license was denied him, he was cut off, by the action of The judgment is reversed. Cause remanded, &c. DRAPERT V. THE STATE. Under the present liquor law, a remonstrant against the issuing of license to retail, cannot appeal from the decision of the county board as to the fitness of the applicant. The general act (1 R. S. p. 229) does not apply. APPEAL from the Wayne Court of Common Pleas. PERKINS, J.-Paul Drapert, of the city of Richmond, Indiana, applied to the commissioners of Wayne county, at one of their regular sessions, for a license to retail spirituous liquors on a certain lot, upon a certain street, in said city. He proved publication of notice. One Edwin M. Cook availed himself of the privilege, allowed by statute to any and every citizen of the township, to remonstrate against granting license to Paul, because of his unfitness to conduct the business of retailing; but the board of commissioners, being satisfied that Paul had the moral fitness required by the statute, granted the license. Paul filed his bond with the auditor, which was approved; and further, he promptly complied, on being "requested to pay to the treasurer of said county 50 dollars, as a fee for license for one year, to be applied and expended for common school purposes;" took the treasurer's receipt therefor, and filed the same with the auditor, together with the order of the board granting the license, and upon them demanded the license; but the auditor, in response to the demand, informed Paul that the remonstrant, Tuesday, May Term, 1860. DRAPERT V. THE STATE. Cook, had filed with him an appeal-bond in the cause, and that he should, therefore, not comply with the demand for license. Paul went home and commenced retailing; whereupon John H. Popp, Esq., the district attorney, commenced popping at him writs upon informations filed, charging him with violations of law. Paul defended on the ground that no such appeal lay in the case; and, hence, that that attempted to be taken, did not suspend his right to retail under the order of the board; and, on this point, we concur in opinion with him. The liquor act requiring the license, does not provide for an appeal; and we do not think the general provision in 1 R. S. p. 229, allowing appeals from decisions of county boards to any person aggrieved, applies to the case. We think that section allows appeals only to parties having a pecuniary or other interest, beyond a mere moral one. So of the provisions allowing appeals in cases of highways. 1 R. S. pp. 312, 314. Such have been the cases in which appeals have been allowed under similar statutes. Ind. Dig., p. 120. Private property is taken for highways; they belong to the public, and involve taxation of all the citizens. In cases of contested elections, appeals are allowed. In these, legal and constitutional rights are involved, and appeal is specially authorized, not claimed under the general statute. 1 R. S. p. 272. But the appeal in these cases must be taken in ten days. Under the liquor law, the retailing of spirituous liquor is made legal. The traffic is sanctioned by the state; the commissioners have only to determine upon the question of compliance, by those proposing to engage in it, with conditions precedent. In this question, it cannot be said that citizens generally have, in the legal sense of the term, a pecuniary interest, or one where a personal political right can be affected. These interests are in the great question of traffic or no traffic at all, in the article; not in the question of the particular individuals who shall carry on the traffic. As a cautionary measure, any person has a to remonstrate against the moral character of an applicant Ibid. right May Term, 1860. DRAPERT V. for license. This is for the purpose of producing, on the part of the board, a closer scrutiny into the character of the applicant; not to raise an issue, as in a civil cause, between the applicant and remonstrant, involving a jury THE STATE. trial, &c. It would seem that the granting of license is a ministerial act. See The Board, &c. v. Spitler, 13 Ind. R. 235. Again: It is manifest from the provisions and object of the statute that no appeal was contemplated in favor of persons having merely a social or moral interest in the subject. The commissioners order the license upon bond filed and 50 dollars paid. It is imperatively made the duty of the auditor to issue it at once. He has no discretion; and upon the grant of license, the person to whom it is issued may immediately sell under it. Moreover, it issues upon a valuable consideration. The license is, in a sense, purchased. Now, the law allows an appeal, if it allows one at all, to be taken at any time within thirty days. But, in the meantime, the licensee has been selling, and the county has been using his money. Suppose an appeal taken after the business has been carried on under the license for twenty-nine days, and the grant of license reversed. Will it operate in the nature of an ex post facto law, rendering criminal all acts done under the license? Will it entitle the licensee to a return of his money and interest? The very nature of the case shows that no appeal from a grant of license was contemplated. The fact is, the granting of license under the law, is a question between the applicant and the county; and the county can no more appeal from her own grant, than the state can appeal in criminal cases in the absence of an express statute providing for it. If the license is refused where the applicant is entitled to it, a legal right is impaired, is denied, in fact, and the injured party should have redress by appeal or mandate; but on this point we need now make no examination. May Term, As the case at bar stands, the issuing of the license by the auditor was a mere ministerial act, and his failure to MCFARLAND perform it must not work prejudice. V. BIRDSALL. Per Curiam.-The judgment is reversed. Cause remanded, &c. W. A. Bickle and C. H. Burchenal, for the appellant. 125 64 14 1261 134 286 14 126 150 285 Tuesday, MCFARLAND and Others v. BIRDSALL and Another. Where an affidavit for an attachment averred a fraudulent conveyance, an answer traversing the averment is not demurrable. A reservation of the surplus to an assignor, where it is made to depend upon certain conditions to be complied with by the creditors, and particularly upon the condition of releasing the debtor, will avoid the deed of assignment; but the creditor may be excluded from the benefit of the fund, unless he abide the assignment and await the closing of it, for any balance that may be due him after the fund is exhausted, and the fund may be applied upon claims of other creditors, without rendering the deed fraudulent per se. In the absence of the requirement of a release from the creditor, the mere hypothetical reservation of the surplus to the debtor will not vitiate the assignment. Where the deed is legal on its face, evidence tending to show that the assignment was an honest transaction is admissible. APPEAL from the Fayette Circuit Court. DAVISON, J.-The appellants, who were the plaintiffs, brought an action against Birdsall and Thatcher upon a promissory note for the payment of 1,243 dollars. The note bears date March 29, 1856, and was payable to the plaintiffs at six months. At the commencement of the suit, one Naham H. Burk, as agent of the plaintiffs, and on their behalf, filed an affidavit alleging that upon said note there is indorsed two credits, viz., April 6, 1857, 500 dollars; June 1, 1857, 500 dollars; leaving a balance due thereon of 301 dollars, 86 cents; and that the defendants, Birdsall and Thatcher, have sold and conveyed their property subject to execution, with the fraudulent intent to cheat, hinder, and delay their creditors. May Term, 1860. MCFARLAND V. Upon this affidavit, the plaintiffs having executed a writ- BIRDSALL. ten undertaking, as required by the statute, an order of attachment was duly issued against the defendants. And further, the proper affidavit having been made, a summons was duly issued against Benjamin F. Miller and others, (naming them) as garnishees. Defendants answered the complaint, 1. By a general denial; 2. Payment; and in defense of the attachment, they deny that defendants have sold or conveyed their property subject to execution, with the fraudulent intent to cheat, hinder, or delay their creditors, and aver that whatever disposition has been made of their property, was for the benefit, and to promote the interest, of said creditors. This defense is verified by oath. To the second paragraph, the plaintiffs replied in denial; and to the answer in defense of the attachment, they filed a demurrer, which was overruled; but the Court, upon the plaintiffs' motion, struck out that branch of the answer which begins with the words, "and aver," and ends with "said creditors." The garnishees answered, in effect, that the several demands against them, and in favor of the defendants, had been, before the commencement of this suit, assigned by the defendants to one Benjamin P. Miller, and that by virtue of that assignment, they, the garnishees, are indebted to said Miller, and not to the defendants. The issues were submitted to the Court, who found for the plaintiffs 303 dollars, the balance of the note sued on; and further, the Court found for the defendants and garnishees in the attachment, and, having refused a new trial, rendered judgment upon the finding, &c. The first question to settle relates to the action of the Court in overruling the demurrer to the answer. There was no error in this ruling. The pleading to which the demurrer applied was, in effect, nothing more than a general traverse of the fraud charged in the affidavit, which led |
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