author: Turner, S. J.

text:
    Wassell vs. Armstrong, Ad. of Carroll.
    1, Claims Against the Government: Assignment of: Contracts for prosecuting.

    Lucy H. Carroll, as administratrix of the estate of George W. Carroll, deceased, entered into a contract with John "Wassell, an attorney, by which it was agreed between them that Wassell should, at his own expense, prosecute a claim of Carroll’s estate against the government of the United States for a large amount of cotton, which was seized in lS'Lkby the military authorities of the United States and converted to the use of the government, and if he recovered nothing he should receive nothing for his services and expenses incurred in the prosecution of the suits; but if he should be successful, in whole or in part, he should pay over to her only fifty dollars per bale for every bale he should recover judgment for; the overplus, if any, to be retained by him for his compensation for his services and expenses incurred in the prosecution of the suits; and full power was given him to execute to the United States all necessary vouchers, receipts and acquittances, and generally to perform all things necessary to carry out the stipulation of the contract. Held: That the agreement was a mere personal contract for a contingent fee, and was not an assignment or transfer of the claim, or any part or share of it, or interest in it, to Wassell, absolute or conditional; and, therefore, was not within the prohibition of the act of congress of February 26, 1853, entitled, “An act to prevent frauds upon the treasury of the United States.” [For the terms of this act, see copy in the opinion. — Kef.]
    2. Witnesses: Party, as to transactions with deceased administrator.

    A party in a suit in which an administrator de bonis non is the adverse party, is not prohibited by the constitution of 1874 from testifying of statements and conversations of the former administrator who is dead.
    APPEAL from Pulaski Chancery Court.
    lion. David W. Carroll, Chancellor.

      P. W. Compton and S. W. Williams, for appellant.

      B. D. Turner and J. M. Moore, contra.

    [This cause was argued before Hon. W. M. Harrison, Justice, and Hon. Jesse Turner and G-. W. Caruth, Special Judges — The Hon. E. H. English, C. J., and J. R. Eaiun, J., being disqualified.]
   Turner, S. J.

This is a suit.in equity, originally brought by Lucy H. Carroll, as administratrix of the estate of George ~W. Carroll, deceased, against the defendant, John Wassell. She alleges in the bill that her intestate, who died in the year 1868, at the time of his death owned a large amount of cotton, exceeding one thousand bales, which, after his death, was seized by the army of the United States during the military occupation of the country by the federal troops in the year 1863, and converted to the use-of the government.

That about the time of her appointment as administratrix of said estate, in July, 1865, the defendant, a practicing lawyer, came to "her, representing that he had acquired valuable information in regard to the seizure of said cotton, whereby he would be enabled to recover the value thereof from the United States government, and solicited plaintiff to employ him as her attorney to collect the same, and she, having confidence in the integrity and good faith of the defendant, was induced to place the claim in his hands for collection, upon an agreement that he would collect the same for a commission of 10 per cent, upon the amount collected, the expenses attending the collection to be borne by the plaintiff; and thereupon the defendant took charge of the claim and instituted suit for the recovery thereof in the United States court of claims.

That she,being old and infirm, and wholly inexperienced in matters of business, soon yielded the entire management of the estate to the defendant, relying upon him entirely to adopt such measures and procure such orders as were necessary, and which he frequently did, without previous consultation with her, and without her knowledge or consent. So that during nearly the entire time of her administration of the estate, the defendant has had and exei’cised entire control and management of the same, on account of ber confidence reposed in him, she believing that he would honestly and efficiently manage the same.

The plaintiff further alleges that some time after the former contract between plaintiff' and defendant about the collection of the cotton claim against the government, the defendant represented to her that there was so much difficulty and expense, doubt and uncertainty about the successful prosecution of the claim, that the fee agreed upon between them was not sufficient, and greatly magnified the trouble and expense which he had already had, and the expense he would still have to incur, and the plaintiff then consented to an arrangement whereby the defendant should pay all expenses, costs, etc., about prosecuting the claim, and if he recovered the amount from the government he was to pay the plaintiff for her dower, or one-third, twenty thousand dollars, and the remainder of the claim to be divided equally between the estate of the said George W. Carroll and the defendant; and’that in making the calculation that there would be twenty thousand dollars coming to plaintiff'in her individual capacity as dower, it was understood that her third would be about fifty dollars per bale.

The plaintiff further alleges that the defendant, some time in the year 1872, succeeded in collecting on said cotton claim from the government of the United States, the sum of ninety-six thousand dollars ($96,000), the adjudged value of three hundred and forty-seven bales of said cotton, and that on the twenty-seventh of October,-1872, he filed in the probate court of Conway county a report of his proceedings as her attorney in the premises, in which he falsely and fraudulently claims the right, under certain pretended agreements stated to have been made on the twenty-third of March and the fifteenth of April, 1868, and long after he had been retained in said cause, to retain as his fee for collecting the claim, the entire amount collected except the meagre sum of fifty dollars per bale, amounting to seventeen thousand three hundred and fifty dollars, which he proposes, in said report, to pay over to plaintiff, and refuses to account for the residue of money so collected on said claim.

- That at the same time tne defendant, in connection with said report, filed an account-current in plaintiffs name as administrator of said estate, and at the ensuing January term of the probate court of Conway county, procured an order to be made confirming said settlement, which she alleges was made and said order procured by the defendant, without any knowledge or information on her part, and with the fraudulent intent of giving to his illegal exaction the authority of judicial sanction, and thus secure, himself from the consequences of the fraud practiced upon the plaintiff and the beueficiaries of the estate. Copies of the report and settlement are exhibited with the bill.

The plaintiff further alleges, that.the defendant, on the fifteenth of April, 1868, meditating the fraud he is attempting to practice upon her, and wishing to clothe with legal authority any contract into which he might be able to inveigle her, procured an order of said probate court authorizing her to employ an attorney to collect the said claim, upon such terms as she might deem proper; and after a lapse of four years, and after the collection of the claim, he procured an-order of the said court confirming the appointment of the defendant prior to the date of s tid order, further authorizing the defendant to prosecute all demands in favor of said estate. Copies of these orders are exhibited with the bill. That defendant pretends that she entered into a contract with him, by which it was agreed that he should pay all expenses .incurred in the collection of said cotton” claim, and retain for his fee all that he should collect thereon in excess of .fifty d dlars per bale, to be paid her as administratrix of the estate, and the further sum of ten dollars per bale, to be paid her in her individual right.

That said pretense is utterly false; and the pretended agreements referred to in said report, and which were intended to be legalized by.the order referred,to and exhibited with the bill, if, in fact, they exist, were forged by the defendant, or she was inveigled by his fraud and deceit, into signing them, without any knowledge of the true character and meaning of their contents.

Plaintiff prays that said last mentioned contract be set aside, and the first mentioned contract between the parties in regard to said cotton claim be enforced, and that defendant be allowed only 10 per cent, commission on the amount collected.

That he be required to produce into court the pretended contracts referred to in. exhibit “Bthat the same, and the illegal orders fraudulently obtained by him in the Conway probate court, in reference thereto, be set aside, and he be required to account and pay over to the plaintiff all the money collected by him from the United States on said claim, less 10 per cent, commission of the same.

That defendant be required to make a complete statement of all his dealings with said estate, and that he account for all sums of money belonging to said estate, in his hands, unaccounted for.

The defendant filed his answer on the nineteenth of October, 1874.

Admitting that the said George W. Carroll, at the time of his death, owned, or claimed to own, about one thousand bales of cotton, which he says was seized, on account of the disloyalty of the said Carroll to the government of the United States, as abandoned property, in the year 1868, of which about 500 bales were released to Ayliff & Hanger.

That defendant had, at the time of the seizure of said cotton, and afterwards, while it remained in the hands of the United States officers at Lewisburg, Little Rock, and places adjacent, acquired valuable information in regard to said seizure, and had taken notes and kept track of the cotton until it was shipped'from the state. That it is true he represented to the plaintiff that he believed that, by means of the information he hacl obtained, it would be possible to trace the proceeds of the cotton into the treasury of the United States, in the event provision should ever be made to pay the owner for such cotton.’

Defendant states, positively, that he did not, at the time in said bill alleged, or any time before or after that, solicit plaintiff to employ him to collect said claim from the government of the United States. He admits it to be true, that, three or four months after plaintiff had been appointed administratrix of said estate, she applied to him to take charge of said claim, and look after the same, and to ascertain what, if any, right the plaintiff, as such administratrix, had against the United States on account of said 'claim, and to prosecute it if it should appear the plaintiff had any rights or remedies in reference thereto under the law's of the United States.

Denies that he became the attorney of the plaintiff, or undertook the collection of said claim upon an agreement that he would collect said claim for a commission of 10 per cent, upon the amount collected, all expenses about collecting the same, over and above such commissions, to be paid by plaintiff, or upon any such, or like, agreement.

Defendant avers that no contract of any kind was entered into between plaintiff and defendant at the time mentioned in said bill, as to what compensation he should receive, nor until long after that time; and he avers that the only contract which was ever-entered into with plaintiff, as to the amount of compensation he should receive, is that of the twenty-third of March, 1868, referred to as exhibit “A.”

And he denies, unequivocally, that he ever misrepresented, or magnified, the difficulties and uncertainties attending the prosecution of said cotton claim, but avers that, in reference thereto, he acted, in perfect good faith, giving her all the information he possessed on the subject. Denies all unfair dealing with plaintiff, and every allegation of fraud charged in the bill.

Denies that he ever procured orders and took any important steps in the management of said estate, without previous consultation with her, or without her consent, and that he did not take and assume the management of said estate, or in any manner conduct the affairs thereof, without the knowledge or consent of plaintiff', in any instance ■or particular whatever.

That he managed the affairs of said estate with the greatest candor and fairness, as far as the same were intrusted to him, and that no order, or steps, important or unimportant, were ever taken by him, except with the knowledge and consent of plaintiff, nor until the matter had been fully explained and understood.

Defendant avers that, after repeated efforts were made to procure counsel in Arkansas, and at Washington City, to prosecute said claim, every effort failed, although both plaintiff and defendant exerted themselves to procure such •counsel.

That, in this condition of things, the plaintiff offered to .sell said claim to defendant for five thousand dollars, and when he declined to buy the claim, plaintiff' proposed to him that he should take the whole control of the claim, ■furnishing all moneys that should be necessary to prosecute the same, pay all attorneys’ fees, and all other expenses, without recourse on her or on said estate, in the event of ■failure, for such moneys as he might expend and lay out, and account to said estate for the sum of fifty dollars for every bale of cotton he might recover for; plaintiff’ adding •that, unless he would do this, the whole claim must be abandoned. That, after reflection, and upon the earnest and repeated solicitations of the plaintiff, defendant concluded to accept plaintiff’s proposition, and to furnish means to prosecute the claim, although he regarded it like an adventure in a lottery scheme — he had a hundred-fold more chances to lose than to win.

That, at that time, the statute of limitations had so nearly run against said claim that it would have been barred before the fifteenth of April, 1868, the time when the probate court of Conway county would next meet, and to have waited until the meeting of the court to procure authority from said court to plaintiff’, as such administratrix, to make and execute a contract with defendant to prosecute said claim, would have delayed the matter until the claim was fully barred, and until the estate would have had no semblance of claim against the government.

That, in view of this fact, on the twenty-third of March, 1868, an agreement, in writing, conforming, in all things, to the proposition made by plaintiff, was made and executed by the plaintiff, as such administratrix, and the defendant; which agreement is referred to as exhibit “A,” and made part of defendant’s answer. ■ ■

That, at the time said contract was made, the said administratrix, not having been empowered by the order of the probate court of Conway county to make such contract, and it being absolutely necessary that suit should be immediately brought upon said claim, to prevent it being barred by the statute of limitations, for these reasons, the contract was executed without such order, upon the express understanding that plaintiff, as such administratrix, should apply to said probate court, at the next term, for an ■order authorizing her to employ an attorney to prosecute said claim, and that, upon such order being made,- plaintiff would ratify and confirm the contract of the twenty-third of March, 1868.

That afterwards, on the fifteenth of April, 1868, while the probate court of Conway county' was in session, upon the application of plaintiff, as administratrix of said estate, an order was made and passed by said court, authorizing plaintiff, as administratrix of said estate, to employ an attorney for said estate, on any terms she might think proper, to collect the claim for said cotton.

Defendant files a' transcript of said order from the records of the probate court of Conway county, marked exhibit “B,” and makes the same a part of his answer.

That afterwards, on the twentieth of April, 1868, after reciting the said order, the plaintiff, as such administratrix, by an indorsement of that date in pursuance of said order >and the agreement of plaintiff, she fully ratified and confirmed said contract of the twenty-third of March, 1868, which instrument of writing is duly signed by said ad-: ministratrix and defendant, and is written upon the same sheet of paper as the original contract, and a copy thereof is contained in exhibit “A” and made a part of the answer.

That this was the only contract ever made between plaintiff, as administratrix of said estate, and defendant, touching the collection of said claim, and the terms upon which it should be done.

That no contract or agreement fixing the amount of his compensation, until the contract in exhibit “A” set forth, was ever executed or entered into between plaintiff' and defendant, and that this was the only contract, written or verbal, ever made between them, touching or fixing his compensation for his services and outlay in prosecuting said claim.

Defendant admits that he did, after a long and tedious litigation and great expense, succeed in collecting on said cotton claim, from the government of the United States, the sum of ninety-three thousand three hundred and fifty-three dollars and sixty-five cents ($98,353.65), being the adjudged value of three hundred and forty-seven bales of cotton.

That he filed a report of his proceedings, after submitting the same to plaintiff' and approved by her, in the Conway probate court, at the time in said bill stated.

That at the same time he filed an account, exhibited with and made part of the answer, in the name of said administratrix, and he avers that he did so at plaintiff’s request ; that said account-current and report were not filed until, they had been fully examined by plaintiff and approved in all things, and not until the account-current had been signed by plaintiff, as such administratrix.

That by said report and account-current, it fully appeared and was definitely stated that defendant had, in pursuance of said contract, accounted to said estate for fifty dollars per bale of the amount collected upon said claim, and retained the remainder according to the terms of his contract with plaintiff.

That the order confirming said settlement was not obtained by the procurement of defendant, but in the due course of the practice of said court, and after the account had been on-file in said court for the time required by law without any exceptions being taken thereto.

Defendant avers that all of said orders were regularly and lawfully obtained, and by the knowledge, consent and direction of said plaintiff, and .were not sought for or procured by defendant for his protection. That all of.said orders were granted on the motion of the plaintiff by’said probate court, on”full hearing and understanding of all the matters involved.

That after said cotton claim had been collected, defendant paid over, by plaintiffs direction, to the creditors of the estate, the sum set' out in said report, taking proper receipts therefor, which said plaintiff, with a full knowledge and understanding of the whole affair, accepted in full and entire satisfaction of the amount due the estate on said cotton claim, and that when said report had been made and all questions adjusted and settled between plaintiff and defendant in relation thereto, he did pay to said plaintiff the sum of ten dollars for every bale of cotton for which recovery was had, which plaintiff accepted and received, and defendant denies that he thought of or intended to bribe plaintiff, or purchase her silence, or that the sum of ten dollars per bale was ^iven or accepted in viola? tion of plaintiff’s or defendant’s duty, or in fraud of the rights of the beneficiaries of said estate.

On the twenty-first of January, 1879, the plaintiff moved the court to exclude the evidence of the defendant dontained in his answers to certain interrogatories in the original deposition taken on the sixteenth of January, 1879, and the answers to certain interrogatories of the second deposition, taken on the eighteenth of January, 1879, because the same relate to transactions between defendant and Mrs. Lucy H. Carroll, who was deceased at the time of taking depositions, and on the ground of irrelevancy. Whereupon the cause was submitted to the court for final hearing, on all the papers filed in the cause.

The Chancellor, after delivering a written opinion in the cause, rendered a decree against the defendant for the sum of sixty-two thousand five hundred and three dollars and thirty cents, and costs. Erom this decree defendant appealed to this court.

The decision of this cause depends upon the effect to be given to the contract of the twenty-third of March, 1868, exhibited with and made part of defendant’s answer.

Was it a valid and binding contract? Or, was -it unauthorized by law ?

This contract and memorandum thereto attached, is in the words and figures following:

“Memorandum of agreement made in Conway county, Arkansas, this twenty-third day of March, 1868, between Lucy H. Carroll, administratrix of the estate of George W. Carroll, deceased, and John Wassell, attorney at law, Little Eock, in said state:

“ Whereas, There was a quantity of cotton, in bales and otherwise, on the plantation of the late George W. Carroll, in the winter of 1863 and 1864, said cotton being seized by the federal authorities; and, whereas, said John Wassell, being conversant with the matter of seizure, as aforesaid; and, whereas, in 1865, the said administratrix’secured the services of the said Wassell, as her only attorney to prosecute the claim of the estate for the recovery of the cotton, so seized, or a .portion thereof; and, whereas, said estate being utterly insolvent, there being no money on hand, or anything to convert into mouey; that without services or means of an attorney versed; in the matter, all is lost to the estate and its creditors; and, whereas, no one could be found, having a knowledge of the matters, and who would advance necessary means to pay expenses in prosecuting a suit or suits for said cotton, except said Wassell.It is, therefore, agreed between the administratrix and said Wassell that he should prosecute the said-claim against the said government of the United States for said cotton, so taken for confiscation and sale by the military authorities, at his own personal expense and risk; that should he recover nothing by said suits, he should lose all moneys he may have expended, and his labor and legal services performed by himself and other at orneys he may employ in prosecuting said claim, whether in the court of claims of the United States, or on appeal to the supreme court of the said United States. Should he be successful in said claim, in whole or in part, he shall be required only to pay over to the said administratrix the sum of fifty dollar's per bale on the number of .bales he may recover judgment, the overplus, if any, to be retained by him for compensation for his own services, or those he may associate with him in said suits. That full power is given him to perform, in all things, whatever may he required to enable him to carry out the foregoing stipulations. To give all proper receipts and vouchers, releases or acquittances to the United States government, or any of its officers, or ageuts, in this behalf, as.fully as said administratrix herself could do if personally* present.

“ Lucy H. Carroll, admix.

[Stamp.] “John Wassell.”

“ Additional memorandum:

“ Whereas, The honorable the probate court of Conway county, Arkansas, on an application of said administratrix, Mrs. Lucy H. Carroll, made the following order, on the fifteenth day of April, 1868 :

“Lucy H. Carroll, administratrix of George W. Carroll, deceased:

“ On this day it is ordered by the court that Lucy H. Carroll, administratrix of the estate of George W. Oarroll, deceased, be empowered and authorized to employ an attorney for said estate; on any terms she may think proper for the best interests of said estate, to collect claims for said estate for cotton. It is therefore agreed that the foregoing contract, made before the making of the above order, be in all things ratified and confirmed by both of said _ parties, the same relating back to the first inception of the. taking of the said cotton by the United States military authorities in the winter of 1863 and 1864, embracing all services rendered or to be rendered about the same, and none other. Witness our hands, April 20, 1868.

^ claims the AI<foy-

Coeítrac°ifs c°iting!°se

“Lucy II. Carroll, Adm’x.

[Stamp.] “John Wassell.”

The plaintiff contends that this contract is in substance an assignment of plaintiff’s claim against the United States, in whole or in part, so as to bring it within the prohibition of the act of congress, approved February 26, 1853, entitled “ An act to prevent frauds on the treasury of the United States,” and, therefore, void. This act declares that “ all transfers and assignments thereafter made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or any part, or share 'thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim; the ascertainment of the amount'due, and the issuing of a warrant for the payment thereof.”

Can the plaintiff’s position be maintained? And is the contract within the prohibition of the act of congress? The object of the contract is distinctly set forth by the instrument itself. It does not, upon its face, purport to assign or transfer the claim, or any part of it, to Wassell. After the introductory recitals, it provides that Wassell shall prosecute the claim against the government at his own expense, and if he recovers nothing, he is to receive nothing for his services, and lose all money he may have expended, .and his labor and legal services performed by himself and other attorneys he might employ in prosecuting the claim, but if he recovered anything he was required to pay over to the administratrix the sum of fifty dollars per bale on the number of bales of cotton he might recover judgment for, retaining the overplus, if any, for compensation for his own services, or those he might associate with him in the prosecution of the claim.

The primary object of the agreement between the parties-was the employment of Wassell to prosecute the claim against the government of the United States. This he agreed to do for a contingent fee, the amount of which (if any) could only be determined by the result of the suit or suits to be instituted for the recovery of the claim.

Noes the agreement of the administratrix to pay Wassell a contingent fee out of the amount to be recovered operate as a transfer and assignment of the claim, or any part of it, so as to create a lien on the fund in favor of Wassell; or is it simply a personal agreement to pay Wassell a contingent fee for services to be rendered in the prosecution of the claim ? _ .

Cases analogous to this, and involving similar questions, have repeatedly been decided by the courts, both federal and state.

In the case of Trist v. Child, 21 Wal., 441, Trist had a claim against the United States for services rendered in 1848, touching the treaty of Guadaloupe Hidalgo; employed Child, a lawyer of Boston, to- prosecute the claim before congress. Child was to receive for his services 25 per cent, of whatever claim congress might allow .in payment for the claim. The fee was wholly contingent. Child died, but his son and representative, L. M. Child, continued the prosecution -of the claim. Congress appropriated over $14,000 to pay the claim. Trist refused to pay the 25 per cent, which he had agreed to pay. ; Child then applied to the treasury department to„suspend the payment of the money to Trist. Payment was suspended, and the money remained in the treasury.

Child now filed his bill against Trist, praying that he might be enjoined from withdrawing the said sum of money from the treasury until he had complied with his agreement about the compensation, and for decree for $5,000.

Judge Sawyer, in delivering the opinion of the court, said: “ It is well settled that an order to pay a debt out of a particular fund belonging to the debtor, gives to the creditor a specific equitable lien upon the fund, and binds it in the hands of the drawee. A part of the particular fund may be assigned by an order, and the payee may enforce payment of the amount out of the drawee, but amere agreement to pay out of such fund is not sufficient. Something more is necessary. There must be an appropriation of the fund fro tanto, either by giving an order or by transferring if otherwise, in such a manner that the holder is authorized to pay the amount directly to the creditor without the further intervention of the debtor.

“ Viewing the subject in the light of these authorities, we are brought to the conclusion that the appellee (Child) had no lien upon the fund here in question. The understanding between the elder Child and Trist was a personal agreement. It could in nowise produce the effect insisted upon. For a breach of the agreement the remedy was at law, not in equity. * * * * In that ease the agreement was to allow Child, as a compensation for his services, 25 per cent. of whatever sum congress might appropriate in payment of Trist’s claim.”

In this case the agreement was, that Wassell and those associated with him should receive as compensation for services the excess over fifty dollars per bale of cotton of the amount recovered. o

The attorneys in both cases were to receive compensation for their services out of the. respective amounts to be recovered.

In the former case, the court decided that the contract between Trist and Child was merely a personal agreement between the parties, and created no lien upon the fund appropriated by congress ; and if so, why may we not treat the contract between the administratrix and Wassell as merely a personal contract between the parties, providing for compensation to Wassell and his associates for their services in prosecuting said claim against the government? And if so, could it create a lien in favor of Wassell. on any part of the fund recovered ?

•In the case of Spofford v. Kirk, 97 U. S. Rep., 484, to which we are referred, Kirk, who had employed Hosmer & Co. to prosecute his claim for $12,000 against the United States for supplies furnished during the late war, before the allowance of the claim, drew upon the firm two orders —one in favor of J. S. Wharton, and the other in favor of E. R. Taylor — to be paid out of the fund to be collected. These orders were duly accepted by Hosmer & Co., and were afterwards sold to Spofford.

Upon the issue of the treasury warrants for the sum awarded to Kirk, Spofford made demand upon Hosmer & Co. for the payment of the orders.

Kirk refused to indorse the warrant, or to admit the validity of the orders. Spofford filed a bill to enforce complianee with the orders and acceptances, and to enjoin Hos-mer & Co. from surrendering, and -Kirk from receiving, said warrant. Bill dismissed, and an appeal taken to the supreme court of the United States.

Held, by the court, that the orders became, upon acceptance, and in the absence of any statutory prohibition, an assignment fro tanto of the claim, and that under the act of February 26, 1853, the accepted orders were void, and that SpofFord took no interest in the claim, and acquired no lien upon the fund arising therefrom.

In this case there was a distinct and specific appropriation of the respective amounts mentioned in the orders; and these orders and acceptances determined and set apart the specific amounts to be paid out of the general fund, and the court consequently decided the orders and acceptances void under the act of congress of 1853.

But the case under consideration is unlike this. In it we have no orders or acceptances on the fund to be recovered from the United States, and we have no assignments or specific appropriation of any amount whatever for the benefit of Wassell, but the administratrix agrees to pay him a contingent per cent., out of the amount collected, for the services of himself and associates.

We' are referred, in the brief of plaintiff’s counsel, to 1 Court of Claims, R; 12 ib., 288; 3 ib., 65; ib., 312. Upon examination of the cases referred to in these reports, we are of opinion they have no special application to the question before us.

The case of Jones v. Blackledge, 9 Kansas, 562, was founded on an agreement between Jones and Blacldedge,whereby Jones employed Blackledge to prosecuté and collect a claim against the government of the United States for the sum of $67,000, for which services Jones agreed to pay the said Blackledge 20 per cent, on the amount of s'aid claim when collected. The supreme court of Kansas decided this was a conditional transfer, or assignment, of a part of said claim against the United States, and void. With great respect for the supreme court of Kansas, we think this decision is not well sustained by authority or ■ reason. The contract does not even provide for the payment of the per centage out of the amount to be collected. It is simply a personal contract between the parties, and this decision is in direct conflict with several decisions of the supreme court of the-United States. •

See the case of Trist v. Child; also, Wright v. Tibbetts, 91 U. S. Reports, 252.

In the case of Maybin v. Raymond, assignee, Raymond v. Harris et al.:

In the United States district court, southern district of Mississippi (15 Bank Register, 353), Harris & Harris, a firm of solicitors at Vicksburg, who had prosecuted a claim against the United States for Maybin and his assignee, Raymond, by which Maybin, before his bankruptcy, agreed that in consideration of their prosecuting said claim and paying all expenses incident to such prosecution, they were to have and retain one-half of the amount they might recover from the United States.

Harris & Harris and their associates at Washington, recovered for their client $71,020, of which amount they, were entitled to and received one half.

The court (Judge Woods) said:

“Under this state of facts there can he no doubt of the right o'f Harris & Harris and their associates to one-half the .net proceeds of the fund, notwithstanding the fact that, during the pendency of the cause in the court of claims, Maybin had been adjudged a bankrupt, and before the moving of judgment in that court, Raymond, his assignee had been made a party plaintiff to the suit. Harris & Harris and their colleagues were not only will ng to prosecute the suit after the bankruptcy, .and after the assignee was made a party, but actually did prosecute it to a successful final judgment and recovery of the money. Their services were accepted by the assignee, and he now enjoys their fruits. When their services had been rendered according to the contract and the money recovered, they had a right to one-half of the amount.”

We have thus briefly reviewed the cases supposed to bear upon the question under consideration, and have come to the conclusion that the contract of the twentieth of March, 1868, is not within the prohibition of the act of February 26, 1853, and is, therefore, so far a3 affected by that act, valid and binding on the parties.

It is, however, objected that the administratrix had no authority to make the contract of the twenty-third of March, 1868, and we are referred to our statute providing for the employment of an attorney to prosecute or defend suits brought by or against executors or administrators. ■

The statute provides that: “When it shall become necessary, in the opinion of the court, for an executor or administrator to employ an attorney to prosecute any suit brought by or against such executor or administrator, the attorney so employed shall reéeive as a compensation for his services, 8 per centum on all sums less than three hundred dollars, and on all sums over three hundred and less than eight hundred dollars, 4 per centum. * * *

“Such attorney’s fees shall be paid as expenses of administration, but no attorney shall be allowed any executor or ■administrator unless for the prosecuting or defending a suit under the direction of the court.” Gantt’s Digest, secs. 195, 197.

While the passage of this law has served a good purpose in restraining executors and administrators from incurring unnecessary expense in the administration of estates by employing attorneys when not actually needed, yet, in view of the exigencies often arising in the administration of estates, we are disposed to regard the statute as intended to be directory i'ather than as imperative and prohibitory, and we are of the opinion that whenever an emergency or overruling, necessity arises in the administration of an estate, requiring th.e executor or administrator to act promptly, in order that the property of the estate may be protected and preserved from loss, that such executor or administrator ought to act at once, without waiting for the order or direction of the probate court; for delays in such case might be injurious, if not disastrous to the interests of the estate.'

In the case of Turner v. Tapscott, administrator, 30 Ark., 312, Justice Walker, who delivered the opinion of the court, quoting Chief Justice English in the case of Bomford v. Grimes, administrator, 17 Ark., 567, who said: “When the administrator finds it necessary to call in medical assistance, he has the right and it is his duty to do so, not only as a matter of humanity, but by way of preserving them as property of the estate, and it would be the duty of the probate court to allow the administrator the reasonable expenses#so incurred, as part of the costs of the administration.”

The court, further commenting upon, and in approval of the decision of the court in the case of Bomford v. Grimes, administrator, said: “The necessity for the services was urgent and did not admit of delay until an order of court could be procured for that purpose; and upon like reasoning should the assistance of an attorney become necessary in order to protect the estate or to prevent its loss or waste, as when replevin is necessary to regain possession of property, or when suit is brought against an estate which requires that a defense should be interposed to prevent its loss, it would be the duty of the administrator, without an order authorizing him to do so, to employ counsel, and when the services are rendered for the benefit of the estate, the probate court, upon proof, should allow the attorney’s fee, as part of the necessary expenses of administering the estate. If fees, under such circumstances, are to be held as a personal charge upon the administrator, no counsel would be employed, and the estate would be wasted.”

Indorsing, as we do, the opinion of the court in the case of Turner v. Tapscott, and holding that an administrator has a right to employ an attorney to prosecute or defend suits, without the previous order of the probate court, if deemed necessary to save and protect the interests of the estate from loss, we are led to inquire, what was the condition of the estate of George W. Carroll, deceased, on the twenty-third of March, 1868? Was it such as to require the employment of an attorney to save and protect its interests from loss? The estate was considered insolvent, yet it was asserting a large claim against the government of the United States for cotton seized by the military authorities on the plantation of Carroll, in 1863-4, but did not have a dollar to employ an attorney to prosecute the claim, or defray necessary expenses attending its prosecution.

It seems that after repeated efforts and failure to procure counsel, Mrs. Carroll appealed to Wassell to take charge of the claim, proposing the terms and conditions' of his ■employment, the amount to be paid her as the administratrix of the estate of George W. Carroll, deceased, and his own compensation and that of such attorneys as he might employ to assist him in the prosecution of the claim. This proposition was reduced to writing and signed by the parties thereto, and constitutes the agreement or contract of the twenty-third of March, 1868, which Wassell, in his deposition, states was the only contract he ever entered into with the said administrator in regard to said cotton claim. It is true, the plaintiff sets up a different contract, and what she calls an “arrangement,” made with Wassell, long previous to the contract of the twenty-third of March, but this is denied by Wassell,'in his answer, and there is no proof of such contract or arrangement. We must then conclude that the contract of the twenty-third of March, 1868, is the one under which Wassell agreed and undertook to prosecute the cotton claim against the government. This is the testimony of Wassell himself. He is a competent witness in the case, and we do not feel at liberty to ignore or disregard his evidence.

It appears that within a few days after the execution of the. contract of the twenty-third of March, 1868, the claim would have been barred by the statute of limitations. The next term of the probate court of Conway county was to be held on the fifteenth of April following, and before that time the claim would have been barred and wholly lost. In such an emergency as this, the administrator employed Wassell to institute suit for the recovery of the claim, and thus prevented the statute bar.

Aside from the many other difficulties which attended the collection of the claim, this was an extraordinary exigency, and we think well warranted the administratrix in making the contract with Wassell.

The letters from Wassell to Corwin, for the purpose of showing a different contract between the parties than that of the twenty-third of March, 1868, could not affect the validity of that contract, for although Wassell was guilty of misrepresentation in his correspondence with Corwin, which the court does not justify o'r approve, yet we regard these letters as in the nature of parol evidence, if evidence at all, which could not invalidate or affect the written contract between the administratrix and Wassell.

It appears that from the necessities of the case, the contract was made and Wassell employed to bring suit against the government for the recovery of the cotton claim, before an order was obtained authorizing the administratrix to employ an attorney for that purpose. That at the first term of the probate court of Conway county, held thereafter on the fifteenth of April, 1868, an Order was made by the court, on the application of said administratrix, authorizing her, as such administratrix, to employ an attorney for said estate, on any terms she might think-proper, to collect the claim for said cotton. A transcript of this order is filed with and made part of defendant’s answer.

That after tire making of said order, on the twentieth of April, 1868, the administratrix ratified and confirmed the contract of the twenty-third o$ March, 1868, by indorsement thereon, in writing, which is exhibited with the contract and made part of the defendant’s answer.

It further appears that at a subsequent term of the probate court of Conway county, on the eighth of April, 1872, after reciting previous orders, it was further ordered, “that the employment of the said John Wassell as attor-' ney of the said administratrix be approved, and that he have full power under the direction of the administratrix to prosecute all suits in behalf of the estate, on such terms as she might agree to and direct, in accordance with the former orders of the court.”

It further appears that the defendant, afterwards, made a report, in writing, to plaintiff. This report details with particularity the serviced of himself and associates in the prosecution of the claim — the difficulties surmounted and expenses incurred in conducting the suit against the government, and announces his final success in the recovery, for a large amount of cotton, against the United States, seized and appropriated by the government during the late civil war.

.In this report Wassell sets forth distinctly the contract between himself and the administratrix, of the twenty-third of March, 1868, and stating that judgment had been recovered in the court of claims of the United States for 347 bales of cotton, which, at fifty dollars per bale, amounted to $17,350, to which she was entitled, under the contract, which he then paid over to the administratrix.

It further appears that at the same time an account-current was made out by said administratrix, under the direcr tion of her attorney, the said John Wassell, exhibiting a detailed account of. her administration of said estate in which she charges herself with the said sum of $17,350, received from Wassell on the contract of the twenty-third of March, 1868, and credits herself with $5,783.33, her dower interest in said -sum, and claims credit for other items of expense, amounting to $5,064,48, leaving a balance in the hands of the administratrix of $6,501.19, which it appears was paid out by tbe administratrix pro rata on the claims allowed against the estate.

It appears from the evidence of "Wassell that the report and account-current were placed in the hands of the administratrix for examination and inspection, where they remained for some weeks,' and were filed in Conway probate court on the twenty-ninth of October, 1872.

The account-current having remained on file in the probate court from the October to the January term following, without exceptions having been filed thereto, upon settlement, there was found to be in the hands of the administratrix, a balance of $498.69, with which she was charged, and thereupon the settlement and account-current were approved by the court. So it appears to the court that Was-sell, in conducting the prosecution of said claim against the government, from the beginning to the end of it, was acting in obedience to the wishes of the said administra^ trix, and for the purpose of carrying out his contract of the twenty-third of March, 1868, while the probate court exercised a supervising control and direction over the whole matter.

We dismiss the allegations of fraud in the bill. They are denied by Wassell in his answer, and are not supported by satisfactory evidence. We think they have no solid foundation to rest upon.

Wassell might well have spoken of the difficulty and uncertainty attending the collection of such a claim against the government, and this without exaggeration.

Circumstances tended strongly to show that the' cotton in question had been disposed of to the Confederate States of America, and the belief seemed general, at that time, that it would be necessary to prove the loyalty of Carroll to the government of the United States, to insure a successful ' prosecution of the suit, which proof it was known could not be made.

2. Witnesses:

Parties, as to transactions with deceased administrator.

So we see that the surroundings of the claim, at the time, were by no means promising.

It seems, too, that Wassell was the only person who could be obtained to undertake the prosecution of the claim, and that he engaged in it, according to his evidence, on the terms proposed by the administratrix herself.

Wassell’s recovery was probably more than any one expected. Looking at it now, and viewing it in the light of accomplished results, we are apt to think the sum retained by Wassell disproportionate to the services rendered by himself and associate attorneys.

But we ought not to forget that of the sum retained by him, large amounts were paid out to his associate attorneys for their services, and to others large amounts seemed necessary to insure a successful prosecution of the suits, as well as a heavy individual expenditure.

Then we should not forget that Wassell’s fee was contingent. If the end could have been seen from the beginning, there would have been no difficulty in getting attorneys to prosecute the claim, and for a moderate fixed fee. But the end could not be foreseen, hence the fate of the claim was involved in doubt and uncertainty, and learned aud experienced lawyers, who practice in this court, tell us in their depositions that the contract of the twenty-third of April, 1868, was, under all the circumstances of the case, fair and reasonable, and we can not say that it was not.

The objections to Wassell’s evidence, touching statements and conversations of Mrs. Carroll, we think are not well taken. Her”case is evidently not within the exceptions of the second section of the schedule to the constitution of 1874.

As to the agreement and compensation of Wassell:

Contracts made with attorneys, whereby the attorney, if successful, is to receive part of the property recovered, are of frequent occurrence.

In the ease of Child v. Trist, already referred to, the attorney was to receive part of the sum recovered.

In the case of Maybin v. Raymond, previously referred to, Harris & Harris, the-attorneys, were to receive one-half of the sum recovered, they paying all expenses attending the prosecution of the suit.

In the case of William P. Hoffman v. Jose Jesus Vallejo et al., 45 Cal., 564, it was decided that “ it is not against public policy for a party claiming title to land to enter into a contract with an attorney, by which it is agreed that the attorney shall commence legal proceedings for its recovery, and pay the costs, and, in consideration of his services and •expenditure of money, have an undivided one-half of all the land recovered, and the undivided one-half of all that may be recovered or obtained by reason of any compromise or settlement of the matter, and that the party claiming the land shall not make any settlement or compromise without the consent of the attorney.”

And this contract was upheld- by the court.

In the case of Stansell v. Lindsay et al, 50 Ga., 360, where an administrator was sued in ejectment, and contracted with an attorney to defend the suit, and agreed to give.him one-half the land if the defense was successful, the court •decided the contract between the administrator and the attorney to be valid and binding on the parties.

Judge McCoy, in delivering the opinion of the court, said: “If there was a bona fide suit pending against the administrator for the land, we think he had the right to employ counsel to defend the title of the estate, and to charge the corpus of the estate with the fee to be given, and it was fairly and bona fide charged on the land by written contract, we see no reason why it should not be enforced by specific performance.”

See, also, 1 McArther, Del.

Having concluded our review of this case, we repeat, in conclusion, that we regard the contract of the twenty-third of April, 1868, as of valid-.and binding- force, and having as we hold, been executed, in letter and spirit, by the parties thereto, it can not now be disturbed.

We are, therefore, of opinion there is'error in the Chancellor’s decision, and we do reverse the decree in this cause and dismiss the bill.


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    Miller et al. vs. The State.
    1. Pleading and Practice: Appearance: What constitutes.'

    The filing of a demurrer, consenting to a continuance, and on overruling the demurrer obtaining leave to answer, are substantive acts constituting an appearance.
    2. Cbiminal Pbaciice : Forfeited bail bond: No pleadings on by state.

    No pleadings are required from the state on forfeited bail bonds. A summons issues upon the forfeiture, as in civil actions, which, if fatally defective, is not subject to demurrer, but may be quashed on motion. Matters in defense on the merits may be set up by answer as in civil actions.
    APPEAL from Scott Circuit Court.
    Hon. J. H, Rogers, Circuit Judge.

      Henderson, Attorney General, for appellee.'

      a-j.pLEADINa íira:PEA0”
    aneef'What constitutes
   English, C. J.

It appears from the transcript in this case, that on the seventeenth of August, 1877, John H. Cockram, being in custody before a justice of the peace of Scott county, charged with a criminal offense, R. L. Miller, B. J. E: Trotter, E. M. Await and Thomas Davenport executed a bail bond for his appearance at the next term of the circuit court of that county.

At the appearance term, Cockram made default; a forfeiture was. entered upon'the bond; a capias ordered for him, and a summons upon the forfeiture, to his sureties.

At the return term, June, 1878, the sureties in the bail bond entered a demurrer, in short, to the scire facias, and the cause was, by consent .of parties, continued. At the following November term the demurrer was overruled, and defendants asked and were granted leave to answer, but failing to do so, final judgment was rendered against them at the same term for $1,000, the penalty of the bail bond, and they afterwards obtained grant of appeal by the clerk of this court.

No brief has been filed for appellants, and on what ground the appeal was taken, does not appear.

The bail bond appears to be substantially in good form, and the forfeiture seems to;have been regularly entered.

The summons Issued upon the forfeiture is not in the transcript, but the judgment entry recites that it appears to the court-that it had been duly served and returned.

Moreover, appellants entered a demurrer; consented to continuance, and on the overruling of the demurrer, asked and obtained leave to answer, but failed to do so. These ¶ > . , .,. were substantive acts constituting an appearance.

Under the former practice'a scire facias upon forfeiture of a bail bond answered the purpose of both declaration and writ, and if it failed to allege facts sufficient to constitute a cause of action, would not sustain a. judgment by .default. See cases cited in Rose’s Digest, title Scire Facias.

2 criminal

badibonds!

Now no pleadings are required on the part of the state, but a summons is issued upon the forfeiture, as in a civil suit (Gantt’s Dig., sec. 1743), which is not the subject of demurrer (Ullery v. Town of Fort Smith, ante), but might be quashed on motion, if fatally defective under the liberal rules of amendment applicable to writs in other civil suits. Matters of defense to the merits may be set up by answer, as in other actions.

Finding no substantial error in the record, the judgment must be affirmed.


text:
    Freeman et al. vs. Mears et al.
    Practice : Entering judgment nunc pro tunc against sureties in an appeal bond without notice.

    If on appeal from a justice of the peace judgment be recovered against the appellant and his sureties in the appeal bond, and the clerk omit to include the sureties in the entry of the judgment, a nunc pro tunc judgment may be entered against them at a subsequent term without notice to them.
    APPEAL from Arkansas Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.
    Pinnell, for appellant.

      Brown, contra.

   English, C. J.

Andrew J. Mears and Green W. Boat-right obtained a judgment before a justice of the peace of Arkansas county against George W. Stewart, and he appealed to the circuit court, executing an appeal bond, -with "William J. Childress and Augustus L. Freeman ¿s his. sureties. The cause was tried anew in the circuit court, at the September term, 1875, and judgment rendered against Stewart, in favor of Mears and-'..Roatright, for $125 and costs, but the clerk omitted to enter judgment against Childress and Freeman, sureties im "the appeal bond. At a subsequent term a judgment nunc fro tune was entered against them, which they moved to set-aside, on the ground of want of notice, showing no defense to the merits or irregularity in the appeal bond. The court overruled the motion, and they afterwards obtained the allowance of an appeal hy the clerk of this court.

Notice was given to appellants that an application for judgment against them would, be made, though they were in court, and none was necessary. Rogers v. Brooks, 31 Ark., 194.

Affirmed.


author: English, C; J.

text:
    Martin vs. Tucker et al.
    1, Promissory Note : Consideration for, how assailed in justice’s court ? Burden of proof.

    In a suit on a promissory note, instituted before a justice of the peace, no affidavit is necessary for the defendant to avail himself of the defense of “no consideration or illegal consideration” for the note, either in the justice’s court or in the circuit court, on appeal. The burden of proving such defenses is upon the defendant.
    2. Evidence: Statement of defendant: Res gestee.

    The statements of a defendant to the plaintiff’s attorney, of his reasons for executing a note, made at the time of executing it, are admissible as parts of the res gestee. But his statements of them, at a subsequent time, in the absence of the plaintiff, are not admissible for him.

      3. Illegal Consideration : Contract avoided by.

    One may take a nóte from another for what he owes him, though for money embezzled; but if he procure the note to be executed upon an agreement not to prosecute him for the embezzlement, the contract will be illegal and void.
    APPEAL from Hempstead Circuit Court,
    lion. J. K. Young,.Circuit Judge.

      Yonley Sp Whipple, for appellant.
   English, C; J.

This suit was commenced before a justice of the peace of Hempstead county, by T. L. Martin, on the following note, against the makers thereof:

“ $168.83. Six months after date we, or either of us, promise to pay T. L. Martin the sum of one hundred and sixty-eight dollars and eighty-three cents, the same being money collected for box rent and postage stamps sold while clerk in the post office at Hope, Hempstead county, and state of Arkansas, during quarter ending June 80,1877, at the rate of 10 per cent, from date until paid.

“Hope, Ark., July 7, 1877.

“A. E. Tucker, [Seal.]

“A. L. Martin,

“W. J. R. Howard,

“Moses Winter,

(Credit of $35 indorsed.) “ W. P. Powell,

“J. M. Summers.”

All of the defendants were served with process except Howard and Winter.'

On the return day of the summons, an entry in the docket' of the justice states that “ the defendants, by attorney, entered oral pleas of no consideration and illegal consideration, which were denied by plaintiff’s attorney ”

1 p sobyNo™:

J-:E>- oourt‘

There was a trial and judgment discharging defendants, and plaintiff appealed to the circuit court, where the cause was submitted to'a jury on the thirtieth of January, 1879 ; verdict and judgment for defendants; motion for a new trial overruled; bill of exceptions, and appeal to this court by plaintiff.

The grounds of the motion for a new trial are as follows :

“1. The verdict of the jury was contrary to the evidence.

“ 2. The verdict was contrary to the instructions of the court.

“3. The court permitted evidence to go to the jury which was hearsay and incompetent, and against the objections of the plaintiff. . .

“ 4. The court refused to require the defendants to make their plea under oath affecting the legality of the note sued on, as required by the plaintiff

“ 5. For other irregularities'in the course of the trial.”

What instructions the court gave to the jury do not appear from the bill of exceptions.

I. The bill of exceptions states that after the case was submitted to the jury, and before the evidence was commenced, plaintiff insisted that defendants had no plea in, and had not attacked the consideration of the writing sued on by plea under oath, and the court decided that it was not necessary, as the transcript showed that an oral plea had been made before the justice of the peace who tried the case below; and that two of the defendants were in court, and could state on oath the same, to which ruling of the court plaintiff excepted.

Burden of ciefendant!

The pleadings in an action before a justice of the peace may be written or oral, without verification, but, if oral, it is the duty of the justice to write down the substance thereof in his docket, etc. Gantt’s Dig., sec. 3740.

Where the suit is upon an instrument of writing, purporting to have been executed by defendant, plaintiff is not required to prove its execution, unless it is denied by affidavit. lb., secs. 2495, 3756.

Here, the defendants did not deny the execution of the note sued on, but pleaded orally, “no consideration, and illegal consideration,” and they were not required to file any affidavit before the justice, or in the circuit court, on appeal, in order to avail themselves of such defenses. Howell v. Vinsant, 7 Ark., 146; Greer, ad., v. George, adx., 8 ib., 131.

The burden of proving that the note was executed without consideration, or upon an illegal consideration, was upon defendants, and an affidavit would have availed them nothing if it bad been made and filed. Richardson et al. v. Comstock, 21 Ark., 69; Ware et al. v. Kelly, 22 ib., 441.

II. In stating the substance of the evidence introduced at the trial, that which was objected to by appellant as hearsay, and incompetent, will be noticed.

Plaintiff read in evidence the note sued on, and rested.

A. G-. Lowry, introduced for defendants, testified that he w7as attorney for plaintiff in taking the note sued on, and all he knew about the matter occurred while he was acting as such, and were privileged communications, and he objected to their disclosure.

The court overruled the objection, but stated that he should not be required to state any confidential communications ; to which ruling plaintiff' excepted.

Whereupon, witness testified that plaintiff'left defendant, Tucker’s, bond of $1,000, given as deputy postmaster at Hope, and a due-bill for balance due by Tucker to plaintiff, with instructions to give up tlie same to Tucker when he gave a new note, with security. That Tucker told witness he did not owe plaintiff anything, but would give the note to save himself from prosecution for embezzlement. To which evidence plaintiff excepted, etc.

statement ant:defe5¡d»

(a) An attorney is incompetent to testify concerning any communication made to him by his client in that relation, or his advice thereon, without the client’s consent. Gantt's Dig., sec. 2482.

The ruling of the court was in harmony with the statute, and nothing stated by witness, Lowry, was of the character of a communication made to him by plaintiff, or his advice thereon, within the rule of exclusion.

(b) Witness was acting as attornéy of plaintiff' in taking the note sued on of Tucker, and declarations made by the latter to him at the time, relating to the consideration of the note, or the motives that induced him to give it, were admissible as part of the res gestos- for what they were worth.

A. L. .Martin, one of the defendants, testified that A. F. Tucker came to him to get him to sign the note, and stated that if he would get the note signed by good security, plaintiff’ would not prosecute him. (Objected to by plaintiff, etc.) That after the note was signed by the defendants, plaintiff told witness that he was glad they had signed the note, for he did not wish to harm Tucker; that he was a young man, and he was sorry for him.

(c) The statement of Tucker to this witness, made in the absence of the plaintiff", was incompetent evidence, and should have been excluded. Tucker was acting for himself, and not as agent of plaintiff, in procuring sureties.

J, M. Summers, another defendant, testified, that A. F. Tucker came to him with the note sued on, and wanted him to sign it, and he then went to see plaintiff, and told him that Tucker wanted him to sign the note, and he said all right, if the note was made it would save any further trouble. The idea conveyed by plaintiff, to witness, was, that he would not prosecute Tucker if the note was given.

On cross-examination, he testified, that plaintiff did not say that it would save Tucker from prosecution for embezzlement, but the witness supposed that was what he meant.

On re-examination, by defendants, witness stated that “the only reason why he signed the note was-under the belief that it would prevent Tucker from being prosecuted in the United States court.” (Objected to by plaintiff, and objection overruled by the court, etc.)

(d) Any statement made by plaintiff" to witness, or by witness to plaintiff", relating to the execution of the note, or its consideration, was admissible, but it was not competent for the witness to state a belief, formed in his own mind, and not communicated to plaintiff’, and assented to by him. It was the province of the witness to state facts, and of the jury to draw inferences from the facts.

Here defendants closed.

Plaintiff testified that defendant, Tucker, had acted as his deputy in the'post office at Hope, and when he came to a settlement with him, Tucker owed him a balance of about the amount of the note, and gave him a due-bill for it, and proposed to give him a note, with security, for the amount due, in place of his bond; which proposition he accepted. He left the bond which Tucker had given him for $1,000, conditioned for the faithful performance of his duty as deputy, with his attorneys, Lowry & Lowry, Esqs., with instructions to give Tucker the bond when he executed the note, with security, for the amount of the balance which was due him, and Mr. Lowry got the note, and notified him that he had a good note. He never, at any time, proposed or agreed that if Tucker would make the note, he would not prosecute him, and never made any threats, to him or any one else, that he would prosecute him for embezzlement. He settled according to Tucker’s books.

S. M. Humphreys; called by plaintiff, testified that the post office was kept in the same room he occupied in Hope, and he was conversant with Tucker’s business as deputy postmaster, and as express agent, and made out his quarterly reports for him, and knew that Tucker owed plaintiff, who was postmaster at Hope, the amount of the note sued on — except $85, which was an error in charge for furniture. Witness was present when the note was signed, and knew that there was nothing said between the parties about not prosecuting Tucker for embezzlement. He took Tucker out at the time, and told him he thought the note was for $85 too much — some matter of office furniture. Tucker took money out of the post office to pay what he was short with the express company.

On cross-examination, he stated that the postage-stamps were left in his safe, and no one knew the combination .but himself and .another person. .When the combination was thrown back, persons could go in. Mr. Lowry had a drawer in the safe.

Here plaintiff closed.

A. L. Martin, re-examined for- defense, stated that his only reason for signing the note with Tucker was, to keep Tucker from being prosecuted, and this information he got from Tucker. (To which evidence plaintiff objected, and the court overruled the objection.)

(e) We have above decided that statements made by Tucker to a witness, to induce him to sign the note, in the absence of the plaintiff, were inadmissible.

OonsÍdbbÍ

t t avoided by

A. G. Lowry, recalled by defendants, stated that he and others had access to Mr. Humphreys’ safe, during day time, when the combination was thrown back. At night the combination was not thrown back, and no one could get in.

The above is the substance of all the evidence introduced by the parties.

III. It is clear that the evidence does not sustain the plea of no consideration. Clegg v. Roane, 21 Ark., 362.

rV- To support the plea of illegal consideration there was au a^emPf;> hy appellees, to prove that the consideration 0f the note was tbe compounding of a felony.

A bond, note or other promise is void if it be given in consideration of compounding a prosecution for felony, treason, or a public misdemeanor.

Appellant had a right to take a note from Tucker, with sureties, for what he owed him, though for money embezzled. Breathwit v. Rogers, ad., 32 Ark., 762; Bishop on Contracts, sec. 174.

But if appellant procured the note to be executed upon an agreement not to prosecute Tucker for embezzlement, the contract was illegal and void. Puckett v. Roquemore, 55 Georgia, 235; Mathison et al. v. Hanks, 2 Hill, S. C. Law, 625.

Putting out of view the incompetent testimony admitted on the trial, as above indicated, we can not say that the jury would have been satisfied, from the other evidence, that appellant procured the note to be executed upon an agreement with Tucker not to prosecute him for embezzlement.

The indications are that appellant was satisfied in having his debt secured, and was not disposed to prosecute Tucker for embezzlement, but whether he made au agreement with Tucker, or his sureties, not to prosecute, as a consideration for the execution of the note, should be left to .the jury upon competent evidence, under proper instructions from the court.

Eeversed, and remanded for a new trial.


text:
    Mannington vs. Young et al., Directors, etc.
    1. Jurisdictiox oí Circuit Court: Joining sundry small claims.

    "Where no one of several debts sued on exceeds the sum of one hundred dollars, the plaintiff can not combine them so as to give the circuit-court jurisdiction.
    APPEAL from Garland Circuit Court.
    Hon. J. M. Smith, Circuit Judge.

      Carl, for appellant.
    Davies, J. M. Rose, contra.

   English, C. J.

J. E. Mannington commenced this suit, twenty-third of June, 1877, in the circuit court of Garland county, against School District- No. 6, of said county.

The action was founded upon six school warrants, three of them for $100 each, and one for $90, one for $80, and one for $80, each of them purporting to have been drawn in favor of plaintiff' on the treasurer of Hot Spring county, by L. G. liobbins, trustee of school district No. 19, of said county. It seems that the warrants were issued at different times, but all finally dated as of "June 25, 1872.

The complaint averred that the warrants were presented to the treasurer of Hot Spring county for payment, and not paid for want of funds; and that District No. 6, of G-arland county, embraced the same territory included in District No. 19, Hot Spring county.

- There was a demurrer to the complaint for want of jurisdiction, and upon other grounds, which the court overruled; and defendant answered, setting up several grounds of defense, which it is not material to notice.

The case was tried by the court, finding and judgment in favor of defendant, motion for new trial overruled, bill of exceptions, and appeal by plaintiff.

“The circuit court shall have jurisdiction in ajlcivil and criminal cases, the exclusive jurisdiction of which may not be vested in some other court provided for by this constitution.” Constitution of 1874, sec. 11, Art. VII.

Justices of the peace “Shall have original jurisdiction in the following matters: First — Exclusive of the circuit court, in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars, excluding interest,” etc. Ib., sec. 40.

No one of the school warrants sued on was for a sum exceeding one hundred dollars, and appellant could not combine them so as to give the circuit court jurisdiction.

If he can maintain actions upon the warrants at all against the school district (as to which we give no opinion), they are within the original jurisdiction of a justice of the peace. Berry v. Linton, 1 Ark., 252; Fenter v. Andrews, 5 ib., 34; Collins et al. v. Woodruff, 9 ib., 463; Wilson v. Mason et al., 3 ib., 494; Martin v. Foreman, 18 ib., 249; Gregory v. Williams, 24 ib., 177.

. There is no substantial difference between the-provisions of the constitutions of 1836 and 1864, prescribing the jurisdiction of the circuit court and justices of the peace, under which the above decisions were made, and the provisions of the present constitution. In the cases cited, the subject was well discussed, and it is needless to repeat the argument.

. The judgment must be reversed, and the cause remanded to the court below with instructions to dismiss it for want of jurisdiction of the subject-matter of the action.


author: Harrison, J.

text:
    Tate vs. Tate et al.
    1. “Chapter's op the DigestChapter 1 not legally enacted.

    Chapter 1 of the “ Chapters op the Digest” was never legally enacted; and probate courts acquired no jurisdiction under it of the administration of partnership effects; and a bond given by a surviving partner as administrator of the partnership effects, was without consideration, in violation of his rights as surviving partner and owner of the property, and void.
    2. Parties : In actions for interest of a deceased partner, in partnership effects.

    In an action against the surviving partner for the interest of a deceased partner in the partnership property, after settlement of the partnership business, the personal representative, and not the heir or widow of the deceased partner, is the proper plaintiff.
    APPEAL from Howard Circuit. Court in Chancery. .
    Hon. L. J. Joyner, Circuit judge.
    Rose, for appellant.
   Harrison, J.

William W. and Moses L>. Tate were merchants and partners under fhe firm of W. W. Tate & Brother, at Center Point, then in Sevier, and now in Howard county. Moses I). Tate died, intestate, on the twenty-eighth day of October, 1870. On the thirty-first day of the same nronth, William W. Tate, in accordance with the provisions of chapter 1 of what is known as the “ Chapters of the Digest,” applied to the probate court of Sevier county, to he, as surviving partner, appointed ad-, ministrator upon the partnership property and effects, and having executed a bond to the state in the penal sum of six thousand dollars, conditioned as hereafter stated, with John R. Z. Vaughn, Richard D. Owens and William C. Graves, Jr., as bis sureties, he was so appointed.

The condition of the bond was as follows: “The condition of the above bond is that, if William W. Tate, surviving partner of the late firm of W. W. Tate & Brother, shall use due diligence and fidelity in closing the affairs of the late copartnership, apply the property thereof towards the payment of the partnership debts, render an account annually, upon oath, to the court, of all the partnership affairs, including the property owned by the late firm, and the debts due thereto, as well as what may have been paid by the survivor towards the partnership debts, and what may still be due and coming therefor, and pay over’' within two years (unless longer time be allowed by the court) to the executor or administrator, the excess, if any there be, beyond satisfying the partnership debts and costs and expenses, in closing the affairs of the co-partnership, then the above bond to be void — otherwise to remain in full force.”

He proceeded to make an inventory of the effects, and to have the goods appraised, and returned the inventory 'and appraisement to the court; according to which the value of the goods was $2,300.03, and there was due the concern on the books and in notes, $7,092.28.

There was also a store-house in Center Point worth $500. He afterwards, on the first day of February, 1871, pro■cured from the court an order to sell the goods at auction, which he did, but no sales-bill was ever filed or report of the sale made, and no further proceedings in the matter were had, and at the July term, 1872, it was dismissed as not within the jurisdiction of the court.

Moses D. Tate left a daughter, Alice E., an infant, his sole heir, and a widow, Louisa, who had since internanied with William L. Dobson.

William 0. Graves, Jr., and John R. Z. Vaughn, two of the sureties in the bond, had since died. William C. Graves, Jr., left a will, of which Joseph Graves was the executor. John R. Z. Vaughn died intestate, and there was no administration upon his estate. He left a widow, Eliza E. Vaughn, and five children, Martha R. P., John W., Joseph D., Maria E. and James 0. Vaughn, his heirs.

Alice E. Tate, by her guardian, Nathan Levi, and William L. Dobson and his wife, Louisa Dobson, brought this suit against William W. Tate, Richard D. Owens, Joseph Graves, as executor of William G. Graves, Jr., Eliza Vaughn, Martha R. P. Vaughn, John W. Vaughn, Joseph D. Vaughn, Maria E. Vaughn and Janies 0. Vaughn, for an account, and settlement by said William W. Tate, as such partnership administrator of the partnership property,, and they prayed a decree against all the defendants for the sum -which should be found severally due them.

William W. Tate, Richard D. Owens and Joseph Graves ■demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The other defendants made no defense.

The court sustained the demurrer, and dismissed the ■complaint.

The plaintiffs appealed.

1. “Chapters of THE Digest.”

Chapter 1 not legally enacted.

Chapter 1 of the “Chapters of the Digest ” was never enacted as a law by the general assembly, and the probate court had no jurisdiction of the subject-matter to which the proceedings in it related.

But it is insisted that the proceedings were afterwards validated by the act of February 25, 1873, “ to confirm and make valid certain acts done and performed under. certain supposed acts of the legislature,” called “ Chapters of the Digest.”

The only provision in the act relating to partnership property upon the death of a partner, or to surviving partners, is the following, found in sec. 1: “ Administrators of partnership effects shall close up said partnership business, as surviving partners, but their acts as administrators heretofore performed, when legal, shall be valid and binding.”

The probate court had, before the act was passed, dismissed the proceeding and' renounced the jurisdiction it had assumed.

Though it may be that the act validated and gave force to the bond in cases where the executor or administrator of the deceased partner took charge of and administered the partnership effects, in exclusion of the surviving partner— as to which, however, we need express no opinion — we can find no good reason to hold that it did so, where the surviving partner, the rightful owner, retained possession of the property and effects, and settled the business of the concern.

He did not obtain possession by means of the bond, and it was without consideration, and for that reason, as well as. that the condition was in violation of his right as surviving partner and owner of the property, could have no validity as a common law bond, and was altogether void.

2. Pabtibs:

est°ofnt!eI ceased partner in partnereffeot8

The administrator of Moses Tate is the person entitled to receive from the surviving partner what is due his estate .. after the partnership business is settled, and he, and not his x x lieil’ or widow, should sue the surviving partner for an ■count or settlement.

We can see no reason why the widow and heirs of John R. Z. Vaughn were made defendants.

The decree is affirmed.


text:
    Moore & Moore vs. Robinson, Trieber et al.
    Husband and "W ife : Husband may assign decree in favor of himself and wife: Equitable assignment: Estoppel.

    A husband has the right to assign a money decree rendered in favor of himself and wife; and an order from him, alone, for part’ of the fund, is an equitable assignment of it jpro tanto. It is not necessary that the order be accepted by the party having the fund, in possession. And a subsequent assignment of the decree by the husband and wife will entitle the assignee only to the remainder, after satisfying the first ■order. Moreover, if the last assignee have, at the time of his assignment, notice of the husband's order, and knowingly permit payments to be made on it without objection, this is an admission of the husband’s authority to make the order; and after the payment of the balance ■called for by the order, estops him from questioning its validity by a ■suit against the payee.
    APPEAL from Phillips Circuit Court in Chancery.
    Hon. J. N. Cypert, Circuit Judge.

      Tappan Ilornor, for appellants.

      Thweatt, contra.

   Harrison, J.

At the November term, 1877, of the Phillips circuit court, in a suit in equity by David Trieber and Carrie Trieber, his wife, against W. E. & C. L. Moore, for the settlement of a partnership business, a decree was rendered in favor of said Trieber and wife, against said W. E. & C. L. Moore, for the sum of $1,195.06; and it was adjudged that the costs of the suit, in which costs a fee of $100 was allowed a Master in Chancery for taking and stating an account between the parties, should be paid equally by the plaintiffs and the defendants.

A former decree was rendered in the case at the June term, 1873, in favor of Trieber and wife, from which the defendants took an appeal, which was reversed by this court, at the November term, 1876. See W. E. & C. L. Moore v. Trieber and wife, 31 Ark., 113.

Pending the suit, and before the first decree was rendered, the partnership effects were placed in the hands of a receiver.

On the eighth day of April,-1874, and after the appeal was taken, David Trieber gave Richardson & May the following order:

“Helena, April 8, 1874.

-“Messrs. W. E. & C. L. Mob re, or E. L. Stephenson, receiver :

“Dear Sirs — You will please paj?- to order of Richardson & May nine hundred and sixty-four dollars and eighty one cents, and interest on same, at 8 per cent, per annum, from March 26, 1874. Pay out of first money coming to me in your 'hands. D. Trieber.”

Several payments were made Richardson & May on the order, by the receiver before the final decree, which were reported to and allowed by the court upon the settlement of his accounts, by which Trieber and wife’s demand was reduced ; and when the final decree was rendered there remained due on the order $617.03. On the thirty-first day of August, 1875, Trieber and wife, by the following instrument, assigned the demand or claim in controversy to Nelson & Hanks :

“For value received, we, David Trieber and Carrie Trieber, do hereby assign, transfer and set over to Nelson & Hanks the judgment rendered in the circuit court of Phillips county, state of Arkansas in- our favor, against W. E. & C. L. Moore, and we do hereby authorize and empower the said Nelson & Hanks, in our name, or in their own, to proceed to collect the same ; hereby ratifying and confirming any and all things that they may do in the premises.

“Witness our hands and seals this, thirty-first day of August, A. D. 1875.

“David Trieber. [Seal.]

“Carrie Trieber. [Seal.]”

After the last or final decree, W. E. & C. L. Moore paid Eichardson & May the remainder due on the order. They also paid the whole of the fee of the Master in Chancery, and half of their part of the other costs.

And they also offered to pay Nelson & Hanks, after deducting what they had paid Eichardson & May and one-half of the Master’s fee, the remainder of the decree; but Nelson & Hanks denied that Eichardson & May had any interest in the decree, and demanded the whole, less $50, one half the Master’s fee.

Morris Wroucker, at the same term of the court at which the decree was rendered, recovered judgment against Carrie Trieber for $559 50, and he caused a writ of garnishment to be served on W. E. & C. L. Moore.

An execution upon the decree was issued at tiñe instance of Nelson & Iianks, and was in the hands of the sheriff', to be levied.

2. Husband and wot:

jo?nts °del cree'

W. E. & C. L. Moore filed their complaint in equity against Trieber and wife, Nelson & Hanks and said Wroucker, in which they offered, after deducting the sum of $667.50, to bring the remainder of the money into court, to be paid to the party entitled to it; and prayed that the decree be enjoined, and a temporary injunction was granted.

Trieber and wife and Wroucker did not answer the complaint or make any defense.

Nelson & Hanks, in their answer, averred that the suit was brought for the benefit of Carrie Trieber, alone, and denied that her husband, .David Trieber, had any right or authority to assign any part of the claim. .The garnishment of Wroucker, they said, had been dismissed.

The plaintiffs brought and paid into court the sum of $528 03. The court, upon the hearing, dissolved the injunction, and decreed that they should’pay the said sum of $667.50, and that that should also be paid into court.

The plaintiffs appealed.

There was no proof of the dismissal of Wroucker’s garnishment, but it has been repeatedly held that a judgment debtor is not liable to garnishment; and that matter may be laid out of view.

The decree was in favor of both David and Carrie q'riepg!. an(j n0 evidence was offered, if any had been admissible, of the truth of the averment in the answer that David Trieber had no interest in the subject of the suit, nor authority to assign any part of the claim.

There was no evidence that Mrs. Trieber had a separate property in the partnership effects, and the presumption is, therefore, that she did not have, and that her husband had the right to appropriate them to himself, or to dispose of them as he might choose.

Estoppel

Equitable mint.e n "

And the evidence shows that the moneys paid over by the receiver during the pendency of the suit, were received and receipted for by him, and his authority to receive the same, and also to give the order, was recognized by the court, by its approval of the receiver’s reports, and the account stated by the Master in Chancery, in which the payments by the receiver to him, and to Richardson & May, on the order, were charged against him and Mrs. Trieber; and no exception was.made to either by Nelson & Hanks, who, as the pleadings show, knew when the assignment was made to them that Richardson & May held the order. By not objecting to the payments to Richardson & May, they admitted the authority of David Trieber, and they were, after the appellants had paid the remainder called for by the order, estopped from questioning its validity.

The order was an equitable assignment pro tanto of the interest of David Trieber and wife in the partnership effects. 2 Sto. Eq. Jur., sec. 1047.

It was not necessary that it should have been accepted by the appellants. To constitute an assignment of a debt, or other chose in action, in equity, no particular form is necessary, and it may be by parol. Judge Story says: If A, having a debt due to him from B, should order it to be paid to C, the order would amount, in equity, to an assignment of the debt, and would be enforced in equity, although the debtor had not assented thereto. The same principle would apply to the case of an assignment of a part of such debts. In each case, a trust would be created in favor of the equitable assignee on the fund, and would constitute an equitable lien upon it. 2 Sto. Eq. Jar., secs. 1044, 1047.

There can be no question that the appellants should have been allowed to retain one-half of the Master’s fee paid by them.

The appellants did not offer to bring the money for which they claimed credit, in any event, into court, and did not ask an interpleader as to that — and if their right to such credit had not been established, they should not have been required to pay it into court.

The money brought into court should have been directed to be paid over to Nelson & Hanks, and a satisfaction of the decree or a perpetual injunction as to the remainder decreed.

The decree of the court below is therefore reversed, and a decree in conformity with this opinion will be entered here.


author: Eakin, J.

text:
    McCreary, Ad., vs. J. H. Rogers, J.
    1. ' Supreme Court: Superintending control over inferior courts — Mandamus.
    The supreme court has general superintending control over all inferior courts of law or equity; in aid of which it can issue, hear and determine writs of mandamus; and this writ may always be issued in the sound legal discretion of this court, whenever the failure or refusal of the inferior tribunal to act in a matter in which its duty to do so is plain, and may deprive or bar any one of a legal or equitable right. It will not he used to determine the discretion of the inferior-judge, but will, iri all cases, to compel him to exercise it;, and in cases where he has no discretion, but a particular duty, this court will compel him to perform it.
    2. Appeal : Right of, absolute, and enforced by mandamus.

    The right of appeal is positive, regardless of merits; and should be granted upon a judgment or final order, immediately, upon motion made during the same term ; and if it operates as a supersedeas, it takes the case out of the jurisdiction of the court and cuts off garnishments and all proceedings directed to carrying the judgment or final order into effect. And if it be denied by the circuit judge, tl is court will, by mandamus, compel him to ’allow it by the entry of a nunc pro tunc order as of the date of the motion.

      Writ of Mandamus.

      W. Walker and F. W. Convpton, for plaintiff.
    Rose, contra.

   Eakin, J.

An alternative writ of mandamus issued in this case, upon the petition, to this court, of Margaret McCreary, as administratrix of the estate of John McCreary, directed to the honorable judge of the circuit court of Sebastian county, for the Eort Smith district, commanding him to grant an appeal, or show cause.

The petition set forth that a suit had been instituted by attachment in said court by one John Taylor against John McCreary, deceased, in his lifetime, and a summons duly served. The attachment also had been served on certain garnishees. After that, said John McCreary died and the relator appeared to the suit, and defended. The cause was tried by a jury, and resulted in a verdict against'her for $289.07, upon which the court rendered judgment, as she says, against the decedent, instead of herself, as administratrix. That she moved the court, at the same term, for the grant of an appeal, which the judge refused to allow, for the reason that the allowance of it, at that time, would supersede the judgment and suspend all further proceedings on the garnishment. That, by further proceedings, the garnishees were forced to pay the* amount of the judgment to the plaintiff, who is a non-resident, and whose sureties in the attachment bond, are not certainly solvent. She complains that she will be deprived of the means of collecting the debt from the garnishees, if the judgment should be reversed, unless the appeal may be allowed of the day it was prayed; and asks the interposition of this court to compel its allowance accordingly.

The response of the honorable circuit judge, admitting other material facts, shows that the judgment was properly-rendered against petitioner in her representative character, and not against the decedent, as stated. That afterwards one of the garnishees answered in writing, and acknowledged his indebtedness to the deceased in the sum of $500.55. That when he was filing said answer, and whilst that particular business was occupying the attention of the court, petitioner interposed and prajed, by oral motion, an appeal from the judgment.

The plaintiff at the same time moved for an order upon the garnishee to pay into court a sum sufficient to satisfy the judgment and costs; and also for an order to appropriate the sum so paid to the purpose; and objected to the allowance of an appeal until the proceedings on the garnishment should be disposed of. The motion of the plaintiff was sustained. The garnishee was ordered to pay the money to the sheriff, and he to appropriate the same to the judgment and costs; providing, however, by'the terms of the order, that if an appeal should be taken before the sheriff had disbursed the money, he should hold the same to await the final action of this court. He says that at the time of making said order, he advised petitioner that he would grant the appeal as soon as the matter of the garnishment should be disposed of, -and made the proviso in the, order for the express purpose of protecting petitioner’s rights, in case she should afterwards pray an appeal. This her attorney declined to do, but insisted that the record should show his prayer of appeal as having been'made before the order in the garnishment. This order was made ■on the fourth of December, 1879. The court remained in session until the sixth, and did not finally adjourn until the month, of February following. The money was not paid to the sheriff until the fifteenth of December, 1879, and the petitioner might, in the intervening time, have fully protected all her rights by praying an appeal, which would have been allowed.

1. Supreme Court:

Superintending o o n t r o 1 over inferior courts. Mandamus

A transcript of the proceedings is filed in this case with the petition, and also so much of them as is necessary accompanies the return. Upon the sufficiency of this return the case is submitted.

This court has the general superintending control over all inferior courts of law or equity, in aid of which it can issue, hear and determine writs of mandamusand this writ may always be issued, in the sound legal discretion of this court, whenever the failure or refusal of the inferior tribunal to act, in a matter in which its duty to do so is plain, may deprive or bar any one of a legal or equitable right. It will not be used to determine the judicial discretion of an inferior judge, but will, in all proper cases, compel him to exercise it; and in cases where he has no discretion, but a particular duty, will compel him to perform it.

The judgment rendered for the debt and costs against the petitioner was final. It was a complete adjudication of the right of the plaintiff in the case, and of the liability of the defendant. The proceedings in the garnishment were ancillary to the enforcement of the rights so determined, and not essential to their determination. They are, in their nature, in aid of execution. The finality of the judgment against the administratrix could not be affected, nor her obligation to discharge the same modified, by the result of any inquiries, or action taken in the matter of the garnishment.

Appeal:

Right absolute. ’

The light of appeal is positive, regardless of merits, and should be granted upon a judgment or final order, immediately,-on motion made for the purpose during the same term. If it operates as a supersedeas, it takes the case at once out of the jurisdiction of the court, and cuts oft' all proceedings directed to carrying the judgment or order into effect. With the principal matter, the ancillaries go also. Otherwise, very embaírassing complications of rights, if not irreparable injuries, might occur upon reversal. On the other hand, if the order or judgment he affirmed, there is room for all fur.her necessary proceedings, and the parties are protected by the supersedeas hood, or at least to the full extent of the assets of an estate where the appeal is by an .administrator.

The appeal itself in this case, being prayed by an administratrix, would, if granted, have at once operated as a supersedeas. The party was entitled to that effect of it, ahd the judge had no discretion, to postpone its operation until further orders should be made in the case, which would not have been proper, if the appeal had been granted. He might, perhaps, with the garnishee’s consent, have allowed the money to be paid into the sheriff’s hands for preservation, to which there would probably have been no objection. But he bad no power after appeal prayed, to make a race of diligence between the plaintiff in getting the money from the sheriff, and the defendant in getting in and notifying the sheriff of another appeal.

It can not be dmied that the action of the honorable circuit judge was in itself considerate, and if it bad been accepted and acted upon by petitioner’s attorney, by immediate application for an appeal after the order was made, we can not see how his client could have been prejudiced. But the correct rules of practice in common law cases must be preserved, and we can not dictate to attorneys terms of practice, or concessions to the courts, which the law does not require. They have high and delicate duties, for the discharge of which they are responsible to their clients, their consciences and their profession, and must be allowed ■without criticism, to insist upon the strict legal rights of those whose business is committed to their charge. We can not inquire into the motives of the attorney in desiring that no further proceedings be had upon the garnishment. Good reasons are conceivable why, in case of reversal, the defendant may have thought it best that the money should not have been paid in. But we are not called upon to make conjectures. It was for the attorney to determine when, after final judgment, to pray the appeal and have the supersedeas. It was not in the power, however well meant were the intentions, of the circuit judge to refuse the appeal when asked.

Enforced by manda mus.

No clear legal remedy now suggests itself to us, as available to petitioner, but this of mandamus. An appeal now taken before the clerk of this court would leave it out of her power to contest the validity of the payments made under the order, and might not be effective to restore her rights. What they are, we can not determine in anticipation. We only say she should have a day in court to be heard on them. Nor would it be proper, for the same reason, to look into the merits of the appeal.

Let a peremptory mandamus issue to the circuit court of Sebastian county for the Eort "Smith district, commanding the judge thereof to cause' an order to be made nunc fro tunc, as of date of the fourth of December, 1879, granting to the defendant an appeal to this court, from the judgment rendered against her, in the case of John Taylor v. Margaret McCreary, as administratrix of the estate of John McCreary, deceased, the said order granting tbe appeal, to show upon its face that it was made after the answer of H. Stone, garnishee in said cause, had been filed, and before the order of that day had been made with regard to said garnishee upon said answer.