Chandler vs. Montgomery County.

be and the same is hereby revoked, rescinded, and held for naught," etc.

Chandler moved for a new trial, which was refused, and he excepted, and appealed to this court.

It does not appear that the Board of Supervisors granted Chandler an appeal to the Circuit Court (Gantt's Digest, sees. 705-6, 1193), but the parties and the court seem to have treated the case as if regularly there on appeal.

An authenticated transcript of the proceedings in the inferior court was before the Circuit Court, and upon it, by consent of parties, a temporary supersedeas was granted; and the court could, upon such transcript, have made any appropriate subsequent order, which it was competent to make.

The charter of the appellant was granted to him to build and keep a toll bridge, by the County Court, under chapter 171, Gould's Digest, and the grant vested in him, his heirs, etc., a privilege or franchise to be exercised and enjoyed for thirty years, from the date of the grant. The County Court was empowered to make such grant by the legislature.

By the Act of April 3d, 1873, abolishing the County Courts, and substituting Boards of Supervisors, the Boards were authorized to require and compel any person, then or thereafter, owning a toll bridge, etc., to give bond and good security, in such sums as the Board might deem sufficient, etc., conditioned that he would keep such bridge, etc., in good repair, etc., and so attend the same as to pass all persons, their horses, stock, carriages, etc., in safety and without detention. Gantt's Digest, sec. 640.

This was but a reasonable exercise of the police power of the State, for the safety and protection of the community and traveling public, and was not a curtailment or infringement of the charter rights, or franchise of the appellant. Cooly on Con. Lim., pp. 576-7.

Chandler vs. Montgomery County.

The Board of Supervisors had authority to require the appellant to give the bond prescribed by the statute, but where the bond was presented, if good in form and the sureties sufficient, it should have been approved, and if deemed defective in either respect, the Board should, in fairness, have indicated the defect, and afforded the appellant a reasonable opportunity to perfect

the bond.

On the rejection of the bond filed by the appellant, the Board undertook to revoke his charter; and then directed that unless he filed a good and sufficient bond, on or before the next term of the court, to be approved by the president of the Board in vacation, the overseer of the road should remove his bridge as an obstruction.

The road overseer, an executive officer, was to ascertain appellant's failure to give the bond, and destroy his property, without any judicial condemnation. This was not permissible under the Bill of Rights, (Constitution of 1868, art. 1, sec. 9). State v. Carnall, 10 Ark., 156.

The legislature did not authorize the Board of Supervisors to revoke appellant's charter, on his failure to give the required bond. If such omission would be a cause of forfeiture, as perhaps it would, the proper mode of ascertaining the default, declaring the forfeiture, and siezing the franchise, is by suit in the Circuit Court, in the name of the State, in the nature of a quo warranto, under the provisions of chapter 133, Gantt's Digest. State v. Carnall, ubi. Sup.; State v. Evans, 3 Ark., 588; Angel & Ames on Corp., secs. 777-8; 3 Kent Com., marg. p. 458, etc.; State v. Ashley, 1 Ark. 304; Marr, ex parte, 12 Ark., 85.

Nor had the Circuit Court power to revoke appellant's charter, in this proceeding on appeal from the Board of Supervisors.

Hall vs. Pillow.

The judgment of the Circuit Court must be reversed, and the cause remanded with instructions to the court to supersede so much of the order of the Board of Supervisors (now County Court) as revokes the charter of appellant, and so much as directs the road overseer to remove his bridge, and to remand the cause to the County Court, that it may make appropriate orders in relation to the bond of appellant, etc.

With liberty to the State to institute a proper suit to ascertain whether the charter be forfeited, etc., if she shall think proper to do so.

HALL VS. PILLOW.

CONFLICT OF LAWS: Presumption as to Foreign Law.

In the absence of proof, the court presumes that the law of another State gives to the acknowledgment and recording of mortgages, deeds of trust, etc., the same effect as is given by the laws of this State.

MORTGAGE: Removal of Mortgaged Property from another State, effect upon the lien.

Where a mortgage or deed of trust of personal property is duly executed and recorded in another State, the removal of the property to this State will not displace the lien, or render it necessary to record the instrument here; and a purchaser for value will take subject to the lien.

APPEAL from Phillips Circuit Court.

Hon. J. N. CYPERT, Circuit Judge.
P. O. Thweatt, for appellant.
Tappan & Hornor, for appellee.

HARRISON, J.:

Replevin for a horse commenced before a justice of the peace, and determined upon appeal in the Circuit Court.

The cause was tried by the court sitting as a jury upon the following agreed statement of facts:

The horse belonged to one C. D. Crump, in Grenada County, Mississippi, who on the 1st day of April, 1874, conveyed him

Hall vs. Pillow.

and other personal property to the plaintiff in trust, to secure to T. P. Lamkin the payment of a debt to become due on the 1st day of December, 1874, and with power to said trustee upon default of payment, or if before the maturity of the debt, the grantor removed, sold or disposed of any part thereof, upon request of Lamkin to take possession of the property and sell it for the satisfaction of the debt.

The deed was duly acknowledged and recorded in said county, according to the law of Mississippi; but was never recorded in this State. Before the maturity of the debt, Crump, without the consent of either Lamkin or the plaintiff, brought the horse to Phillips County, in this State, and sold him to the defendant.

The debt was unpaid, and the suit was brought at the instance and request of Lamkin. The value of the horse was $100. The court made the following declaration of law :

A deed of trust upon personal property in another State, and recorded there, but not in this State, will not, if the property is removed by the grantor to this State, and sold here to an innocent purchaser for a valuable consideration, defeat the title of such purchaser; and thereupon found for the defendant.

The plaintiff excepted to the declaration of law; and for that cause moved for a new trial, His motion was over-ruled, and he appealed.

In the absence of proof, we may presume that the law of Mississippi gives to the acknowledgment and recording of mortgages, deeds of trust, etc., the same effect as is given by the law of this State. Cox v. Morrow, 14 Ark., 603; Seaborn v. Henry & Co., 30 Ark., 469; Sherril v. Hopkins, 1 Cow., 103; Legg v. Legg, 8 Mass., 99; Monroe v. Douglass, 1 Seld., 447; Rape v. Heaton, 9 Wis., 328; Green v. Rugeby, 23 Tex., 539; Smith v. Smith, 19 Grat., 545; Green. on Ev., sec. 488. Whar. Con. L., sec. 780. Vol. XXXI.-3.

Peet et al. vs. Burr et al.

The deed having been recorded in Mississippi, where Crump lived, and the property was, it was not necessary for the protection of the rights of the plaintiff and his cestue que trust, that it should have been recorded also in Phillips County, or in this State, the lien, having rightfully attached upon the horse in Mississippi, was not displaced by the wrongful act of Crump in bringing him to Arkansas. Sto. Con. L., sec. 402.

And though the defendant purchased him for a valuable consideration and in good faith, of which however, there was no evidence, he stood in no better situation than any other purchaser of property to which the seller could not make title.

The declaration of law was erroneous.

The judgment is reversed and the cause remanded with instructions to grant the plaintiff a new trial.

PEET et al. vs. BURR et al.

BAILMENT: Rights acquired by a pledge.

In a proceeding by attachment, and levy on personal property, an interpiea was filed by parties claiming that the property had been pledged to them by the defendants, to secure indebtedness due them, etc., held, that the pledge created a special property in the interpleaders, which was good as against the pledger or his creditors, and the interplea should have been sustained.

APPEAL from Ouachita Circuit Court.

Hon. JAMES K. YOUNG, Circuit Judge.
Rose, for appellant.

HARRISON, J.:

Burr, Hill & Co., on the 7th day of October, 1874, commenced suit against Powell & Hamilton by attachment, and the writ was levied upon, besides other personal property, four gin stands.