White vs. Prigmore.

And in Davidson v. Farrell, cited above, the supreme court of Mirnesota said:

"This judgment against the surety (in the appeal bond) is authorized by law, and the only question that can properly arise in relation to the point is, whether the law itself is in conflict with the provisions of the constitution."

The court then quotes the provisions of the statute authorizing judgment against the surety, and proceeds thus:

"We see nothing in these provisions inconsistent with the fundamental law. The law does nothing more than to provide the form and manner in which the agreement entered into by the surety shall be enforced. And the surety, in becoming a party to the bond, under the law as it then existed, assents to and adopts those provisions for the enforcement of the contract he has entered into with the obligee of the bond. Haywood v. Judd, 4 Minn., 495. The law has declared what liability the surety assumes in signing such a bond, to-wit: that a judgment against his principal shall also warrant a judgment against him. In effect, it is making the judgment against his principal conclusive evidence of the liability of both upon the bond; and the surety, becoming voluntarily a party to the bond under the law, must be held to have assented to assume all the obligations imposed by the law then in force upon a party holding that relation, etc.

"This view of the case renders it unnecessary to inquire into the meaning attached by the framers of the constitution to the phrase, 'due process of law,' since, if the party has himself authorized the process, whatever it be, he cannot be permitted to object to the same, and the authorities cited by plaintiff in error we think not applicable to the case at bar."

Our conclusion is that the judgment rendered by this court against White and his sureties in the supersedeas bond on which the executions issued, was not null and void for want f jurisdiction.

White vs. Prigmore.

II. Was the sheriff bound to accept state scrip in payment of the judgment?

The original suit was commenced in the Jefferson circuit court, and removed, by change of venue, to Grant circuit

court.

Prigmore sued White for the office of recorder of Jefferson county, and the fees and emoluments thereof which accrued between the 7th of April, 1871, and the 22d of March, 1872, amounting, as alleged in the complaint and stated in the bill of particulars, to $1,816.60.

White, in his answer, denied having received fees amounting to so much as alleged in the complaint. He admitted that he had received for recording deeds, etc., after deducting county tax, $1,110.00, and alleged that he had paid out more than that sum in expenses of the office. The cause was tried by a jury, and there was a verdict and judgment in favor of Prigmore for one thousand, one hundred and ten dollars damages.

It is insisted that inasmuch as the fees of the recorder were payable in state scrip, under sec. 9, art. XV of the constitution of 1868, as construed by this court in Ramsey v. Cox, 28 Ark., 366, White had the right to pay the judgment in such state scrip, and that the sheriff could not legally sell the lands of White, under the execution issued on the judgment, after a tender of the scrip.

In the answer of White to the complaint, he did not state that any of the fees of the office were received by him in state scrip. If in fact he received the fees in scrip, and not in money, he should have so alleged, and on proof of the allegation, and the value of the scrip, the verdict might have been for the value of the paper. But having failed to interpose such defense, it was too late after judgment to avail of a neglected defense, by a tender of scrip to the sheriff in satisfaction of a judgment for money.

Callahan et al. vs. Saleski.

The petition avers a tender to the sheriff, before the sale of the lands, in state scrip or treasury certificates, of the full amount of the judgment and costs, and refusal of the sheriff to accept.

Had there been a separate and distinct tender of the amount of the costs in state scrip, the sheriff would have been bound, under the decision of this court above referred to, to have accepted it. But the tender made seems to have been an offer to pay the judgment (a money demand) and costs in state scrip-one entire proposition — which the sheriff was not at liberty to accept, and properly declined.

In the petition, no irregularities are alleged in the sale of the lands on a credit, the taking of the bond, with surety, for the purchase money, the return of nonpayment, and the issuance of execution on the statutory judgment. The motion to recall and quash the execution, set aside the sale, etc., is based upon the main proposition that the judgment rendered by this court against the sureties in the supersedeas bond was void for want of jurisdiction, and that the subsequent proceedings were consequently invalid.

The motion is overruled, and the temporary supersedeas granted on the petition is revoked.

CALLAHAN et al. vs. SALESKI.

JURISDICTION OF CIRCUIT COURT: To render judgment on supersedeas bond.

On appeal from a justice of the peace to the circuit court, with super sedeas, the circuit court has jurisdiction to render judgment against the sureties on the appeal bond.

APPEAL from Pulaski Circuit Court.

Callahan et al. vs. Saleski.

Hon. JOHN WHYTOCK, Circuit Judge.

U. M. Rose, for appellant.

Benjamin & Barnes, contra.

ENGLISH, C. J. On the 4th of January, 1872, Louis Saleski recovered a judgment against Frank Arbuckle, before a justice of the peace of Pulaski county for $270, debt, etc.

Arbuckle appealed to the circuit court, and executed a supersedeas bond, with A. M. Callahan and Wm. McQueen as sureties, in which they bound themselves to satisfy and perform the judgment that might be rendered on the appeal.

When the case was called for trial in the circuit court, Arbuckle made default, and judgment was rendered against him and his sureties in the appeal bond for the same amount recovered before the magistrate and costs.

Callahan and McQueen prayed and obtained an appeal to this court, and entered into a supersedeas bond, before the clerk, with Jones and Rymal as sureties.

No defense was made by Arbuckle or his sureties in the circuit court, no motion in arrest, or to set aside the judgment, and no question of law reserved by bill of exceptions, or otherwise.

The point, and the only point made for the appellants here, is that the judgment was rendered against them in the court below without notice.

By executing the supersedeas bond, the appellants, in legal effect, made themselves parties to the appeal of Arbuckle, their principal, from the judgment of the justice of the peace to the circuit court, and agreed to satisfy and perform the judgment of the court appealed to.

The law required no further notice to them. They had the right to appear in the court to which the appeal was taken, and prevent, if they could, the rendering of a judgment

Bernays vs. Feild et al.

against their principal or themselves. They had the right, also, to move to set aside the judgment after it was rendered, if there was any good cause for doing so. But they failed to do or offer to do anything in the court below.

They also, in legal effect, agreed when they became the sureties of Arbuckle, in the appeal bond, that if the judgment appealed from should be affirmed, or, on a trial de novo, judgment should be rendered against their principal, it should be rendered against them also; for such was the law when the bond was executed, and the law was part of the contract, as we have shown in White v. Prigmore, ante, p. 208.

The law authorizing such judgments, on appeals from justices of the peace, has been upon our statute books for many years. Very many judgments have been entered under it, and executed, and we can see no clear and solid grounds on which its unconstitutionality could be placed. Gould's Dig., ch. 99, sec. 197; reënacted substantially, in the act of April 29, 1873. Gantt's Dig., ch. 82, sec. 3839.

The judgment of the court below must be affirmed, with ten per cent. damages, and judgment entered against appellants and their sureties in the supersedeas bond executed before the clerk of this court.

BERNAYS VS. FEILD et al.

1. VENDOR'S LIEN: Is assignable.

The lien of a vendor who executes a bond for title, inures to the benefit of an assignee of the purchase money note.

2.- In case of reassignment to vendor without recourse..

The effect of the reassignment, to the vendor, of the purchase money note, without recourse, is to unite in him the debt and the right to enforce satisfaction under the lien for which he had contracted. This case distinguished from Williams v. Christian, 23 Ark., 255.