author: Turner, J.:

text:
    Bell, Trustee, vs. Radcliff.
    1. Deed of Trust: To secure future advances, etc.; how construed.

      A deed of trust recited that it was executed to secure a given sum for supplies already furnished, and supplies, cash, etc., to be advanced during the year, to enable the grantors to raise a crop on the premises; held, that while the amount was limited in terms, the controlling purpose of the deed was to secure a sufficient amount of supplies to enable the grantors to raise the crop, and a court of equity, if necessary to carry out the purposes of the trust, will protect and uphold additional advances over and above the limitations in the deed.
    2. --: Waiver, etc.

    Where the amount limited in a deed of trust executed to secure supplies and advances in the raising of a crop is insufficient to carry out the purpose of the trust, and the beneficiary under a second deed assents to additional advances under the prior deed, it will be regarded as an implied waiver and postponement of his equities until all the advances under the older deed are satisfied out of the trust fund.

      H. Application of Payments:
    Where different debts are due from the same party, the rule is well settled that he who makes the payment must declare on what account he pays it; if the payment is general, the right of appropriation is in the creditor.

      APPEAL from Lincoln Circuit Court.
    Hon. A. C. Jones, Special Judge.

      Bell and L. A. & X. J. Pindall, for appellant.

      H. Carlton, contra.

   Turner, J.:

This is a bill in equity brought by Thomas D. Radcliff as trustee, against W. F. Owens, as trustee.

It appears that in the year 1873, Tate & Faulkner, who were-cultivating a plantation in Lincoln County, made application to Sledge, McKay & Co., of Memphis, Tenn., for supplies to enable them to cultivate said plantation for that year. That to-secure Sledge, McKay & Co. in making them advances, they executed for their benefit a deed of trust bearing date the 22d of April, 1873, whereby they conveyed to M. Cheatham in trust for the benefit of Sledge, McKay & Co., all of one-half interest in all the cotton crop then being planted, and to be grown by the said Tate & Faulkner, and all their employees during that year on the plantation, more particularly known as the property of the Clay estate, and also all the interest that might accrue to Tate & Faulkner during that year in all the remaining one-half of all the said crop by advancing supplies, or otherwise, and also all the mules then on said plantation, and being used to grow said crop, making forty-three head in all, reciting further that said deed was made in trust for the following purposes, to-wit i That whereas the said Tate & Faulkner were justly indebted, or to become indebted during that year unto the said Sledge, McKay & Co., in the sum of thirty-five hundred dollars ($3500) for supplies already advanced, and supplies, cash and merchandize to be advanced during that year to enable them to raise and grow a crop on said plantation, all of which said indebtedness w;as due and payable on the first day of November thereafter; said deed of trust provided further, that in the event the said Tate & Faulkner should fail to pay all or any part of said indebtedness on the day it becomes due, then the said Cheatham, trustee as afoi’esaid, was thereby empowered to take into his possession all the aforesaid property, all the mules and crops, and after advertising the same for public sale twenty days at the court house door of Lincoln County, giving time, terms and place of sale, sell to the highest bidder for cash all the aforesaid property, and out of the pi-oceeds pay. first all cost of executing said deed, and apply the residue, so far as is necessary, to the payment of all of said indebtedness, and the remainder, if any, to go to the said Tate & Faulkner, or their representatives.

It further appears that at the same time another deed of trust was prepared and soon afterwards executed by Tate & Faulkner to Thomas D. Eadcliff, in trust for the benefit of Thomas 8. Tate for the same property embraced in the first deed, reciting that it is a second deed of trust and is in no manner to interfere with the deed given to Sledge, McKay & Co., and should in no manner be considered a claim until the said first deed should be fully satisfied, and was made in trust for the following purposes, to-wit: That whereas the said Tate & Faulkner were justly indebted to the said Thomas S. Tate in the sum of $4000 or thereabouts, the said Thomas S. being endorser on a certain note due from Tate & Faulkner to Lane, Moore & Co., and now held by the Merchants’ National Bank of Memphis, and being anxious to secure the said Thomas 8. as endorser on said note, the said Tate & Faulkner did for that purpose execute said deed of trust all of which said indebtedness was due the first of January, 1874, • and providing that if the said Tate & Faulkner failed to pay said indebtedness on the day it became due, then the said trustee was empowered to take into his possession all the said property and make such disposition of it as was provided in the first deed.

The said bill after setting forth the execution of the said deeds of trust, alleges that the said second deed of trust was executed and delivered with the full understanding of all parties, that Sledge, McKay & Co. should advance in the way of goods, supplies, etc., to Tate & Faulkner only to the amount specified in the first deed of trust, to-wit: the sum of thirty-five hundred dollars ($3500) and no more, and that under such agreement and understanding Tate & Faulkner executed and 'delivered, and the said Thomas S. Tate accepted the second deed of trust for the purposes therein stated, and that but for the said understanding and agreement the said apuellee would not have accepted and taken the second deed of trust. That Sledge, McKay & Co. advanced other sums in the way of goods, supplies, etc., above the sum of $3500 without the consent of the said T. S. Tate, and was a violation of the agreement between the parties and a gross fraud upon the rights of the said Thomas S. That Tate & Faulkner shipped and delivered cotton covered by said first deed of trust to Sledge, McKay & Co., to the amount of $4700, in the fall of 1873, it being more than was necessary to pay off and discharge said deed of trust. That W. F. Owen, as trustee under said deed of trust, had advertised for sale the 3d day of May, 1874, at the store of Taylor & Taylor, at South Bend, for ' cash in hand, thirty-seven of the mules on the plantation before mentioned, and about twenty bales of cotton, to satisfy a pretended debt under said deed of trust, when the same was actually paid off. That the said sale if permitted to be made, would cause great and irreparable injury to the said Thomas S. Tate, wherefore appellee prays that the appellant be restrained from selling or disposing of said property in any way.

On the 29th of April, 1874, the injunction prayed for was granted by the judge of the Circuit Court.

At the October Term, 1874, of the Lincoln Circuit Court, appellants filed their demurrer to the appellee’s complaint, assigning the following causes:

First — Because said complaint does not state facts sufficient to constitute a cause of action.

Second — Said plaintiff has as appears a full and adequate remedy at law.

Third — Said plaintiff has not made said Sledge, McKay & Co. parties to his bill, when by said bill they are necessary parties defendants.

At the April Term, 1875, of the Circuit Court, said demurrer was sustained by the court, and leave was granted the appellees to amend their bill.

And at the same term of the court, the death of W. F. Owens, trustee in the first deed of trust, having been previously suggested and shown, the cause was revived in the name of M. L. Bell, as trustee of Sledge, McKay & Co., and thereupon the appellees filed their amended complaint. And the said defendant M. L. Bell filed his answer to said complaint and amended complaint, and entered the appearance of the appellants N. R. Sledge, A. H. McKay and "W. M. Sledge, partners under the name and style of “Sledge, McKay & Co.”

The amended bill alleges, that on the 31st of March, 1874, "W. F. Owens, then trustee for Sledge, McKay & Co., commenced in the Lincoln Circuit Court, an action of replevin for the cotton and mules in the oi'iginal bill mentioned; that the sheriff of Lincoln County executed the writ of replevin by taking into his possession the said cotton and mules out of the possession of Thomas G. Tate and L. Guy Faulkner, against whom the action was brought; that said sheriff turned said cotton and mules over to the agent of W. F. Owens, trustee as aforesaid, and that on the 4th of April, 1874, the said Owens, as such trustee, advertised said cotton and mules at public auction for cash in hand, and that said appellee had no adequate remedy at law to save his cestui que trust from great and irreparable injury.

That since the institution of said suit his cestui que trust Thomas S. Tate has had to pay off and discharge the obligation that he was endorser on, and for which endorsement and- to secure him harmless as said endorser, the said deed of trust was made.

That said T. S. Tate never did give his consent for Sledge, McKay & Co. to furnish any more supplies over and above the amount specified in said first deed of trust, except a small bill of some $300, and that the said Tate & Faulkner did ship cotton to Sledge, McKay & Co., sufficient and more than sufficient to pay off their indebtedness to said Sledge, McKay & Co., of the thirty-five hundred dollars aforesaid and the small amount that T. S. Tate gave his consent to, as aforesaid, with prayer as in the original bill and that appellants be enjoined from prosecuting their replevin suit, and that in the final decree the said T. S. Tate be saved harmless.

The answer of M. L. Bell, the appellant and trustee for Sledge, McKay & Co., in lieu of Owens, deceased, who succeeded M. Cheatham as trustee, admits the two deeds of trust, and that the debts therein mentioned were bona fide debts and were due and owing to Sledge, McKay & Co., and Lane & Moore and T. S. Tate, as stated, and that Sledge, McKay & Co. had knowledge of the second deed of trust. Denies they agreed to waive any rights under their deed of trust, or that any of the mules or cotton should go to satisfy the second. deed of trust until their own debt was fully paid off and discharged. That Avhile it is true that the deed of trust for the benefit of .Sledge, McKay & Co. expresses a debt of only $3500, it was well known to Tate, the beneficiary under the second deed of trust that the said debt was for supplies furnished and to be furnished to Tate & Faulkner, and that the said agreement was made at the solicitation of T. S. Tate, the beneficiary in the second deed of trust. That the said T. S. Tate was present at the execution of both deeds of trust and that it was verbally agreed that Sledge, McKay & Co. should advance whatever supplies might become necessary to enable Tate & Faulkner to cultivate their said crop for the mutual benefit of the said Sledge, McKay & Co. and the said T. S. Tate; who expressly agreed to make his claim second and subsequent to the claim of Sledge, McKay & Co, for supplies so furnished. That during the year 1873 it was ascertained that a large sum would be necessary to enable Tate & Faulkner to cultivate their crop, and the. said Sledge, McKay & Co. advanced the same to them by the consent and at the request of said T. S. Tate and his trustee, the appellee, and the said Sledge, McKay & Co. in. pursuance of said agreement at various times advanced the said Tate ■& Faulkner divers other sums of money in excess of the $3500, and supplies to enable them cultivate, gather, gin and ship their crop, amounting in all to.over $7000. That Sledge, ■McKay & Co. did receive from Tate & Faulkner and sold for them cotton amounting to more than $3500. But that they, in shipping, found it necessary to draw large sums of money on said cotton to pay off charges thereon, which said sums Sledge, McKay & Co. were compelled to advance and pay, to secure the said cotton at all; that the whole proceeds of said cotton should not be. credited on the said deed of trust debt, and that the said T. S. Tate and the appellee, his trustee, consented to waive their right and permit the said advances to be charged against said cotton on general account. That said debt secured by said deed of trust for the benefit of Sledge, McKay <§; Co., has not been paid. That on an adjustment between Sledge, McKay & Co. and Tate &■ Faulkner, on the 29th January, 1874, there was found to be due, from the latter to the former, on the debt secured by said deed of trust, the sum of $2249.56, for which Tate & Faulkner executed their note to Sledge, McKay & Co., bearing date the said 29th January, 1874, with '10 per cent, interest from date, which note shows upon its face that it was given for balance of the sum secured by said deed of trust, and remains unpaid.

This appellant files with his answer, as exhibits, a copy of said note and of said deed of trust and of his appointment as trustee.

The defendants, Sledge, McKay & Co., in their answer say that they were applied to by Tate & Faulkner for advances and expressly refused to credit them, then T. G. Tate of the firm of Tate & Faulkner went to Senatobia, Mississippi, where his father Thomas S. Tate resided, and brought him to respondent’s business house in Memphis and Thomas S. Tate importuned respondents to furnish the supplies, advances, etc., to Tate & Faulkner, after being refused two or three times, respondents at last agreed to make advances, furnish supplies, etc., to the amount of $3500 to Tate •& Faulkner, they executing the deed of trust of the 22d of April, 1873, the said Thomas S. Tate guaranteeing said debt. In pursuance of said agreement, said deed of trust was executed, and at the same time Thomas S.Tate executed to respondents his written guaranty, a copy of which is filed with this answer and made part thereof: That at the same time the said Thomas S. Tate took his draft of deed of trust to be executed for the purpose of securing him against liability to respondents in behalf of said Tate & Faulkner on an alleged debt he claimed against them on one of their notes. That it was then agreed between the parties that said deed of trust for the benefit of Thomas S. Tate should be entirely subordinate to their liabilities to respondents, whether expressed in said deed of trust or not.

Respondents admit that said deed of trust was executed in their presence, but under the circumstances and with the understanding first mentioned, and as respondents understood was to be executed in the State of Arkansas. Respondents also admit that at the time of the execution of the deed of trust for their benefit, they distinctly declined to agree to make advances beyond the said sum of $3500, but state that after they had advanced said amount of $3500 said Tate & Faulkner sent other orders to respondent’s house for other and additional advances, and respondents expressly declined to meet said orders, after which refusal Thomas S. Tate came to respondent’s house and requested him to make further advances, saying it would not do to stop their supplies when in the middle of their crop, and on the faith of this request and his promise to be responsible for the same, the respondents did make the advances shown by their account current with Tate & Faulkner. That this request and promise was made in the early part of August, 1873, by Thomas 8. Tate in person and verbally, but previous to said oral agreement, to-wit, early in July 1873, said Tate & Faulkner had overdrawn their limit of $3500, by an order on respondent’s house in favor of T. D. Radcliff for $230 and that respondents before paying the order wrote to Thomas S. Tate for instructions, and that he replied by his letter of July 8th, 1873, authorizing’the payment, which letter is exhibited with answer. That early in August., 1873, Thomas S. Tate in person had the understanding heretofore set forth with respondents.

That during the period of said advances beyond said amount of $3500, said Thomas S. Tate recognizing his liability for the same, requested the book-keeper of respondents to draft for him another deed of trust to be executed by said Tate & Faulkner to secure him against these additional liabilities, whether said deed of trust was drafted or executed these respondents do not know. That they advanced to the said Tate & Eaulkner to the amount ■of $7128.30, and received as net proceeds of cotton.shipped tliem the sum of $4682, and for the balance $2249.56, Tate & Faulkner executed their promissory note to respondents for that amount, •dated January 23d, 1874, and payable one day after date. That said Thomas S. Tate was duly notified of the amount of sa.id advances beyond his written guaranty, and after said note of $2249.56 was taken he was notified of the face, and the character of the note was stated to him. Pie offered then and repeatedly after-wards to join in the note and execute any other assurance or lien respondents might wish, if time was given until his son could raise another crop. That lie repeatedly and on different days recognized the debt, and expressed his anxiety that it should be paid, averring that all he wanted was time.

Respondents deny the truth of the allegation that but for their agreement that advances to Tate & Faulkner should not exceed $3500, said second deed of trust for the benefit of Thomas S. Tate would not have been made. That though respondents expressed unwillingness to advance beyond $3500 they made no agreement to that effect.

The substance of the evidence in the case was as follows:

Thomas S. Tate said: The Radcliffe deed of trust was executed to secure me as an endorser for Tate & Faulkner for thirty-seven or eight hundred dollars. It was executed in the counting-room of Sledge, McKay & Co., in Memphis, Tenn. It' was drawn up by the book-keeper of Sledge, McKay & Co., with a special understanding between myself and Sledge, McKay & Co. The day plaintiff’s deed of trust was drawn, Tate & Faulkner executed a deed of trust to Sledge, McKay Co., to secure them to the amount of $3500. My son T. G. Tate was in Memphis and wrote to me to come to Memphis and assist him to make arrangements to get supplies to run his plantation in Arkansas. I went to Memphis, at his request, and saw Sledge, McKay & Co. for Tate & Faulkner, and told them that I would give them letter of credit for $3500, and they were to take the deed of trust, which is exhibited with the paper, and told them also that I was endorser for Tate & Faulkner and that I would take for my benefit the deed of trust to plaintiff, and both deeds of trust were executed at the same time, and the deed of trust for my benefit was fully understood by Sledge, McKay & Co.

Sometime in June, 1873, I was in Memphis and authorized a cask of bacon to be sent to Tate & Faulkner, and agreed to extend my letter of credit for them for five hundred dollars more, provided they would execute to me a deed of trust upon their property for my security in giving an extension of my letter of credit.

The deed of trust for $500 was drawn up by the same person that drew up the other deed of trust, and my son signed it there in the presence of McKay and Fulmer. It was never signed by Faulkner and never executed and I never authorized Sledge, McKay & Co. to furnish Tate & Faulkner any other supplies, except as aforesaid, but refused to do so unless I was made safe by the deed of trust. I did authorize Sledge, McKay & Co. to let Radeliff, the plaintiff, who was a nephew of mine, have two hundred dollars or upwards on my letter of credit.

Tate & Faulkner paid me about $715 on .the obligation on which I was endorser, and the balance I have discharged, and taken up the original obligation.

This witness, in answer to the interrogatory : “State if you ever by any writing. except as aforesaid, authorized Sledge, McKay & Co. to furnish supplies to Tate & Faulkner? Said : I never did by any writing or talking.

Thomas G. Tate was present at the execution of the two deeds of trust. It was some time in July, 1873, that Tate & Faulkner liacl drawn from Sledge, McKay & Co. the $3500. Sledge, McKay & Co. wrote to Tate & Faulkner that they could not draw any further without an arrangement with T. S. Tate. Went over to Memphis and my father agreed to extend our credit for $500 more, and Tate & Faulkner, to secure him, was to execute another deed of trust for the amount, but it was never completed, Faulkner having refused to execute it. Fulmer afterwards came to my house some time in the fall, and agreed that he would go' back and see Sledge, McKay & Co. about it, and if we would ship our cotton they would furnish us with money and supplies. He did write to me that if we would send the cotton, the house would extend the accommodations we asked for (letter exhibited marked A, also letter marked B, and made part of deposition). Tate & Faulkner shipped cotton to Sledge, McKay & Co., to the amount of $4900.

W. M. Sledge, of the firm of Sledge, McKay & Co., whose evidence sustains the answer of Sledge, McKay & Co., in every particular, said, that after Sledge, McKay & Co., had advanced the $3500, mentioned in the deed of trust, they notified Thomas S. Tate of the fact, as we looked to him for the payment of any advances made to Tate & Faulkner, who made application for an additional amount of supplies over and above what was called for in the deed of trust, which we refused to fill until Thomas S. Tate came into our office and notified us that it would not do to stop supplying them in the midst of the crop; to continue to supply them from time to time with only what we thought was necessary, carrying out Thomas S. Tate’s instructions as far as we were capable of doing. That the cotton shipped failed to pay for supplies advanced, leaving a balance of $2249.56, for which Tate & Faulkner executed their note dated the 29th January, 1874, and payable one day after date. Soon after the execution of this note, Thomas S. Tate came into our business house to see us in reference to this note, at which time W. M. Sledge and A. N. McKay informed him that this was the unpaid balance due for supplies furnished Tate & Faulkner, and thatthe firm looked to him for the payment of the note, and we wanted to know what he was going to do about it. He said he had no money to pay it himself. That he would not pay it then, and that Tate & Faulkner could not pay it, but that he was willing to unite in a joint note with them for the payment of the said amount of money payable in the fall of 1874. We refused to take the note as proposed unless he would give a city acceptance, or a de.ed of trust on his land. He refused to do either.

A. N. McKay, one of the firm of Sledge, McKay & Co., said: “I have been present and heard all the testimony given by Wm. M. Sledge in this case, and am knowing to each and all of the facts stated by him, and know them all to be true.”

On cross examination this witness stated further: That after Sledge, McKay & Co. had furnished Tate & Faulkner supplies amounting to §3500, they refused to make any further advances until requested by Mr. T. S. Tate to do so, he becoming responsible for the same, and that all supplies furnished over and above the deed of trust -were furnished at the verbal request of T. S. Tate, made in the presence of Mr. Fulmer. Thomas S. Tate did not refuse to let Sledge, McKay & Co. furnish other bills of supplies after the §3500 had been supplied. Before the deed of trust had been signed and recorded, and after a small amount of supplies had been advanced, Tate & Faulkner being a little tardy about executing the deed of trust and sending it back, Thomas S. Tate ordered Sledge, McKay & Co. not to advance them any thing more until after the deed of trust was fully executed and returned. The said Thomas S. Tate stopped advances to Tate & Faulkner until the papers were sent back, and when the papers were satisfactory to him he ordered Sledge, McKay & Co. to go ahead and supply them.

J. S. Carutliers, of the City of Memphis, a witness in this cause: “in September or October, 1873, in the office of Sledge, McKay & Co., in Memphis, I heard Thomas S. Tate say that he would become responsible for further advances made by them to Tate & Faulkner, they having advanced the amount they had agreed to do under the deed of trust given by Tate & Faulkner to secure them. I remember this more distinctly because Mr. Faulkner was an old war prison friend of mine, and I was interested in his welfare.”

This was all the evidence given in the case.

At the October Term, 1876, of the Lincoln Circuit Court, this cause came on to bo hoard upon the complaint and amended complaint and exhibits to said complaint, the answer of the defendant, Marcus L. Bell, trustee, and the exhibit of a copy of the note of Tate & Faulkner, whifih by consent was read in evidence for defendants in lieu of the original note, also the answer of Sledge., McKay & Co., and the exhibits thereto. The depositions of Thomas S. Tate and Thomas G. Tate and the exhibits to the deposition of Thomas G. Tate. ' The deed of trust from Tate & Faulkner to the plaintiff Radcliff for the benefit of Thomas S. Tate, and also the deed of trust from Tate & Faulkner for the benefit of Sledge, McKay & Co., on the part of the plaintiff, and the depositions of Wm. M. Sledge, A. N. McKay, John W. Fulmer and J. S. Caruthers on the part of the defendants.

Whereupon the court being satisfied from the evidence that the deed of trust from Tate & Faulkner for the benefit of Sledge, McKay & Co. had been fully paid off and discharged before the said suit of replevin for the mules and cotton as ■described in complaint was instituted and that all of said property is included in the deed of trust from Tate & Faulkner to plaintiff Radcliff for the benefit of Thomas S. Tate, is in full force and effect, and that the injunction was properly granted. It is therefore ordered, adjudged and decreed that said injunction be made perpetual, and that said defendants be perpetually ■enjoined from further prosecuting said replevin suit, and that they pay all the costs herein.

From which judgment and decree of the court the defendants appealed to this court.

This is a contest between Sledge, McKay & Co. beneficiaries in the first, and Thomas S. Tate beneficiary in the second deed of trust. The evidence shows that Tate & Faulkner, planters of Lincoln County, early in the year 1875, applied to Sledge, McKay & Co., a mercantile firm in Memphis, to furnish them •supplies, to enable them to cultivate their plantation. Sledge, McKay & Co. at first refused to furnish the supplies; afterwards Thomas G. Tate, of the firm of Tate & Faulkner, went to Mississippi and induced his father, Thomas S. Tate, who resided there, to go with him to the business house of Sledge, McKay & Co., who af length agreed to furnish the supplies to Tate & Faulkner to the amount of $3500, to secure which they executed the aforesaid deed of trust. The said Thomas S. Tate, at the same time executing to Sledge, McKay & Co. his written guaranty for the payment thereof.

At the same time the second deed of trust was prepared for the benefit of Thomas S. Tate, and afterwards executed by Tate ■& Faulkner.

True, it has been questioned whether the second deed sufficiently identifies the property embraced in it, as being the same contained in the first deed of trust, and. while the second deed is not drawn with the precision and accuracy which ought to be observed in the preparation of such papers, we think there can be no reasonable doubt but that both deeds embraced the same-property.

Supplies to the amount of $3500 mentioned in the first deed of trust having been furnished by Sledge, McKay & Co. to Tate & Faulkner, they declined making further advances until early in the month of August, 1873, the said Thomas S. Tate came to the house of Sledge, McKay & Co. and requested them to make-further advances, saying it would not do to stop their supplies in the middle of their crop, promising at the same time to be responsible for such supplies. Upon the strength of this request and promise, Sledge, McKay & Co. made further advances to Tate & Faulkner, amounting in the whole to $7128.36, all of which was required by Tate & Faulkner to enable them to cultivate, gather and secure their crop.

At this point we cannot overlook the conflict in the testimony of witnesses, whose depositions were read upon the hearing of this cause in the court below.

Thomas S, Tate, the beneficiary under the second deed of trust, denies positively that he had authorized or directed Sledge, McKay & Co. to furnish any other or further supplies to Tate & Faulkner over and above the $3500 mentioned in the first deed of trust, except a small order for $200 or $300 in favor of his-nephew, Radcliff, and that he never assumed responsibility to. Sledge, McKay & Co. for the payment of such additional supplies; while William M. Sledge and A. N. McKay, beneficiaries in the first deed of trust-, and John W. Fulmer and J. S. Caruthers as positively asserted, that he did authorize and direct Sledge,. McKay & Co. to furnish such additional supplies to Tate &■ Faulkner, and these latter witnesses give time, place and circumstances.

The witnesses are all unimpeached, and so far as this court knows of equal credibility; but the weight of evidence is clearly in favor of Sledge, McKay & Co., fo.ur witnesses testifying affirmatively to the truth of certain material facts; while a single witness denies the truth of those facts.

When it is remembered that Sledge, McKay & Co., although applied to, refused to furnish supplies to Tate & Faulkner until the first deed of trust was. executed and the within guaranty given by T. S. Tate to secure payment for advances to the amount of $3500, and that when that amount of supplies had been furnished, Sledge, McKay & Co. refused to make further and additional advances, it would seem improbable that they would furnish additional supplies, and make advances to Tate & Faulkner to the amount of nearly $4000, above the amount mentioned in the deed of trust, at the simple request of Tate & Faulkner, or upon a promise by them to ship all their cotton to Sledge, McKay & Co., which they were already bound to do by the written guaranty of Thomas S. Tate. Without speculating, however, about the probability of the case we have conclusive testimony that these additional advances were made by Sledge, McKay & Co., at the request of Thomas S. Tate, he urging their shipment and assuring them he would be responsible for the payment of the same.

Having reached a satisfactory conclusion as to the facts of' the case, our next inquiry will be as to the rights of the respective beneficiaries under the first and second deeds of trust, in connection with the additional advances by Sledge, McKay & Co.

The first deed of trust was given to secure them for supplies furnished, and to be furnished, Tate & Faulkner, to the amount ■of $3800.

The second or junior deed of trust was given avowedly to secure Thomas S. Tate, against his endorsement on a certain obligation executed by Tate & Faulkner to Lane & Moore, for $3700, or $3800. .

The second deed was to- be subordinate to the first, and the claim to the trust property, under the second deed, could not arise until the first deed was satisfied.

It is contended by the appellee that when the amount of $3500, in supplies, had been furnished by Sledge, McKay & Co.,, to Tate & Faulkner, it was a satisfaction of the first deed of trust, and that as a consequence the second deed supersedes and takes the place of the first.

This is an important question and deserves our serious consideration.

It will be remembered that when the amount of supplies limited in the first deed of trust was exhausted, Thomas G. Tate of the firm of Tate & Faulkner, and Thomas S. Tate, beneficiary in the second deed, went to the business house of Sledge, McKay & Co., in Memphis in the summer of 1873, at which time and place it was arranged between the parties that Sledge, McKay & Co., should continue to furnish Tate & Faulkner additional supplies as needed, not however until Thomas S. Tate, gave express directions that such supplies should be furnished, saying it Avould not do to stop their supplies in the midst of the crop, and declaring to Sledge, McKay & Co., that he Avould be responsible-for these advances.

It will be observed, that the deed of trust recites that: “Whereas the said Tate & Faulkner, were justly indebted, or to become indebted during the year 1873, to Sledge, McKay & Co.,, in the sitm of thirty five hundred dollars ($3500), for supplies already advanced, and supplies, cash and merchandise to be advanced during that year, to enable them to raise and groAV a crop on said plantation.”

While the amount of supplies was limited in terms to $3500, ■ the controlling purpose of the deed, was to secure for Tate & Eaulkner, a sufficient amount of supplies to enable them to raise and grow their cotton crop for that year. If this crop had been abandoned in mid-summer, as it must necessarily have been, without the needed supplies, it would not only have been ruinous to Tate & Faulker, but the interests of Sledge, McKay & Co., and T. S. Tate, in the trust fund would have been seriously compromised if not totally sacrificed.

When it was ascertained that the crop could not be grown, matured, and saved, without additional advances, and Tate & Faulkner were appealing to Sledge, McKay & Co., to make them advances, and Thomas S. Tate was also urging that the advances be made and assuming a personal responsibility for the same, Sledge, McKay & Co., resumed their shipments of supplies to Tate & Faulkner, and continued to furnish them such supplies as were needed until their crop was grown, matured and saved.

Are they not then entitled to,the protection of a court of equity for advances made under these circumstances ?

When the arrangement' was made to furnish additional supplies after the limit of $3500, had been reached, with the assent and approbation of Thomas S. Tate, we must regard it as an implied waiver and postponement of any contingent rights or equities he might have under the second deed of trust to the rights and equities of Sledge, McKay & Co., under the first deed, until all their advances were paid for and satisfied out of the trust fund, and this appears the more reasonable, when we reflect, that from the beginning, Thomas S. Tate, was interested in the matter of supplies to be furnished Tate & Faulkner, which would not have been furnished in the first instance but for his written guaranty, and that when the arrangement was made for additional advances, it was his special request and assumption of responsibility for the payment of the same that induced Sledge, McKay & Co., to continue shipments of supplies to Tate & Faulkner, so as to enable them to carry out the purposes of the deed of trust in the enlargement and preservation of the trust fund in which all the parties were interested.

The power of a court of equity is believed to be ample to protect the interests of all parties in the trust fund, subordinating, if necessary, the literal wording of the deed of trust in so far as it limits the amount of supplies to $3500 to the higher purposes had in view when the deed was executed, which was to provide for future advances.

Such provisions in deeds of trust and mortgages are of frequent occurrence, and although there may be a limitation as to the amount of advances furnished, a court of equity will protect and uphold additional advancements over and above the limitation in the deed or mortgage, if necessary to capry out the purposes of the trust.

In the case of Lawrence v. Tucker, 23 How., 14, where a mortgage was given to secure the payment of a note for $5500, and such advances as then had been or might be made within two years, not to exceed in all an indebtment of $6000, and advances were made to an amount largely over $6000; the mortgage was held good to cover the advances and the note for $5500. 7 Cranch., 34; 1 Peters, 386; 5 Otto, 746; 31 Ark., 62.

We regard the first deed of trust as a deed providing for future advances, the amount to be determined by the object and purposes of the trust, and the actual necessities of the case.

If, however, the-amount of $3500 mentioned in the first deed of trust, and the amount due for additional supplies furnished by Sledge, KcKay & Co., be viewed in the light of different debts or liabilities, due from Tate & Faulkner, they having failed to direct the application of the proceeds of the cotton shipped, to the payment of either one or the other of said liabilities, then the creditor, Sledge, McKay & Co., had the undeniable right to make the application, and in the exercise of this right they applied the proceeds of the cotton shipped to the payment of the extra and additional advancements until they were paid for, and the residue of said proceeds was then applied to the deed of trust debt, leaving a balance due Sledge, McKay & Co. of §2249.56 for which amount Tate & Eaulkner executed and delivered to them their promissory note, before mentioned, it being for balance secured by the deed of trust.

As to the application of payments where different debts are due from the same party, the rule is well settled, that he who makes the payment must declare on what account he pays it, but if the payment is general, the right of application is in the party who receives the money. Wickerson v. Sterne, 9 Mod. Repts., 427, Leach’s Edit., where it was also held that the party paying must direct the application at the very time he pays. Manning v. Wortram, 2 Mod. R., 606; 1 Bibb, 334; 5 Mon., 251; 4 J. J. Mars., 98.

In the application of the payments by Tate & Faulkner, Sledge, McKay & Co., properly, we think, applied the proceeds of the cotton to the payment for the additional supplies first, and the remaining proceeds of said cotton were applied to the liquidation of said deed of trust debt.

We, therefore, upon a full review and careful consideration of this cause, are of opinion that the contingent equities of the second deed ought to be postponed until the first deed is satisfied and the additional advances paid for out of the trust fund.

We are therefore of opinion that the court below erred in granting the injunction in the cause and perpetually enjoining the defendants in the court below from further prosecuting their action of replevin, and do therefore reverse the decree of the Circuit Court of Lincoln County, and remand this cause to said court with instruction to dissolve said injunction, with leave to the appellees to amend their bill of complaint if they desire to do so, in order that the property embraced in said deeds may be sold under decree of said Circuit Court; first paying out of the proceeds thereof the balance of indebtedness due Sledge, McKay & Co. on their deed of trust, and the residue, if any, to Thomas S. Tate, the beneficiary in the second deed of trust.


source: Caselaw Access Project

author: Harrison, J.:

license: Public Domain

text:
    Miller vs. Callaway.
    Officer de facto : How far his official acts valid.

    The acts of an officer de fado only, are, when they concern the public or third persons having an interest in the act done, valid, and cannot be collaterally called in question; yet it is also well settled that a mere color of title to the office does not avail as a protection to him in an action against him for trespass to person or property, and that his acts, so far as he is himself concerned, are invalid.
    APPEAL from Clark Circuit Court.
    Hon. L. J. Joyner, Circuit Judge.

      Coleman and Curran, for appellant.
   Harrison, J.:

This was an action of replevin by appellant, J. W. Miller, against appellee, J. M. Callaway, for a stock of goods.

The answer of the defendant was: That the goods were levied on and seized by him as constable of Caddo township as the property of Dan. E. Jones, in whose possession he found them, to satisfy an execution in his hands, issued by James A. Calla-way, a justice of the peace of said township, upon a judgment recovered by R. Beauchamp against said Jones.

The plaintiff proved that the goods were sold and conveyed to him by Jones, by a deed in trust for said Jones’ creditors on the 18th day of April, 1876, and that the deed was recorded on the 13th day of May, 1876..

The defendant read in evidence the execution, which bore date the 18th' of April, 1876, and the return and other indorsements, thereon, by which it appeared that the execution came to the defendant’s hands on the day of its date; that it was returned for renewal on the 18th day of May, 1876, and was the same day renewed by the justice for twelve months, and that it was on the 19th day of May, 1876, levied by him on the stock of goods as Jones’ property, and he testified that the goods mentioned in the return were the goods in controversy.

The plaintiff then offered to prove that the defendant had never been elected or appointed to the office of constable of said township, and therefore had no authority to make the levy, but the court refused to suffer him to do so, and it is upon this ruling of the court the only question for our consideration arises.

Thát the acts of an officer de facto only, when they concern the public or third persons having an interest in the acts done, are valid and cannot be collaterally called in question, is a recognized and well settled doctrine of the law; yet it is also as well settled that a mere color of title to the office does not avail as a protection to him in actions against him for trespasses on person or property, and that his acts, so far as he is himself concerned, are invalid. Patterson v. Miller, 2 Met. (Ky.), 493; Rodman v. Harcourt, 4 B. Mon., 229; The People v. Hopson, 1 Denio, 574; Green v. Burke, 23 Wend., 490; Riddle v. Commissioners, etc., 7 Serg. & Rawle, 386; Keyser v. Commissioners, etc., 2 Rawle, 139; Fowler v. Beebe, 9 Mass., 231.

The distinction is very clearly exemplified in the case of Patterson v. Miller, above cited, the following statement of which is taken at length from the report of the same :

“The plaintiff stated in his petition that the defendant Miller, pretending to be the sheriff of Russell County, when in reality he was not the constitutional sheriff of that county, unlawfully and without authority took into his possession, and sold a sorrel mare, the property of the plaintiff, and that the defendant ^Haynes purchased said marc at the aforesaid illegal sale, and converted her to his own use.

The defendant Miller averred in his answer that he was the sheriff of-Russell County duly elected and qualified accordingto law; and as such seized the property in the petition mentioned, and made sale thereof, under and by virtue of two executions which issued from the office of the presiding judge of the Russell County Court, and were placed in his hands for collection.

And the defendant Haynes in his answer admitted that he had purchased the property as sold, and insisted he had a right to make the purchase, as the property was sold under execution by a person who was acting as sheriff of the county.

The defendant Miller-read as evidence upon the trial the certificate of his election as the sheriff of Russell County, and the records of the County Court, by which it appeared that he had qualified and executed an official bond as sheriff according to law.

The plaintiff then offered to prove that Miller was not a resident of Russell County at the time he was elected; but was then and still was a resident of Adair County.

The testimony was rejected by the court on the ground that the certificate of the examining board was conclusive evidence, not only of Miller’s election as sheriff, but also of his eligibility to the office.”

The Court of Appeals held that the rule was sufficient to protect Haynes, the purchaser of the mare; but that the testimony offered by the plaintiff was admissible against Miller to show that he was a trespasser.

The court below should have permitted the plaintiff to make the proof he offered, and for its error in refusing to allow him te do so, the judgment is reversed and the cause remanded to it, with instructions to grant the plaintiff a new trial.


text:
    Little Rock & Fort Smith Railroad Co. vs. Hall.
    Evidence: Bill of Lading.

    A bill of lading is prima fade evidence of the receipt by the carrier of the. articles enumerated in it, and of the terms of the contract of carriage.
    APPEAL from Faulkner Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Clark & Williams, for appellant.

      Caldwell and Allen, contra.

   Harrison, J.:

This suit, which ivas commenced before a justice of the peace, but finally determined in the Circuit Court, was brought by the appellee against the appellant to recover the value of a bale of cotton claimed to have been lost in transportation on appellant’s road.

The defendant, the complaint alleged, on the 2d day of December, 1875, received from the plaintiff at Conivay Station, four bales of cotton, to be carried for him to Argenta and delivered to Doivdle, Gibson & Co., but one of which bales it failed to deliver.

The defendant’s answer denied that it received four bales from the plaintiff, but admitted that it received three.

Verdict and judgment for the plaintiff for $65.

The plaintiff read in evidence the bill of lading or receipt, signed by the defendant’s agent at Conivay Station, and dated December 2d, 1875, for four bales of cotton, to be carried to Argenta and delivered to Dowdle, Gibson & Co., and produced other evidence conducing to prove that the defendant received from him that number of bales ; and proved his ownership of "the cotton and that a bale thereof was worth $65.

J. D. Townsend testified for the defendant that he was its agent at Conway Station, and made out and signed the bill of lading; that there was a mistake in the bill of lading, which .should have been for three bales instead of four, the mistake occurring by his counting as one of the plaintiff’s bales, a bale belonging to another person, and which mistake he discovered ■the day after the bill of lading was given.

And F. H. Petway, another employee of the company, testified that he counted the plaintiff’s bales and there were but three of them.

The court instructed the j ury that the bill of lading was prima facie evidence that four bales were received, and put the burden >upon the defendant of showing that only three were received by it.

To this instruction the defendant excepted.

The instruction was correct. The bill of lading or receipt was prima facie evidence, not Only as to the number of bales received, but as to every stipulation of the contract of carnage. It could have been intended for no other purpose than as evidence of the fact that so many bales of cotton had been received from the plaintiff for transportation, and the terms and conditions upon which they were to be carried. 2 Redfield on Railways, 141, 146; Nelson v. Woodruff, 1 Black., 156; Hastings v. Pepper, 11 Pick., 41; Price v. Powell, 3 Comst., 322.

Judgment affirmed.


text:
    McLeod vs. Bernhold.
    Trust deed: Right of possession, etc.

    A provision in a deed of trust to secure a debt, that the grantors may retain possession of the property until the maturity of the debt, unless they do some act inconsistent with the object of the deed, does not affect the trustee’s right of possession as against third parties; and where the property is taken out of the possession of the grantors under an adverse claim he may sue for its recovery.
    APPEAL from Lee Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Rose, for appellant.

      Palmer, contra.

   Harrison, J.:

Adolph Bernhold sued George ~W. McLeod before a justice of the peace in replevin for a mare, a mule, and three head of cattle.

The defendant pleaded title in himself. The verdict and judgment wore for the defendant; and the ‘plaintiff appealed to the Circuit Court.

The case was tried in the Circuit Court, by the court without a jury, which found in favor of the plaintiff, and likewise the value of the property, and assessed the damages at $35.

The defendant moved for a new trial, which was refused, and judgment for the property, which had not been delivered to the plaintiff, and for the damages, was rendered against him, and he appealed to this court.

Several exceptions to rulings of the court during the trial were reserved by the defendant, but the matters excepted to were not made grounds of his motion for a new trial, and were consequently waived and abandoned by him as has been repeatedly held by this court.

The only ground assigned was that the finding of the court was contrary to the law and evidence.

The plaintiff read in evidence the following agreed statement of facts:

James A. Bush was the trustee in a deed of trust from Merrill Congress, dated March 25th, 1876, to secure a debt of $100, which the latter owed the defendant. In November, 1876, the debt being due and unpaid, Bush sent J. W. Risk to Congress' house for the property conveyed to him by the deed. Risk took the property against the objection of Lizzie Congress, the wife of the said Merrill Congress, who claimed the same as her separate property, and carried it to Marianna to Bush, and Bush advertised and sold it in accordance with the terms of the deed of trust, and the defendant purchased it at the sale. '

The plaintiff claimed the property and protested against the sale, and after sale brought this suit for its recovery.

That the property mentioned in the deed of trust of the defendant marked “Exhibit PI," and that in the plaintiff's exhibits “A" and “B," consist of one mare valued at $50, one mule at $60, two cows at $15 each, and one steer at $10,- and that that mentioned in the three exhibits named, is the property in controversy, and was all which the defendant purchased at the sale.

That the defendant is the same person who is mentioned in the deed of trust. “Exhibit H," as cestui que trust. And that the bay mare mentioned in the deed of trust offered as evidence in this cause marked “Exhibit O,” is the one mentioned in exhibits “A" and “B" of plaintiff's proof, and “Exhibit H" of defendant's. Hewett & Gov an, for Plaintiff.

M. Anderson, for Defendant.

He then read the “Exhibit A” referred to in said agreed statement of facts, which was a deed from Merrill Congress and Lizzie Congress his wife to the plaintiff of the property in controversy, dated the 17th day of August, 1876, in trust to secure the payment of a debt of $250, which they owed Frank & Bro., and which was, it was stated, evidenced by a written obligation of the same date, but when'payable was not stated, in which deed it was provided that until the debt fell due and default of payment was made, the said grantors should, unless they did or attempted to do something inconsistent with the object of the deed, retain possession and have the use and benefit of the property; and also read the “Exhibit B” referred to in the agreed statement of facts, which was the schedule of the separate property of the said Lizzie Congress, filed in the recorder’s office on the 6th day of January, 1876.

The other exhibits, H and O, referred to in the agreed statement of facts, were not read, and this was all the evidence in the case.

Although it in no way. appears that the debt secured by the deed of trust had become due, or that Congress and wife had forfeited the right to retain possession of the property before the suit was brought; yet, though they were still entitled to the possession, as the legal owner, the plaintiff had the right of possession against all persons, except them, whose possession was his possession, and might sue for its recovery. 1 Perry on Trusts, secs. 328, 330; Hill on Trustees, 274; Wynn v. Lee, 5 Ga., 236; McReany v. Johnson, 2 Fla., 520; Poage v. Bell, 8 Leigh, 604.

The evidence very fully sustained the finding of the court as to the title to the property, the only matter the answer put in issue, and also as to the value, which was found as settled by the agreed statement of facts, but there was no evidence whatever as to the damages occasioned by the detention of the property, and in’respect to them the judgment is erroneous.

In as much, however, as the amount of the error is so small, we will not remand the cause for a new trial, but will correct the error here by a modification of the judgment.


author: English, Ch. J.:

text:
    Arrington vs. Arrington.
    Lunacy: Proceedings in without notice.

    An order of the Circuit Court (while it was exercising probate jurisdiction), declaring a person to be of unsound mind, and appointing a guardian for him, without notice to such party, is void.
    ERROR to Drew Circuit Court.
    Hon. A. C. Jones, Special Judge.

      L. A. & X. J. Pindall, for plaintiff.

      Mo Cain, contra.

   English, Ch. J.:

On the 28th of January, 1874, and at the time the Circuit Courts were exercising probate jurisdiction, Mary S. Arrington presented a petition to the Circuit Court of Drew County, stating in substance that her son, West A. Arrington, was entitled to one-fifth interest in the estate of his father, West Arrington, deceased, which interest was of the value of $1000. That said property was situated in the counties of Drew, Lincoln, and Desha, and that petitioner, as well as West A. Arrington, was a resident of Drew County.

That said West A. Arrington was of unsound mind, and incompetent to transact his own business, and had been for the last four years past, and was squandering his property; and praying for an order causing him to be brought before the court, that the statements of the petitioner be inquired into by a jury, and for such further proceeding as to.the court should seem proper in the premises. '

On the filing of the petition, the court, without causing West A. Arrington to be brought before it, as required by the statute (Gantt’s Digest, sec. 3489), after hearing the evidence adduced in support of the petition, declared him to be non compos mentis, and made an order appointing Mary S. Arrington his guardian, and requiring her to enter into bond in the sum of $1000, etc. Whereupon the bond was filed, approved by the court, and letters of guardianship issued to her.

On the 1st of October, 1874, the securities of Mrs. Arrington made application to the court to be released from her bond, and •on the next day the motion was heard and continued, and an order was made that she be notified to file a new bond at or before the next term of the court, and also an account current of her guardianship.

Here, it appears from the transcript returned upon the writ of ■error, the proceedings in the Circuit Court terminated. But the clerk of the Circuit Court has copied into the transcript subsequent proceedings in the matter, which occurred in the Probate Court of Drew County, after the adoption of the present Constitution, and the restoration of probate jurisdiction to the Probate Courts.

It seems that the securities of Mrs. Arrington renewed their .application to be released from her bond in the Probate Court, on the ground that she was wasting the estate of her ward, and ■on the 27th of July, 1875, the court ordered her to file a new bond in fifteen days, or her letters would be revoked. On the 26th day of April, 1876, the court revoked her letters because of her failure to comply with this order, and appointed James P. Stanley guardian of West A. Arrington, who thereupon entered into bond, and letters were issued to him.

It also appears that on the 23d of February, 1876, John E. Strong recovered a judgment, in the Drew Circuit Court, against Mrs. Arrington, as guardian of West A. Arrington, and at the April Term, 1876, of the Probate Court, applied for an order to sell lands alleged to belong to West A. Arrington, to pay the judgment and claims of other creditors. ‘

On the 5th of December, 1876, and while this application for an order to sell the lands was pending in the Probate Court,. West A. Arrington sued out the writ of error in this case, in which Mrs. Arrington and Stanley were made defendants.

The writ of error does not bring before us for review the proceedings in the Probate Court, appointing Stanley, guardian, etc., and they were improperly copied into the transcript. It is the-province of the Circuit Court to review them, on proper application, before they can be brought here, and the writ of error-must be dismissed as to Stanley, who was erroneously joined with, Mrs. Arrington as a defendant.

The writ of error brings before us for review the judgment of the Circuit Court declaring the plaintiff in error to be insane,, and appointing Mrs. Arrington his guardian.

At the time the judgment was rendered, the Circuit Court had jurisdiction of the subject matter. Gantt’s Dig., sec. 3488.

But it does not appear that the plaintiff in error had any notice of the application to have him declared non compos mentisy or that he was brought before the court, or that there was any-inquest by a jury. Ib., sec. 3489.

The judgment of the Circuit Court declaring him insane, and-appointing Mrs. Arrington guardian must therefore be reversed, annulled, set aside, and held for naught, and the judgment of this court certified to the court below.


text:
    Graham vs. Parham.
    1. Federal Courts: Mandamus to levy taxes, etc.

    While it is true that the United States Circuit Courts can, under the rulings of the Supreme Court, compel county officers by mandamus to levy a tax authorized by the laws of the State to pay their judgments, they cannot compel them to levy a tax or do any other act not authorized by the Constitution and laws of the State.

      2. --: Same.

    Sec. 9, art. xiv, of the Constitution, creates a limitation upon the taxing power of the counties, unless there be an exceptional case arising under prior contracts, and neither the Legislature or the State or Federal Courts can direct or force a county to make a valid levy in excess of such limitation. The collector, in attempting to collect such a levy, would be a trespasser, and no valid tax sale could be made under the warrant therefor.
    3. • Prosecuting Attorney: Duties of.

    It is the official duty of the Prosecuting Attorney to defend suits brought in the Federal Court against a county embraced in his district.

      4. County Court: Terms of; mandamus, etc.

    The County Court has no power to change or vacate its judgments or orders after the lapse of the term at which they arc rendered, or to convene again before the time fixed for holding the next regular term, and no such power can be imparted to it by virtue of a writ of mandamus from, the Federal Courts; it is not the office of the writ to impart power to the court, but to enforce the exercise of the powers conferred upon it by the laws of the State.
    5. Tax Levy: To pay county indebtedness; how payable.

    The County Court levied a tax of five mills for the purpose of paying indebtedness existing at the time of the adoption of the Constitution, but on a subsequent day of the term modified its order and appropriated the whole of the levy to the payment of a judgment rendered against it in the Federal Court. Conceding the latter order to have been an error, it was not void for want of jurisdiction of the subject matter, and could ■only be corrected on appeal. Held, further, that the levy as originally made would have been payable in county warrants issued prior to the adoption of the Constitution, but under the modified order, so long as it remained anreversed, the tax was payable in currency.
    APPEAL from 8t. Francis Circuit Court.
    Hon J. N. Cypert, Circuit Judge.

      Weatherford, for appellant.

      Adams, contra.

   English, Ch. J.:

Graham, an owner of lots in Forrest City, and a tax-payer of St. Francis County, tendered to John Parham, collector, county warrants, or scrip, issued in 1873, in payment of a tax of five mills embraced in the warrant of the collector for the year 1876, and styled “judgment tax.” The warrants were refused by the-collector, and Graham applied to the Circuit Court of St. Francis-County, at the April Term, 1877, for a mandamus to compel him to receive them.

Parham entered his appearance, admitted the tender, and answered the petition. The cause -was heard upon the pleadings, and transcripts of records made exhibits, and the court refuesd the mandamus, and Graham appealed.

It appears from a transcript of the record of the County Court exhibited with the petition, that on Monday, 9th of October, 1876, the court met pursuant to adjournment, present the County Judge, and a majority of the justices of the peace of the county, and made the following order:

“In conformity with section 1, of an Act of the General Assembly, etc., etc., approved December 14th, 1875 (Acts of 1875,. p. 141). It is therefore ordered that the following rates per centum be and the same are hereby levied as a tax upon the real, estate and personal property of the county, to-wit:

“For county general purposes one half of one per centum.

“For principal and interest on the county indebtedness, one half of one per centum.

“And it is further ordered that the amounts so collected By-reason of such levy be and the same are hereby appropriated for the payment of the current expenses of the county generally;; and the principal and interest of the indebtedness of the county existing at the time of the ratification of the Constitution, say October 30th, A. D., 1874.

“And it is ordered by the court that the clerk extend the tax as levied 6n the tax books of this county.”

The following further order also appears in the transcript:

“County Court, October Term, 1876.

“Monday morning 10 o’clock, November 6th, 1876. - Court met pursuant to adjournment, present and presiding, Hon. L.. Finley, judge, and the following justices of the peace of St. Francis County, viz: (here follow the names, thirteen in number), being a majority of all of the justices of the peace in the said county, etc., the following among other proceedings were had:

Stewart, Gwynne & Co. v. County of St. Francis,

Mandamus.

“Now, on this day, in obedience to a writ of mandamus issued from the United States District Court exercising jurisdiction for the Western District of Arkansas, at Helena, on the 14th day of October, A. D. 1876, and directed to and commanding this court to convene in session in the place appointed by law, and then and there levy a tax of one half of one per centum upon the assessed value of all the taxable property in this county for the year 1876, expressly for the purpose and to be applied towards the payment of a judgment rendered in said United States District Court in favor of Andrew Stewart and Andrew D. Gwynne, partners as Stewart, Gwynne & Co., against St. Francis County for the sum of §18,lll0.18, with interest at the rate of six per cent, per annum from the rendition thereof until paid, and the further sum of §240, costs of their suit. And it appearing to the court that there had been already a levy of one half of one per cent., made by this court for the year 1876, as provided by law, to pay principal and interest of the indebtedness of the county existing at the time of the adoption of the Constitution of the State, etc., and that the said levy had been so appropriated for the purpose indicated ; it is considered and ordered by the court that the said order of this court so levying and appropriating said one half of one per cent., etc., be and the same is hereby altered and amended so as to appropriate said levy of one half of one per cent, so made by this court in pursuance of law, expressly for the purpose and to be applied towards the payment and satisfaction of said judgment, principal and interest, of Stewart, Gwynne & Co., as commanded in the aforesaid writ.”

This tax was extended upon the tax book, and went into the warrant of the collection as “judgment tax, 50c.,” and this is the tax which appellant offered to pay to the collector in warrants of the county issued before the adoption of the Constitution, and renewed on call, etc.

The petition questions the validity of the order of the County Court, made on the 6th of November, 1876, appropriating the whole of the levy made on the 9th of October, to pay indebtedness, etc., to the Federal judgment.

It appears from the answer to the petition, and transcripts exhibited therewith, that on the 11th day of October, 1876, Stewart, Gwynne ■& Co. recovered a judgment, by default, against St. Francis County, in the District Court of the United States for the Western District of Arkansas, sitting at Helena, for principal and interest due upon the instruments sued on, the sum of $18,110.18, the judgment to bear interest, etc., and for costs, etc.

It is recited in the judgment entry that inasmuch as it appeared to the court that all but a small fraction of the principal debt was due and payable prior to the 31st day of October, 1874, and that no execution could issue against the county, etc., and that a writ of mandamus directed to the County Court, etc., directing the levy of a tax upon the taxable property of the county was the only legal process which plaintiffs could have for the satisfaction of theijr judgment, etc., it was therefore ordered by the court that the County of St. Francis be required, on or before 2 o’clock in the afternoon of the 14th of the present October to show cause why a mandamus should not be issued commanding the County Court of said county forthwith to levy a tax upon the taxable property in said county sufficient to satisfy the judgment, and that the clerk of the court at once make out, under the seal of the court, a transcript of the judgment and order in duplicate, one of which to be served by the marshal upon the presiding judge of said County Court, and to make his return upon the other, etc.

How or where a copy of this judgment and order was served on the presiding judge of the County Court does not appear, nor does the final order of the United States.Court awarding the peremptory mandamus appear in the transcript before us.

A copy of the first writ, however, appears to have been made an exhibit'to the answep to the petition. It recites the judgment and that the costs, including the issuing of the writ, had been taxed at $240.80, and then proceeds thus : “And whereas it hath appeared to our said court, in answer by the said county to a rule served upon it in that regard, that no sufficient cause hath been shown why a peremptory mandamus should not be issued from our said court requiring you, the said County Court, to-levy a tax of one-half of one per cent, upon all the taxable property in said county to be paid when other taxes are to be paid in said county in the year 1877, and for the purpose and to. be applied toward the payment of said judgment as appéars to us of record in our said court; these-are therefore to command you that putting aside all excuse and matters of delay whatsoever, you do on the first Monday in November, 1876, convene in session in the place appointed by law for you to hold sessions of your court, and being then and there so convened in session, you do levy a tax of one-half of one per cent, upon the assessed value of all the taxable property in said county for said year, expressly for the purpose, and to be applied toward the payment of the judgment of our said court, principal, interest and costs.”

The writ bears date 14th October, 1876, and is directed to the County Court of St. Francis County.

I. Two days before the judgment of the District Court was rendered, and four days before the peremptory mandamus was awarded, the County Court had levied one-half of one per cent, to pay indebtedness existing at the time of the adoption of the Constitution, and appropriated the amount to be collected from the tax for the payment of such indebtedness; yet the District Court imperatively ordered the County Court to make a special levy of one-half of one per cent, expressly for the purpose of paying its judgment. Had the County Court obeyed the mandate, the two levies would have amounted to one per cent, upon the assessed value of the taxable property of the county, for one year, to pay indebtedness existing before the adoption of the Constitution.

The counsel of the parties are agreed that the judgment of Stewart, Gwynne & Co., was recovered upon the warrants, or scrip, of the county, issued before the adoption of the Constitution, and appellant being the holder of like scrip, the debts were of the same grade, both ordinary indebtedness.

We have the impression, there being nothing in the record to the contrary, that the presiding judge of the County Court, failed to inform the District Court, in response to the alternative writ of mandamus, that the County Court had already levied a tax of one-half of one per cent, to pay indebtedness existing at the time of the adoption of the Constitution, and appropriated it accordingly, and' thereby exhausted its constitutional levying power for such purpose. We cannot believe that if the District Judge of the United States had been properly advised of the existing facts in the premises, he would have made an order with which it was legally impossible for the County Conrt to comply.

We stated in Vance v. The City of Little Rock, 30 Ark., 450, that the Supreme Court of the United States had decided that a Circuit Court of the United States had jurisdiction to compel officers of a State, by mandamus, to levy a tax to pay its judgments; but the Supreme Court did not reach this conclusion with unanimity ; on the contrary in Riggs v. Johnson County, 6 Wallace, 200, there was an able dissenting opinion by Justice Miller, in which Chief Justice Chase and Justice Grier concurred. The majority of the court, however, have adhered to this ruling, and so long as such shall be the opinion of that Supreme National Tribunal, wc are bound to respect it, unless Congress shall think proper to intervene, and, by appropriate legislation, prohibit the Circuit Courts from exercising this jurisdiction.

But while such has been the ruling of the Supreme Court, not one case can be found in which that court has decided that a Circuit Court, or a District Court exercising Circuit Court jurisdiction, can compel a State County Court, by mandamus, to levy a tax, or do any other act, which it is not empowered by the Constitution and laws of the State to do.

“ It is very plain,” (said Justice Strong in Supervisors v. United States, 18 Wallace, 77), “that a mandamus will not be awarded to compel County officers of a State to do any act which they are not authorized to do by the laws of the State from which they derive their powers. Such officers are creatures of the statute law, brought into existence for public purposes, and having no authority beyond that conferred upon them by the author of their being. And it may be observed that the office of a writ of mandamus is not to create duties, but to compel the discharge of those already existing.”

In United States v. County of Clark, 5 Otto, 773, which is the latest decision of the Supreme Court of the United States on this subject, which has come to our notice, Justice Strong, delivering the opinion of the court, said: “ It need not be said that no court will by mandamus compel county officers of a State to do what they are not authorized to do by the laws of the State* A mandamus does not confer power upon those to whom it is directed. It only enforces the exercise of power already existing, when its exercise is a duty.”

We disclaim any right, as we did in Vance v. The City of Little Rock, to review, as a court of errors, the judgments of the Circuit or District Courts of the United States; beyond the right to enquire whether the court rendering such judgment, 'coming before us incidentally, had jurisdiction of the subject matter. The province of reviewing the judgments and correcting the errors of the inferior courts of the United States, appertain to the Supreme Federal Tribunal, and not to this court.

But we claim it to be a right and a' duty to interpret our own Constitution and laws; and in local concerns, so long as they do not conflict with the Constitution and laws of the United States, they are supreme; and the courts of the United States have no power, nor can we think they have the disposition to disregard or trample upon them.

We should deplore any conflict between the State and Federal courts, and discountenance any attempt to prejudice the people of the States against the national courts. They are not foreign courts, but tribunals of justice provided for by the Constitution and laws of our country, and necessary and useful in their spheres. And from the organization of the Federal Government down to the present time, the judges of the national courts (with a very few recent exceptions), have been men of learning, profound judgment, and uprightness of conduct. And in the exceptional cases the men who‘soiled their judicial robes' were driven from the bench, by public sentiment, to avoid impeachment.

Sec. 9, art. xvi., of the Constitution provides that: “No county shall levy a tax to exceed one-half of one per cent, for all purposes; but may levy an additional one-half of one per cent, to pay indebtedness existing at the time of the ratification of this Constitution.”

This section of the Constitution furnishes the measure of, and the limitation upon the taxing power of the counties, and neither the legislature, nor the State courts; nor the Federal courts, can direct or force a County Court to make a valid levy in excess of the limitations here prescribed.

There may be an exceptional case, as we indicated in Vance v. City of Little Rock, arising under the provision of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts, but the case now before us is not shown to be of that character.

The County Court did not obey the mandamus of the District Court by making a special levy of one-half of one per cent, for the.express purpose of paying its judgment as commanded, but in order to avoid punishment for contempt on the one hand, and to keep within its constitutional limits on the other, resorted to-the ingenious devise of appropriating the whole, of the half per cent, levy which it had previously made to pay debts of the county generally, to the satisfaction of the judgment mentioned in the mandamus.

Had the court made an additional levy of one-half of one per cent., making the whole levy one per cent, to pay debts, the collector would have 'been a trespasser in attempting to collect it, and no valid tax sale could have been made under his warrants.

It was the official duty of the prosecuting attorney of the judicial circuit embracing St. Francis County, to defend the suit of Stewart, Gwynne & Co. against the county in the United States District Court (Gantt’s Dig., sec. 4839); and perhaps if he had done so, he might have shown that the scrip on which the suit was founded, had been issued greatly in excess of the value of the claims on which it was based, such having been a prevalent illegal habit during the period in which it appears the scrip was issued.

It was also the duty of the presiding judge of the County ■Court, in response to the alternative writ of mandamus, to advise the District Court that a levy of one-half of one per cent, had been made before the service of the writ, to pay the indebtedness existing at the time of the adoption of the Constitution; .and then if the court had (but we cannot believe it would) insisted on awarding a peremptory mandamus to compel an additional levy for that year, the prosecuting attorney should have .applied to the Supreme Court of the United States for a writ of prohibition, or taken an appeal or writ of error, according to the proper practice in such cases.

But if a Circuit or District Court.of the United States, award .a peremptory writ of mandamus to compel a County Court to levy a tax not only unauthorized by law, but forbidden by the Constitution of the State, and no one on behalf of the county takes a writ of error or appeal to the Supreme Court of the United States from the order of the Inferior Court awarding the writ, or otherwise obtains prohibition against its issuance or exe■cution, and the members of the County Court levy the tax in obedience to the mandate of the writ, in order to avoid punishment for contempt, can it be true that because the writ is issued by a court of the United States, its effect is not only to deprive the tax-payers of the right of appeal from the order of the County Court making the levy, but to paralyze the Superior Courts of the State, so that they are powerless to review the order and pass upon its validity in any of the modes provided by the Constitution and laws of the State? We do not deem it necessary to do more in this case than to state the proposition, in order that it may become the subject oí judicial thought.

II. The mandamus peremptorily commanded the County Court of St. Francis County, to convene in session, on the first Monday of November, 1876, in the place appointed by law, and being then so Convened, to levy a tax of one-half of one per ■cent. etc.

If the court was not authorized by law to convene on the day named in this writ, it could not legally convene on that day by virtue of the mandate, because it was not the office of the writ to impart power to the court, but to enforce the exercise of power conferred upon it by the laws of the State.

If the writ could empower the court to convene at a time not authorized by law, it could also empower it to meet at a place not appointed by law. We think the writ was impotent to do either.

The meeting together of the judge and officers of a court, at • the place, but not at the time fixed by law for holding the court, is not a court, under our Constitution and laws, but is a mere collection of officers, whose acts must be regarded as coram non judice and void. Brumley v. State, 20 Ark., 77 ; Dunn v. State, 2 Ark., 229.

“The terms of the County Courts shall be held at the times now prescribed for .holding the Supervisor’s Courts, or may hereafter be prescribed by law.” Sec. 31^ art vii., Constitution.

Sec. 79 of an Act approved 5th February, 1875, (Acts of 1874-5), provides: “That the regular terms of the County Courts in the several counties in this State, shall commence on the first Mondays in January, April, July and Octobei, of each year, and shall continue as long as the business shall require,” etc.

Sec. 28 art. 7, of the Constitution prescribes the jurisdiction of the County Courts; and the last clause of the section provides that: “The County Courts shall be held by one judge, except in cases otherwise herein provided.”

Sec. 29 of the same article prescribes the qualifications and mode of electing the jndge of the County Court; and sec. 30 provides that:

“The justices of the peace of each county shall sit with and assistthe County Judge in levying the county taxes, and in making appropriations for the expenses of the county, in the manner to be prescribed by law; and the County Judge, together with a majority of said justices, shall constitute a quorum for such purposes; and in the absence of the County Judge a majority of the justices of the peace may constitute the court, who shall elect one of their number to preside. The General Assembly shall regulate by law the manner of compelling the attendance of such quorum.”

The Act of 14th December; 1875 (Acts of 1875, p. 142), provides that: “The County Judge, with a majority of the justices of the peace of each county, shall constitute a court in levying the taxes and making appropriations for the expenses of the county; and the first and subsequent days of the fourth annual term of each court, as established by law, shall be the time fixed for such levying, and shall be constructive notice to each justice of the peace, etc., etc.

The time, therefore, fixed by law for the County Court of St. Francis County, composed of the County Judge and a majority of justices of the peace of the county, to convene and levy taxes and make appropriations for the year 1876, was on the first Monday of October of that year, and it had power to remain in session and adjourn from day to day until the business for which it convened was completed.

When any court of this State, whose terms are fixed by law, finally closes a term and adjourns until the next term, it cannot legally convene again until its next term, in the absence of a statute authorizing it so to do. Dunn v. State, 2 Ark., 252.

If, therefore, the County Court'of St. Francis County, as composed of the County Judge and justices of the peace, had completed the business for which it convened at the October Term, 1876, and finally adjourned for the term, before the service of the writ of mandamus upon the members of the court, it could not legally convene again until the time prescribed by law, and there was no virtue or force in the writ to empower it sooner to convene. No power on earth but the legislature of the State could authorize it to convene.

This court may, by mandamus, compel a Circuit Judge to hold a term of his court, at the timé prescribed by law, but certainly not at a different time. Trapnall, ex parte, 6 Ark., 9.

When this court finally closes a term, and adjourns to-the next term, it has never claimed the power to convene again until the time prescribed by law, though it exercises the power common to all courts (when not forbidden by law) of adjourning from one day to another distant day during a term. Mechanic's Bank v. Withers, 6 Wheaton, 106.

Moreover, if the County Court, as composed of the judge and justices of the peace, had completed its business and finally dissolved for the term, before the service of the writ of mandamus, it had no power, on reconvening on the 6th of November, to reverse its order of 9th of October appropriating the half per cent, levy to the payment of debts generally, and apply the whole tax to the satisfaction of the judgment of the United States Court, to the exclusion of all other creditors. The County Court, like the- other courts of the State, has no power to vacate, or change its judgments or orders after the lapse of the term at which they are rendered. Reiff et al. v. Conner et al., 10 Ark., 241.

We have been referred to United States v. Vernon County, 3 Dillon, 283, as an adjudication that a County Court may be compelled by mandamus, to meet' at any time, out of term, and make a special levy to pay a judgment of a United States Court.

In that case Judge Dillon said: “Our ordinary course is not to require a special assessment, and levy at a special and arbitrary time, but to have the tax levied and collected with the general annual levy. Such special levy can then be made on the books and collected without much additional expense or trouble, and in the exercise of its discretion the court aims to avoid all unnecessary severity and useless costs. Some delay may thereby be occasioned to the creditor, but in theory of law, he is compensated therefor - by interest. This is the method we have taken and carried out in all cases.

“When we have the right to order a special levy, we do not hesitate to do so, if it becomes necessary; but if the respondent appears and gives satisfactory assurance that the requisite amount will be embraced in the general levy, and that sufficient will be appropriated therefrom by a proper order to pay the particular debt, in such case a special levy maybe dispensed with. ‘ We are governed by the circumstances of each case.”

At the conclusion of the opinion, the following order was made: “Lét an order go for a peremptory writ on respondent to levy at the next April Term, a special tax, at the time when the general .annual levy is made for county purposes, to pay the judgment.”

With the greatest respect for the opinion of this eminent jurist, we prefer to treat what the court ordered in the case as the judicial precedent, rather than what the learned judge said the court might do.

We do not know whether the laws of Missouri authorize the County Courts of that State to meet at any time, out of term, to make tax levies or not, but we do know that the County Courts of this State are powerless to make such levies except at and during the term prescribed by law. Chaplin v. Holmes, 27 Ark., 414.

If the court had finally closed its term, and dissolved before the 6th of November, 1876, the judge and justices of the peace then ■convened were as powerless to make a valid tax levy or appropriation as so many dead men would have been, and a galvanic . battery would.jiave been more effectual to quicken and empower them to utter an order than a writ of mandamus, whether issued by a State or Federal Court.

We cannot, however, positively affirm from the record before us in this case, that the County Court, as composed of the judge and justices of the peace, had closed its sittings at the October Term, 1876, and finally dissolved, before the writ of mandamus was served, and that it did not convene on the 6th of November upon its own adjournment to that day.

The first entry in the transcript of the record before us is that of Monday, 9th of October, 1876, and it shows that the court met pursuant to adjournment, present the County Judge, and a majority of the justices of thé peace, and that the court made the levies and appropriation first above copied.

In the absence of any showing, in the record to the contrary, we must presume, in favor of the regularity of the proceedings of the court (Borden v. State, 11 Ark., 519), that it convened on the first Monday of October, the time prescribed by law, and adjourned to the second, or that there not being a quorum present on the first day of the term, there was an adjournment from day to day until a quorum was present, as provided by law. Acts of 1875, p. 142.

The entry of the 6th of November, above copied, also shows that the court met pursuant to adjournment, present the County Judge and a majority of the justices of the peace, and then the matter of the mandamos was taken up, and acted on.

An amendment to the transcript filed since the submission of the cause, by agreement of the parties, shows some meetings and adjournments of the court intermediate to the 9th of October and the 6th of November, when the County Judge only was present, but what was done at such meetings, other than to meet and adjourn, does not appear, and there is an absence of any showing that the court, as composed of the County Judge and justices of the peace, had finally dissolved before the 6th of November, and that the justices of the peace, as members of the court were functus officio.

III. No doubt the County Court felt constrained by the mandamus, in order to'avoid being in ^contempt, to appropriate the whole of the levy of one-half of one per cent, which it had! made at a previous day of the term, to the payment of the judgment of the United States Court, to the exclusion of all other creditors.

Is it right or just for a Federal court to invade the financial policy of the State, and by mandamus compel a County Court to levy and appropriate the whole tax which it has power to levy for any one year to pay debts existing at the time of the adoption of the Constitution, to the satisfaction of a judgment which it has rendered in favor of a non-resident creditor, to the exclution and postponement of the claims of all resident creditors ?

Why is it that a county can be sued in a Federal court at all ? It is because a statute of the States makes counties corporations, and empowers them to sue and be sued in any court. Gantt’s Dig., ch. 285.

But for this statute a county could not be sued’at all, because by the common law a county can no more be sued than an unincorporated town, township, or judicial district. Lyell v. The Board of Supervisors of St. Clair County, 3 McLean, 580 ; 2 Term Rep., 667 ; 7 Mass., 187 ; 2 Serg. & Rawle, 371.

Why is it that an execution cannot be issued upon a judgment of a United States Court, against a county, and the court house, jail, poor house and gallows (which is about all the property our counties own), be levied on and sold ? It is because a statute of the State forbids an execution against the lands and other property belonging to a county. Gantt’s Dig., sec. 950.

Perhaps in the absence of a statute forbidding it, such property could not be sold upon execution; being devoted to public uses, the sale of it would interfere with the administration of the government of the State. City of Chicago v. Harley, 25 Ill., 595; 31 New York, 164, 193.

Why is it that when a judgment is recovered in a court of the United States against the administrator or executor of a deceased ■debtor, an execution cannot be issued upon it, and his estate sold to satisfy it, regardless of the claims of local creditors ? It is because the policy of the State requires all claims against the estate of deceased persons to be probated, allowed and classed in the Probate Courts, and paid by the administrators or executors out of the assets of such estates, in the order of their classes, and if there are not sufficient assets to pay the whole of any class ■of claims, they are to be paid pro rata, and no creditor is permitted to have an execution against an estate. Gantt’s Dig., ch. 1. And the Supreme Court of the United States has decided that this policy cannot be invaded by the issuance of an execution upon the judgment of a Federal court. Yonley v. Lavender, 21 Wallace, 279.

Mr. Justice Davis, who delivered the opinion of the court, ¡said: “To sustain it (the sale under execution), would be in effect to nullify the administration laws of the State, by giving ■to creditors out of the State greater privileges in the distribution of estateslhan creditors in the State enjoy. It is easy to see, if the non-resident creditor, by suing in the Federal courts of Arkansas, acquires a right to subject the assets of the estate to seizure and sale for the satisfaction of his debts, which he could not do by suing in the State courts, that the whole estate, in case there were foreign creditors, might be swept away. 'Such a result would place the judgments of the Federal courts on a higher-grade than the judgments of the State courts, necessarily produce conflict, and render the State, powerless in a matter over which she has confessedly full control. Besides this, it would: give to the contract of a foreign creditor, made in Arkansas, a wider scope than a similar contract made in the same State by the same debtor with the home creditor. The home creditor would have to await the doe course of administration for the payment of his debt, while the foreign creditor could, as soon as he got his judgment, seize and sell the estate of his debtor to' satisfy it, and this, too, when the laws of the State in force when, both contracts were made, pi’ovided another mode for the compulsory payment of the debt. Such a difference is manifestly unjust, arid cannot be supported.”

The appellant and Stewart, Gwynne & Co. were holders of warrants,- or scrip as they are commonly called, issued upon the Treasurer of St. Francis County, upon claims audited and allowed by the County Court before the adoption of the present Constitution. We say audited and allowed by the County Court, because it is the appropriate province of the County Court to audit all claims payable out of the county treasury, except in, cases where the legislature has made special provision for the: auditing of particular demands by other officers. Jefferson County v. Hudson, 22 Ark., 595.

County warrants shall be redeemed and paid by the County Treasurer in the order of their number and date, and no warrant shall be thus paid until all of a prior date are paid, provided the County Treasurer upon whom the warrants are drawn, shall not be able to meet all demands upon the treasury. Acts Dec. 17, 1846, sec. 2; Gantt’s Dig., sec. 1042.

If appellant could have sued upon his warrants at all (which the statutes do not seem to contemplate), he could.not have sued in a Federal court, because he was a citizen of this State, and so was St. Francis County, according to the interpretation by the Federal courts of the word citizen ” as used in the Constitution of the United States.

If he had sued upon his warrants in. a State court, and obtained a judgment, he simply would have marched up the hill and then marched down again, for the statute provides that: When judgment shall be rendered against any county, it shall be the duty of the County Court to order a warrant to be drawn on the County Treasurer for the amount of the judgment and costs, which warrant shall be paid as other county debts.” Gantt’s Dig., sec., 949.

No State court would have compelled the County Court, by mandamus, to exhaust its levying power for any one year, and appropriate the whole levy, if required, to pay his judgment, to the exclusion of all other creditors.

But Stewart, Gwynne & Co., being citizens of Tennessee, obtained judgment in the District Court of the United. States, sitting at Helena, against the county, and a mandamus was awarded them to compel the County Court to make a special levy of one-half of one per cent., all the court had poAver to levy for that year, to pay debts, to be applied in satisfaction of their judgment, to the exclusion of all other creditors of the county,

We repeat, is it right or just for a Federal court so to invade, by mandamus, the financial policy of the State, in reference to which all the creditors of counties have contracted ? We leave the Supreme Court of the United States to answer the question.

The view that we take of this case is, that the County Court, on one day of its October Term, 1876, levied a tax of one-half of one per cent, to pay debts existing at the time of the adoption of the Constitution, but appropriated the tax to the payment of no particular debt. On a subsequent day of the term, the court modified its order, and appropriated the whole tax to the payment of a judgment rendered in the District Court of the United States, after the first order was made. Conceding this to have been an error, the order was not void for want of jurisdiction of the subject matter, and no appeal having been taken from the order by appellant, or any other creditor of the county, the Circuit Court could not review the order, and reverse it for error in this proceeding.

But we come finally to the question, whether appellant had the legal right, notwithstanding the order, to pay so much of the tax as was- charged upon his property, in warrants issued before the adoption of the Constitution, and which he tendered to appellee, and he refused to accept?

Upon any claim allowed against a county, the clerk of the County Court is required to issue to the claimant a warrant upon the County Treasurer. Sec. 505, Gantt’s Dig.; Acts of 1874-5, p. 144.

All warrants drawn upon the treasurer must be paid out of any money in the treasury not otherwise appropriated, or out of the particular fund expressed therein, “and shall be received irrespective of their number and date, in payment of all taxes and debts accruing to the county.” Gantt’s Dig., sec. 610.

If the order made by the County Court on the 9th of October, 1876, appropriating the tax of one-half of one per cent., on that day levied, to the payment of the indebtedness of the county existing at the time of the adoption of the Constitution generally, had not been modified by the order of 6th of November appropriating the whole of the levy to the satisfaction of the judgment of Stewart, Gwynne & Co., the appellant would have had the right to pay so much of the tax as was charged upon his property in the warrants issued before the adoption of the Constitution, which he tendered to appellee, as collector. Acts of 1875, p.151; Loftin v. Watson, ante.

But sec. 11, art. 16, of the Constitution, provides that “no moneys arising from a tax levied for one purpose shall be used for any other purpose.”

The judgment of Stewart, Gwynne & Co. was necessarily payable in currency, and though the order of 6th of November invaded the legal right of appellant to pay the tax in his warrants, yet we cannot see how the collector could receive them while the order stood unreversed, and, as we have seen, could not be treated as null and void.

The judgment of the court below must therefore be affirmed.