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",ol.51.
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(C7Irct* Court qj' .AP'Pealf, Etgh.th OircuU. .Tune SO, I . '
No..loo. 'A:'t.elitator, after-directing ·the pliyment of his debts, bequeathetl to .bls wife all ·· «hpses in action, .lllnc;l&, and personal to be bers dy.ring ber natur,alIifetime or widowhood." .tie rurthe.rprovided'tliat a sutllcleD'll portiou of lUs eatawsbould be appropriated to thesuppor\ i.' · · educatlQn of.,ll.is qlUldren,an4tbat at. the death of Ilis .wifean equal division qt ,ldeestate should ,Qe made tobls children. Held, that the wife did not take a mare'll1e estate wlthTEimainder to the ohildren, but she bad full power to ., . stU tbelper&onalty, by FijJ,. for the purpose of carryjng out its provi! .· i
DJSPONJINDt.
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hta.1& lfQods,
LB4··: . . ..; . ' Where the wIfa.Ncelvea land in pa;,:m.ent for the peraonaitYSQspld"ahe.oanooJ,lIn ,fee simple fo.t:value, free from any cJai,m or interest on the !>art 'oftha cbUdreJil. . . '. . . ' , (i'g"" " i
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AP'Il'eil ffum the Court'ofthe United, StatelJ' for the Eastern District,of .Arltansas. Affirmed.' ", ' " .. It;'jlliam'{J; Whipple', for appellants· .,:.Danitl W. Jones, (A: p. Williaw and R. B. William:a, on the brief,) for appellees. '. '.. . ". . .,' CirCuit Circuit JUdge, and SHIRAS. .,Before ... ' J ' ·
SHlRAs,pistrict . The' ,bill in the present cause was filed by J. D·. the pU,rpose quieting the title to certain realty situate4, ill Jlempstell,dcounty; Ark., claims asserted tllere1;t) ,RY' .F. Smith. 3,oel' 0;. W. Yowell, and Minnie Yowell, yowell, minor cbildre4alid beirs at law of Eliza P. Yowell, deceased.. . The. record, sbows the follOWing to be the material facts out ofwhicll the controversy between the: parties arises: .' "WUliam'lt. Rect01',.a'residentofHempstMd county, Ark., on the ,oCJapt/ary,1868', executed hi!l last will, which: reads as follows. oriiittitig 'tbet6rmal "ftem 2d. That I do hereby require that all my' just debts be paid, including my funeral expenses, out of my estate; that after which I do hereby give and bequeath to my beloved wife, Augusta M. Rector, all my estate, including all my goods, chattels. merchandise, moneys, choses in action, lands, and personal property, to be hers during her natural lifetime or widOWhood, and no longer. "Item 3d. It is my wlll that a sufficient portion of my estate be appropriated for the support and education of my children, namely, Martha Ellen, George Lafayette. Eliza Prudence, Mary Cordelia, and Jesse Nathaniel, and that said appropriations be made as nearly equal as possible, including what has already been expended for the benefit of the older ones of said children by my wife or executor of my estate. " Item 4th. And. I furthermore will that at the death of my wife, or at hel' marriage, that an equal division of my estate be made to each of myabov.. lUUIled children by the executor of said t:state.
'or
SMITH V. BEARDSLEY.
123
'" Item6th. I my wlfe; AugustaM.Rector. the execur trix of this my last will and testament,' revoking all others whatever; said will and testament to be in full from and after my decease. 'Signed and sealed with my own hand this, the 22d day of Janui\ry. A. D. 1868, in request that E. M. Northum and the presence of witnesses, and I do G. E. Bryant subscribe their names aswitnessefl to this, my last will and testament. .' W. H. REOTOR. [Seal.]" Upon the death of Rector, which occurred on the same day the will was executed, the same was proved and recorded in Hempstead county in due form,oflaw. The widow never qualified as executrix, nor have letters of administration ever been issued upon the estate. Mrs. Rector took possession of the property left· by her husband. which mainly consisted of a stock of merchandise, and continued in the mercantile business, part of the time with her sons-in-law, Joel G. W. Yowell and F.T. Shepherd, and part of the time by herself. Finally she sold the stock in trade to Joel G. W. Yowell, taking his note Jor $3,400 in payment therefor. On the 17th of June, 1879, Yowell sold to ,Mrs. Rector, in payment of his note, the E. ! of the N. W. i, theS. W. t, the N. E. i, part of the S. E. t of the N. E. i, part of the N. W. t ofthe N, E. i, the northwest quarter of the northwest quarter, and part of blocks 6 and 7, in'the town of Nashville, all in section 26, township 9 S., range 27, W. of the fifth meridian; and executed a warranty deed to A. M. Rector, as administratrix of the estate of W. H. Rector, deceased, but by mistake omitterl to include therein the N. W.t of the N. W. t of said section 26. In the year 1883 the Arkansas & Louisiana Railway Company underextend its line of railroad in the direction 6f the town of Nashtook ville, apd in order to induce the company to build the road to a point west of Mine Creek certain citizens entered into a contract with J. D. Beardsley, who had a controlling interest in the lUanllgelUent of said railway, which agreement is as follows: "Whereas, the citizens of Nashville and the surrounding country are desirous of having the Arkansas and Louisiana Railway extended on or Qt'ar the line recently located by S. C. Martin. civil engineer, to some point west of Mine Creek, and they have agreed with J. D. Beard!llt'y. of Washmgton,Arthat if he will cause the said road to be extended as aforesaid to so.ine point west of Mine Creek they will purchase and give to him a good and 1111incumbered title to the following lands, situated near Nashville, in Howard tOlwit: The N. W. of the N. W., the N. E. of the N. W., the 8. E. of the N. W., the N. W. of the N. E., the N. E. of the N. E., the S. W. of the N. E., the S. E. of the N. E.. all in section 26, township 9 south, range 27 west, all of which is k,nown as the · Rector Place,' and containing,exclusive lots sold out of the N. E. of N. and N. half of N. E., two bundr"d and thirty-seven acres, more or less, and also the foJlowing lands: The N.l of the S. E. of section 20, township 9 south, range 27 west, belonging to W. C. Sypert, and containing 76 acres, exclusive of four acres sold heretofore out of .N. E. of S. E. .And to enable the company to go on Ilt once with the construction of their said road pending the purchase and making dlledSQf the said lands, we, the undersigned, jointly and severally guaranty the full and complete fultillment of the said agreement on the part of the citizens of Nashville and other parties interested with them.
124
FEDERAL REPORT:ER,
vol. 51.
"Itil!!.lJnderstoodanll as.a pl\rtof the consideration for this land J. D. :i3eardsley shall.cBuse to be located on the land herein referred to a depot,/andshalllay out town thereon; and failure on his part so to do will cause the forfeit of this undertaking. our hands this 30th day of August, 1883. "J. D. BEARDSLEY. ISAAC M. PUCKETT. leW. C. SYPERT. J. G. W. YOWELL. "D. D. WOMACK. "GEO. L. RECTOR. "F. P.HOLT. S. B. REECE. D. M. BRYANT. I. PARISH."
In order to procure the conveyance of the lands described in the foregoing contract the citizens interested donated the necessary funds, and through George L. Rector and Joel G. W. Yowell a contract was made with conveyance oithe lanas by her received from Yowell as a.bove stated, itheprice to be paid her being fixed at $3,000, whichsunibeing paid, she executed a deed of the premises to Beardsley,rdated,September7, 1883, and on the 21st of January, 1885, she executed a. second deed containing the following recitals: "Know all men .bythese presents, that whereas. by a certain bond made by W. C.Sypert,D. D. Womack, Geo. L. Rector, F. P. Holt. Isaac M. Puckett,J.G. W.Yowell,S·. B. Reese, D. M. Bry&nt, and!. Parrish, they guarantied, on the·3Oth day of August,18S3, to J. D. Beardsley, the conveyance of. the said bond described. by a good and sufficient title, upon the performance of certain conditions and the payment of the sum of three thousand dollars to me; and whereas. the said conditions have been performed, and the said money haB been paid; and whereas. I. on the 7th day of September, 1883, executed a deed to the said J. D. Beardsley. in which the land was. not described in the same manner &s it is described in the said bond: Now, therefore, to the. end that there may be no discrepancy, and that the description in .'the bond and that in the conveyance Illay beidentical, and for the I, A. M; Rector, have bargained and sold, and do by tbese presents bargain. sell. and convey, to the said J. D. Beardsley, the.following'described lands, lying and being situate near Nashville, in Howard county, in the state of Arkansas, to wit," etc., ,-.;-andalso ·covenantingto warrant and defend the title to said land against all lawful claims. Upon the delivery of the deed dated September 7, 1883; BelJ.rdsley took possession of the realty, laid out a town, and madeother improvements thereon· . . having arisen touching the rights of the children of William H.. Rector to the land so held by Beardsley, he requested Joel G. W. Yowell.to procure quitclaim deeds of said premises from the heirs of Rector, 'and on the 18th of May, 1885, a quitclaim deed thereof to Beardsleywlisexecuted by GeorgeL. Rector, J. N. Rector. M. E. Shepherd, (nee Rector,) and Minnie Rector. It now appears, however, that in December. 1884, Minnie Rector had executed a quitclaim to some 240 acresofland in Howard county, Ark., which, it is claimed, was intended to .convey her interest in the lands in question to James F. Smith; and on the '31st of December, 1884, F. cT. Shepherd and Martha Ellen, his wife, (nee Rector,) and Jesse N. Rector, had quitclaimed their interest in 200 acres of the land to E.. P. Ydwell, who was the wife of J oeI G. W. Yowell, and mother of Minnie and Snow Yowell.
SMITH tI. BEARDf:LEY.
125
For the purpose of putting at rest all dispute in regard to thetitleheld by Beardsley in the premises in question, the present bill was filed, in which the complainant (}laimed to be the owner in fee thereof. The deinhis answer, avers that as grantee in the deed fendant James F. executed by Minnie Rector under date of December 29, 1884, he is the owner of one fifth in fee of the entire premises, and the defendants Minnie and Snow Yowell, as the heirs at law of their deceased mother, Eliza P. Yowell, claim title to'th1'ee fifths of 200 acres and one fifth pf 40 acres, and admit that the compllLinant is entitled to one fifth in fee of the 200 a'Cres and three fifths in fee of the 40 acres, and to all estate for the life of Mrs. A. M. Rector j and by cross bills filed in the <;aUile the defendants pray to have the title adjudged accordingly. The answer of Joel G. W. Yowell admifil that through mistake the N. W. t of N. W. t of section 26, township 9 S., range 27 W., was omitted from the deed executed by him to Mrs. A. M. Rector, and avers that he is ready to convey the same' to whomsoever the court may adjudge to be entitled thereto. f;he case was heard before the circuit court upon the pleadings and proofs, and a decree was entered in favor of complainants, the Arkansas & LOUisiana. Railway Company having been made co-complainant with J. D. Beardsley. To reverse this decree the case has been brought to this court, and counsel have fully argued the case upon its merits. As stated the brief of counsel for appellees, the only question in this caSe is: "Did Mrs. Rector hold the lands in controversy in such manner tbat her deed to with it the fee-simple title?" On behalf of the appellants it is claimed that under the will of W. H. Rector the widow had only a life estate in the merchandisej that, as she did not qualify as executrix under the will, she had no power to deal with the. property except as life tenant; that, as such,she could only dispose of the same for the· purpose of making a permanent investment in the landjthat when the title passed to her thechildrenofW. H. :Rector took the same interest in the lands that they had in. the merchandise, and stood in the same relation to it as they would had the land belonged to their father at the time of his death. By the bill and cross bills bereinfiled all the parties appeal to the eourt as a court of equity, to adjudge what their rights are in the realty in the bill described. This court is n<;>t, therefore, sitting as a court of probate to control the actions of an executrix or administratrix in the administration of the estate, nor to direct the distribution of the assets of the estate, but to determine what, in equity,are the rights of the parties to the realty which is the subject of the litigation. On behalf of the complainants it is asserted that they have become the owners of the realty, having purchased it of Mrs. Rector, to whom it had been conveyed by Joel G. W. Yowell. Under the evidence in the cause it cannot be questioned t;hat, as between the complainants and Mrs. Rector, it was the intent of both parties that the full fee-simple title of the land should be conveyed to Beardsley. Mrs. Rector was paid the sum she asked for such com-
'plete :her
·. ' ' :", I i , · ' tpe,refqre" compliiinant Bearl:!sley, thelatter.i$ entitled to title, or V!trt, ,will :liable ,un,der, the t.p"e the,qr"y,.' ,?ftqe d,eJen.,dants that the laM to Mrs.. Rector u,nder ,suqh clrcutpstances that )t }he ,V1ace, of the ,that in this :Mrs. Re(ltor had only a lUterest, therebelllg a veste<l fee iii reirlain'der'in thechildreni t,herefore, in the vested in theohildren,subject 'to the lite estate of the widow, and tberefore the deed,pfthe' ':vidow did nO,t cony-ey'the fee. , Under the proviaions onhe the title.. of thepr.operty' py passed to Mrs. Rector. She' was authorized to use it for' her ow'n support during h'e( lifetitrieor hood, 'and also to ,whatever portion thereof should be necessary for the support and education of the five testator. The eVidenqeshows 4eath of W. H. Rector:, the property' pI his estate ,coming into' the of Mrs. Rector $7,000; that bad of her own means about $3,OOOi that Mrs',1teictor continued in the nlerci:mtlIe business for some yearsi to the support' and ,e!iucation of. ,her until that she the penod ofl4. years aCW,. tnedelith of her husban4'i that sb.e, gave thew. good educations, sep9]J;1g,f6ur of away, college Yor that purpP!lei tbllt. the needeq ,for so her own riioney and froni the profits mAde by her lD bUSIness, as wellasfrorn the money, coming ftolll her husband's estate. The claim of the defendants is based upon the theory that the land in disputerepresentsthe property owned by W. H. Rector at the time of his death, that this personalty has been invested in, the To 8ustaiq the deltmd-: ants tnusttake the posItion that Mrs:, Rector becalDl;l a ,trllstee when she took of the ,property, and that she isEiccoul)table for tIle disposition of'the property made by het. If she had been made a party to these proceedings for the purpose of an accounting, before she could be adjudged'tQ he responsible for any sum she wquld be entitled to set off against tbe value of the, property cOuiinginto her qll:nds under the will the sums by her expended in supporting and her children, as well as the aluount needed for her own support, even though the latter might be limited to the yearly incoDle from the,Pfoperty, according tp' the theoryofthe defendants. Unlesaupon such'acc\luntilig it should appear was inde?ted ')0 her they could riot assert acl(tfm,agamst her, noragamst.,!-ny propetty whlCh she had sold for value tb th.ird parties, because the property b,ecomes liable.only in case money or property for is liable, to the beneficiaries. As already stated, Mrs. Rector is bouiId, by the covenants in her ,deed to' Beardsley,' to, defend. the title to' the'land i and, if a decre'eshould pass in this case in favor of defendants,a right of recov-
W
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BfllU'1L V. BEARDSLEY. '.".",
127
Mrs. Rector wouldctlxist in favor of per gantee, so that pmc-tically what the deftmdants in thIs cause are seeking is a decree declaring tpat Rector,; i&.liaQleto respond to her cpildren the o( the realty by. her.col\y;eyed to :Beardsley. Certajnly, before. a cO,urt ipdeprivipg Beardsley of of which he is.a for value, it must be made plain that his Krantor, Mrs. 11,00 ,the, title thereto, full power to convey the same to the purchaser;;,/l,nd cerUiinlY, also, before the court can adjudge that Mrs. tober children for the value of the stock of goods :pII-nds under the will of b,er husband, or for any part thereof,ltmust..be made plain, upon a proper accounting, and after dp.e expended.by her in the support Qithe children and sqGh other allowance as might appeart,o be. equitable, that !3he is tQ, them; ap.d is, only for the sum, if any,. which might be, dlle qpon'Jl fulla,cl:<?unting, ,that the children, as of,tlleir {ather, could clai,m liability to, th,emfrom Mrs. Rector).Qr could assert the right to follow property conveyed by her to partfes. .Such a;n accounting is not sought in present The facts that are made tQ are. that in 1868 passed into t):1e of Mrs. Rector ;BODle $7,000 worth of 'personal property belonging to her husband's estate; that, as directed by the will of her husband" ,eppappropriated the Jlleansnecessary for the support and ti9n l\nd it is not shown that the outlay ca4sed qld not wholly the property, coming into her possessioJ;l, or that there is anything ill her handefor which she should be ,ac-countable to ber children. " If is justified in anything in regard to tl;1estate of the accouut between the widow phildren of WilliamH. Rector from the undisputed facts appearing on this record, the most patural and prObable conclusion would be that the widow, in educating her children" };lad expended far mOre than tbe pr{)perty coming into her bands from her husba:qd'sestate. , the position to be weIf, taken that the stock of goods be,possession of Mrs t Rector as trustee longing to W ,H. Rector charged)'witp,the duty of appropriatip.gthe same as in the will directed, that she has in any way been derelict in the performance of,suc:h duty. It is not denied that she supported aod e4ucated her childreniflpd if, iuso deoiog, she expended a sum greater ,than the nmoupt sberealized from her husband's estate, certainly her children, benefited by sllch outlay, cannot holdhe,r for. the value oUhe proverty, receiv:ed in trust, but.deoy her credit for made., ,the ,pleadings and the evidence in this nothing is ,made to that would the court in holdipg, eVen. if a pttrty to the record, that :M:rs., Rector, asa trustee Of. the,':pr9.J?erty coming iptq her bands under the of her ,busb,and, in her duty as truste,e,;or that there is any ground for to any :()i her for the property,.or. any part of it, into ber hands, and, unless such liability is established for holding ..that, when she con-
On
128
FEDERAL REPORTER
,vol. 51.
veyed the realty to Beardsley, it passed· to him charged with a trust behalf of her children. · The realty never was'owned by W. H. Rector, and the title thereto not affected by his will. It was conveyed toMrs·.Rector 11 years aft¥r'the death husband, in payment of aproniissory Dote given by 'her son-in-law for the stock of goods sold him by Mrs. Rector. The probabilities are that but little; 'and possibly ilOne, of these goods belonged to W. H. Rector. What portion of them could be said to represent the goods owned by him and passing to his widow under thflwill is uncertain. Under the will Mrs. Rector had the right to sell and dispose of the goods, for in no other way could the provisions of the will in regard to the support and education of the children be carried Ifishe sold the' goods for money or property,real or personal, the proceeds, in whatever form she received the same, were liable to be used,andit was he'fduty to use the same, in the support and education or her children. ; .If she had bartered the goods for land, and had then sold the land for mohey , and used the latter in paying for the education of her children, certainly the land, in the hands of her could not be subjected to a trust in favor of the children. Evidently recognizing the insuperable difficulties in the way of charging the land in the hands of Beardsley with a trust in favor of ;thechiJdren of W. H.Rector without claiming that Mrs. Rector had in any wayhean derelict'in her duty as a trustee, or without bringing ,her into for the purposes or an accounting, counsel for the defendants the. theory that under the will of W. H. Rector 'the widow had only a life estate in .the personalty, the fee title being in the children; and therefore it Was the duty of the widow', as lecutrix, to' permanently invest the property by converting' it into ,realty or other like form; and therefore, when. the widow sold the stock of goods,and took the land ill payolent, the fee title thereto vested in the children and the life estate in the widow. . The will gave to Mrs. :Rectortheentite estate Of the testator, naming her ll.8executrix, and di· rectingthe:distribution to be made of the property as follows: First. All just debts and funeral expenses were to be paid.' Second. Sufficient part or.tq.e estate to support and educate the five children was to be so used. Third. Subject to the foregoing provisions. the estate was to be for the benefit of Mrs. Rector during her lifetime or widow· hood. Fourth ·. At the death or of the widow an equal division of the estate to be made'to the children of testator. .If, in order to pay the debts of the' eslate and siIpport and educate the children, it became necessary to sell the entire property, certainly the power and right so to do was given by the will to Mrs. Rector. The IXlain purpose of .the will is to provide for the payment of debts, the 8upport arid education of the children, and the support of the widow, arid then, if. there was anything' left after these purposes had been fultilled, the residUe so left is to be equally divided. The will therefore does not transfer the title to any of the property to the children, nor does it create, technically, an estate by way of remainder in fee in the children.
on
SMITH 11. BEARDSLEY.
129
'faking the will as a whole, it cannot be construed to mean that the testator intended to only give to his widow the right to use the stock of goods, which formed the b\1lk of the estate, during her lifetime, and then at her death to divide the goods among the children. To avoid thtl patent a.bsurdity of such a construction counsel argue that it was the duty of the widow to convert the goods into· realty or the like, in order that she could use the income; and that, when the conversion took place, the fee title vested in the children. The difficulty with this theory is that the will does not direct this to be done, and it would not ac· cord with its other provisions had it been done. The will gives the property, with full power and control over it, to the widow, directing her to pay the debts, to support and educate the chjldren, and support herself by means of the property. To accomplish these plain directions of the will by means of a stock of merchandise it was absolutely necessary that she should have the right to sell the goods, either by keeping on with the business, as she did for years, or by selling the same in the lump. Having the right to sell the property, the purchaser from her took acornplete titJe,and the money or property that, from time to time, she received for the goods, she had a right to use or dispose of for the purpose of carrying out the provisions of the will. When she finally Bold the stock on hand to Yowell, she conveyed a good and full title thereto to the purchaser; and when she subsequently received the realty in dispute from him in paymEmt ofthe note given for the goods, she had the same title in and right to sell the land as she had to sell the goods. The language of the court of appeals in Lockman v. Reilly, 95 N. Y. 64, is entirely applicable to the facts developed on this record; it being therein said: "In the present case t,he effect of the conveyance to the executrix was to make the land in her hands take the place of the mortgage as personal estate, and sbe was liable to account for it as such. The conveyance had the same effect as if it had been made to her in her individual name. She had full power of disposition of the property; and, although she was liable to account for its proceeds to those interested in the estate, and in that sense she held it as trustee; the trust under which she held it was one created by law, and not by the will of the testator. That will never operated directly upon it. It did not belong to the testator when the will took effect, and the beneficiaries under the will never acqUired any direct estate or interest whatever, legal or equitable, in the property, as land. They only had the right to require the executrix to account for it as any other item of personal property in her hands as executrix. The entire legal title was vested in her, and she represented the eqUitable interests of those who were thus entitled to call her to account." We hold, therefore, that under the will of W. H. Rector the widow took. the title to the personalty affected by the will, with full power and right to sell the same in carrying out the requirements of the will; tha.t she possessed the same right over the realty in question, assuming that it was purchased with property belonging to the testator; that by the contract of sale entered into between Mrs. Rector and Beardsley the latter bj:lcame entitled, upon payment of the agreed consideration to Mrs. :Rector, to tI. conveyance in fee simple of the land covered by the terms v.51F.no.5-9
130
yol. 51.
of] that contraotjthat the defendants J;1otitle.rlght,Qr interest in said1 realty j and that,oompltl.inantsraretherefore to a decree ramoving the clouds ,cast upoldheifltitle by to the defennailtsand described in;theplelLdings,and the title of llRid, complainants in and ,to ' said, l'ealty /lgllinst, the: ad verseclaims8sserted tMretobythe defendants he1'ein., ,,'the ..,ppealed from is thereforeaffirmed't, at costa' of i apPQlIaAts. , : l." I,
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I!
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PBoPLE'8 :, S;AV. RAitt (&: T:RUST Co. v. i
BATCHELDER
EGG CASE Co.
I ' : ; (Ottwu 'r ,\;'
CowI1 qf Appea18. E1.ghth CirouU. JuQr 60 1892.) No. 'lO.
" 'o:ahtt'8 Oi/r.Ark.§488,provided that an attachment tor a debt Dot due might be gr,ante4,b1 , ,,' b1 Whl,011, the action was brought, or, by the judge thereof, or , 80me )l"1ge. Section 439 required that the order of the court or judge grant. , ' lng',t,he, attiChtn,',ent 811"',OUI,d, 8pwi, ' 'fy,the, am,ount,'for WhiCh, It was allOW,ed. By the aot (.Mp.nsf. 8ectlon 438 was, aIQended by conferring on the ,jOf clerk O! the&;urt tbe llameauthority to grant 8uch an attachment as that posse8sed , ",b"y, th8, ',CO,u'i't( ol:' ljUdg 6.. tha,t, til"e PU,rp08e of ,t, 8 ,reqUire,ment that t,he orde,r '; qr 81¥!lllPi such being, the clerk might know what 8um to'lnllert In the attacblDent,lt was not neceIBary that the clerk, when the att,i4chment 'wu allowed' byhlJi1l1elf. should make lUI, order 8pecifying the amount for which it :was aUowe4,\ .. U 868,861. , " In tbeBUb'sequent comlIilatlon of 'the statutes of Arkan8a8 known as" Man8f1eld'8 Dlge8t," the word "clerk" i8 inserted In the former provision of Gantt'8 Dig. S 439, 80 as to reqUire that the order of the court, or tbe clerk or judge, granting ,the atthe It Is allowed, (Mansf. Dig, § 863,) and provldell: ,(Mm-ion 864), that" oI;d,er of, attachpieIlt, as,grant!ld by the court, or the Clerk' orjudgeJ", 8hll.lInot, be '!llsuedby tbe olerkuntil a bond has been filed. BeZd,'Ulatthe wora !&clerk" walln8erted In these ti'Wo sections (Mansf. Dig. §§ 868, 864.), wlthoilt !egislatlvesanctloll,:unleall authorized by a' proper construction of the aot of, ,M.aroh 18, 1881 ,{Mansf.mg. §8lf.,3,)andtbat 8uch construction was not authoriZ\ld,aI it a, and unnecessary proceeding to require the clerk, wbenlie iS8ues an attachD'lent;to' certify to hm8,Illf the amount for whioh he hall allowed it. " 11;,
1.
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be conceded that th8.tatute doe81'9Cluire the clerk to first make ,8uch an order, an t8slled,by him It :would not be Invalid, under the ruling's'oftliIl8tate BUPr:eme court, the proceeding by attachment, hke any other olvilactlon, may be amend'(ld In matter of sUbstance, as well as of form, atevery 8tage of the,cas"e. all,' e,1'rQ, 0,r,', def,ecta nO,t iniU,riously the 8ub8tantial ", ,rights will ' Mansf. D'ig. '§ 541'; county clerk 8hall keep hl8 office at the count! seat,shall kllep *e 8eals, aJP Property belonging to ,hi8 offi.ee. and 8hall there traD8Bct1ils, business:: ,HeZd, tlla'll thI8 does not render VOid offiCial acta i, perf, ":,liT. the his offiee, 8,'uch 811 Iuuing", writ. of , &lid atRilng r..y.ere¥> }lIS official seal., I. S.urB. "n Jl' ,: i,' ' , ' " , ' Manst:. Dill:. Mk. 5 4,1167, provtA'8 ,that a civil action: 18co;nmenced by filing in the oftlce of a ",n,l'l, c",using a SllmmOn8 to be Issued thereon. Sec, tlon 5808'deoll\re8 that no summobl!l or order for a provisional remedy shall be issued 'the clllrlt: ,HI, a.ny aoUQll tlle :complaint or petition "i8 filed In hi8 office." e/.d, this require that, the complaInt shall be actually lodged withlu e Wa1l8 of the oflfce before theis8uance of the writ, and where the elerk, outside ,8f 11,11 oftloe a.nl'l;at, the of .n at,tornIl1. receivel aad u a com,. " . HIS OnIllB. , '
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