Pratt vs. Albright. tuted a removable case within the meaning of section 639, of the Revised Statutes. But the question of the validity of the attachment in that case arose upon a plea in abatement to the petition in the principal suit, which alleged that the defendant was about to fraudulently dispose of his property, and hence was one of the issues in the main case. authority is therefore not applicable. Nor do I think that Watson vs. Bondurant, 2 Woods, 166, which was also cited, has any application to the question here presented for adjudi cation. The On the whole, my opinion is that the preceeding against the garnishee, which it is sought to bring within the jurisdiction of this court by removal after judgment in the original action, is, in the language of the court in Bank vs. Turnbull, supra, merely auxiliary to that action, a graft upon it, and not such an independent, separate suit as may be removed to this court under the Removal Act of 1875. Motion to remand granted. United States vs. Bixby. UNITED STATES vs. FRANK BIXBY. DISTRICT COURT-DISTRICT OF INDIANA-NOVEMBER, 1881. 1. NOTARY PUBLIC-ELIGIBILITY OF MINORS-INDIANA STATUTES.— There is nothing in the Constitution or Statutes of Indiana making minors ineligible to the office of notary public; such office is not a county office within the meaning of the Constitution wherein it provides that none but electors shall hold county offices. 2. SAME-COMMON LAW.-At common law a minor is eligible to the office of notary public. This was an indictment for perjury. The defendant pleaded that the notary who administered the oath to him was a minor. On Demurrer to plea. Chas. L. Holstein, U. S. District Attorney, for United States. McDonald & Butler and Gordon, Lamb & Shepard for defendant. GRESHAM, J.-The indictment charges that the defendant committed perjury in swearing to the truth of a quarterly report as assignee in bankruptcy, before Auretus W. Hatch, a notary public. The defendant pleads specially that at the time the alleged oath was administered to him by Hatch, the latter was a citizen of Marion county, Indiana, and a minor, under 21 years of age. A demurrer to this plea presents the following questions, viz.: (1) Are minors ineligible to the office of notary public under the Constitution or Statutes of Indiana? (2) If not, are they ineligible at common law? Article 6, § 2, of the Constitution, declares that there shall United States vs. Bixby. be elected in each county, by the voters thereof, a clerk of the circuit court, auditor, recorder, treasurer, sheriff, coroner, and surveyor. Section 3 declares that such other county and township officers as may be necessary shall be elected or appointed in such manner as may be prescribed by law. Section 4 declares that no person shall be elected or appointed as a county officer who shall not be an elector of the county. Article 2, § 2, declares that only males, 21 years of age, are electors. The first section of the act providing for the appointment of notaries public, and defining their powers and duties, (1 Davis' Ind. Rev. St., 634,) provides that such officers shall be appointed and commissioned by the governor, upon a certificate of qualification and moral character from the judge of the Circuit or Common Pleas Court of their counties, respectively, and shall, before they enter upon their duties as such, take an oath of office before the clerk of the Circuit Court of their counties, respectively, and file in his office, to be approved by such clerk, an official bond. Section 5 of the same act confers power upon notaries to take and certify acknowledgments of deeds and other instruments of writing, to administer oaths generally, to take and certify depositions, and to do such acts as, by common law and the custom of merchants, they are authorized to do. Section 7 provides that no person holding a lucrative office, or being an officer in any bank or corporation possessed of any banking powers, shall be a notary public. Section 4 of a later act, (1 Davis' Ind. Rev. St., 635,) declares that the jurisdiction of a notary shall be co-extensive with the limits of the state, but no notary shall be compelled to act beyond the limits of the county in which he resides. The authority of notaries extends throughout the state, and they are not required by statute to be 21 years of age. But it is urged by counsel for defendant that under the Constitution United States vs. Bixby. none but males 21 years of age are electors; that no person not an elector can hold a county office; and that notaries are county officers. Notaries have nothing to do with the affairs of the county, and they discharge no duties as county officers. In taking and certifying acknowledgments of deeds and other written instruments, administering oaths, and in doing such acts as by common law and the custom of merchants they are authorized to do, they do not act as county officers. They are not needed in the administration of county affairs, and they are not county officers within the meaning of the Constitution. There is nothing in the Constitution or Statutes of Indiana making infants ineligible to the office of notary public. Unlike most of the states, Indiana has not declared, in her Constitution or Statutes, that only those who have attained the age of 21 years shall be eligible to any public or civil office. While at common law persons are not admitted to full enjoyment of civil and political rights until they have attained the age of 21 years, yet infants are capable of executing mere powers, and, as agents, of making binding contracts for others. In England they are allowed to hold the office of park-keeper, forester, jailer, and mayor of a town; and in both England and this country they are capable of holding and discharging the duties of such mere ministerial offices as call for the exercise of skill and diligence only. They are not eligible to offices which concern the administration of justice, on account of their inexperience, and want of judgment and learning.' Stevens S. Mason was appointed secretary of the territory of Michigan by President Jackson in 1831, when he was but 19 years of age, and while yet an infant he became acting governor, and the vigor and wisdom which he displayed in 'Kiny vs. Dilliston, 3 Modern Reports, 222; Tyler, Infancy & Cov., Sec. 78. In re Conrad Young. these offices vindicated the propriety of his appointment. Other instances might be cited in which infants have discharged the duties of purely ministerial offices which did not concern the administration of justice. It need hardly be said that the office of notary public is ministerial, and that it does not concern the administration of justice. Demurrer sustained. In re CONRAD YOUNG. CIRCUIT COURT-NORTHERN DISTRICT OF ILLINOIS-NOVEM BER, 1881. IN BANKRUPTCY. 1. GENERAL ORDER PROVIDING FOR DISCHARGE OF BANKRUPTS.-The District Court has the right to make an order providing that unless any bankrupt shall take the necessary steps to have the question of his right to a discharge ready to be determined on or before a certain date, that any creditor may, without notice, move for a final order closing the case, and denying the discharge for want of timely application therefor 2. TIMELY APPLICATION FOR DISCHARGE.-But if no such motion is made by a creditor and no order entered denying a discharge, the bankrupt has the right afterwards to apply for his discharge. 3. PRACTICE-REFUSAL OF CLERK TO RECEIVE PETITION TO FILE.-It a bankrupt offers to file his petition for a discharge in due time, the refusal of the clerk to receive and file the petition will not prejudice his right, as then existing, to a discharge. 4. In re Forsythe, 9 Bissell, 560, followed. Petition for review. |