author: <GltEU&, J.

text:
    McClure v. McDearmon.

      Equity — Liens.—A sale or lease by one joint-stock owner of liis joint interest to the other for a valuable consideration, reserving, by trust deed, a lien on the joint stock interest and the increase thereof in the line of business, is a continuing security, enforcible in equity, between the parties and their privies, with knowledge of the prior incumbrance.

      Appeal from Independence Circuit Court.

    Hon. Elisha BaxteR, Circuit Judge.

      Watkins Hose, for appellant.
    A mortgage -will not pass chattels not in existence at the time it was made, or not in the ownership of the mortgagor at the time. 1 Hilliard on Mortgages, p. 6; 3 lb., ch. J$, sec. J, T- and cases cited, particularly Moody v. Wright, IS, (Mass.) SO, S9; Winslow v. Merchants, etc., 3d, 306; Bernard v. Eaton, 3 Cush., 394-; Godman v. Freeman, 3d Ga., 306; Otis v. Sill, 8 Barb., 103; Gardner McEwen, 19 N. Y., 133; Qhapin v. Cram., 40 Maine 561; Cudworth v. Scott,41 N. H., 4.76; Bose v. Bevan, 10 Md., 466.

    The mortgage, in this case, did not even bind the forty logs and the fifteen cords of. wood on ha,nd, at the time Ingram sold to McClure, because it is no where shown or even claimed in the bill, or elsewhere, that Ingram had them at the time he made the mortgage, • which was six months before the sale by Ingram to McClure. See Hamilton v. Rogers, 8 Md., SOI; 3 Hill on Mort., ch. sec. 33, p. 398.

    •The notion on which the decree is based, that A. may pledge, by mortgage, the after-acquired property of B., seems never to have been thought of before — certainly it has never been put in print.
    We submit, then:
    1st. That the injunction should have been dissolved, except as to the forty logs and the fifteen cords of wood.

      2d. That the injunction ought to have been dissolved altogether, there being no evidence that the logs and wood belonged to Ingram, when the mortgage was made, or that they were at the mill when the suit was brought.

      Byers $ Cox, for appellee.
    If the mill and lease were real property, a covenant to pay rent would run with the realty. 4 Kent, J¡.73, and n. b.

    But we will treat the lease, in this case, as being upon personal property. The lease by McDearmon to Ingram being-but for one year, was a personal chattel. 2 Kent, 343 and n. L.

    1st. It is a principle of universal application in equity, that all kinds of property, whether real ■ or personal, capable- of being sold, may he mortgaged in conformity to the maxim of the civil law, “Whatever may receive purchase and sale, may also receive hypothecation.” Rents, franchises, choses in action, possibilities, coupled with an interest, etc., may he mortgaged.. 3 Story Kqt., see. 1021.

    Things having a potential existence, and contingencies and possibilities coupled with an interest, a single hope or expectation of means, founded on a right in esse, are capable of sale (and, consequently, of mortgage) at law. 1 Bouv. Inst. Nos. 599 to 602; 2 Kent, 468 and n. g.; 2 Kent, 401 and n. b.: 1 Parsons on Con., 523.

    And we refer specially to the case of Ilibblawláte v. Me Marine, 5 M. and IF., 462, cited at length in the last named note, overruling the doctrine that the sale of property, to which the-vendor has no title, and which he intends, at the time of sale, to go into the market and buy, is void and cannot he enforced.
    The doctrine at law requiring the existence, actual or potential, of the thing sold or assigned, falls far short of that now entertained by the courts of equity, for they will support the assignments of contingencies and possibilities having no potential existence, but resting in mere possibility; not as a transfer to operate -in presentí, but to take effect and attach as soon as tlie tiling comes in esse. 2 Story Eqt., sec. 1040, and the authorities cited in the notes to that selection; also, Secs. 104.0, c. and notes; 104-0, d. and notes; 1055, and notes; 2 Story Eqt, S'-c 1021; 1 Mai., ch. 54; Adam’s Eqt., 54; Kent’s Com., 468, and n. g.

    - In the case now before the court, the mortgage or deed of trust given by Ingram, gave the appellee the right and power to seize the property mortgaged, as soon as it come in esse, and there was a default in payment by Ingram. Ingram made default; the property mortgaged come into being and the appel-lee executed the power vested in him as mortgagee and trustee, by seizing the property, and the mortgagor, and his privies in estate, are esiopped from now questioning the mortgagee’s lien thereunder. Moody v. Wright, IS Met. 17; 2 Story Eq. sec. 1040'and ??. 8, 6 and 7; 2 Story Eq. sec. 1040 and n. 8; Holroyd v. Marshall, 6 Jurist, N. S. 931; Hose v. Holy, 5 El. and El. 845; 2 Jurist, N. S. 486; 1 Parsons on Contracts, 570, 1 and N. S. and T; Congress v. Eveits, 26 E. Ij. and Eq. 493; Wood v. Luster, 29 Barb. 145; Vanllosyer v. Cory, 84 Barb. (N. Y.) 10; Budworth v. Scott, 41 H. Ilamp. 466; Beaumont v. Crane, 14 Mass. 4-00. All of which authorities are cited in 2 Kent (11th Ed.) 616, n. 5.

   <GltEU&, J.

'On the 27th of August, 1868, the appellee presented his bill of complaint to the chancellor of Independence county, and prayed an injunction against the appellant, which was awarded .and the bill filed in the office of the clerk of that county.

‘The complainant alleged that on the third of May, 1867, he and “William Ingram, jointly owned a saw mill, machinery, etc., for running the mill and manufacturing lumber, and also a lease for four years, from November, 1866, of the ground on which the mill stood; that he owned one-third and Ingram two-thirds; and that they could not agree in jointly running the mill, and by arbitration, it was agreed that Ingram should run the mill from August 1, 1867, to August 1, 1868, for the use of which he was to pay the appellant $600, and certain expenses to be incurred. And the appellee was to have a lien upon the stocks and on the lumber cut, within the year, to secure quarterly payments. The award was signed and recorded, and on the third of August, 1867, Ingram executed four writings obligatory, and a deed of trust on the stocks and lumber to he cut, to secure the payment. The deed was recorded; at maturity the first obligation was paid off.

On the first of November, 1867, Ingram delivered the mill, etc., to the appellant, and by deed of January 16, 1868, conveyed to him all his interest in the mill and apparatus 'connected therewith.

lie also alleged that appellant had seen the deed from Ingram to him, and was notified that he would hold appellant for the payment of the writings obligatory, not satisfied; that appellant received from Ingram sixty logs, worth $150, and used the same; and that on the 81st of July 1868, the appellant had forty-seven thousand feet of lumber that had been cut on the mill, within the preceding year, on which appellee claimed a lien for the payment of the obligations; that Ingram was insolvent, and that appellant would sell the lumber if not restrained; that appellant held the same, and would not return it or pay the rents due.

The prayer of the bill was, that an account he taken between the three; that whatever might he found due to appellee he declared in his favor, on said lumber; that appellant he restrained, etc.

The bill was taken pro con.fesso, as to Ingram.

McClure, by answer, admitted the original ownership of the mill, lease, etc., as charged; admitted that he knew of the writing from Ingram to McDearmon, “called a deed of trust,” at the date of his purchase, but denies that Ingram had any logs or lumber at that time; alleges that he held, as Ingram’s agent, from November, 1867, to 16th January, 1868, at which time he assumed the balance Ingram owed Ramsey for Ingram’s two-tliird interest, in the lease, mill, etc. Alleges he was no party to Ingram’s renting, and that he informed appel-lee that he would assume none of Ingram’s responsibilities, but he was ready to run the mill upon any satisfactory agreement, made with himself, but in no other way. He admits that the mill cut lumber of much more than the value of the writings obligatory, within the time of such renting, but that he could not distinguish any part of that from other lumber. He fails to respond to the allegations of Ingram’s insolvency, ■or his intention to sell the lumber.

Much more testimony was taken than seems to have been necessary — there being but little contradiction in the material allegations in the pleadings.

The substance of the testimony satisfactorily shows that the parties respectively owned the shares stated; that the contract between Ingram and McDearmon was made, as alleged, and that McClure; at and before his purchase, knew of the terms of that agreement; that he took possession of the mill and refused to pay the rents; that the mill cut a lai’ge amount of lumber, and that there was of the lumber cut, between the ■first of August, 1867, and first of August, 1868, on the yai’d, at the date of the injunction, much more than sufficient to pay off the rents claimed by the appellee.

The court found for appellee; decreed that the amount of the remaining writings obligatory be paid, and that he have a lien upon the lumber enjoined, and that, if payment be not made, that it be sold, etc. *

Upon the hearing, the appellant objected to the reading of the trust deed, made by Ingram to McDearmon, because it was not sufficiently stamped — there being but a fifty cent internal revenue stamp on it. On motion of the appellee, the court allowed the clerk, in open court, to affix another similar stamp, and then held the deed sufficiently stamped, to which the appellant excepted.

He, also, objected to the reading of the deed, as evidence, because it was made in the name of Wilson W. McDearmon -whoso full and proper name was William Wilson McDearmon. The name in the writing obligatory was the same as in the deed.

McDearmon set out his full name in his bill, and alleged that these writings obligatory were made to him, and set them -out in full, which sufficiently showed how and to whom they were executed; and this was in no way questioned by the appellant, in his answer; and such objections, at the hearing, were technical and frivolous.

There is but one question of doubt or importance in this cause, and that is, whether or not the stocks obtained and the lumber cut after the execution of the trust deed, could have been so conveyed by that deed as to be binding on the parties and their privies?

The appellant denies that he is bound by the contract with Ingram, or that the court below could properly decree a lien upon the lumber, cut by the mill, during the time of the renting.

The peculiar circumstances and inherent equities of each cause, may influence the chancellor to make the most liberal application of the established rules of equity to the facts appearing before him; the rigid rules of law should never defeat the ends of substantial justice, where the more liberal doctrines of equity jurisprudence reach the merits of the case.

We understand the rule of law to be, that a mortgagor can-n'ot convey chattels not then in existence, and to which he has; no present title. Dut in equity, incumbrances, not enforcible' at law, are sometimes held valid.

Courts of law and courts of equity, upon imperfect titles, do not always take the same view of the conveyances. A mortgagor of land, at law, has a mere tenancy, and the mortgagee has the title and the right to take possession at any time, unless restrained by positive agreement to the contrary. But in equity the mortgagor is regarded as the real owner, the mortgage a mere security, a mere chattel interest, until after foreclosure.

A legal mortgage is the conveyance of the property intended, as a security for the performance of some prescribed act; but" there are equitable mortgages, wherein the mortgagor does not actually convey the property, but does some act manifesting his intention to bind the same as a security; and courts of equity have frequently sustained claims of lien upon property that would not have been reeogized by courts of law. Unreserved vendor’s liens are not recognized by courts having no equitable jurisdiction; but before a chancellor it is unconscionable to hold lands under any conveyance without first paying the purchase price; and other just liens, not created as such, according to the rules governing purely law courts, are enforced in equity, where no intervening rights have accrued.

In the case of Smithurst v. Edmunds, et al., 1 McCarter, (N. J.,) 408, where, after acquired hotel furniture was embraced in a mortgage, the Supreme Court ofUew Jersey held that that which was purchased, subsequent to the execution of the mortgage, was embraced within its provisions — that it was not a mortgage in law, for want of title in the mortgagor at the time of executing the mortgage, but it was an equitable mortgage.

The Supreme Court of Illinois held that a chattel mortgage might cover after-acquired property if taken into possession before other liens attached. Gregg v. Sanford, 24 Ill., 17.

In the case of Walker v. "Vaughan, the Supreme Court of Connecticut say: “a mortgage upon property not yet acquired will be good between parties and others, * * * upon the 'chattels being acquired by the mortgagor, no intervening rights having accrued.” 33 Conn., 583; and see 29 Conn., 282:

It has been said, where a mortgage was to operate as a continuing security, it will be so applied to property afterwards acquired. Carr v. Alott, Hurl & Nor., 964; C. B., (N. S.) 471; Langdon v. Horton, 23 Hug. Com., (or 1 Hair.) 549.

Where a cutler mortgaged his stock and tools, etc., and all stock and tools to be purchased, and all goods manufactured, and to be manufactured, and all machinery to be added, it was held a valid mortgage. Mitchell v. Winslow, 2 Story, 630.

In the case of Johnson v. Curtis, the Supreme Court of New York decided that a mortgage on logs, and lumber to be cut out of them, was not fraudulent — the transaction being attacked for fraud. 42 Barb., 585.

Judge Story, in his Equity Jurisprudence, Vol. 2, Sec. 1040, lays down the rule equally as broad as in most of the cases above referred to.

But the now leading case of Pencock et al. v. Col., 23 How., 117, by the Supreme Court of the United States, fully establishes the doctrine that liens may be created upon chattels not in being, to take effect upon the acquisition of such property by the mortgagor, where such property comes to him in the ordinary course of his business, or is otherwise sufficiently identified, and that such liens will be enforced in equity.

In the case under consideration, it is clear that the appellee owned a one-third interest in the mill, machinery, etc., and Ingram the other two-thirds, and by just and fair means, satisfactory to both, it was found that the one-tliird of the rent of the mill, etc., for the time stated, was worth $600. Ingram preferred to pay that sum and have the entire mill, etc., for that time, rather than to continue the co-partnership, and McDearmon preferred to accept that sum, if the payments were secured, and to that end the deed exhibited was executed, conveying to him the stocks and lumber on hand, and the further material that might result from carrying on that business. For this consideration he turned over his property and gave the entire mill, etc., into the possession and control of Ingram for the year. Ingram then owned absolutely two-thirds, and for one year he owned the other third, with an incumbrance upon or claim against it of $600.

It certainly would have been unjust and inequitable for Ingram to have used this mill and machinery, and had the entire profits thereof, without paying a share to the appellee; and appellant, being cognizant of all the facts, purchased no better title than Ingram had; and for him to have received the entire profits of tbe mill and machinery, and to pay nothing, would be no less unjust to the appellee.

And the appellant being well aware that the appellee relied upon the products of the mill for his fair share of the profits, ;and not upon any other credit given Ingram, and that the parties, by deed, had endeavored to create a lien upon such •effects to secure such sum, and having the sole use of the mill, and all profits arising therefrom, for so long a time, we deem It unjust that lie should refuse to pay the sum which he knew had been fairly settled upon as appellee’s share of rents and profits, and it seems to us that this is one of those continuing securities, an equitable lien, that may well be enforced in a •court of equity.

The decree of the court below is in all things affirmed with costs.


source: Caselaw Access Project

author: McCt.ITRE, J. Q-begg, J.,

license: Public Domain

text:
    The State v. Nichols.
    Pakdon and Amnesty — The pardoning power is not naturally or necessarily ail executive function, and where the Constitution is silent, vests no more in one branch of the government than the other.
    The power to pardon, after conviction, vested in the Governor, by the Constitution of 1864, is not prohibitory of the exercise of that power, by the Legislature, before conviction, nor is it inhibited by the powers delegated to the federal government.
    Where there is no express or implied limitation in the exercise of the pardoning power, granted to the executive, it operates as an inhibition against the legislative branch interfering with it.
    Plea of tender and acceptance of pardon, before indictment found, is good and is not an interference with the administration of justice by the courts.
    After tender and acceptance of pardon, no subsequent action of the executive or Legislature can revoke it.
    The Act of March 1, 1867, entitled, “An act of pardon and amnesty,” is not in conflict with the present Constitution.

      Appeal from, Pulaski Circuit Court.

    IIoN. ¥m. Story, Judge 2d Judicial Circuit, presiding.

      Montgomery, Attorney General, for appellant. .

      Farr <f- Fletcher, Garland <f Fash, Gallagher $ Newton, for appellee.
   McCt.ITRE, J.

At tlie March term of the Pulaski circuit court, for the year 1869, the grand jury found a true bill of indictment against Nichols, for the murder of one Charles Wood, on the 10th of July, 1864.

At the May term, 1869, Nichols filed a plea, wherein he sets up “that the killing, for which he is indicted, occurred between the 6th of May, 1861, and the 4th day of July, 1865, and that he 'was fully and freely pardoned of said supposed offense by an act of the General Assembly of the State of Arkansas, entitled “An act of pardon and amnesty,” passed March 1, 1867,” etc.

To this plea the State filed a demurrer, which was overruled by the court, and, the State declining to proceed further with the prosecution, the defendant was discharged. From this judgment the State appealed.

The only question presented by the record is, whether the act of pardon and amnesty, passed March 1, 1867, is, in fact, a pardon and amnesty. In other words, had the Legislature of 1867, assembled under the Constitution of 1864, power to pardon and amnesty citizens of the State who were liable to be charged with crime?

“Our government,” says Judge Parsons, “is founded on principles not known to the laws of any other country. The sovereignty of the commonwealth remains in the people. The several departments of the government — the legislative, executive, and tbe judicial — are the agents of the people in their respective spheres.”

The language quoted above, from Judge Parsons, no doubt, was used for the purpose of directing the mind of counsel to' the fact that our form of government, so far as the exercise of' certain powers is concerned, is not analagous or similar to any monarchial form of government, and that a power exercised by a monarch does not necessarily prove that such powers belong to the Executive of a State.

In a republican form of government the people select delegates to form a fundamental law for the government and control of such persons as may be called to exercise the duties-prescribed. To use the expression of another, they build a. capitol, erect 'its pillars and its walls, surround it with bulwarks, and assign to each department its various duties. This done, the members of a constitutional convention disperse; the people send the officers who are to take charge of the various departments, and the three branches represent the sovereignty of the State.

The theory of all monarchial forms of government is, that the monarch, or reigning sovereign, rules by “divine right,” and that he is the depository of all supreme power — that whatever of liberty the people possess or enjoy, is a gracious grant on the part of the sovereign. Under such a form of government, the power to pardon and remit fines and forfeitures is a dispensing power of the sovereign; a crime in such a country is-not against the government, but against the king. With us,, the theory of government is different. If a man commits a. crime' in this State he is indicted for having offended, not. against the executive, the legislative or judicial branches of the government, but for having offended “against the peace and dignity of the State of Arkansas.”

In a republican form of government, such as exists in this country, what belonged to one branch of government under a monarchial form, is lodged in three different departments^ Lieber, in his second volume, 147 on “civil. liberty and self-government,” says: “The executive stands, if any one visibly does, in the place of the monarchs of other nations, and that we forget the monarch had the pardoning power, not because he is the chief executive, but because he was considered the sovereign; while, with us, the Governor or President has but a delegated power and limited sphere of action, which by no means implies that we must necessarily or naturally delegate, along with the executive power, also the pardoning power.”

From this it would seem that the pardoning power is not naturally or necessarily an executive function. The Constitution of the United States places but few prohibitions upon the States, as to what the Constitution of the State shall contain. The Constitution of a State must be republican in form. It must not provide for titles of nobility, nor violate the obligation of contracts, nor attaint persons of crime, nor provide ex post facto laws for the punishment of acts which were inno■cent when committed, nor contain any other provisions which would, in effect, amount to the exercise of any power expressly •or impliedly prohibited to the States by the Constitution of the ■United States. So long as the people do not infringe upon the ;power already delegated to the general government, they are fully authorized to deposit power in such branches as to them may seem best. To illustrate: They had the right to withhold . all pardoning power from any one of the three branches; or, •■on the other hand, they had the right to vest the pardoning power in either the legislative or judicial branches of the government. The Executive no more represents the sovereignty of the State than either one of the other branches of the State" government. The pardoning power no more vests in the Governor, by virtue of his position, than it does in the judicial branch of the government, when the Constitution is silent.

The Constitution of 1864, on the subject of the pardoning power of the Governor, says: “In all criminal and penal cases, except those of treason and impeachment, he shall have power to grant pardons after conviction, and remit fines and forfeitures,” etc. It is urged, on behalf of the State, that this language is an inhibition against the Legislature exercising the pardoning and amnesty powers attempted to be exercised by the Legislature, m the act of March 1, 1867, and, therefore, unconstitutional.

There is a plain rule of construction running through all the books, and is as familiar to the profession as the common law itself, that declares where the language employed is inhibitory, it is a denial of power to the extent of the inhibition. To illusti’ate: The Constitution of this State declares;. “In criminal cases the jurisdiction of justices of the peace: shall extend to all matters less than felony for final determintion and judgment.” It was insisted, in this court, that this language conferred exclusive jurisdiction on the courts of justices of the peace; but, in Tucker, ex parte, we held this language was no inhibition on the Legislature from conferring a concurrent jurisdiction over the same subject matter to the circuit court.

The inhibition in the Constitution of 1864 limits the right of pardon, in the Grovernor, to cases in which there has been a conviction at law. Now, the question arises, does this limitation of the exercise of the pardoning power to cases after conviction, inhibit the Legislature from passing an act of pardon and amnesty, as to such persons who have not suffered conviction? The counsel for the State insist that the power of pardon and amnesty, before conviction, is not vésted in any one of the branches of government, and that convictions must follow before the pardoning power can be exercised at all.

There is a broad difference as to the rule of construction applicable to the Constitution of the United States and that of a State. The government of the United States is one of. enumerated and limited powers, while the government of the State is possessed of all the general powers of legislation. In construing a law of the United States, we look to the Constitution to see if the power is granted; but, in construing the Constitution of the State, we look whether the Legislature is prohibited by express words, or by implication. Congress can pass no laws save such as the Constitution authorizes in express terms, or necessary implication, while the Legislature is constrained by no bounds, save such as the Constitution of the State and United States have thrown around it.

"W hile it may be conceded that tlie pardoning, after conviction, is, by the Constitution, declared to be one of the duties of the executive, yet the exercise of the same power by the Legislature, before conviction, cannot be construed, in our opinion, to be an invasion of the executive department. We have already intimated that the executive of a State did not inure to any of the powers exercised by a monarch, by “divine right,” and that his power and authority was measured by the Constitution alone. It is not urged that the executive has any" pardoning power before conviction, and if he has not, we are unable to see wherein his province has been invaded.

It is urged, however, that the pardoning power is peculiarly an executive function, and that any exercise of such power by the Legislature is impliedly prohibited. The power to pardon partakes more of the nature of a dispensing than an executive power. The chief duty of the executive is to see that the laws are executed, and, where the power to dispense with the execution of the law is given him, it should not be extended by implication. The power of dispensing with the law and its penalties, partakes more of a legislative than of an executive character.

The President of the United States exercises the pardoning* power, both before and after, conviction; but this is not by reason of it being peculiarly an executive function, but because-the Constitution of the United States, in plain and unqualified language, has conferred the sole power of pardoning on him. In a question involving the discussion of the pardoning power of the President, Chief Justice Chase says that the President had the pardoning power without any act of Congress, but that if he did not, the act of Congress would have been sufficient to have given him the power — thus conveying the impression that if the pardoning power was not vested irffhe President by the Constitution, that Congress bad the power to confer it on him. The federal government is composed of three branches, just like the State governments. No one of these branches of government are permitted to exercise the powers belonging to another, any more than they are in a State government; and if the pardoning power is peculiarly an executive function, it is not at all probable that Chief Justice Chase would have made the remark he did, in the United States v. Paddleford, 9 Wall., 542.

So far as our knowledge and research extends, the question as to whether the Legislature has the power of pardon or amnesty before conviction, has never been submitted to any •court acting under a similar constitutional prevision to that of this State, save in the State of Tennessee. The Constitution of Tennessee, on the pardoning power, declares that, “He (the Governor) shall have the power to grant reprieves and pardons, after conviction, except in cases of impeachment.” Andrew Fleming was indicted for retailing liquors in violation of the act of 1838; pending the prosecution, and before conviction, the Legislature passed an act by which, under certain restrictions, it became' lawful to retail spirituous liquors, and at the same session, and subsequent to the passage of the act legalizing the sale of spirituous liquors, it was resolved by the Legislature that “no fine, forfeiture or imprisonment should be imposed or recovered for the offense of tippling, and that all causes pending in the courts should be dismissed, wherein such an offense was charged.” The defendant (Fleming) had no knowledge of the passage of the resolution, and was tried and convicted of the offense charged, and fined. Before the fine was collected, the passage of the resolution became known to him, and he asked that the judgment against him might be vacated. It will be borne in mind, that the defendant, in the case just cited, had suffered a conviction, and had not plead the act of remission. This being true, he stood before the court in the light of one who had waived his pardon, and asked a judgment at the hands of his peers. The Constitution of Tennessee places the power of pardon, after conviction, in the hands of the Governor. Fleming had been convicted, it follows, therefore, the action of the court in extending to Fleming the benefit of the resolution, after conviction, was an invasion of the executive duties.

If Nichols had waived the provisions of the act of March 1, 1867, as he had a right to do, for a pardon need not be relied on unless the defendant so elects, and had suffered a conviction, he would not then be allowed to go back and plead an act of pardon or amnesty for the purpose of vacating the judgment. To tolerate such a practice, even if an act of the Legislature authorized it, would be an invasion not only of the executive functions, but those of the judiciary.

Our attention has been directed to certain rulings in the States of Alabama and Missouri, in which it is strongly intimated that the pardoning power is an executive function. In order to show that the opinions of the Supreme Courts of those States are not applicable to a Constitution like ours, it is only necessary to state that there is no similarity between them. The Constitution of Arkansas is as follows:

“In all criminal and penal cases, except those of treason and impeachment, he (the Governor) shall have power to grant reprieves and pardons, and remit fines and forfeitures, under such rules and regulations as may be prescribed by law.”

The Constitution of Missouri, on the subject of pardons, reads as follows:

“The Governor shall have power to remit fines and forfeitures, and except in cases of impeachment, to grant reprieves and pardons.”

It will be observed, there is no limitation in the Constitutions of Alabama or Missouri, to the exercise of the pardoning power to cases, after conviction. The language used amounts to an absolute grant of all the pardoning power of the State to the executive, and therefore is an inhibition against the legislative branch interfering with it. The Governor of Alabama exercises the power of pardon before conviction, and where his pardons have been pleaded, the prisoner has invariably been discharged.

No Governor of the State of Arkansas ever attempted to exercise the power of pardon before conviction, and if he had, no conrt of the State would have recognized it. The idea advanced by the Supreme Court of Tennessee, that the courts and prosecuting attorney have a vested right to a conviction, under a criminal statute that may have been violated, is not founded in law or reason, because the Legislature is the branch of government that declares what acts shall be criminal and what penalty shall be inflicted. While it is true that the Legislature cannot affix a greater penalty to crime than was affixed thereto at the time of its commission, no one has ever seriously doubted the right or power of the Legislature to lessen the punishment or remit it altogether, when such remission did not infringe upon the exercise of some right conferred on some other department of the government by the terms of the Constitution.

This act of pardon and amnesty was passed in March, of 1867, and related to offenses committed between the 6th of May, 1861, and July 4, 1865, and no indictment was found against Nichols until March, of 1869. The question presented in this case is not like the cases presented in either Tennessee, Alabama or Missouri. In the cases passed upon by the Supreme Courts of those States, the action of the Legislature was directed toward the control of cases pending in the courts at the time of the passage of the law. At the time of the passage of the law, there was no case pending in the courts of this State against Nichols, nor was there until two years afterwards. If Nichols had been indicted before the passage of the act of March, 1867, and had pleaded the act, and the question had come here upon such a state of facts, a very different question would have been presented to this court than the one now before it. Such a case would have presented the questions discussed in Missouri and Tennessee; but in the case at bar, the action of the Legislature in no manner undertook to control or dismiss a case in court. The plea of interfering with the administration of justice in the courts, cannot be set up in this case, because the interference, it interference it is, took place before the jurisdiction of the court attached. The plea of Nichols shows that he accepted the pardon tendered him by the Legislature, and the rule is that, where the pardon has been accepted, no subsequent action of the executive or Legislature can revoke it.

The disposition of this question does not necessarily involve a discussion of the second section of the act of March 1, 1867, or cases arising thereunder. It will be time to discuss the constitutionality or unconstitutionality of that section when a case is presented, and until that time we refrain from any expression of opinion.

Section 16, of article 15, of the Constitution of 1868, declares-that “all laws in this State, not in conflict with this Constitution, shall remain in full force until otherwise provided by the General Assembly,” etc. The act of March 1, 1867, is not in -conflict with the present Constitution.

We are therefore of opinion that the circuit court of Pulaski county did not err in overruling the demurrer and discharging the appellee.

Judgment affirmed.

Q-begg, J.,

dissenting says:

Upon a most careful consideration of this ease, I have failed to agree in opinion with the majority of the court.

The Legislatureof this State, on the first of March, 1867,passed a pardon and amnesty act, in which it is provided, “That full and free pardon and amnesty be, and the same are hereby granted to all persons who at any time, after the sixth day of May, A. D. 1861, and before the fourth day of July, A. D. 1865, may have committed any crime or misdemeanor against the State of Arkansas — rape only excepted — and shall not have been convicted thereof before the passage of this act.”

It is not merely the purport or effect of this act that makes it a legislative act of pardon, but the title and the body of the act declare that it is an act of pardon, no pretense that it is a repeal of the criminal law or the jurisdiction of the courts.

We have, then, but one question : Is the pardoning power, •under our form of government, committed to legislative action? We think not.

We lay down, as one of the fundamental principles of our government, that the powers of the three departments are to be exercised by different and distinct classes of persons. Our present, as well as former Constitutions, ordains that the powers of government are divided into three departments — the legislative, executive and judicial — and that no person, nor collection of persons, belonging to one department, shall exercise any of the power’s belonging to another, except in the cases •expressly provided in the Constitution.

The majority of the court, in argument, assume that there is a sovereignty attached to the legislative department that does not belong to the executive or judicial.

We admit its wider range and greater diversity of power, but not its claim to sovereignty. The sovereignty of the State is in the people They have assembled in convention and distributed the sovereignty between three departments of government' — legislative, executive and judicial — conferring upon each all the powers necessary to the full execution and mainte. nance of its respective department, and to maintain this inde-p endence and distinctiveness, have declared that “no person or collection of persons, belonging to one department, shall exercise anj- of the powers belonging to either of the others.”

Then, we hold that each of these departments received from the people that portion of sovereignty necessary to the discharge of all the functions of its respective department, and no more; and, consequently, each is sovereign within its own sphere — the equal, but not the supei’ior, of the other co-ordinate powers of the State; and, as quoted by tte majority, from Mr. Parsons, “Each is tbe agent of the people, in their respective spheres.”

And, to use a further quotation of theirs: “ The people in convention, assign to each department its various duties; this done, the members of a convention, disperse, and the people send the officers who are to take charge of the various departments, and the three branches represent the sovereignty of the State.”

The legislative department has more extended jurisdiction, and greater diversity of action; its province is to enact rules, or laws, for the government and well-being of society, in its varied wants, innumerable changes, pursuits and improvements, the right to make laws upon all subjects, and to any purport and effect, not restricted by constitutional limitations; but this is not a grant of sovereignty to that department, except over the wide field assigned to it. •

"We do not concur in the opinion that the pardoning power is more legislative than executive, and the weight of authority, hereinafter referred to, if not for other reasons, would incline us to a contrary conclusion.

The majority say that the Constitution of the United States has, in plain and unqualified language, conferred upon the President the sole power of pardoning. This is the ground we assume, and we propose to show that such has been the ruling of the Supreme Court of the United States, and other high authority. Yet the language in the United States Constitution is, that “ he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” No exclusive words are used to confer “the sole poiver” on him alone; and there is one limit to his power — that is, in case of impeachment. The State Constitution has three limitations instead of one — the pardon shall not be before conviction, nor in impeachment or treason. The language of our Constitution is, that “in all criminal and penal cases, except in those of treason and impeachment, he shall have power to grant pardons, after conviction, and remit fines and forfeitures, under such, rules and regulations as shall be prescribed by law” — Article 6, section 11, Constitution of 1864— words no less definite and exclusive than the former, in the United States Constitution, as to the power conferred.

The majority of the court say if Nichols had been indicted before the passage of the act of March, 1867, and had then pleaded the act, and brought his case here, a very different question would have been presented to this court, and that such were the cases in Missouri and Tennessee. In our view, the main question is the same. It is not whether legislative action interferes with causes in court, but whether the Legislature can pardon.offenders, and discharge whole classes of individuals who have violated the criminal laws of the State. To attempt to shift the argument upon technical ties of pleading on time, etc., is but playing with the shadow rather than grappling with the reality before the court.

The question is the power of the Legislature to pardon a criminal after he has violated the penal statutes of the State, and became liable to be convicted and executed for such violation of law.

I submit, as my opinion, that the Constitutions of Missouri and Alabama, omitting the words, “after conviction,” in the clause conferring the pardoning power upon the executive, in no way affect the question at issue. The Constitution of Tennessee is conceded to be precisely like ours.

In all these Constitutions there is a pardoning power conferred upon the executive, and there is also a clause that no two departments shall exercise the same power. Does this not make it an exclusive power, as so often held in the Supreme Court of the United States? Can the Legislature exercise a power that the Constitution has made executive, even if not declared exclusively so in the particular clause conferring the power?

Before reciting the authorities relied on, I will allude to one point not noticed by the court. This pardon act, of March Í, 1867, was repealed by act of July 28, 1868. If tbe Legislature of 1867 bad power to pass a law of pardon, had not the Legislature of 1868 power to repeal that pardon act? And, when that law was repealed, did not the law r^tnain as if the law of 1867 had never passed? as the pardon law did not attempt to repeal any former law.

Bishop, in his American Criminal law, vol. 1, 216, says: “'Where the old law having been repealed, and the Legislature, by subsequent act, authorize proceedings, as by repealing the repealing statute, in every such case, though the right to prosecute should have once lapsed, a conviction may be had.”

If this is stronger than the rule with us, may it not apply when the act of 1867 was a mere tender of pardon that had to be accepted, and which could not have been accepted until its repeal?

An offense was committed in Pennsylvania. Under an act of 1827, the Supreme Court of that State said : “In this case the offense was committed before the act of 1882, and the eon. viction thereon was had after the act of 1838, and so the offense was not committed, nor was the conviction had, whilst the act of 1832 was in force. The court are all of opinion that the prisoner is liable to an additional punishment under the statute of 1827, ” etc. Commonwealth v. Scott, 21 Pick. 492; and Com. v. Gitchell, 16 Pick. 352.

If the pardon act was a valid law in 1867, as such law it was repealed in 1868. When Nichols was indicted, in 1869, there was no law of pardon to plead. The act charged was murder, when committed, and murder when the indictment was found; and if the act of 1867 did suspend prosecutions^ the case is stronger against the accused than those above referred to. If that act was not an ordinary law, it is an argument against legislative power, and tends to show that that power is exclusively in the executive, where Chief Justice Marshall says it has been, time immemorial. But we pass on to elucidate the main question; and our views not being indorsed by the majority of the court, I may be allowed to quote at some length from the decisions of courts whose judges were abler than myself, and who maturely considered this grave question.

In the case of the State v. Gloss, 25 Mo. 293, the Supreme Court of that State say: “The powers of the General Assembly are not unlimited. All the departments of our government are confined in their operations; they have prescribed limits which they cannot transcend. The union of the legislative, executive and judicial functions of government in the same body, as shown by experience, had been productive of such injustice, cruelty and oppression, that the framers of our Constitution, as a safe-guard against those evils, ordained that the powers of government should be divided into three distinct departments, and that no person charged with the exercise of powers, properly belongingto one of these-departments, should exercise any of the powers properly belonging to either of the others.”

They say, of the pardoning power: “All unite in pronouncing it an executive function. So the framers of our Constitution thought, and accordingly vested the power of pardoning in the chief executive ofiieer of the State.” They continue, in speaking of the act, making it the duty of the circuit court judge to dismiss prosecutions commenced under a former law, (the operation of the act is confined to the release of individuals from prosecution,) who stand indicted for ofienses: “ The justice or propriety of the act has nothing to do with its constitutionality. We are not to presume that the Governor, under suitable circumstances, will not exercise the power with which he has been clothed by the Constitution. He is the sole judge of the propriety of granting a pardon.” See, also, State v. Maberry, 29 Mo. 301.

In the case of Haley v. Clark, 26 Ala. 442; the Supreme Court of Alabama say: “The appellants claim under acts of 1849 and 1850, p. 452, by the first section of which it is enacted that the treasurer of Marion county be, and he is hereby, directed to pay Allen Haley, John M. Frederick, John T. Sanders and William "Warren, the securities of John Douglass, late clerk of the circuit court of Marion county, the sum of five hundred dollars, that being the amount of a fine they have paid for said Douglass, in consequence of said Douglass having failed to comply with the requisitions of the second section of the act of 1854,” etc.

“The principal question is, whether this act is unconstitutional. By article 4, section 11, of the Constitution of Alabama, the power to remit fines and forfeitures is given to the ('¡overnor; and by the second article, the powers of the government are divided into three distinct departments — the legislative, executive and judicial — and no one of these departments, or person belonging thereto, can exercise any power properly belonging to either of the others, unless expressly directed or permitted by the Constitution. To sustain this position would be to allow one department of the government to trench upon the powers of another, and to defeat the purpose which the Constitution contemplated in confining the pardoning power to one branch of the government, by permitting it to be indirectly exercised by another; the act was void and the judgment correct.”

It is urged, as legislative authority, that the Parliament of Grreat Britain grants pardons. That is true, but that government differs widely from ours. There is no Constitution above Parliament, no power restricting it. Parliament can make laws, determine of their violation, and order them carried into effect. She is not limited to any one function or class of functions of government; and so far as the subjects of that realm are concerned, she does what she wills to do, and she is amenable to no superior; and, unlike a Congress or State Legislature, in this government, who dare not pass constitutional limits.

The Supreme Court of the United States, through Chief Justice MARSHALL, in the case of the United States v. Wilson, 7 Pet., 159, says: “The Constitution gives to the President, in general terms, the power to grant reprieves and pardons for offenses against the United States. As this power had been exercised from time immemorial by the executive of that nation, whose language is our language, and to whose judicial institutions ours bear a close resemblance. * * * A pai'-don is an act of grace, proceeding from, the power entrusted with the execution of the laws, which exempts the individual from the punishment the law inflicts for a crime he has committed.”

“It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended,” etc.

Judge TaNey, who was then acting as Attorney General, said: “ The pardoning power, under the Constitution, is the executive power.” See also, Opinions of United States Attorney Generals, vol. 6, pp. 20, 39 and 488, and vol. 10, p. 455.

In the case of Garland, ex parte, 4 Wal., 380, the Supreme Court say: “The pardoning power of the President is not subject to legislative control. Congress can neither limit the eflect of his pardon, nor exclude from its exercise any class of offenders,” etc.

Thus, under the clause of the Federal Constitution merely granting the executive the right to pardon, the Supreme Court held that the pardoning power is vested in him, and cannot be limited or controled by Congress.

We are aware that it is urged that Congress has only delegated powers, and is therefore limited strictly to the grant. On the other hand, State Legislatures are limited by their Constitutions providing that they shall not exercise any of the powers belonging to the executive or judicial departments of the government: “No person or collection of persons, being of one department, shall exercise any power belonging to either of the others,” and the source is immaterial, so there is a limitation upon legislative action.

Our own Supreme Court, in the case of Baldwin v. Scoggin, 15 Ark., 432, through Chief Justice English, said: “The framers of our Constitution have intrusted the pardoning power to the Governor,” etc. This court did not then seem to think the Legislature shared in that power.

We bold tbe Legislature can pass rules regulating executive action, just as they regulate proceedings in court, but tbe power to pardon is in tbe executive, and in tbe other case the power of rendering judgments and ordering executions is in tbe courts, and therefore excluded from tbe Legislature.

As stated by a majority of tbe court, the Legislature of Tennessee passed a law, subjecting persons to indictment and fine for retailing liquors. In 1846 the Legislature passed another act allowing persons, upon certain conditions, to retail liquors, and subsequently passed a resolution declaring that no fine or forfeiture or imprisonment should be imposed or recovered, for the offense of retailing under the former act of 1837, and that all causes pending in any of the courts for such offense should be dismissed. The circuit court vacated a judgment that had been published, and the Attorney General appealed, and the Supreme Court of that State said: “The question presented for our consideration is, whether the resolution of the Legislature, passed in 1846, is a constitutional exercise of power, and we think it is not. * * * The question reduced to simplicity is this: Can the Legislature, by resolution, direct that an individual who stands charged with crime in a court of justice, be discharged therefrom? The mere statement of the question, it seems to us, answers it, necessarily, in the negative. The powers of the State of Tennessee are vested in legislative, executive and judicial departments, each separate and distinct from the other, with their power and duties well defined by the Constitution, and by which each is kept within its appropriate sphere of action.

“The Legislature can make the law, but the courts must expound it, and execute it, with the aid of the executive, when his action may become necessary for that purpose.
“The Legislature has no power to interfere with the administration of justice, either civil or criminal, in the courts. A resolution that a criminal or class of criminals shall be discharged by the courts is then necessarily, an assumption of power not warranted. After conviction the Governor may pardon, but before conviction, the - Attorney General and the court are the only power that can discharge without acquittal, and this by nolle prosequi. We are, therefore, constrained to hold that the resolution under which these defendants claimed their discharge is void, for want of power in the Legislature to pass it.”

These courts give reasons why this legislative power is inhibited, but in each one the judgment goes to the vital question and decides that a Legislature has no power to pass an act of pardon.

A constitution or a law must be construed as a whole, and not by separate clauses, and when the constitution said' the executive shall exercise a pardoning power, if it had there stopped we could have agreed, but it further says, in effect,, no other department of the State government shall exercise any of the powers exercised by the executive. Then we say the others are excluded. So, in the case of Tucker, ex parte, if the Constitution that said justices of the peace shall have jurisdiction in cases of misdemeanors, had in some other clause said, where justices have jurisdiction no other court shall take jurisdiction, then we would have held quite differently.

But it is said, the Legislature" here pardoned before conviction and the Governor pardons after conviction. This does not change the proposition. Both are pardoning powers — the Legislature is using a pardoning power, and the Governor a pardoning power — when the Constitution declares, that the same power shall not be exercised by persons belonging to different departments of government, meaning, beyond question, that the powers of the different departments shall not be blended.

Now, it will be seen by an examination of the various cases in Missouri, Tennessee and Alabama, that those courts did not base their decisions upon the question of time, as to when the offense was committed, or whether an indictment or conviction had been had. Some of the circumstances in each case are alluded to in the arguments of the judges, but, upon the main question they move up like men conscious that they are armed witli tbe right, and declare that the Legislature has no power to pass acts of pardon, because, so far as the people have granted that power, it has been conferred upon the executive, and the same function cannot be exercised by two departments of the State government.

It seems to me that these cases are entitled to great weight, especially so, when not a single case has been cited to the contrary. I have earefully searched our voluminous library, to say nothing of the more diligent and efficient examination of thé majority of the court, and not one case can be found where any Supreme Court has sustained a law granting pardons by legislative action.

Now, I repeat, if two branches of the State government cannot exercise the same functions, and the Constitution says they shall not, and the pardoning power is a function of government, I cannot see how the executive .and Legislature can both pardon; and if the Constitution, in the clause referred to, had said the different departments of the government shall not at the same time exercise the same power, I could see some force of argument in the position of the majority ; but it does not so ordain; and, with good authority to the contrary, and none to support what seems to me a misinterpretation of our Constitution, I cannot agree.


author: ■WlLSHIRE, C. J.

text:
    Hardy's Exr’s. Ex parte.

      Practice — Remittitur.—The rale adopted in Fowler «. Johnson, 11 Ark. %8Qt affirmed.
    Remittitur must be entered before cause disposed of, on appeal or writ of error, by this court.
    The judgments of a court, after its adjournment, pass from under its control»

      Motion to enter Remittitur..

      J. E. Witherspoon, for petitioners.
   ■WlLSHIRE, C. J.

At the present term of this court the appellees in the cause of Ayliff v. Hardy’s Executors, decided the judgment reversed and the cause remanded at the December term of this court,. 1867, moved for leave to enter a remittitur for the excess of damages found by the jury in the Clark county circuit court,, which was the sole error for which the judgment was reversed,, and the cause remanded.

The rule was adopted by this court in the case of Fowler v. Johnson, 11 Ark. 380, that “where a remittitur will cure the only error complained of, it shall be allowed to be entered upon the terms of paying costs, as usual, and also of an abandonment of record of all right to proceed on the recognizance, whereupon the-judgment will be immediately affirmed.” This rule has been adhered to by this court in all cases since its. adoption.

It must be observed that the remittitur must be entered before the cause is disposed of, upon the appeal or writ of error by this court. No other conclusion than this can be drawn from the language of the rule. The language of the rule is substantially that, upon the remittitur being entered, the right to proceed upon the recognizance, abandoned of record by the appellee, the judgment will be immediately affirmed. Then, by the rule itself, the remittitur must he entered before the final disposition of the case in this court.

If there was any doubt in the language of the rule, it is quite clear to our minds that the motion could not be sustained at this late day. The judgment of the Clark circuit court, in the case of Ayliff v. Hardy’s Executors, was brought here by appeal, and decided at the December term, 1867. Three years-since this cause was disposed of by this court has elapsed. It is now too late for the appellees in that cause to avail themselves of the rule; indeed, it was too late after the adjournment of the term of this court, at which the judgment was reversed, etc. It is a rule too well established, to require discussion here, that the judgments of a court, after the adjournment of the term, pass from under its control. See 10 Ark. 186; 13 Ark. 104; 11 Ark. 151, and authorities therein cited.

The motion is overruled.


author: "W"ILSHIRE, O. J.

text:
    Foley, et al., v. Whitaker, ex’r.

      Mortgage. — Specific Liens, Etc. — General creditors, in the absence o£ any fraud of their rights by complainant, will not be allowed, on petition, to be made parties defendants to a bill to enforce a specific lien, created by mortgage, prior to their rights.

      Appeals — What necessary for. — To entitle a party to an appeal to this-court, there must have been a final decree rendered for or against him in the circuit court.

      Appeal from Chicot Circuit Court.

    Hoy. IIeney 13. Morse, Circuit Judge.

      Garland £ Nash, for appellants.
    The decree in this case is most clearly erroneous, as it was given upon the pleadings, answer replied to, and no proof whatever outside of the pleadings and exhibits. The" answer responded directly to the bill, and denied some material aver-ments in the bill, and most assuredly the bill should have been supported by proof. 8 Ark., 890; Sneed v. Town, Ark., 535; H Ark., 410; 19 lb., 166; 13 lb., 592; 20 lb., 309.

    Hot only this, the answer was made a cross bill, and certain questions propounded to complainant, and new parties made; but all this, it seems, drops out of the case, but at what place is not seen. The decree is, therefore, incomplete in failing to dispose of the whole case, and in not disposing of all the issues upon the pleadings themselves. In truth, there is no decree at all, to the extent of settling the rights of parties, and an order appointing commissioners to sell, etc., was a nullity. 8 Ark., 56; 70 lb., 333; 17 lb., 58; 3 Nani Chy., p. 1192, 1209-12, (notes); Nubes Eq. Pis., 141,123. 1
    Again, Eoley, et al., (appellants), asked leave, at April term, 1869, to be made parties to the suit, as creditors, and exhibited their claim in due form by petition, but the court refused this, which was certainly wrong, for, as creditors, they were not only proper, but necessary parties. Porter v. Clements, 3 Ark., 364-; Barney v. Baltimore City, 6 Wallace, 283, et seq.

    The court erred in refusing these parties an appeal from the decree. 12 Ark., 101. And this is so under the Code. See Code, p. 23, sec. 15; 16 et seq. The decree was final so far as the purposes of an appeal was concerned.Rose Nigest (Title Decree), p. 250-1 (4), and the decision of this court in Hyde, et al., v. William Prinkard, Sur., (from Desha) rendered February 11, 1868.

      Bell ¿Carlton, for appellee.
    The court below properly refused the appellants to' be made parties, and not being parties, they had no right to appeal. See Code of Practice, sec. 859.

   "W"ILSHIRE, O. J.

This case is presented on a motion to dismiss the appeal.

It appears by the record that this was a proceeding in chancery, in the Chicot circuit court, instituted by the executor of Horace F. Walworth, deceased, against Aaron Goza, Edward P. Johnson, as administrator of Francis Griffin, and also in his own right, and Isabella Johnson and John Griffin, the object of which, it appears, was to foreclose a mortgage executed by Aaron Goza and Francis Griffin, in his life time, to Horace F. Wal-worth, in his life time, on certain lands, situated in Chicot county, known as the Point Chicot plantation, and certain personal property, to secure the payment of the balance of the purchase money for the mortgaged property, sold by Walworth to Goza and Griffin.

It also appears that the appellant (Foley) was occupying the lands sought to be subjected to the payment of the debt se cured by the mortgage, and was made defendant in the suit of foreclosure.

During the pendency of the cause in the court below, as appears by the transcript, B. F. Foley, and the Canal and Banking Company of New Orleans, for themselves and the other creditors of the estate of Francis Griffin, deceased, presented their petition to the court, praying to be made defendants in the cause, with leave to defend the same, as if they had been made defendants in the original bill of complaint, and asked to be allowed to adopt the answer of the administrator, Ed ward P. Johnson.

The grounds of their petition were substantially as follows: That they were creditors of the deceased, Francis Griffin, own ing and representing large claims duly allowed against his estate: that they have no means of realizing their claims un less the claim of the complainant in this suit is defeated; that the administrator is a non-resident, liable to be removed as such, and the cause left 'wholly undefended; and that, without his removal, petitioners insisted that they should be parties to the cause and allowed to defend; and that the administrator of Francis Griffin “ had made such defense as they should have made had they been parties.”

It does not appear, by the transcript, that the creditors were made parties defendants in the court below, as prayed by them. The petition seems to be copied into the transcript without any authority for it. They should not have been parties defendant. The executor of Walworth was, by his bill, attempting to force a specific lien, created by mortgage, and prior to the rights of general creditors; and they should not be allowed, in the absence of any fraud of their rights by the complainant, to hinder, delay or obstruct his right to enforce such lien.

The answer of the administrator of Francis Griffin, deceased, and of Isabella Johnson, John Griffin and Aaron Goza, defendants, admit the execution of the notes and mortgage by Francis Griffin and Aaron Goza to Walworth, but set up several, matters in bar of the right of Walworth’s executor to collect the note, or enforce the lien upon the property created by the mortgage.

It was the duty of the administrator of Francis Griffin to protect the rights of the creditors of his estate by diligently making all legal and valid defense to the suit of foreclosure, existing. If, as was contended here by the counsel for the appellants, the administrator of Francis Griffin was a nonresident of this State, and unfriendly to the rights and interests of the creditors of his intestate, and would not prosecute an appeal from the decree rendered against him, when there were grounds to believe such an appeal ought to have been prosecuted to protect the interest of the creditors, it was the right of such creditors to apply to the probate court for his removal, and the appointment of a competent and more faithful administrator; and, upon a satisfactory showing of such neglect of duty, by the administrator, it would be the duty of the probate court to make such removal and appointment.

But it is contended, by counsel for the appellants, that Foley was one of the defendants to the original bill of complaint, and, though the creditors were not entitled to be made defendants to the suit of foreclosure, he can prosecute the appeal from the decree rendered below. To entitle either party to a suit to appeal from the circuit court to this court, there must be a final judgment or decree rendered for or against such party.

There appears to be no decree rendered against 33. S. Foley, by the court below. The decree is against F. II. B. Lawrence, assignee of Aaron Goza, in bankruptcy, and Edward P. Johnson, as the administrator of Francis Griffin, deceased, to pay to the complainant a stipulated sum, there found to be due and unpaid, and secured by the mortgage; and a further decree, in default of such payment, that the mortgaged lands be sold at public sale, by commissioners appointed by the court below for that purpose, and named in the decree. There appears, from the transcript, to be no decree or judgment rendered for or against the defendant, Foley, for any amount, not even for costs; and, we think, he made no answer to the bill of complaint. It is true that he asked, in his joint petition with the Canal and Banking Company of New Orleans, to adopt the answer of Edward P. Johnson, as administrator of Griffin, but that was coupled with the proposed admission of new parties defendants, who, we think, from the petition presented by them, should not have been made parties. There being no order of the court allowing the prayer of that petition, appearing in the transcript, it must be treated as being no part of the record.

There appearing to be no decree against Foley, and the other appellants not having been parties in the court below, the motion is sustained and the appeal dismissed.

Judges Guegg and Bowe.v, dissenting.