Yoes, Adm'r, vs. Moore & Kidd, Adm'rs. All this is plain enough, and under these provisions of the constitution of 1868, no lawyer familiar with our system of courts would have thought of taking an appeal directly from the probate to the supreme court in the absence of legislation. especially warranting it. But after the adoption of the constitution of 1868, a code of pleading and practice was prepared by a commission of lawyers not very familiar with our judicial system, and adopted by a legislature less familiar with it. The code of Kentucky, with modifications intended to adapt it to our judicial system, was adopted. Under this code, as originally adopted, there was confusion and uncertainty as to the appellate jurisdiction. of the circuit and supreme courts. Section 15 of the civil code provides that: "The supreme court shall have appellate jurisdiction over the final orders. and judgments of all other courts of the state, subject to the exception in the next section." This is section 15 of the Kentucky Code, with the substitution of the words "supreme court" for "court of appeals," and "state" for commonwealth. The next section of our Code is as follows: "Sec. 16. Where the action or proceeding is for the recovery of money or personal property, and the matter in controversy does not exceed fifty dollars in value, or, in behalf of the defendant, where the judgment of the inferior court is against him for money or personal property, not exceeding in value fifty dollars, unless reduced below that amount by a setoff or counterclaim, or where the judgment grants a divorce, or where the judgment or order is by the county court, police court, or city, or mayor's court, or justice's court, and an appeal is given to the circuit court, the supreme court shall have no appellate jurisdiction." This is section 16 of the Kentucky Code, with the substitution of "fifty dollars" for "one hundred dollars," in the two Yoes, Adm'r, vs. Moore & Kidd, Adm'rs. lines where they occur, and the omission of quarterly courts. The makers of our Code, in framing this section, seem to have understood that we had no quarterly courts, as Kentucky had, and hence omitted them, but they failed to bear in mind that the county courts of Kentucky had probate jurisdiction, and that we had separate probate courts. Taking sections fifteen and sixteen of our Code, as above framed, together, and treating them as the only law on the subject, appeals would lie from all final orders and judgments of the probate court directly to the supreme court. But section 19 of the Code is as follows: "Circuit courts shall have appellate jurisdiction of the judgments and final orders of probate and county courts on the probate of wills; the granting or revoking of letters testamentary and of administration; the appointment and removal of guardians; the settlement of accounts of fiduciaries; the division or partition of land; the allotment of dower, and the establishment, alteration or discontinuance of ferries, mills and dams, roads and pass ways, and of judgments of justices of the peace," etc. This is the same as section 20 of the Kentucky Code, with the omission of so much as relates to quarterly courts, and the insertion of probate courts. And our Code makers, by inserting the words "probate and" before the words "county courts," have confused the jurisdictions of the probate courts and the county courts. The county courts of Kentucky having probate jurisdiction, the words probate courts do not occur in section 16 or 20 of the Kentucky Code, and the sections are in harmony, but the omission of probate courts in section 16 of our Code, and their insertion in section 19 left the two sections in confusion and conflict. But dissecting section 19, and separating the subjects of the jurisdiction of the probate courts from the subjects of the juris Yoes, Adm'r, vs. Moore & Kidd, Adm'rs. diction of the county courts, and the circuit courts had appel late jurisdiction of the judgments and final orders of the probate courts in the following matters: 1. The granting or revoking of letters testamentary and of administration. 2. The appointment and removal of guardians. 3. The settlement of accounts of fiduciaries. 4. The division or partition of lands. 5. The allotment of dower. And the circuit courts had appellate jurisdiction of the judgments and final orders of county courts in the following matters: The establishment, alteration or discontinuance of ferries, mills and dams, roads and pass ways. Taking sections 15, 16 and 19 of the Code to be the only law in force regulating appeals from judgments and orders of the probate and county courts, the singular result would follow, that in the matters above specified, the appeals would have to be taken to the circuit courts, and in other matters, not specified, the appeals would have to be taken directly to the supreme court, producing a want of harmony in our judicial system, which it may be supposed the framers of the Code did not intend. Section 19 gives the circuit courts no appellate jurisdiction over judgments and orders of the probate courts in the allowance or rejection of claims against estates of deceased persons; nor does it give the circuit courts appellate jurisdiction over judgments and orders of the county courts in the allowance or rejection of claims against counties, and in some other matters of which the county courts have jurisdiction. After the adoption of the Code, Mrs. Tilghman obtained the allowance of a contested claim against the county of Chicot, in the county court of that county, and there was an appeal, on The State vs. Jones. behalf of the county, directly to this court. This court decided that section 15 of chapter 49, Gould's Digest, allowing appeals from the county courts to the circuit courts, in such cases, was still in force, and struck the cause from the docket of this court for want of jurisdiction. Chicot County v. Tilghman's Executrix, 26 Ark., 461. The Code In the case now before us, there was a judgment of the probate court against the allowance of a claim against an estate, and the claimant appealed directly to this court. This case is analogous, on principle, to the case above cited. did not provide for an appeal from the probate court to the circuit court in such cases, but the Code did not contain all the law in force on the subject of appeals at the time of its adoption. The omissions of the Code were supplied by provisions of Gould's Digest, which we have above referred to. The case must be dismissed for want of jurisdiction. THE STATE VS. JONES. 1. BAIL: Liability of attorney on bail bond. Semble, that sec. 4823, Gantt's Dig., providing that attorneys shall not be taken as bail without leave of the court, is merely directory, and cannot be set up as a defense to an action on the bond. 2. SCIRE FACIAS ON BAIL BOND: Pleading in. In scire facias on bail bond, the whole record is before the court, and if the defense is defectively pleaded, judgment should not be given when the record shows it would be illegal and unjust. A demurrer to the defendant's pleading should, in such case, relate back to the plaintiff's case, as in pleading at common law. 3. BAIL: Discharge of. Where a change of venue is granted on the application of the defendant, who is at large on bail, and he is ordered into the custody of the sheriff to be transmitted to the custody of the sheriff of the county to which the venue is changed, the right of the bail to the custody of the defendant is impaired, and his liability is at an end. The State vs. Jones. APPEAL from Drew Circuit Court. Hon. JOHN A. WILLIAMS, Special Judge of the Circuit Court. Met. L. Jones, for appellant. J. R. Montgomery, Attorney General, contra. WILLIAMS, Sp. J. Appellee became bail for the appearance of Joseph Porter before the criminal court of Jefferson county, at its February term, 1873, to answer an indictment for robbery. The condition of the bond was to appear at that term and "at all times render himself amenable to the orders and process of the court in the prosecution of said charge, and render himself in execution if convicted; and if he should fail to perform either of these conditions, to pay one thousand dollars, the amount of the bond. At the time prescribed in the bond, Porter appeared before the Jefferson criminal court, was arraigned and pleaded to the indictment. The case, on his application, was moved, by change of venue, to Drew county, as prescribed in Gould's Dig., ch. 52, secs. 132, 133, et seq., which was the law governing the case at the time. At the first term, thereafter, of the Drew circuit court, Porter failing to appear, a forfeiture was taken on the bail bond against him and appellee. To the scire facias on this forfeiture, the appellant set up two defenses. 1. That he was an attorney-at-law, enrolled and practicing in the criminal court of Jefferson county at the time he became security in the bond, and that said court had not given him leave to become bail in the case. 2. That the bond was for the appearance of Porter before said criminal court, and not for his appearance before the Drew circuit court; and that the change of venue was ordered and |