author: •Wiushire, O. J.

text:
    Jones v. Mayor and Aldermen of the City of Little Rock.
    Jurisdiction or supreme court — writ of injunction. The fourth section of article seven of tlic Constitution limits the original jurisdiction of this court to the writs therein enumerated, and such other remedial writs as maybe proi>erly used in the exercise of it3 appellate, or may he necessary in the exercise of its supervisory, jurisdiction.
    This court can not issue any of the writs enumerated in that clause, except in aid of its appellate or supervisory jurisdiction.
    This court can not issue a writ of injunction upon an original hill of com.plaint filed herein. C'arnaU 1>. Crawford County, 6 Eng., 617. Affirmed.

      The present Constitution does not extend the jurisdiction formerly possessed hy this court.
    The petition in this ease does not show any inherent defect in the inferior tribuna! having original jurisdiction of such cases; nor the incompetency of the Incumbent of snob tribunal; and must be dismissed.

      Petition for Injunction.

    Watkins &■ Rosk, .Rick & .Bknjamin, for relator.
    The issuance of change tickets by the city is illegal by statute. Gould’s Dig., p. 244. Nut the bills so issued are not void. Van Horne v. State, 5 Ark., 351.
    Nut, if they were void, the injunction ought to issue anyway. Hamilton v. Cummings, 1 I. C. 11., 520. Any inhabitant and tax-payer of a city may bring a bill for himself, and all other tax-payers and inhabitants, to prevent the execution of an illegal act by the common council. Sto. Eq. .PL, sec. 97; Wilson v. Discoe, 11 Ark., 56; Conway, ex parte, 4 id., 340 ; Christopher v. Mayor, <fc., 13 Barb., 567; Stuyvesant v. Pearsall, id., 244; DeBaun v. Mayor, fc., 16 III., 392; Oakey v. Trustees, ¡fe., 6 Baige, 267; Wood v. Draper, 24 Barb., 217; New London, v. Braina.rd, 22 Conn., 552; Davis v. Mayor, fe., 1 Duer, 495 : .People v. Compton, id., 530; People v. Sturtevant, 5 Scld., 263; Chemical Bank, 12 How. Pr. It, 478; Whitfield v. Rogers, 26 Mss., 84; Burnett v. Cincinnati,‘ó Ham., 73; Frost v. Belmont, 6 Allen, 152; Mott v. Bonn. R. R. Co., 30 .Penn., 1; Hood v. Mayor, ¡fe., 1 Allen, 213; Pope, v. Halifax, 12 Cush., (Mass.,) 410; Vanover v. Davis, 27 Geo., 854; Williams v. Detroit, 2 Mich., 562; Jonas v. Cincinnati, 18 Ohio, 318;' Thompson r. Commissioners, 2 Abb. Pr. R., 248; Roberts v. Mayor, <fc., 5 id,., 41; Wood v. Draper, 24 ¿¿¿.,187; S. 61,4 id., 822; Cooper’s Eq. Cases, 77; 1 Railway Cases, 135; 4 Mylne a,nd Cr., 249; 2 id., 123; 4 Abb. Pr. R., 57; People v. Mayor, fc., 32 Bari)., 102: 8. G., 10 Abb. Pr. It., 14.4; People v. Mayor, fc., 9 id., 258; Cooper v. Allen, Marring Ch., 72; Eiske v. Hazard,, 7 ./. R., 438: 1 Kansas, 432; 6 Mete., (Mass.,) 425: 27 Conn., 499; 25 id., 224.

      On the ground of public policy, in the ease of a general tax, the courts have sometimes declined to interfere. The case in 1 A. K. M., p. 554, was by the owner of a billiard table, for himself alone. In Ketchum v. City of Buffalo, 14 N. Y., 370, the decision was based on the ground that the act of the city was not ultra vires, and on the code as to parties. None of these cases can be considered in point.
    Montgomery & Warwick and Garlaguer & Newton, for de- • fondants.
    This suit having been brought before the Chancellor of Pulaski county, and the injunction therein prayed for, first granted thep recalled, and, upon tho application being renewed, refused, this court is now asked to exercise original jurisdiction of the matter, under the Constitution of 1836. Those cases are conclusive of the jurisdiction of the court. State v. Ashley, 1 A.rk., 279; Jones, ex parte, 2 Ark., 94; Carnoll v. Crawford County, 6 Eng., 604; Marr, ex parte, 7 Eng., 84-87 ; Allis, ex ■parte, id., 101; Hunt, ex parte, 5 Eng., 284; Crise, ex parte, 36 Ark., 195; Good, ex parte, 19 Ark., 411.
    Bo that, unless something exists in the now Constitution conferring such power, the Supreme Court has no such juiisdiction. The new Constitution makes it very clear that the court i.s not. hound to exercise such jurisdiction, for where a known statute has been reenacted in terms, its known interpretation shall he presumed to have been also adopted by the Legislature. McKenzie, v. State, 11 Ark., 594.
    'The clause of tho Constitution expounded in Jones, ex peale, is Art. VI., sec. 2: “It (the Supremo Court) shall have power to issue writs of error,” &c., &c. Tho same language occurs in sec. 4, Art. VII. of new Constitution. It will he presumed, .then, that the makers of that Constitution adopted the former . interpretation, under which the court will not exercise original jurisdiction in matters of this kind.
   •Wiushire, O. J.

This is an original complaint by Jones, in the nature of an equitable proceeding, against the Mayor and Aldermen of the city of Little Rock, filed in this court, praying for a writ of injunction to be issued, restraining the defendants from issuing notes or bonds of said city, to circulate as money, &e.

The first question, we think the only one that this court can determine by this proceeding, is the question of jurisdiction. The jurisdiction of this court is conferred and defined by the fourth section of article seven of the Constitution, which declares that the Supreme Court shall have general supervision and control over all inferior courts of law and equity; it shall have power to issue writs of error, supersedeas, certiorari, habeas corpus, mandamus, quo warranto and other remedial writs, and hear and determine the same. Final judgments from the inferior courts may be brought by writ of error, or by appeal, into the Supreme Court, in such maimer as may be prescribed by law.

Thus it will bo seen that this clause of the Constitution limits the original jurisdiction of the Supreme Court to those writs enumerated in that clause, or such “other remedial writs” as may be properly used in the exercise of its appellate jurisdiction, or that may bo necessary in the exercise of the power of general supervision and control over the inferior courts; and- the power of this court, to issue the writs referred to in that clause of the Constitution, is confined to the full and complete exercise of its appellate jurisdiction, and the exercise of a general supervision and control over the inferior courts of the State, and does not extend to writs of injunction, upon filing an original bill of complaint in this court. If this court has the power to issue a writ of injunction at all, it' is only in aid of the exercise of its appellate jurisdiction, or in aid of its general power of supervision and control over the inferior courts conferred by the Constitution.

This doctrine was established by this court, after years of patient investigation, in the year 1851, by an opinion delivered by Justice Scott, which has ever since been accepted by this court as a correct determination of the question. That learned judge, in the case of Carnall v. Crawford County, determined ■ by this court at the January term, 1851, said that “the powers of superintending control, designed as they arc only to keep the subordinate courts in due bounds, should rarely, if ever, he . exerted either by the circuit courts over the county courts and' justices of the peace, or by the Supreme Court over the inferior - courts, otherwise than in harmony with ordinary appellate jurisdiction as regulated by law; and, therefore, before final.judgment, nothing short of a clear detect of power in the suin' ordinate court, or clear breach of dirty and irreparable mis--, chief, by delay, should make a case for interposition, otherwise, the extraordinary powers of superintending control would-.conflict with, and in effect supersede, the ordinary appellate jurisdiction as regulated by law.” See case reported in 6 Eng., 617.

This doctrine has been reaffirmed by all the adjudications in which this question of j nrisdietion has appeared, by this court, since 1851. Marr, ex parte, 12 Ark., 84; Allis, ex parte, ib., 102; Crise, ex parte, 16 Ark., 195,and Good, ex parte, 19 Ark., 411.

The former adjudications of this question, by thiscourt, were under a grant of jurisdiction by the Constitution of 1836. The present Constitution,, we think, does not extend the jurisdiction formerly possessed by this court, and wo think that the only jurisdiction this court can exercise, under the grant of • jurisdiction by the present Constitution, contained in the section and article above referred to, is that of appellate jurisdiction, and a “ general supervision and control over all inferior-courts,” which unquestionably brings this case within the doctrine-announced and reaffirmed in the cases cited. The question having been so elaborately discussed by the learned and able judges composing this court, when the cases cited were-decided, we think it would he superfluous in us to discuss it. further. -T"

The petition, or bill of complaint, in this case, not showing any inherent defect in the inferior tribunal having original jurisdiction of such eases, or the ineompetency of the incumbent of such tribunal, and therefore no failure of justice, the bill of complaint will he dismissed.


source: Caselaw Access Project

author: McClure, J.

license: Public Domain

text:
    Fletcher v. Oliver, Sheriff, &c.

      Taxation — rule of uniformity — exemptions. The constitutional provision that all real property shall he subject to taxation, except certain exempted hinds therein enumerated, amounts to an inhibition on the Legislature from exempting other real property.
    The Legislature could not have exempted the property -within the city of Little Rock from the tax levied hy the county court for the purpose of constructing roads in Pulaski county.
    A provision of the city charter of Little Rock, exempting the property of the inhabitants of that city from the payment of such a tax, would he unconstitutional.
    The rule of uniformity in taxation requires uniformity in the rate of taxation and in the mode of assessment. There must be an equality of burden.
    The uniformity must be coextensive with the territory to which it applies, whether it he the State, a county, township, city, town, or district.
    ( 'ity charter OB little rock — 39ih section. The 39th section of the charier of the city of Little Rock, providing that “the inhabitants of the city are exempt from working upon any road beyond the limits of the city, and from paying any tax to procure laborers to work on the same,” applies only to the inhabitants of the city, and not to non-resident property owners, and the exemption is of a personal nature.
    The 39th section of the city charter, and the State statute of 1868 for “opening- and regulating roads and highways, ’ ’ which provides for levying a comity road tax on the taxable property of the county, are not inconsistent with each other.
    Roads axd highways — ¿«a-es therefor. Under the title, “An act for open-, ing- and regulating roads and highways, ” may be included every act necessary 10 carry that design into effect.

      Money, in this act, is placed in the same class of adjuncts for building roads and highways as timber, stone, gravel and labor are, and as such, is not revenue in the constitutional sense.
    The road act of 1854-5 is not repealed by the act of 1868, and of itself would legalize the road tax in question.
    The road act of March 3, 1867, has no application to Pulaski county.
    Constitutional law. The clause of the Constitution requiring each act of the Legislature to embrace but qpe subject, which must be expressed in the title, was designed to prevent the passage of what are known as omnibus bills.
    A constitutional grant of power carries with it the right to exercise the means to carry the power into effect.
    Revenue laws. The constitutional provision requiring bills for raising revenue to originate in the lower branch of the Legislature, ddes not apply to the act of 1868..

      Appeal from Pulaski Chancery Court.

    Hon. T. D. W. Yonley, Chancellor.
    Watkins & Rose, Rice & Benjamin, for appellant.
    The inhabitants of Little. Rock are exempt from the county roacl tax. Acts 1866, p. 84.
    To the act of- July 16, 1868, which it is said repeals the act on which we rely, we make the following constitutional objections:
    1. It was a revenue bill, and originated in the Senate. Const., Art. 5, sec. 19.
    2. The act embraces more than one subject not included in its title. People v. Mitten, 82 III., 181; Hedges v. Rennaker, 8 Mete., (Ky.,) 257; Childs v. Monroe, iid., 75; Williams v. Pay-son,!1! La. An., 7; Bonnier ¶. Steele, 13 ¿<¿.,433; Wilkins v. Miller, 9 Ind., 100; Tobey v. State, id., 363; Gillespie v. State, id., 380 ; Rogers v. State, 6 id., 31; Davis v. State, 7 Md., 151; Cannon v. Hemphill, 7 Texas, 184; Mayor v. State, 4 Ga., 26 ; Laner v. State, 22 Ind., 461; Kuhns v. Krammis, 20 id., 490; Supervisors v. Heenan, 20 Min., 330; Meioherter v. Price, 11 Ind.. 199.

      But, admitting the validity of the last act, it does not repeal the former. Implied repeals are not favored, and a general statute does not repeal a special statute by implication. Baker v. Milwaukee, 14 Iowa, 214; Luke v. State, 5 Fla., 185 ; Beridon v. Barbier, 13 La. An., 458; Mobile, ¿•c., v. State, 29 Ohio, 573; Cass v. Billon, 2 Ohio, N. S. 607; Haywood v. Mayor, ¿•c., 12 Ga., 404; Town of Altoona v. Lasalle, 12 111., 339; McBae v. Wessell, 6 id., 153; McFarland v. State Bank, 4 Ark., 410.
    The Legislature may grant exemptions from taxation. State v. Crittenden county, 19 Ark., 368.
    The clause in the Constitution, as to uniformity of taxation, applies only to the State tax, and not to taxes for local purposes. Washington v. State, 13 Ark., 752.
    W. I. Warwick, and Gallagher & Newton, for appellee.
    The county court has jurisdiction over the streets of the city of Little Nock, concurrent with the mayor and aldermen, the control delegated to the city not being exclusive. Baldwin v. Creen, 10 Mo., 410; 9 Mo., 526; People v. High Com., 15 Mich., 347.
    The exemption in the city charter applies only to eight days’ labor imposed on the citizen by statute, and not to property tax, the two being distinct. 9 Coioan, 437; 15 Johnson, 358 ; 3 Barb., 439.
    The tax is levied for building bridges, and the term “ highway ” does not import a bridge. Acts, granting special privileges must be strictly construed. Angelí on Highway, sec. 40 and notes', Blackioell on Tax Titles, 478, 483; 2 Black., 722; 12 Wheat., 438; 12 Johns., 290; 10 Wend., 547.
    Subsequent statutes, making different provisions, repeal former ones. 7 Johns., 477; 4 Cow., 556; 11 Wend., 329; 16 Barb., 547.
    “Laws shall be passed taxing by a uniform rule,” etc. Art. 10, sec. 2, Const. See 5 Ohio. State Bep., 589.
    In this regard the Constitutions of Ohio and Arkansas are alike, and the principle of construction of a statute and a Constitution are the same; that is, where a State has adopted a clause of the Constitution of another State, which clause had received a judicial interpretation by the courts of that State, it is presumed to have been adopted with its interpretation. 3 Scam., 288 ; 2 Peters., 1; 13 111., 15.
    The road law of 1868 is not a revenue law. Harper v. Town of Mberton, 23 Ga., 570. Neither does it violate sec. 26 of Art. 5, of the Constitution. People v. Mahoney, 13 Mich., 481. An unconstitutional act does not repeal a former one. 14 Mick, 285 ; 26 Ala., 165 ; 11 Wis., 51.
   McClure, J.

Fletcher, on behalf of himself and all other tax-payers of the city of Little Rock, filed his bill in the Pulaski chancery court, praying for a perpetual injunction restraining Oliver, as ex-officio collector of taxes, and all his deputies, from attempting to or collecting a certain road tax assessed and levied by the county court of Pulaski county, on the property in said county, lyihg within the limits of the city of Little Rock.

Fletcher alleges that said injunction ought to be granted on the following grounds:

First. That said road tax is levied without authority of law, and in violation of the 39th section of the charter of the city of Little Rock, which declares that “the inhabitants of Little Rock are hereby exempted from working upon any road heryond the limits of the city, and from paying any tax to procure laborers to work upon the same.”

Second. That the act of July 16, 1868, is unconstitutional, because said law was not passed in the manner prescribed by the Constitution, in this: that said law is a revenue law, and that the Constitution requires that all revenue bills must originate in the House of Representatives, whereas the act complained of originated in the Senate.

The defendant, Oliver, answers and denies that the property of the inhabitants of the city of Little Rock is exempt from the payment of the road tax complained of, and asserts that the law of 1868, under which he presumes the tax, was levied, is not, in his opinion, unconstitutional, and that he will collect said tax from complainant and others, if not restrained from so doing.

The Chancellor, upon hearing, dismissed the bill of Fletcher with costs, and it is from this decree he appeals to this court.

Section 16, of article 15, of the Constitution of Arkansas declares:

“All laws of this State, not in conflict with this Constitution, shall remain in full force until otherwise provided by the General Assembly,” etc.

It therefore becomes proper to inquire whether the law, that these parties rely upon for protection, is in harmony with this clause of the Constitution; and, in doing so, art. X.,sec. 2, of that instrument is called to our attention, which reads as follows:

“Laws shall be passed, taxing, by a uniform rule, all moneys, credits, investments in bonds, joint stock companies, or otherwise, and also all real and personal property, according to its true value in money; but burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, public property used exclusively for any public purpose, shall never be taxed; * * * but the General Assembly may exempt from taxation personal property to the value of five hundred dollars to each tax-payer.”

Under the former Constitution, all laws that exempted property of the community from taxation deceived a strict construction, because all such laws are in derogation of equal rights.

The 39th section of the charter of the city of Little Nock declares that “ the inhabitants of Little Nock are hereby exempted from working upon any road beyond the limits of the city, and from paying any tax to procure laborers to work on the same.”

The complainant alleges that the words “ and from paying any tax to procure laborers to work on the same,” exempts himself and. all other inhabitants of the city from any tax levied by the county court for the purpose of constructing roads and highways .within the county of Pulaski.

If the complainant puts the proper construction on the meaning of these words, it then becomes us to inquire whether there is a conflict between this clause of the charter and that provision of the Constitution that says “laws shall be passed taxing, by a uniform' rule, all moneys, credits, investments in bonds, joint stock companies, or otherwise, and all real and personal property, according to its true value in money, etc.; but burying grounds, etc., Shall never be taxed.”

Now, in the clause of the Constitution just cited, it is declared that all real and personal property shall be taxed, subject, however, to the condition that the Legislature may exempt $500 to each tax-payer.

It will be observed that there is a radical change between the old and the present Constitution on the subject of taxation. Under the old Constitution, the Legislature was clothed with power to designate what species of property should be taxed; they could exempt the entire real property of the State from taxation, and collect the revenue from the personal property; they could have exempted the entire personal property of the State, and placed the burden of furnishing revenue on the real property. Not so with the present Constitution. It declares to the Legislature that all real property, except “burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, property used exclusively for any public purpose,” shall be taxed by. one uniform nile. It declares to the Legislature that uall moneys, credits, investments in bonds, joint stock companies, or otherwise, and all personal property,” except such an amount, less than $500,.as the Legislature may determine upon, shall be taxed by a uniform rule.”

The declaration that cdl real property, except certain kinds held for charitable and public purposes, specifically enumerated, amounts to an inhibition on the Legislature from exempting other real property from taxation. Again, the Constitution, in relation to personal property, limits the amount to $500, that may be exempted, which'precludes the idea that any other or further exemption would be made. The imperative-command of the Constitution is, that the Legislature shall tax,, by a uniform rule, all property except that specifically enumerated as being exempt from tax by the express terms of the Constitution.

Now, what would the complainant have this court do? Exempt his and all other property within the limits of the city of Little Nock from the payment of a tax levied by the county court of Pulaski county? The Legislature could not have made the exemption, if they had so desired, because of the plain provision of the Constitution. If the 39th section of the charter had, in express terms, exempted the property of the inhabitants of the city of Little Nock from the payment of this tax, such an exemption would have been a gross violation of the Constitution; and all the presumptions, that laws of a special character are not repealed by general statutes, would not have stayed the irrepressible march of the tax gatherer from crossing the imaginary line of the city and demanding the wherewith to aid' in “ opening the roads and highways” of Pulaski county. The mandatory terms of the Constitution is, that all property shall be taxed, and this command can not be evaded by indirection or circuity.

a Taxing by a uniform rule,” means by one and the same unvarying standard; uniformity not only in the rate of taxation, but uniformity in the mode of assessment, by which the value is ascertained. There must be an equality of burden. This uniformity must be coextensive with the territory to which it applies. If a State tax, it must be uniform all over the State; if a county, township, city, town or district tax, it must be uniform throughout the extent of territory to which it applies; the property within these legal subdivisions, established by law for the convenience of the people, must all pay homage to this one uniform rale. Each one of these subdivisions grew into existence to supply .a want in society, or to afford protection to property and the owner, and to the support of each. The Constitution proclaims the owners shall contribute.

Admitting, for the purpose of elucidation, the meaning contended for by the complainant, and the result .is, that the property of a portion of the tax-payers of Pulaski county is ■ exempted from taxation. The inhabitants of Little Pock are none the less inhabitants of Pulaski county.

The complainant states that his property is within the county of Pulaski, and so being, must come under the “ uniform rule” by which one inhabitant or tax-payer is required to pay the same rate per cent, on each one dollar’s valuation that another is.

Let us further examine the 39th section. Now, mark what it says: “The inhabitants of the city are exempt from work, ing upon any road beyond the limits of the city, and from paying any tax to procure laborers to work on the same.”

It is claimed that this section exempts the property of inhabitants within the limits of the city of Little Pock from this tax. Now, let us apply the test. Suppose a non-resident property owner and tax-payer, owning property within the city of Little Pock, had been the complainant, instead of an inhabitant in the present proceeding. “With what effect could he plead the 39th section as an exemption ? Is there an intelligent lawyer any where that would not reply that this law was only for the benefit of the “ inhabitants,” and had no application to or benefits to confer on the mere owners of property ? It is conceded, then, a non-resident tax-payer, owning property within the city, could not derive any benefits, protection, or exemption from this act.

Is this “ taxing by a uniform rule,” where the “ inhabitant” is relieved from a tax on his property and the non-resident is not ? The Legislature never presumed that they were making any such discriminations when they passed the law, nor did they. It is self-evident that the “ tax,” referred to in the law under consideration, was upon the “ inhabitant ’’ — not on property; that the Legislature designed to relieve the inhabitant from. Under tlie original charter of the city, passed November 1835, by the 9th section of the act of incorporation, “ the inhabitants” of the city were exempt from working on county roads. It will be observed that both these exemptions were confined to the “ inhabitants,” and therefore must have been of a personal nature. In 1866 the charter of the city was amended, and the ■words “ county road” left out, and the words “any road” -were placed in lieu thereof. The road law in force at the time (1866) recognized “military roads” as a separate class of roads from “ county roads;” and we are led to presume that the word “any” ivas placed in the amended charter, instead of the word “ county,” to the end that there should be no further cavil about the inhabitants being subject to work on any road outside the city, or pay commutation therefor. The law required labor from the inhabitant on the roads and highways. This labor could be commuted by paying the overseer two dollars per day. In time this demand for labor was regarded by the people as a “ tax,” -which went to pay other laborers for performing the labor, and this is the “ tax ” that the Legislature designed the inhabitants of Little-Eock should be exempt from paying. Having, as wo think, disposed of this branch of the case, we will now proceed to examine the law of 1868, which it is alleged is unconstitutional, and in conflict with the charter of the city.

"We are advised that general laws do not repeal special laws by mere implication. This fact is admitted, but we think that there is no conflict between the laws. The one provides for levying a county road tax on the taxable property of the county, the other for the exemption of the inhabitants of the city of Little Eock from performing labor, or paying any commutation therefor, on any of the roads outside of the limits of the city:

The first constitutional objection is, that the act embraces more than one subject in the same title.

The title of the act is for “opening and regulating roads and highways.” Under this title may be included every act necessary to carry into effect or accomplish the design. The object of this clause was to prevent combinations, by which various and distinct subjects of legislation should gain support, which they could not if presented separately. Is there a power conferred, or a duty enjoined, by any of the sections of the law of 1868, which, if left out, would not have retarded and delayed the construction of roads and highways ? In order to have a perfect system of roads and highways, road districts, overseers, timber, stone, gravel, labor and money would be required. Now, here are seven separate and distinct things or subjects that must be employed to accomplish the “opening and regulating roads and highways.” Now, the complainant contends that, under the provisions of the Constitution, seven separate and distinct acts of the Legislature must be passed to accomplish this one purpose.

It is claimed that bridges are not a necessary part of a highway ; that building bridges and making roads and highways are separate and distinct acts, and so repugnant to the Constitution that the law must be declared a nullity. We have before stated that, in our opinion, the clause under consideration, Art. V., sec. 22, was intended to prevent the Legislature from passing what are commonly known as “omnibus bills.” Now the mere fact that “bridges” happened to be enumerated as among the necessary adjuncts of a highway, does not, in our opinion, render this law open to any such charge, any more than the fact that the fees of certain officers are therein prescribed. It could be claimed, with equal gravity that the law is unconstitutional because it prescribes the fees of certain officers, and that that fact is not expressed in the title.

It is- the bóunden duty of courts not to defeat the will of the people, expressed through their representatives in the legislative halls, unless it is clearly manifest that some vested right or provision of the Constitution has been invaded. If the validity of every law is to depend upon the mere fact that the judiciary, if they had been legislating, would not have so arranged the law, we think that the Constitutional Convention reposed more confidence in the judicial department than sound discretion would warrant.

We are not prepared to say that cases might not arise, and we have indicated them, in which we should not hesitate to declare a law unconstitutional.' To hold otherwise would be an encouragement to inferior courts to assume to pass upon the fact as to whether a law contained more than one subject, and whether that one subject was clearly expressed in the title; endless litigation, without any practical benefits, would be the result of such a course.

Is this act of 1868, under consideration, a “revenue bill?” Webster defines revenue to mean “the annual produce of taxes, excise, customs, duties, rents, &c., which a nation or State collects and receives into the treasury for publicuse.”

The law under consideration authorized the levy of a tax to build bridges and roads. The title of the act was “An act opening and regulating roads and highways.” Can a bridge become a necessary part of a highway? If it can, then this is not a revenue law. It is a well settled principle of the law that whenever the Constitution grants a power, that it also grants the means by which it can be carried into effect. To construct roads and highways, money, in the opinion of the Legislature, was necessary. The complainant entertains a contrary opinion, and says, stop! this law, authorizing the opening of roads and highways, became unconstitutional the very moment that it provided for a tax to carry the law into full effect, because money constitutes revenue.

Labor produces money; the timber, stone and gravel used in the construction of the road may be converted into money. •It requires money to procure the labor, timber, stone and gravel that may be used in the construction of the roads. If one should contract with another for the building of a public road or highway from here to Hot Springs, over which the public could travel by the ordinary means of conveyance, we should expect the ravines and streams between here and that point to be placed in such condition, by bridging or otherwise, as -would render .the crossing as free from all danger as any other portion of the road.

Money, in this instance, is placed in the same class of adjuncts for building roads and highways that timber, stone, gravel or labor may be, and, as such, is not revenue, in the sense in which the word is used in the Constitution. The revenue there referred to was such as might be imposed for the support of the' State Government, and the payment of its ordinary expenses.

There are many laws that provide for raising money 'by taxation that are not revenue laws. The law under which the city derives the power to tax the property within its limits, originated in the Senate. The law organizing schools, and permitting the levy of a tax for that specific purpose, originated in the Senate, and no one ever dreamed of calling them revenue laws.

Then,' again, this tax does not depend on the law of 1868 alone for support, because the law of 1854-5 authorizes the same rate per cent, upon the taxable property of the entire county. The law of 1854-5 is not repealed, by implication or otherwise, and, in the event we should have held the law of 1868 void for either of the reasons urged, we should have been compelled to have sustained the levy of road tax under the law'before mentioned.

The law of March 21,1867, to which our attention has been called, as sustaining this levy of road tax, in the event the road law of 1868 should not be sustained, has no application to Pulaski county. The act simply amends chapter 149 of Gould’s Digest, and the law, as there found, did not apply to the counties of Jackson, Crawford, Pope, Lafayette, Phillips, Crittenden, Monroe, Columbia and Pulaski.

It is not necessary to discuss what effect the repeal of the charter of the city of Little Rock might have had in the disposition of this case.

We are of opinion that the decree of the Chancellor should be affirmed, and it is so ordered.


author: Gregg, J.

text:
    Jones v. Mayor and Aldermen of the City of Little Rock.

      Mandamus — injunction—who may ask this relief. Where the complainant seeks to enjoin an act, the commission of which would not affect his private interests, there is no case for equitable interposition.
    Equity will not hear an appeal for an injunction to cut off criminal acts of a body politic, where private rights are not involved. To warrant equitable interference, the injury must be great and irreparable.

    Where J. seeks to enjoin the city of Little Rock from issuing bonds, to circulate as money, and applies to this court for a mandamus to compel the Chancellor of Pulaski county to reinstate an injunction for that purpose, but does not show that injury might result to him, personally, no case is presented lor equitable interference.
    City scrip — power to issue. The act of December 21, 1864, amending the city charter of Little Rock, expressly prohibits the city from issuing bills, bonds or notes, to circulate as money.
    No city in this State has authority to issue bills, bonds or notes intended to circulate as money.
    A provision of a city charter empowering' the city to issue bonds in payment of, or as security for, debts, does not confer authority to issue bills, bonds or notes to circulate as money.

      Appeal from Pulaski' Chancery Court..

    lion. T. I). W. Yonley, Chancellor.
    Rice & Benjamin and Watkins & Rose, for plaintiff.
    The law against issuing change tickets (Gould ’s Digest, p. 244) has never been repealed or modified.
    The Chancellor based his decision, on a similar case, on the ground that, the bills being wholly void, no injunction should issue.
    But they are not void. Van Horne v. State, 5 Ark., 351. And if they were void the injunction ought to issue any way. Hamilton v. Cummings, 1 JohnsonChy. It., 520.

      Gallagher & Newton, and. W I. Warwick, for defendants.
    No power is vested in the Supreme Court to grant a mandamus, to compel a Chancellor to grant an injunction, by the Code. Chap. IV., Civil Code, pp. 99 to 106. Compare, also, sections 297, 299, 305, 309, 310.
    The omission of this power is evidently intentional. The plaintiff does not show any damage that has been, is now being, or is likely to be done, 'by the issuance of this money. Injunctions should be used cautiously, and only in cases of great necessity. Atty. Geni. v. Utica Ins. Co., 2 Johns. Chy., 378. And, unless the plaintiff shows some such damage, this strong power can not be exerted in his behalf. Morse v. Maclias Water Mill Co., ¿'C., 42 Maine, 123; Watrous v. Rodgers, 16 Texas, 410; Doolittle v. Supervisors of Boone County, 18 N. Y., (4 Smith,) 155, and cases cited; Susquehanna Bank v. Supervisors of Boone County, 25 N. Y, (11 Smith,) 312.
    If the bonds issued are, as claimed by plaintiff, mere nullities, a court of chancery would be performing a senseless and useless act to restrain that which is of no force.
    Plaintiff’s claim is based on the chapter in Gould’s Digest, page 244, forbidding the issuance of “ change tickets,” and also the act of April 9, 1869, in new Digest.
    Under this law, all persons whose names appear on such tickets are pecuniarily and criminally liable. Sections 1, 5, 6, 9,10, ‡0. Then plaintiff’s remedy, to stop the injury complained of, does not lie in injunction. 18 N. Y. (,supra); 2 Johns. Ch. {supra); Attorney General v. Bank of Niagara, 1 Ilopkins Ch., 354; Smith v. State, 21 Ark., 294; Ketchum v. Buffalo, 4 Hernán, (14 N. Y.,) 356; Davis v. Mayor of New York, ib., 506; Rosevelt v. Draper, 7 Abb., 108 ; Beople v. Fowler, ib., 158; Haft v. School Trustees, 16 Hoxoard, {N. Y.,) 140.
    If the city council had abused its power in the issuance of these warrants, and the same was shown on the bill, a motion for injunction might then be entertained, but not otherwise.
      Davis v. Mayor, $c., 1 Duer, 451; People v. Sturdivant, 9 N.Y., (5 Seld.,) 263.
   Gregg, J.

It appears that the plaintiff, on the 10th of May, 1869, presented to the Chancellor of Pulaski county, at chambers, his complaint for an injunction against the defendants, to restrain them from issuing bonds, notes, or city treasury warrants, intended to circulate as currency.

The Chancellor made a temporary restraining order, which he afterwards recalled, but he restrained the defendants for fourteen days, when the application was set for hearing in court. The bill then being presented, the court ordered the temporary restraining order dissolved, and refused to enjoin the defendants until the final hearing of the cause, ordering them restrained, conditionally, for twenty days.

The plaintiff has filed his motion and petition in this court for a mandamus, to compel the Chancellor to reinstate and continue such restraining order until the final hearing of the cause.

The plaintiff’s original petition is in behalf of himself, and all other tax-payers of said city; and he alleges that he owns a large amount of property in the city; that said mayor and aldermen have procured plates, engraved for notes, or bonds, which they are about to issue upon the credit of the city, and which are designed to circulate as currency, or money; that, for more than a year past, such bonds, or notes, have been issued by the city, under the authority of the council, and have circulated as money, being a common medium of exchange within the city; that the council have a large amount of such notes, or bonds, of denominations under thirty dollars, which they will put in circulation, if not restrained, and that no vote of the people of the city has been taken authorizing the issuing of such bonds; and that the council are about to issue and circulate the same on their own motion; and he prays that they may be enjoined.

The petitioner seems to be prosecuting this suit for the good of the community at large, and does not show wherein any individual injury will result. There is no allegation that he will be compelled to accept such bonds, or notes, for any city liability, or that he must receive such currency in trade, or suffer loss by refusing to do so.

However commendable it may be in an individual to carry on a suit for the whole community, in the result of which he has no interest over any other member of that community, to urge the perpetuation of an injunction for the common good of the city, such is not a fit case for equitable interposition. Courts are authorized to lend their aid, by these extraordinary writs, only in cases where personal injury is likely to result; and it is a well established doctrine in equity, that such applications can not be favored, Avhere the injury is not great, or irreparable.

In the case of the Trustees of Louisville against Gwethmay, etal., in which an alleged illegal tax was about being collected, the Chief Justice of Kentucky said: “ There is obviously no ground for the interposition of a court of equity in this ease. If the trustees had authority to levy the tax, they might, no doubt, rightfully collect it; and if they had no such authority, and should attempt to coerce the payment of the tax by distress, they would' be guilty of a wrong, for which a court of law would afford an adequate remedy.

“It is true a court of equity will sometimes interfere to prevent a wrong; but that is done, in general, only where the wrong is in its nature irreparable.” 1 A. K. Marshall, 554; Gilbert v. Mickel, Saunders Ch. Rep., 362; The Corporation of the City of New York v. Moses, et al., 6 Johnson’s Ch. Rep., 49.

In the case of Ketchum v. the City of Buffalo, 14 N. Y., 371-2, wherein the complainant, as a tax-payer, alleged he would be injured by being subjected to pay taxes to meet interest on an alleged illegal city bond, the court presents the following grounds:

The plaintiffs claim the right to maintain this action, for the reason that they are owners of real estate subject to taxation, and are each of them tax-payers in the city of Buffalo, to an amount exceeding one hundred dollars annually; and that an attempt to collect the tax to pay tile interest in question, would lead to and' cause a multiplicity of suits. The only title made to the relief demanded is; should the common council he allowed to assess and levy a tax to pay the interest of an indebtedness for city purposes illegally contracted? As is alleged, they, in common with all other tax-payers of the city, may be subjected to the payment of an infinitesimal part of such tax. They complain of the invasion of no private rights; they ask not the enforcement or protection of such a right, nor the redress or prevention of a wrong, done or threatened to them, as private persons, in their individual character; they complain that a great public wrong has been done; their municipal government has been unfaithful in discharge of a public trust confided to it; it has usurped and exercised powers neither in terms or by implication granted by the sovereign authority. * * It has, without authority, incurred a city debt, and they, as corporators, demand aid of the judicial arm of the State to redress the public wrong. * * * ft seems quite clear the only remedy to be exerted by the corporation, as such, is to remove, when opportunity presents, the unfaithful incumbents of governmental power.

They can make no case of private injury to be redressed, or private right to be enforced or protected. Any right they have, is as members or constituency of a local government, and which is common to all, and the wrong to be redressed is of a public nature, exclusively pertaining to a public duty. Parties to an action must show they are entitled to the relief prayed, or their complaint will be dismissed.

In this action Jones alleges he is a property holder and tax-payer in Little Rock; that the city council have transcended and again are about to transcend their authority; intirnating, but not positively asserting, that thereby they will injure him, and all other holders of taxable property; presenting the same features, in the main, but not as strong a ease as tlie one referred to; and we concur in the law and reasoning of the court there laid down.

It is urged by the counsel that the city bonds are being issued without any authority of law, and not merely so, but in palpable violation of a positive statute. "We certainly know of no law authorizing this or any other city, in this State, to issue bills,bonds or notes, intended to circulate as currency or money, and it is very clear that no provision in the charter of any city or town empowering its corporate officers to make or issue bonds in payment of debts, or as security for money boiTOwed, can be legitimately construed to embrace or authorize the issuing of small bonds, intended to be circulated as money, to be used as a medium of exchange in the community; but, take it for granted that the city is foisting upon the community an illegal and unauthorized currency, the plaintiff’s case is none the better thereby. In case of Craig, et al., v. State of Missouri, 4 Pet., 436, Chief Justice Marshall said: “It has long been settled that a promise, made in consideration of an act which is forbidden by law, is void.” If such are issued without author- • ity of law, then the city is not bound to redeem them. If issued in violation of a positive statute they are Amid, and the taxable property of the citizens can not be held liable for their redemption.

The statutes of the State, referred to by counsel, (Gould's Dig., ch. 29,) makes the issuance, signing, countersigning, indorsing or circulating of small notes, bills, bonds, change tickets, checks or shinplasters, not only illegal but criminal; and persons, AA’hother officers of corporations, cities or towns, or as private persons, Avho issue, sign, or countersign, &e., are not only liable to be sued and suffer a recovery of the nominal value of such notes, &c., but each one so engaged is liable to indictment and criminal prosecution.

By act of General Assembly, of December 21,1846, session acts, sec.' 3, p. 110, amending the charter of the city of Little Nock, it is provided: “The mayor and aldermen shall not have poAver, under any circumstances, to issue any change tickets or other evidences of debt, to circulate as currency.” It will be seen, by the careful wording of this act, that the Legislature fully intended to disallow and prohibit the city from creating a circulating medium of exchange, by the use of her credit, in any manner whatever. The corporation is not only prohibited from issuing notes, bills or change tickets, but in positive and express terms forbidden to issue, under any circumstances, “other evidences of debt to circulate as a currency.”

Had this statute been drawn with the sole view of inhibiting the executing of small bonds in payment of the current expenses of the city, &c., so the same could be used in trade as a medium of exchange, could more perspicuous terms have been used? "We think not.

Parties aggrieved must see that the proper laws are enforced, and the failure of officials in their execution affords no excuse to prostitute the high powers of a court of chancery. Such court can not hear an appeal for injunction to cut off void and criminal acts of a body politic, or its officers, when private rights are not involved. 1 Eden on Inj., p. 66, note 1.

We are of the opinion that the illegal and improper conduct alleged against the defendants, however important to the citizens, is not a fit case for relief by injunction. The motion for mandamus is refused.


author: Wilshire, C. J.

text:
    Woodruff v. Tilly.
    Confederate money. Leacli v. Smith, 23 Ark. Affirmed.

    The act of March 5, 1867, allowing defendants to set up and prove by parol different agreements from those imported by the instrument sued on, is unconstitutional and void.

      Appeal from Washington Circuit Court.

    Hon. William Story, Circuit Judge.
    Watkins & Ross, for appellants.
    L. Gregg, for appellee.
   Wilshire, C. J.

At tlie August term of tlie Washington county circuit court, Martha E. Tilly, as administratrix of John Tilly, brought suit against Benjamin E. Woodruff and Joseph D. Henderson, on a writing obligatory, executed by them on the 25th day of May, 1868, payable to John Tilly.

The defendant, Woodruff, pleaded one plea in bar, alleging “that the consideration for the execution of the writing obligatory, sued on, was a lot of mules and one filly, property sold and delivered by said John Tilly to said defendants; and, although not specified in said writing obligatory, it was, at the time of the purchase of said property, to wit: on the 25th day of May, 1863,-and at the time of the execution and delivery of said writing obligatory, agreed and intended, and was the understanding by and between the said defendant and said John Tilly, that said writing obligatory should be paid off and discharged, dollar for dollar, in the money or currency issued by the authority of the Confederate -States, known as “ Confederate money;” which agreement, or understanding, it is alleged, was in parol. The plea also averred that the money or currency issued by authority of the Confederate States, known as Confederate money, was worth, at the time of the execution of the writing obligatory, sued upon, &c., “ no more than twelve cents on the dollar in gold and silver.”

The plaintiff demui'red to the plea of Woodruff, in short, upon the -record, 'and, by leave of the court, dismissed as to Henderson, it appearing that no service had been had on him.

The court below sustained the demurrer, and the defendant, Woodruff, refusing to plead further, but electing to stand upon his plea, the court below rendered judgment in favor of the plaintiff, against defendant, Woodruff, for the sum of $1,600 debt, and $678^^ damages, and the defendant appealed to this court.

The only question presented for the determination of this court is that raised by the demurrer. It is evident that the defendant, Woodruff, by his plea, sought to avail himself of the defense attempted to be created by the act of the General Assembly of March 5, 1867, which was to allow defendants in this class of cases to set up, as a defense to written contracts, other and different contracts than those imported by the instrument on which suit is brought. The case of Leach v. Smith, decided at the last term of this court, presented the same question. In that case it was held by the court that the act of the General Assembly of March 5, 1867, (Laws of 1866-7, page 195,) allowing defendants to set up and prove, by parol testimony, other and different contracts and agreements than those the instruments sued upon imported, was unconstitutional and void, as impairing the obligation of contracts.

We think the court below properly sustained the demurrer; and, finding no error in the record, the judgment is in all things affirmed.

Judge Gregg, being disqualified, did not sit in this case.

Hon. John Whytock, Special Supreme Judge.


author: Harrison, J.

text:
    Stewart v. Houston.
    Sams on execution — attachment—sheriff's' return. No bond is required to be filed with a justice of the peace before an attachment may issue.
    Where a sheriff’s return has been amended in the court below, the original constitutes no part of the record in this court, if there was no order of the court directing it to be made part of the record.
    The party reading the amended return in support of his motion, in the court below, waives all exception to the defective original.
    A constable’s return to an attachment is conclusive against the defendant. If it be not true, the remedy is by an action for a false return.
    Where the sheriff’s return, in case of a sale, omits to set forth the manner of advertising, or that the sale was made between the hours prescribed by law, neither the sale nor the purchaser’s rights are thereby impaired.
    Legal presumption. The law presumes that every man, in his private official character, does Iris duty.

      Appeal from L,av:reme Circuit Court.

    lion. L. L. Mack, Circuit Judge.

      Byers & Cox and Garland & Nash, for appellants.
    If the proceedings before the justice were irregular, he having jurisdiction of the account and of the property attached, they were not void, but amendable, and the court will consider them as amended, whenever the question arises collaterally; and they should be so considered, so far as this proceeding was against the appellant, as he was a stranger to the suit. 5 N. C, 24; 1 Serg. and Paiole, 97; 5 Yerg., 443; 3 Murphy, 128; 3 Dev., 284, ib., 151; 5 N. C., 421; Coleman’s Cases, 55; 5 Wencl., 503.
    Courts favor judicial and final process. 9 Mass., 217; 10 Mass., 221; 11 ib., 89; 13 Pick., 90; 14 Pick., 212; 2 Brock., 14; Whiting Slack v. Beebe, et al., 12 Ark., 535; 5 Wend., 103; 4 Coto. Pep., 550; 3 Green., 29; 1 Iredell,--34. This point was fully considered by this court in the case of Whiting & Slack v. Beebe, et al., 12 Ark., 535 to 538.
    The only questions which can arise between the appellant and the appellee are,' the power in the sheriff to sell, and fraud in the appellant. Whiting Slack v. Beebe, et al., 12 Ark., 554; United States v. Arredondo, 6 Peters Pep., 729; Yorhees v. The Bank of the U. S., 10 Pet., 478.
    There was no pretense of any fraud or misconduct of the appellant; but it appears conclusive that he was a stranger to the proceedings before the justice and in the circuit court, and that he was an innocent purchaser for a valuable consideration, and without any notice of any irregularity or illegality in the proceedings whatever.
    .The only question, then, is, had the sheriff poioer to sell the property in dispute ?

    The judgment and return of the constable are evidence of the liability of the property for the payment of the judgment; and the execution is evidence of the sheriff’s general authority to sell the property. The truth is, the sheriff derives his power, not from the statute, but from the judgment and execution. Minor v. Selectmen of Natchez, 4 S. A- M., 631; Adamson, et al.,

      v. Cummins, admr., 10 Ark., 545; Whiting Slack v. Beebe, et al., 12 Ark., 554.
   Harrison, J.

This ivas a proceeding, by motion, in the circuit court, to set aside and vacate a sheriff’s sale o.f'a house and lot, attached in a suit before a justice of the peace.

A transcript of the justice’s judgment, which was by default upon notice by publication, was filed in the office of the clerk of the circuit court, and entered in the docket of common law judgments; and the plaintiff having executed to the defendant the bond required by section 41, of chapter 17, of the Digest, an execution was issued out of that court, directed to the sheriff, and the property attached was levied upon and sold, and Champ. T. Stewart became the purchaser.

At the same term at which the sale was made, Samuel Houston, the defendant in the suit, filed a motion to set it aside and vacate it. Stewart was notified of the proceeding, and appeared and resisted it.

The court sustained the motion, and Stewart excepted and appealed.

The following are the grounds of the motion: 1. That no bond was filed with the justice before the issuance of the writ of attachment. 2. That it did not appear from the constable’s I’eturn that the defendant had no personal property upon which to levy the writ. 3. That the defendant had- sufficient personal property in the township to secure the debt, which the constable, by proper diligence,' might have found. 4. That the sheriff’s return did not show the manner of advertising the sale, or that it was made between the hours prescribed by law.

The first ground is wholly untenable. The statute, upon the subject of attachments before justices of the peace, requires no bond of any kind to be filed before commencing the suit, and none is necessary.

The second is shown by the record to be untrue. The return, which is made part of the record by Stewart’s bill of exceptions, affirmatively and distinctly states that the defendants had no personal property within the township.

We find in the transcript, however, what purports to be a bill of exceptions, reserved by Houston, from which it appears that the court, at the instance of Stewart, against his objections, permitted the constable to come into court, and, in its presence, amend the return; but it sets out neither the original return nor the alleged amendment, and were it not wholly unavailable as such, by thus failing to show what the amendment consisted in, and to designate and point out with sufficient certainty the alleged error of the court below, to enable this coui’t to determine whether he has been deprived of any legal right, there was no order of the court directing it to be filed and made part of the record in the proceeding, and it therefore constitutes no part of it. See sections 6 and 9, chap. 50, Digest, and sections 107, 108, chap. 103, ib.; Lenox v. Pike, 2 Ark., 14; Lawson v. Hayden, 13 Ark., 316.

But, again, if it were properly part of the record, and otherwise sufficient as a bill of exceptions, he abandoned and waived his exception, by reading, as appears by Stewart’s bill of exceptions, the return, as amended, in support of his motion.

No proof was produced, nor could any have been admitted, to sustain the third ground, as the constable’s return is conclusive against the defendant. If it be not true, his remedy is by action against the constable for a false return.

The fourth, and remaining ground, “that the sheriff’s return did not set forth the- manner of advertising the sale, or state that it was made between the hours prescribed by law,” though shown by an examination of the return to be true, can hot affect the sale, or impair the purchaser’s rights under it. Because the sheriff omitted to state in his return such facts as show affirmatively that the sale was advertised in the manner and made between the hours prescribed by the statute, no implication arises from such omission against the regularity of his proceedings; but, on the contrary, the law presumes that he did his duty in the premises, and that every thing required *¶0 be done by him, was done, which presumption holds good until the contrary is made to appear. The law presumes that every man, in his private and in his official character, does his duty, until the contrary is proved. 1 Phill. on Ev., 642; Rex v. Stockton, 5 B. & Adol., 546; Bank of the United States v. Dandridge, 12 Wheat., 69.

The judgment of the circuit court is reversed, and the case remanded, with instruction to overrule the motion.


text:
    Belding v. State of Arkansas.

      Recognizance — ;judicial notice — liability of sureties — arrest by military authorities. The courts take judicial notice that in September, 1867, the civil State Government of Arkansas was provisional, and that the commanders of the United States military forces were clothed with authority to arrest and imprison citizens.
    Imprisonment by order of such military officers had the same force and effect as if upon a proper warrant from a civil tribunal.
    The act of God, of the obligee, or of the law, may excuse a surety bound in a recognizance for the appearance of his principal to answer an indictment.
    The recognizance of the surety, and the record of its forfeiture, raise a strong presumption of the liability of'the surety.
    If the surety can maintain by satisfactory proof that his principal was duly arrested and imprisoned by the military authorities at the time of the forfeiture, he will be excused from liability.

      Appeal from Hot Spring Circuit Court.

    Hou. Liberty Bartlett, Circuit Judge.
    Garland & Nash, for appellant.
    Attorney General, for appellee.
   Gregg, J.

It appears of record, that on the 9th day of May, 1867, one Kelly Caruthers and the appellant entered into recognizance in the sum of $120, before the sheriff of Hot Spring county, conditioned that the said Caruthers should appear at tire following September term of the circuit court of said county, to answe ran indictment for gaming. He failed to appear; a forfeiture was ordered, and an interlocutory judgment entered against him and the appellant; a scire facias was issued, and at the September term, 1868, the appellant appeared, and, for cause’why final judgment should not be rendered against him, responded that Caruthers had been arrested by the militaiy authorities of this department and imprisoned at Little Kock, and afterwards at Vicksburg, and could not then be produced in court. The State demurred to the response ; the court sustained the demurrer; the appellant rested; a discontinuance was taken as to Caruthers, who had not been served with notice, and final judgment rendered against Belding, from which he has appealed.

We might infer that the court sustained the demurrer because of defective averments in the response, but we pass to the main question: Does an arrest and imprisonment for another crime constitute a valid defense for the security upon a forfeited recognizance ?

The appellee’s counsel insist the record shows no legal imprisonment of Caruthers.

The courts judicially take cognizance of the status of the State at the date of the alleged forfeiture; and, in so doing, recognize the fact that the civil State Government was then provisional, and that the commanders of the United States military forces, by acts of Congress and orders of the President of the United States, were then clothed with power and authority to arrest and imprison citizens who willfully violated the laws, rules, and regulations prescribed by the Federal Government for their guide, action and enforcement, and, eonsequently, if Caruthers was imprisoned by the legitimate orders of the commander of this district or department, such imprisonment had the same force and effect as if he had been confined upon a proper warrant from a civil judicial tribunal.

In the case of the People v. Bartlet, 3 Hill, 570, which was a scire facias on a $1,000 forfeited recognizance, which was conditioned for the appearance of the principal to answer an indictment for larceny, the security plead that, after the giving of the recognizance, his principal had been indicted and convicted in another county, and upon that conviction was imprisoned; the court held the defense good; it was an act of the law which rendered it impossible for the security to produce him in court. The act of God, of the obligee, or of the law, may excuse. 3 Harrington, 333; Co. Lit., 206; 8 Cowan, 299.

In Hunt’s case, ml. 3, Letevdorfs Abridgment, the defendant was bailed upon a charge of treason. The security appeared and moved that the recognizance be estreated, showing by affidavits that the principal had been violently taken by a body of Prentíh soldiers, and carried to Prance. The Government attorney opposed, and he alleged that the arrest was connived at by the principal. The court said “ if connived at, it would work a forfeiture, and they can come in and controvert in exchequer; therefore a scire facias is awarded against the bail, on which it will finally bo determined, for it is a good plea, if true.”

The recognizance of the appellant, and the record of its forfeiture, raises a very strong presumption of his liability; but if lie can maintain by proof, legitimate and satisfactory, to the court, that Caruthers was duly arrested and imprisoned, and beyond the reach of his power at the time of the forfeiture, it will be a sufficient answer to the scire facias ; therefore, the judgment of the circuit court is reversed, and the case remanded for further proceedings.


text:
    Belding v. State.

      Appeal from Hot Spring Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.
    Garland & Nash, for appellant.
    Attorney General, for appellee.
   Gregg, J.

This ease involves the same questions decided between the same parties. No. 69.

The judgment is reversed, and'the case remanded, to be proceeded in according to law.


author: "WILSHIRJ8, C. J.

text:
    Green, admr., v. Brooks and wife.
    Breach of trust — claims against estates of deceased persons. A breach of trust creates only a simple contract debt.
    Real estate is now assets in the hands of the executor or administrator for the payment of all debts, whether by special or simple contract.
    Where J. is appointed trustee for a legatee, the trust creates no specific lien upon the property of J.
    A subsequent decree of a court of chancery, declaring J. a trustee, is not' in the nature of a judgment against him.
    Only those judgments are liens on real property of the deceased, which were rendered by courts within the State, and were capable of being liens during the lifetime of the deceased, and were subsisting as such liens at the time of his death.
    An affidavit of the justness of the demand must be filed by every person exhibiting a claim against the estate of a deceased person. •
    It is too late to file such affidavit after a suit in equity has been brought to establish a claim against the estate, and a motion made to dismiss the bill.

      Appeal from Phillips Circuit Court.

    II011. Jambs M. Hanks, Circuit Judge.
    "Watkins & Eose, and J. C. Palmer, for appellant.
    Under our practice, the general reservation as to sufficiency,, in an answer in chancery, has the effect of a demurrer. Lorette v. Longmire, 14 Ark., 339.
    The bill should have been dismissed, because the claim was not sworn to, under the statute, prior to the commencement of the suit. Gould’s Dig., chap. 4, sec. 107; Byan v. Lemon, 7 Ark., 78; Beirne v. Imboden, 14 id., 237 ; Walker v. Byers, id., 247 ; Biscoe v. Sandefur, id., 594.
    The claim here sued on was not excepted out of the general rule. Walker v. Byers, 14 id., 246; State Bank v. Tucker, 15 id., 241; Bennett v. Laioson, id., 414 ; Biscoe v. Madden, 17 id., 539 ; Marlatt v. Scantlancl, 19 id., 445 ; Bector v. Conway, 20 id., 84; Pope v. Byrd, 22 id., 537 ; McCoy v. Jackson, 21 id., 474; Hill v. State, 23 id., 604. Where the statute makes no exception, the court can make none. Erwin v. Turner, 6 Ark., 14; 13 id., 291; 16 id., 671; 20 id., 18.
    Pike, Dixon & Pike, for appellees.
    Where the husband has received the property of the wife as trustee, an actual possession will not vest him with the property, for he must have reduced it to possession as husband, and not in any other capacity. Taylor on Inf. and Cov.,p. 375, see. 246; Mayfield v. Clifton, 3 Stew., 375.
    The husband’s possession of the wife’s ehoses in action must be in the character of husband, to defeat her title by survivor-ship. 1 Williamson’s Exrs., (2 Am. ed.,) 616 ; Clancy’s Bights of Married Women, 139-140 ; Wall v. Tomlinson, 16 Ves., 415 ; Elms v. Hughes, 3 Lessausure, 160 ; Sturginger v. Hannah, 2 Nott $ McCord, 147.

      If the trustee mixes the trust money with his own, and uses it in his business, the profits of which are not known, he must pay interest. Brown v. Ricketts, 4 J. O. R., 303,; Dunscomb, et al., v. Dunscomb’s JSxrs., 1 J. C. R., 508; Manning, et al., v. Manning’s JSxrs., id., 527; Mumfordv. Murray, 6 J. C. R., 452; Miller v. Beverly, 4 Iluvyph., 415.
   "WILSHIRJ8, C. J.

This case may be briefly stated as follows : The complainant, Mary R. Brooks, late Mary R. Jackson, formerly Mary R. Scales, was one of the heirs and legatees of one Joseph H. Scales, late of Tennessee, deceased; that she, .and her then husband, Robert H. Jackson, together with the other legatee's of Joseph II. Scales, at the April term, 1867, of the .chancery court of the State of Tennessee, for the district composed of the county of Williamson, filed their bill to have the will and codicils thereto, of their said ancestors, construed, and the rights of the several legatees thereunder declared and settled, and to have trustees appointed for such of the legatees as required trustees under the will, among whom was the complainant, Mary R.; that that chancery court, in accordance with the prayer of the bill, ascertained and declared the rights of the .several legatees, under the will of Scalps, and appointed Robert II. Jackson, then the husband of Mary R., her trustee, to receive and hold in trust, for her and her children, the share she was entitled to under the will of her ancestor, and the income, interest and proceeds arising therefrom, to be applied to the support of her and her children ; that Jackson accepted such trust, and received the share of said Mary R., of the estate of her ancestor, Scales, consisting of one negro man, valued at $900, and the aggregate sum of $3,309‡^ in cash. Subsequently, Jackson died, and his widow, the complainant, Mary R., intermarried with her present husband, and complainant, Wm. Brooks.

The complainants allege that said Jackson, in his lifetime, as the trustee of Mary B., &e., in violation of his trust, appropriated the whole of the trust fund and property to his own use, and that the same had been incorporated into and become a part of his estate ; and they prayed that, in addition to general relief, their claim against Jackson be declared to be paramount to the claim of any creditor of said Jackson, and that the appellant be decreed to pay the- same to complainants accordingly, &c.

The defendant answered, admitting some of the allegations of the bill, but denied, in as positive..a .manner as defendants acting in a fiduciary capacity can do,, two allegations, namely: That alleging’the receipt by Jackson of the trust, fund and property, and the allegation charging the.appropriation of the trust fund .by Jackson, and the ■ incorporation thereof, into his own estate; to which answer the complainants replied in short upon the record. . .

At the hearing,, the defendant moved the court to dismiss the bill for want of the affidavit of the justness of their claim, required by law. The .court below overruled the motion to dismiss, made by the.defendant, and entered a final decree against the defendant, requiring him to pay to the complainants, out of the general assets of the estate of Jackson, in his hands.,, as other debts, the sum of $4,844^, in due course of the administration by him of said estate. The defendant appealed to this court, and assigned, as. principal error, that. ..the court below erred in overruling his motion to dismiss for want of the statutory affidavit.

Before discussing the question presented by the principal error assigned, we deem it necessary to inquire into the. nature and character of the claim set up by the appellees in' the court below, and which they sought, by their bill, to have declared by the decree of that court; a claim in the nature of a specialty debt against the estate of Jackson, to be paid out of the assets of his estate, prior to, and to the exclusion of, the other creditors of his estate.

■ There is, perhaps, 110 better settled doctrine in the equity jurisprudence of this country than that a breach of trust creates but a simple contract debt. In England, before the statute of 3 and 4 Will., 4, where, in the creation of a trust, the trustee bound himself, by deed, to apply the trust fund in a particular manner, that would create a specialty debt against him, and, after his death, against his estate; but, since that statute, the distinction between simple contract debts and specialty debts, in that country, seems to have become of but little practical importance. We find that the high court of chancery of that country, in the case of Adey v. Arnold, 15 Eng. L. and Eq., 268, where, by deed of indorsement under seal, appointing new trustees, and executed by them, a trust fund was assigned to the new trustees “ to hold unto them, their executors, &c., as their own money, property and effects; but nevertheless upon the trusts and for the ends and purposes declared by the indenture,” &c., it was held, by Lord Chancellor St. Leonards, that there was, in that case, no declaration of trust by the new trustees, and that the breach of trust did not constitute a specialty debt. That learned Chancellor, bringing various authorities in review on- the subject, said, “there is no better established general proposition than that a breach of trust does not constitute a specialty debt, but that it is equally clear that when there is a deed executed by the trustee, containing a declaration by him that he will apply the trust fund in a particular manner, but which he had misapplied, that such a breach would constitute a specialty debt, because be had declared, under seal, that he would not apply the fund as he ultimately did apply it,” citing the cases of Verron v. Vandry, 2 Atk., 119; Cox v. Bateman, 2 Ves., sen., 19.

Though it will be observed, that in England, where there has been given a priority, in some instances, to specialty debts, created by deed under seal, over simple contract debts, the. courts have been slow to imply a covenant from wmr’ds that do not import one; but -where the words of the deed, executed by the trustee, are clearly to the effect that the trustee undertook to apply the fund in the mode prescribed by the deed, and the deed was executed by him, it would be tantamount to a covenant ; but, as we have seen, in the case of Adey v. Arnold, it was held that where there were no words contained in the instrument creating the trust, signed by the trustee, Avhich could by any possibility raise a covenant, the breach is a simple breach of trust, and forms only a simple contract debt.

But in the United States, as in England, real estate is now assets for the payment of all debts, whether by specialty or simple contract, and in many of the American States, and particularly in this State, as we will presently see, the distinction between specialty debts and simple contract debts, in the administration and settlement of the estates of deceased persons, is abolished. By our statute, Gould’s Digest, chap. 4, sec. 99, it is provided that the priority of claims against the estates of deceased persons, are declared to be: “ 1. Euneral expenses; 2. Expenses of last sickness, wages of servants and demands for medicine, and medical attendance during last sickness; 3. Judgment rendered against the deceased, in his lifetime, and which are liens on the lands of the deceased, &c.; 4. All demands, without regard to quality, which shall be exhibited to the executor or administrator, properly authenticated, within one year after the first granting of letters on the estate,” &c.

It is not, nor can it be- from the nature of the trust reposed in Jackson, claimed that the trust creates a lien upon any specific portion of his property ; indeed, it would seem to be difficult to conceive a mode of creating a trust by which such a lien Avould be created against the rights of delinquent creditors Avithout notice — nor is it assumed that the decree of the Tennessee court, appointing Jackson trustee, is in the nature of a judgment against him. By this we-do not wish to leave the impression that the counsel for the appellees would for a moment entertain a proposition so absurd; but, admit for the present that the decree, appointing Jackson trustee, was a judgment against him, Avas it a judgment capable of creating a lien upon thé lands that he died possessed of, if he died possessed of any ? It certainly would not be contended that it was. Our statute, chap. 96, sec. 4, Gould’s Digest, provides that judgments and decrees rendered in the circuit court' shall be liens on the real estate of the person against whom they are rendered, situate in the county for which the court is held. Section 5, of the same chapter, provides that such liens shall commence on the day of the rendition of the judgment, and shall continue for three years, subject to be revived-, as provided by that chapter. In construing the 99i/i sec. of chap. 4, Gould’s Digest, prescribing the mode of the classification of claims against the estates of deceased persons, as relates to claims having priority over contract debts, it must be done with reference to the 4iA and 5th secs, of the 96th chap., of the Digest; and, in so doing, we think it is evident that it was the intention of the Legislature to make those judgments only, that were rendered by the courts within our own State, and that were liens or capable of being liens upon the real estate of the deceased, during his lifetime, had he possessed any, and subsisting as such liens at the time of his death. The trust reposed in Jackson, by the Tennessee chancery court, as trustee for his wife, the appellee, Mary R., and her children, was but an ordinary trust, imposing on him the ordinary duties of trustees of that class,.as that of taking possession of and controlling the trust fund or property, and of keeping, preserving and properly using the same according to the intention of the grantor, as can be drawn from the instrument creating the trust, and to duly account therefor; and a failure of the trustee to perform such duties, or any that may be imposed upon him, under our laws, on the subject of administration, would create a liability against him only in the nature of a contract debt; and, if to be collected from his estate after his death, would constitute a fourth class claim, unless the claim or liability against him had, before his death, been elevated to the dignity of judgment, and was, at the time of his death, a lien, or capable of being a lien, upon the real estate, had he died possessed of any. This brings us now to the consideration, directly, of the question raised by the appellant’s motion in the court below, to dismiss the bill for want of the affidavit required by law for the authentication of ■claims against the estate of deceased persons, &c. Chap. 4, sec. 102, Gould’s Digest, requires all persons exibiting claims against the estates of deceased persons, to append to their claim or demand the affidavit required by that chapter, of the justness of' the demand. The 101th section of that chapter provides as follows: “ If any affidavit, as required by this act for authenticating claims against deceased persons, be not produced in an action against an executor or administrator, for a debt against tlie deceased, the court shall, on motion, enter a judgment of non-suit against the plaintiff; and the affidavit must appear to have been made prior to the commeneement of the action.” The motion, in the court below, to dismiss, doubtless was made under that statute. The counsel for the appellees insist that the court below did not err, in overruling the motion of the appellant to dismiss, and in support of their position state that, “ it so happened that the motion to dismiss was put in before the filing of the affidavitand they gravely ask-, “ is this enough to turn complainants awray from the court, they standing there, offering to file the statutory affidavits ? Is this sort of sharp practice to be indulged in by a court of equity, and by this court, to the denial of justice ?” It might well be said that the complainant, in the court below', not having complied with the requirement of the statute, by filing the statutory affidavit, after the motion to dismiss for .the vrant of the affidavit v'as made, had no standing in court at all, because the statute requires that the affidavit should not only be made, but unquestionably requires it to appear to have keen made prior to the commencement of the action.”

From the record, in this case, vre find that the affidavit was not made until after the hearing and final decree in the court below, though the appellees offered to file the affidavit, after the appellant had moved the court to dismiss their bill for want of it, if the court required it.

This court, in a number of cases, have held that the affidavit required, sec. 102 Gould’s Digest, is necessary to entitle a claimant to bring and maintain a suit against an executor or administrator, and avoid a non-suit in case of objection being made for want of it. Beirne and Burnside v. Imboden, et al., admrs., 14 Ark., 237. In that case, the court, Justice Scott • delivering the opinion, said, “ when a claim is exhibited by the act of the party out of court, the claimant shall append to his demand an affidavit; when he exhibits by means of a proceeding in court, the affidavit must be produced, and it must appear to have been made prior to the commencement of the proceeding.” We can not see how any other conclusion could be arrived at. It is irresistible, from the language of the statute, that the court below had not the power to deprive the appellant of the defense afforded him by the statute, by means of the motion to dismiss, and which perhaps it was his duty to make, by allowing the appellees, at that stage of the proceeding, to come in and file the affidavit, or to dispense with the affidavit altogether.

This court held, in the case of Ryan, et al., v. Lemon, admr., 2 Eng., 78, that the objection, for want of the affidavit, might be taken at any time before final judgment, on motion of the defendant, though he had no plea in.

It was doubtless the design of the Legislature, by this statute, to furnish a protection to the estates of deceased persons, by requiring those presenting claims to the executor or administrator, who can not always know the condition of the affairs of his intestate, an affidavit of the correctness and justness of their claim; and the courts have no power to relieve claimants from the performance of that duty when they are seeking to enforce their claims by proceeding'in courts, and when objection is made on that ground. -To concede that the court had that power, would amount to a defeat of the object and will of the legislative branch of the Government, which, it is clear, the judicial branch has no power to do, so long as that branch of the Government keeps within its well defined constitutional limits.

The court below erred in overruling the appellant’s motion to dismiss the bill, and for this error, the decree of that court is reversed; and, a decree will be made by this court dismissing the appellee’s bill; and, decreeing the appellee to pay the costs in this court and in the court below.


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    Christian v. Crocker, et al.

    Equity pleadings — misjoinder of parties Where there is a misjoinder of parties plaintiff, in a bill, either of the defendants may demur.
    Where there is a misjoinder of parties defendant in a bill, only those defendants may demur who are improperly joined.
    The objection of misjoinder of parties as defendants in a bill is a mere personal privilege.
    Where Mrs. C. files a bill against C. and R. and B., R. and B. can not take advantage by demurrer, of the misjoinder of C., or of the non-joinder of other persons as parties defendant.
    Partnership — Where a firm contract with laborers, agreeing to pay them for their labor one-third the proceeds of the crop, the laborers are not thereby made members of the partnership.
    In such a case the share of the laborer is in the nature of wages, unliquidated at the time, but capable of being reduced to a certainty on the sale of the crop.
    Such an arrangement simply establishes a rule whereby the laborers are to be compensated.
    The laborers would have no power to bind the firm by their contracts.

      Appeal from Ashley' Circuit Court.

    lion. II. 13. Morse, Circuit -Judge.
    Watkins & Nose, for appellant.
    In chancery, if the misjoinder is of parties as defendants, those only can demur who are improperly joined. .Story Eg. PI., sec. 544; Gortland v. Nunn, 11 Arle., 731.

      In a bill to settle a partnership account none should be made parties except those who are parties to the partnership contract. Colly er Part., sec. 365 ; Story Eq. PI., sec. 99 ; Peay v. Wright, 22 Ark., 198.
    The bill was not multifarious. Story Eq. PL, sec. 27.
    Garland & NaSh, for appellees.
    The defect as to parties, being apparent on the face of the bill, could be taken advantage of by demurrer. Porter, et al., v. Clements, 3 Ark., 364; Story’s Eq.'Pl., 74, a., 77,236,237', 540,545.
    Crocker, having settled his partnership affairs, was out of the matter of dispute, and really had uo interest in the suit at all. Having no interest in the suit whatever, he was an improper party, and the demurrer was proper for this defect. 3 Ark., sup.; Story, sup., and 135-9.
    As Crocker had settled, and what interest, if any, he had, was levied on by Bell & Co., by attachment, they alone were the parties proper, as representing his interest, and not Crocker; as, by this proceeding, Bell & Co. became substituted in place of Crocker, as to ¡partnership property. 1 Story’s Eq. Juris., secs. 677-679.
    The laborers on the place, being directly and immediately interested in the result of the suit, were proper parties; and, in not having them as parties, the bill was defective.
    The bill united defendants improperly; besides, the subject matters were separate and distinct. For both causes the bill was multifarious. 1 Story Eq. Jur., secs. 661 and 671, et seq.; Gartland v. Nunn, 11 Ark., 720 ; 2-Uowell, 20 Ark., 25.
   McClure, J.

It appears that Mary K. Christian and Evans L. Crocker entered into a partnership for keeping house and cultivating a plantation, in the year 1867. As the fruit of their labors they produced and 'gathered 700 bushels of corn, and 16 bales of cotton, of about 450 pounds each.

On the 24th of December, 1867, the parties seem to have looked over the partnership accounts, and, from that examination, Crocker became satisfied that his interest in the crop would not pay his proportion of the partnership accounts, then due, and turned his entire interest over to Mrs. Christian.

On the 13th of January, 1868, the firm of S. S.- Bell & Co., attached the interest of Crocker in the 16 bales of cotton, for the sum of $191^57 that said Crocker -was indebted to said Bell & Co.

Mrs. Christian, thereupon, filed her bill, setting forth the partnership between herself and Crocker, with a full exhibit of all the assets and liabilities. In Jhis bill she makes Crocker and Bell & Co. parties defendant, and asks that a final settlement may be made of their partnership transactions.

In stating the indebtedness of the partnership, the plaintiff incidentally alleges that the laborers are to have for their labor one-third of the proceeds of the products produced.

It does not appear that Crocker -was served with process; but, at the February term, 1868, of the Ashley circuit court, Rolfe & Bell, who composed the firm of S. S. Bell & Co., filed their demurrer to the bill of Mrs. Christian, on the following grounds:

First. That it appears by said bill that E. L. Crocker, who is made a party defendant, has no interest -whatever in the subject matter or object of this suit.

Second. That the laborers employed by said, complainant, and said E. L. Crocker, and referred to in said bill of complaint, have an interest in this suit, and are entitled to be made parties.

Third. Said bill is multifarious.

At the September term, 1868, the court sustained the demurrer, plaintiff took her exceptions, declined to amend her bill, and thereupon the court dismissed her bill, and she prayed an appeal to this court, which was granted.

"We understand the law to be, if the misjoinder is of parties as plaintiffs, that all the defendants may demur; but, if the misjoinder is of parties defendant, those only can demur who are improperly joined. Story Eq. Pl., sec. 544. Bell & Co. do not complain that they are improperly made defendants, but insist that Crocker is. The objection of misjoinder of parties, as defendants in a bill, is a mere personal privilege; and, consequently, those only can demur for that cause, who are improperly joined. Gartland v. Nunn, 11 Ark., 721.

The next objection is, that the laborers have an interest, and that they have not been made parties. The laborers were not members of the copartnership. The statement or fact that they were to have one-thir’d the proceeds of the crop for their labor, was a mere arrangement between the partnership and the laborers, whereby a compensation might be determined; a mere share in the nature of wages, unliquidated at the time, but capable of being reduced to a certainty on the sale of the crop. It ydll hardly be contended that these laborers had a right to contract any indebtedness against the firm of Christian & Crocker. If A lets B have his plantation, team, and farming implements, and B agrees to cultivate the same for one-third the products, this does not constitute a partnership, it simply establishes a rule whereby the labor of B is to be compensated ; a rule by which the tenant may be paid.

It is said the bill is multifarious. We are unable to see wherein independent and distinct matters have been joined. The plaintiff asks for a settlement of the partnership, and an application of the assets to the extinguishment of the liabilities, and that, if there be a balance due to Crocker, it may be applied on the debt due from Crocker to Bell & Co. ■

The judgment is reversed, and this cause remanded to the Ashley circuit court.

Judoe Harrison being disqualified, did not sit in this case.

Hon. John ‘Whxtock, Special Supreme Judge.


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    Smith v. Clayton, et al.

      Legacies — probate court — appeals. Where W., sr., bequeaths a legacy to S., appointing W., jr., his executor, who dies without having paid over the legacy, S. should seek it from the estate of W., sr.
    S. having presented his claim to the executor of W., jr., and obtained an allowance of it by the probate court, the executor appealing to the circuit court, which found error and remanded the case to the probate court, there was no final judgment in the circuit court, and this court, on appeal, has no jurisdiction.
    In such a ease the circuit court, finding error, must try the case de novo.

      Error to Drew. Circuit Court.

    Hon. William M. Harrison, Circuit Judge.
    WAtkins & Kose, for plaintiff.
    If there was error in the proceedings of the probate court, the circuit court should have heard the case de nove, and given such judgment as the probate court should have given, certifying its. judgment to that court. Dillard v. Baines, 5 Ark., 301; Harris v. Foster, id., 717.

      Quere. Is the case of Bennett v. Worthington, 24 Ark., 487, declaring that the statute of limitations ran, during the rebellion, to be considered as law under the present Constitution ?
    Garland & Nash, for defendants.
    It is very clear that, under our statute, the claim was barred when, presented, and the executors acted as they should have done in rejecting it. See Gould’s Dig., chap. 4, sec. 99; 14 Ark., 246; 15 ib., 41; 18 ib., 334; 17 ib., 539 ; 19 ib., 445; 20 ib., 84; 22 ib., 587; 23 ib., 604. And, by the foregoing authorities, it is made the duty of executors or administrators to plead the statute of non-claim.

      The statute of non-claim is sweeping, and makes no exceptions, and this brings the statute of limitations against the estates of deceased persons; and, there being no exceptions in the law, the courts can not make any, but must permit the statute to operate as the Legislature has made it. Pryor v. Pyhtrn, 16 Ark., 671; Bennett v. Worthington, 24 ib., 487.
    We submit, that, in suing for his legacy, he should have proceeded upon the bond of the executors of Watson, if, after they had administered the estate, they neglected or refused to pay him said legacy. See Clark, et al., v. Shelton, 16 Ark., 474, which was afterwards affimied in 23 Ark., 94.
   McClure, J.

It appears from the record, in this case, that George B. Watson, sr., made a will, wherein he appointed George B. Watson, jr., his executor. In a short time afterward, George. B. Watson, sr., died. . •

This will -was duly probated, and George B. Watson, jr., qualified as such executor, and entered upon the discharge of his duties. In June of 1859, George B. Watson, jr., made a partial settlement with the probate court of Desha county, whereby it appears that the sum of $2,478^^ was shown to be due to John Floyd Smith, one of the legatees of George B. Watson, sr.

In September, of 1861, George B. Watson, jr., died, and by his last will and testament appointed James P. Clayton, Harriet Watson, (his widow,) and Lewis W. Watson (his son,) his executors.

On the 21st of September, 1865, John Floyd Smith made out a claim against the estate of George B. Watson, jr., as one of the legatees of George B. Watson, sr., for $2,4783^5-, with interest to date, and presented the same to James P. Clay tom one of the éxecutors of George B. Watson, jr., for allowance, who rejected the same on the ground of non-claim within two years from the date of the’ issuing of letters testamentary.

The same account or claim was presented to the probate court, for classification and allowance, placed in the third class and allowed, to which action of the. probate court the executors excepted, and appealed to the circuit court. The cause came on for hearing in the circuit court, and the court says “ it doth appear that there is manifest error in the judgment of the probate court allowing the same; it is therefore considered by the court that this cause be remanded to the probate court of Desha county, with orders to dismiss the demand.

The counsel for the appellant cites us to Dillard v. Baines, 5 Ark., 302, and Harris v. Foster, 5 Ark., 717. In Dillard v. Baines, the circuit court said, “ there is error in refusing to class the claim;” and ordered that “ this cause be remanded back to the said probate court, and that said court proceed to classify the same according to law.”

There is a great similarity in these cases. Sec. 201, chap. 4, of Gould’s Digest, says: “If the circuit court should be of opinion that the court of probate erred in relation to any material question of law or fact, the circuit court should try the matter de novo; and such court shall make the same order and decision that ought to have been made by the court of probate.”

Chief Justice Bingo delivered the opinion of the court, in Dillard v. Baines, and he says: “ The remanding of the case to the probate court was wholly unauthorized by law, and left the case without any final judgment. The circuit court had no power except to enter of record the decision, order, or judgment that ought to have been made.”

The learned judge says that that case is similar to that of Reagan v. Mitchell, 4 Ark., 630, wherein it was held that “ if, on appeal from the probate court, the circuit court acts only on the exceptions taken, but wholly omits, on sustaining the exceptions, to try the matter de novo, or make such order and decision as should have been made by the probate court, the judgment is not final, and error does not lie to this court.”. The learned judge continues by saying that “this court has no jurisdiction of the ease.”

. It appears to ns that the legacy of Smith must come from the estate of George B. Watson, sr., ancl that he must seek it through that channel. What has become of the bond and the sureties of the executors? For whatpupose was it given, and where and who is the present legal representative of the estate? are questions that counsel might study with profit.

This case is ordered to be dismissed, for Want of jurisdiction.

Judge Harrison, being disqualified, did not sit in the case.

Hon. John Whytock, Special Supreme Judge.


author: Vhytock, Special J.

text:
    Keizer v. Seabrook.

      Appeals — Mil of exceptions. Unless the bill of exceptions negatives the fact of other testimony having been introduced, either expressly or by implication, this court 'will- presume that facts were proven, without proof of which the verdict below could not have been found.
    Where the bill of exceptions fails to show the grounds of an objection to testimony, this court, on appeal, can not review the ruling thereon.
    New trial. — Where it does not appear, from the bill of exceptions, that the party moving in the court below for a new trial, on the ground of newly discovered evidence, showed that he had used due diligence to procure the same in time for the trial, or that he will ever be able to procure the same, this court will not reverse the order of the court below, refusing a new trial.

      Error to Drew Circuit Court.

    Hon. William M. Harrison, Circuit Judge.
    T. D. W. Yonley, for plaintiff.
    The pleas interposed by the defendant below put in issue both the wrongful detention and the plaintiff's right of property, and the burden of proof is upon the plaintiff. Patterson v. Folder, 22 Ark., 396.

      To maintain these issues the plaintiff will be held to prove that he had, at the time of the institution of the suit, a general or special property in things replevied, coupled with the right of immediate possession. Wilson v. JRoyston, 2 Ark., 315; Got, ?>. Morrow, 14 Ark., 60S; Dobbins v. Oswalt, 20 Ark., 622.
   Vhytock, Special J.

This was an action of replevin, in the Drew county circuit court. It was submitted to the court, sitting as a jury, and judgment given for the plaintiff below, Seabrook, at the April term, 1866. The defendant below, Keizer, appealed to - this court, and the principal cause of error assigned by him is, that the verdict is against the evidence; that the plaintiff below did not prove either a general or special property in the buggy replevied.

The bill of exceptions, in the case, has been carefully examined, with reference to the testimony produced on the trial. It discloses the fact that two witnesses were sworn on behalf of said plaintiff, and purports to set out their evidence; but, that this was all the evidence introduced on the part of the plaintiff' below, is not expi’essly alleged, nor can we ascertain, even by implication, from the bill of exceptions, that such was the case.

It was held by this court,in Mitchell, admr., v. Byrd & Dunn, 7 Ark., 408, and in Moss v. The State, 17 Ark., 331, that, unless the bill of exceptions negatives the fact of other testimony having been introduced, either in express words or by necessary implication, this court will presume that facts, without proof of which the verdict below could not have been found, were proven on the trial.. The cases we have cited settles this point against the plaintiff'.

Another cause of error assigned, by the plaintiff', was the overruling of his objections, made at the trial, to the evidence of the witness Nolly; but the bill of exceptions does not state upon what grounds, or for what reason, the objection was interposed.

The other error complained of is, that the circuit court erred in not granting a new trial, because, as appellant alleges in his motion, “he had discovered, since the trial, that he could prove by another witness — one Ragland — that he paid him forty dollars for the blacksmith work alone, done on said buggy, and he did not know at the time of the trial that he could make such proof.” If this alleged proof was material, or not cumulative, the plaintiff wholly failed to make a sufficient showing for a new trial; as he does not present facts proving that he had used any degree of diligence to procure this evidence. Nor, indeed, is it shown, in any manner, that the appellant will ever be able to produce the witness named, in court.

To adopt the language' of this court, in Borland v. Skinner, 11 Ark., 671, an authority which settles this point, “for aught that appears to the contrary, the court may have had reason to be satisfied that the witness could never be found.”

We find no error in the proceedings of the circuit court, and the judgment therefore is affirmed.

Judge Harrison, being disqualified, did not sit in this ease.'

Hon. John 'Wiiytock, Special Supreme Judge.