the court or declared by it as tbe. law applicable to the case, and. no error in tbe proceedings is in any manner designated or pointed out.

We are therefore unable to determine, by the record before us, whether the court doomed the facts alleged in the answer not proven, or considered them unavailable as a defense. This case, though a collateral proceeding, is, therefore, clearly within the rule established in State Bank v. Conway, 13 Ark., 344, and approved and followed in quite a number of decisions since; but we have thought it proper to direct our attention to so much of the answer as sets up a vendor’s lien as a defense.

/Phe lien of the vendor is in the nature of a trust, and equity regards the vendee as holding the estate in trust for the 'payment of the purchase money, and he can not set uj) any adverse title, or “do any thing which can place him in a position inconsistent with the interests of the trust, or which have a tendency to interfere with his duty in discharging it.” 1 Story Eq. Jur., sec. 322. And therefore, though by the appropriation of the land as a homestead, it becomes exempt from execution, it still continues subject to the lien.

But this lien is the mere creature of a court of equity, growing out of the sale and non-payment of the purchase money, predicated upon the principle that one who has gotten the estate of another ought not, in conscience, to be allowed to keep it and not pay the consideration money. “It is not, strictly speaking,” says Judge Story, “either a jus in re ora jus in rare, that is, it is not property in the thing itself, nor does it constitute a right of action for the thing. It more properly constitutes a charge-upon the thing.” 2 Sto. Eq. Jur., sec. 1215; 1 Hil. on Mort., 626.

.Being then so purely an equitable right, it can only be established by a decree of a court of equity, and enforced in its own peculiar manner, and upon its own peculiar principles. The ■court, in Pratt v. Van Wyck, 6 Gill & John., 498, say: “It is a relief offered only, then, on the ground that the claimant is remediless in a court of law. If the vendor can, by any proceeding at law, recover the amount due him, chancery never interferes to enable him to assort his equitable lien. His remedy at law must be first exhausted, or it must bo shown that none exists there.” See, also, Engler & Matthews v. Crabbs, 2 Md., 154.

It is, therefore, manifest that the hare existence of the lien had no such effect as. to remove the exemption and subject the homestead to sale under the executions.

No error being shown by the record, the judgment of the court below is affirmed.


author: Wilshire, 0. J.

text:
    Hanna, admr., v. Pitman.

      Appeal — affidavit of good faith requisite. Unless the affidavit required by the statute is duly filed, or duly waived, the appeal to this court is not perfected, and does not operate as a supersedeas.
    Writ op error. Whore an appeal from a judgment is prayed and granted, but the requisite affidavit is neither filed nor waived, a writ of error may be sired out to bring tbe same judgment before this court for review.

      On Plea of Abatement.

    English, Gantt & English, for plaintiff..
    Watkins & Rose, for defendant.
   Wilshire, 0. J.

Pitman, the defendant in error, pleaded in abatement of the writ of error: “ That, at the time of rendering final judgment in the court below, on the 11th day of May, 1867, the plaintiff in error prayed an appeal from said judgment to this court, which was granted by the court below; which appeal, by operation of law, became and was and is' a supersedeas upon the judgment, and which appeal remains undisposed of,” &e. The plaintiff in error replied to the plea in abatement, “that, although at the timo of rendering the final judgment, ho prayed an appeal, which was granted by the court below, no affidavit, for said appeal was filed by him, or waived of record or otherwise by the defendant in error, at the time said appeal was granted by the court below, nor has any affidavit for such appeal been since filed by the plaintiff, or. waived by the defendant ; hence the said appeal was not perfected and not become, nor has ever been, a supersedeas upon said judgment,” &c. The defendant demurred to the replication, and its legal-sufficiency is thus presented for our consideration.

The statute regulating the practice at law in circuit courts, says that “ no appeal shall be allowed, unless, first, it be made during the term at which the judgment or decision complained of was given; and, second, the appellant, or his agent, shall, during the same term, file in the court an affidavit stating that, such appeal is not made for vexation or delay, but because the affiant verily believes that the appellant is aggrieved by the decision or judgment of the couid.”

Under our lav/, executors and administrators are not required to enter into recognizance to obtain the order of the circuit court to make an appeal taken by them operate as a supersedeas upon the judgment. But the filing of the affidavit, required by the statute is an. indispensable prerequisite, and must bo done to perfect an appeal, and within the time required by law. Bank of State v. Hinchcliff, 4 Ark., 444; McJenkins v. State Bank, 7 Ark., 232; Town v. Wilson, 7 Ark., 386. In the case of Yell, Gov., use of Conant & Co., v. Outlaw, et al., 14 Ark., 413, Chief Justice "Watkins delivering the opinion of the court, says : “ Wo take the distinction to be between those cases when* the appeal does not operate as a supersedeas, and those on the other hand, where, by operation of law, or the act of the suitor by entering into recognizance, the execution is stayed upon the granting of the appeal to this court.” If,” said the learned judge, “ in that ease, the successful party in the court below is not hindered by the appeal from having execution, no good reason is perceived why the appellant may not, dismiss his ap; peal at any time before the final adjudication of it, with like effect as if he had brought the cause here for revision by writ of error without supersedeas.” In that ease the court said that -the pendency of the appeal, at the time of suing out the writ of error, might he good in abatement of the latter proceeding,” he. That rule we think correct, because, where a party has brought his ease into this court by one of the modes prescribed by law for bringing the proceeding of circuit courts here for review, he should not he allowed to resort to any other, while the first proceedings are pending. •

.But in this ease the replication states, that, although the appeal was prayed for and granted by the court below, no affidavit for the appeal was filed by the plaintiff in error, or waived by the defendant. This the defendant in error admits, by demurring to the replication. Then, it is clear that the prayer by the plaintiff in error for the appeal, and the same being granted by the court below, without the affidavit required by the statute being filed, although the plaintiff in error was sued in the court below as administrator, could not ijiso facto operate as a supersedeas upon the judgment, and we think no appeal was taken, and the replication is a sufficient answer to the plea in abatement.

The demurrer is overruled.


text:
    Burr v. Robinson, admr., et al.

    Vendor’s lien — ‘mortgage. A vendor of real estate has u. lien for the unpaid purchase money.
    A mortgagee of real xiroperty, with a power t-o sell and to apply the proceeds to the payment of his demand against the mortgagor, is an agent or trustee of the mortgagor. lie has no lien as vendor in case of sales made hy him as such agent or trustee.
    The mortgagor of real property has the ownership or fee. His wife is entitled to dower.
    A mortgagee of real property, even after forfeiture, has no interest in the property that is subject to execution.

      Appeal from Independence Circuit Court.

    lion. Richard H. Powell, Circuit Judge.
    Watkins & Ross, for appellant.
    The vendor retains a lien for the purchase money, although the deed recites its receipt.' Scottv. Orbison, 21 Ark., 202; Shall v. JBi'seoe, 18 id., 142; Hashill v. Sevier, ms. opinions of last term.

    The vendor of an equitable estate in land has a lien to-the same extent as the vendor of the legal title. Bledsoe v. Gallies, 80 Miss., 448; Stewart v. Hutton, 8 J. J. M., 178 ; Ligan v. Alexander, 7 id., 412; Galloway v. Hamilton, 1 Lana, 576; Garson. v. Green, 1 J. C. B., 808.
    Byers & Cox and Garland & Nash, for appellee.
    We submit the following propositions: Burr’s interest in and under the mortgage lien was simply a chattel interest, personal assets that would go to the executor, and nothing-more. Willard’s JSquity, p. 444; JDamarest v. Wynkoop, 3 John. Ch., 135; Coote on Mortgages, 510; 3 Swanston, 638; Powell on Mortgages, (4i/i ed.,) 225, et seq.

    The mortgagor is the owner of the land, and the mortgage is treated as a mere incumbrance. Willard, sup., 483 and note 4.
    A power of sale in a mortgage does not, in any respect, change the nature of the instrument, or the rights of the parties. Willard, sup., 430; Coote, sup., 33 and 526 ; and a sale under this power is but a foreclosure at last. See authorities last cited..

    When the debt is paid there is an end of the mortgage, and no reconveyance is necessary at all. Willard, sup., 438 ; Jackson v. JDavis,í8 J. B., 7.
   Gregg, J.

Edwin T. Burr filed his bill of chancery, in the Independence county circuit court, against the administrator, widow and heirs of Henry Slater, deceased, to enforce a vendor’s lien.

The complainant alleges that, on the 27th day of December, 1850, John A. Carter was the owner of lots 1, 2, .10 and 11, in block 4, in Batesville, and also of certain . other real estate in the county, and on that day he Executed to complainant his five promissory notes, the first four for $1,000 each, the other for §694^°^, payable, respectively, at one, two, three, four and five years after date, and to bear interest at ten per cent, per annum from maturity; and, to secure said amounts and interest, Carter executed to him his deed of mortgage, with power to sell for cash, at six months after the notes respectively fell due, but to be void, if Carter should pay off the several notes according to their tenor and effect.

The bill alleges that Carter failed to pay the last $2,800 due, and that, after duly advertising said lots and lands for sale, he, in accordance with said deed, and the authority therein given, on the 22d of September, 1860,'sold the lots and lands for a sum sufficient to pay off the amount then duo him; that Slater, the deceased, became the purchaser of the town lots for $1,300, and that he paid $1,000 down, and executed his note for $300; that complainant executed to him a deed, and in that ■acknowledged the receipt of the full consideration.

The pleadings show that the notes, to secure which the mortgage was given, rvero all satisfied, and that complainant, by his attorneys, entered satisfaction of the mortgage upon the record, and that Slater entered upon the lots and held possession until his death; that the defendant, Robinson, became administrator of his estate, and that the assets were not sufficient to pay the debts. The bill was answered by Robinson, and a demurrer filed by one of the heirs; the cause set for hearing on the bill, answer, replication, exhibits, evidence to be taken, and the demurrer of Lyon, an heir ; upon the hearing the court dismissed the bill for‘want of equity, and the complainant appealed to this court, and assigns for error “ that the court below refused to grant the relief prayed for.”

It is one of the well settled principles, that an owner of lands, who sells the same, may rely upon the lands for the security of the purchase money and enforce his lien against the Vendee, or any one holding under him, with notice of the nonpayment of the purchase price.

Less solemnity is given rights in personalty. The usual and ever pressing demands of a commercial people require that hut few clogs should he allowed to the ready transmission of good titles in ehoses in action, movable property, and chattel interests in general. Ileal estate is permanent, and the law requires written forms to he observed, a registry of titles to be kept, and gives a vendor a right to sell, and to hold his lien upon the realty, Avithout any acts, deeds or writings, further than to see that innocent parties do not suffer from an improper showing that title has passed out of him ; and that diligence can be manifested by a showing upon the register’s hooks, or by othenvise advising such as might become innocent purchasers.

The law, then, which has been adapted to the condition's, Avants and necessities of the aaIioIo people, makes these marked distinctions between freehold estates and mere chattels. Tt has so groat reverence for landed property that the owner is guaranteed in the enjoyment of privileges not allowed to him who only holds movable effects, Avhich, for the conveniences of trade, must often change ownership as Avell as location, by the hasty Avill of parties, and the handing over of possession, and 'leaves the vendor with no more lion upon the specific chattel than upon any other property of the vendee.

If the Iuav makes these distinctions, it is necessary to examine carefully the rights of the complainant, and discover Avhethor or not they bring him within that class entitled to the relief sought in this suit.

The Supreme Court of Kentucky, in the case of Ligan v. Alexander, 7 B. Mon., 287, Avhorciu real estate had been transferred without the purchase money being paid,'say that “the vendee is a trustee for the Arcndor for the unpaid purchase money, and all persons claiming under him, how remote soever they may be, who have notice of the trust, are likewise boundbut one who is a mere agent to make conveyance, one who has no equitable interest, one who is not the real and substantial party from whom the title passes, can have no lien. See 6 Wendell, 77; Hilliard on Mortgages, p. 626 and 627. The law no more creates or allows a lion upon a mere right in action, upon a mei’e chattel interest growing out of real estate, than upon other personal property; that is, whether it arises out of a freehold or landed interest, or otherwise, the law attaches no liens upon a mere chattel interest-.

In the case under consideration, it appears that Carter owned the lands in fee, and, while- he so owned them, he became indebted to the complainant, how, or for what consideration, does mot appear; and, to secure the payment of his notes to complainant, he executed his mortgage to him with a power of sale. The making of such deed, and the power conferred upon Burr, constituted him agent or trustee of Carter, to sell and convey for him, and he was none the less the agent of Carter, and acting for him, because of his right to the purchase money paid by Hlater for the lots; and that, notwithstanding he had power to execute an indefeasible title, the ownership or real title is in the mortgagor. Warring v. Smyth, 2 Barb. Ch. Rep., 135; 15 Ill., 503. The vendee, in such mortgagors the medium through which the title passes — he is the attorney in fact of the vendor. 1 Hilliard on Mortgages, chap. 8, sec. 1.

Chancellor Kent, in his Commentaries, vol. 4, see. 158, says the “ equity doctrine is, that the mortgage is a more security for the debt, and only a chattel interest, and, until a decree of foreclosure, the mortgagor continues the real owner of the fee. The equity of redemption is considered to be the real and beneficial estate tantamount to the fee at' law',” Ac. The mortgagor, while in possession, is the real owner; his wife is entitled to dower ; he is the freeholder, and entitled to all the privileges of such.

This court enunciated the same principle in Hannah v. Car rington, et al., 18 Ark., 100. The right of the mortgagee, even after forfeiture, is so slight that it is not the subject of execution. Trapnall, admr., v. The State Bank, 18 Ark., 52, and cases there cited.

From these considerations, and from the cases above referred to, and the authorities therein cited, we come to the conclusion that Burr only held the legal title as a trustee, and had no power to sell, only such as was contained in the mortgage; that he could only sell for Carter, and for the purpose named in the deed, and that, when his mortgage was satisfied, he had no further claim, legal or equitable, on the lots. lie had no right to depart from the tenor and effect of the deed, and if he attempted to do so, and entered satisfaction of his mortgage, when in point of fact he had not received the money, it was his own folly; and if he, of his own choice, (as seems most likely,) thought fit to credit the. deceased for $300, that'he should have required paid down, it was a contract that ho must abide by, and no preference can he given him over other bona fide creditors of equal grade.

Finding no error in the decree below, the same is in all respects affirmed with costs.


author: Story, Special G. J.

text:
    Botsford v. Yates.

      Jvky. In a civil case, where judgment is rendered by default, the record must show affirmatively that the jury were sworn.
    Change oif venue. — Where the defendant moves for a chango of venue, and afterwards the court renders judgment against him by default, this ip a virtual overruling of the motion.
    In such a case, If the defendant fails to except to the action of the court, and to set forth his motion in the hill of exceptions, it cannot bo considered by the Supreme Court.

      Error to Hot Spring Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.
    • Rice & Benjamin and-G-allagiier & Newton, for plaintiff.
    English, Gantt & English, for defendant.
   Story, Special G. J.

.Arthur Yates brought assumpsit, by attachment, against Jefferson G-. Botsford and Daniel W. Kittle, partners, under the firm name of Botsford & Kittle.

The writ was executed by attaching some horses, and by personal service upon Botsford, who thereafter gave a bond for the horses. Kittle was not served. At the return term Botsford moved for a change of venue, which was, by the court, taken under advisement, and the canse continued, with an order of publication against Kittle. No action was taken at the following term, hut at the term thereafter the cause was discontinued as to Kittle. Botsford failed to appear, and a judgment by default was entered against him. A writ of inquiry ivas ordered, “whereupon,” says the record, “the following named persons were impaneled to assess damages, to-wit: (naming them). The jury, after hearing the evidence, return into court the following verdict: ‘ We, the jury, assess the plaintiff’s damages at $133y^-. J. J. Gillis, foreman.’ It is therefore considered,” etc.

The errors assigned aro: First. That judgment was rendered by default against Botsford, without having disposed of 'his application for a chango of venue. Becond. That the court failed to grant a chango of venue. Third. That the record does not show the jury to have been sworn.

Wo arc of the opinion that the court virtually overruled the motion for a change of venue by rendering judgment by default. Davis v. Gibson, 2 Ark., 115. But whether the court overruled the motion or treated it as a nullify, the-defendant not having excepted to the action of the court below, and set forth his motion for a change of venue in his bill of exceptions, it id not a part of the record, and can not bo considered by us. This-principle was settled in the case of Lenox v. Pike, 2 Ark., 14, and has been affirmed in numerous later decisions. Vide 2 Ark., 442; 5 Ark., 89 and 264; 1 Eng., 434; 2 Eng., 256; 5 Eng., 489; 8 Eng., 316.

We have hesitated somewhat in 'deciding as to the sufficiency of the record to sustain the judgment of the court below, from the fact that it fails to show that the jury wore sworn.

Our statute, page 646 of Gould’s Digest, requires that the jury shall be sworn in .every civil case; and it is held, in 7 Ark., 445, that, where the judgment is rendered by default, the court will not presume in favor of its correctness; hut in such cases the record must show affirmatively that the proceedings were according to law, and the weight of authority clearly requires that the record should show that the jury were sworn. Vide Phillips, et al., v. Gov., &c., 2 Ark., 391; 6 ib., 505; 1 Hempstead C. C., 181; 1 How., (Miss.,) 24, 30, 497; 27 Mass., 238 and 313; 7 Texas, 556; 3 Blackford, 269 and 304: 1 Morris, 62 and 138.

Judge Wii.shire, being disqualified, did not sit in this ease.

lion. William Story, Special Chief Justice.