text:
    Allen v. Bankston, Collector.
    County S crip : Right of County Court to cancel.

    The statute authorizing the County Courts to call in county wawants for cancellation and veissuance, is constitutional and the law of the contracts as to warrants issued after the passage of the act, and the holder takes them subject, to this power.
    Same : Notice of order insufficient; scrip not barred.

    When the notice of an order of the County Court calling in warrants for cancellation is published in only one newspaper, the scrip will not be barred by failure of the holder to present it within the time required by the order, though he have actual notice of it. The notice must be given as required by the statute: but presentation of the scrip is a waiver of the insufficiency of the motion.

      APPEAL from Deslia Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Pindall, for appellant.
   ENGLISH, C. J.:

The County Court of Desha county, at its July term, 1876, made an order calling in all county warrants, scrip, jury and witness certificates, etc., previously issued and outstanding, and requiring all holders of such warrants, etc., to present the same at the following January term of the court, to commence on the first Monday of January, 1877, for cancellation, re-issuance, etc., on pam of being forever barred ; and the clerk was required to deliver a copy of the order to the sheriff, tobe by him posted and published, as required by law.

A copy of the order was duly furnished by the clerk to the sheriff, who put up copies thereof at the court-house door, and at each election precinct in each township of the county, and published the order in the Pine Bluff Republican, a newspaper printed and published at Pine Bluff; but in no other newspaper.

Thomas H. Allen, who resided in Memphis, Tennessee, was the holder of warrants of the county, and some jury and witness certificates, and failed to present them to the County Court within the time prescribed by the order. Shortly before the time expired, he was personally informed by a person who went from Desha county to Memphis, that such an order had been made, and sent over his warrants, etc., but they were too late.

He was the owner of real and personal property in Desha •county, which was assessed for the year 1876. On the 3d of March, 1877, he tendered to Isaac Bankston, the collector, the .warrants and certificates held by him, in payment of county taxes charged upon his property on the tax book in the hands of the collector, and they were refused' on the ground that they were barred and worthless.

He applied to the Circuit Court of Desha county for a mandamus to compel the collector to receive his warrants and certificates. The collector answered, setting up the order of the County Court calling in the warrants, etc., the posting and publication of the order, etc., and the failure of Allen to present his warrants, etc., within the time prescribed by the order, etc.

The court overruled a demurrer to the answer, and heard the case upon the petition, answer and evidence.

In addition to the facts shown above, it was proven that on the 11th of January, 1877, the County Court made an order declaring that all warrants, etc., not presented within the time prescribed by the order made at the previous July term, were forever barred, etc.

The plaintiff moved the court to make the following declaration of law :

“1. That the publication of the order of the County Court of Desha county of July term, 1876, in one newspaper, was not a sufficient compliance with the provisions of section 615, Gantt’s Dig., to affect the plaintiff with notice of said order calling in said scrip for cancellation and re-issue.

“2. That no other character of notice than that prescribed by the statute was sufficient.

“3. That to authorize the order of January '11, 1877, the defendant must prove that the notice required by section 615, had been published in more than one newspaper printed and published in the State of Arkansas.

“4. That the personal notice to plaintiff, attempted to be shown by the testimony of Griffin W. Myers and Jacob Ross,, was insufficient to bind said plaintiff, if the notice required bylaw had not been given.’5

The court refused to give the declarations numbered 1,8 and 4, but declared the law to be as stated in declaration number 2,

On motion of defendant, tbs court declared the law to be, “that the publication of said order of July term, as recited in the order of the 11th January, 1877, was sufficient notice to plaintiff of said order.”

“The court thereupon found the facts to be that notice of the said order of the July term, 1876, was given by the sheriff of Desha county by posting a copy thereof on the court house door and in each election precinct in said county of Desha for the time required by law, and by advertising the same in the Jefferson Itepublican, a newspaper printed and published in the State of Arkansas, for the time required by law ; but in no other newspaper whatever; and that plaintiff had personal notice of said order by the information delivered to him by said Griffin TV. Myers, as testified by said Myers and alleged in defendant’s answer.”

The court refused the mandamus and dismissed the petition at plaintiff’s costs.

Plaintiff moved for a rehearing, which the court refused, and he took a bill of exceptions, and appealed.

The statute requires the sheriff to give notice to holders of county warrants, etc., of an order of the County Court calling* them in, etc., “by putting up at the court house door and at the election precincts in each township of said county, at least thirty days before the time appointed by the order of said court for the presentation of said warrants, a true copy of the order of the court in the premises, aud by publishing the same in newspapers printed and published in the State of Arkansas, for two weeks in succession, the last insertion to be at least thirty days before the time fixed by said court for the presentation of said warrants.” Gantt’s Digest, Sec. 615, Act of January 6, 1851; Sec. 2, Acts of 1856-7, p. 51.

The order in question was published in but one newspaper. It was not published in newspapers (plural) as required by the statute.

The appellant took his warrant subject to the power of the County Court to call them in for cancellation and re-issuance on the public notice prescribed by the statute, which was enacted before the warrants was issued. The statute was constitutional and the law of the contracts. Parsel v. Barnes & Bro., 25 Ark., 261.

The warrants were not barred by the order calling them in, because of the failure of appellant to present them within the time fixed in the order, if the sheriff failed to give the public notice as required by the statute.

The statute manifestly requires the order to be published in more than one newspaper, leaving the selection of the papers to the discretion of the sheriff.

The information given to appellant by Myers that the County Court had made an order calling in warrants, amounted to nothing. It was not the notice required by the statute. It was without authority.

Had appellant presented his warrants within the time fixed by the order, and submitted them to the court for examination, cancellation and re-issuance, it would have been a waiver of the insufficiency of the public notice, and had his warrants been rejected he might have appealed.

The judgment must be reversed, and the cause remanded with instructions to the court below to award the mandamus as prayed.


source: Caselaw Access Project

author: ENGLISH, C. J.:

license: Public Domain

text:
    Young, Trustee, etc. v. King et al.
    1. New Trial — Rule in Supreme Court when no motion for.

    "Where there is no motion for a new trial, the Supreme Court will not review a deeiúon of the Circuit Court admitting or rejecting evidence, or giving, or refusing instructions.
    2. Appeal prom Justice op the Peace -. — Affidavit for, amendable—
    An informal affidavit for appeal from a Justice of the Peace may be amended in the Circuit Court; and if not objected to there, it is not good practice to allow objections to it in the Supreme Court.
    APPEAL from Lonoke Circuit Court.
    Hon. J. W. MartiN, Circuit Judge.

      Clark & Williams for appellant.

      Chapline & Trimble, contra.

   ENGLISH, C. J.:

This was an action of replevin for two mules, commenced "before a justice of the peace of Lonoke county, by E. A. Young, trustee in a deed of trust, for the use of Banyan Payne, against J. M. King, sheriff, etc.

It seems from the sworn complaint that King, as sheriff, had levied upon and taken possession of the mules by virtue of an ■execution issued by a justice of the peace, upon a judgment in favor of S. Blum, against John T. Miller, and that the plaintiff in this suit claimed the mules under a deed of trust executed by Miller for the use of Payne.

On the application of Blum he was made a defendant.

The justice rendered judgment in favor of the plaintiff for the mules, and the defendant appealed to the Circuit Court.

In the Circuit Court, at the October term, 1877, by consent of parties the cause was submitted to the court sitting as a jury-

The plaintiff, to sustain the issue on his part, produced and read in evidence a deed of trust, executed to him, as trustee, on the 22d December, 1876, by John T. Miller and Robert B. Miller, partners under the firm name of John T. Miller & Bro., conveying the mules and other property to plaintiff, in trust, to secure debts due from them to Payne. The court, on inspection of the deed, pronounced it fraudulent and void on its face and rejected it as evidence of title to the mules in the plaintiff.

The plaintiff offering to introduce no other evidence, the defendant proved the value of the mules, and the court found in their favor, and rendered judgment for restitution, etc.

The plaintiff took a bill of exceptions withont moving for a new trial, and appealed to this court.

The cause has been submitted on briefs upon the merits, and also upon a motion of appellees to dismiss the case because no-motion for a new trial was made by appellant in the court below.

Í. During the time of the five judges, it was repeatedly held by this court that under the Code practice it would not review decisions of the Circuit Court admitting or rejecting evidence, or giving or refusing instructions where there was no motion for a new. trial. Steck v. Mahar, 26 Ark., 536; Merriweather v. Erwin, 27 Ib., 37; Worthington et al. v. Welch ad., Ib., 464.

Such also appears to be the practice under the Kentucky Code, from which ours was copied. Detherage v. Montgomery,. 4 Bush., 46; Humphreys v. Walton, 2 Ib., 580.

In Harper v. Harper, 10 Bush., 451, the court of appeals, by Justice Coffer, said :

“When an appeal is prosecuted from a judgment on a verdict without a motion for a new trial having been made and overruled, nothing is brought before this court except the pleadings, verdict and judgment; and if the pleadings and verdict authorized the judgment rendered, it will be affirmed without regard to the rulings of the court at the trial further than they appear in the judgment.

“But when a motion for a new trial is made, it is the duty of the Circuit Court to review all its rulings during the trial, which were excepted to by the unsuccessful party, and grant a new trial, if error has been committed to his prejudice; and if the court fails to do so, and overrules the motion, the order will be erroneous, because of the previous errors, and this court will review the order, and remand the ease with directions to award a new trial.”

It follows under this rule of practice that the decision of the court below pronouncing the deed of trust fraudulent upon its face, and rejecting it as evidence of appellant’s title to the mules, is not properly before us for review on this appeal.”

II. Counsel for appellant, submit that the affidavit for an appeal from the judgment of the justice of the peace to the Circuit Court, was not in good form, and therefore, the latter court acquired no jurisdiction of the cause.

The affidavit follows :

“Personally appeared before me, R. Anderson, a justice of the peace, in and for the said county and State, Thos. C. Trim-ble, attorney in the above cause for defendants, and stated that said appeal is not taken for daily, to vex, harrass or annoy plaintiff, but that justice might be done in the premises.

The county, State and names of the parties are in the caption, and the affidavit was sworn to before the justice who tried the case.

The statute provides that the applicant for an appeal, or some person for him, “shall make and file with the justice an affidavit that the appeal is not taken for the purpose of delay, but that justice may be done him. Gcmit’s Digest, Sec. 3821.

No objection was made in the court below to the sufficiency ■of the affidavit.

Had a motion been made to dismiss the appeal for want of ■■a more formal affidavit, the party taking the appeal might have been permitted to amend the affidavit if deemed by the court 4o be in bad form. Gantt’s Digest Secs. 3827-8.

No objections to the affidavit having been made in the court ■below, but appellant having submitted to a trial de novo, it is not good practice to permit the objections to be made here for ■the first time. James et al. adr. v. Dyer, adr., 31 Ark., 489.

The judgment of the court below must be affirmed.


author: HarrisoN, J.:

text:
    Vernon v. Nelson et al.
    1. Tax Sales :

      The revenue act of March 17, 1873, suspended the tax sales for that year.
    Same :
    A sale for taxes on a day not appointed by law, is void.
    APPEAL from Jefferson Circuit Court.
    Hon. William Byers, Circuit Judge.

      Rice <& Bishop, for appellant.

      Butler, contra.

   HarrisoN, J.:

This was an action of ejectment by the appellant, James Vernon, against the appellees, Isaac Nelson and Chas. Sneed, tor forty acres of land — the east half of the east half of the northeast quarter of section sixteen, in township thirteen north, range five, west.

The plaintiff claimed title under an Auditor’s deed. It was ■averred in the complaint that the tract, which then was owned by the defendant, Nelson, was assessed for taxation in 1873 ; that the taxes were not paid, and it was returned delinquent ? that at a sale of lands for non-payment of taxes, on the 2d, Monday, the 9th day of June, 1873, it was offered by the collector, and no one offering to pay the taxes, penalty and costs,, it'was bid off by him in the name of the State; that two years-having expired, and it not having been redeemed, the sale of' it to the State was certified by the county clerk to the Commissioner of State Lands ; and that the plaintiff had purchased it from the State, and the Auditor, on the 8th day of: September, 1875, executed to him a deed for it.

The defendants were, it was alleged, in possession. ,

It was recited in the deed, which was filed by the plaintiff as-an exhibit with the complaint, that the tract was offered by the collector in June, 1873, but the day of the month was not stated.

The defendants demurred to the complaint upon the ground, that it did not state facts sufficient to constitute a cause of action.

The demurrer was sustained and judgment rendered in favor of the defendants.

The revenue act of April 28, 1873, continued in force the act of March 25, 1871, “for the purpose of making the collection and settlement of the taxes of 1872.

But by the previous act of March 17, 1873, the Legislature extended the time for the collection of that year’s taxes, thirty days from the 31st day of March, 1873, and also for a like period, the time in which the collector was required to file his delinquent list, and make settlement with the county clerk.

The‘day fixed by the act of 1871 for the sale of lauds for* , taxes, was the second Monday of May; but though the time for the collection of the taxes and also for filing the delinquent list and making settlement was extended, no other day was appointed for the sale.

It is manifestly clear that there could be no sale on the second Monday of May. Section 99 of the act of March 25, 1871, required the notice of the sale to be published in the official paper, weekly, for two weeks, between the first Monday of April and the first Monday of May.

It was provided by section 180 of the act of 1871, and the revenue act of 1878 contained the same provision, that “in all cases whore any county clerk, by any inadvertence or mistake, shall have omitted in any year, or in any future year shall omit to publish the delinquent list of his county, according to the requirements of this act, or any previous law of this State, it shall be his duty, in case the taxes and penalty with which the laud or lot or part thereof, therein stands charged, shall not, before the first of April of the next succeeding year, have been paid, to charge the lands or lots with the said laxes and penalty, and also the taxes of the current year, and record, certify and publish the same as part of the delinquent list.”

If it could be held, but we know of no rule by which such a construction of tire statute might be made, that-the tax sales were also postponed for a like period of thirty days, the sale which was on the ninth of June was not on the thirtieth, but the twenty-eighth day after the second Monday of May, that being’ the 12th of the month.

If the Legislature had intended that there should be a sale of the delinquent lands that year, we cannot conceive why such intention was not manifested by the appointment of a day therefor ; for it was apparent that if the provision of the statute in regard to the length of notice was observed, there could not be a sale on the second Monday.

We conclude, therefore, it was the intention to suspend the sales for that year.

But in any aspect in which the case may be viewed, it plainly appears that the sale was made at a time not appointed or provided for by law ; and consequently without authority of law, and was void; and that the plaintiff obtained no title by his purchase from the State.

We deem it unnecessary to notice other objections raised by appellee’s counsel.

The demurrer was rightly sustained, and the judgment of the court below is affirmed.


author: EakiN, J. :

text:
    Walworth v. Finnegan.
    1. JDamaubs — Rule of in entire cent met, where part only is performed.

    "Where there is an entire contract to do work at a stipulated price for the whole, and part only is performed, if not accepted there can be no recovery; but if accepted, or if the work be upon property of the defendant, and necessarily enures to his benefit, the most reas jnable rule is that the plaintiff should recover the entire amount of the contract price, less th® amount still necessary to completo the work entirely.
    2. Practice isr Suprimís Court — Where verdict of jury will, be set aside :

    Where a verdict is the result of a plain, palpable mistake in the jury or of pr judice, or may be, of some knowledge on the part of the jury of the circumstances, the Supreme Court will set it aside.
    APPEAL from Ohicot Circuit Court.
    Hou. T. E. SORRELLS, Circuit Judge.

      Valentine, Dodge <& Johnson, for appellant.

      Reynolds, contra.

   EakiN, J. :

Finnegan sued Walworth at law to recover for work done under a levee contract. The contract, in writing, is exhibited, whereby it appears that plaintiff agreed to build a certain levee on defendant’s plantation “ as laid off and staked out by Col. C. W. Fry,” * * * * “to the full height, base and crown designed by Col. Fry’s survey and level.” It provided that the work should be immediately commenced, and that sufficient hands be put upon it to complete the whole line by the first day of February, 1876, and before any high water-should interfere with the progress of the work. It was further-provided that the defendant might have the right, in case he should fear that it would not be completed in time to protect the plantation, to employ additional laborers upon it at the cost of Finnegan. Provision was made for paying for the work done, at certain rates per cubic yard. Three-fourths of the price of the work done to be- paid when it was half completed, and “the balance of the whole work when the whole-line is completed and measured by Col. Fry, and the work estimated, and pronounced, by him, to be in accordance with the contract.”

It is alleged that plaintiff entered upon the work, and continued it from time to time,,until it was all completed in accordance with the contract — although not in the time specified. After the -expiration of the time, plaintiff proceeded with the work, “with the consent and at the solicitation” of defendant. That according to the estimates of said Fry, (the engineer) as to the amount of work in said levee, and the price to be paid for the same, fixed by the contract, the whole amounted to the sum of $8191.60, of which, at various times, the sum of $1375, had been paid, leaving due the sum of' $1816.66.

Upon proper affidavit and bond an attachment issued against, defendant as a non-resident; which was levied ypon the lands.

The answer denies that plaintiff complied with his contract,, in completing the levee, as agreed; but wholly failed, and denies further that he, after the time, completed it at defendant’s request or by his consent.

Upon trial the jury returned a verdict for plaintiff for-$1895.78. Judgment accordingly, with an order of sale of the lands attached, a motion for a new trial was overruled, bill of exceptions taken and appeal.

The plaintiff testified that he .completed the levee according to the estimate made by the engineer. There were two small sections left open for the purpose of moving some houses through them. They were not in the estimate of the work plaintiff was to perform. Mr. ErnestWalworth was the agent of defendant, and desired them to be left open. The high water broke the levee about the 25th or 26th of February, and the plantation was overflown. Afterwards defendant agreed "with plaintiff to allow him to go on and complete the levee, and he should be paid. The engineer was on the work several times, but did not measure or estimate it. After the first overflow it was completed according to the survey, but it was not high enough. The water came just after the completion of the work, ran over the top of it, and washed most of it away.

Fry, the engineer, testified that he made the estimates for the levee to be built — that after the first break and overflow he had a conversation with the defendant, who absolved Finnegan from all blame in the matter. Witness advised him to allow Finnegan to go on and complete it, but does not know that the contract was renewed. He says the two sections left open were in his estimate, and were not completed. His estimate was of the amount of work which would be required — never estimated the work done, because of the high water and washing away of part of it — could not have done so if he had been called upon — but the estimate of the work required corresponds with that stated in the complaint. He was on the work a day or two before the last rise. The greater part of it seemed to be completed at the time, and plaintiff was working on the uncompleted parts. The levee was not large enough nor high enough, but was laid off as requested by defendant.

Eugene Llewellyn testified, on behalf of plaintiff, that when he was last on the levee the hands were at work on the old levee, in the woods, and there were only two sections then unfinished, on that portion, besides the two at the gin ridge.

Ernest Walworth, the son and agent of defendant, says : the two sections at the gin ridge were left open at his request, to be done last. Was on the levee the day before Finnegan quit work. It was on the old portion where he was working. There were two sections there uncompleted, and in all, as near as witness could judge, these were uncompleted :

2 sections at the gin ridge, about.160 yards
1 near old levee. 80 “
1 on old levee.80 ‘‘

The work was not estimated nor measured, because it was washed away.

Plaintiff was allowed to introduce a letter of Ernest Wal-worth to himself, of date of 19th June, 1876. The jDurport of the letter is to express his regret that a certain draft given by him to plaintiff for a portion of the levee work had been unpaid, and explaining the reasons.

The admission of this letter is made the first ground of a motion for a new trial. So far as it had any bearing upon the issues, the object of it is not easily conjectured. It concerned ■a payment for undisputed work, for which credit had been given, and with regard to which no contest existed. It could not have influenced the jury in determining how much work had been done, at what time, or the value of it. Its admission, If erroneous, was unimportant; and could not have prejudiced defendant.

The second ground, that the court erred in giving the first Instruction for plaintiff, is not pressed in argument, and may be passed, being clearly untenable.

The third ground is, that the court erred in instructing for plaintiff as follows : “If the jury believe, from the evidence, "that plaintiff entered into said contract, to build said levee, and was prevented by the act of God from completing the same, and the said levee was to be measured and estimated by C. W. Fry, and said measurement was prevented by the act of God, then the jury will find for plaintiff, and assess his damages at the value of the work actually done, with interest from the time the same became due and payable.”

There has been a considerable degree of diversity in the cases on the subject of the amount of recovery to be had where there has been an entire contract to do work at a stipulated price for the whole ; and where part only has been performed. If not accepted there can be no 'recovery at all. If accepted, ■or if the work be upon property and enures necessarily to the benefit of the owner, the rule has undergone much discussion. 'The most reasonable doctrine would seem to be that complainant should recover the amount of the whole contract, diminished by the amount still necessary to complete the work entirely. This may not always be commensurate with a quantum meruit, and considered as an abstract proposition, the first part of the foi'egoing instruction was not strictly correct. The instruction was unexceptionable, however, so far as it advised the jury that if they found the work had been completed, and the measurement by Fry prevented by the act of God, they might, nevertheless, find for the work actually done. The plaintiff would not forfeit his right to any payment whatever for want of an estimate and measurement in a particular mode, which had become impossible. And in the case actually before the jury the whole instruction could not well be misleading. In estimating the value of the work done they would be governed, naturally, by the rates per cubic foot, or yard agreed upon, which would lead to a true and just result. This was not a case of an entire work to be done for a sum in solido, but for work to be done at stipulated rates. It is analogous to a contract for the delivery of a certain quantity of wheat at. so much per bushel. A recovery may be had, at the stipulated rates, for the amount actually delivered, .unless there be shown some peculiar reason for recoupment. The failure to-complete the levee in the time stipulated in the original contract, was confessedly waived ; and no definite time substituted. Whether that failure would, have been excused by the act of God or not was not important.

It seems that the law, as applicable to the evidence in the case, was given to the jury correctly. It was not denied, but positively proven, that the overflow, which finally stopped the work and destroyed a portion of it, went over the levee ; and the damage was not imputable to any delay in its completion but the insufficiency of the plan. With that plaintiff had nothing to do, and could not thereby be justly deprived of the value of the work and labor he had expended. He was entitled to the amount actually done, and at the stipulated rates, and so the jm-y must have understood.

They found that the whole work had been completed and gave the plaintiff a verdict for all he claimed, and a sum over, which exceeded the interest at six per cent upon the sum claimed from the date of filing the complaint. It was filed-December 11, 1876.

The remaining grounds of the motion are based upon this action of the jury.

They had been also instructed on the part of the defendant, 1st. That if they believed the defendant had paid three-fourths-of one-half of the work, according to the estimate, and that said work was never surveyed, estimated and received by said Fry, or that there was no new contract between the parties not. containing this condition, then they must find for defendant j and 2nd, that if they believed from the evidence that plaintiff made a contract with defendant for building a levee, and failed to comply with said contract, they must find for defendant.

The plaintiff does not appeal, and the defendant relies upon these instructions to show that the verdict was contrary to the law as given by the court. It certainly is, if these last instructions are to be considered alone. They ignore all excuses for non-completion, and all those provisions of the law applicable to contracts completed in part. They are to be construed, however, with those given for plaintiff, and, taken all together, are substantially correct.

Did the jury find against the evidence?

Finnegan, the plaintiff, says generally that he completed the work according to the estimates made by Fry, except the two gaps at the gin ridge, which were not included in them.

Fry, his own witness, testifies that the estimates made for the work were the same stated in the complaint, but that the gaps were included. His testimony, together with that of ¡Llewellyn and Ernest Walworth, satisfies the mind beyond all reasonable doubt, that the western section could not have been ■fully completed at the time of the second overflow, and that the plaintiff’s general assertion to that effect must be taken with some qualification. This is not a case of mere preponderance against the verdict, which, of itself, would not be sufficient, in this court, to cause its disturbance. It is a plain, palpable mistake in the jury, or the result of prejudice, or maybe of some knowledge on the part of the jury of the circumstances.

We are satisfied that (whilst the evidence supports the general verdict) there is not sufficient to support so much of it as is excessive, or based upon the supposition of the entire completion of the work according to the estimates. It is a very dim “scintilla,” and there must be some reasonable limit to the doctrine that an appellate court should not disturb a ver-diet on the mere grounds of preponderance of evidence-against it.

For the purposes of this opinion and our action here, we-think it fair to take the testimony of young Walworth with regard to the amount left unfinished. It is definite to a reasonable degree, although being in round numbei’s, not perhaps-strictly accurate. It will do against such uncertain estimates as are relied on by complainant. The contract was at eighteen cents per cubic yard for work on the new levee, and nineteen, cents on the old. There seems to have been three sections-of-new levee unfinished, containing about eighty yards each-,, including the gin ridge gaps ; and one section of old levee, or as the witness puts it, about eighty yards on the old levee. These ought to be deducted from the whole estimate, as follows :

Whole estimate.$1,816 6&:

Deduct 240 yards, at 18 cents.$43 20

Deduct 80 yards, at 19 ceixts.,15 28— 58 40

$ 65 04 Int. from Dec. 11, 1876, the date of filing the bill, to July 23, 1877, date of judgment..

$1,823 30>

For all over this amount the verdict was excessive.

The judgment will be reversed and the case remanded for a-, new trial, unless appellee remits this excess here, pays the-costs of the appeal and submits to the usual practice of the. court in waiving rights on the supersedeas bond. This he may; do and the judgment will be affirmed.


author: EakiN, J.;

text:
    Arrington v. McLemore et al.
    1. WILLS : Probate of not essential to their validity.

    A-will determines the rights of parties under it, proprio vigore, from the death of the testator. Its prohate is necessary to fix the right of the executor to execute it, to point out the person authorized to act, and as a basis and prerequisite to letters testamentary, hut is not essential to its validity. Rights under it are not lost by failure to probate; and to establish or protect them the validity of a will may be shown in ar,y court.

      2.-Lost — Statute limitations.

    The statute of limitation is not applicable to proceedings by a non compos to establish a will that has been fraudulently concealed.
    APPEAL from Lincoln Circuit Court in Chancery.
    Hon. T. E. Sorrells, Circuit Judge.

      Garitón & McCain, for appellant.

      JPindall, contra.

   EakiN, J.;

This is a bill by some of the children of West Arrington, deceased, (the appellees) against his widow and a son, West A. Arrington. It alleges the intestacy of the deceased, and seeks partition of his estate. James P.. Stanley is also made defendant, concerning whom it is alleged that he pretends to be the guardian of said West A. Arrington, and as such, “or otherwise,” claims,some interest in the lands. The bill states that West A. was declared non compos by a pretended order of the Drew county Circuit Court, on the-28th of January, 1874, and that Stanley was subsequently appointed his guardian, but alleges that the proceedings, declaring said West A. non compos, were void, for reasons stated;

Stanley was allowed, as guardian, to file an answer. He says that West Arrington deft a will, making dispositions of his property, different from that made by law in case of intestacy — the nature of which dispositions are set forth, and appear, if true, to be in favor of said West A. He says he was duly appointed as guardian of said West A., on the 26th of April, 1876, by the Probate Court of Drew county, of which said ward was a resident, and that he is in fact a lunatic, and that respondent is his next friend. He says that the plaintiff, or Mary S. Arrington, the widow, concealed or destroyed the will, and withheld the same from probate, with the fraudulent intent to defeat the rights of said West A., and that proceedings are now ponding in the Probate Court of Drew county by said West A., to have the will probated. A copy of the will is embodied in the answer, and it appears to be duly executed. He makes his answer a cross-bill against complainants and the widow, praying discovery as to the execution of the will, and of their knowledge of it, and that they be compelled to produce it.

The complainants demurred to the answer for divers causes, amounting together to these : That it did not appear thereby that the will was ever duly probated, or that defendant, Stanley, had any authority to act as guardian, or that said West A. had been duly declared non compos. They demurred to the cross-bill, because the Circuit Court of Lincoln county, in which the proceedings were had, was not authorized to grant the relief prayed, or to establish the will, or give it effect until it may have been properly probated in Drew county, the residence of deceased. Also because the claim was stale, and barred by the statute of limitations.

The court sustained the demurrer, and Stanley rested. A decree for partition was rendered, and he appealed.

The demurrer admitted that a will had been duly executed, making such disposition of the property as was shown by its terms, as set forth in the copy; that it had been concealed by complainants, or the widow, or destroyed, and that proceedings were pending in the proper tribunal to establish it; that "West A. Arrington had been declared non compos, and that •defendant had been appointed his guardian ; that he was in fact a lunatic, and defendant was his next friend. If the matters were not set up with all recitals and allegations to show their complete validity, yet if the resultant fact, as alleged, implies them, the remedy was by motion to make the answer more definite and certain. The character of defendant, Stanley, as guardian, or next friend of West A., could not be questioned by demurrer. Proper application should have been made, by motion, to have him show his authority, or to have the answer struck from the files. A demurrer questions the sufficiency of the facts set up in the pleadings to constitute a meritorious cause of action or defense. The propriety of allowing the defense to be made by guardian was matter of practice to be determined by the court on facts brought to its knowledge outside of the pleadings — whether they were matters of record or matters in pais.

A will determines the rights of parties under it, proprio vigore, from the death of the testator. Its probate is necessary indeed to fix the right of the executor to execute it; to point out the person authorized to act, and as a basis and prerequisite to letters testamentary ; but is not essential to its validity. Eights under it are not lost by failure to probate; and to establish or protect them the validity of the will may be shown In any court. Janes et al. v. Williams et al., 31 Ark., 175.

The facts admitted by the demurrer show that the court should not proceed to partition as of an intestate’s estate. If they were false the -complainants should have gone to hearing. If true, the bill should have been dismissed.

The cross-bill, or so much of the answer as was meant for such, was siich as the Chancellor might decline to entertain in this action.

The subject matter was pending in the Drew county Probate Court. Perchance the will may be produced and established there ; and if it should finally turn out that it has been lost or destroyed by accident or design, it would be better to commence independent proceedings in chancery under the statute,, to establish it, and certify the decree to the Probate Court, clerk.

The statute of limitations does not apply to the case made by the pleadings.

For error in sustaining the demurrer to the answer, the decree must be reversed and the cause remanded for further proceedings consistent with this opinion.


author: EaiíiN, J.:

text:
    Bennett v. Hutson et al.
    1. Vendor and Vendee : Resulting trust.

    An uncompleted sale, where a deed has been executed and the consideration has not been paid, and where there is no intention of a gift of a sale on time, makes a resulting trust in favor of the vendor; not for the purchase money, but for the whole land. Equity will treat it as no sale, and hold the vendee as trustee of the dry legal title ; and a purchaser from such vendee, with, notice of the facts, will acquire no title.
    2. Fraudulent Conveyance ; When conveyanee to wife is: Homestead not lost by-^

    A conveyance toa married woman in consideration of payments made by the husband, is in effect as if he had taken the deed to. himself and then-con-, veyed to the wife ; and if made to avoid an existing debt of the husband, is, fraudulent and void to the extent of the creditor’s rights, which may be enforced'by proper preceedings, but not in contravention of the policy of the. homestead laws in force at.the time and applicable to the debt.
    A debtor does not forfeit his homestead rights by making a fraudulent Con-, veyance of the homestead.
    3. ExeMp rrd Personalty : May be sold by debtor; property taken in exchange, for, retains- its own nature.

    Exempted personal property may be sold by the debtor, and the execution creditor cannot follow it into the hands of the purchaser. But property-takgn in' exchange must take its position subject to the exemption laws in.. force. If it be personal, it must go to make up the amount exempted; if real, it must take its piare subject to the laws governing real estate, and be exempt or not, as other property of like nature: and if the title be taken* ■ to a wife, child or stranger, being volunteers, courts of equity will subject-it to. the same burdens in favor of creditors, which it would have borne aP law if "onveyed to the debtor himself.
    4. Equitable Intebests : Sale of, under execution ; Practice in equity.

    The sale under execution at law, of equitable interests not well defined and . marketable, has been strongly disapproved by this court. There is -no.' objection to making the levy; and where the interest is ascertainable like the-equity of redemption in an undisputed mortgage, etc., the sale may proceed;.: but in all eases where a bill in equity will in any event be necessary to fixf an equity or determine its extern, it should be- first fixed and then sold for its ■ fair value. The better practice ir. all such cases after making the levy, is to-file a bill in equity against all claimants to ascertain the true nature and", extent of the equity.
    Courts of equity should exercise a sound discretion and set aside sales under ' execution at law in all cases where the rights sold have been of such doubt-ful character as to deter fair competition.
    Homestead : Sale of, under execution. Scheduling.

    An insolvent debtor purchased land and had it conveyed to his wife, with a-.view to avoid an existing debt. Afterwards, while residing on it as a home^stead, it was sold under execution at Jaw for that debt. He forbade the.sale-on the ground that it belonged to his wife, but made no schedule of it as a-homestead, and soon afterwards died in possession. Held, that his wife was not by the sale deprived of the homestead. .
    APPEAL from Van Burén Circuit Court in Chancery.
    Hon. J. W. MARTIN, Circuit Judge. .

      B. D. Turner, Jr., and J. H. Frazer,.for appellant.

      House, contra.

   EaiíiN, J.:

Bennett sued Permelia J. Lay (now Hufson)', for a tract of land,'in the Code form of ejectment, founding his claim upon two deeds. One from Fountain M. Lay and his wife (said-Permelia), to Nathán'A. Sanders, bearing date of August 19,. 1874 another from said Sanders and wife to plaintiff, of the* 8th November, 1875. ■ ' ■

Defendant denied plaintiff’s ownership, and on her part 'claimed title under a deed to herself from James Brown and wife, of the 29th of May, 1874. She says that the contract ■of sale made by herself and husband to Sanders was made for cash, and that Sanders, finding himself unable to pay the same, -had agreed to a rescission of the conveyance, and that defendant had notice of this when he purchased of Sanders. That •she had remained in possession after the pretended sale, and that plaintiff had obtained the deed from Sanders by fraudulently pretending to be the owner, and without cpnsideration. ■She makes her answer a cross-bill, brings in, Sanders, asks that the cause be transferred to the equity side, and the deeds relied ■upon by plaintiff be canceled, or, as alternative relief, that she have a lien for the purchase money. The cause was transferred, and plaintiff given time to answer.

He then filed a supplemental bill and answer to the cross complaint, denying the agreement to rescind, or that he had notice of it, or that he obtained his deed by fraud.' He sets up new and additional grounds of action, alleging, that in March, 1875, he recovered a judgment in the Circuit Court against Fountain M. Lay for $472.67, and costs. That shortly before that, Lay bought the lands from Brown, and had the deed made to defendant, his wife ; that the same was kept secret and not recorded until April 29, 1875 ; that he sued out execution on the 16th of April, 1875, which was levied upon the lands ; that they were sold under execution and bought in by him for $300, which sum after payment of costs, was credited on the judgment ; and that he received the sheriff’s deed in due course of dame. Further, that at the time of the levy and sale said Lay owned no other real estate, save a homestead, on which he resided, and a very small amount of personal property ; and that at the time of plaintiff’s purchase, under the execution, he .knew nothing whatever of the deed to Sanders.

In reply to this supplemental matter, defendant denied that the delay in recording the deed was from any fraudulent intent. She says the place was bought for a homestead, and. that her said husband lived on no other; says that he owned, no other lands, nor did she herself. That he was a married! man, resident of the State, and the head of a family ; was on his death bed when the sale under execution was made, and has since died, leaving his wife, the defendant, and four minor-children.

Under this state of the pleading the proof conduces to show, that Fountain M. Lay was in debt to plaintiff in the month of' May, 1874 : that he was a man of small means, not having as much personal property as was exempt from execution under the Constitution of 1868 ; that he bought the land from Brown for the purpose of making it a home for his family, and had the deed made to his wife to avoid annoyance from creditors,, having this debt in view. That he was in bad health and' moved upon the place before the judgment was obtained under which plaintiff purchased. That he sent a friend to forbid the sale on the ground that the title was in his wife, but made no schedule of the property as his homestead, and that he soon aftewards died in possession.

During the previous summer, and after the purchase from Brown, he and his wife agreed to sell to Sanders for $600, to be paid in cash. The deed was written out and defendant, Permelia, acknowledged it before a magistrate, with her husband. On a separate examination she stated that “she had of her own free will- signed and sealed the relinquishment of dower, and all her right, title, claim and interest in and to said lands, for the consideration and purpose therein mentioned, without compulsion or undue influence of her said husband.” The deed, when prepared, was given to Sanders, with the understanding that he was to convert some county •securities into money'and pay cash, and he filed it in the clerk’s office, with instructions not to record it until further directed. 'Sanders being unable to raise the money, the contract, by mutual understanding, was rescinded, but the deed was left lying in the office. Some time after plaintiff’s purchase under -the execution, he 'discovered it by accident, and obtained a •conveyance from Sanders for the nominal consideration of fifty ■dollars, which he has not yet paid. He then caused the old •deed to be recorded with Sanders’ deed to himself.

The levy of the officer under the execution, fails to designate -whether the “township eleven,” in which the land lies, is north or south of the base line, and misdescribes a division of ¡a quarter section. The latter mistake is not repeated in the -certificate of purchase.

Upon hearing, the Chancellor ordered the deeds from Lay and wife to Sanders and from the latter to plaintiff to be canceled ; declared the levy and sale by the sheriff void, as well from uncertainty of description as because the title was in ••defendant. The sheriff’s deed was canceled, and the title of • defendant quieted. It was further ordered that the credit •entered on the judgment be set aside. The plaintiff appealed.

The acknowledgment of Mrs. Lay is irregular. The land was hers, under the deed from Brown, and she should have •acknowledged that she had executed it, or used equivalent words. 'That is proper where the wife’s land is the subject matter. The magistrate’s certificate also fails to show that she “voluntarily” appeared before him for separate examination.

.It is unnecessary, however, to discuss the validity of the ■acknowledgment. An uncompleted sale, where the deed has been executed and the consideration has not been paid, and •where there has been no intention of a gift or a sale on time, •makes a resulting trust in favor of the vendor — not for the -puchase money, but for the whole land. Equity will treat it as no sale, and hold the vendee a trustee of the dry legal title. This is one of the fourth class of resulting trusts treated of by Mr. Bispham, in his excellent work on “Principles of Equity,” sec. 79.

The plaintiff had notice of the circumstances, unquestionably. lie was told by Sanders that he had no title, and as yet had paid nothing. This attempt to gain an advantage, and fortify his title was vain and futile; whether Mrs. Lay had properly acknowledged the deed or not. The equities of the plaintiff must rest wholly upon his judgment and proceedings under it.

The conveyance of the land by Brown to Mrs. Lay, upon consideration of payments made by the husband, was, in effect, as if Lay had taken the deed to himself and made a voluntary conveyance to his wife. It was done to avoid an existing debt, and must be held to the extent of the creditor’s rights, to be fraudulent and void. The creditor had an equity, by proper proceedings, to subject the land to the payment of his judgment ; so far as he might be able to do so without contravening the policy of the homestead laws, in force at the time, and applicable to that debt.

The debtor, however, would not forfeit the rights he had, by a vain attempt to confer greater upon his wife. Equity, in relieving the creditor, will not place him in a better position than he would have occupied if the defendant in execution had taken the legal title to himself.

It is contended, that inasmuch as the defendant in execution •did not have as much personal property as was exempt, he might, without fraud, have used it in purchasing property for his wife — that nothing would be taken from creditors which ' they were entitled to seize ; and they would have nothing of "which to complain. It is certainly true that exempted personal property may be freely sold by the owner, and the execution creditor cannot follow it into the hands of the purchaser.

But property taken in exchange must take its position subject to the exemption laws in force. If it be personal, it must, go to make up the amount exempted. If it be i*eal it must take its place subject to the laws governing real estate ; and be exempt, or not, as other property of like nature ; and if the title be taken in the name of the wife, child or stranger, being-volunteers, courts of equity will subject it to the same burdens, in favor of creditors, which it would have borne at law, if conveyed to the debtor himself. Just this much and no more. Equity will do justice, but not punish. Whilst, on the one hand, it will not allow debtors to withdraw from their personal effects successive amounts just short of their exemptions, and invest them for the benefit of relatives, it will not, on the other, deprive them of their just and legal advantages of exemption as a penalty for unsuccessful efforts to evade the law.

The husband, when living, might, if the property had really-been his own, have scheduled it as a homestead. He did not choose to do so, but forbade the sale. The property belonged to Mrs. Lay, as against.her husband and all the world, except his creditors — and now, unless precluded by the sale, she has, even against creditors, the same lights of homestead which her husband had in his life time. What has been the effect of the execution sale upon her rights !

By statute, in this State, executions maybe levied upon “all real estate, whether patented or not, whereof the defendant, or-any person for Ms use, was seized in law or equity on the day of the rendition of the judgment, order or decree whereon execution issued, or at any time thereafter.” Under this statute the practice has grown up of levying upon such equitable interests as debtors are supposed to have in property held in the name or others, under conveyances thought to be fraudulent,, buying it in for a trifle, and then filing a bill to enforce the rights, whatever they may be. At such sales there can be no competition. They become mere speculations ; and oftentimes vast interests of innocent widows and children are swept away in consequence of attempted frauds on the part of those on whom they depend: which go to enrich creditors who were-entitled to their debts and nothing more. Whilst this court has been constrained to give reasonable effect to the act, and sustain sales of equitable interests in some cases, it has nevertheless appreciated the full force of the danger and injustice of the practice; and wherever the equitable interest has not been well defined and marketable, has strongly disapproved of such proceedings. There can be no objection to making the levy - and where the equitable interest is ascertainable, like an equity of redemption under an undisputed mortgage, or trust deed* for specified debts, no injustice can result from proceeding; with the sale. But in all cases where a bill in Chancery will,, in any event, be necessary, either to fix an equity or determine its extent, every consideration of humanity, justice, fair dealing and public policy demands that it should be first fixed and' ascertained, and then sold for its fair value. Where there must be a lawsuit, sold and bought, the competition will be only amongst speculators, and those of a class not to be encouraged. Generally the creditor gets the land and retains the greater part of his debt.

The better practice in all such cases,' after making the levy,, is to file a bill against all claimants, to ascertain through a. court of Chancery, the true nature and extent of the equity.. The Chancellor may, after guarding all just rights, subject it-to sale for the satisfaction of the judgment. Thus a clear title: or a well defined equity will be put upon the market, which bidders may buy at a fair value ; and the proceeds will go to «11 beneficially interested. Justice will be done to creditors, whilst those entitled to the surplus will be protected without more litigation than would in any case have been inevitable.

Courts of Chancery, in pursuance of this policy of discouraging a pernicious use of the statute, should always exercise a sound discretion, and set aside such speculative sales in all cases -where the rights sold have been of such a doubtful character as to deter fair competition. In all such cases the old principles governing creditors’ bills should appty; at least to the extent of suspending sales after levy until it may be ascertained what it is to be sold.

The pleadings in this case, after all amendments, stood as if the complainant had filed a bill to divest defendant’s title, and to quiet his own under the sheriff’s deed ; and as if the defendant, insisting upon her own title, had also set up the homestead right of her husband as an alternative defense. This he might have done if the deed to Ms wife had, in his life time, been declared fraudulent. The proof showed that the sale had been made under circumstances unfair towards the rights of the wife. The sale did not produce over one-half of the value of the'land, and she was cut off from all advantage of a surplus, which might have resulted from a fair sale. Besides, she is entitled to some consideration with regard to the homestead right, which would have remained in the husband if the deed had been declared fraudulent.

The plaintiff comes in, seeking the aid of equity, and relief should be granted only on such terms as seem just. The Chancellor properly canceled the title derived through Sanders, and set aside the sale under execution, but erred in quieting defendant’s title under the deed from Brown. The question of validity of the levy becomes unimportant.

For the error just noted, let the decree be reversed and the cause be remanded, with directions to the court below to enter a decree there declaring the conveyance of Brown to defendant fraudulent, as against the judgment of complainant against her husband; and that said judgment be declared a lien upon ■said lands to remain until the same be satisfied, but not to be •enforced during the time said lands may be occupied as a homestead by defendant, or any of the minor children of [Fountain M. Lay, deceased. The appellee will be charged with the costs of this court and the whole costs of the court below will be in the discretion of the Chancellor.


author: Caruth, Special Judge.

text:
    Andrews, Adm’x. v. Simms, Ad.
    1. Evidence : Privileged communications; Attorney and client.

    Any communication made by a party to an attorney while taking his professional advice, is privileged and not admissible in evidence. This is a rule of public policy and for the interest of justice. The most unlimited confidence between attorney and client should be encouraged by requiring that in all facts communicated in professional consultation, the lips of the attorney should be forever sealed. It makes no difference that no fee is charged by or paid to the attorney.
    :2. Writing Obligatoet : Endorser and endorsee; Statute of limitations.

    The endorsement of a writing obligatory or promissory note, after maturity, makes it in effect as between endorser and endorsee, an inland bill of exchange. The endorsement o” a note or writing obligatory constitutes a new and distinct eonlract from the note. The maker and endorser are liable on different contracts, and the statute of limitations of five years applies to the endorsement, and ten years, to the writing obligatory.
    •3. Endorsements in Blank: Rights of assignee.

    The holder of paper endorsed in blank may write over the endorser’s name directions to whom it shall be paid, and anything consistent with the endorser’s liability, but can not write “demand and notice waived;” for this would enlarge his liability.
    4. Demand and Notice : Waiver, inferred from circumstances.

    A waiver of demand and notice may be found from circumstances and facts aliunde.

      APPEAL from Hempstead Circuit Court.
    Hon. J. K. YoüNG, Circuit Judge.

      Gallagher & Newton, for appellant.

      Williams & Battle, contra.

   Caruth, Special Judge.

Suit on two writings obligatory, made in the fall of 1863,. and due in the fall of 1864, payable to Ephraim Mirick, or-order. Both notes bear the following endorsement:

“For value received I assign the within to William W.. “ Andrews, waiving demand and notice of non-payment.

‘■‘■November 3, 1864. . “Ephraim Mirick.”

They are both sealed instruments.

Mirick departed this life on the 7th day of April, 1874, and.' these writings obligatory properly verified, were, in March, 1875,’presented to Thomas H. Simms, the appellee, his administrator, for allowance as just claims against his estate. They were disallowed, and the disallowance approved upon hearing before the Hempstead Probate Court. An appeal was prosecuted to the Hempstead Circuit Court, and the case was heard; by the court sitting as a jury.

The appellee interposed the following defenses :

First — The statute of limitations.

Second — That the endorsements of the writings obligatory offered by plaintiff as the basis of her claim, were not made, by said Mirick except as to the signature.

Third — The want of de'mand upon the makers of said writings obligatory, and notice of non-payment.

To sustain plaintiff’s case she read in evidence her notice, given to the defendant before presentation to the Probate Court, for allowance; her authentication of the same; the endorsement of disallowance ; and finally the original writings-obligatory with thpir respective endorsements.

The date of the death of Mirick was agreed as above indicated.

The defendant, to sustain the issues on his behalf, called -A. B. Williams, Esq., and testified himself. A. B. Williams testified substantially, that he had practiced law for many years at Washington, where appellant’s intestate lived, and had frequently done business for him. That some time in the winter of 1865, or 1866, Andrews came to him as a lawyer for his opinion, stating that these notes had been endorsed to him "by Mirick in blank, and asked his advice as to his rights in the premises. He advised him that he might fill up the blanks as they now appear, and Andrews did so. Doesn’t remember whether he consulted him at his ofiice or not. The opinion he gave Andrews was as a lawyer, and supposes he so took it, but did not consider himself as his attorney, and made no ■charge for the advice.

The plaintiff moved to exclude his testimony as being within the rule protecting privileged communications. This motion was overruled.

Simms testified that Andrews told him he had received the writings obligatory endorsed in blank, and that afterwards, under the advice of A. B. Williams, Esq., he had filled in the endorsements as they now appear.

The court declared its conclusions of law :

First. Overruling the plea of the statute of limitations.

Second. That the filling in of the endorsements was void in "law, and a fraud in Mirick.

Third. That a demand and notice, or a waiver thereof, was necessary to bind Mirick, and disallowed the claim.

To reverse which, this appeal is prosecuted .

The initial point of consideration is the admission of Williams’ testimony against the objection of defendants’ counsel.

The motion to exclude should have prevailed.

Any communication made by Andrews to Judge Williams, whilst taking bis professional advice, is privileged. Such is the rule, wisely laid down by the law, and we see nothing in the record which would justify us in making this an exception. It was adopted from reasons of public policy, and through a regard to the interests of justice. A wise policy encourages and sustains the most unlimited and generous confidence between lawyer and client by requiring that on all facts confided in professional consultation the lips of the attorney shall be forever sealed. In this case, it is clear Andrews went to Williams as a lawyer for legal advice. It matters not whether a fee was charged on Williams’ books. He had an unquestionable right to charge and doubtless Andrews so expected. It is clear the relation of attorney and client existed between them.

The rule does not require any particular form of application or engagement, nor the payment of fees. It is enough — to use Mr. Greenleaf’s language — that he was applied to for advice or aid in his professional character. 1 Oreenl. Ev.> Sec. 241.

Our statute on this subject provides the following persons shall be incompetent to testify :

“An attorney concerning any communication made to him “ by his client in that relation, or his advice thereon, with- “ out the client’s consent.” Gantt's Digest, 2482.

Believing, as we do, that the principle thus laid down is both salutary and wholesome, and tends to conserve interests of the highest character, we follow it strictly, and hold that the testimony was inadmissible and should have been excluded.

The conclusion of law reached by the court below, that the same statute of limitation applicable to the makers of these writings obligatory, applied to this suit of the assignee against, the payee and assignor, Mirick, was an error.

These sealed notes were assignable only by reason of the statute of assignments, and non-negotiable in their character. Andrews’ claim must have been and was based upon the contract of assignment or endorsement. As to the note, being a sealed instrument, the statute bar was ten years, and to other written contracts, five years. The endorsement of these writings obligatory, together with the contract implied therefrom, by law, and which the endorsee had a right to insert over said indorsement, constituted a written contract between Andrews and Mirick, within the intent and meaning of the statute prescribing limitations for such contracts. It was separate, distinct and independent from the contract of the maker as evidenced by the writing obligatory, and carried with it, of necessity, its obligations and corresponding enforcement. This contract was not under seal, and we see no reason why the limitations applicable to sealed instruments should be enforced as to it.

That it was such a new contract, seems to be established both upon principle and precedent. Says Mr. PaiisoNS, in his work on Notes and Bills.

“An endorsement being a new and independent contract,, every endorser of a bill makes a new contract, and will be considered by the law as the drawer of a new bill. The indorser of a note does not stand in the situation of maker to his indorser.” Parsons’ Notes and Bills, vol. 2, p. 25.

The Supreme Court of the United States, in Boss v. Jones,. 22 Wallace, 589, uses this language :

“The indorser is not a surety in the general sense, but stands in the attitude of a drawer of a new bill, and the maker and indorser are liable in different contractsand proceeds to hold that the cause of action never accrued at the same time as to the endorser and maker.

So, the Supreme Court of Iowa held the endorsement of a promissory note constituted a distinct contract. National Bank of Michigan v. Green, 33 Iowa, 140. And so rigidly was this doctrine enforced in Louisiana, that her Supreme Court decided in a case where the note itself was void, and not enforcible against the maker, that the contract of assignment was so distinct and independent of the contract of the. maker, it should be enforced. Succession of Weil 24 Lou. Ann., 139. And the same doctrine obtains in Georgia. Graham v. Maguire, 39 Ga., 53. The case of Whistler v. Bragg, 31 Mo., 124, is in point. In that case a non-negotiable promissory note, when past due, was assigned by the payee to Whistler. The Missouri statute of limitations, as to the note, would have been ten years ; but the court held that in a suit between the assignee and assignor, another and different limitation applied, and inasmuch as more than five years elapsed since the cause of action accrued against the assignor — pronounced against the plaintiff. See also Barker v. Cassiday, 16 Barb., 180.

This court held in Levy v. Brew, 14 Ark., 336, that when a note has been endorsed after its maturity, it is, in legal effect, as between the indorser and endorsee, an inland bill of exchange, payable on demand ; while between the indorsee and maker it remains a note. These notes were endorsed after maturity, and accordingly, as between Andrews and Mirick, became in effect, inland bills of exchange, and as such must be considered in applying the statute of limitations. More than five years having elapsed, the statute was properly pleaded, and the plea should have been sustained.

The only remaining point for consideration is as to the conclusion of law of the court below, releasing the assignor, because no demand and notice of non-payment was shown. The testimony of Simms discloses the fact that these notes were endorsed in blank, and that long afterwards, Andrews, 'without the knowledge or consent of Mirick, wrote over them the waiver of demand and notice. That when these notes were •offered in trade to Andrews, he refused them, saying the makers were insolvent, and he would not pick them up in the street; whereupon, Mirick remarked, my name on them makes them .good, and they were then accepted.

The contentions of the learned counsel for appellant, are :

First. The endorsement, in blank, justified Andrews in filling -it as he did ; and,

Second. If it did not, the language used by Mirick at the 'time of the contract, was equivalent to a waiver of demand and ’notice. 1

We cannot subscribe to either proposition.

The holder of paper, endorsed in blank, may not only write •directions to whom it shall be paid, but may, as we believe, write what else he will, consistent with the liability assumed 'by the endorser. He cannot, for example, write over the indorser’s name, “demand and notice waived,” for this would •enlarge the liability of the indorser. 2 Parsons Pfotes and .Bills, p. 20.

It follows, therefore, that the endorsement of the waiver of ■demand and notice, over the signature of Mirick was unauthorized, and by it he can take nothing.

But it is insisted that the expression used by Mirick at the time of the trade, when it was objected that the makers were insolvent, to-wit; that his name made the notes good, was •equivalent to a waiver on his part. There is nothing in that •expression which justifies the conclusion that Mirick intended to waive any right. On the contrary, it is in no wise inconsistent with the idea, that being bound as indorser made the .paper good, in the event the makers failed to pay on due ••demand, and he had notice thereof.

We have carefully examined the authorities cited by learned counsel for appellant. They unquestionably establish the doctrine that a waiver may be found from the circumstances and facts aliunde; but none such appear here. No demand and. notice having heen made and given by Andrews to Mirick, the indorser was discharged. Such has been the invariable ruling-of this court.

It follows from what we have above said, that although the-court below erred in the admission of Williams’ testimony, and in overruling the plea of the statute of limitations, yet, inasmuch as its judgment of disallowance was right, it must be affirmed.

Let it be so ordered.


author: C. B. Moore, Special Judge.

text:
    Ryan & Co. v. Boyd.
    NO'-icb: Judgments without, enjoined.

    Courts of equity have jurisdiction to enjoin the execution of a judgment rendered without notice to the defendant, actual or constructive. The statute-(Sec. 2619, et seq., Gantt's Digest), is but a cumulative ■■emedy.
    Is-jdn-otioít : Pleading.

    The defendant in a judgment rendered against him without notice, need not. show in his bill for injunction that he had a good defense to the action in, which i' was rendered.
    APPEAL from Pulaski Chancery Court.
    Hon. J. R. EaiciN, Chancellor.

      Duffie & Hill, for appellant.

      Watkins, contra.

   C. B. Moore, Special Judge.

This is a suit brought to the September term of the Pulaski' Chancery Court by F. H. Boyd against A. H. Ryan & Co.,, and H. H. Rottaken, sheriff of Pulaski county.

Boyd, in his bill of complaint, alleges that on the 26th of' September, 1873, A. H. Ryan & Co., obtained a judgment-against one B. R. Murphy and himself for the sum of $182.70,. with ten per cent interest from the 15th of March, 1873, before-one E. H. Chambei’lain, an acting justice of the peace of Big-Rock township, Pulaski county, but who was neither elected nor appointed to the office, nor commissioned — or if commissioned, that his'term of office had expired long before the date-of the rendition of the judgment. That on the 8th of August,. 1877, an execution was issued on the judgment by J. R. Howe,. Esq., an acting and duly commissioned justice of the peace, which was returned “rmlla bona,” and that on the 29th of' August, a transcript of the judgmeut was filed in the office of the clerk of the Circuit Court of Pulaski county, and an execution issued therefrom, which was levied by Rottaken, the. sheriff, on certain real estate of Boyd’s, and which was advertised and about to be sold.

The summons in the suit before Chamberlain was duly-returned by the constable, and on its face showed personal service on both Boyd and Murphy. The bill denies the cor-, rectness of the return ; that ‘ ‘it is untrue and utterly false so-far as service on defendant, Boyd, is concerned;” denies that-he was ever in any manner summoned, and claims that the-judgment is illegal and void; prays that the sale of his property be enjoined, and for other proper relief.

Affidavits, which do not appear in the transcript, were exhibited, and a temporary injunction was granted.

At the March term, 1878, Ryan & Co., demurred to the bills,, assigning eight causes of demurrer, as follows :

1. That the bill does not state sufficient facts.

2. That it does not show that plaintiff has no relief at law..

3. That it does not show sufficient diligence on the part off complainant in respect of the debt.

4. That it does not offer to pay what is admitted to be due_

5. That it does not show that there was any fraud practiced by A. It. Ryan & Co-.-, or any of them, in obtaining the judgment complained of.

6. That it does not show that complainant had any defense on the merits-.

7. That it does not show that the judgment is wrongful or for an improper amount.

8. That toot denying the debt to be due, it does not show that any part of it has been paid-.

The case Was submitted on the demurrer and the same overruled by the Chancellor, and defendants declining to answer, the injunction Was made perpetual, and Ryan & Co. excepted ■and appealed-.

The real and only important questions presented by the bill and raised by the demurrer, necessary to be determined here, are those contained in the two first grounds alleged.

We pass over the allegations in the bill which charge that Chamberlain-, the justice who rendered the judgment, was not elected-, appointed or commissioned. These allegations are not sufficient as they stand in the bill to render the judgment void on demurrer-. The complainant admits, in the first part of his bill, and by the qualifying sentence, that if ever commissioned his term of office had expired, that he was a de facto officer, exercising the functions of a justice of the peace, at least under .color of authority and law.

We are led, then, first, to the important inquiry, whether a judgment rendered against a party without any notice or service of summons, either actual or constructive, should be allowed to bind him, and become a lien on his property, and may execution issue thereon and his property be sold to satisfy such a judgment? and, secondly, has a court of equity the tight to interpose, by injunction, to restrain the enforcement of such a judgment and execution?

We are well aware of the great clanger- and mischief there would be in allowing a person again.st whom a judgment has, been obtained, to dispute the truth of the- return of the officer-of service of the summons, and to have a judgment set aside or execution thereon enjoined or quashed, without the strictest; p^'oof; and we recognize the wise policy of th.e law making the return of the officer prima facie tru,e and conclusive.

It will be borne in mind that, in this, case, the question is. raised by demurrer, which admits the allegations of the bill to, be true, and for all present purposes they must be considered as proved.

The bare statement of the first of'the above questions would seem to imply its answer, and we should hardly stop to give any reason for an answer in the negative, but for the fact that much stress is laid upon this point by counsel for the appel-, lants, and because we find there is apparently some conflict in the decisions of the courts of other States, at least when the aid of equity is invoked.

The Constitution of the State provid.es. (Art. 2, Sec. 21), “that no person shall be deprived of his life, liberty, or prop-, erty, except by the judgment of his, peers., or the law of the land.” And the Legislature has, very- explicitly defined the manner in which suits shall be- brought and process served, and when it is proved or admitted, as in this, case, that no. notice or summons was ever, in anywise, served on the defendant, can he be deprived of his property without a hearing ?> without “a day in court?” or have a cloud,to overshadow his. title without the fact being brought to,his attention? He may justly owe the debt, and yet there muy be a thousand good reasons why the creditor is not entitled to a judgment on it and without an opportunity to, present t,hese reasons to the court, shall he be deprived of his plain.; constitutional right? or;as the Chancellor, in the lower court, in righteous indignation exclaims, “Is this the law of the land?”

We think not, and so hold.

As to the second question presented; Has a court of equity a right to interfere and grant an injunction against such a judgment? or, in other words, is the remedy of the appellee complete or exclusively at law?

The general principle that courts of chancery have jurisdiction over, and power to relieve against, void and fraudulent judgments, and to enjoin the execution of such judgments, is recognized in all elementary works in equity jurisprudence, and is too familiar to the profession to require citations, or indeed more than an announcement of the doctrine.

The cases in which it has been doubted or denied are where some other complications exist, or where, either in fact or it is supposed, that adequate relief is afforded by the exclusive jurisdiction conferred by statutory enactment on the courts of law out of which the executions, on void and fraudulent judgments, have issued, or where it has been held that the plaintiff having a meritorious defense to the action, and having been duly summoned, failed or neglected to plead or offer the same in the original suit.

We are cited to Sec. 2619 of Gantt’s Digest, which provides in substance that if any person against whom any execution may have been issued, shall apply to the judge of the court out of which the execution or order of sale may have been issued, by petition verified by affidavit, setting forth cause why such execution ought to be stayed, set aside or quashed, reasonable notice of such intended application being previously given to the adverse party, his agent or attorney of record, such judge shall thereupon hear the complaint, and if it shall appear that such execution ought to be stayed, set aside or quashed, and the petitioner shall enter into a recognizance to be approved by the judge, conditioned for the payment of the ■debt or surrender of property, then the judge shall make an ■order for stay of execution. Sections 2620 and 2621 provide for the return of the execution, and for the hearing and determining of the petition, and the perpetual stay or quashal of the execution, or for the enforcement of the execution.

There is little doubt but if the judgment in this case had been originally rendered in the Circuit Court, appellee might have effectually resorted to this statutory provision, and had the execution stayed and finally quashed by the law court. But the judgment, it is shown, was rendered in a magistrate’s court, and the execution'under the provisions of the statute issued out of the Circuit Court on the filing of the copy of the judgment of the justice, and his certificate that an execution had been issued by him and returned nulla bona. Had the appellee undertaken to rely on the provisions of section 2619, ■etc., the Circuit Court could have looked alone to the record presented to it, which could only have been the certified copy of the judgment, etc., and as this on its face showed a valid service and a valid judgment, it is evident that the Circuit Court would have summarily dismissed the petition at the hearing.

In the case of Anthony & Brodie v. Shannon, 8 Ark., 52, referred to and relied on by appellants, an execution had-been issued by a justice of the peace on a forthcoming stay-bond, executed by one Lewis, with Shannon as surety. Property of Lewis was levied on, and at the sale, failing to bring 2-3 of its appraisement under the act of 1840, it was re-delivered by the constable to Lewis on his giving a delivery bond with other security. After this latter bond was forfeited, the constable levied on the property of Shannon, surety on the first bond. He filed a bill for injunction, claiming that the constable should have proceeded against Lewis on the security in the-delivery bond.

This court, on appeal, said: “If the judgment was satisfied, on the execution improperly issued, Shannon had a right to-apply to the justice who issued it, to set it aside, the justice possessing power to set the same aside,” and added, “In that case his remedy was complete at law, and he had no right to. apply to equity for relief.”

Here Shannon was cognizant of all the proceedings; he had. his “law day,” and all the proceedings were before the justice of the peace.

And in Bendy's, executor, v. Dillard, 6 Ark., 79, Dillard filed a bill in chancery to enjoin a judgment obtained against him in a suit by the executor. The gravamen of the charge-was, that the note on which judgment was obtained had been paid to the testator in his life-time. Though regularly served with process, Dillard made no defense to the suit at law, nor did he in his bill render any excuse why defense was not made. The injunction having been granted by the lower court, on appeal, this court quoted as the rule the doctrine laid down in Andrews v. Fenter, 1 Ark., 186, that, “to authorize a party to be relieved against a judgment at law, it must appear conclusively that the judgment was obtained by fraud, accident, or mistake, unmixed with any negligence on his part. The defendant cannot come into a court of Chancery for new trial or relief when there is no special ground of surprise or ignorance of important facts suggested ; or where no equitable circumstances have arisen since the trial, and where he has neglected to defend himself with due diligence in the proper place,” and then adds: “This rule, however, is confined to cases of the same character as the one before the court where the defense is purely legal, and is of exclusive common law jurisdiction. But if a court of law and a court of equity have «oneurrent jurisdiction over tbe subject matter, the party may make his election as to the tribunal which shall determine the controversy.

Tins whole subject was very fully examined, and the authorities reviewed in the case of Hempstead & Conway v. Watkins, administrator, 6 Ark., 317.

Hempstead and Conway were the sureties of one McDonald, on a mote executed to Mrs. Byrd, Watkins’ intestate. Being ■ desimus of coercing McDonald to pay the debt, and releasing themselves from liability, as sureties, they gave notice to Wat- ■ kins, fin writing, to sue within thirty days. Watkins sued with- • in thirty days — but brought suit in his individual capacity. In. this soaiit he failed, and then, nearly a year afterwards, he-brought .a suit in his representative capacity. The sureties made rn-o defense to the last suit, and judgment was rendered against them. Execution was issued and levy made on their property.. They filed a bill to enjoin the same on the ground, that having given notice, under the statute, to the administrator, and he having failed to sue, properly, within the time limited — the judgment in the second suit was erroneous as against them. A temporary injunction was granted and dissolved.by the Circuit Judge, as Chancellor, on the ground that the complainants might have interposed their defense at law, “and had been guilty of laches and neglect.”

This court held on appeal, reversing the decree, that the defense, eonfered by our statute, allowing a surety to give notice to sue, etc., and if not done that he is relieved of liability, was only cumulative or concurrent with existing Chancery jurisdiction in such eases.

The case of Bentley's executor v. Dillard et al., are carefully reviewed, and harmonized, and the conclusion summed up in these words: “Upon a «areful review of the authorities the court is confirmed in the correctness of the rule laid down in Bentley's ex’r v. Dillavd, that where the jurisdiction of courts of Chancery and courts of common Ian is concurrent, in consequence of courts of law having enlarged their jurisdiction by their own acts, or of its having been enlarged by act of the Legislature, without prohibitory words, the party may make his election as to the tribunal to which he will make his defense, and once having made that election, he is bound by the decision, whatever it may be, and that his right to submit the matter to a court of Chancery, is in no degree impaired by the power of courts of law, at this time, to take cognizance of the subject.”

The proceedings authorized by the 2,619th section of Gantt’s Digest, are, in their nature, and almost in express terms, such as are prescribed for a bill in Chancery to obtain an injunction.

The Legislature, by act of February 30th, 1838, (see Gould’s Digest, Chap. 60,) made provision for foreclosing mortgages by petition in the Circuit Court.

In construing this statute, this court said, in McLain & Badgett v. Smith, 4 Ark., 244. “The case, in our opinion, is unquestionably within the jurisdiction of a court of equity; and although under the existing organization of our judicial tribunals, the Circuit Court has jurisdiction over it, its powers in this respect, are derived from the provision in the Constitution, investing it with jurisdiction in matters of equity.

No one ever supposed that this form of proceeding precluded the ordinary bill in Chancery to foreclose a mortgage — but it was always considered as a cumulative and concurrent remedy or proceeding therewith — and the same may be said of the provisions of Sec. 2619.

All the other grounds of demurrer alleged, are comparatively unimportant, except it may be the sixth, which is that the bill does not show that the plaintiff (appellee) had a meritorious defense to the original suit. This ground is strenuously urged 'in the argument of appellee’s counsel. We find a conflict in the decisions of the courts of some of the other States on this point; but we have found none more satisfactory or that •declares the true doctrine more clearly, or places it on firmer ground than does the Supreme Court of Tennessee, in the case of Ridgeway v. The Bank of Tennessee, 11 Humphries, 523, and which has been approved in the more recent case of Bell v. Williams, 1 Head, 227.

The bill in that case was like this, a bill to enjoin execution ■of a judgment without notice on a false return. The court held there was no remedy at law. That the judgment was void for matter extrinsic, and remedy only in Chancery. The language of the court is — “Nor is it material in such cases to •enquire whether the defendant (in the original suit) could have made any valid defense. The injury of which he justly complains is, that a judgment was rendered against him, without notice, and without defense ; we cannot doubt but that in the view of a court of equity it is unjust and uuconscientious to to attempt to enforce a judgment so obtained.”

Wherefore, we conclude that the statutory provision in See. 2619, et seq., Gantt’s Digest, was but a cumulative remedy, and at most, only conferred on courts of common law jurisdiction concurrent with Chancery, in the matter of staying or enjoining executions on fraudulent and void jugments, and in particular cases, as in the one at bar, that the remedy is alone In a court of equity.

The demurrer was correctly overruled, and the decree of the Pulaski Chancery Court is in all things affirmed.

Hon. J. R. EakiN, J., did not sit in this case.


author: English, C. J.:

text:
    Desha County v. Newman.
    County Court : Allowance by.

    Allowances made by the County Courts since the passage of the act of March' 28, 1871, (Acts 1871, p. 312), for blanks and stationery for justices of the' peace, are illegal.
    - Allowances by, are in the nature of judgments.
    Judgment: Of Circuit Court; vacation of.

    By statute the Circuit Courts are authorized, in specified oases, to vacate or modify their judgments after the term at which they were rendered.

      -Of County Courts; vacation of; county scrip collaterally assailed.

      As a general rule County Courts have no power to vacate their judgments-after the expiration of the term, but by statute (Gantt’sDigest, Secs. 614, 616, 611, and Acts 1875, p. 177) County Courts are empowered to review all' allowances made at previour terms, and if illegally madb, to reject warrants-issued upon them, and also to reject warrants otherwise illegally or fraudulently issued. .Warrant holders take them subject to this power of the Oounty Court to reject them; and it has been held in suits upon county warrants that the allowances upon which they were issued may be collaterally assailed for illegality as matter of defense. Shirk v. Pulaski county, 4 Dillon, 209.
    APPEAL from Desha Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      J. P. Glayton, for appellant.

      Pindall, contra.

   English, C. J.:

The County Court of Desha county, at its July term, 1876, made an order calling in the outstanding warrants, etc., of the county, requiring holders to present them at the January term.' following.

Within the time prescribed by the order, C'.. CL Newman, filed for examination, cancellation and re-issuance, thirty-two» warrants issued to him prior to the date of the calling order upon allowances, in his favor, amounting;' in the aggregate to* the sum of $1,798.75.

The couib at its January term, 1877, proceeded to examine the warrants filed by Newman, the accounts and orders upon which they had been issued, and found and decided that all ■of the warrants, except for the sum of $176.25, had been 'issued contrary to law and without consideration, and rejected them, and directed the clerk not to re-issue them ; and Newman •excepted and appealed to the Circuit Court.

The matter was heard anew in the Circuit Court and judgment rendered, ordering the clerk of the County Court to renew all of the warrants filed by Newman. A new trial was irefused the county, and it took a bill of exceptions and appealed ;to this court.

On the .trial Newman read in evidence the following order of the County Court, made 15th of May, 1875 :

“On this day the court, on its own motion, doth order that the '■clerk hereof furnish the justices of the peace of Desha county •any suitable blanks now in his office, and to purchase any ’blanks ¡needed by justices, if the same can be purchased for Desha county scrip.”

Also read in evidence the following account filed in the 'County'Court by him, verified by affidavit and the orders of •allowance thereon.

JL. An account for printing marriage license's and •bonds allowed 28th of April, 1875, for.$ 16 25

;2. An .account filed Sept. 29, 1875, for publishing .liatiof allowances. 202 50

.And for printing 1,140 quires magistrates’ blanks, as ;per «order, at $1 per quire. 1,142 50

The two items of this account, making $1,342.50, were ¡allowed October 5, 1875, and the clerk ordered to draw warrants -.upon the Treasurer for the amount, and the court further ordered that all justices wanting blanks might apply to the clerk for the same and should pay therefor $1 per quire, and it was made the duty of the clerk to report to each termi of the court the amount of money collected by him for the-sale of said blanks, and to publish the order, etc.

3. An account for-printing constables’ and justices’ blanks.$ 40 00-

And for printing Circuit Court blanks. 190 00-

This account was also allowed and warrants ordered October 5, 1875.

4. An account for printing blanks, etc., kind not named, allowed and warrants ordered April 4, 1875, for.$ 210 00'

The total allowance being for- $1,798.75, which was the-aggregate amount of the warrants presented by Newman under the calling order.

The attorney for the county offered to prove that the justices’ and constables’ blanks charged in the several accounts-for which allowances were made and warrants issued thereon,, had not in fact been received by the county.

Also that no appropriation had been made, nor any taxes-levied for the purchase of justices’ and constables’ blanks.

The court ruled the evidence inadmissible.

On behalf of the county the following declarations of law were moved.

“1. That when the County Court finds, upon calling in the county scrip, that certain scrip has been issued upon allowances made by the former orders of the court, for blanks that-the county was not legally empowered to purchase, the court may legally cancel such scrip and refuse the issuance of other-in lieu thereof.

“2. The County Court was not empowered by law to purchase blanks for which no appropriation had been made and no tax levied by the County Judge and justices in County Court assembled.

“3. Thut the County Court bad no authority, by law, to purchase the justices' and constables’ blanks in this cause mentioned.”

Which the court refused, but declared the law to be as follows :

“1. Where scrip has been regularly issued in accordance with an allowance regularly made by the County Court, the consideration for such scrip cannot be inquired of in a proceeding to call in and re-issue the scrip of the county under the provisions of Secs. 614, 615, 610, Gantt’s Digest.

“2. An allowance of an account in favor of a creditor of the county by the County Court, upon a claim regularly presented to it, is a judgment of such court, and such judgment cannot be disregarded, held for naught or inquired into under this proceeding.

“3. Scrip issued under a regular allowance of the County Court is not, in contemplation of law, scrip illegally issued.”

The contest on the trial in the Circuit Court seems to have been in relation to the allowances for blanks for justices and constables, and the warrant issued thereon.

It appears that there was an allowance, 5th of October, 1875, of $1,142.50, for blanks for justices ; and an allowance as of the same date of $40, for blanks for justices and constables, making together $1,182.50. Deduct this sum from $1,798.75, the amount of all of the allowances and warrants, and the remainder is $616.25, for which appellee was entitled to have renewed warrants, nothing appearing to the contrary in the record before us, and to that extent the judgment of the Circuit Court was right.

We do not find that there was ever any statute requiring or authorizing County Courts to furnish printed blanks to constables at the expense of the public.

Nor that there was at any time a statute authorizing County Courts to procure aud supply justices of tbe peace with printed blanks.

An act of July 25, 1868, (Acts of 1868, p. 337), required each justice of the peace to keep as his dockets, two good and substantial leather-bound books of at least eight quires each, ■ and to procure all necessary blank forms and stationery for -his office. Sec. 1.

And it was made his duty to make out an account for ■all records, blank forms aud stationery that might be necessary for his office, and to certify that such account was true and correct, and that the articles therein mentioned were necessary .for his office, and to submit the same to the County Court, which was required, if the account was found correct, to order the same to be paid out of the county treasury. Sec. 2.

By act of 28th March, 1871, (Acts of 1871, p. 312), the above act was repealed ; and it was made the duty of the County Court, upon the application of any justice of the peace, to furnish him with two good and substantial leather-bound books of at least six quires each, to be used as civil and criminal dockets ; provided, that he had none and was not entitled to receive them from his predecessor in office. See Gantt’s Digest, Sec. 3710.

The repeal of the act of the 25th of July, 1868, and the provision in the repealing act for furnishing justices of the peace with dockets only, was equivalent to an expression of legislative will that justices should not thereafter be furnished with blank forms and stationery at public expense.

It follows that the allowances by the County Court in favor of appellee for printing blanks to be furnished by the clerk to justices of the peace were illegally made. In other words, the court had no authority or discretion to make such allowances.

The allowance by the County Court of a claim against the ■county in favor of the claimant is in the nature of a judgment. Jefferson County v. Hudson, Sheriff, 22 Ark., 595.

As a general rule the County Courts, like the Circuit Courts, 'have no power to set aside, vacate, modify or disregard their .judgments after the close of the term at which they are ren■dered. Reiff et al. v. Conner et al., 10 Ark., 241.

But by statute the Circuit Courts are authorized in specified ■cases to vacate or modify their judgments after the expiration •of the term, at which they are rendered, and this court has •not doubted.the constitutional power of the Legislature to give them such control of their judgments in the cases, and for the •causes indicated in the statute. Badgett v. Jordan, 32 Ark., 157.

Warrants upon the county Treasurer (commonly called ¡scrip), are issued upon, and for the payment, of allowances made by the County Court. Gantt’s Digest, Sec. 600, 606, .Act of 1875, p. 51, etc.

The statute empowers the County Courts as often as once in three years to call in all out-standing warrants, to examine and ■cause them to be renewed if legally issued, and if not to reject them. Gantt’s Digest, Secs. 614, 616, 611, Acts of 1875, p. 13.

Thus the Legislature has empowered County Courts to review allowances made at previous terms, and if made without •authority of law, to reject warrants issued upon them, and also to reject warrants otherwise illegally or fraudulently issued.

Warrant holders take them subject to the exercise of such power by the County Courts, the statute conferring the power being the law of the contracts. Parsel v. Barnes & Bro., 27 Ark., 261.

The allowances in favor of appellee for magistrates’ blanks are not attacked collaterally, but in a direct proceeding to review them authorized by statute.

But in suits upon warrants, where allowances have been collaterally attacked, it has been held that it may be shown as matter of defense, that the allowances have been made contrary to law.

In Shirk v. Pulaski County, 4 Dillon, 209, the suit was. upon warrants issued upon allowances made for five and ten times the value of the claims, in violation of law, and Mr., Justice DilloN, after reviewing and citing many authorities, said : ‘ ‘ The true rule is this: within the' limits of their-power, as conferred by statute, the action of the County Court in determining the amount due a creditor of the county, in the-absence of fraud, or, perhaps mistake, binds the county; but. the Couuty Court cannot bind the county by ordering a claim to be paid which is not made a county charge by statute, or-by allowing more than the statute distinctly limits, or by an. allowance in the face of a statutory prohibition.”

“Any other principle,” (he adds) “would ruin municipalities and counties ; and the danger which would result from it is well exemplified in this case, where ten dollars have been allowed for one, and where, it is said, the officers of the-defendant, county, have in this manner issued $400,000 of' warrants within a few years, which are yet outstanding.”

The Circuit Court erred in directing the County Court to-issue to appellee warrants in renewal of such of his warrants as were issued upon allowances for blanks for justices of the-peace and constables.

If, however, the clerk sold blanks furnished by appellee, as-directed by the order of the County Court, of the 5th of October, 1875, and paid the money into the county treasury, it is but just that appellee should- have an allowance and warrant for the amount so received for blanks furnished by him, and if' any blanks remain unsold, they should be returned to him.

The judgment must be reversed and the cause remanded to-the Circuit Court, with instruction to it to issue a mandate to-the County Court in accordance with this opinion.