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TERM, 1871.]

Henry, et al. 0. The State.

tion, that it is not in force. All laws in force, before the adoption of the Constitution, were continued in force by section sixteen, of article XV, of the present Constitution, not in conflict with its terms. The whole argument is based upon the supposition that the right to license and tax a grocery-keeper is derived expressly from the present Constitution, and that it did not exist before; in other words, that something new in the history of government had been invented. It is admitted, tacitly, by counsel for the appellants, that the General Assembly has the power, under the present Constitution, to impose such a tax as is imposed by chapter 169, of Gould's Digest, in relation to grocery keepers and dram sellers; but it is urged because no new enactment was indulged in by the Legislature, that the old law is a nullity. Such is not the fact. The laws continued in force by the Constitution itself, are as valid as though re-enacted by the General Assembly.

These parties are not indicted for keeping a grocery without paying a ta.c; they are indicted for keeping a grocery without license. That the legislature has the right and power to require this class of persons to take out a license before engaging in business, we have no doubt. It is said that chapter 169, of Gould's Digest, is in conflict with section five, article X, which declares: “No tax shall be levied except in pursuance of law, etc.” A demand of $100, or any other amount of money, for a license to sell spiritous liquors, is not tax in the sense used in section five, of article X, and has never been so regarded in any State of the Union.

As a defective record, this transcript has few equals and no superiors. There is no one point argued in the briefs, that has any application to the case made by the record, but as counsel seem to have been preparing a case to elicit the opinion of the court upon the constitutionality of the 169th chapter of Gould's Digest, we have intimated pretty plainly what it would be, on a record presenting that question.

The judgment is affirmed.

Prairie County v. Bancroft.

(JUNE

PRAIRIE COUNTY V. BANCROFT.

APPEALS- What necessary.- Where no exceptions are taken to any decision

or ruling of the court, no motion for a new trial, nor any bill of exceptions, or other steps to bring the evidence before this court, there is nothing presented for the action of the court.

Appeal from Prairie Circuit Court.

Hon. JOHN WHYTOCK, Circuit Judge.

Wassell f. Moore, and Garland, for appellant.

English, Gantt of English, for appellee.

GREGG, J.

It appears from the transcript that appellee presented an account for printing, against Prairie county. The county court, upon consideration, rejected his claim and adjudged that it be disallowed. Bancroft appealed to the circuit court. By consent of the attorneys, for the parties, the case was then taken - up and submitted to the court sitting as a jury; then follows a detailed statement of the facts found by the court, and upon which judgment was rendered, in favor of the appellee, for $842, and an order that the same be certified to the county court of Prairie county, etc. No exceptions were taken to any decision or ruling of the court; the court was not asked to declare the law upon the facts; there was no motion for a new trial, nor was there any bill of exceptions or other steps taken to bring the evidence before this court for review, and hence, under the repeated decisions of this court, there are no questions presented here for the action of this court. Chester Ashley v. C. Stoddard, jr., f. Co., at the present term of this court; Eason v. Fisher, 1 Ark., 90; McDanie v. Tait, 5 Ark., 309; Massey v. Gardenhire, 12 Ark., 638; Johnson v. Rutherford, 23, Ark., 24; Peterson v. Gresham, 25 Ark., 380, and other cases.

The judgment of the court below is affirmed.

TERM, 1871.)

Smith & Bro. 0. Van Gilder, Admr.

Suith & BRO. v. VAN GILDER, ADM'R.

COMMISSIONERS OF OTHER STATES.-Commissioners, appointed by the Gov

ernor for other States, under chapter 32, Gould's Digest, are officers of this State, and affidavits taken and certified by them, properly authenticated under the seal of their office, are to receive full faith and credit. Section 109, chapter 4, Gould's Digest, respecting the authentication of claims against the estates of deceased persons, was intended to apply to affidavits made before officers of other States, and not to commissioners

of this State, appointed, and residing in other States. AUTHENTICATION OF CLAIMS.-An affidavit, in the usual statutory form, to

a note given by a firm, to the effect that nothing has been paid upon it, though not alleging that the amount was due from the estate of a deeeased member of the firm, is a sufficient legal authentication as against

the estate of the deceased member. PROBATE COURT- Appeals from, to be tried de novo.-The practice, on appeals

from the decisions of the probate courts, has been changed by the Civil Code of Practice. Under the Code, all cases appealed from the probate to the circuit courts are to be tried anew, as if no judgment had been

rendered. CODE OF PRACTICEto govern.- When the case was tried in the probate

court before, and in the circuit court after the Code of Practice went into full operation, the court should be governed in the determination

of the case by the Code of Practice. RETROSPECTIVE ACTS—when void.—Legislative acts, retrospective in their

character, are not void, unless they conflict with some constitutiona } provision or interfere in some respect with vested rights.

Appeal from Ashley Circuit Court.

Hon. HENRY B. Morse, Circuit Judge.

Watkins & Rose, for appellants.

That the affidavit was properly authenticated and sufficient. See Kauman v. Stone, 25 Ark.

We submit that there should have been a trial de novo in the circuit court. See sec. 20 of the Code; also sec. 830, which provides, that on appeals from probate courts (see sec. 806,) the action shall be tried anew." See also Gould's Dig., p. 138, ser. 001; Grimes 1. Bush, 16 Ark , 649.

Smith & Bro. 0. Van Gilder, Admr.

[JUNE

J. W. Van Gilder, for appellee.

The affidavit is fatally defective, in that it does not authenticate the claim against the estate of ihe deceased.

The note was signed “E B. Kittrell & Co.” The affidavit is to the effect "that nothing had been paid or delivered toward the satisfaction of the above demand, and that the sum above demanded is justly due.”

This certainly can not be considered as authenticating a claim against the estate of D. L. Evans. It could just as well have been presented for allowance to the administrator of any other estate within the State of Arkansas. And by section 103, of chapter 4, of the Digest, the administrator is prohibited from paying or allowing any debt demanded as due from the deceased without it is properly authenticated. It is true the affidavit is partly in the general form presented by section 102. But that is only intended as a general form, and the affidavit must vary to suit the circumstances of each case. Beirne f Burnside v. Imboden, 14 Ark., 244; 16 Ark., S.

The claim must be authenticated against the estate of the deceased. Chapter 4, sections 99, 102, 103, 107 and 108. And not a general authentication that would apply to any estate. $ Ark., 78; 144 Ark., 237; 144 Ark., 246; 21 Ark., 519.

SEARLE, J.

This suit was brought, by the appellants, who were plaintiffs below, against W. E. Kittrell, as administrator of the estate of D. L. Evans deceased. Kittrell, during the progress of the suit, resigned as such administrator, and J. W. Van Gilder was appointed in his place. The action was commenced by filing, in the probate court, the note sued on, signed by B. F. Kittrell & Co., to which was attached an affidavit, taken before a commissioner of deeds for the State of Arkansas, residing in the State of Louisiana, to the effect, “that nothing had been paid or allowed toward the above demand, and that the sum above demanded is justly due.” Before filing in the office of

TERM, 1871.) Smith & Bro. 0. Van Gilder, Adm'r.

the clerk, the note had been presented to the administrator, who disallowed it, waiving copy and service.

On the trial in the probate court the defendant objected to the introduction of the note as evidence, because the claim was not authenticated as required by law, which objection was sustained by the court. The plaintiffs also offered to read depositions to prove that D. S. Evans, defendant intestate, was a member of the firm of E. B. Kittrell & Co, which was also objected to, and the objection sustained by the court. Judgment was rendered against the plaintiffs, and they appealed to the circuit court. The plaintiffs asked in that court a trial de novo, which was refused, to which refusal they excepted. The court upon the examination of the record and bill of exceptions found no error, and affirmed the judgment of the probate court, from which plaintiffs appealed to this court.

These questions are presented for our consideration in this

case:

First, Was the affidavit appended to the note properly taken, and legally sufficient?

Second, Did the circuit court err in sustaining the ruling of the probate court, in excluding the evidence, which the plaintiffs offered, to prove that D. S. Evans was a member of the firm of Kittrell & Co., when the note was executed by the firm?

Third, Did the court err in refusing to try the case de novo?

Fourth, As to whether the affidavit was properly authenticated, and its legal sufficiency?

It is contended that the affidavit was not properly authenticated, because there was no certificate of a clerk of some court of record, under his official seal, superadded, bearing testimony to the official character of the commissioner, in accordance with section 109, chapter 4, Gould's Digest. This objection is not tenable, because the statute, autborizing the appointment of commissioners (chapter 32, Gould's Digest,) and prescribing their duties and powers, provides, among other things, that all affidavits taken and certified by them, “shall be as effectual, in

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