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court that when an execution is sued out upon a judgment, duly levied upon property, a formal bond taken for its delivery and duly returned forfeited, that it is a merger of the former judgment, that the former judgment is extinguished, and a statutory judgment springs into existence upon the forfeiture of the forthcoming bond. Black v. Nettles, 25 Ark., 606; Douglas et al. v. Twombly, ib., 124; Frazier v. McQueen, 20 Ark., 68; Smiser v. Robinson, 16 Ark., 599; Cochran v. Jordan, ib.. 625; Phillips v. Wills, 14 Ark., 595; Biscoe v. Sandefur, 569; Ruddell v. McGruder, 11 Ark., 578; Reardon, ex parte, 9 Ark., 450.

Upon the third proposition of law, we are aware that this court, in the case of Payne v. Joyner, 6, Ark., 241, held, under the bankrupt act of 1841, that a party discharged in bankruptcy was liable to a surety on a pre-existing debt, who paid it after the discharge in bankruptcy, but such has not been the uniform ruling, and, in fact, but few courts have so held.

The Supreme Court of Alabama held that a certified bankrupt is discharged from all surety debts, though paid by the surety after the bankrupt obtains his discharge. Kyle & Gunter 2. Bostick and Sherrod, 10 Ala. (N. S.), 589.

In the case of Crafts v. Mott, 5 Barb. (N. Y.), 311, the Supreme Court of New York, after announcing that many of the English decisions are not applicable in the United States, because their bankrupt acts are more restricted as to provable claims, say that the claim of a surety, before he has made payment, is a contingent liability, and may be proved up, upon an application for discharge in bankruptcy, and if a surety does not so prove his claim, he is barred by the certificate of discharge.

The rulings in Pennsylvania are direct, that a surety cannot recover against a principal, who has been discharged in bankruptcy, upon payment of an obligation for which the bankrupt was liable before his discharge. Fulwood v. Bushfield, 14 Pa., 390; Coke v. Lewis, 8 Barr., 493, and 2 Barr., 343.

Substantially the same ruling has been held in Tennessee. See Hardy v. Carter, 8 Hump., 153.

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We would add that we have seen no bankrupt act more comprehensive in its terms, requiring prospective, doubtful and contingent claims to be proved against the estate of a bankrupt, than is the act of 1867. And the Supreme Court of the United States, which is but the court of last resort in this class of cases, and which is the authoritative expounder of the acts of Congress, in the case of Mace v. Wells, 7 How., 117, say: “Wells, as the security of Mace, became bound in two joint and several notes, both of which were due before the passage of the bankrupt law in August, 1841. In July, 1841, Wells paid one of these notes. Mace was discharged under the bankrupt law, on the 22d of March, 1843. In March, 1844, Wells paid the other note, and then sued Moore for the recovery of the money on both notes. The facts being submitted to the county court, judgment was entered for the plaintiff for the amount of the note last paid, which judgment was affirmed by the Supreme Court of the State. * By the fifth section of the bankrupt act, it is provided that all creditors, whose debts are not due and payable until a future day, all annuitants, holders of bottomry and respondentia bonds, holders of policies of insurance, sureties, indorsers, bail, or other persons having uncertain or contingent demands against such bankrupt, shall be permitted to come in and prove such debts or claims, under this act, and shall have a right, when their debts and claims become absolute, to have the same allowed them,' etc. Wells, as surety, was within this section, and might have proved his demand against the bankrupt. He had not paid the last note, but he was liable to pay it as surety, and that gave him a right to prove the claim, under the fifth section. And the fourth section declares that from all such demands the bankrupt shall be discharged.””

This case being in point, the decision of the highest court of appeals, in such matters, should govern us, without reference to a former ruling of our own court.

Let the judgment be reversed, and the case remanded with

TERM, 1870.)

Black, Ad. 0. Auditor of State.

instructions to proceed according to law, and not inconsistent with this opinion.

BLACK, ad., v. AUDITOR OF STATE.

MANDAMUS.—Mandamus will lie to compel the heads of departments of

State to perform a mere ministerial act imposed upon them by law, though not in those acts requiring the exercise by them of judgment and discretion.

PETITION TO BE SWORN TO.- :- The practice is well settled, that a jurat is

neces try to a petition for mandamus.

Error to Pulaski Circuit Court.

Hox. LIBERTY BARTLETT, Circuit Judge.

E. H. English, for plaintiff in error.

Jordan, Attorney General, defendant.

STOREY, Special C. J.

Cain petitioned the Pulaski circuit court for a mandamus against the State auditor, to compel him to pay the sum of $7,018, claimed to be due as his salary as judge of the third judicial circuit, from the first day of July, 1861, to the fourth day of September, 1865. The petition was not verified, nor were any affidavits filed therewith.

The court refused the prayer of the petition, assigning as a reason that the proper remedy was by suit against the State.

Gould's Digest, chapter 166, section 4, provides: “Hereafter,

Black, Ad. v. Auditor of State.

[DECEMBER

it shall not be lawful, and it is hereby expressly forbidden, for any person or corporation to sue, or implead, or move against the State in chancery, or any officer, or person acting for or representing the State; and no suit or action shall be brought against said State, or officer or person acting for or representing the same, except at law."

Section 5, which was passed two years later, provides that, “All

persons having claims or demands against the State, on any account whatever, shall institute suit therefor in the circuit court in and for the county of Pulaski, and said court shall proceed to take and hear all the testimony for and against the same, and shall certify the proof so taken, under the seal of said court, to the next session of the General Assembly of this State after the taking of the same, together with its opinion in regard to the justness thereof; but said court shall not enter a judgment or decree in any case whatever against this State, upon the testimony so taken, or any other testimony whatever; but the testimony so taken, and the opinion of said court so taken and certified by said court, shall be submitted to the General Assembly of this State for such action as may be deemed necessary thereon."

Conceding for the present that the amount claimed is justly due, is mandamus the proper remedy ?

It is a well settled principle that mandamus will lie against the heads of department of the Federal and State governments, to compel them to perform a mere ministerial act imposed upon them by law, though not in those acts requiring the exercise by them of judgment and discretion. Do the sections above quoted in any way affect the jurisdiction of the courts in issuing a mandamus? We think not.

The salaries of the circuit judges are fixed by law; an appropriation has been made to pay these salaries; the ministerial duty of auditing the accounts and issuing his warrant, the amount, is all that remains to be done. If suit were brought against the State, under the sections above quoted, and an appropriation made by the Legislature, the same min

for TERM, 1870. ]

Black, Ad. 0. Auditor of State.

isterial duty would remain to be performed. We are satisfied that on both principle and authority, mandamus will lie, and is the proper remedy, if the petitioner is in fact entitled to the amount claimed.

In Wisconsin, where their statute is substantially the same, the Supreme Court, by implication, at least, have held that mandamus would lie to compel the payment of an account, and have made a distinction between the judgment of an officer in a matter left to his discretion and his judgment, as to the extent of his discretion under the law, holding that the decision of an auditing officer is conclusive as to the amount of a claim which the law permits him to allow, but his decision as to whether the claim is, in its nature, within the statute is not so, but is reviewable on mandamus. Divine v. Harris, 8 Mon. (Ky.) 440; Kendall v. United States, 12 Peters, 526; Zowle v. Pierce, 3 Cal. 165; Danley v. Whitley, 14 Ark. 687; Hempstead v. Underhill, 20 Ark. 337; State v. Hastings, 10 Wis. 518; Citizens Bank of Steubenville v. Wright, 6 Ohio St. 318.

The next question that presents itself is the sufficiency of the petition, which, as we have before stated, was not verified, nor in any way sustained by affidavit. The practice appears to be well settled that a jurat is necessary, for otherwise the time of the court might be taken up with frivolous applications, or merely for the purpose of obtaining the opinion of the court on a supposed statement of facts. Tapping's Mandamus, 285 and 292; Moses on Mandamus, 201-2-3 and 5; 1 Chitty's General Practice, 706; 2 ib. 354.

The court therefore did not err in refusing the petition,
Judgment affirmed.

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