TERM, 1870.] Mason, Ad. . Bull, Ellis & Co.

law, to authorize a judgment of allowance. Lafferty Exr. v. Lafferty, 10 Ark. 268; Carnall v. Edmondson, 17 Ark. 284; Bank of the State v. Henchcliffe, 4 Ark. 444; Burns & Burnside v. Imboden et al. 15 Ark. 415; Rogers et al. v. Wilson et al. 13 Ark. 507; See act approved 13th July, 1867, pamphlet acts, page 218; Smith v. Dudley, 2 Ark. 60; McKnight v. Smith, 5 Ark. 409; Sedgwick on Stat. and Const. Laws, 323; Ex parte Bank of Monroe, 7 Hill, 177; Dwarris, p. 477; Sedgwick on Constitutional and Statutory Law, 309–385; Bartlett v. Morris, 9 Porter (Ala.) 268, 269; Agent of State Prison v. Lathrop, 1 Mich. 438.

The claim was barred by the statute of non-claim, and it was competent for the administrator to show that fact by evidence. 1 Green'. Ev. sec. 92; McCary v. Curtis, 9 Wend. 17; Commonwealth v. Norcross, 9 Mass. 492; Ellis v. Ellis, 11 Mass. 92; Rex v. Allison R. R. 109.

English, Gantt & English, for appellees.

We submit that the affidavit authenticating the claim is substantially good. Beirne et als. v. Imboden et als. al 14 Ark. 241-2. State, use State Bank, 16 Ark. 32.

There was no error in the exclusion by the court, of the evidence offered by Y. D. Sheppard, to prove by parol, matters of record. Williams v. Bramel, 4 Ark. 129, unless the record has been lost or destroyed. Davis v. Pettie, 6 Eng. 349; 1 Greenl. Er. sec. 501-521.

WILSHIRE, C. J.

On the 16th day of July, 1867, Bull, Ellis & Co., presented to R. C. Mason, as the administrator of 'S. D. Lewis, deceased, a claim against said estate, based upon a promissory note, bearing date April 4, 1860, for the sum of $371 18, payable twelve months after date, with interest at eight per cent. after maturity. The claim was verified by the affidavit of one W.

Mason, Ad. v. Bull, Ellis & Co. [DECEMBER

D. Jacoway and presented to the administrator for allowance, who rejected the same.

The appellees, on the same day, presented the claim to the probate court of Pope county for allowance and classification. The probate court allowed the claim, and classed it as a fifth class claim against the estate of Lewis, deceased. The administrator appealed to the circuit court of that county, which affirmed the judgment of the probate court, and the administrator appealed to this court.

The first error complained of, is the ruling of the probate court in overruling the motion of the administrator to dismiss the claimant's action, because the claim was not authenticated by affidavit, as required by law. The affidavit is as follows:

"I, W. D. Jacoway, being duly sworn, do depose and say that, to the best of my knowledge and belief, nothing has been paid or delivered towards the satisfaction of the above demand except what is credited thereon, and that the sum of four hundred and forty-four dollars and thirty-one cents, above demanded, is justly due the firm of Bull, Ellis & Co."

The affidavit of Jacoway for the authentication of the claim is substantially that prescribed by section 102, chapter 41, Gould's Digest. That statute required the affidavit to be made by the claimant, but, by an act of the General Assembly, approved March 5, 1867, it is provided, "that the affidavit required in section 102, chapter 4, Gould's Digest, to authenticate demands exhibited for allowance against the estates of deceased persons, may be made by any person other than the claimant, who may be acquainted with the facts sworn to, and who is otherwise competent to give evidence in a court of justice; and such affidavit shall have the same force and effect as if made by the claimant." This statute is manifestly just, as it allows to persons who have claims against the estates of deceased persons, the right to establish their claims by the testimony of witnesses, cognizable of the facts, competent to testify in the courts, as well as the affidavit of the claimant. It is not unfrequently the case that the claimant is not as well ad

TERM, 1870.]

Mason, Ad.

v.

Bull, Ellis & Co.

vised of the facts in relation to his claim against the estate of a deceased person, as some person who has no interest in it.

The act of the General Assembly, approved March 13, 1867, authorizes the verification to be made by an agent or attorney of the claimant, and prescribes the requisites of their affidavit. This latter statute does not conflict with the act of March 5, 1867; one applies to cases where the claim is verified by the affidavit of a person cognizable of the facts, and the other to verification by an agent or attorney, as to his belief, after having "made diligent inquiry and examination," etc. Both acts were evidently intended to relax the vigor of the statute formerly existing in relation to the verification of such claims.

The second and only remaining error complained of here, as presented by the record before us, is, that the appellant offered to prove, by one Y. B. Sheppard, that he, the said Sheppard, administered on the estate of S. D. Lewis, in the year 1864, in the county of Sevier, and that he is still administrator of said estate, and that he has not resigned his admistration nor been removed as such; which testimony the probate court excluded.

The position assumed by Mason, the appellant, in the probate court, is remarkable, to say the least of it. It appears, by the transcript of the record, that when the claim was presented to him for allowance, he indorsed his disallowance on it, as the administrator of Lewis; he appeared in the probate court and contested the claim; went into trial, as such administrator, and then attempted to show that he was not the administrator, but that Y. B. Sheppard was.

The appellant made no attempt to show the loss or destruction of the record of the Sevier probate court appointing Sheppard as administrator of Lewis, and the probate court of Pope county very properly refused to allow him to introduce parol testimony to prove a record that this court, from the record before us, presume to be in existence.

This court held, in Davies v. Pettit, 11 Ark., 359, that a party might be allowed to introduce parol evidence to prove the

Gaines et al. v. Hale & Rector.

[DECEMBER

contents of a record, either ancient or recent, after proof of its loss or destruction satisfactory to the court. But in the case at bar no such proof of loss or destruction was made, or attempted to be made, by the appellant, in the probate or circuit court.

Judgment affirmed.

Judges GREGG and HARRISON, dissenting say:

We concur with the majority upon the ruling of the court below, excluding the parol evidence offered, but we are of opinion that the affidavit of Jacoway, appended to the claim for probate, was not a compliance with the statute, and was not sufficient to entitle the claim to probate.

GAINES et. al. v. HALE & RECTOR,

AND

RECTOR V. HALE, on cross appeal.

UNITED STATES-Title to Indian country.-The United States holds the fee simple to the lands occupied by the Indian tribes, and may, if it seem fit, disregard their right of occupancy, and, before a cession by the Indians, convey, either an unincumbered title in fee simple, to take effect immediately, or a title subject to their right of possession, and to take effect only, when they, by voluntary cession, shall have yielded their title. POLICY-Of government.―The policy of the government has been to protect the lands occupied by the Indians from settlement, and not to convey the title until the possessory rights of the Indians have been extinguished; therefore, it is not to be presumed that the United States intended that the act of 12th April, 1814, should extend to lands south of the Arkansas river, the title to which was not ceded to the Federal government until August, 1818.

TERM, 1870.

Gaines, et al. v. Hale & Rector.

HOT SPRINGS.-The Hot Springs and four sections of land, including the Springs, were reserved from entry and sale, by the act of April 20, 1832. The effect of the third section of the act of March, 1843, was not put in to extend the act of 1818, to land on the south side of the Arkansas river, as of its time of passage, but simply as of the time of the passage of the act of March 1843, and rights vested under it, as against the government only from and after that date. CHEROKEE-Pre-emption claims.-Cherokee pre-emption claims could not be located on the four sections of land, including the Hot Springs as their center, after the passage of the act of April, 1832. IMPROVEMENTS ON PUBLIC LANDS-Settlers making valuable improvements on the public lands, reserved for the exclusive use of the government, have not been regarded as trespassers, and such improvements are, by statute, protected as property. The interest which a person has in such improvements, is a possessory right against all the world except the United States or their grantee.

WHO MAY CANCEL CERTIFICATES.-It is well settled that, either the secretary of the Interior or the commissioner of the general land office may cancel a certificate of entry or patent, when erroneously issued. PROOF OF SETTLEMENT-The act of the 29th May, 1830, required proof of settlement or improvement should be made to the satisfaction of the register and receiver, prior to any entries being made, and in default of such proof of settlement or improvement, no interest vested in the preemption claimant.

JUDGMENTS-When not enforced.-A judgment based on a certificate of entry, which has been properly cancelled, being inequitable, will not be enforced.

NEW MADRID CERTIFICATES-A location of a certificate under the New Madrid Acts, is, the actual survey of the land, and a return of the plat by the surveyor to the recorder of land titles, and its approval on the part of the government, and until such survey, return and approval, the title remains in the government, nor was this changed by the act of April 29th 1816.

Appeal from Hot Springs Circuit Court.

HON. LIBERTY BARTLETT, Circuit Judge.

Watkins & Rose, for Gaines et al.

In all cases of grants, the interpretation should be most favorable to the public and most strongly against the grantee.