author: Bennett, J.

text:
    Parrott, Adm’r, vs. Nimmo et al.
    Marriages : When in another state, and separate property of wife invested in this, etc.

    Husband and wife were married in the state of Alabama, both living there at the time, and the husband, having become possessed of the property and money of the wife, moved with his family to this state, and with the money and effects so acquired by the marriage, purchased lands and took a deed in his own name, against the express wish of the wife; husband and wife died leaving minor heirs; the lands were sold by administrator, under order of the probate court, he and the purchaser of the land at such sale having knowledge where the original purchase money of the lands came from. On bill by the heirs to vest title in the lands in them as heirs of the mother: Held, that by the laws of Alabama, the property and money so acquired on marriage by the husband remained the separate property of the wife, and that the lands so acquired by him in this state descended to the heirs of the mother.
    APPEAL from Si. Francis Circuit Court.
    Hon. W. C. Hazledine, Circuit Judge.

      U. M. Rose, for appellant.

      E. H. English and B. C. Brown, for appellee.
   Bennett, J.

Some time in 1854 there lived in the state of Alabama two persons, one by the name of James P. Nimmo, and the other by the name of Ann E. Hughes, who was a minor. In that year these two persons were married to each other. At the time of this marriage, James P. Nimmo, the husband, was a person without property or effects. Mrs. Nimmo, the wife, was the owner of a considerable estate, consisting chiefly of slaves and money, held for her by her guardian in Alabama. After she became of age this estate, slaves and money, came into the hands of her husband, as her property, while they were still living in Alabama. In 1858, James P. Nimmo, the husband, carried or brought this property to the state of Arkansas, where he purchased of one Jar-min Roonce, the southwest quarter of section ten, in township four north, range three east, for about twenty-four hundred dollars, and had the deed made out in his own name. Shortly after this purchase, Mr. and Mrs. Nimmo removed from the state of Alabama to the state of Arkansas, and took possession and lived on the lands, and proceeded to make valuable improvements on them. Mrs. Nimmo died in 1861. James P. Nimmo died in 1865; both dying intestate, and leaving them surviving, Felicia B., Sue P. and Mollie B. Nimmo, their children and heirs at law, not only of their father, James P., but of their mother, Mrs. Ann E. Nimmo.

After the death of James P., one John M. Parrott was appointed by the proper probate court, administrator cle bonis non of his estate, and took possession of the above described tract of land, as belonging to that estate.

The estate of James P. Nimmo being then considerably indebted to various persons, the administrator, Parrott, obtained an order from the proper tribunal to sell the real estate. At the sale, one John H Cole, who claimed to be purchasing for and on behalf of his infant son, Hugh M. Cole, bought it; Parrott, as administrator, executing a bond for title to him, and Cole took possession of the land, and now has it At the October term, 1871, of the circuit court of St. Francis county, Felicia B., Sue P. and Mollie B. Nimmo, the children of James P. Nimmo and wife, filed their bill of complaint, alleging the above stated facts, and, in addition, state that the deed to their lands was taken in the name of their father against the express wish and desire of their mother; that these lands were purchased with the means and money of their mother, and the title should have been made to her; and they contend that, by the laws of Alabama, the place where the father took possession of the mother’s property and removed it to Arkansas, and converted it into these lands, they belonged to the mother, notwithstanding their father took the title in his own name.

They also allege that all the above facts in relation to where the purchase money of these lands came from, and all the other facts in relation to the proper ownership of these lands, were well known to Parrott, the administrator, and to Cole, the purchaser, long before, and at the time of the sale of the lands by said administrator.

They pray for a decree vesting the title to the lands in them, as the heirs of their mother.

The answer of the defendants states that they know nothing about where the purchase money of the lands came from, nor that James P. Nimmo received possession of any money or other property belonging to his wife, and that they know nothing of the laws of the state of Alabama as to the rights of married women in regard to property or moneys descending to, or otherwise belonging to them, or what power or authority she would have over it in case the same came to the husband, and was by him invested in other or different property. The answer admits that the land was purchased as alleged, with the exception as to the purchase money being the separate property of the wife of James P. Nimmo.

The answer admits that prior to the sale of these lands by the administrator, they heard casual rumors that said complainants intended to claim this land upon the grounds set up in said bill, but denies that they ever heard any certain or positive information of these facts. In general terms, they deny that the law and equity is with the complainants, and ask that the complaint be dismissed.

Quite a number of depositions were read upon the hearing.

The court found, 1. That by the laws of Alabama, the property and moneys inherited by the wife, from her father, remain her separate property. Notwithstanding its reception and reduction into possession by the husband, she could recover it, no matter what disposition he made of it (See Trans., p. 62-63). 2. That the money paid to Roonce for the land in controversy by James P. Nimmo, her husband, was the separate property of Ann Elizabeth, the wife, and that she died, leaving these complainants her heirs, etc. See Trans., p. 63. 3. That said Parrott and Cole, the defendants, had due and full notice of the rights in equity of the complainants, at the time of said pretended sale to Cole, and decreed that the bond for title from Parrott, administrator, to Cole, be cancelled, and that the title to said lands be divested out of all the defendants herein, and vested in the complainants, and that John and Hugh Cole surrender the possession to the guardian of the complainants. Erom which decree an appeal was granted.

The evidence in this case clearly shows that the lands were bought and paid for out of the means and moneys of the wife of James P. Nimmo, the mother of these complainants, and that said means and moneys came to her from the estate of her father, and went into the possession of her husband while she and her husband were residing in the state of Alabama, and that he took the title to these lands in his own name against the expressed wish and desire of his wife.

Under this state of facts, what were-the rights of Mrs. James P. Nimmo in these lands, as against her husband or his creditors ?

Tbe law of the state of Alabama in relation to the separate estate of the wife is made a part of the complainant’s case, and was not only proven by witnesses, but was shown by the statutes and decisions of that state. By the law of Alabama, the money and effects of the wife remain her property even though reduced to possession by her husband.

“ All property of the wife held by her previous to the marriage, or which she may become entitled to after marriage, in any manner, is the separate estate of the wife, and is not subject to the payment of .the debts of the husband. Property thus belonging to the wife vests in the husband as the trustee. * * The property of the wife or any part thereof may be sold by the husband and wife, and conveyed by them jointly. The proceeds of such sale is the separate estate of the wife, and may be reinvested in other property, which is also the separate estate of the wife; or such proceeds may be used by the husband in such manner as is most beneficial to the wife.” Code of Alabama, 1852, secs. 1982-3-4-5.

If the husband makes any investment or disposition of the wife’s money or property, she may follow it and subject it to her use and benefit. Robertson's Heirs v. Robertson's Ex'rs, 16 Ala. (N. S.), 273; Ween's Ex'r v. Bryan and Wife, id., 302; Johnson v. McCarmice, 26 id., 623; Wilson v. Shepherd, 28 id., 623.

By this statement of facts and the law of Alabama, there can be no doubt that the property and moneys used in the purchase of these lands were the separate estate of Mrs. Nimmo at the time of her and her husband’s removal from Alabama to Arkansas. Now did the removal to Arkansas divest the wife’s title, and the money and property become the husband’s absolutely ?

Story, in his Conflict of Laws, secs. 125-183, after an extended discussion of the great diversity of laws existing in different countries, as to the incidents of marriage, lays down the following, among others, as rules of general application : First. Where parties are married in a foreign country and there is an express contract respecting their rights and property, present and future, it will be held equally valid everywhere, unless under the circumstances it stands prohibited by the laws of the country where it is sought to be enforced. * * Third. Where there is no express contract, the law of the matrimonial domicile will govern as to all the rights of the parties to their present property in that place, and as to all personal property everywhere, upon the principle that movables have no situs, or rather, that they accompany the person everywhere.’’

In the case of O'Neil v. Henderson, Trustee, 15 Ark., 235, this court expressly decides that “ when a perfect title according to the laws in force in the state in which it is made vests property in the wife or in trustees for her use, such title remains in her notwithstanding any change of residence of the husband, who may exercise an apparent control and ownership of the property, or any act of fraud or negligence on the part of the trustee or husband, nor is she required to do any act to protect her title, such as recording in this state the evidence of her title.” Yarbrough v. Arnold, 20 Ark., 592; Bank of United States v. Lee, 13 Pet., 107.

The moneys and property being the separate estate of the wife, even after the change of domicile to Arkansas, did the conversion into and investment in lands of the same by the husband, divest the wife of all interest in both moneys and the lands so purchased ?

In this case it was a fraud, no doubt, uport the. rights of the wife, for her husband to invest her separate property in lands, and take the title to himself against her solemn protest. But we think this question has been fully settled by this court, and nothing further need be said on this point. In the case of Kirkpatrick v. Buford, 21 Ark, 268, the court say: “If by a mere sale of the separate estate and the investment of the proceeds in the purchase of other property, she (the wife) lost her estate and the husband acquired the property thus purchased without any intention on her part to give it to him, then this unqualified right of disposition was a delusion, and its exercise an injury. See also case cited in this opinion; also Allen v. Hightower, 21 Ark, 316.

The appellants contend that the case should be governed by the decision in the case of Ferguson v. Moore, 19 Ark., 384. That it does not, is shown by the opinion in that case itself. In the case now under consideration, it is clearly shown the money used in the purchase of this land was the undoubted “separate property” of the wife.

In Ferguson v. Moore, the decision was expressly placed upon the ground that under the law of Arkansas, the land inherited by Mrs. Moore from her father was not separate prop* erty.

The court says, “ It was money received by the husband for lands inherited by the wife, and sold and conveyed by their joint deed. The wife’s right and title to the lands had vested in her while she was a feme sole; when she afterwards became a wife, the marital rights of the husband attached to them, as those rights are known at the common law, although the statute of married women was then in force, because that statute in none of its provisions extends to such a case.” And further on in the same opinion, Justice Scott continuing, says: “ And hence, too, the doctrine contended for by counsel for the appellees, that the right of property in a married woman attaches to the fund arising from the sale of her sole and separate estate, to the same extent which existed in regard to the property before the sale, although, doubtless sound in itself, has no application to this branch of the case, because here, as we have seen, the wife had no sole and separate property in the land in question.” And having no separate property in the land, she had none in its proceeds. In the case before us, Mrs. 'Nimmo had a separate property in the money, and continued to have the same property in its products. If she had, certainly her heirs can assert the same rights she had, if they have not compromised them in any manner.

The appellants attempt to make a distinction between their case and the case of Kirkpatrick v. Buford and Allen v. Hightower, by saying, that in those cases the title in the property was in the name of the wife, and creditors were seeking to subject the property to the husband’s debt. We can see no material difference, so far as the wife’s interest is concerned. In the one, the separate interest is asserted expressly, in the other it is shown to exist, and her heirs are endeavoring to have her rights asserted by a competent court. The question as to the establishment of the separate property is not objected to. In one, creditors are endeavoring to set aside the wife’s title. In this, the wife or her representatives are endeavoring to get a title. But the principles of law, as far as the establishment of the rights of the separate estate is concerned, are the same in both cases. Marsh v. Marsh, 43 Ala., 677; Damon v. Hall, 38 Barb., 139; Rich v. Rich, 12 Minn., 471.

The last point necessary to be considered is, that the title being in the husband for years, and forming for him a basis of credit, it would be inequitable to now declare that the. property belongs to some other person. Cole, the purchaser, cannot claim to be an innocent purchaser for value, for he had ample notice of the rights of the complainants and of their intention to enforce them.

Upon the hearing, the deposition of P. Dunn was read; he swears that, “ a short time before the land described in this bill was sold by th'e defendant Parrott, as administrator, to defendant Cole, I met the defendant John H. Cole, and he inquired of me, whether or not he would be safe in buying the land above referred to at administrator’s sale? I told him that I had been consulted by the guardian of Mrs. Nimmo’s children as to whether or not they could recover the land as the separate property of their mother, and that, upon the statement of facts submitted, I had given my ■opinion that the3 could recover, and I had been retained to file a bill, and should do so as soon as I could get the necessary data. I then gave him a detailed account of the facts .and of the law of the case as I understood it, informing him that the plaintiffs would assert their rights. Defendant Cole afterward purchased the land.”

Where lands are sold in the presence of parties having an interest, without giving notice at the time of sale, it does not affect their interest if the lands are purchased by one having notice thereof. Hornor, as Trustee, v. Hanks, 22 Ark., 573.

In every aspect of this case, the court below was correct. Decree 'affirmed.


source: Caselaw Access Project

author: Stephenson, J.

license: Public Domain

text:
    Hudson et al. vs. Jefferson County Court.
    Supreme Court : Jurisdiction of, to issue writs of certiorari.
    The supreme court, hy the constitution, in the exercise of a general superintending control over inferior courts, have power to issue writs of certiorari, as an exercise of original jurisdiction.
    ■County Courts : Appeal from, by whom lies.

    In allowing or disallowing a demand against the county, an appeal lies only by the party interested and not hy citizens who are not interested.

      Legislative Enactments : Authority given hy, must he strictly followed.

    Where the legislature points out, specifically, how an act is to be done, although without it, the court or officer, under their general powers, would have been able to perform the act, yet, if the legislature impose special limitations, they must be strictly pursued, and although performed by a discretionary officer, the limitations of the statute render the doing of the act ministerial in him performing it, in which no discretion can be indulged.
    PETITION for Certiorari.

      Harrison & Jones, Williams and Compton, for petitioners.

      Yonley & Griffin and. Martin, for defendant.
   Stephenson, J.

The writ issued in this case has brought the record of the county court of Jefferson, relative to the levy of taxes for 1872, before us for review.

The plaintiffs allege the illegality of that item of the levy, imposing a tax of three mills on the dollar to pay certain bonds issued to one Twombly in payment for a farm purchased by the county, pursuant to an act of the general assembly, approved July 16, 1868, entitled “An act to provide for the establishment of a house of correction in the several counties of this state.” The grounds of illegality, urged by plaintiffs, are that the proceedings and orders of the county court [relating to the purchase of the farm, the issue of the bonds and the levy of the tax are void, because the court, by reason of the irregularity of its proceedings, acquired no jurisdiction of the subject matter.

The defendants moved to quash the writ because :

First. This court has no jurisdiction to issue, hear and determine said writ in this cause.

Second. Because the plaintiffs have a full and ample remedy by appeal.

Third. That the circuit court has the sole and exclusive jurisdiction to supervise and control the judgments and orders of the county county court, and this court can have none until there has been an application to and refusal to act, by said court.

The assignment of causes for quashal are untenable; the first and third are fully decided by the case of Price & Barton v. Page, 25 Ark., 527; and the second by the case of Chicot County v. Tilghman, 26 Ark., 461. The county court, as it existed at the time the proceedings were had, was one of special and limited jurisdiction. The constitution of 1836 prescribed that they should have jurisdiction in all matters relating to county taxes, disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. County courts remained at the time this order was made, with the jurisdiction they possessed under the constitution of 1836.

This power, however, they cannot exercise without legislative action. Pulaski Co. v. Irvin, 4 Ark., 473. The county court had no inherent power to purchase the farm, and provide for payment therefor by taxation. That power they derived from the act of the legislature, and as to the mode to be pursued, if the statute points it out, that alone must be followed.

If the legislature had simply provided for the purchase and erection of the building, leaving all the details to the discretion of the court, its constitutional powers would have been ample to carry'the act into effect, but as the act prescribes specifically how the purchase is to be made, it must be followed by the court. The assent of a' majority of the people of the county must be had in a particular manner. If the court, after the determination of this preliminary question, decide to make the purchase, they are required to do so through the report of three commissioners; and the erection of buildings is to be let out, in a particular manner, to the lowest bidder. The legislature leave the question of payment to the court, to be made as “other county improvements” are paid for.

It is the general rule that when the legislature points out specifically how an act is to be done, although without it the court or officer, under their general powers, would have been able to perform the act, yet if the legislature impose special limitations, they must be strictly pursued, and although performed by a discretionary officer, yet the limitations of the statute render the doing of the act ministerial in him performing it, in which no discretion can be indulged.

With this general view of the principles bearing upon the question, we will proceed to the examination of the record and apply the rule, as we have deduced it, to the acts of the court.

The first record entry contains a copy of the petition of the citizens of Jefferson county, asking the county court for the purchase of the farm, and the erection thereon of a house of correction. It is clear from the reading of the petition, that the signers thereof were attempting to avail themselves of, and follow the act of the legislature, approved July 16, 1868, to provide for the establishment of a house of correction in the several counties in this state. The first section of the act referred to reads as follows: “Be it enacted, etc., that the county courts of the several counties in this state, shall purchase a farm or tract of land within the boundaries of the county, and provide for the erection on such farm or tract of land of a house of correction: provided, that such farm or tract of land shall not be purchased unless the tax payers of each township in the county shall petition the county court to provide for such purchase; and provided further,’ that no such farm shall be purchased unless a majority of all the tax payers of the county shall sign such petitions.” The court proceed at great length, in their order approving said petition, to set out the act and its purposes, and find that the petition complies in all respects with the requirements of the law; and after approving the petition, appoint the commissioners to purchase the farm.

The law requires two things: First, that the tax payers in each township shall petition for the purchase; second, that a majority of all the tax payers of the county shall petition. These two things must affirmatively appear from the record to have been done. The court say, said petition complies with the provisions of said act, and is signed by a majority of the tax payers of said county of Jefferson.”

From the form of the petition and the recitation of the statute by both the petitioners and the court, it is evident to our minds if no other rule governed, that the requirements of the statute have not been complied with. It is true that the question of fact as to whether a majority of the tax payers of the county signed the petition is with the court, and the affirmative averment of the record is conclusive in a case like this; yet, that petitions were circulated and signed in each township does not appear; neither is there any such allegation in the record. The statement in the record that the petition conforms to the formal requirements of the statute is untrue. If the statute had been as the court and the petitioners have set it out in the petition and order, the record would have been correct; but both the court and tax payers seem to have fallen into an error as to what the law was, for they entirely overlook the first proviso of the section above quoted.

The legislature evidently intended there should be as many petitions circulated as there were townships in the county, and that said petitions should, in the aggregate, contain the names of a majority of the tax payers of the county, At least a substantial compliance with both provisos is imperative.

If the record showed that the petition in its present form was circulated in each township in the county, and that it contained the signatures of a majority of the tax payers of the county, we think it would have complied substantially with the statute; but there has been a total ignoring of one of its important and formal requirements. The purchase of the farm and the erection of the house of correction are predicated upon the consent of the tax payers of the county, to be obtained in a particular manner pointed out by law. If this is wanting, the action of the court in making the purchase is corctm nonjudice, and if the purchase was void, the levy of the tax to pay the purchase money is also void. But the levy complained of is void for another reason: Prom the record it appears the county court levied two and one-half mills on the dollar “ for the erection and repair of public buildings.” This is the maximum allowed by the law under which the tax was laid, which could be levied for that purpose; yet we find another item of three mills on the dollar “ for the payment of bonds for county farm.”

This latter item would be unintelligible, unless we look further into the record. It appears that the commissioners appointed by the court to purchase the farm, negotiated with Twombly for a certain tract of land. Twombly offered to take twenty-five thousand dollars in county scrip ” or eighteen thousand dollars in county bonds, 'one-half of the latter to be paid in 1873, and the balance in 1874. The court agreed to pay in bonds, and it is to pay these that the tax is levied.

We are at a loss to know where the court got their authority for issuing these bonds. The law, unless in certain cases where the legislature have specially provided, knows but one method of paying debts contracted by county courts, that is, in warrants of the county treasurer, commonly known as county scrip, said warrants to be paid out of the particular fund against which they are drawn. The purchase of the farm and the building of the house of correction might, we think, be brought under the fund for the erection and repair of public buildings, for which the law allows a tax to be levied of two and one-half mills on the dollar, and if the purchase had been otherwise in conformity to law, we see no reason why the court could not have paid for it out of that fund. But the issue of bonds by the court for that purpose, without legislative authority, was clearly illegal. Indeed, if it were otherwise, we do not see why the court could not successfully evade the very salutary restriction of the act of March 28, 1871, which prohibits county courts from levying a greater amount of taxes in any one year than is there specifically authorized. If, under their general powers for disbursing money for county purposes, they may issue bonds and raise sufficient money by taxation'for their payment, for one purpose, unauthorized by law, they may for any and all purposes; and, when they find the limitations of the act above referred to too narrow for the full exercise of their ambition, they may evade them by the issue of bonds. Such proceeding, we conclude, is not within the scope of their power, and the wholesomeness of the law, enacted by the legislature in 1871, will be most clearly illustrated by confining the county courts of the state to what that body considered a just and proper restraint upon them in the exercise of their taxing power.

For these reasons, the levy of the three mill tax by the court to ppy the bonds issued in payment for the county farm will be quashed.


author: Searle, J.

text:
    Ramsey vs. Cox
    Treasurer’s Certificates : Becewdble in payment of fees of office, etc.

    On demurrer to a motion for a rule upon the cleric of the supreme eourt to compel him to receive treasurer’s certificates in payment of the fees of his office: Reid, that under sec. 9, art. XV of the constitution, and the acts of July 23, 1868, March 16, 1869, and March 24,1869, making treasurer’s certificates receivable in payment of state taxes, the salaries and fees of all state, county, town or other officers within the state, may he paid in treasurer’s certificates.
    PETITION for Rule.

      Rose & Green, for petitioner.

      T. D. W. Yonley, for defendant.
   Searle, J.

This is a petetion for a rule upon Norval W-Cox, as clerk of this court, and alleges the following facts:. That petitioner is indebted to said Norval W. Cox, as such clerk, in the sum of fifteen dollars as costs due him, accrued in the case of himself (petitioner) against Isaac W. Carhart, lately pending in this court; that since said costs became due, the petitioner tendered and still tenders said Cox the said sum of money in treasury certificates, issued by the state of Arkansas under the provisions of certain acts of the general assembly, said certificates being unredeemed, and that said Cox refused and still refuses to receive the same in satisfaction of said costs; and the petitioner prays that this court may require said Cox, as clerk, etc., to receive said treasury certificates in payment of said costs by a rule upon him for that, purpose.

The clerk appeared and demurred in short, upon the record,, to the petition.

The demurrer being a concession of the facts, as pleaded in the petition, only questions their legal sufficiency to authorize the rule as prayed for. The only question presented, therefore, is, is it legally obligatory upon the defendant herein to receive treasury certificates for the costs due him as stated in the petition?

The constitution provides that “ all salaries, fees and per diem, or other compensation of all state, county, town or other officers within the state, shall be payable in such funds as may by law be receivable for state taxes.” Sec. 9, art. XV, Constitution.

That this provision is applicable to all officers of the state, county, town, etc., within the state, no difference what may be their grade or character, and that the subject of the provision is compensation of such officers, in whatever form due, cannot, we presume, be disputed.

But what is the material part, the predicate, of this provision ? The compensation of all officers “shall be payable in such funds as may by law be receivable .for state taxes.”

The act approved July 23, 1868, provided for the issuance-of eight per cent, treasury certificates in small denominations, etc., and declares that “said certificates shall be receivable for all state taxes, except taxes for school purposes, and all other debts due the state,” etc. See Acts, 1868, p. 220. Again, the act approved March 21, 1869, provided for the issuance of eight per cent, certificates in small denominations, etc., and declares as follows: “ That the certificates or warrants issued by the treasurer of the state of Arkansas under and by virtue of the act aforesaid, and all certificates or warrants which may be hereafter issued by said treasurer in pursuance of law shall be and are hereby made receivable in payment of all state, county and municipal taxes, and all debts due the state whatever,” etc. Acts 1869, p. 95. The last act, approved March 16, 1871, continues the issue of treasurer’s certificates, but reduces the rate of interest thereof to five per centum, and declares them “receivable for all state and county taxes, and all other debts due the state, except interest on the public debt.” Acts 1871, p. 15.

Prom these several acts it will be seen that treasury certificates are receivable for state taxes. They were issued to be used by the persons to whom due “ or bearer,” and in small denominations and on bank note paper, that they might be conveniently used by the people generally for that purpose.

Can such treasury certificates be regarded as funds ?

This question may be best answered by ascertaining the proper definition of the term funds. Webster defines it to be “the stocks of a national bank; public securities; evidences of money lent to government for which interest is paid at prescribed intervals,” etc. From this definition we have the general and ordinary meaning of this term, and therefrom it must be concluded, we think, that treasury certificates may be regarded as funds. But even though such certificates could not technically be regarded as funds, still they must be considered as coming within the meaning of this section as such. In other words, we can have no doubt from the language used, that the framers of the constitution intended by this section, that whatever should be receivable in payment of state taxes, whether technically denominated funds or not, should also be receivable for salary, fees, etc., of officers. If, then, treasury certificates are funds according to the above definitions, or if they are funds in contemplation of this section of the constitution, and this at least cannot be doubted, the conclusion from this section and the legislative enactments above quoted, that make such funds receivable in payment of Jétate taxes, cannot be avoided, that such certificates are receivable in satisfaction of all dues to officers in compensation for their services as such,

ylt has been suggested that these certificates were issued in violation of the constitution of the United States, and that this section of our constitution and the legislative acts above quoted, as interpreted, under and by virtue of which they were issued and made receivable, etc., are repugnant thereto. If so, it must be because said certificates are bills of credit, or are made a legal tender.

The emission of bills of credit is defined to be the “issuing of paper intended to circulate through the community for its ordinary purposes as money, which paper is redeemable at a future day.” 4 Kent Com., 408; 2 Story on Const., secs. 1358-70; Craig et al. v. The State of Missouri, 4 Pet., 431.

These certificates were not issued “ to circulate through the community for its ordinary purposes, as money; but in every case they were issued as evidences of indebtedness on the part of the state to those to whom, they were issued. We see nothing in this to give them the character of bills of credit. Nor, we apprehend, does their circulation among the people on account of their value in the payment of taxes give them that character.

Are these certificates made legal tender, etc.? We think not. They are made receivable merely in satisfaction of salary, fees, etc., of officers. The state government is not bound to pay her officers or public servants any specified amount or character of salary, or to allow them to collect of her citizens any specified amount or kind of fees for their services, unless the same be fixed by the eonstituion of the state, which is not the case here. The matter of compensa, tion is subject entirely to the control of the people, or the control of the legislature when not inhibited by the people in their constitution. Officers must exercise the privileges or franchises of their offices for the kind and amount of pay that the law makers may prescribe, or resign their positions.

The privileges of the government on the one hand and of her officers on the other are, in a manner, mutual; the former may say how and what she will pay the latter for their services; the latter .may accept such compensation as the former may prescribe, or resign at pleasure.

The rule is ordered.

McLure, Cb. J., dissented.


author: Gregg, J.

text:
    Crawford vs. Fuller & McKibben.
    Misjoinder of Actions : Waiver of.

    Under tbe Code of Practice, objections for misjoinder of causes of action are to be considered as waived, unless a motion is made to-strike out the causes of action improperly joined.
    APPEAL from Sebastian Circuit Court.
    Hon. E. ,D. Ham, Circuit Judge.

      Walker & Rogers, for appellant.
   Gregg, J.

In September, 1868, Puller & McKibben commenced their action at law in the Sebastian circuit court against Crawford, upon an open policy of insurance. -

In January, 1869, Crawford appeared and filed a demurrer to the declaration —the demurrer was sustained and the appellees filed an amended declaration, and the appellant filed a demurrer thereto; first, because the special counts do not show facts sufficient to constitute a cause of action. Second, because there is a misjoinder of action, because the special counts are in case and the general counts in assumpsit.

In the special counts, in the amended declaration, Puller & McKibben set up that Crawford represented himself as agent of the Home Insurance Co., of New York; that they, according to the custom of merchants, took an open policy of insurance and insured with Crawford, as such agent, 109 bales of cotton, worth $10,000, to be shipped on the Heisper, from the port of Fort Smith to that of Cincinnati; that such shipment was made, and, without fault of the captain or crew, the boat struck a snag and the cotton was entirely lost. And they averred that Crawford had no authority to act as such agent, and that he, by his agreement and the receipt of two hundred and seventy-five dollars, which they paid him as a premium on such insurance, became liable to them in said sum of ten thousand dollars, etc. The other counts were the ordinary ones in assumpsit for money had, etc.

The court overruled the demurrer, and the appellant rested. At the October term, 1870, the parties both appeared, a jury was impaneled, and they found for the appellees seven thousand three hundred dollars damages, for which judgment was rendered against appellant; and in December, 1871, an appeal was granted by the clerk of this court.

The only question before this court is the ruling of the court below upon the demurrer.

At the time this action was brought, the code of civil practice had so far gone into effect that parties were authorized to proceed under it, or according to the former practice, and we cannot consider the lower courts in error if their judgments can be sustained under either practice.

Section 103 of the civil code provides that the court, on motion of the defendant, shall strike out any cause or causes of action improperly joined with others ; and section 101 provides that objections for misjoinder shall be considered as waived unless made by motion to strike out; and section 106 abolishes the forms of actions.

The original special counts were defective, because Fuller & McKibben did not sufficiently aver the making of the policy of insurance. In tbe amended declaration tbey aver tbey were partners, doing business as merchants, etc., and that by the custom of merchants, they caused to be made an open policy of insurance, etc., wherein was insured, etc., to be shipped on the Heisper, etc., from, etc., to etc., and against the perils of navigation, etc., said policy being an open policy and by the custom of merchants was in the following words, etc., setting out the certificate of application to the Home Insurance Co., of New York, etc., specifying the freight, its value, the port of reception, its destination, etc., and the same was entered on Crawford’s policy book and signed by him, and made up, as by his contract, dated Evansville, Ind., Sept. 4, 1867, and they refer to an open policy.

We ai’e of opinion this policy (notwithstanding the declaration covers sixteen pages of closely written legal cap) is not described with commendable accuracy. Yet we hold the averments were substantially good under the present practice, and that which existed when this suit was brought.

The counsel, in their brief, say a nolle prosequi having been entered to the common counts, the declaration is without a breach. Upon inspection of the record, we find no such nolle prosequi, and we consider the general breach sufficient.

The judgment of the court below is affirmed.


author: Compton, Sp. J.

text:
    Steward and wife vs. Pettigrew.
    Sheriff’s Deeds: What mistakes in, may he corrected, etc.

    The sheriff made actual entry and levy upon, the proper lands of the judgment debtor, but made a mistake in his return as to the numbers of the land, and carried such mistake into his advertisement, and the lands were sold and deed executed therefor and filed for record, without knowledge on the part of the purchaser of such mistake; subsequently, under another judgment, the same lands were levied upon and sold by their proper description and deed executed therefor, the purchaser having notice of the misdescription in the former deed. On bill to cancel the deed under the second sale: Sold, that the continuance of the mistake in the advertisement did not deprive the sheriff of the power to sell, and the Iona fide purchaser was not affected by any irregularity or omission by the sheriff in advertising or conducting the sale; 2. That such accident, mistake or irregularity, after the deed has been acknowledged in court, cannot, at a subsequent period, be corrected by the law court, but is relievable in equity.
    APPEAL from Washington Circuit Court.
    Hon. B. J. H. Gamis, Special Judge.

      Walker & Rogers, for appellants.

      Rose & Green, for appellee.
   Compton, Sp. J.

This was a complaint in equity brought in the court below by James R. Pettigrew against George W. Tate, Warren J. Steward and Henrietta, his wife, to correct a mistake in the conveyance of, and to quiet the title to, certain real estate.

The following facts appear in the record; Tate owned and resided on a quarter section of land situate in Washington county, and known as “the George W. Tate place.” The sheriff went upon and levied an execution on the land, at the suit of Henry Kaiser, but in his return on the execution, the sheriff, through mistake as to the numbers of the land, described a quarter section different from that on which the levy was in fact made, and to which Tate had no title whatever. This mistake was carried into the advertisement and also into the sheriff’s deed. At the sale, which occurred on the 5th day of August, 1867, the sheriff not only read the numbers of the quarter section from the advertisement, but also announced publicly to the bystanders that it was the “ George W. Tate place,” and recommended it as a “goodfarm.” Both Steward and Pettigrew bid at tbe sale, and each believed that lie was bidding for tbe George W. Tate .place, Tate alone having knowledge at that time of the mistake in the sheriff’s return and failing to communicate 'the same.. The land was knocked off to Pettigrew at the sum of eight hundred dollars, which he paid, and the sheriff made him a deed, Pettigrew re: maining ignorant of the mistake until after the deed was duly acknowledged and filed for record. Afterward, Jesse Freeman filed in the office of the clerk of the circuit court, a judgment against Tate before a justice of the peace, and caused execution to issue thereon, under which the same quarter section was sold by its correct numbers, on the 3d day of February, 1868, and the appellant Steward became the purchaser with full knowledge of the mistake in the description of the land connected with the former sale, and caused the sheriff’s deed to be made to his wife, the said Henrietta, who, in connection with her husband, brought soon thereafter an action at law against the tenant of Pettigrew, to recover possession of the premises. Prior to the sale at which Pettigrew purchased, Tate was indebted to Steward and also to certain other persons, which indebtedness, including the Kaiser judgment, amounted in the aggregate to about $1,000 ; and he agreed in parol with Pettigrew, that the latter should bid in his land and keep it, if he would pay off the debts mentioned, which Pettigrew agreed to do and did. After the discovery by the latter of the mistake in the sheriff’s deed, and before the sale occurred at which Steward purchased, Tate agreed with Pettigrew on the same terms, and promised to correct the mistake as far as he was able to do so. At the hearing in the court below, the deeds of the sheriff were cancelled; all the title which Tate had to the land in controversy, at the time the Kaiser execution was levied, was divested, and the same vested in Pettigrew in fee simple absolute, and the appellants perpetually restrained from further prosecution of their action at law.

Tate, the execution debtor, did not appeal, nor did he complain of the levy and sale under the execution in favor of Kaiser; on the contrary, he at all times evinced a disposition to carry out in good faith the parol agreement between himself and Pettigrew touching the sale and purchase of the land. The contest is between the purchasers at the different execution sales; and the question is, whether Pettigrew, upon the facts stated, is entitled to the relief he seeks as against Steward.

The continuance of the mistake in the advertisement, though an irregularity, did not deprive the sheriff of the power to sell, nor make the sale void. The rule is, that a bona fide purchaser of property at a sheriff’s sale is not affected by any irregularity or'omission by the sheriff in advertising or conducting the sale. Newton v. The State Bank, 14 Ark., 9; Ringgold v. Patterson, 15 id., 209; Newton's Heirs et al. v. The State Bank, 22 id., 19. The misdescription not affectiDg then the title of Pettigrew, if the land in controversy was in fact sold under the Kaiser execution, and the evidence shows that it was, our inquiry is narrowed to the mistake in the return and in the deed of the sheriff.

It is insisted in argument, that as soon as the mistake was ■discovered Pettigrew, should have applied to the court out of which the execution issued to have the sheriff’s return amended, which was an adequate remedy at law, and that because he did not do so, he ought not to be heard in a court of ■equity. To this it may be replied that the mistake did not ■come to the knowledge of Pettigrew until after the sheriff’s deed was acknowledged before the clerk of the circuit court, and filed in the recorder’s office for record; which by force of the act of January 1, 1855, had the same effect as if the acknowledgment had been taken in open court (Gould’s Dig., ch. 68, sec. 70); and this court decided in The State Bank v. Noland et al, 13 Ark., 299, that after the deed has been acknowledged in court, and delivered to the purchaser, the law court cannot, at a subsequent period, upon motion or otherwise, relieve the party injured on the ground of accident, mistake or any irregularity in the proceedings, but that the remedy, in such case, is in equity (see also Newton v. State Bank, 14 Ark., 13; Gould’s Dig., ch. 68, secs. 67-8-9); and that a court of equity is competent to correct mistakes in records as well as in written instruments or contracts on parol evidence, where the mistake is clearly and satisfactorily established, is now well settled. 1 Story’s Eq., sec. 166; Partridge & Co. v. Harrow et al., 27 Iowa, 96; Heath's Heirs v. Heirs of Callaway, 7 B. Mon., 179; Cohen v. Dubose, 1 Harper’s Ch. 102; Davis et al v. Davis, 11 Ohio, S. R., 386; Simpson v. Montgomery, 25 Ark., 365.

In Partridge & Co. v. Harrow et al., supra, where in an action on a promissory note, the clerk, by mistake, entered judgment for a less amount than was actually due, and the mistake was not discovered until after the period allowed by the statute to correct such errors had elapsed; the court held that the party complaining, being without remedy at law, was entitled to relief in equity. So in Cohen v. Dubose, in which the court went further than we should be inclined to go; the plaintiff had brought suit at law upon a promissory note, on which a considerable amount of interest was due, and the jury rendered a verdict for the principal of the note, omitting the interest: Held, on a direct proceeding in chancery, that parol evidence of a juror was admissible to show that the jury had omitted the interest through mistake, and the mistake being satisfactorily proven, the defendant was decreed to pay the interest. And in Carnall v. Wilson, 14 Ark., 482, tire mistake sought to be corrected was the same as in this case ; and the court denied relief upon the ground that the evidence of the mistake was not satisfactory, not only not questioning the power of the court to afford relief, but clearly intimating that, on sufficient evidence, a different conclusion would have been reached. In the case now before us, the proof is full, clear and decisive as to the mistake, and from the evidence in the record, we cannot doubt that Steward had knowledge of the mistake when he purchased.

It may be remarked, in conclusion, that this case is different from that of Fennos v. Coulter, 14 Ark., 38. There the sheriff in making the levy, instead of going upon the land, so as thereby to distinguish it from other property, as it was held in that case he might have done, took from the tax book what he supposed to be the correct numbers of the land, but which were afterward found to be incorrect, and the' court declared that the mistake was not in entering the levy on the execution, but consisted in levying on the prbperty of a third person, and not on that of the defendant. Here the reverse is true. The sheriff, as has been seen, went upon and levied on the land of the defendant, and the mistake consists in entering the levy'on the execution.

Finding no error in the record, the decree of the court below is, in all things affirmed, with costs.

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


text:
    The State ex rel. Attorney General vs. The County of Dorsey.
    Legislative Enactments: Where constitutionality of, in creating neto counties, questioned, etc.

    When the constitutionality of an act of the legislature, creating a new county, is questioned because its area is less than the constitutional requirement, or that some county or counties out of which it has been organized has been reduced below six hundred square miles, to determine this fact, the courts cannot look beyond the act itself, or some other official record of like grade and character, or official survey or maps of which they are bound to take judicial notice.

      QUO WARRANTO.

      Attorney General and. H. Carlton, for petitioner.

      Harrison & Jones, for defendant.
   Bennett, J.

This is a writ of quo warranto against the county of Dorsey, in answer to which the county has pleaded: That it was established and created a county from portions of the territory of Lincoln, Jefferson, Dallas and Bradley, by an act'of the general assembly, entitled “An act to establish and organize the county of Dorsey,” approved April 17, 1873. To which plea, the plaintiff has replied that, by taking the portion of territory from Lincoln county, the territory of that county was reduced to less than six hundred square miles, in violation of the constitution, and, in consequence thereof, the said act of the legislature is void. To this replication the defendant has demurred.

The following causes of demurrer are assigned:

First. The. matters contained in said replication are no answer to said plea.

Second. The matters averred in said replication are not such as may be tried by a j ury, or by the court sitting as one, and are not issuable.

Third. The matters contained in said replication are matters of law and not of fact.

« Fourth. The said replication neither traverses the plea nor confesses and avoids it.

Fifth. The plaintiff is, by the said act of the general assembly, mentioned and shown in said plea, estopped from averring that the territory of the said county of Lincoln was, by the creation and formation of the county of Dorsey, the defendant, by the act aforesaid, reduced to less than six hundred square miles.

The question presented for our consideration by the demurrer, is: Is an act passed by the legislature, creating a new county, conclusive upon the other departments of the government, as to whether the territory of the new county, or of any of the counties out of which it is formed, has been reduced below the constitutional number of square miles? Or, in other words, has this court power to go behind the acts of the general assembly and try the question as to whether the express or implied affirmations of these acts are true or false; to determine the constitutionality or unconstitutionality of the enactment?

The power to form new counties, it is conceded, belongs to the legislature alone under the constitution; but, before this power can be rightfully exercised, it must be made to appear affirmatively, first, that the proposed new county does contain an area of at least six hundred square miles; second, that no other county is thereby reduced below that area.

When these facts are made to appear to the satisfaction of the legislature, then, and not till then, an act creating the proposed new county may be passed. To exercise the power of creating new counties, the legislature must inform itself of the existence of the facts prerequisite to enable it to act on the subject. How it shall do so, and on what evidence it shall act, the general assembly must determine. When so determined, does it conclude further inquiry?

In order to a right understanding of this question, it is necessary to ascertain the force and effect of an act of the legislature as evidence.

Phillips, in bis work on Evidence (vol. 2, p. 271), under the head, “Of the admissibility and effect of public writings not judicial,” says: “The ordinary purpose for which public writings not judicial are produced in evidence, is to prove facts by means of an official statement. * * As to statements in records. In some instances this kind of evidence is supposed to derive superior weight from the circumstances of its being a record. The evidence, however, is not on that account incontrovertible. A record is conclusive as to all matters passing under the inspection of the proper officers, whose duty it is to draw up the record ; but it is not conclusive except upon the principle of being res acljuclicaia as to other matters recited or alleged in the record to be true.

“The most authoritative species of evidence, of the nature under consideration, are acts of parliament, though it may be doubted whether the facts recited in them are always inquired into with the same care that has been used in several other species of public investigations. It has been held that the preamble of an act of parliament, reciting that certain outrages had been committed in parts of the kingdom, was admissible evidence for the purpose of proving an introductory averment in an information for a libel, that outrages of that description had existed. * * But recitals, even in a public act, are not conclusive evidence of the facts therein stated. Thus, when a place was mentioned in the schedule to the Municipal Corporation act, as being a borough, evidence was admitted to show that this description was incorrect.

“ A resolution of either house of parliament has been considerecDnob to be evidence of tbe truth of the facts there affirmed. In the case of Titus Oates, 10 How. St. Tr., 1165-1167, who was charged with having committed perjury on the' trial of persons suspected of the Popish Plot, a resolution in the journals of the house of commons asserting the existence of the plot was not allowed to be evidence of that fact, upon the grounds that these resolutions were not records out of a court of record.”

The facts recited in the preamble of a private statute may be evidence between the commonwealth and the applicant or party for whose benefit the act passed. But as between the applicant and another individual whose rights are affected, the facts recited ought not to be evidence. Elmendorf v. Carmichael, 3 Litt., 472.

The court, in their opinion in this case, observed: “We well know that such applications are frequently made exparte, and if they are not entirely so, but the party affected appears and resists the statute, it is very questionable whether the facts recited ought to be evidence in a future contest. The legislature, in all its inquiring forms by committees, make no issue, and in their discretion may or may not coerce the attendance of witnesses, or the production of records, and are frequently not bound by the rules of evidence applicable to an issue properly found, the trial of which is an exercise of judicial power. Once adopt the principle that such facts are conclusive, or even prima facie evidence against private right, and many individual controversies may be prejudged and drawn from the functions of the judiciary into the vortex of legislative usurpation. The appropriate functions of the legislature are, to make laws to operate on future incidents, and not the decision of or forestalling rights accrued or vested under previous laws. Hence such a preamble as the present ought, in such a controversy, to be taken to answer the purpose for which it was intended; that is, an .apology,for the passage of the act, and the reason why the legislature so acted. Such a preamble is evidence that the facts were so represented to the legislature, and not that they really existed.”

The above cited authorities show that an act of the legislature, with its preamble, is not a record of the highest character, imparting absolute verity upon its face, and is not always conclusive as to the facts upon which it is predicated or founded.

But has this court the power to go behind the acts of the general assembly, and try the question as to whether the express or implied affirmations of these acts are true or false, or shall the constitutionality of a legislative enactment depend upon other facts that may appear upon the face of the act, or within the judicial knowledge of courts or other tribunals?

Undoubtedly, if the statute creating a new county contained a declaration that there were less than six hundred square miles-within its boundary, or this fact could be made to appear by computation from its defined limits, it would be suicidal. Nothing futher would be necessary to effect its nullification.

If the legislature exceeds its power in the enactment of a. law, the courts being sworn to support the constitution, must judge that law by the standard of the constitution, and declare its validity. But the question whether a law, upon its face, violates the constitution, is very different from the question growing out of the existence of certain facts to establish the validity or invalidity of a law. In the one case a power is-exercised, not delegated, or which is prohibited, and the question of the validity of the law is determined by the language of it. In the other, the law is not, in its terms, contrary to-the constitution on its face; it is regular, but resort is had to something behind the law itself, in order to ascertain whether the general assembly, in making the law, correctly ascertained the essential facts to make the enactment strictly comply with the constitution.

If this can be done, it would seem like an inquisition into-the conduct of the members of the general assembly, and it must be seen, at once, that it is a very delicate power for us-to assert; the frequent exercise of which "must lead to endless confusion in the administration of the law.

Judge Strong, in the case of Rumsey v. The People, 19 N. Y., 48, asks the following very pertinent question : “ Who can review the conclusion of a legislative body on a question of' fact ?” and then answers it as follows : “ Certainly not a jury of twelve men; nor can this court, or any other judicial tribunal, assume, without proof, the existence of a fact for the purpose of nullifying a statute. It is true the legislature may make a mistake as to a fact, or may willfully disregard the-constitutional injunction. But all public functionaries, judicial as well as legislative, are liable to be mistaken, and yet questions must be"submitted to them for their determination, and we must abide by the decision of those from whom there-is no appeal, right or wrong.”

The court, in the case of De Camp v. Eveland, 19 Barb., 88, say: “ The legislature are no where restrained, directed or limited in regard to the nature, grade or character, of evidence which-they must have as the basis of their action, or to-guide them in their decisions. In some specified cases their power is limited, and in others conditional, depending upon the existence of certain facts. But they must necessaily decide whether such facts exist. Their general power to prescribe and regulate evidence for every other tribunal in the state has never been questioned, and it would present a singular anomoly, if they were wanting in power to do the same for themselves; and it would be equally strange if any judicial tribunal in the state were permitted to review their decision upon the question of fact, on the existence of which their power to legislate in a particular case is made to depend.”

It is true that the act creating the county of Schuyler, which was the subject matter of the litigation in the case of Rumsey v. The People, 19 N. Y., 48, from which we have made the above quotation, was declared unconstitutional in a late case (Lemming v. Carpenter, 20 N. Y., 447), but it was so declared upon entirely different grounds from those assumed, when it was brought before the court, in the case of Rumsey v. The People. In that case the act was objected to because, in the organization of the county of Schuyler, its territory did not, or that the legislature did not legitimately ascertain that it contained the requisite constitutional population, and it was in regard to this point, and the ascertainment of that fact, the above remarks were made, and the law held to be constitutional. But when the case of Lemming v. Carpenter was presented, the act creating the county was again attacked, upon the ground that the constitution of the state provided that no county shall be divided in the formation of a senate district, and that the judicial districts are always to be bounded by county lines. The senate and judicial districts were defined by the constitution, and the court held that the lines of Schuyler county, as established by the act of the legislature, conflicted with those as esta-b-. lished in the constitution for senate and judicial districts, and was therefore void.

In the case of Bradley v, Powell County, 2 Humph., 428, it clearly appeared in the act creating Powell county, that the area contained within the lines of the county was not equal to the constitutional requirements, and the court declared the act unconstitutional.

The supreme court of Tennessee, in the case of Ford v. Farmer, 9 Humph., 153, reviewed the above case, and reaffirmed the doctrine as therein announced, but refused to abolish a county, after it was organized and put into operation under an act of the legislature establishing it.

In the subsequent case of Budgnor et al. v. Rogers, 1 Cold., 259, the same court held that a county that had been deprived of its constitutional number of square miles by the organization of a new county, could have enough of territory restored to it to make up its constitutional area, and that this could be so established by actual survey.

The case of Lusher v. Scites, 4 W. Va., 11, declares positively, that an act of the legislature creating a county is conclusive as to all necessary prerequisite facts, and concludes further inquiry by all other departments of the government, judicial or otherwise.

The case of Duncombe v. Prindle, 12 Iowa, 1, was a suit instituted on a promissory note in Webster county. The defendant set out by way of answer, that he resided in Humboldt county, in township 90, range 28, etc., which township is situated in Humboldt county, as would more fully appear by “an act to create the county of Humboldt,” and “ an act explanatory of the act entitled an act to create the county of Humboldt.” The first act, it appears, had left out township 90, and the last one was passed in explanation of the first, stating that it was intended to include this township within the limits of Humboldt county.

The plaintiff, in his replication, controverts these affirmative statements in the answer, as to the original bill and the explanatory one, and makes profert of the original manuscript act, filed in the secretary of state’s office, to contradict the first bill, and alleges that the second law is inoperative, because it was not submitted to a vote of the people of Webster and Humboldt for approval as required.

To the replication the defendant interposed a demurrer, which was overruled by the court. But the exhibits or proferts offered to sustain the pleading were all matters of evidence of equal standing with the law sought to be overturned, and could be judged of from an inspection of them. The conclusion then seems to be inevitable, that when the constitutionality of an act of the legislature creating a new county is questioned because its area is less than the constitutional requirement, or that some county or counties out of which it has been organized has been reduced below six hundred square miles, to determine this fact, the courts cannot look beyond the act itself, or some other official record of like grade and character, or official surveys or maps, of which they are bound to take judicial notice.

The rule of pleading is, that when matter which operates as an estoppel appears on the face of the declaration or plea, a demurrer will be sustained to the declaration or plea by which the party attempts to set up such matter.

In the case at bar the defendant pleaded the act of the legislature organizing the county as an answer to the writ of quo warranto. The replication to this plea says: It is true the county of Dorsey was organized by this act; but the legislature by it has reduced Lincoln county below the constitutional number of square miles. This replication is demurred to upon the ground that the act of the legislature is conclusive; and it is the sole judge of all prerequisite facts essentially necessary to bring their action within the constitution. They having determined this, the other departments of the government are precluded from inquiring into them. But from the conclusion' we have come to, it will be seen that such is not always the case. Certain evidence may controvert a law, which may appear constitutional, but it must be of equal grade and character with the law itself. With these restrictions as to the proof to sustain the replication, the demurrer is overruled.


text:
    Richardson, Ex'r, vs. Thomas et al.
    Yendoes: When remedy against vendee limited, etc.

    Lands were sold and notes given for the payment of the purchase money, and at the same time, the vendor, retaining a lien, executed a deed, with covenants to the efiect that he waived and relinquished all right, in law or equity, to recover the same or any part thereof from any other lands or property of the vendee, expressly exempting the same from all liabilities for the payment of the purchase money. On suit on the notes: Held, that the covenants in the'deed were a part of the original agreement, and being so construed, the vendor, in his reniedy, should be confined to the property named in the deed as to the extent of his recovery.
    APPEAL from Jefferson Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      U. M. Rose, for appellant.

      Bell & Carlton and A. H. Garland, for appellee.
   Bennett, J.

At the November term of the circuit court of Jefferson county, Samuel B. Thomas sued Benjamin E. Richardson, as the executor of James Sheppard, on notes given by Sheppard for the purchase of a plantation, slaves, etc., in 1860.

Richardson appears and files an answer to the complaint of Thomas, which was demurred to, which demurrer was sustained by the court; and Richardson, as executor, declining to answer further, final judgment was rendered for Thomas, for forty-eight thousand, four hundred and nineteen dollars and seventy-five cents, for balance of debt, and the further sum of thirty-four thousand, one hundred and fifty-four dollars and seventy-eight cents, for damages; from which judgment Richardson, as executor, has appealed.

Was the demurrer to the answer properly sustained?

The answer of Sheppard alleges that the consideration for ■which these notes were given was a certain tract of land, slaves and farming utensils, in 1860, and that the notes were given upon the terms and conditions set out in the deed of conveyance made by Payne & Robinson, the assignors of the note, to Sheppard.

The answer further recites the deed and the cotemporaneous conversations and inducements which induced Sheppard to malee the purchase and execute the notes; states the breaking out of the civil war, and that since said purchase of land, etc., and execution of these notes, the slaves have been liberated by the act of the government, and are now free, and to the extent of the value of these slaves, the consideration of these notes has failed.

Sheppard then asks that, inasmuch as these matters and things cannot be taken into consideration in a court of law, this cause of action be transferred to the equitable side of the court.

The demurrer to the answer is based upon the following grounds:

First. Because the facts stated in said answer, or any one paragraph of said answer, are not sufficient to constitute a defense, counterclaim or setoff against the plaintiff’s complaint.

Second. Because, in the third paragraph of said defendant’s answer, he has alleged a verbal understanding and agreement between the said James Sheppard and the plaintiff’s assignors, of the notes sued on, when the answer further shows that said agreement of purchase, for which said writings obligatory, sued on, were given, was consummated and executed by a deed of conveyance.

The third, fourth, fifth, sixth and seventh grounds of demurrer consolidated, in effect are, that no one of the paragraphs of the answer, from the first to the fifteenth, states facts sufficient to make a complete defense within itself, and that no fact stated in any paragraph of the answer, or the whole taken together, requires the aid of a court of chancery, because there are no defenses to the notes, in law or equity.

So much of the demurrer as relates to the formal part of the answer is well taken. A defendant has the right to allege as many grounds of defense, counterclaim or setoff, whether legal or equitable, as he may have. Each, however, should be distinctly stated in separate paragraphs, and numbered, and must refer to the causes of action which it is intended to answer. The answer, in this cause, is paragraphed, but not as the law requires, because no one of these, from the third to the last, presents a perfect defense, and is in itself an answer to the action. Newman’s Pleadings, secs. 539, 540, 550; Civil Code, sec. 116.

Owing, however, to the fact that this cause has been before us in another shape (Sheppard v. Thomas, 26 Ark., 617) and the large amount of money involved, and for the purpose of bringing this litigation to a close, we have thought it best to pass over the informalities of the answer and look at it and see if there is in it, taken in parts or as a whole, any defense, either in law or equity, to these notes.

All those matters in the answer, touching the sale of the slaves and losses by the war, are no longer to be discussed. Sheppard can take nothing by that averment. Osborne v. Nicholson, 13 Wall., 654; Jacoway v. Denton, 25 Ark., 625. And it is certainly true that the attempt to set up in the answer a verbal agreement to contradict the notes, without an averment that by fraud or mistake this was omitted, is of no avail. Roane v. Greene, 24 Ark., 210, and cases cited.

The answer then, stripped of all its extraneous matters, rests solely upon the covenants of the deed conveying the property for which these notes were given.

By this deed of conveyance a lien was sought to be retained for the payment of the purchase money, and the vendors covenanted that they did thereby waive and relinquish all our right, in law or equity, to recover the same, or any part thereof, of or from any other lands, negroes or property of the said James Sheppard, but do hereby expressly exempt the same from all liabilities for the payment of said purchase money so remaining due and unpaid as aforesaid, and rely entirely on our said lien for security and payment as aforesaid.”

The notes sued on were given for the purchase money of the lands, negroes, etc., mentioned in this deed, and defendant Richardson, as executor, contends that this covenant in the deed, made at' the time the notes were executed, if properly construed, should be held to signify that Thomas, in his remedy upon them, should be confined to the property named in the deed as to the extent of his recovery.

The judgment of this cause was against the general estate of Sheppard, and not against this specific property.

Now does this avoid the contract by which the parties bound themselves ?

The first point for the consideration of the court is, what was the nature of the contract between these parties.

Taking the notes sued on and the covenant in the deed together, we are satisfied that they prove that the defendant was justly indebted to the plaintiff in the full amount specified in these notes; and that, in case of nonpayment of these notes, the plaintiff agreed to look to no other property in satisfaction and discharge of that debt, but the lands, slaves, etc., mentioned in the deed.

Now shall the notes and this covenant in the deed be construed together as if they were parts of one contract. It will not be questioned that the rights and obligations incident to a contract may be extinguished or modified by a new agreement between the same parties, plainly expressing or implying an intention so to extinguish or modify them. Bailey v. Johnson, 9 Cow., 115; Low v. Treadwell, 3 Fairfield, 441; Richardson v. Hooper, 13 Pick., 446; Cummings v. Arnold, 3 Metc., 486; Robinson v. Batchelder, 4 N. H., 40.

When the new agreement is a modification, either express or implied, of any of the express terms or stipulations of the original contract, it has been held to constitute a new contract, consisting partly of the original contract and partly of the new agreement engrafted upon it, and has been declared upon or been available by way of defense.

A contemporaneous memorandum on a note, or even on a separate piece of paper, is a part of the note, and may qualify and restrict it, and will bind all parties. Haywood v. Perrin, 10 Pick., 228; Hunt v. Livermore, 5 id., 395; Barnard v. Cushing, 4 Metc., 230; Roger v. Kneeland, 10 Wend., 218.

The case of Hunt v. Livermore, 5 Pick., 395, was an action of assumpsit on a promissory note from the defendant to the plaintiff, dated February 26, 1823, for $1,400, payable on demand. At the trial the plaintiff called a witness who testified that on the 2d day of December, 1824, the plaintiff demanded of the defendant payment of the note, but the defendant did not pay.

The defendant then gave in evidence a bond from the plaintiff, dated February 26, 1823, conditioned that the plaintiff should make and execute to the defendant a good and valid warranty deed of certain land which the defendant had agreed to purchase of the plaintiff for the sum mentioned.

The defendant also produced the following receipt signed by the plaintiff: “February 26, 1823. Received of E. S. Livermore a note of hand for $1,400, for which I have this day given him a bond for a deed of a certain piece of land; but provided the bargain is not carried into effect, I am to deliver up said note upon said Livermore’s delivery of said bond.”

The defendant contended that the plaintiff was not entitled to his action, although the note said it was due on demand, before he had tendered a deed of the estate described in the bond, and that the defendant now had a right to rescind the contract referred to in the bond and receipt. The court, by a unanimous opinion, held that the note, the receipt and the bond should be construed as if they were parts of one contract, and upon the failure of the plaintiff to tender a deed for the estate named in the bond, he should be nonsuited on the note.

The case of Makepeace v. The President of Harvard, College, 10 Pick., 298, was an action on. a promissory note, dated March 15, 1824, made by Makepeace to the college, for $4,310.50. At'the foot of the note is the following memorandum of an agreement, without any signature: “ It is agreed that if the said Makepeace shall convey to the said president, etc., one undivided fifth part of four lots of land lying, etc., the sum of $3,200 shall be allowed therefor towards the above sum, and if any sum shall be paid in cash or otherwise, double the amount so paid is to be indorsed upon said note,” etc.

Makepeace, on the trial, produced an agreement between himself and the agent of the college to the same effect as the memorandum on the note, only it does not^ appear that the writing at the foot of the note was made at the same time with the agreement.

The plaintiff contended that the agreement was collateral to the note, and that as it had not been complied with within three months, the • plaintiff had a right of action on the note for so much of it as had not been paid.

The defendants contended that the note and memorandum were to be construed together as. one instrument, and the agreement was that Makepeace should convey certain lands to the college and pay them $510, in discharge of debts due, not from himself, but from other persons, and the note was given as a penalty to secure the performance of this agreement.

Chief Justice Shaw, in delivering the opinion, said: “"We agree with the original defendant’s counsel that the several instruments made at one and the same time, and having relation to the same subject matter, must be taken to be parts of one transaction and construed together for the purpose of showing what was the true contract between the parties. Eor this purpose the memorandum subjoined to the note, and also the separate memorandum signed by the plaintiff’s attorney and making known an agreement of the parties respectively, are all to be considered together.”

Then looking at the subject matter, the time when and the manner in which this whole contract was made, as evidenced by these notes, given for the purchase money, and the covenants in the deed conveying the property, and keeping in view the principles of law, as stated in the above cited cases, we entertain little doubt that it was the intention and understanding of the parties that the maker of these notes should stand free from personal liability for any deficit, after exhausting the property named in the deed.-

Now, as the parties intended it should be so, it is the undoubted duty of the court to carry out that intention, unless it violates some rule of law or public policy.

The plaintiff, however, contends that if the condition in the deed had been inserted in the notes it would have availed nothing, as the condition is utterly repugnant to the note, and is without consideration and void. That is, the condition is inconsistent with the obligation.

Some confusion, we are aware, has crept into the cases for a want of proper care in distinguishing between the right and the remedy ; or, in other words, between the cause of action and the mode of enforcing it. These are distinct considerations. Where there is no dispute about the right of action, there may still be a question about the form or extent of the remedy.

The rights and obligations of a contract depend, not solely, upon its terms or stipulations. They depend also upon the existing law applicable to its construction and enforcement. The right of one part} is simply a right by means of the established legal remedies to such performance or such damages for the breach of the contract as the law gives. The obligation of the other is what the law, through the instrumen' tality of these remedies, will compel him to pay or perform. The law, applied to the contract, is the measure of each. Without some law to enforce it, the agreement of the parties would be a mere nudum pactum. It would not be, in a legal sense, a contract. However binding in conscience, it would confer no right, but a mere moral claim, and enjoin no obligation, but a mere duty.

These principles are too well established in this country to admit of question, and if they are conceded, and it is admitted to be true, that the law of remedy does thus enter into and form a part of the contract,j and concur in its rights and obligations, it results that the contract may be modified by an agreement not to assert the full remedies which the law gives for its enforcement, or may waive or relinquish the right to recover the amount of the obligation, excepting from execution against certain property named in the agreement. If the property named is not sufficient to satisfy the full measure of damages, the balance will be considered as released from the obligation.

In the case of Chickering v. Greenleaf,, 6 N. H., 51, the defendant had given a note containing a clause to the effect that he should not be liable to imprisonment for debt for nonpayment thereof. The court held the contract good, and refused a capias against his person.

In Elmore v. Higgins, 20 Iowa, 250, an indorsement was made on a note to the effect that it was secured by mortgage, and that the remedy was limited to the mortgaged property alone. Judge Dillon held that the payee was confined to his remedy by foreclosure, and was not entitled to a personal judgment.

We have examined with great care all the authorities cited in the plaintiff’s brief as controverting this proposition, and all in effect say that an agreement to abate a part of the sum due, in order to get the balance, will not be enforced, because the promise is not supported by a sufficient consideration.

But in the case under consideration there is an express covenant in the deed that the vendor, Sheppard, shall not be liable beyond the money paid down and the property bought to pay these notes. Every covenant in a deed is supposed to be based on a consideration. The contract seems to be a fair one, and is plain and needs no construction, whether we take into consideration the attendant circumstances or not.

The view we have taken of this case makes the covenant in the deed waiving and relinquishing all right to enforce the collection of these notes from any other property, except that named in the deed a part of the original agreement, and we are of opinion that the' judgment of the court below be reversed and the cause remanded with direction to transfer it to the equity side of the docket, and, if the court finds from the proof that the notes and deed were executed as alleged in appellant’s answer, that a decree be entered for the appellee for the amount remaining due on the notes with interest, and upon failure of appellant to pay the same, the property (except slaves) mentioned in the deed be held subject to the satisfaction thereof, and that a lien be declared in his favor on said property, and that a special fieri facias be issued for the sale thereof, and that execution be denied against all other property of said appellant.


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    Seabrook et al. vs. The State.
    Practice : Where defendant fails to prosecute a/ppeal.

    Where an appeal bond is given and the defendant fails to prosecute his appeal within the time prescribed by law, it is proper, if the plaintiff desires to proceed against the sureties on the appeal bond, to hie a transcript of the case in this court, and have the judgment affirmed.
    APPEAL from Jefferson Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      J. A. Williams, for appellants.

      T. D. W. Yonley, Attorney General, for appellee.
   Bennett, J.

At the June term of the Jefferson, county criminal court, for the year 1871, B. W. Seabrook was indicted for exhibiting a gambling device. Upon the trial, a judgment was awarded the state for the sum of one hundred dollars. Erom this judgment Seabrook prayed an appeal, and executed an appeal bond with James M. Portis and J. W. M. Murphy as securities. In April, 1873, the criminal court of Jefferson county was abolished by the general assembly, and jurisdiction in criminal matters for the county was restored to the circuit court.

At the June term for the year 1873, the prosecuting attorney presented the appeal bond given in the criminal court, without any notice to principal or securities, and the court rendered judgment for one hundred dollars against them< Erom this judgment the defendants have appealed.

The circuit court erred in rendering the judgment. The record shows that no appeal was prosecuted on the original suit, the judgment of which was superseded by this bond. Seabrook should have prosecuted his appeal within ninety days after it was granted; if he neglected to do so, the state could only have recovered upon the original judgment against him. Before proceeding upon the appeal bond it is proper, upon failure of the defendant to prosecute his appeal, for the state to file a transcript of the case in this court, and have the judgment affirmed, then the appellant and his securities will be liable for the judgment.

The court below undoubtedly founded its action on the agreement'of Seabrook to take the decision in another case as the decision in his case. While this agreement might be held to be good and binding upon Seabrook, it would not be as to his securities, as it does not appear that they were parties to it. Their agreement in the bond was to abide by the decision of this court in that case, and inasmuch as no such decision had been rendered in that ease, they were not bound upon the bond.

J udgment reversed and cause remanded, with instruction to the prosecuting attorney to send to this court a transcript in the original cause.


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    Pinson et al vs. The State.
    Bail : When sheriff authorized to talce.

    When tlie court fixes the amount of bail and the sheriff upon process arrests the person charged, or he is already in custody, the sheriff is authorized to take bail.

      APPEAL from Columbia Circuit Court.
    Hod. M. D. Kent, Circuit Judge.

      G. P. Smoote and Dick Gantt, for appellants.

      T. D. W. Yonley, Attorney General, for appellee.
   Gregg, J.

At the October term, 1872, of the Columbia circuit court a forfeiture was taken against the appellants and James M. Butts, upon a bond for $700, given for the appearance of Butts at the previous April term, to answer a charge of an assault with intent to kill.

At the May term, 1873, all being notified but Butts, they answered, that the bond was taken by and before Claiborne S. Barron, as sheriff of said county, and that he did not arrest Butts under a warrant or other process in which it appeared that said Butts was to be admitted to bail in a specified sum, etc. ; and that said sheriff did not have Butts in custody by arresting him under a warrant or other process in which it appeared that said Butts was to be admitted to bail in a specific sum; and that at the time he was confined in the jail of said county in default of bail in the sum of one thousand dollars, required of him by the circuit court of La Fayette county, and that the bail bond is void, etc.

The state by attorney replied, the bond was taken by Barron, as such sheriff, and that he did not arrest Butts upon a warrant wherein it appeared that bail was fixed; that said Butts had been in his custody in default of bail in the sum of $1,000. But that he applied to the circuit court of Columbia county where the indictment was then pending for a reduction of bail, and that court ordered his bail reduced to $700, and by order specified and required the said Barron as such sheriff to take said bail and approve the same, which was done, etc.

The appellants moved the court to strike out said replication, which motion the court overruled and the appellants excepted. They then demurred to the replication, the court overruled their demurrer, and rendered final judgment, to which they excepted and appealed.

The state’s replication under the code of practice was unnecessary. She could have gone to trial upon her allegations and the appellants’ response, and shown that the one thousand dollar bond required before the change of venue had, after the change, been reduced to seven hundred dollars, and that an order by that court fixing the bail, etc., had been made, and that, in obedience to that order, the sheriff took and approved the bond, and hence was acting under process of the proper-court, etc., and the replication should have been stricken out. But such error does not require a reversal, as the appellants also had the benefit of all the facts with, as without the replication.

The demurrer presents the sufficiency of the facts to maintain the action.

Butts was regularly indicted for an assault with intent to killr and he was placed in custody of said sheriff to await trial. Upon his own application, the court in which the prosecution was pending reduced the amount of this bail and ordered the sheriff to take bail in the sum then fixed, and thereafter he took and approved of the bond in suit and discharged the accused, who failed to appear, etc."

Section 67 reads: “Admission to bail is an order from a competent court or magistrate that the defendant be discharged from actual custody on bail.”

The admission to bail as it is declared in this act, was by the circuit court, and properly had in this case.

Section 78 provides that a sheriff arresting a person upon a warrant or process, etc., may take bail.

There is no question under the code that when a court fixes tbe amount of bail, and the sheriff upon process arrests the person charged, he can take bail. Here the appellants say by an order of the court, the sheriff had the accused in charge and did not arrest him —did not take him in charge. They do not deny that the accused was properly indicted ; that his bail was duly ordered and the amount fixed ; that they gave the bond, and he was discharged from custody, and they may well say the order of the court fixing the bail and ordering the sheriff to take the bond, was process for such purpose. But still they say the sheriff had him in custody and did not have to take him into custody, and hence does not come within the strict letter of the statute.

This is not a criminal prosecution, but a common suit upon a bond for money, an action to enforce a civil contract between these sureties and the state. And we know of no rule requiring any greater strictness in construing this law than any other legislative act upon civil contracts, and instead of adhering to the utmost strictness as in prosecutions for high crimes, we must give the law a fair and liberal construction to carry out the provisions of the statute and enforce the contract in the spirit of the law, and as it was understood between the parties, and such construction is clearly what was intended by the legislature, as shown by section 80 of the criminal code, in which it is enacted that no “ irregularity, so that it be made to appear that the defendant was legally in custody charged with a public offense, and that he was discharged therefrom by reason of the giving of the bond or recognizance, and that it can be ascertained from the bond or recognizance that the bail undertook that the defendant should appear before a magistrate for the trial thereof, etc., shall render the bail bond or recognizance invalid.”

Taking the whole act of the legislature, and applying the ordinary rules of construction, the laws of contract and for enforcing remedies, the appellee’s case clearly comes within its provisions.

The judgment of the court below is in all things affirmed.