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The government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions. It would, in effect, work a repeal of all its securities." And in another part of the opinion, he says: "It is admitted that mere laches, unaccompanied with fraud, forms no discharge of a contract of this nature, between private individuals. Such is the clear result of the authorities. Why, then, should a more rigid principle be applied to the government? a principle which is at war with the general indulgence allowed to its rights, which are ordinarily protected from the bars arising from length of time and negligence? It is said that the laws require, that settlements should be made at short and stated periods; and that the sureties have a right to look to this as their security. But these provisions of the law are created by the government for its own security aud protection, and to regulate the conduct of its own officers. They are merely directory to such officers, and con-. stitute no part of the contract with the surety. The surety may place confidence in the agents of the government, and rely on their fidelity in office; but he has of this the same means of judgment as the government itself; and the latter does not undertake to guaranty such fidelity. No case has been cited at the bar, in support of the doctrine, except that of The People vs. Jansen, 7 John. Rep. 332. In respect to that case, it may be observed, that it is distinguishable from the present in some of its leading circumstances. But if it were not, we are not prepared to yield to its authority." In Parks vs. The State, 7 Mo 194—which was a suit against the sureties of a tax collectorthe same question arose, and the court held that laches could not be imputed to the State, citing U. S. Bank vs. Kirkpatrick,

supra.

The application of the petitioners is overruled.

23 644 64 151

Pope et al. vs. Macon et al.

[DECEMBER

POPE ET AL. vs. MACON ET AL.

Where a party holds lands under a tax sale, the matter of the sixth and seventh sections of chapter 106, Gould's Digest, that is, the filing of an affidavit of the tender of the taxes and interest, etc., and of the value of the improvements made, is as good a defence to an action of ejectment as to a bill in chancery, (Craig vs. Flanagin, 21 Ark. 319,) and may be presented, either by motion or by plea in abatement.

Writ of Error to Jefferson Circuit Court.

Hon. JOHN C. MURRAY, Circuit Judge.

BELL & CARLTON, for the plaintiffs.

GARLAND & RANDOLPH, for the defendants.

Mr. Justice FAIRCHILD delivered the opinion of the court. The plaintiffs in error brought an action of ejectment for a lot of ground in Pine Bluff, and were met by a plea in abatement, that the land, including the lot, had been purchased at a sheriff's sale for the non-payment of taxes, by persons under whom the defendants, through sundry conveyances, claimed: that the lot had been held under the purchase, and taxes paid 'thereon, since its occurrence, in 1855; that improvements had been put upon it, and that the plaintiffs, before bringing their suit for the recovery of the lot, had not filed in the office of the clerk of the Circuit Court of Jefferson county, an affidavit setting forth that they had tendered to the purchasers of the land, their agents or legal representatives, the full amount of all taxes and costs paid on account thereof, with interest thereon at the rate of one hundred per centum upon the amount first

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paid therefor, and twenty-five per centum per annum upon all costs and taxes paid on the land from the time said costs and. taxes were paid, and the full value of all improvements, of whatever kind and description made on said lot, and that the same had been refused.

The plaintiffs demurred to the plea, their demurrer was overruled, and upon their refusing to answer over, final judgment was rendered against them, to which they sued out a writ of

error.

The plea is in strict accordance with the sixth and seventh sections of ch. 106, Gould's Digest, and presents, as matter in abatement to an action of ejectment, the same defence that was interposed in Craig vs. Flanagin, 21 Ark. 319, to a bill in chancery, by way of motion to dismiss, made under the eighth section of the Act.

The defence might have been made in this suit by motion, but if good on motion, it is good in a plea of abatement. Hence, the only enquiry is, if the matter of the plea present a proper defense to the suit; and that inquiry has been affirmatively answered by this court in the case mentioned. The defenses in that case, as in this, were that the law was unconstitutional, and that the sales at which the purchases were made were void for noncompliance with the revenue law. For answer to the arguments made in this case, we refer to the opinion in Craig vs. Flanagin, and affirm the judgment of the Circuit Court.

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Where the court announces that, on the call of the docket, no case would be tried, but all would be continued but such as were undefended, in which judgments by default would be rendered, it is still a regular calling of the docket, within the 53d section of ch. 126, Eng. Dig.-a defendant having made no defense nor employed an attorney has no cause to complain of a judgment by default being taken against him—nor has he a right to an extension of time for trial or for pleading, because of the continuance of causes standing before his on the docket.

Error to Pulaski Circuit Court.

Hon. JOHN J. CLENDENIN, Circuit Judge.

GARLAND & RANDOLPH, for plaintiffs.

BERTRAND for defendant.

Mr. Justice FAIRCHILD delivered the opinion of the Court. Gauche brought an action in the Pulaski Circuit Court against Collins and Fenno, as members of the firm of John Collins & Co., in which judgment by default was rendered, and to reverse this judgment, the defendants sued out a writ of error. The grounds upon which the judgment is attacked and supported by the respective parties, are well set forth in the bill of exceptions:

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"Be it remembered, that on the 20th day of May, 1861 "the third Monday of the said term, the court called the docket, as it had previously announced it would do, for the purpose "of permitting judgments by default to be taken in cases "where no defence had been interposed; and the said defend"ants having filed no pleas, and no counsel having been

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employed, or representing them, the court permitted and "entered a judgment by default against them;

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* and the

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"day after the said judgment by default had be taken, * "they, the said defendants, appeared in open court by attorney, "and asked and moved the court to set aside the said judgment "by default, and allow them to file their two pleas." The bill of exceptions then copies the pleas tendered, states that the court overruled the motion, and then proceeds: "And be it further "remembered, that at the time said judgment by default was so "taken * * and at the time the court overruled the motion "to set aside the same, and refused to permit the said "defendants to file their said pleas, the docket had not been per"emptorily called for the trial or other disposition of many civil "cases which stood on the docket ready for trial before the said "case, and which had been passed by, because they were contest"ed or litigated."

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The plaintiffs in error insist that their pleas were offered before the calling of the cause in its regular order on the docket; that they should have been received and treated as defences to the action, made in proper time, the judgment by default being first set aside as prematurely rendered.

"Every plea to the merits shall be filed, when the writ has been "served thirty days previous to the return day thereof, at or be"fore the calling of the cause in its regular order on the docket, "unless further time be given by the court for pleading, which "shall in no case extend beyond the term."

"If the defendant shall fail to file his plea, or other pleading "within the time prescribed by this act, or the rules of practice "of the court, an interlocutory judgment shall be given against "him by default."

ส Whenever an interlocutory judgment by default shall be "rendered for the plaintiff by default, or upon demurrer, in any "suit founded on any instrument of writing, and the demand is "ascertained by such instrument, the court shall assess the "damages, and final judgment shall be given thereon." Eng. Dig. ch. 126, secs. 53, 78, 81.

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