The State, ex rel. Walker, Prosecuting Attorney, v. Green. murrer, show very clearly that she obtained her license to practice medicine, etc., in Benton county upon false affidavits. In such case the statute provides, as we have seen, that the license so procured "shall be deemed and held to be void." It is conceded by appellant's learned counsel, and correctly so, that notwithstanding this legislative declaration that the license so procured shall be deemed and held to be void, yet such license would not be void until it was judicially declared so to be in a proper proceeding for that purpose, and would protect appellee from prosecution for practicing her profession, and enable her to recover compensation for her services in the course of her practice. It is true, also, that the above entitled act does not provide for any suit or judicial proceeding, in which the license, procured by any false affidavit, might be adjudged and held to be void. But it does not follow, by any means, that, because of the omission in the statute to provide for such a suit or proceeding, resort may be had to an information, in the nature of a quo warranto, to obtain an adjudication that appellee's license, procured by false affidavits as it was, should be deemed and held to be void. Appellant's counsel claim that the right acquired under a license issued pursuant to the above entitled act is a franchise. If this claim of counsel could be maintained, then it would follow that relator's suit was well brought, under the provisions of section 1131, R. S. 1881, and that it was error to sustain the demurrer to the information. But counsel clearly err, we think, in claiming that the right acquired by the licensee, under such a license, is, in the proper or legal sense of the word, a franchise. A franchise is a privilege or immunity which can only exist by special grant of the government of the State, and is incapable of existing without such grant, and which the citizen can not enjoy without legislative grant. It is essential to the character of a franchise, in the legal sense of the word, that it should be a grant from the sovereign authority, and in this country no franchise can be held which is not derived from The State, ex rel. Walker, Prosecuting Attorney, v. Green. the legislative power of the State. It can not be held, we think, that the right of any person to practice his or her profession, under a license issued pursuant to a statute enacted by the Legislature under the police power of the State, comes within any legal definition of a franchise. Chicago, etc., R. W. Co. v. People, 73 Ill. 541; Bank of Augusta v. Earle, 13 Peters, 519; City of Bridgeport v. New York, etc., R. R. Co., 36 Conn. 255 (4 Am. R. 63). But it is further claimed by appellant's counsel that section 1145, R. S. 1881, is applicable to this case, and that, under the provisions of that section, an information in the nature of a quo warranto will lie to annul and vacate appellee's certificate or license. That section provides that an information may be prosecuted for the purpose of annulling or vacating any letterspatent, certificate or deed issued by the State authorities, when there was reason to believe that the same were obtained by fraud, etc. Manifestly, these provisions of the statute are only applicable to such certificates as were issued in relation to real estate, and can not be applied to such a certificate as the one issued to and held by appellee. The demurrer to the information herein was correctly sustained. The judgment is affirmed. Filed Dec. 2, 1887. The Muncie National Bank et al. v. Brown. 112 474 114 535 114 580 116 314 122 357 112 474 145 270 112 474 148 504 152 51 112 474 f157 650 112 474 166 628 No. 12,675. THE MUNCIE NATIONAL BANK ET AL. v. BROWN. CHATTEL MORTGAGE.-Certificate of Acknowledgment.-Notary Public.- Use of Another's Seal.—Recording of Instrument.—The fact that a notary public, in a certificate of acknowledgment to a mortgage, uses a plain notarial seal not his own, and differing somewhat in design from the one ordinarily used by him, does not affect the validity of the instrument nor render its recording illegal. SAME.-Breach of Official Duty.-Facts Constituting Must be Pleaded.--In such case, in order to entitle a party assailing the mortgage to avail himself of any breach of duty on the part of the officer in certifying the acknowledgment, it is necessary that the facts constituting the breach shall be affirmatively pleaded. SAME.-Instrument Perfect in Form.- Unverified Denial.-Where the complaint to foreclose the mortgage avers that it was acknowledged and recorded, an unverified general denial only requires the plaintiff to produce an instrument showing on its face due execution, acknowledgment and registry.. SAME.-Description.-For a description of mortgaged personal property SAME.-Possession by Mortgagor.-Authority to Sell.-Fraud.-Under the stat- PRACTICE.—Striking Out Evidence.-A party can not complain of the strik From the Delaware Circuit Court. A. C. Harris, W. H. Calkins, R. S. Gregory and A. C. Silverberg, for appellants. C. E. Shipley and J. W. Ryan, for appellee. The Muncie National Bank et al. v. Brown. ELLIOTT, J.—Cornelia A. Brown brought this suit to foreclose a mortgage on real and personal property executed to her on the 31st day of January, 1885, by her husband, Francis M. Brown. The promissory notes which the mortgage was executed to secure bear date January 13th, 1879, November 22d, 1879, January 22d, 1882, August 29th, 1883, and September 13th, 1884. The personal property is thus described in the mortgage: "The dry goods, carpets, hats, caps, clothing, notions, gentlemen and ladies' furnishing goods, queensware, groceries, and all other goods, wares and merchandise constituting the stock in trade heretofore owned by Francis M. Brown, and contained in the store-room and cellar belonging to and part of the west room on the street grade floor known as the Boyce block, on the north side of East Main street, in the city of Muncie, in said county and State; and, also, all of the wool, rags, feathers, and other country produce, and all of the show and display cases, and store furniture and fixtures, and gas fixtures, and all other property of whatever kind in the said store-room situate as aforesaid, and all of the promissory notes and book accounts now owned by the said mortgagor, for indebtedness. growing out of the mortgagor's mercantile business." It is recited in the mortgage, among other things, that "It is hereby stipulated expressly as the true intent of this mortgage to prefer the said claim of the said Cornelia A. Brown, as herein described, over and above all other of the said Francis M. Brown's indebtedness." There is also in the mortgage this agreement: "It is agreed and understood by and between the parties to this mortgage that the said Francis M. Brown shall retain possession of all of said merchandise and personal property hereby mortgaged, and may continue selling and disposing of the said mortgaged merchandise for cash as heretofore, until all of said debts shall become due, or until such preference mortgagee, Cornelia A. Brown, shall demand possession thereof, which she may at any time hereafter do; but that said Francis M. Brown shall, at the end of each The Muncie National Bank et al. v. Brown. and every calendar month hereafter, fully and honestly account for all of the proceeds of such sales, and, after deducting therefrom necessary expenses of conducting such business, shall pay over the remainder to the mortgagee." Subsequent to the execution of the mortgage to the appellee, Francis M. Brown executed a mortgage to the Muncie National Bank, which it accepted with actual knowledge of the prior mortgage. The bank brought suit to foreclose its mortgage on the 2d day of February, 1885, and asked for the appointment of a receiver. In accordance with the prayer of the complaint, Marcus S. Claypool was appointed a receiver, and as such took possession of the store and goods. Cornelia A. Brown brought this suit after the bank had filed its complaint and secured a receiver. The mortgagor made default and damages were assessed against him. After this had been done the bank filed a cross-complaint, and in conjunction with the receiver filed a motion to set aside the default against Brown. At the same time the other appellants were admitted to defend and were allowed to assail the appellee's mortgage. The trial court sustained the motion to set aside the default as to Francis M. Brown and entered an order setting it aside. The first proposition argued by appellant's counsel is thus stated: "The mortgage was not entitled to be put of record, and, therefore, was never recorded." The argument of which this proposition is the foundation rests on the testimony of the notary public by whom the acknowledgment of Francis M. Brown was taken. From that testimony it appears that the notary borrowed a seal in 1871 and used it in authenticating his official certificates, but did not use it in this particular instance. The seal which he attached to the certificate annexed to the appellee's mortgage was obtained at the office where the mortgage was written. The designs of the seals are somewhat unlike, and the words differently arranged. The words of one are "Notary Pub |