rights of the citizens of Mississippi. If a resident of Louisiana had possession of the will and refused to give it up, we doubt not that proof of the document would be admitted here by secondary evidence of its contents whenever such proof should be necessary to protect the rights of our citizens. Like proof should be admitted when the laws of a state intervene to shut off the production of the best evidence.

899 The domiciliation of Mrs. Bidwell in Harrison county at her death makes it necessary that her will be probated in said county both as to all her personal property, which is governed in the distribution by the laws of the state of the last domicile, and also as to all her real estate in Mississippi, and unless, so probated, it becomes a useless document as to all her personal estate everywhere, and also as to all her real estate in Mississippi. It is a maxim that every right has its remedy; but a right out of possession is worthless unless evidence may be had to establish it. Here we have a right, and the evidence to support it, but the question is whether the law furnishes a method of applying the evidence in support of the right.

In Matter of Roberts, 8 Paige, 519, an authenticated copy of the will of Catherine Roberts was established in the state of New York as her will, the original being in the island of Cuba, and required to be kept there by Spanish laws.

In Mauri v. Hefferman, 13 Johns. 58, it was held that a notarial copy of a contract was admissible in evidence, the original being in the possession of a notary out of the jurisdiction of the court.

In Alvion v. Furnival, 1 Cromp., M. & R. 272, it is held that an agreement of reference, made in France, was sufficiently proved by an examined copy of the evidence of the attesting witness, it appearing that the original was deposited with a notary at Paris for safe custody, and that it is the established usage in France not to allow the removal of a document so deposited.

In Lunday v. Thomas, 26 Ga. 537, it is said: "When a paper is beyond the jurisdiction of the court, verbal evidence of its contents is admissible."

In Binney v. Russell, 109 Mass. 55, a copy of a document which the witness refused to annex to his deposition was admitted in evidence. Same principle is held in Burton v. Driggs, 20 Wall. 900 133; Burnham v. Wood, 8 N. H. 334; Beattie v. Hilliard, 55 N. H. 428; Moody v. Commonwealth, 4 Met. 1.

We think that the action of the court in sustaining the demurrer to the petition filed in this case is erroneous.

The said decree or order is reversed, the demurrer is overruled and the case is remanded to the chancery court of Harrison county for further proceedings.

WILLS.-RESORT TO SECONDARY EVIDENCE may be had where direct proof of the execution of a will cannot be adduced owing to the nature of the case: Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619.

ON NUNCUPATIVE WILLS, see the monographic note to Wiley's Estate, 67 Am. St. Rep. 572-579.

ON THE REVOCATION OF WILLS, see the monographic note to Graham v. Burch, 28 Am. St. Rep. 341-362.

CASES

IN THI

SUPREME COURT

OF

MISSOURI.

ARNOLD v. HENRY.

[155 Missouri, 48.]

OFFICE-INJUNCTION TO TRY TITLE TO.-A court of equity is without jurisdiction to hear and determine the right or title of a person to a public office in a suit by injunction, when the only property rights to be affected by such injunction are such as flow from the lawful incumbency of such office. A writ of prohibition may issue to prevent the equity court from proceeding in the matter.

OFFICE INJUNCTION TO TRY TITLE TO.-A court of equity has no jurisdiction to try the title to a public office, whether the incumbent is an officer de jure or an officer de facto. Courts of law furnish ample remedies for such purpose.

E. C. Crow, attorney general, S. B. Jeffries, assistant attorney general, J. A. Reed, R. W. Quarles, J. S. Rust, H. C. Ward, and E. Robinson, for the relators.

Warren, Dean, & McLeod and Gage, Ladd & Small, for the respondents.

51

50 GANTT, C. J. This is an original proceeding in this court to prevent the circuit court of Jackson county from taking further cognizance of a suit by defendant Harris in said court to enjoin H. Clay Arnold, J. H. Lipscomb, and C. E. Washburn from interfering with said Harris' access to and of the office of the board of election commissioners of Kansas City, its vaults, safe, books, records, papers, ballot boxes, tally sheets, forms and other property pertaining to the said office of election commissioner and from interfering with or molesting said Harris in the discharge of the duties of election commissioner of said city, until a judicial determina

use

tion of the rights of Charles E. Washburn to the said office can be heard. Said suit for injunction was commenced about the twenty-fourth day of August, 1899.

On application to Judge Henry, a temporary restraining order was granted enjoining said Arnold, Washburn and Lipscomb from interfering with or preventing said Harris from having access to the office, records, papers, etc., of the board of election commissioners, and the same was made returnable August 25, 1899, at which time the hearing was continued until August 28, 1899, on which last-mentioned day said defendants filed their motion in writing to dissolve said temporary injunction because said circuit court had no jurisdiction thereof. In the meantime said defendants therein made application to one of the judges of this court in vacation for a provisional writ of prohibition, which was granted, and afterward, upon issues framed, was heard at this term of this court.

The facts out of which this controversy arises are briefly these: On or about the day of September, 1895, Joseph Harris was appointed and duly qualified as a commissioner of elections for Kansas City, for a term of four years and until his successor should be duly appointed and qualified. Said appointment was made under an act of the general assembly of this state, approved May 31, 1895, and as such amended March 31, 1897, March 23, 1897, and March 26, 1897.

Said Harris, together with H. Clay Arnold and J. H. Lipscomb, constituted the board of election commissioners of said city, and as such board they had the custody of the 52 registrybooks, poll-books, tally sheets, ballots and ballot boxes, etc., and the keys to the office of said board of election commissioners. On the nineteenth day of June, 1899, the general assembly further amended the act creating said board whereby section 91 of the act of May 31, 1895, as amended in 1897, was repealed and in lieu thereof a new section enacted.

Under this last amendment the governor, on August 21, 1899, appointed said Arnold, Lipscomb, and Washburn election commissioners, and they each took the oath and qualified as required by law, and afterward took possession of the office and of its official property and appurtenances.

Mr. Harris, claiming that the appointment of Washburn was illegal and in defiance of the law creating said board, brought his suit to enjoin the board from interfering with his occupancy of said office until Washburn's title could be determined. 1. The contention of plaintiffs is, that the bill for injunc

tion, while nominally to preserve property rights, is after all, in substance, an effort to try Washburn's title to the office of commissioner in an injunction proceeding, and that the circuit court, as a court of chancery, has no such power. It must be noted in the beginning of this discussion that the respondents concede that the law of 1899 is constitutional.

Their contention is that the governor had no right to appoint a Republican as member of the board of election commissioners outside of the three names submitted to him by the city central committee of the Republican party of Kansas City, as prescribed by the act of 1899. A most elaborate brief as to the power of the governor to make the appointment has been filed in addition to the very able oral argument submitted by counsel for respondents, but in this case the question for decision is, Did the circuit court have jurisdiction to hear and determine the right of respondent Harris to the office of election commissioner in a suit by 33 injunction? Because notwithstanding the ingenuity of counsel, it is entirely plain that the only property rights to be affected by said injunction were such and such only as flow from the lawful incumbency of said office. They are mere incidents of the office, and whoever is the lawful incumbent thereof is entitled to their possession: State v. Withrow, 154 Mo. 397.

Stripped, then, of the allegation as to the property of the board to which he was denied access, the remainder of the petition for injunction was an assertion of Harris' right to the office and denying the validity and legality of the appointment of Washburn.

As said by Judge Valliant in State v. Aloe, 152 Mo. 478: "The real and only purpose of the suit in the circuit court was to bar the entrance to the office of board of election commissioners by injunction, and to obtain a decree of chancery court declaring relator's title to the office invalid. This is a subject over which a chancery court has no jurisdiction. The courts of law are open to all persons who have rights of that nature which have been violated, and ample means are afforded in those courts for the vindication of such rights and the redress of their wrongs."

In this case the plaintiffs here, defendants in the injunc tion, were in the actual possession of the office and the property belonging thereto. The furniture and property belonging to and incident to the office of election commissioners was public property which the members of the board could only