text:
    Parham vs. Izard.
    The ease of English v. Oliver, coll., 28 Ark., 317, holding- that Treasurer’s, certificates were receivable for State, county and municipal taxes, reaffirmed.
    APPEAL from St. Francis Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Howes, Yonley and Whipple for appellants.
    Treasurer’s certificates are bills of credit, and void under the constitution of the United States. Briscoe v. Bank of Ky., 11 Pet., 257; Byrne v. Missouri, 8 Pet., 40; Craig v. Missouri, 4 Pet., 410. It is an attempt to make a legal tender. Section 10,. article 1, of United States Constitution. The act impairs the obligation of contracts. Dartmouth College v. Woodward, 4 Wheat., 694, 695 •, Cooley’s Constitutional Lim., 235, 237. It. violates art. 10, sec. 15, Constitution of Arkansas, ’68. No law making them receivable for city and school taxes. Act of 1871 was the only act in force prescribing the sole rule. Sedg. on Stat. Law, 126 ; Pulaski Go. v. Downing, 10 Ark., 589. The former acts had expired. Price & Barton v. Page, 25 Ark., 527. The act of 1871 covered the whole ground and is the only one affording a rule.

      Attorney General Hughes, for appellee.
    Cited Cooley’s Const. Lim., 87, 173-4, 276, (side p.) 240, 241; Abbott’s Digest Law of Corp., 484, secs. 16-20. State scrip not bills of credit. Briscoe v. Bank of Ky., 11 Peters, 257; Graig v. Mo., 4 Pet., 410; Barrington v. Bank of Ala., 13 How., 12,
    On the matter of contract. English v. Oliver, 28 Ark., 317; State v. Chicot Co., 12 Ark., 725; Woodruff v. Trapnall, 10 Howard U. S., 203; Curran v. State, 15 How., 304; Freeman v. Nicholls, 8 Wallace, 44; McGee v. Mathis, 4 Wall., 143.
    Political corporations have no taxing power except as granted. 27 Ark., 419, 467; Blackwell on Tax T., 523 etc.; Dillon on Mu. Corp., sec. 59; Cooley’s Const. Lim., 276.
    No constitutional rights are infringed by making scrip receivable for taxes. Cooley’s Const. Lim., 192, 193; Dartmouth College v. Woodward, 4 Wheat. 518; Montperier Academy v.' George, 14 La. Ann., 406 ; Trustees of Schools v. Saiman, 13 111., 30; Layton v. N. O., 12 La. Ann., 515; Burrow of Dunsmire’s Appeal, 52 Tenn., 379; Burns v. Clarion Co., 62 Tenn. St., 422; Cambridge v. Lexington, 17 Tick. 222; Att’y Gen’l'v. Cambridge, 16 Gray, 247; City of St. Louis v. Allen, 13 Mo., 414.
   Harrison, J.:

The appellee, the owner of two lots in the Town of Forrest City,, in the County, of St. Francis, on the '29th day of March, 1875, tendered to the collector of taxes of said county, the appellant, to pay the taxes thereon for the year 1874, the amount' of the state sinking fund tax and county bonds’ interest’tax in United States currency, and ninety dollars, the amount of other state, county, town and district school taxes in treasurer’s certificates or state scrip, issued prior to the adoptiou of the present constitution. The collector refused to receive the treasurer’s certificates for these taxes, and the appellee applied to the Circuit Court for á mandamus to compel him to receive them.

In response to the petition, the collector denied that such certificates were legally receivable, either for county, municipal or district school taxes, and also alleged that he’ had been directed to receive, by an order of the County Court, nothing for county taxes but United States currency and the warrants of the county, and by an ordinance of the common council of said town, for its taxes, but such currency and its own warrants. Appellee demurred to the response. - The court sustained the demurrer, and granted the peremptory mandamus.

All the questions presented in this case, except as to the effect of the order of the County Court, and the ordinance of the common council, were passed on and decided in the case of English v. Oliver, 28 Ark., 317.

The court in that case, after full and thorough consideration, reversed its former decision in Wells v. Cole, 27 Ark., 603, and held the acts under which such treasurer’s certificates were issued and made receivable for taxes, not in conflict with either the State or National Constitution, and that the same are receivable' for all state, county, municipal and school taxes not especially excepted in said acts. We have, as they have been elaborately argued, again given them a careful consideration, but find no reason to disturb the decision in that case.

The order of the County Court, and the ordinance of the common council inhibiting the collector from receiving the certificates, were in contravention of law and void.

There was no error in the judgment of the Circuit Court in issuing the mandamus and the same is affirmed.


source: Caselaw Access Project

author: S. W. Williams, Sp. J. :

license: Public Domain

text:
    Chowning vs. Barnett.
    1. Pleading: Before justice of tlte peace.

    Formal pleadings are not required in proceedings before a justice of the peace, and, on appeal to the Circuit Court, a demurrer should not be sustained to the complaint.
    2. Appeal from Justice of the Peace: Same cause of action must be tried.

    On appeal from a justice of the peace, the same cause of action must be
    tried in the Circuit Court as was tried before the justice.
    3. Proceedings to enforce Ear loyePs Lien, etc.

    The 5th section of the labor system act, approved March 8th, 1867, gives the employer no lien for supplies upon future wages of the laborer. The 3d. section confers a lien for supplies on the product of his labor. Proceedings to enforce a lien under the 5th section must have been commenced within ninety days after the abandonment.
    4. Statutes: Effect of the repeal of the labor system act.

    The act of March 8th, 1867, was repealed by the act of April* 22d, 1873, and if it had been remedial merely, the repeal would have defeated any future proceedings under it; but inasmuch as it also provided for damages, the repeal did not affect future proceedings under the act for their recovery.
    APPEAL from Dorsey Circuit Court.
    Hon T. E. Sorrejas, Circuit Judge.

      M. L. Jones for appellant.
    No complaint was necessary to obtain the writ of garnishment, only the account filed and affidavit. Acts 1867.
    The limitation of ninety days does not begin until the expiration of the contracted time of service.
    The demurrer was bad; there was good cause of action against defendants. )

      The proceeding as to Barnett was in rem. He had nothing to do with the cause of action against the principal defendants. He should have moved to quash. ' Childress v. Fowler, 9 Ark., 159.
    Error in the printed act suggested, fifth line of section 5.
   S. W. Williams, Sp. J. :

This was a suit instituted by Chowning on the 10th day of January, 1874, in which he filed before a justice- of Dorsey county his complaint, with an account for supplies furnished, and affidavit required by the 6th section of the act to regulate the labor system of this State, approved March 8th, 1867, and a contract for labor.

By the complaint, and other papers in the case, it appears that on the 12th day of March, 1873, the defendants in the suit, S. B. Henry, William Sewell and R. T. Henry, jointly agreed with Chowning to make and gather' a crop upon his land, which contract was filed with the complaint, together with a bill of particulars for' supplies furnished defendants named in the complaint, by which a balance was claimed as being due Chowning from these laborers of $143.25. That about the first of April, 1873, defendants abandoned said crop and were employed by N. V. Barnett; that the plaintiff notified Barnett of S. B. Henry, William Sewell and R. T. Henry’s indebtedness to him, in accordance with section 5, of th© act above mentioned, and that plaintiff would enforce the statutory lien against the defendant’s future wages; that the defendants remained in the employment of said N. V. Barnett long enough, since said notice of their indebtedness to plaintiff, to secure in said N. V. Barnett’s hands plaintiff’s debt and cost. Judgment is prayed against defendants, the laborers, who had entered into the joint written contract, which was the foundation of the suit, and N. V. Barnett for one hundred and 25-100 dollars. •

The summons (with a writ of garnishment against Barnett) was issued on 10th January, 1874. On the 12th day of February, the principal case was tried, in the justice’s court by jury, on the claim of plaintiff and offset of defendants, who rendered a verdict for Chowning for $30. On the same day Barnett answered the garnishment, denying any indebtedness to the defendants in that action. On this answer, he was discharged, and from this judgment discharging Barnett, Chowning appealed to the Circuit Court. Judgment was rendered in his favor, by the justice, against the Henry’s and Sewell for thirty dollars, on the verdict.

From this judgment there was no appeal by either party.

In the Circuit Court Barnett demurred to the complaint, and the court sustained the demurrer, and dismissed the action. Chowning excepted and appealed to this court and’here contends, that the complaint was unnecessary, and immaterial, and that the court erred in sustaining the demurrer. In this he is undoubtedly correct, and the court certainly erred in noticing any formal written complaint-, in a case pending before it on appeal from a justice of the peace, where no special pleading is required.

If the plaintiff showed a cause of action in his contract, account and affidavit under the act, he had a case which should have been tried upon the merits. In these papers he had to show substantially the whole nature of his case, which discloses a proceeding instituted after the lapse of more than ninety days from the abandonment of his service by the defendants, which proceeding was based upon the fifth section of the act, and was intended to enforce the statutory lien contemplated by that section, on wages dire from Barnett, as the same cause of action which was tried before the justice of the peace must be tried in the Circuit Court. See Gantt’s Digest, section 3837. There could be no other or different cause of action tried in the Circuit Court in this .case. Therefore it would be of no value to reverse this cause for a formal error, if the plaintiff discloses no cause of action upon which a judgment could be based.

The first and second sections of the act of 1867, provide for the making of laborers’ contracts; section three provides that specific liens are hereby reserved, upon so much of the produce raised, and articles constructed or manufactured by laborers during the contract as will secure all moneys, and the value of all supplies furnished them by the employer, and all wages or shares •due the laborers, etc.

This section was intended to give reciprocal liens on produce, for supplies to the employer and wages to the laborer, and was specially applicable to the most common of labor contracts of Arkansas at that time — share cropping.

This section is the only one Avhich secures any lien for supplies, and this lien is on the product of the labor, the liens created by this act are statutory, and we cannot extend them by construction.

The fourth section, in case the employer dismisses the laborer without cause, before the expiration of his term, makes him liable for full wages and expressly provides for a lien for the wages on the product of the labor as proAdded in the third section.

But in the fifth section, upon which this suit is based, there is a lien given upon future wages, for damages provided for and liquidated in the act; no lien is given for supplies on future wages in this or any other section -of the act.

Section five of the act provides “if any laborer shall without cause, abandon his employer, prior to the expiration of his contract, he shall thereupon be liable to him for the full amount that would, at the expiration of the contract, have been due him from the employer.”

ChoAvning’s counsel contends that there is a manifest error in the printed act, caused by a transposition ; instead -of, due him from the employer, it should read, due from him to the employer.

As we find that the enrolled act in the secretary of state’s office contains the same language, we must take it as expressing the legislative will, unless to give it this construction would render the act nonsensical, which could be avoided by some other rational construction. We think it was the intention of the legislature, by this section, in case of abandonment, to provide for damages for the breach of this contract, and establish a standard of liquidation, to-wit: the amount due from the employer to the laborer in share or wages at the end of the term, as it may be presumed that the employer expected at least to make the laborer’s wages, and of course would be damaged to this extent, and this section was designed to put at rest the amount of damage, for breach of contract, and for this damage and for this only, provided for a lien on future wages; and as the third section, only, provided for lien for supplies, the employe]’ who allowed supplies before any results were produced to which his lien could attach, had no lien for supplies as such, and had no remedy except for the breach of contract under the fifth .section, and as no prudent man would advance more to a laborer than his wages or share would be worth, this damage at least afforded a sort of compensation. This view of the case is sufficient to show that appellant had no case against Barnett.

But the sixth section of the act requires that the proceeding under the act shall be commenced in ninety days from the time the lien becomes due. We think the fifth section contemplates an immediate right of action, whenever the laborer abandons his employer without cause, and we have not been able to see the correctness of the argument presented by counsel, that to require suit to be brought within ninety days after abandonment would defeat the remedy. If there is anything in it, it applies with most force against that construction contended for, which would make the lien due at the end of the contract term, for in the meantime the laborer might work, collect all his wages, and at the end of the contract term wait ninety days, without working, or work and collect by the day, and thus in like manner defeat the remedy, just as well as he could for the first ninety days after abandonment. The argument is not sound, nor is this the correct construction of the fifth section.

The laborer “ thereupon ” becomes liable, and “ thereupon ” there is a right of suit, and therefore “thereupon” the lien for damages provided for is due.

The garnishment against Barnett cannot be maintained as an ordinary garnishment -in attachment, because the affidavit required 'by the sixth section of the labor act, which was filed in this case, contains none of the essential requisites of an affidavit for an ordinary attachment, nor was any writ of attachment issued.

It follows from these views that Chowning can in no event in this suit enforce a lien on the wages of the laborers: First— Because he has none, for supplies furnished; and, Secondly— Because if he had, his suit was out of time.

It is urged here, that the court below erred in dismissing the proceedings because a judgment for thirty dollars had been rendered against the Henrys and Sewell, and they did not defend.

But neither did Chowning or themselves appeal from this judgment in the case. There was nothing before the Circuit Court upon record before us except Chowning’s appeal from the branch of the case in which the justice discharged Barnett Rom the garnishment so expressly limited in the prayer, and order of appeal. The act on which this suit was founded was repealed by act of April 22d, 1873, and if the statute was merely remedial would have defeated this suit. But, as it provides for a lien, and also for giving damages, to be liquidated ■ by a certain standard in the fifth section provided, we think there was, under the contract of March 12th, 1873, a substantial right — allegation of contract — which the act of 22d April, 1873, could not impair.

The judgment, for the cause aforesaid, is affirmed.

Mr. Justice Harrison did not sit in this case.


author: Walker, J.:

text:
    Board Supervisors Van Buren Co. vs. Mattox.
    1. OxiFiOB: Power of the Legislature to abolish the office of Judge, etc.

    The provision of the Constitution of 1868 prohibiting the Legislature from interfering with the term of office of any Judge, did not deprive the Legislature of the power to abolish the office and thereby put an end to the term.
    2. Salary: Ceases after the office is abolished.

    When an office is abolished the salary of the officer terminates.
    APPEAL from Van Burén Circuit Court.
    Hon. W. N. May, Circuit Judge.

      J. M. Moore, for appellant.
    There is no vested right in an office to preclude its abolishment. 44 Ga., 463; 20 How. (U. S.), 414; 13 Wend.; 6 Sergt. & R., 322; 5 ib., 418; 44 Miss., 352; 25 Iowa, 538; 11 La. Ann., 439; Cooley’s Const. Lira., 276 and notes; art. 7, sec. 5, Const, of 1868.
    This term of office expired in 1873. Art. 15, sec. 18, Const, of 1868.

      Coody, for appellee.
    Mandamus is a writ of right. Appeal does not lie. 8 Ark., 424; 6 ib., 9; 7 ib., 293.
    If Constitutional office, Legislature could not interfere with the term. 6 Am. Repts., 698 and 754; 65 N. C., 603; Nugent
      v. State, 18 Ala., 521; Bloomer v. Stolley, 5 McLean, 161; Butler v. Pennsylvania, 10 Howard (U. S.), 402; Comm. v. Munn, 5 Watts & Serg., 418; Corner v. N. Y., 2Sandf., 355; Cooley’s Const. Lim., pp. 125-6 and 276; Const. ’68, art. 7, sec. 5; 3 Ark., 285; 5 Ark., 536; 11 Ark., 44; State v. Floyd, 9 Ark., 313-14-15 and 16; 10 Ind., 99; 3 Met. (Ky.), 237; 3 Gray (Mass.), 126; 2 Denio, 272. Probate not an inferior court. 11 Ark., 519.
   Walker, J.:

Mattox filed his petition in the Van Burén Circuit Court, praying that a mandamus might be issued against the Supervisors of Van Bureti county to compel them to allow him the sum of $333.33, which he claimed to be due him as judge of the County Court of that county.

The Circuit Court overruled a demurrer to the petition, and granted a mandamus to compel such sum to be paid.

The Supervisors have appealed.

There is no question but that Mattox was, when the County Court system was abolished by an act of the Legislature, County Judge, and up to the time court was abolished was entitled to his salary, but the real and only question is, was he entitled to such salary after the court was abolished, of which he was judge.

If the act of the Legislature, which abolished the County Court system, was Constitutional, then as there was no court, there could be no judge and no salary due. The provision in the Constitution relied upon as protecting the incumbent in office until the time for which he was elected expired, is the proviso in the 5th sec., of the 7th article, of the Constitution, which provides that the “General Assembly shall not interfere with the term of office of any judge,” and it is contended for Mattox that, to abolish the court, is indirectly to interfere with the term of office, and consequently unconstitutional.

The section first provides that the inferior courts of -the State, until otherwise provided, shall remain as then constituted; “Provided, That the General Assembly may provide for the establishment of such inferior courts, changes of jurisdiction or abolition of existing inferior courts, as may be deemed requisite.” In the exercise of this power to legislate, suppose the Legislature, under their power to create new courts, to subserve the public interest, had abolished the then existing courts, shall it be said that the officers of the abolished courts were intended to be held in office, and receive salaries until their terms of office expired? We think not, but had the Legislature, under its power, altered or changed the jurisdiction of the courts, then such change might have been made without a change of officers, and would not have been in conflict with that clause in the section which forbids that the General Assembly shall interfere with the term of office. With this limitation, and to this extent, the latter clause may stand in harmony with the other provisions of the sections.

But when the court is abolished, as was the case in this instance, there was no longer an office to fill, no officer, no services to render, and no fees due.

The judgment and decision of the court below must be reversed and set aside, and the suit dismissed.


text:
    Murray vs. Rapley.
    1. Mechanic’s Lien: Proceedings to enforce.

    As between the mechanic and the owner of the improvement, a literal compliance with the provisions of the statute in regard to the filing of an account, etc., is not necessary. The written declaration of the party whose property is charged with the lien, containing the material facts requisite to constitute the lien, placed of record, is a substantial compliance with the law.

      2. --: The homestead subject to.

    A debt contracted forlabor and materials furnished in improving the homestead is expressly excepted from the provision of the Constitution of 1808, creating the homestead exemption.
    3. ----: Chancery jurisdiction.

    The remedies provided by statute for the enforcement of the mechanic’s lien are cumulative, and do not oust the jurisdiction of chancery.
    APPEAL from Pulaski Chancery Court.
    . Hon. W. I. Warwick, Chancellor.

      Gallagher & Newton for Mrs. Rapley.
    A mechanic’s lien is exclusively the creature of the statute. Phillips on Mee. Lien, p. 15, and cases cited. Does not arise out of the contract for labor. 54 Maine, 345 ; Tilford v. Wallace, 3 Watts (Tenn.), 141; Peak v Hensley, 21 Ind., 344; 3Ion-tandcr v Dens, 14 Ala., U. S., 33. Nor depend on motives. Gordon v. Toney, 2 McCarden, ch. (N. J.) 112; Bailey v. Mason, 4 Minn., 546; 2 Green (Iowa) 308; 8 S. and R., 58; 12 •Cal., 542; 35 N. Y., 36; 2 Abbott’s Pr. R. (N. Y.), 100; 6 Tenn., 187; 58 Tenn. 383; 2 Ind., 304.
    See Gantt’s Digest, sec. 4060. As to the court, see section 4066.
    The decree is indefinite and idtra vires. Acknowledgment defective. 20 Ark., 190.

      Benjamin & Barnes for appellee.
    The work and labor and materials furnished are sufficient to create the lien. Gantt’s Digest, sec. 4056. Filing with the clerk is only to fix and keep it entire, which may be waived by the debtor. Literal compliance with section 4060 not essential. There is no exemption of homestead. Const, of 1868, art. 12, secs. 1, 2 and 2. Therefore lien good by contract.
   Walker, J.:

Murray filed his bill in which he set up his demand for $300 and asserted a mechanic’s lien upon certain real estate, for work, labor and materials upon a building situate thereon.

His suit is founded upon the following instrument: “Little Rock, October 22, 1872. For value received I hereby acknowledge myself indebted to B. Murray in the sum of $300 for work and labor done, and materials furnished in painting my house on the property near the City of Little Rock, known as ‘Emerald Hill/ and to secure the payment of which said sum of $300,1 hereby acknowledge the said debt to be a mechanic’s lien upon said house, with all the legal rights appertaining to such a lien according to the laws of"Arkansas. Witness my hand and seal this 22nd day of October, 1872. (Signed) Ann B. Rapley. [Seal.]

On the 26th of the same month this instrument was acknowledged before a justice of the peace, and on the 27th of November of the same year, was duly filed in the recorder’s office of Pulaski county.

On the 20th January, 1873, the plaintiff, Murray, filed his bill to obtain judgment for his debt, and asserted his claim to a specific mechanic’s lien upon the house and two acres of land, on and near which it is situated.

The defendant appeared and demurred, and answered the bill. The court below overuled the demurrer and upon the case as made by the pleading, rendered final judgment for plaintiff on his debt, declared a specific lien upon the house and the two acres of land on which it was situated, and ordered the same to be sold.

This case comes before us by appeal.

The material defense interposed is:

First — That there has been no such compliance with the provisions of the statute as entitles the plaintiff to a lien.

Second — That defendant-is a citizen, the head of a family and an actual resident upon the land, the whole tract amounting to but twenty-five acres, and that she is entitled to the same as a homestead.

First — Had the plaintiff a mechanic’s lien on ‘the hou.se and two acres of land on which it was situated ? That the plaintiff was a mechanic, that he furnished materials, and did work upon the house, the property of the defendant, at her instance, and of the value of $300, are questions out of dispute, nor is it questioned that the writing sued upon, in which a lien on the house and land is expressly contracted, was not acknowledged, filed and recorded in the proper office, within the time required by the statute. But it is strenuously contended by the defendant’s counsel that the instrument thus acknowledged and filed, was not a compliance with the provisions of the statute. That this is a right given by statute, and to which the party is alone entitled, who complies fully with the statute requisites.

Section 4060 Gantt’s Digest provides, that “it shall be the duty of every person, who wishes to avail himself of this act, to file with the clerk of the Circuit Court in which the building, erection, or other improvement, to be charged with the lien is situated, and within ninety days after all the things aforesaid shall have been furnished, or the work or labor done or performed, a just and true account of the amount due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit.”

That in this instance there has been no technical compliance with the statute is evident. This the plaintiff does not deny, but insists that there has been a substantial compliance with the statute.

It is true that this is a statue remedy, but it is one enacted for the protection of the mechanics, laborers and furnishers of suj>plies to those desiring to erect buildings or to make improvements upon real estate, and that the statute which requires that the mechánic, or other claimant of a lien should verify and file his account to entitle him to a lien,, was intended not alone to identify and fix his right of lien upon the particular property upon which his labor and materials had been bestowed, but also to give notice to others who may contract for liens upon the same property of the nature and extent of his claim.

And in cases in which there is a contest between lien claimants, the mechanic should be held to such strict performance of the requirements of the statute as to entitle him to its benefits. But in an issue between the mechanic and the owner of the property upon which the labor has been bestowed, we apprehend that less strictness in complying with the statute would be required, because, as he is a party to the contract, the owner of the -property upon which the labor is bestowed, and may be presumed to know the character of the work performed, as well as the materials furnished, constructive record notice is not so necessary, indeed, scarcely at all necessary, for his protection.

If the services rendered or the materials furnished were, for the improvement of his real estate, even though upon his homestead, such homestead property is liable for its payment. The ■Constitution' which protects the homestead from sale for the payment of ordinary debts, expressly excepts out of its provisions debts contracted for labor done, or material furnished, as not within its'provisions. Const., art 12, secs. 1 and 3.

But as regards the rights of those who contract for liens upon the same property, there is much greater necessity for a full compliance with the requirements of the statute. The filing of the lien is intended to give them constructive notice of the nature of the charge upon the land, the'amount of the debt charged as a lien upon it, and the particular property claimed to be 'held liable for its payment. And should the party claiming such lien fail to furnish, such facts as to enable others contracting for a lien upon the property to protect themselves, the lien may be lost.

The adjudicated cases which would seem to hold a strict compliance with the provisions of the statute, necessary, will be found to have arisen between contestants for priority of lien.

It would seem from the authorities that it must be clearly shown that the claim is founded upon services rendered by a mechanic, laborer, or furnisher of materials upon a building, or other improvement on the property sought to be charged with the lien.

The character of the claim thus fixed, no technical omission is allowed to defeat the claim. Phillips, in his work on liens, page 16, 'when referring to the construction to be given to statutes conferring liens, says : This liberality of construction, courts have conceived themselves justified in adopting, applies principally to the relief of mistakes of procedure. When the case falls clearly within the provisions of the statute, * * * it would lead to injustice to hold that every mistake, however trifling, should avoid the lien. Only such as are calculated to mislead others should destroy the claim if there has been a substantial compliance.”

In the case before us the issue is not between claimants for a lieu, but between the parties who could not have been misled as to the facts of the case. The defendant, when the work was completed, acknowledged that she owed the plaintiff $300, that this sum was due for mechanic’s work, as a painter in painting her house, on Emerald hill, near Little Rock, and for materials and paint furnished, she declared in writing that such work to that amount, created a lien upon her house so situated, with all the statute rights of lien; this instrument was duly acknowledged, and recoided in the proper office and in apt time.

All of the material facts necessary to entitle the plaintiff to a mechanic’s lien were distinctly set forth and made matter of record. A literal compliance with the statute could have done no more. In this instance the lien exists not alone by operation of law, but by contract.

Under the state of case presented, we think this a substantial ■compliance with the statute, independent of the lien contracted for, and that the plaintiff held a valid mechanic’s lien upon the property.

The objection taken by counsel that the action should have been at law is not well taken.

It is true, that under the provisions of the statute, when the lien is filed, the party may proceed by scire facias, or as we have heretofore held, may sue in assumpsit upon his account and take the benefit of his lien. These remedies ar'e cumulative, and in no wise prevents the party from seeking his remedy in a court •of chancery, which on account of its more enlarged remedial powers is the most appropriate tribunal.

We must hold that the plaintiff is entitled to the relief asked.

Let the decree be in all things affirmed.


text:
    Moore et al vs. Granger, Sheriff, et al.
    1. Homestead: Disposition of.

    B, the owner of a homestead, and judgment debtor of 0, exchanged places with A, each executed a deed to the other. C levied an execution on the homestead in the possession of A. IDeldthat the judgment lien attached, and A could claim no protection under the former homestead right of B.

      2. Damases: Upon the dissolution of an injunction.

    Sections 3482-3, Gantt’s Digest, confers a discretionary power on the Circuit Court to award damages in any sum not to exceed ten per cent, upon the dissolution of an injunction, which this court will not assume to control.

      APPEAL from Desha Circuit Court in Chancery.
    Hon. John A. Williams, Circuit Judge.

      L. A. & X. J. Pindall, for appellants.
    Frank might file a bill to remove a cloud, and a fortiori may to restrain a sale. Christie v. Piale, 46 111., 122. He cannot invoke the remedy in secs. 2619, Gantt’s Dig., or 2670. Moore had an interest in the relief asked, from his covenants. Sec. 4475. Misjoinder no ground of demurrer. Sec. 4616, Dig.
    Moore is entitled to a homestead, and that cannot be taken with Frank’s land also.
    The execution was illegal, and Frank had no means to recall ■or quash it. Injunction the only remedy. Lee v. Crossman, 6 Humphrey, 282.

      Weatherford, contra.

    The lien of the judgment rested on the lands in the hands of Frank. Damages for the whole amount of the debt was proper. The decree should conclude the parties and their sureties on the injunction bond, Gantt’s Digest, 3485, and the supersedeas bond also, secs. 1101-2. Provisions are made in ihe Digest for correcting errors. Sec. 2619.
   Walker, J.:

This is a suit in chancery, brought by Moore and Frank, to enjoin the sale of certain lands levied upon by Granger, as Sheriff, to satisfy an execution in favor of Allen & Co.

The grounds upon which plaintiffs rely for equitable relief are that the property is the homestead of Frank, and, as such, is not subject to sale under execution, and that the execution is for more than the judgment upon which it was issued.

. The facts, as disclosed by the bill, are: That Allen & Co. obtained judgment against Moore, who, at the time, was the owner and occupant of the land now levied upon. Execution issued upon the judgment, obtained by Allen & Co., against Moore, and was levied upon the property as his. Moore claimed it as a homestead, which was allowed and the execution returned without sale. Shortly after this, Moore exchanged lands with Frank, and took a deed from Frank for the lands which he got from him, and made Frank a deed for his homestead tract. Moore took possession of the land bought of Frank, and Frank of that bought of Moore. Allen & Co. had another execution issued upon their judgment against Moore, which was levied upon the lands bought by Moore of Frank. Moore claimed a homestead exemption on this land also, which was allowed. The judgment lien of Allen & Co. not having expired, they had the tract, which Moore originally had set apart to him as a homestead, and had sold to Frank, levied upon. To enjoin this sale,, Moore and Frank have filed their bill. The theory of which is,, that Moore, by force of his homestead right, acquired a vested right of property, which he might transmit to his vendee free-from the judgment lien.

The rulings of the American courts have not been uniform upon this question, but this court, after a careful consideration of the question, has in several recent decisions held that the-homestead right attached to the home, of the occupant, the head of the family, and to his wife and children after his death, to-continue until the children became of age, or, until abandoned by a change of residence, after which time the homestead protection was removed and attached to, and protected, the family in their newly acquired home; in "effect, that it was a shield and protection thrown around the family, to protect them in the use- and enjoyment of a home, whilst they chose to occupy it.

An apt illustration of this, is to be found in the present case.. Moore had claimed, and was allowed, a homestead on this land,. he abandoned it, and entered upon the land bought of Frank, and then claimed and was allowed a homestead exemption on that, it then being his home, whilst Frank, who purchased of him, claims protection under Moore’s former homestead right, which we think cannot avail him.' Allen & Co. had a continuous, unexpired, judgment lien on this land, suspended, it is true, whilst occupied as a homestead, but which attached and held the land upon Moore’s removal, apd we must hold the land subject to Allen & Co.’s debt.

To thus hold may operate to the prejudice of the interests of Frank, who may have bought of Moore under the impression that he succeeded to Moore’s homestead idglit. Such however, was not the case. The homestead is a mere right of occupancy, an exemption of the land from sale whilst occupied as a home. During all the time of such occupancy the judgment lien is- suspended, but when abandoned by the occupant may be enforced. Norris, et al., v. Kidd, 28 Ark., 485; Chambers v. Sallee, adm’r., 27 ib., 470; Johnson et al. v. Turner, adm’r., ib., 280; Jackson v. Allen & Co., ante.

Upon this ground no equitable relief can be afforded, nor is the second ground more tenable.

If the execution was issued for a greater sum than that recovered, an adequate remedy is afforded the party by motion before the court from whence the execution issued.

Having thus disposed of the appeal taken by the complainants, our attention is called to the right of Allen &■ Co., under a cross-appeal which counsel for Allen & Co. claim to have taken.

Upon looking to the transcript we find, that apon the disposition of the injutfetion, the court, after having heard the evidence, assessed the plaintiff’s damages to the sum of $13.82.

The counsel for Allen & Co. contend, that the damages should have been larger. The statute, Gantt’s Digest, secs.' 3482, 3483, confers upon the court a discretionary power to award damages in any amount, not to exceed ten per cent., and although the amount assessed is much less than that amount, we will not assume to control this discretion.

Let the judgment of the court below be in all things affirmed.


author: Harrison, J.:

text:
    Austin vs. Crawford County.
    Appjíal.
    One who is not a party to a suit is not entitled to appeal.
    APPEAL from Crawford Circuit Court.
    Hon. E. D. Ham, Circuit Judge.

      Jesse Turner for appellant.
   Harrison, J.:

John Austin presented his petition to the board of supervisors of Crawford County, to have refunded to him certain excess in county taxes paid by him for the year 1872.

The board made the order, and directed a warrant to be drawn in his favor for the amount, on the county treasurer.

James A. Lockhart, clerk, Jasper P. Grady, sheriff, and F. M. Kines, treasurer of the county, claiming to be aggrieved thereby, prayed an appeal from the order to the Circuit Court, which was granted, and upon trial in the Circuit Court, the court sitting as a jury found against the claim, and rendered judgment in favor of the county against the petitioner for costs.

Lockhart, Grady and Kines, were not parties to the proceedings before the board of supervisors, and according to the decision in the case of Chicot County v. Tilghman, ex’rx, 26 Ark., 461, not entitled to take an appeal from its order.

The Circuit Court, therefore, acquired no jurisdiction of the case, and its judgment must be reversed and the cause remanded to it with instructions to dismiss the appeal.


text:
    Crane & Field vs. Randolph, ad.
    A. Tax Deud: • Void. Oloud on title, etc.

    Where it appears on the face of a tax deed that several tracts of land were sold together for the taxes clue on the whole, it is void, and casts no cloud on the owner’s title.
    2. Chaxcerv Turismo mon: For recovery of land.

    One having the legal title to land, and out of possession, must sue at law in ejectment-, and cannot resort to equity.
    APPEAL from Desha Circuit Court in chancery.
    Hon. W. H. H. Clayton, Circuit Judge.

      L. A. & X. J. Pindall for appellant.
    The remedy is complete at law, and the demurrer in the answers should have been sustained. Byers et al. v. Danley, 27 Ark., 90; Appaerson, etc., v. Ford et al., 23 Ark., 747; Moore et al v. Dmian, 27 Ark., 157; M. & L. R. R. R. v. Woodruff, 26 Ark., 649; Policy. Pendleton, 31 Md., 118; Chaplin v. Holanes, 27 Ark., 414.
    No title shown in complainant’s intestate, or in his vendors. He must make out title. 2 Greenleaf, secs. 331, 553; Clarh v. Calcley, 4 Ark., 236; same in equity; Schaer v. Qliston, 24 Ark., 137. No seizin within two years appears. Gantt’s Digest, sec. 4117; Guthrie v. Field, 21 Ark., 386; Taylor v. Speers, 6 Ark., 381. Jas P Clayton for appellee.
    The sale of north half of 15 for taxes of 1865-66 was void, ■as these had been duly paid. Wallace v. Brown, 22 Ark., 118 ; Blackwell on Tax Titles, 3 ed., p. 409, 411, ns 1 and 2; Kiaisworthy v. Mitchell and wife. 21 Ark., 145; Martin v. Snowden, 18 Gratt,, p. 100; Bl. on Tax T., 652, 3 ed.
    Owner does not lose title where there is misdescription in advertisement. Patrick v. Davis, 15 Ark., 363. Assessment and ■sale must be in the same manner. Bettison v. Budd, 21 Ark., 578.

      As to lawful naocle of assessment. Gould’s Digest, Tit. Revenue, eh. 148, sees. 14, 15. Equity cannot supply defects in tax title. Black, on T. T., 498, 990; Young v. Keogh, 1.1 111., 642; Young v. Dowling,. 15 111., 481; 1 Story, 478; Mayhem v. Davis, 4 McL., 213.
    Purchaser, with notice of a claim, cannot hold against it. 2 Johns. Ch., 155-57; Ringgold v. Waggener, .14 Ark., 69. They are chargeable with notice of irregularities in statutory proceedings. Blackwell, p. 65, 66, n 1 and 2; .Pleasants v. Neo tt, 21 Ark., 370.
    Answer insufficient to a charge of fraud. Byers v. Fowler, 12 Ark., 218; Cooky. Bronough, 13 id., 192; Dunean v. Johnson, 13 Ark., 190; Miller v. Frcdey, 21 Ark., 22.
    As to time of assessment, chap. 148, sec. 38, of Gould’s Digest. Negative of other time may be implication. Marsh v. Chestnut, 14 111., 223; Billings v. Ditton, 15 ib., 218. Thames Man. Co. v. luathrop, 7 Conn., 550.
    Judge alone cannot adjourn over a County Court. The court must do it, composed of the judge and two justices. Carnally. Crawford Co., 11 Ark., 624; Tricey. Crittenden Co., 7 Eng., 164; Pulaski Co. y. Lincoln, 4 Eng., 320; Gould’s Dig., chap. 49, sec. 3.
    The order levying the tax for public buildings without due notice, is a nullity. Buckner et al., ex parte, 9 Eng., 73.
    Affidavit of tender of redemption money, by agent, sufficient. Merrick v. Ilutt, 15 Ark., 341; Grade v. White, 18 Ark., 17; Brooks y. Perry, 23 Ark., 32; Morton v. Scull, 23 Ark., 289; Rea! Estate Bank v. Rawdon, 5 Ark., 558.
    The act under which the school tax was levied had been annulled by the Constitution of 1868. State v. Kelly, 25 Ark., 392; Lin Sing y. Washburn, 20 Cal., 534; Knowlton y. Supervisors, 9 AYis., 410; Attorney General y. Plankroad, 11 AYis., 35.

      Jurisdiction — To remove cloud of tax deed. Cook v Cole, ITolst., ch. 522; Adna’rs. Equity, p. 419; ib., 420.
    Question of jurisdiction cannot be first raised here. Sec. 112, Civil Code, 1 Ark., 197, 410, 417; 4 ib., 303; 8 ib., 57-9, 501; 15 ib., 307; 17 ib., 340; 18 ib., 583; 19 ib., 139; 22 ib., p. 103.
    Fraud a ground. Kerr, p. 41 and n., 42 and n., 44 et mj.; 6 Wall. (U. S.), 268; 1 Mnnf., 419, 437.
   Harrison, J.:

The appellee, Elilm Randolph, administrator de bonh 'non of George J. Graddy, deceased, filed his complaint in equity in the Desha Circuit Court against the appellants, W. C. Crane and Robert Field, and James Murphy and W. C. Johnson, to remove the clouds of certain tax deeds from the title of a tract of land belonging to his intestate’s estate.

The allegations of the complaint, so far as it is material to state them, were: That the said George J. Graddy 'died intestate, on the 16th of May, 1864, seized of the north fractional half of section 15, in township 7 south, of range 1 east, in said county; that administration upon his estate was granted to Mary B. Graddy, his widow, on the 29th of November, 1865, and that she having removed from the State, and her letters being for that cause revoked, administration de bonis non wasafterwai’ds granted to the plaintiff.

That Mrs. Graddy paid the taxes on the land for the years 1865 and 1866, but that it was, in 1867, advertised by the Tax Collector for those years as the property of one James Railey, a non-resident of the county, and sold by him on the 12th of March, of said year; that it was purchased by the defendants, Murphy and Johnson; and, on the 13th of April, 1868, the Collector conveyed the same by deed, with other lands, to the said Murphy, which deed was duly acknowledged and recorded.

That the land had not, in fact, been listed and assessed as the property of Railey, and was so advertised through error and mistake, for the north half of section 13, in the same township and range, which, with nine other tracts belonged to said Railey, and which other tracts were advertised and, at the same time,, sold, and purchased by said Murphy and Johnson.

That Murphy and Johnson, becoming apprised of the mistake, after their purchase, and that the land belonged to the estate of Graddy, and the taxes had been paid, in order yet to secure it, in 1867, fraudulently listed and assessed it as the property of a non-resident owner; and that it might be sold without the knowledge of the administratrix and those interested in the estate, in the fictitious name of William & James; in which name the other tracts purchased at the same time, were also assessed, and by omitting to pay the taxes, it was with those tracts again advertised, and thereafter offered for sale with them in a body, and' Murphy again purchased the whole for the sum of $44.10 the aggregate amount of taxes, penalty and costs due on them, but which sale was not on the second Monday in March,, the day fixed by law for such sales, but on the 11th day of May,. 1868.

That the tract was in the same year also listed and assessed as the property of Graddy’s estate; anil the taxes not being paid, it was returned as the property of said estate on the delinquent list.

That Murphy assigned the certificate of purchase to defendants, Crawford and Field, and afterwards, on the 27th day of August, 1869, the county clerk, Murphy himself, executed to them a deed for all the tracts, that, belonging to Graddy’s estate,, as well as the others; and that in the deed it was recited that the said tracts were sold for the sum of $44.10, the taxes, penalty and costs due thereon; and that Murphy, on the same day,, alsoi executed to them a quit claim deed for the lands, which two deeds were also acknowledged and recorded.

That Crane and Field were then in possession of the land; and that the plaintiff had applied for an order to sell the lands of his intestate for the payment of his debts; but said tax deeds were a cloud upon the title, and an impediment to the sale of the tract in question.

Crane and Field in their answer denied any knowledge that the land ever belonged to the estate of Graddy,. or that the taxes for 1865 and 1866 had been paid when it was sold in 1867. They admitted that it was not assessed in the name of Eailey in 1866, and that it was through, the mistake stated in the complaint advertised at his in 1867. They had no knowledge, they said, by whom it was assessed in the name of William and James, but denied it was so assessed with the fraudulent purpose or intent alleged.

They admitted that the sale in 1868, was not on the day appointed by law for tax sales, but averred that the collector having failed to offer the lands, on which taxes were unpaid, for sale on the second Monday in March, he was directed by an order of the County Court, as provided by the statute, to sell them on the 11th day of May, 1868, and they claimed that the last mentioned sale and all proceedings relating thereto wei’e in strict conformity with law,and that the deed of the county clerk vested in them a valid title, and either expressly or tacitly admitting the other allegations of the complaint, reserved a demurrer to the same for the want of equity.

Murphy and Johnson were not necessary parties and their joint answer need not be noticed.

Upon the hearing, the deeds were decreed so far as related to the land in controversey, to be set aside and canceled.

By the law in force, when the land was soLd in 1867, the collector was required to make out and file in the clerk’s office, on or before the fourth Monday in December, a list of the lands and town lots in his county, assessed to persons who did not reside therein, on which the taxes had not been paid, setting forth the owners’ name and a description thereof as the same were described on the tax book with the taxes due thereon; a copy of which was to be set up at the court-house door, and also published in some newspaper printed in the state, at least four weeks before the second Monday in March thereafter, with a notice that the whole of the several tracts and town lots, or as much thereof as should be necessary to pay the taxes and penalty charged thereon, would be sold at the court-house door on said day unless the same were paid. And this list and notice were before the day of sale to be recorded by the clerk.

Gould’s Digest, chapter 148, sections 115-117.

Blackwell, in his work on Tax Titles, speaking of a statute of Massachusetts, which required the name of the owner to be inserted in the advertisement, if known, otherwise, a substantially accurate description of the land, says: “The evident object of the statute is to give the owner every facility in the ascertainment of his delinquency, which his own name and a description of his property can afford to him, upon an inspection of the notice; and the courts ought to be as strict in requiring the statute to be fully complied with in this respect as in reference to any other prerequisite.” Black, on Tax Titles, 276. But it was proven upon the hearing, by the collector’s receipt, that the taxes for 1865 were paid; and the fact admitted, that the laud was advertised and sold in 1867 through mistake, repels the presumption the recital in the deed would otherwise create, of the non-payment of the taxes for 1866. Be that, however, as it may, the mistake in the advertisement, and the sale for the taxes of a year that had been paid, most clearly invalidated the sale. Black, on Tax Tit., 190; Kinsworthy, et al., v. Mitchell and wife, 21 Ark., 145.

From the view we take of the case, it is not necessary to consider the evidence in relation to any disputed fact, in noticing the sale of 1868. The invalidity of it is made clearly to appear by the averment in the complaint, not denied, and also shown to be true by the deed exhibited, of the sale of the several tracts together for the taxes upon the whole, and read in evidence upon the hearing. Pettus & Glenn v. Wallace, et al., 29 Ark., 476, and authorities there cited.

And such invalidity appearing upon the face of the deed, it cast no cloud upon the title. Chaplin v. Holmes, 27 Ark., 414.

Although such objection does not exist as to the first deed, which shows a sale sufficiently regular to require proof of the extraneous facts which invalidate it; yet the defendants, Crane and Field, being in possession of the land, there was nothing to hinder or prevent the plaintiffs from maintaining an action of ejectment; .and having an adequate and complete remedy at law, there was no equity in their complaint, and for that cause it should have been dismissed.

The decree of the court below is therefore reversed, and the complaint will be dismissed.


author: English, Ch. J.:

text:
    Nisbett vs. Brown & Norton.
    1. Birr of Exceptions: Certainty in.

    Where the answer sets out the facts relied on as a defense, and the bill of exceptions shows that the defendant offered to prove the facts stated in the answer, this renders it sufficiently certain as to the facts offered in evidence and excluded by the court.
    2. Newotiabre Paper: Defenses against an assignee under the statute.

    In a suit by the endorsee of a draft against the drawer, the latter need not, in a plea of failure of consideration, allege notice, under the provisions of section 3, cli. IBS, Gould’s Digest.
    3. Motion for New Triar: Sow made a part of the record.

    A motion for new trial is no part of the record, unless referred to, or incorporated in the bill of exceptions.

      APPEAL from Craighead Circuit Court.
    Hon. W. F. Henderson, Circuit Judge.

      Clark & Williams for appellants.
    Plea of no consideration threw the onus on complainants. Dickens v. Burke, 6 Ark., 412; Cheney v. Higginbotham, 10 Ark., 274; Williams v. Williams, 13 Ark., 421.
    The draft was not presented in reasonable time, and the drawers therefore released. Story on Bills, secs. 324-25-26; Berry v. Robinson, 9 Johns., 121; Field v. Nickerson, 13 Mass., 131; Tice y. Cunningham, 1 Cow., 397; Martin~v. Winslow, 2 Mason, 241; Peters v. Hobbs, 25 Ark., 67; Anderton v. Beck, 16 East,, 248 ; Vanhoosen v. VanAlstyne, 3 Wend., 75; Lord v. Ohadbourne, 8 Greenl., 198; Brower v. Jones, 3 Johns., 203; Tucker v. Man-well, 11 Mass., 143 ; Roberts v. Ames, 20 Johns., 146 ; Chitty on Bills, 8 ed., p. 410 and n 1.
    There was no assignment shown. This is a matter of jurisdiction, and may be taken advantage of in arrest of judgment, or on error.' Montagur v. Smith, 13 Mass., 404-5 ; Smith v. Emory, 7 Halst., 53; Wheelwright v. Burs, 2 Hale, 391; Burndaller v. Tate, 1 Sergt. and Rawle., 160; Chitty on PL, pp. 2, 3, 5,13; Pearse v. Austin, 4 Whart., 489;' Dodge v. Wilkins, 3 Mete., 292; Bell v. Lymans, 1 Monroe, 39; Bragg v. Welsell, 5 Blackf., 95; Tangbiorn v. Ru/msey, 11 Johns., 141; Brush v. Curtis, 4 Conn., 312; Fumley v. Black, 44 Ala., 159 ; Spears v. Clark, 6 Blackf., 167.
    Evidence of want of consideration was improperly excluded. Cases supra, also Smith v. Capers, 13 Ark., 9 ; Williams v. Williams, 13 Ark., 421; McDaniel v. Grace, 15 Ark., 466; Berry v. Diamond, 19 Ark., 262.
    The bill of exceptions substantially shows all the evidence introduced, which is sufficient. Taylor v. Spears, 8 Ark., 429; Gamble v. Hamilton, 7 Mo., 469; Jordan’s admr. v. Adams, 7 Ark., 348; Pkerett v. Clements & Thompson, 9 Ark., 478; Green v. Ashley, 6 Leigh., 135. But trial is not necessary to obtain review of ruling improperly excluding material testimony. JVebrum v. Kuhn, 39 N. Y., supra; Ct'.' Reports, 336; Wehle v. Havelinde, 46 How. N. Y. Pr. Rep., 399; Meyer v. Finge!, 38 ib., 424; Fax v. Sturm, 21 Texas, 407 ; Seatoell v. Henry, 6 Ala., 226 ; Stokes v. People, 53 N. Y., 164.
    As to the errors of record, see Freedlander v. Pugh, 43 Miss., Ill; Wells v. Moseley, 4 Cold. (Tenn.), 401; Miller v. Ratdiffe, 14 Ark., 419 ; Houeh v. Lynch, 17 Ark., 479 ; Butts v. King, 19 Ark., 118; Watkins v. Rogers, 21 Ark., 298.

      Rose for appellees.
    The testimony offered should have been set out clearly, azzd not vaguely and generally. Chrisman v. McDonald, ante. Hollister v. Reyner, 9 Ohio, 1; State v. Cotoen, 7 Iredell, 243 Duffee v. Pennington, 1 Ala., 508.
    Bill good in hands of assigziee, without notice of the defense. Gantt’s Digest, sec. 566.
    The motion for a ziew trial is no part of the record. Wb ite v. Prigmore, 29 Ark., 208.
   English, Ch. J.:

Brown & Norton sued Wm. W. Nisbett, in the Craighead Circuit Court, on a sight draft, drawn by Nisbett, at Forrest City, Arkansas, January 11th, 1872, on A. J. White & Co., of Memphis, Tenziessee, for $502.96, payable to the order of J. E. Siznpson; by him endorsed to Brown & Norton, and protested for non-payment 14th January, 1873.

Nisbett filed an answer to the complaint izi substance as follows :

Defendazit admits that he is the'drawer of the draft sued on, but states that the consideration for which said draft was made has wholly failed. That said J. E. Simpson was, at the date of the execution of said draft, indebted to A. J. White & Co., upon whom said draft was drawn, to the full amount of said draft, and agreed with defendant, as the agent of said A. J. White & Co., that in consideration that defendant would execute said draft, he, said Simpson, would deliver to defendant certain goods, wares and merchandise,- to the amount of said draft, and that the same should be used only as a payment to the said A. J. White & Co. upon said indebtedness, and not otherwise. But-that said Simpson failed and refused to deliver to defendant said goods so agreed to be delivered, and after demand therefor, by reason of which the consideration for which said draft was given has wholly failed.

The answer was filed 18th June, 1873.

On the 11th February, 1874, the plaintiffs filed a demurrer to the answer, which, on motion of defendant, the court struck out, because it was not filed in apt time.

The cause was submitted to a jury on the complaint and answer, and verdict in favor of the plaintiffs for the amount of the draft.

The defendant filed motion for a new trial on the grounds :

First — Because the court erred in refusing to allow defendant to introduce evidence to show a total failure of consideration for the execution of the draft sued on.

Second — Because the court erred in excluding from the jury evidence offered by the defendant in support of his answer.

The record entry states that the motion for a new trial was overruled, to which ruling the defendant excepted at the time, and took a bill of exceptions, etc.

The bill of exceptions states that the plaintiff read to the jury the original draft sued on, the endorsement thereon, and proof of protest; which are copied.

And thereupon the defendant offered to introduce evidence to establish the facts set up in his answer, which was excluded by the court, against the objection of the defendant; to which riding of the court the defendant excepted at the time, and brings his bill of exceptions, and asks that the same be allowed and signed, which is accordingly done.

This is all there is of the bill of exceptions, except .the signature of the judge.

Judgment for plaintiffs, and defendant appealed to this court.

First — In the original transcript the clerk omitted to copy the endorsement of the draft by Simpson, the payee, and hence it did not appear that the appellees had any title to the paper or right of action upon it, but this omission has beencui’ed by certiorari.

Second — The appellant offered to introduce evidence to establish the faotsset up in his answer, which the court excluded.

The counsel for appellees insist that the facts which the appellant proposed to prove should have been set out in the bill of exceptions; and this no doubt is the general rule, but here the answer sets up the facts relied on as a defense, and the appellant proposed to prove the facts so set up, and this made the bill of exceptions sufficiently certain as to the facts offered in evidence and excluded by the court, and takes the case out of the rule as. laid down in Hollister et al. v. Rozner, 9 Ohio State R., 1, and cases cited, relied on by the counsel for appellees.

If the facts set up in the answer made a good defense, the. court should have permitted the appellant to prove them.

Third — But it is insisted for appellees that the answer was bad,, because it did not allege that the appellees took the draft with notice that the consideration upon which it was executed had failed, and hence if the court had permitted the appellant to prove all the facts alleged in the answer, no valid defense to the. action would have been made out.

By the act of 10th April, 1869 (Acts of 1868-9, p. 146),. when the drawer or maker of any bond, bill or note for the direct payment of money alone inserted therein the words “without defalcation,” such paper, in the hands of a bona fide endorsee for value, before maturity, was put upon the footing of commercial paper under the law merchant, etc.

But the draft in question does not contain the words “without defalcation.” “At sight, pay to the order of J. E. Simpson $502.96-100, value received, and charge to account of ¥m. W. Nisbett,” and hence does not fall within the provisions of the above act.

But the effect of section 26, of the act of April 24th, 1873, amending section 26, of the Code (Acts 'of 1873, p. 215), was to repeal the third section of the Statute of Assignments, Gould’s Dig., ch. 15, p. 158, and to put bills of exchange, common orders, or checks, and promissory notes negotiable and assignable by the law merchant, on the footing of commercial paper in the hands of assignees, so that the defenses that may be set up by the makers of such instruments, as against assignees, must be governed by the law merchant. Sayre v. Thompson, ad., 28 Ark, 336.

But the draft in question was drawn on the 11th January, 1872, and assigned to the appellees as early as the 14th January, 1873, for the notarial certificate of protest shows that they were its holders on that, day, when it was presented to the drawees for payment. Hence the draft does not come under the provisions of the act of April 24th, 1873, above cited. Ib.

The answer therefore set up a good defense to the action, and the court below should have permitted the appellant to prove the facts therein alleged.

Fourth — But it is insisted for the appellees that there is nothing before this court, because the motion for a new trial was not made part of the record by the bill of exceptions.

It is true that the bill of exceptions makes no reference whatever to the motion for a new trial,- and this court held in White v. Prigmore, 29 Ark., 450, that a motion for a new trial is not part of the record unless made so by bill of exceptions.

In that case it appears that there was a motion for a new trial filed, and overruled, and the party filing it appealed without takings bill of exceptions. In this case the appellant took a bill of exceptions, but makes in it no reference to the motion for a new trial.

It has long been the settled practice in this state, that by filing a motion for a new trial, previous exceptions to the rulings of the court are abandoned, unless made grounds of the motion, and where the motion is overruled, the party filing the motion must not only except to the decision of the court overruling the motion, but must take a bill of exceptions to bring upon the record matters of fact, and questions of law ruled upon by the court during the trial, and -which are made grounds of the motion for a new trial.

But whether the motion for a newr trial becomes part of the record by being merely filed, as do pleadings, without being referred to and made part of the record by bill' of exceptions, was never decided by this court directly until in the case of White v. Prigmore above cited.

Lawyers in drafting a bill of exceptions to the decision of the court overruling the motion for a new trial, have in some cases ■incorporated the motion in the bill of exceptions, and in others referred to the motion as filed, overruled, etc., but perhaps it has rarely happened that an Arkansas lawyer of any experience took a bill of exceptions to the decision of the court overruling a motion for a new trial, and made no reference whatever to the motion, as in this case.

No adjudications are cited in White v. Prigmore in support of ’ the ruling that a motion for a new trial is not part of the record unless made so by the bill of exceptions, and we have looked into the question again, and while we find some authorities that sustain the decision, we have been able to find no case in which it has been decided that the mere filing of a motion for a new trial makes it a part of the record, except a case in Iowa, which was based on a statute.

Much controversy having arisen in that state as to what was part of the record, the Legislature passed an act declaring that: “All proper entries made by the clerk, and all papers pertaining to a cause and filed therein, (except subpoenas, depositions and other papers which are used as mere evidence), are to be deemed parts of the record.”

In Mays v. Deaver, 1 Iowa, 223, the Supreme Court of Iowa held that prior to the massage of this act, a motion for a new trial could not have been treated as part of the record unless made so by bill of exceptions, citing a number of cases, but that under the statute a motion for a new trial regularly filed, marked filed by the clerk, and certified in the transcript, should be treated as part of the record.

We have no such statute.

In Lenox v. Pike, 2 Ark., 20, Mr. Justice Lacy attempted a, general definition of what constitutes the record.

Batison v. Clark et al., 37 Mo., 34, the court said: “The-record proper, by law, is the declaration, summons, and all subsequent pleadings, including the verdict and'judgment, etc. Matter which arises wholly from the action of the court in the progress of the trial, as the admission or rejection of evidence,, the sustaining or overruling some motion, the giving or refusing instructions, etc., is strictly no part of the record, unless made-so by bill of exceptions, etc.” See also note to Richardson v. George et al., 34 Mo., 108.

The court, shortly after its organization, made the following rule for the government of clerks in making out transcripts, which indicates what it regarded as the record.

“In cases at law, the declaration, capias, endorsement, and return, and the orders of the court, with the pleas, demurrers, replications, etc., referred to in the orders, in immediate succession, up to, and including the final judgment, will follow in the order they are named. Orders for attachments against witnesses need not be copied; then the bills of exceptions and papers referred to therein, no other paper, not even a bond declared on or deposition that may have been used on the trial, are to be copied, unless made part of the record by oyer, special verdict, agreed case, or demurrer to evidence ; or by reference to it in some other paper, which is a part of the record. In ejectment neither the title papers, or Surveyor’s report, is part of the record, unless made so by bill oí exceptions.” See Rules, 1 Ark., 8.

After thus looking again into the question, we are not disposed to overrule. White v. Prigmore.

It is submitted for appellant that the draft sued on, being a sight draft, should have been presented to the drawees for payment within a reasonable time after it was drawn, and that it was not presented for over a year, which was an unreasonable ' delay.

Perhaps this was a delay not allowable by the law merchant where the drawer has funds in the hands of the drawee, or a right to expect that the draft will be paid, but this is not shown in this case, nor was this question in any way raised in the court below, or passed upon by it, nor is it any way properly presented in the transcript before us.

The judgment must be affirmed.


text:
    Stewart et al vs. Pace & Lavender.
    Injunction: Of a writ of possession under a void judgment in ejectment.

    A judgment in ejectment against one employed merely as a Clerk in the store of the tenant in possession of land, is void, and a Court of Equity will interpose in behalf of the tenant and enjoin the execution of a writ of possession issued under the judgment.
    APPEAL from Arkansas Circuit Court in Chancery.

      Rose, for appellants.
    The injunction was simply to prevent a trespass, and would not lie.

      8. B. Cockrell, in support of grounds of injunction, cited Howard v. Kennedy, 4 Ala., 595; Jones v. Chills, 2 Sand., 34; Chills v. Stephenson, 1 Marsh, 333; Kereheval v. Ambler, 7 J. J. Marsh, 626.
    An employee is not an occupant. Chiniquy v. Catholic Bishop, 41 111., 148; Hawkins v. Beichart, 28 Cal., 534. This is like enforcing judgment without notice, and subject of injunction. Bidgeway v. Bank of Tenn., 11 Humph. (Tenn.), 523, and authorities; High on Inj., 126 and 152; Goodenough v. Sheppard, 28 111.-, 81; Comm’r. v. Durham, 43 111., 92.
   English, Ch. J.:

The material facts of this case, as disclosed by the pleadings and evidence, are:

That on the 28th December 1872, Lavender, as administrator of DuBose, under an order of the Probate Court of Arkansas county, leased to James T. Pace, for the year 1873, the DuBose plantation, embracing the north half of the northeast quarter and the south half of the southeast quarter of section 16, township 6 south, range 6 west. By the terms of the lease, Pace was to have sufficient time after the 1st of January, 1874, to gather his crops. Pace cultivated the lands in cotton, etc. He and Lavender were partners in the mercantile business, and had a stock of goods in a house on the land. A man by the name of McKinzie was employed by Pace to manage the planting business, and C. F. Overby was employed by Pace & Lavender as a clerk in the store. He had nothing to do with the planting; that was in charge of McKinzie. . Neither Pace nor Lavender resided on the place.

After Pace took possession of the lands under the lease, George W. Stewart, administrator of W. D. Patterson, deceased, brought ejectment for the lands against C. F. Overby, in the Circuit Court of Arkansas county; he was served with process, but failed to make defense, and on the 25th of October, 1873, judgment was rendered against him by default, in favor of the plaintiff in the action, for possession of the lands. On 13th December, 1873, a writ was issued upon the judgment, commanding the sheriff to put the plaintiff in possession of the lands, without delay, etc., and Pace filed the bill in'this case for injunction . against the sheriff, Wiley and Stewart. Lavender was also made a defendant to the bill, but by subsequent amendment joined with Pace as co-plaintiff.

Pace alleged in the bill, in addition to facts above stated, that a large amount of his cotton crop made upon the lands was ungathered, that he had about ten thousand dollars’ worth of merchandise in the store, and thirty-one head of horses and mules, and about twelve thousand bushels of corn on the premises; that the sheriff was about to eject him from the premises, put the merchandise out of doors, etc., and that he would lose irrecoverably all the cotton remaining ungathered upon the lands, etc.

The court on the filing of the bill granted a temporary injunction, and on the final hearing, made it perpetual, and Stewart appealed.

Stewart in his answer, and by oral testimony at the hearing, alleged, and attempted to prove, that Patterson, his intestate, owned the lands, and that he, as his administrator, was entitled to possession of them; while Lavender made a like claim for his intestate, and himself as administrator.

Which of the intestates had the better title to the lands, it would be difficult to determine from the transcript before us, but that question is not to be decided on this appeal.

The counsel for appellant submits that there is very little reason to think that the Sheriff would have used his writ on any one not named in it, but if he had done so, he would have been liable on his bond, and that the bill shows no valid grounds of equity jurisdiction.

The bill alleges that the Sheriff was about to turn Pace out of possession of the premises under the writ ag'ainst Overby, and this is not only not denied by the answer, but Stewart insisted most vehemently that he had the right to have Pace put out, and possession delivered to him under the writ.

The action of ejectment may be brought against the person in possession of the premises claimed, or his lessor, or both. Gantt’s Dig., sec. 2251.

The person from or through whom the defendant claims title to the premises may, on his motion, be made a co-defendant. Ib., sec. 2251.

Overby was the mere employee of Lavender & Pace in the store. He was not in possession of the lands as the tenant of Lavender or as sub-tenant of Pace. If Overby had defended the action of ejectment, and shown that he was merely a Clerk in the store, employed to sell goods, keep the books, etc., no judgment could have been rendered against him for possession of the lands, and costs, as was done on his default.

Nor did the judgment against him bar or preclude the title of Lavender, o*’ the right of possession of Pace as his tenant, neither of them having been made a party to the action. Howard v. Kennedy, ex., 4 Ala., 595; Chiniquy v. Catholic Bishop, 41 Ill., 148; Hawkins v. Reichart, 28 California, 536.

A suit against the Sheriff might have been a very inadequate remedy for Pace for the inconvenience of being turned out of possession of the land before the expiratton of his lease, and the loss of his ungathered cotton.

Ve think the appellees made a case for the interposition of the Court of'Chancery by injunction. Ridge v. Bank of Tennessee, 11 Humph. (Tenn.), 523; Goodnough, et al. v. Sheppard, 28 Ill., 81.

Decree affirmed.


author: WALKEE, J.:

text:
    Mesler vs. McClure.
    Lmros License: In what funds payable in Sebastian county.

    County -warrants issued by Sebastian county, prior to the division thereof into two districts, are receivable for license and dues accruing to either district.
    •APPEAL from Sebastian Circuit Court.
    Hon. W. W. Mansfield, Circuit Judge.

      Yonley for appellant.

      Hughes, Attorney General, contra.

   WALKEE, J.:

Mesler filed in the Circuit Court of Sebastian county his petition against McClure, with a prayer for a writ of mandamus to compel him, as clerk of the County Court of said county, to issue to petitioner a license to keep a dram shop in the city of Fort Smith.

A demurrer was sustained to the petition, and judgment rendered against Mesler, from which he has appealed to this court.

The facts set forth in the petition are conceded to be sufficient to entitle the petitioner to the relief sought, if the payment of the $100 tax was in such funds as the county was by law bound to receive.

The court to whom the application was first made accepted and approved Mesler’s bond as sufficient, but refused to receive county scrip or warrants in payment. Afterwards, and in vacation, Mesler paid the tax in Sebastian county scrip to the sheriff of the county, and took his receipt for the same, which he presented to McClure, the clerk, and demanded of him to issue to him a dram, shop license. But McClure refused to issue the license, because he did not recognize a payment in Sebastian county scrip as valid.

To compel him to do so the writ of mandamus was asked.

It appears that as a matter of convenience to the citizens of Sebastian county, it was, by an act of the Legislature, approved April, 1875, divided into separate judicial districts.

Section 10 of this act provides, That said districts shall respectively defray all the expenses of holding courts, opening and repairing highways, building bridges, providing for paupers, erecting public buildings, and all other county expenses accruing within and on account of their respective districts, as if separate and distinct counties : Provided, that nothing in this act shall be so construed as to release either or both of said districts from any liability heretofore incurre.d by said county of Sebastian: Provided, further, that neither of said' districts shall, from and after the districts shall be established, be liable for any debt or liability that may be thereafter incurred by either.”

The territorial limits of the county are embraced in the two districts, all of the county revenue collected within them. They are declared to be separate in the support of their respective districts, the laws to be administered in each over the inhabitants of the districts separately. To do this, each claims the revenue collected in its own district. But under an express proviso which recognizes the existence of an outstanding county debt, and the liability of either or both of the districts to pay, no construction was to be given to the act of separation which was to release “either, or both of the districts from liability to pay this outstanding debt. In other words, that this liability was to remain against them, or either of them, just as it did against the county had no act of separation been-made. The prior liability of the county was, that the county should receive her scrip or warrants in payment of “taxes and debts accruing to the county, made so expressly by statute.” Gantt’s Digest, sec. 210.

At the time separate districts were formed, this scrip was good in payment for a dram shop license; the same law was being enforced in the districts, and we do not think the obligation to receive such scrip was impaired by force of the act of separation.

In this instance, it is true that the Fort Smith district was contracting with one of its citizens for a privilege to be exercised within its territorial limits, and may have desired to use the sum received, in liquidation of her district indebtedness, but the question is, can the district do this, without impairing the obligation of the county to receive her outstanding indebtedness in payment of debts; can the district stand in a better condition than the county could, after it had assumed the liability to payL? We think not.

Whatever may be the effect of the provisions of the constitution of 1874 and of the act of 1875 made under its authority, in other respects, it is evident that no act providing for separate districts, or- for the collection and distribution of the revenue collected in them, can so divert the revenue, so collected from the outstanding indebtedness of the county, incurred before the passage of such act, as to release the county from its obligation to pay them. To do this is, in effect, repudiation, which upon a fair consideration of the act of 1875 was not intended.

In holding as we must do, that the districts are bound to receive the county, scrip and warrants of the county, issued prior to the act dividing the county into districts, we are not unmindful of the difficulty which may arise, should one of the districts be called on to pay more of such debt than would amount to a proper charge upon the tax payers of the district so making payment. Should such be the case, an equitable obligation will rest upon the district which may discharge a less amount of this outstanding debt than it should do, estimating the amount to be paid by the amount of the revenue collected in each, to pay its due proportion.

But whatever difficulties may arise under the anomalous act, creating two districts in one county, charged with the administratration of the laws, and the support of district government we must hold them liable to pay this county debt, and to receive the outstanding scrip of the county in payment of the same.

The court bélow erred in refusing to grant a mandamus to compel the clerk to receive such scrip in payment for the dram shop license as asked by the petitioner.

Let the judgment be reversed and the cause remanded.


text:
    Peay, adm’r. of Shall, vs. Feild et al.
    1. Lien: Of an agent for taxes paid on land.

    To entitle an agent or attorney to a lien for taxes paid on land under the provisions of section 5233, Gantt’s Digest, he must shew that he was seized or had the care of the land.
    2. -.
    One who executes a note to his agent for money advanced in paying taxes on his land, in which he declares that he recognizes the existence of the statutory lien, does not thereby create a lien where none would exist by the statute.

      APPEAL from Pulaski Chancery Court.
    Hon. W. I. Warwick, Chancellor.

      Rose, for appellant.
    Cited Gantt’s Digest, 5233.
    J. M. Moore, for appellee.
    The statute relates only to persons having control of land. Feilds was discharged by bankruptcy. No lien could thus be acquired on the homestead, by subrogation to the lien of the State. Const, of 1868, art. 12, secs. 2 and 3. Shall had no lien for the two per cent, interest, over statutory rates.
   Walker, J.:

David F. Shall, in his bill of complaint, alleged that as the agent for William H. Feild, he paid the taxes of Feild on certain real and personal property which amounted to the sum of $542.34. The land is described, upon which the taxes were paid, a receipt exhibited showing such payment. That Feild paid him part of the money, leaving a balance due of $302.34 for the payment of which Feild executed to Shall the following note:

“April 1st, 1872. Ninety days after date, I promise to pay to D. F. Shall, or order, $302.34, with interest from date until paid at two per cent, per month for value received, without discount or defalcation. This obligation is given for money advanced to pay my taxes for the year 1871. The tax lien given by law on my property, for which this money was advanced to pay taxes, I hereby recognize. Witness my hand and seal.
“[Signed] W. H. FEILD. [Seal].”

Plaintiff avers that he holds a lien on the lands, upon which the taxes were paid, for the payment of this money, and concludes with a prayer that he may have judgment for the amount of the debt; that the tax lien be foreclosed, and that the land and town lots be sold to pay the same.

There are several other allegations setting forth that Feild was a bankrupt; that plaintiff was assignee, etc., but, from the view we take of the case, it is unnecessary to notice them.

Feild, who was made a defendant, appeared, and filed a demurrer to the bill, which was sustained, and the bill dismissed.

From this decree Shall has appealed to this court, and, having since died, Peay, his administrator, has appeared and prosecutes the appeal.

The sufficiency of the bill to fix a lien upon the land is the only material question at issue.

Plaintiff, to sustain his right to a lien for the money paid by him for taxes, relies upon the following section of Gantt’s Dig., sec. 5233: “Every attorney, agent or guardian, executor or administrator seized, or having the care of lands as aforesaid, who shall be put to any trouble or expense in listing or paying taxes on such lands, or, who has to advance his own money for listing, or paying the taxes on such lands, shall be allowed a reasonable compensation for the time spent, the expense incurred, •and money advanced as aforesaid, which shall be deemed in all courts a just charge against the' person, for whose benefit the same shall have been advanced, and the same shall be preferred to all other debts or claims, and be a lien on the estate, both real and personal, of the person for whose benefit the same shall have been advanced.”

The question is, has the plaintiff stated a case which brings him within the provisions of this act? We think he has not.

In order to entitle him to a lien for money advanced it must be for the payment of taxes upon land which, as attorney, agent, etc., he is seized or has the care of. Shall does not aver that he was seized of, or had the care of Feild’s land, in any capacity whatever, but he does aver, and he proves too, that he advanced the money for Feild with which the taxes were paid. This is not sufficient, the additional averment, to create a lien, was- necessary, either that he was seized of the lands, or had the eare of them. It appears from the instrument executed by Feild, in which he acknowledged the indebtedness, that he declared a recognition of the existence of a lien given by law, on his land for the payment, but, as the law gave no lien, the statement can avail nothing; it is no contract for a lien.

We are of opinion that Shall had no lien upon the property. Feild’s estate had gone into bankruptcy. If Shall had a right to recover his debt, it must be asserted against the bankrupt’s estate.

Let the decree be' affirmed.


text:
    White County vs. Key, adm’r.
    1. County Court: Power to re-open the settlement of a collector.

    The County Court has power to open, re-examine and correct the settlement of a collector at any time within twelve months, upon notice and without a petition; the statute authorizing it is highly remedial, and must be liberally construed.
    2. Same:
    When the collector, in a settlement before the County Court, was allowed a credit for revenue with which he claimed he had been improperly charged in a settlement for the revenue of a previous year, the court had power to open and re-examine the allowance at any time within twelve months, upon notice to the collector.
    APPEAL from White Circuit Conrt.
    Hon. John J. Clendenin, Circuit Judge.

      Coody for appellant.
    The petition prays for general relief, which will authorize any relief consistent with the facts. 19 Ark., 62.
    Cited JRief v. Conner, 10 Ark., 241, as to power of courts to alter judgments after term, changed by the Code, secs. 571 and ■371, and special act of Feb. 21st, 1867, p. 139; Gantt’s Digest, sec. 5280. All the proceedings were within one year. 22 Ark., 236.
    Cited further in support of the petition, and to show error, Gantt’s Digest, 5225 and 5265.

      B. D. Turner for appellee.
    The court could not vacate an order after the term. Rief v. Conner, 10 Ark., 241; Ashley v. Hyde, 6 Ark., 92; Walker v. Jefferson, 5 Ark., 23; Smith v. Dudley, 2 Ark., 66.
    Section '3596 of Gantt’s Digest applies only to Circuit Courts. It is to be construed in connection with section 3591. Sections •5281 and 5282 do not apply.
    The petition shows no ground for vacating the judgment. This is not a proceeding under section 3596, not being an application for a new trial. See section 4688. The petition does not state facts to justify a new trial, viewed in that light. See Rose’s Digest, title New Trials, secs. 81 to 97.
    . The Circuit Court was bound to presume the judgment right and affirm it. Kelly v. Union Connty, 23 Ark., 331; Redmond v. Anderson, 18 Ark., 449; Grimes v. Bush, 16 Ark., 647; Bank-head v. Hubbard, 14 Ark., 298. And the petition moreover is barred by the statute of limitations. Gantt’s Digest, sec. 4692. This appearing on the face of petition is good cause of demurrer. Lawson v. Badgett, 20 Ark., 195; Sullivan v. Hadley, 16 Ark., 129; Faulkner v. Thompson, 14 Ark., 479, and authorities referred to in MeGehee v. Blackwell et al., 28 Ark., 27.
   Walker, J.:

The questions of law presented for our consideration arise upon the following state of case:

William C. Petty, as sheriff and collector of the revenue of White county, at a County Court of said county, held on the 28th Of October, 1872, made a settlement of accounts as such collector, for the year 1871, in which he claimed that in his settlement of accounts for revenue for the year 1870, he had been improperly charged with the sum of $975.94 asa penalty on collections, and the further sum of $1989.42, in excess of the true amount which was charged against him, which, with interest,, amounted to the sum of $2112.09 to which sums he claimed credit, and upon his representation of the facts, as well as that of the clerk (as is alleged) procured orders of allowance to be made to him by the court for these sums, for which he was given credit in his settlement, made for taxes for 1871.

It is now claimed by the county that these credits were not just, that no such sums were, in fact, due from the county to Petty.

After the adjournment of the court at which these allowances-were made, and the credits given, and within less than twelve months thereafter, the court-, under an apprehension that there had been error in such settlement, caused a restatement of the-account to be made.

Petty having died, Key was appointed the administrator of his estate.

At the second term of the court after the settlement had been made, the court opened the settlement so made, for the purpose of correcting errors, and more particularly, that of giving Petty credit for the amount of the allowance so obtained.

The administrator questioned the right of the court to reinvestigate the correctness of. these claims of allowance. Whereupon the court suspended the further consideration of the case,, and gave to the county permission to file a petition setting forth the facts of the case, which was done.

Upon the presentation of the petition, the administiator aj)peared and filed his demurrer to it. The County Court sustained the demurrer,, the county appealed to the Circuit Court,, where the judgment of the County Court was affirmed.

The case is brought before us by appeal.

The questions of law presented for our consideration, arise upon the demurrer to the petition, but from the view which we take of the case, and the powers of the County Court, to open the settlement and correct errors, we think that no petition was necessary. That the court had power to re-examine the settlement at any time within one year, giving to the collector notice of such re-examination, is beyond question.

Under the several provisions of the statute, the court is empowered to settle with the revenue officers, and to have such settlements spread in full upon the records. Gantt’s Digest, sec. 5224. After this, and several other sections to enforce settlement, it is provided in 5280, that “where any error shall be discovered in the settlement of any county officer made with the board of supervisors, it shall be the duty of the board, at any time within one year from the date of such settlement to reconsider, and adjust the same.” But before sueh settlement shall be re-examined, it shall be the duty of the board to give such officer ten days’ notice of the time and place where such settlement shall be readjusted.

Under this power to re-investigate settlements, and correct errors, the County Court proceeded, within less than one year after the settlement made with the sheriff for revenue collected by him for the year 1871, to give the required notice, and have the accounts of Petty restated.

In the settlement as first made, these two orders of allowance had been credited to Petty in settlement. It was claimed on the part of the county, that these allowances were permitted to be made upon a misapprehension of facts, that they were not proper charges against the county, and should not have been allowed. Whilst on the part of Key, it was insisted' that these orders of allowance having been made by a court of competent jurisdiction, after the expiration of the term at which made, must be held as conclusive evidence of their validity, until reversed or set aside by a competent tribunal, in a direct proceeding for that purpose, and thus the only matter in question for our consideration is presented.

It was not necessary that a petition should be filed in order to bring this question as fully before the court as its power extended, to investigate and correct errors in settlement; to do this, was the duty of the court without petition. The demurrer to the petition could present nothing more for the consideration of the court than would arise upon objection to evidence tending to impeach the validity of the orders of allowance. We have no doubt but that the County Court had power to open the settlement made with Petty, and to correct errors should such be found to exist.

But the precise question at issue is, had the court, when the settlement was so opened, power to investigate the validity of the claims which had been by the court allowed ?

That we may the more clearly test this power to re-investigate, let us suppose that the collector, at the time of his settlement, had presented his account for this sum as money paid by him in his settlement with the court for taxes for the year 1870, in excess of the sum really due ? There can be no doubt but that if the court, under a misapprehension of the facts, had passed upon and allowed credit in settlement for the amount, that upon a re-examination of the accounts if it should be made to appear that the credit was unjust, the court should reject it, and restate the account according to the facts. The material difference between that case and the one before us is, that at the same term of the court and touching the same settlement, the sheriff presented his claim for such excessive payment, and upon the same misapprehension of facts had it allowed and then presented it as a credit, which was allowed. In the case stated, the court would be called upon to audit and allow the claim as a credit. In this, the court first audited, and then allowed the-claim so audited as a credit, but whether audited before or at the time of giving the credit, in view of the time when acted upon,, the purpose for which it was done, and the use which was made-of it, we think it should be considered as parts of the same-transaction ; its effect and purpose were, to procure a credit in settlement for that amount, made under a statement of facts,, which, if untrue, should vitiate the credit.

This provision of the statute giving to the court time to reexamine its settlements and to correct errors, was made in con-. sideration of the multiplied estimates to be made, and the importance to the county of the trust so reposed. It is highly remedial,- and should be liberally construed, and wé think the court had power to re-examine, re-state, and correct errors, if' such should be found to exist; in doing which it had power to look into the validity of the credits, as fully as if no orders of allowance had been made; to do less than this would defeat the purpose of the investigation. We think it most consistent with the spirit of the statute, and the end for which the power to reexamine such settlements was conferred upon the court, to give to the statute a liberal construction, so as to enable the court to-reach the mischief intended to be remedied.

In so holding, no injustice is done to the officer whose settlement is opened for examination; he is to be given notice of the-time and place of re-examination, with a right to be heard. If,, in this case, the credits given to the collector are just, a reexamination will not deprive him of them. If, on the other hand, they should be found unjust, they should not be allowed,, and he should be required to pay to the'county the revenue unjustly withheld.

In thus holding, we are not to be understood as questioning-the well established rule that the judgments of courts, when rendered in cases properly presented before them, and over ■which they have jurisdiction, should be held to impart absolute verity until set aside or reversed by a direct proceeding in some court of competent jurisdiction. The correctness of our former decisions, Reif v. Conner, and others cited, is not questioned. They were rendered, however, under a very different state of case from that presented in this.

The orders of court allowing these claims against the county were at most but auditing them, to be used as credits in settlement, a question which, if presented as an account for credit, would have been passed upon by the same court and for a like purpose.

Under this view of the case, iye must hold that the judgment and decision of the Circuit Court was erroneous, and must.be reversed and set aside and the cause remanded, to be proceeded in in accordance with law and the opinion herein.