Volume 1 — Arkansas Reports

<p>On the 13th of January 1845, Fbedekick W. Trapnael, Esq. presented a petition to the Supreme Court, stating, that he was an Attorney, practising in the Circuit Court of Pulaski' county, and that he and his partner, Cocke, were plaintiffs in a number of suits pending in said Court; which suits were properly triable at the November Term of the Court, 1844, but, by special act of the General Assembly, the term had been postponed to the 2d Monday of January, 1845. That he had hoped to have said causes tried at the term-as postponed; but the Hon. John J. Clendenin, Judge of the court, had determined not to hold the term, alleging as an excuse therefor, that the act postponing the court, was repealed by a subsequent act. of the Legislature, prescribing the times of holding the Circuit Courts of the 5th judicial circuit.</p> <p>He further stated that, in his opinion, the act was not repealed, and the excuse of the Judge without foundation; and that the interest of himself and clients would be greatly prejudiced by the failure of the Judge to hold the court; and praying that a writ of mandamus might issue, commanding the Judge to proceed to hold the-court, and determine the causes pending therein.</p> <p>The Judge, responding to the rule upon him, to show cause why the writ should not issue, admitted that he had refused to hold the court, for the reason, that, in Ms opinion, the postponed January term of the court, was continued to the third Monday of April 1845, by an act of the Legislature, approved 9th of January 1845, making that act, and the act of Nov. 23d 1844, postponing the court to January, part of his response. See acts of 1844-5 pages 10, and 87 sec. 4..</p>

<p>Ip a party attempts t® plead in bar a payment made after suit commenced, lié must show a full payment, not only of the debt and interest, but also of all costs accrued in the suit.</p> <p>A Constable is not authorized to receive payment of a debt, by his official character, unless when he obtains that authority by a writ of execution; and a payment made to him before the issuance of an .execution will not release the party making it; nor will the Constable’s receipt be any defence to the action.</p> <p>An appeal granted from the judgment of a Justice after the lapse of thirty days from the rendition of the judgment, would bo unauthorized and void, and would not warrant the Circuit Court in assuming jurisdiction.</p> <p>A mandamus is not a writ of right, but within the discretion of the court, and the party applying for it must show a specific legal right, and the absence of any other specific legal remedy.</p> <p>The prayer of an appeal within thirty days after judgment rendered, the offer of special bail as required by law, and a refusal by the Justice to grant the appeal, if shown upon the application for the mandamus, might have been sufficient to authorize the Court to grant the writ, and if such facts appeared upon the return to the writ, might furnish a sufficient ground for the Court to take cognizance of and adjudicate the cause upon its merits.</p> <p>Unless these facts or others appear upon the record, a writ of mandamus will be held to have irregularly issitéd, and to have given no jurisdiction to the Circuit Court.</p>

This was an action of debt, to the circuit court of Phillips county, April Term, 1843, by James Erwin, suing for the use of James Shelby, against Eliza Turner as surviving administratrix of Hatch Turner deceased. And was founded, as shown by the declaration, upon three promissory notes, executed by the defendant’s intestate (and one A. W. Turner, not sued) to the plaintiff, on the 4th day of April, 1836, for the aggregate sum of $5,376 00, payable at one, two and three years.

<p>Error to the circuit court of Pulaski.</p> <p>This was an action of replevin, brought by Henry Hattier, against F. W. Trapnall, for the recovery of a negro man, slave, named Jefferson, to the September term, 1842, of the circuit court of Pulaski county.</p> <p>There were two counts in the declaration, both charging that Trapnall took and unjustly detained the slave, and differing only in the averment as to the time of the taking.</p> <p>The issues were made up, and determined at the May term, 1843.</p> <p>Trapnall pleaded non cepit, 2d, property in himself, and 3d, that the cause of action had not accrued within two years. Issues were made up on the first two pleas, and the plaintiff replied to the third plea, that at the time the cause of action accrued, and ever since, he was, and had been, without the limits of the State of Arkansas. To which replication Trapnall demurred; the court overruled the demurrer; and the cause was submitted to the judge, sitting as a jury, on the above issues. The court gave judgment for the plaintiff. Trapnall moved for a new trial, which being refused, he filed a bill of exceptions, setting out the evidence produced on the trial; the substance of which is sufficiently and correctly stated in the opinion of the court.</p> <p>To reverse this judgment, Trapnall sued out a writ of error to this court, and assigned for error</p> <p>1st, That the court erred in overruling the demurrer to the replication of the plaintiff to the defendant’s third plea.</p> <p>2d, That the court erred in overruling the motion for a new trial.</p> <p>3d, That the court erred in giving judgment for the plaintiff, because the proof showed that the defendant, had committed no tort, and failed to establish the gist of'the action.</p> <p>1. The general rule is, that if the property in chattels has never passed from the original owner by a valid sale or transfer, and no contract exists to confer the right of possession on another, the original owner may take them wheresoever they are found, although the possessor may hold them under a'bona fide purchase from another, for an adequate consideration. Long on Saks, Rands ed. 166 to 168,- vide cases cited in notes 1 and 2, of p. 167. 4 Wash. C. C. R. 594. 4 Whar. 505. 2. The original tort is communicated to each person who holds against the rightful ownér. The defendant does not pretend to derive title, mediately or immediately from the owner of the slave, sets up no contract or bailment of any kind, and merely relies upon the fact pf having purchased from a third person for a valuable consideration, without a shadow of a title. Could his authority to hold the slave, as against the rightful owner be lawful? Whoever holds chattels without right, and deprives the owner of them, ceiv tainly does it unlawfully, and in legal contemplation is guilty of an unjust caption, so as to warrant the action of replevin in the cepit. Rev, St. ch, 126, sec. 1. Wilson vs. Roysion, 2 Ark. 315. Robinson vs. Callaway, 4 Ark. 95. Field vs. Ringo, Mss. Hopkins vs. Hopkins, 10 J. R. 373. Rogers vs. Arnold, J 2 Wend. 39. 1 Ch. PI. 186. Clark vs. Skinner, 20 J. R. 465. Baker vs. Fales, 16 Mass. R. 147, Shannon vs. Shannon, 1 Sell. & Lef. 324.</p>

Error from Conway Circuit Court. This case was argued, but owing to the reason in the opinion assigned, was not determined upon tne assignment of errors.

<p>If the parties named in the record sent up here, are not the same as those named in the writ of error, the proceedings are irregular, and the case will be dismissed.</p>

<p>The Supreme Court has the power to issue writs of mandamus. The party applying for this writ must show that he has a specific legal right, and no other adequate specific legal remedy.</p> <p>A collector or holder of public moneys who was in default for moneys collected at the time of the adoption of the Constitution, at the time of his election to another or the same ofiice, and at the time of his application for his commission, is not entitled to his commission.</p> <p>A collector or holder of public moneys who was in default to the Territory at the adoption of the Constitution, became in law and by the schedule to the Constitution a defaulter to the State, and all his liability is transferred to the State.</p> <p>No person had any natural, legal, or vested right to the ofiice of Sheriff till it was created by the Constitution.</p> <p>The right to the ofiice is given upon the express condition that the party demanding it is neither a holder or collector of public money which he has failed to account for and pay over, and for which he is liable.</p> <p>That condition not having been complied with, no legal, constitutional, or natural right to the ofiice vests by an election to it. Therefore the clause in the Constitution cannot be retrospective in this case.</p> <p>An ex post facto law declares an offence to be punishable in a manner that it was not punishable at the time it was committed, and relates exclusively to criminal proceedings.</p> <p>The provision in the State Constitution that no holder or collector of the public money shall be eligible to any ofiice of trust or profit till he has paid over and accounted, &c., is not repugnant to or in violation of the Constitution of the United States.</p>

This was an action of assumpsit, by attachment, brought by Henry Hamilton against Earl Buxton, and determined in the Conway circuit court, at the August term, 1843, before Judge Bkown The declaration charged that the defendant was indebted to th'e plaintiff’ for goods, wares, and merchandize, sold to him, Bergér and Ball (who were not sued) as partners, under the style of Berger, Buxton & Co. Tho defendant demurred to the declaration, because th'e other members of the linn…

Petition for Habeas Carpus. Petition to this court for Habeas Corpus, by David Royster, imprisoned by the sheriff of Pulaski county, under a writ of ne exeat. The petition was not accompanied by a copy .of the bill upon which the writ was obtained, nor of the order of the judge directing the clerk of the Pulaski circuit court to issue the writ. A copy of the writ under which the sheriff held the petitioner in confinement, was alone exhibited with the petition.

Petition for Habeas Corpus. Petitios: to this court, by David Royster, for Habeas Corpus. Petition states, that on the 14th Jan., 1845, .Tames C. Anthony and John Pereifield presented a bill of complaint to the judge of ¡the Pulaski circuit court, as chancellor, in vacation, representing that on the 3d of .February, 1841, they had become the securities of the petitioner on a note of that date for $800, payable to the State Bank at six months.

Error from Independence Circuit Court. This case was originally commenced before a Justice of the Peace, and thence removed by appeal into the Circuit Court below. At the term of the Circuit Court at which it was set for trial, the regular terms of said court were required to be held on the Second Mondays of May and November.

That the appellees were farmers, had never traded to any distant city for goods^ #ere unknown and had no credit abroad, and therefore required the aforesaid assurance, and made the same an express condition, before they would agree to purchase his remnant of goods.

Action of debt, by Miller Irvin, public administrator of Phillips county, against W. K. Sebastian and T. B. Hanly, determined in the circuit court of Phillips county, at the, October term, 1843.

Action of debt, by the Bank of the State of Arkansas, against Elijah Wilborn and Nelson Phillips, determined in the Pulaski cju> cuit court, at the May term, 1844, before Judge Clendenin. The action was founded on a note for $350, made to the bank by the defendants on the 4th day of October, 1841, payable at s'ix months. .The defendants respectively pleaded their discharge as bankrupts, under the act of Congress of 1841, since the execution of the note.

Action of replevin, by Baker Brown against Dial M. Peevey, to the circuit court of Yell county, April tei’m, 1842. Declaration charged that the defendant, on the 1st day of July, 1841, received of plaintiff a sorrel mare, to be re-delivered to plaintiff when requested; and that defendant, though often requested, refused to deliver, and unlawfully detained the mare from the plaintiff.

Writ of error to the circuit court of Pulaski county. This was a suit commenced by Henry F. Pendleton against Absalom Fowler, before a justice of the peace, on an account of $55 90, for measuring carpenter’s work, done on the defendant’s house. It appears from the transcript, that the account was marked, “Filed, 5th Augtist, 1841,” and the summons bears date the 5Lh day of July, 1841: and was made returnable on the Idth of July, 1841.

Writ of error to the circuit court of Pulaski county. This was an action of replevin for a box of specie, brought by-William Field against William H. Ringo, to the circuit court of Pulaski county, March term, 1842.

<p>Appear from Miller Circuit Court.</p>

<p>A recognizance in appeal, conditioned “for the prosecution of the appeal,”i* not sufficient-</p>

The opinion given in this case clearly presents all the facts therein. It is therefore not necessary that, it should be here stated. relied upon the case of Bennett vs. Engles, decided in this court at July term, 1837, Ante p.

Error from Crawford Circuit Court. This was an action of debt commenced in Crawford Circuit Court.' Judgment was taken by default, and writ of error prosecuted by Gil-breath, defendant below. The case was submitted without argument.- This was an action of debt brought by Kuykendall against'Gilbreath, in the Circuit Court of Crawford county, Stale of Arkansas; and judgment rendered against Gilbreath, in the December term thereof,-1836, by default.

This was an appeal from the probate, to, the circuit court of Pulaski county, and was determined at the November term, 1843, before the Hon. J. J. Clendenin, judge. The history of the cause fully appearing in the opinion of the court, no additional statement, by the Reporter, is necessary. Did .the legatee take a vested interest? In the construction of the words of a bequest, it is a rule to-lean towards a vested rather than a contingent interest.

In these cases the same judgment was given. In each the plaintiff in error brought his suit on a writing obligatory, before a Justice of Welborn township. The process was a summons directed to the Constable of the same township, who served the same personally on the defeildant, in Cadron township, (all in Conway county,) in which latter township the defendant resided. There, was no Justice or Constable in said township of Cadron, at the time, of the commencement of the suit.

Writ of error to the circuit court of Pulaski county. ‘ This was an action of debt, brought by Nimrod E. Kay against John B. Nicholay and William D. Taylor, partners under the style of Nicholay and Taylor, Henry F. Pendleton, and John Robins; and determined in the circuit court of Pulaski county, at the November term, 1843, before Judge Clendenin.’ The -substance of the declaration follows: — Plaintiff complains of defendants that' they render to him $1096 22, which they owe…

In Error, from Pulaslci Circuit Court. This was originally an action on an account for freight due by Phillips to the steamboat Neosho, brought before the Justice, by and in the name of Pennywit, owner of the steamboat Neosho. Judgment being ^Syjfcred by the Justice for Pennywit, Phillips appealed to the Circuit Court.

Error from Sevier Circuit Court. The plaintiff in error in this case obtained judgment against the defendant in error in the Hempstead Circuit Court, on the 23d day of July, 1823, for |>1487 951 cts. debt and costs: and brought his action of debt on this judment, against the defendant, in the Sevier Circuit Court, to the October term, 1834.

This was an action of debt, brought in the Clark Circuit Court, by the plaintiff', against Joseph Butler, a nonresident, as principal, and Latham and others, as his securities on Butler’s bond as Sheriff, to. the March term, 1831. No breaches were assigned in the declaration.

Writ of error to the circuit court of Jefferson county.- Tins was a judgment oil a forfeited delivery bond,' obtained on the mere motion of the plaintiff in error, against the defendants, in the circuit court of Jefferson comity, before the Hon. Isaac'-Bakeiy one of the circuit judges, at the October term, 1843. No statement or declaration in writing was filed, nor was any notice given the defendants of the motion, previous to the rendering of the judgment.

Writ of error tú the circuit court of Crawford county.,' This was a suit commenced before a justice of the peace/ by tire defendants in error, against the plaintiff in error, on a note for $50.-Judgment was given against Miller, he appealed to the circuit court of Crawford county, and the cause was determined, before the Hori; R. C. S. Brown, one of the circuit judges/ at a special term of the fcourt, in December, 1843.

<p>Petition to this court.for Mandamus.</p> <p>The facts sufficiently appear in the opinion of the, court.</p>

This case was brought up by writ of error from the City Court of Little Rock, and the City, by Solicitor, interposed a motion to dismiss the suit, because the city was hot made a defendant in error; and the writ of error had not been served upon the corporate authorities of the city, as required by law.

R. C. S. Brown, one of the circuit judges, at a- special term in October, 1844. The bill alleged that, on the 29th September, 1832, complainant executed his note to George Bently for $250, for money loaned him by Bently. That at the time the note was made, Bently hatod-ed him a memorandum for nails, bale rope, bagging, &c., and requested complainant to purchase them for him on his return from Kentucky, agreeing to receive them in payment of the note.

To the Clerk of the Circuit Court of-Greeting: moved to dismiss the case “ for irregularity, on the ground that there is no writ of error, and “that the paper filed as such is not directed to the Clerk of the Cir- “ cuit Court of any county in this State.” moved' at the same time to amend the writ of error.

Ai’yeal from Whitt, Circuit Court. -This was an action of detinue, instituted in the Pulaski Circuit-Court, by Hynson against Terry, for a negro boy named Daniel, and transferred to White Circuit Court, when White county was created. Terry pleaded non dctinct, and the issue was tried by a jury.

Writ of error to the circuit court of Crawford county. Action of assumpsit, by John Henry against Thomas Hazen, determined in the circuit court of Crawford county, before the Hon. R. C. S. Brown, one of the circuit judges. The declaration contained a special count on a draft, and a count for money had and received. At the August term, 1843, the defendant demurred to the first count, and pleaded non assumpsit to the second, upon which issue was taken.

Error from Phillips Circuit Court. Fisher brought his action of debt against Eason, in the Phillips Circuit Court, to the May term, 1834, in an action of debt upon á writing obligatory executed by Eason to Sylvanus Phillips, for $1300, due the first day of March, 1831, and assigned to Fisher, by Phillips,September 21st, 1830.

Writ of error to the circuit court of Pulaski county. This was an action of assumpsit, by Hyde & Goodrich, as late partners in trade, against Chester Ashley and Daniel Ringo, as late partners in the practice of law, to the March term of the Pulaski circuit court, 1839.

This was an action of debt. Reynolds, defendant in the court below, filed his affidavit, stating that he verily believed that the plaintiff’s attorney had no authority to bring the suit, and his reasons for that belief. Tt|g attorney objected to the sufficiency of the affidavit, and his objections were overruled. He then introduced testimony to prove his authority. The court decided the testimony insufficient, and dismissed the suit.

Writ of error to the circuit court of Hempstead county. Attachment, by Chambers Etter against steamboat Napoleon,,, under the 14th chapter of Revised Statutes, determined at the May term of the Hempstead circuit court, 1844, before the Hon. John Field, one of the circuit judges.

The opinion delivered in this case sets forth the facts with great particularity and precision. Underwood commenced his suit before the justice by summons, against1 Jeffery and one Crawford. The summons was, to answer “ in an action of debt on a note of hand.” The summons was not seryed, nor were any proceedings had on Crawford. Underwood obtained judgment before the juitice against Jeffery, for twenty-five dollars debt, and costs; and Jeffery appealed to the Circuit Court.

Writ of error to the circuit court of Pulaski county. This was an action of replevin for a slave, determined in the cir,cuit court of Pulaski county, at the November term, 1843, before the Hon. J. J. Clendenin, one of the circuit judges. The suit was brought by Jonathan Lamberton against Elizabeth A. Gray, who, after the institution thereof, intermarried with Benj. F.' Gullett,-and he was made co-defendant. There were two counts in the declaration.

<p>Application for Mandamus to the. Judge of Chicot County Court.</p>

<p>jSee the case immediately preceding this,</p>

<p>Writ of error to the circuit court of Pulaski county.</p> <p>Action of debt, by the Bank of the State of Arkansas against George C. Watkins, determined in the circuit court of Pulaski county, at the November term, 1843, before the Hon. J. C. P. Tol-lison, special judge.</p> <p>The action was founded on a bond, which, as filed on oyer, was as follows:</p> <p>“ Little Rock, 10th November, 1840.</p> <p>$2,000. Six months after date, we, John W. Johnston, as principal, and James Pitcher and George C. Watkins, as securities, jointly and severally promise to pay to the Bank of the State of Arkansas, or order, two thousand dollars, negotiable and payable at the Principal Bank, in Little Bock, without defalcation, for value received. Witness our hands and seals, (and the cashier of -said bank is hereby authorized to insert the date on the day of the discount thereof.) JOHN W. JOHNSTON, [seal]</p> <p>JAMES PITCHER, [seal]</p> <p>GEO. C. WATKINS, [seal].»</p> <p>The defendant pleaded a special plea, in substance, as follows:</p> <p>“The said defendant comes, &c., and craves oyer, áse., and says that the said plaintiff ought not, &c., because he says, that after the said obligation became due and payable, according to its tenor and .effect, and the plaintiff’s right of action had accrued thereon, to wit: at, &c., the said defendant, by notice in writing, required the said plaintiff, having such right of action, forthwith to commence suit against said John W. Johnston, the principal debtor, and the said other parties liable thereon, as his securities in said obligation, which notice was duly served upon the plaintiff more than thirty days before the commencement of this suit, and more than thirty days before the commencement of any suit, whatever, by said plaintiff upon said obligation against said principal debtor, and said other parties liable thereon. And this the said defendant is ready to verify; wherefore, and because the said plaintiff wholly failed and neglected to commence said suit within thirty days after the service of said notice, and proceed therein with due diligence, in the ordinary course of law, to judgment and execution, he prays judgment, &c., and that he, as such security,' be exonerated from all liability upon said obligation to said plaintiff.”</p> <p>The plaintiff demurred to the plea, on the ground: 1st, that the defence set up in the plea was exclusively cognizable in a court of equity — 2d, that, under our statute law, all persons signing an obligation are considered as principals, and no one of them can aver, or show, at law, that he is security only.</p> <p>The court overruled the demurrer, and the plaintiff entered a replication, in short on the record, to the plea, upon which issue was taken, and the case submitted to the court, sitting as a jurry.</p> <p>The defendant proved that, on the 31st of August, 1841, he gave the bank notice, in writing, forthwith to commence suit against the principal, and the other parties liable on the above obligation, or that he would claim to be exonerated from all liability thereon as security. He also proved that he gave an additional notice in January, 1842, and that the bank brought no suit on the bond until the 3d of October, 1843, when she commenced suit against Johnston and Pitcher, and, at the same time, commenced a seperate action against him, upon the obligation.</p> <p>The plaintiff thereupon presented a demurrer to the evidence; the defendant joined therein; the court overruled the demurrer, and gave judgment for the defendant. .</p> <p>The plaintiff then moved in arrest of judgment, on, substantially, the same grounds he had assigned as causes of demurrer to the defendant’s plea, and the court overruled the motion. •</p> <p>The plaintiff brought the case to this court by writ of error.</p> <p>The demurrer to evidence avails nothing because the plaintiff’s only remedy, if the demurrer was wrongfully overruled, was by bill of exceptions. Stephen's PI. 90. Gould PI. 491, sec. 74. 9 Coke 13 b. Bac. abr. tit. “Bill of exceptionsib. tit. “Pleas" &c. N. 7i Cro. Car. 342. Bul. N. P. 314, 2 H. Black. 198, 200.</p> <p>The plaintiff took no exceptions to the opinion of the court upon the demurrer to evidence, consequently her writ of error can only lay to the decision of the court overruling the motion in ar« rest. That was the last position assumed. The final mode she .chose to adopt. It is a waiver of the demurrer to evidence. Á motion in arrest is only made for matters which appear of record, and they are of two classes: first, defects in the pleadings: second, defects in the verdict. Gould PI. 495, sec. 10, et seq.</p> <p>The motion in arrest' in this case, cannot lie for any defect in the verdict, because by demurring to the evidence the plaintiff took the conusance thereof from the legitimate tribunal to judge of evidence, the jury, (or the court sitting as a jury) and referred it to the court. Q'baugh vs. Finn, 4 Ark. Rep. 121. And she could only therefore seek to arrest the judgment for some supposed defect in the plea, to which she had in the first place demurred: and this court has settled in the case of Jarrell vs. Wilson, 1 Ark. Rep. 137, that the party demurring cannot take advantage of the grounds of demurrer in arrest of judgment, when he pleads or replies over.</p> <p>It is settled in New York, upon common law principles and without the aid of any statute, such as we have in favor of securities, that the neglect of the creditor to sue the principal after request by the security, discharges the security at law and the de-fence may be made in a court of law, if under the same state of case he would be discharged in chancery. King vs. Baldwin, 17 J. R. 384. 2 J. Ch. R. 554. Payne vs. Packard, 13 J. R. 174, People vs. Burne, 13 J. R. 384. Powell vs. Waters, 17 J. R. 175. Manchester Iron Man. Co. vs. Smeeling, 10 Wend. 162. People vs. Janson, 7 J. R. 332. See also, Everett et al. vs. United States, 6 Porter (Ala.) 166. S. P. Inge vs. Br. BIc. of Mobile, 8 Porter 108. 10 Porter 257. 3 Wheaton, 520.</p> <p>But under our statute, concerning securities, there is no question but that a failure after notice given according to the statute would be a defence at law, and it has been so decided in all those States where there are statutes similar to ours. 3 Stewart’s (Ala.) Rep, 9-160. Brahorn vs. Houle, 1 Blackford (Indi) R. 394. Starling vs. Bottles, Ohio cond. R. 370. Ellis et al. vs. Adm’r of Taylor, 1 Howard’s Sup. Ct. R. Bolton vs. Bundy, 6 Missouri R. 46. 1 Slew-art 11. 4 Porter 232. 9 Porter 334. Hancock vs. Bryant and Hunt, 2 Yerger 476. Kelly ps. Matthews, 5 Ark. Rep. 223.</p> <p>On a demurrer to evidence every conclusion which.the jury would have been warranted in drawing from the testimony given must be considered a's admitted by the party demurring. People vs. Rae, l Hill 470. See also, Paulding et al. vs. United States, 4 Cranch 219. Young et al. vs. Black, 7- Cranch 565; Bk. of the United States vs. Smith, 11 Wheaton 171. Foioler vs. The Com■* mon Council of Alexandria, 11 Wheaton 320</p> <p>It is no compliance with the statute to sue the security alone,Starling vs. Battles, ut.- sup.</p>

<p>Error to Crawford Circuit Court.</p> <p>This was an action of debt, instituted in the Court below by the defendant in error, as assignee of Randolph & Keethley, against the plaintiff in error, and Martha Trimble, alias Patsy Riggs, joint promissory. The plaintiff in error being a resident of the county of Crawford, and his co-defendant below-a resident of the county of Washington, a writ of summons issued upon the declaration, directed to the Sheriff of Crawford county, and -a counterpart thereof to the Sheriff of Washington county. The summons to Crawford county ran as follows:</p> <p>“ Territory or Arkansas,) q County of Crawford, ) ‘</p> <p>“ The United States of America, to the Sheriff of Crawford county, “Greeting: You are hereby commanded to summon Greenup D. “ Womsley and Martha Tri.nblc, alias Patsy Riggs^ if they be found “within your bailiwick, to appear In ■‘ore ¡S10 Judge of our Circuit “Court, at the court Louse in the county worksvm,” &c.; and the summons to Washington was in the same words, except that it was directed to the Sheriff of Washington county.</p> <p>The writ and counterpart were regularly served, and at the return term the plaintiff below moved the Court to quash the counterpart for uncertainty, inasmuch as two counties were named in the commencement thereof, and the parties were required to appear “ at the court house in the county aforesaidan uncertainty not existing in the original, although one was a literal copy of the other, except in its direction to the Sheriff of Washington — the county of Crawford only being named in the original. The Court sustained the motion, quashed the counterpart, and permitted the plaintiff below to proceed against Womsley alone. Womslcythen craved oyer, which was granted him, and he pleaded nil debei, to which plea the plaintiff below demurred, and the demurrer was sustained, on the ground that the ¡dea should have been sworn to, under the statute — and the plaintiff below then had final judgment upon the demurrer.</p> <p>The plaintiff in error assigned for oriov the qnashing'of the counterpart of the writ, and. permitting the defendant below to proceed against Womslsy alone, and also the sustaining of the demurrer to the plea of nil debei.</p> <p>The Court on the motion of the plaintiff had no right to quash the counterpart of the writ. It was an exact copy of the other, and there was no defect on its face or in the return of the Sheriff. Therefore, as ■ there was no defect in the writ or in the return, the Court had no reason or authority to set it aside, particularly at the instance of the plaintiff Steele's Digest, 312.</p> <p>The plaintiff contends further, that even under the statute of the Territory the plea was good. Vide Isi Chitty, 422; 1st Salkeld, 565; Isi Saunders, 38. The plea of nil debei. under the statute, does not put in issue the execution of the note. The plea is in the present tense, and alleges that the defendant was not indebted at the time of bringing the suit; and, therefore, as the plea does not put in issue the execution of the note it was not necessary to support it by affidavit. See Missouri Reports, 487, 1SI, that nil debet and non assumpsit are good 7 .. . , pleas to an action on promissory note*</p> <p>The settled practice of the country sustains the judgment of the Court below upon the demurrer,to the plea of nil debet. It lias been often decided that such a plea is not good, under the statute, to an action of debt on a promissory note. Steele’s Dig.,Jud. Proc., Sec. 2"3, Art. 2. See 5th Bac. Ah. 4G0; 1 Wh. Sel. 405; 1 Ch. PI. 478.47(5; Gould PI. 310; Steph. PI. 307.</p> <p>As to the quashal of the counterpart, it seems clear that the plaintiff could not assign this point as error, if the quashing of the writ had been wrong and illegal, which is not the case.</p> <p>This counterpart neither gave a legal right to Womsley nor took any from him. It neither extended nor limited his liability to the laws of the land, it ivas a mere matter in which the plaintiff below and Martha Trimble were concerned, and no one else. It was a mere suit between her and the plaintiff below, and Womsley was in law no wise concerned. The plaintiff in error might as well assign as error that in the case between John Doe. and Richard Roe an error was committed which should operate to reverse this case. Womsley was not a party to the counterpart, and cannot assign for error a matter to which he was no party and in which he was not legally interested. His concern in her being a party was a mere possibility, not a legal interest. Again— Was the dismissal of the writ an act of the Court — a judicial act? It was the mere act of the plaintiff, who can dismiss any process he has power to issue. It is a clear principle that a plaintiff in error cannot assign, or obtain relief for, errors (admitting them to exist) in matters not judicially acted on by the Court below, and which are not connected with his right.</p> <p>The plaintiff below had a legal election cither to include Mrs. Trim-ble in the action or not; the defendant had no right tojiave her in Court: How then, as by the statute this cannot be denied, can the plaintiff Womsley complain, and reverse this judgment because she was not sought to be made a party to the judgment? There was an election given to the plaintiff below. There is no law taking it from him at any subsequent period. The books abound with authority that a plaintiff can at all times dismiss his suit or process. These exist by j^jg discretion and terminate when he pleases. The general doctrine concerning writs and process (See 3 Blackstone, 272-3) fully sustains this position.</p> <p>But this counterpart was notoriously bad on the face of it. It was issued to Washington county, and the defendant was not informed in which county she was required to appear. Two counties are mentioned in the first part of the writ, and she was commanded to appear at the court house in “ said county.” Now there might have been some reason for intending the county of Washington, but there can be none that Crawford was meant. A counterpart is not necessarily a literal copy of the original. A literal copy in this case is uncertain, and might in many cases be void of meaning. The counterpart should contain the same command with the original. That command in this case is to summon the defendant to appear in the county of Crawford. This the counterpart does not do in this case. It is therefore variant from the original, although a literal copy, except in the change of one word. If it vary from the original, may it not be quashed ? If quashed, is the original also quashed, where the very ground of quashal is that the counterpart is bad, because it varies from the origin al ? What is the quashal of the counterpart but a dismissal as to one defendant? May not the plaintiff at anytime dismiss as to one and proceed against the other?— Because he has a bad writ against one defendant, shall his good writ against the other avail him nothing? Sec. 3d of Judicial proceedings points out the nature of this writ — see, also, Sec. 15 Digest, p. 316.</p> <p>A writ must be certain in every part and to every intent. It is no writ unless it be so. See Com. Dig. p. 685; 3 Bq. p. 699; 3 B. 15; 2 Bac. Al. 456-7, 490.</p> <p>Womsley was not a party to the judgment of the Court quashing the counterpart, and can neither assign it for error, nor bring error for it. That judgment affected neither his legal liabilities nor his rights. He had not then, nor has he now, any right to object to it. lie could have made no motion, and predicated no action, on or under the counterpart served on his co-promissor.</p>

This was an indictment against Merideth B. Webb, under the act of 18th January, 1843, for cutting and removing timber from a section of land appropriated to the use of schools, determined in the circuit court of Pope county, at the September term, 1844, before the Hon. R. C. S. BrowN, one of the circuit judges.

Writ of error to the circuit court of Pulaslciu'county. Tuts was an. indictment against George W. Hughes, for attempting to aid the escape of a prisoner from the Penitentiary, determined in the circuit court of Pulaski county, at the May term, 1844, before the Hon. J. J. Clendenin, one of the circuit judges.

This was an action of debt brought in the Court' below by Bailey against Estill, and a writ of summons issued, commencing as follows: “STATE OF ARKANSAS, “County of Chicot. | The United States of America, To the Sheriff of Chicot County — Greeting:” At the return term, the defendant below appeared, and moved' to* “dismiss the writ, for defects and informalities on its face.”' This motion was overruled by the Court, and thereupon the defendant below permitted judgment to go…

<p>Appeal from Washington Circuit Court.</p> <p>moved to dismiss this appeal for want of a sufficient recognizance.'</p>

Writ of error to the circuit court of Pulaski county. 'This was an action of debt, by the Bank of the State Arkansas-against George W. Underbill, determined in the circuit court of Pulaski county, at the May term, 1844, before the Hon. J. J. Clen-denin, one of the circuit judges. The action was founded on a bond for the payment of $300 to the bank, dated 3d Nov. 1840, and. due at six months.

This was an action of debt, commenced in the Court below by the appellants, as administrators of Titsworth, against the appellees, to September Term, 1835. At the return term, the plaintiffs by leave filed their amended declaration, which was demurred to at February Term, 1836, demurrer sustained, and by leave a second amended declaration filed.

This was an action of debt, commenced in the Lawrence Circuit Court, by Marcus Wilson against Jarrett, administrator of John Acheson, deceased, upon a writing obligatory, executed by Acheson in his lifetime, whereby he acknowledged that Wilson had advanced and become liable for him, A dieron, to tac amount of $SG76 70.

This was an action of covenant, by Jonas Levy against Jacob Mitchell, determined in the circuit court of Pulaski county, at the May term, 1844, before the Hon. J. J. Clenjdbnin, ope of the circuit judges.

This was an indictment agginst Liberty Funk, charging him with the murder of B. F. Bath, determined in. the circuit court of Jackson county, at the May term, 1842, before the Hon. Thomas Johnson, then one of the circuit judges. The defendant pleaded in abatement that the indictment was not found by a lawful grand jury — that it wras composed of 18 and not 16 men as the law required. The State demurred to the plea, and^he court sustained the demurrer.

moved to dismiss this case, because the sum in dispute was less than one hundred dollars, and therefore this court had no jurisdiction of'the case; and because of a defect in the recognizance of appeal.

This was an appeal from the probate, to the circuit court of Independence county, determined before the Hon. Thomas Johnson,then one of the circuit judges, at the August term, 1843. Newkirk & Olden originally sued John Ringgold, as administrator of Charles Kelly, deceased, in the probate court, upon the following instrument; “$806 12. , New Orleans, March 6, 18.33.

The appellee in this case recovered judgment before a Just'ce of the Peace, for the sum of ninety-eight dollars, exclusive of interest and costs, against Christian Brumback, Martin Guest, and Alexander S. Walker; and also three judgmenls, each for the sum of one hundred dollars debt, before the same Justice, against Christian Brum-back and Edward Shurlds; in each of which cases the defendants before the Justice appealed to the Circuit Court of Pulaski county, where each…

This was an indictment against Russell Guess, charging him with an assault and battery upon W. Holland, determined in the circuit court of Independence county, at the August term, 1844, before the Hon. Tho’s Jonwsoisr, then one of the circuit judges. To which he pleaded, in abatement, that his name was not Guess but Gist. The State replied that he was as well known by the name of Guess as Gist, to which he took issue, and the case was submitted to the court sitting as a jury.

Writ of error to the circuit court of Independence county. This was a judgment on a forfeited delivery bond, obtained, on motion, by Tho’s T. Page against C. 3EL Pelham, the principal.in the bond, and his securities, in the circuit court of Independence county, at the August term, 1844, before the Hon. Tho’s Johnson, then one of the circuit judges.

<p>In a summary proceeding on a forfeited delivery bond, the court 'cannot render judg, ment, by default, without a writ inquiry.</p>

Writ of error to the circuit court of Pulaski county. This was an action of debt on the official bond of a constable, determined in the circuit court of Pulaski county, at the May term, 1844, before the Hon. J. J. Clendeniu, one the. circuit judges. The suit was brought in the name of the State, for the use of David Bartley against Jacob Faulkner, constable of Big Rock township, in said county, the principal in the bond, and John Hutt and Thomas Thorn, his securities.

The plaintiff in error brought an nclion of detinue in the Supreme Court of the Territory of Arkansas, to the April Term thereof, I823? against one Alexander W. Cotton, for four negroes, and sued out a c.a„ piasiri detinue under the statute.

Writ of error to the circuit court of. Pulaski county. . Tins ivas an action of detinue for a slave, determined in the circuit court of Pulaski county, at the May term, 1844, before the lion. J. J. CmuíduNín, one of the-circuit judges.

Writ of error to the circuit court of Pulaslci county.- This-was an indictment against Hawkins Hand, for obtaining' money' by false and fraudulent pretences, determined in the circuit court of Pulaski county, at the May term, 1844, before the Horn J. J.- CiENEENiN,- one the circuit judges.

This was an action of debt commenced in the court below by appellant’s intestate against the appellees.

Eeros, to Pulaski Circuit Court. This was an action of debt on a judgment recovered against the plaintiff in error in the State o£ Alabama. The record states that the plaintiff in error confessed judgment in the court below for $429 40 debt, and $168 damages, to reverse which judgment for an error, as he contended, in the computation of interest, he brought his writ of error.

Writ of error .to the circuit court of Pulaski county. 'This was an indictment against Hawkins Hand, for passing a ‘forged certificate of deposit, determined in the circuit court of Pulaski county, -at the May term, 1S44, before the Hon. J.^jp Ceen-denin, one of the circuit judges. There were two -counts in the indictment.

. The plaintiff in error was indicted for playing at faro, before the City Court of Little Rock, and pleaded guilty to the charge, whereupon the court below gave judgment for thirty dollars fine and costs, and that “.in default of the payment of such fine and costs, that the said John E. Graham be committed to the common jail of the county of Pulaski, for and during the space of three months, from and after the date of this sentence, unless said fine and costs be sooner…

Tms was an action of assumpsit, by John C. Johnson and Eli Lewis, partners under the style of Johnson & Lewis, against Milo Killian, determined in the circuit court of Pulaski county, at the May term, 1844, before the Hon. J. J. CkbndeNin, one of the circuit judges. The declaration was filed to the March term, 1842, and the sum-* mons served upon the defendant, 25th December, 1841. There were three counts in the declaration.

Writ of error to the circuit court of Pulaski county. Tins was an action of trespass for an assault and battery, brought by John C. Shellhorn against Henry M. Rector, and determined in the Pulaski circuit court, at the May term, 1S45, before the Hon. J. J. Ci/enhenin, one of the circuit judges.

This was an appeal from the judgment of a justice of the peace, to ‘the circuit court of Pulaski county, determined at the May term, 1845, befoi’e the Hon. J. I. Cibnídemn, one of the circuit judges.

<p>.Action of debt oh bonds, with counts for cotton, whiskey, monies, &c — plea of non est factum as to the bonds, and nil debet and statute of limitations as to the other .causes of action — -judgment for plaintiff as to the bonds, and finding for defendants as.in case of non suit, as to the issues on the other counts — bill of exceptions by plaintiff undertaking to set out the evidence — writ of error by defendants — jadg-ment reversed, because it does not appear, from the bill of exceptions, that the bonds were produced on the trial, or their execution proven.</p>

The appellee filed bis bill in Chancery in the Hot Spring Circuit Court, on the 21st September, 1835, in which he set forth that on the 17th of March, 1827, he executed his writing obligatory to the appellant, at thirty- days, for $192 63 cents, with interest at 10 per cent, per annum from time due till paid; that on the 3d of June, 1828, he executed to the appellant a second writing obligatory, at three months, for $71 82 cents, also to hear interest at 10 per cent; and…

Writ of error to the circuit court of Pulaski county. This was an indictment against Henry M. Rector, for an assault and battery, determined in the circuit court of Pulaski county, at the May term, 1844, before the Hon'. J. J. Cuenhenin, judge. The indictment charged an assault and battery, by Rector, upon L. J. Reardon, in Pulaski county, on the — day of May, 1843.

Writ of error to the circuit court of Pulaski county. Action of covenant, by attachment, brought by A. B. Bailey against James T. Starke, and determined in the Pulaski circuit court, at the May term, 1844, before the Hon. J. J. Clendenin, judge.

Writ of error to the circuit court of Crawford county. This was an action of assumpsit, by Shannon and wife against Wilson and Turner, determined in the circuit court of Crawford county, at the February term, 1845, before the Hon. R. C. S. Bkown, judge. The declaration commenced thus: “John Shannon and Nancy his wife, plaintiffs, by attorney, complain of Daniel Wilson and Geo.

This was a suit in chancery, commenced in the court below by the appellee against the appellant, where the appellee obtained a decree for the sum of ninety dollars and fifty cents. The case being disposed of here on the question of jurisdiction, it is not necessary to state the particular facts of the case or the arguments of counsel on the main questions.

This was an action of debt, by Moses Greenwood against Sime-.on Buckner, determined in the circuit court of Pulaski county, at the May term, 1844, before the Hon. J. J. Clendenix, judge.

Error. to the City Court of Little Rock. The question was disposed of on aquestion of jurisdiction, and all the facts appear in the opinion.

This case was argued upon the merits, but disposed of upon a pre-liminarj question. The facts of the case, therefore, need not be stated.

Eekoe to Pulaski Circuit Court. On the 26th day of November, 1832, Doctors Cocke and Lee of the one part, and Pratt Collins, the defendant’s intestate, of the other, entered into an agreement in substance as follows: That having theretofore entered into an agreement to keep and furnish a livery stable in partnership and being unable to effect a settlement, they did, in order to accomplish that object, and to avoid all difficulty, “ mutually agreed to submit for arbitration,…

Writ of error to the circuit court of Crawford county. This was a judgment, by confession, in the circuit court of Crawford, at the February term, 1845, before the Hon. R.,C. S. Brown, judge.

Writ of error lo the circuit court of Crawford county. At the March term of Crawford circuit court, 1844, Lytle recovered, against Alexander, a judgment, in an action of trespass, for $500.

Writ of error to the circuit court of Franklin coICniif ' Action, of debt, by plaintiffs in error against Mileham and Ak%-determined in the circuit court of Franklin county, at-the Februa? ry term, 1845, before the Hon. R.- C. S. Brown, judge. The declaration was upon a writing obligatory, alleged to have-been made to plaintiffs, by defendants, Joseph T. Mileham'and. Clabourn Ake. The writ was not served' upon Ake, and the cause was discontinued as to him.

Writ of error to the circuit court of Pulaski county. This was .an action of debt, by Thomas Thorn against Jacob Delany and Phillip Pennywit, on a bail bond, taken under the act for the benefit of insolvent debtors, (Rev. Stat. chap. 79, sec. 5,) determined in the Pulaski circuit court, at the May term, 1843, before the Hon. J. J. Clendenin, judge.

ArTEAL from Hempstead Circuit Court. This was an action of debt brought in the coart below bj James H. Walker, for the ase of Júchalas T. Perkins, against Thomas Gamblin, Abner Moren, and William McAiae, on a writing obligatory for the ■sum of one hundred and thirty dollars. After a motion to quash the writ, the defendants below craved oyer of the writing declared on, and on oyer it appeared that there was an endorsement on the writing, assigning the same to JSr. T. Perkins.

This was an action of debt commenced in the court below by Gage against Melton, by a declaration in the usual form, upon an instrument in writing, described in the declaration as a promissory note, but being in reality a writing obligatory, executed to him by Melton on the 12th of October, 1835, due December 25tb, 1835, for $208.

Writ of error to the circuit court of Pulaski county. Tins was an action of debt, upon a judgment of the circuit court of Christian county, Ky., brought by Bell and Graham against Charles Caldwell, determined in the circuit court of Pulaski, at the September term, 1841, before the Hon. S. H. Hempstead, special judge.

AppbaR from Cranford Circuit Court. This was aa action of detinue, brought, as the parties were described in the declaration by “ Arthur S-Jicks, administrator ése. of John Phillips, deceased, against “ Richard C. £>. Brown, executor of the last will and testament of Thomas Phillips, deceased,” for a mulatto woman slave. The defendant pleaded two picas, non aciinci, and the statute of limitations.

This was an action of debt on the official bond of the sheriff of Nell county, determined in the Yell circuit court, at the February term, 1844,- before the Hon. E. C. S. Brown, judge. The suit was brought (25th August, 1842,) by Joseph Gibson, in the name of the State for his use, against T.-P. Sadler, the-sheriff and. principal in the bond, and A. S. Heck, et al., his securities.

Writ of error to the circuit court of Saline county. This was an action of debt, on a delivery bond, by James Pogue,-for the use of Robert Calvert, against Wm. S. Lockert, and Johnson J. Joyner, determined in the circuit court of Saline county, at the August term, 1844, before the Hon. J. J. Clendenin, judge.

This was an action of detinue for a clave, brought in the court below by Arthur Hicks, administrator, &c. of John Phillips, dec’d, against Daniel Phillips. The declaration was in the common form, with one count. The pleadings and issues were the same as in the case of Hicks, adm’r of Phillips in the court below against Brown, executor of Phillips, reported at page 232.

Writ of error to the circuit court of Pulaski county. Tins was a suit, by judicial garnishment, determined in the circuit court of Pulaski county, at the May term, 1845, before judge Clendenin.

Jackson Circuit Court. This was an action of debt commenced in the court below by the appellant against the appellees, to May Term, 1838. At the return term the appellees moved to dismiss the suit, because the plaintilf was a non-resident of tlic State at the time of commencing the suit, and no bond for costs was filed at or before the commencement of the suit.

Writ of error to the circuit court of Washington county. This was an action of debt, by the Bank of the State of Arkansas against Me Connell and Robinson, determined in the circuit court of Washington county, at the June term, 1845, before the Hon, S. G. Sneed, one of the'circuit judges. The pleadings below are sufficiently stated in the opinion of this court,. The question raised by the assignment, of errors is, was this a good plea1? We insist that it is.

This was an action of debt brought to March term, 1833, .in the court below, by the plaintiff in error against the defendant in error. The declaration demanded the sum of $ISQ 40 cts., and counted upon three writings obligatory, one for $44 25, one for $12 14, and the other for $66 25.

Trespass on the case, determined, in Oct. 1844, before the Hon. Tiros. Johnson, then circuit judge. Judgment below for Long, and appeal by Wells. The clerk of the court below failed to authenticate the transcript under the seal of the court.

- Tins was an indictment against John M. Hensley under the 2d sec. I4Sth chap. Rev. Stat., p. 743, determined in the circuit court of Searcy county, at the June term, 1844,- before the Hon.-J. M. Hoge, judge.

This'was an' action of debt, by petition, brought by the appellant against the appellee, and determined in the circuit court of Carroll county, at the May term, 1845, before the Hon. S. G. Sneed, judge.

The same points decided as in the caso of «íleans vs. Cromwell and Outhrey, |>age 247 Palmer and Southmayd, merchants and partners, complained of Jlshley and Ringo, partners in the practice of law, in the court below, ■“of a plea of trespass on the case.” The declaration contained several counts for failure to collect demands entrusted to the defendants, as attorneys, each concluding with the form of words commonly used in assumpsit, and a breach in assumpsit, followed by a…

Indictment for an assault and battery.' Denton, the defendant,! pleaded not guilty, and was regularly tried and acquitted by the jury. It appears from a bill of exceptions, taken by the State, that,, before the jury retired, the attorney for the State asked the court to give them certain instructions, which the court refused, and he-excepted. The State appealed.

Writ of error to the circuit court of Washington county.- This was an action of replevin, by Onesimus Evans against Charles F* Town, determined in the circuit court of Washington county, at the May term, 1844, before the-Hon. J. M. Hoge, judge-' The action was for the recovery of a printing press, types, &c., which the plaintiff alleged, in his declaration, the defendant took and detained from him.

Writ of error to the circuit court of Independence county. Actios of debt, by Dickerson against Morrison. The case was first determined, on demurrer to the declaration, at the August term of the Independence circuit court, 1843, and the judgment, then rendered, reversed on appeal. See Dickerson vs. Morrison, 5 Ark. Rep. 316. It was again determined at the August term, 1844, before the Hon. Thomas Johnson, then one of the circuit judges.

This was a motion, in the case of Lewis S. Tweedy vs. Benjamin Murphy, in error to Conway Circuit Court, for a rule against the clerk of that court.

Eeror to Crawford Circuit Court. Assumpsit, by defendants in error against plaintiff in error; Writ' issued January 26, 1837, returnable to June term, 1837, and served* February 8, 1838. Return signed D. W. Bunch, Dep’y Sh’ff, for Jesse Miller, Sh’ff C. C. Ark. State.” Judgment by default at June term, 1837, and writ of enquiry to next term, which was executed, and final judgment rendered, January 27, 1838.

Writ of error to the circuit court of Pulaski county. This was an action of debt upon the official bónd of a sheriff,' determined in the circuit court of Pulaski county, at the May term,-1844, before the Hon. J. C. P. Tollisoh, special judge.

<p>PetitioN for Mandamus to Judge of Johnson County Court*</p>

<p>Appeal from Conway Circuit Court.</p>

Debt, in the court below, against the plaintiff in error, on a writing obligatory for one hundred dollars. The declaration demanded'for principal and interest. Motion to dismiss for want of jurisdiction overruled; and demurrer sustained to a plea to the jurisdiction. Has the circuit court jurisdiction of a writing obligatory for the sum of one hundred dollars? It is insisted by the plaintiff in error, that the court should have sustained his motion to dismiss the suit.

Writ of error to the circuit court of Pulaslci county. This was an action of covenant, upon an indenture of apprenticeship, brought by Wm. E. Woodruff against John D. Logan, and determined in the circuit court of Pulaski county, at the Nov, term, 1843, before the Hon. J. J. Clendenin, judge.

Francis county. This was an action of replevin, by Payne against Bruton, determined in the circuit court of St. Francis county, at the March term, 1845, before the Pión. J. T. Jones, judge. The suit was commenced 17th November, 1843» for the recovery of two slaves, Yiolet and Nathan, alleged to be the property of plaintiiF.

This was a motion made by the attorney for the state, for a rule against Chester Ashley, Roswell Beebe, Elijah A. More, Richard C. Byrd, James DeBaun, William W. Stevenson, and James L. Dawson, to show cause why an information in the nature of a writ of quo war-ranto should not be filed in this court against them, for intruding into, and holding without grant or wairant, the office of directors of the Principal Bank of the Real Estate Bank of this State.

Petition for Supersedeas. The fee bill, referred to in the opinion, of the court, was as follows : if In Clark circuit court — John McLain & NoahH. Badgett part? ners under the style of McLain & Badgett vs. James Dorris — Mc-Lain & Badgett to Willis S. Smith, Dr.” — then follows a list of , charges made up of various items, such as. for “ executing capias $1 00, taking bail bond 75cts, calling action líájcts, returning execution, &c., amounting in all to $18 50.

This was an action of debt upon the official, bond of the honsta-ble of the city of Little Rock, brought by the Mayor and Aldermen, against Bullock the principal in the bond, and Field and Jeffries securities, determined in.the Pulaski circuit court, before judge Clendenin. The declaration assigned as a breach of the bond, that Bullock had failed to pay over money, which he had collected for the use of the city.

Writ of error to the circuit court of Independence county. This was an action of debt, by Wm. F. Denton against J. J. Waddell, Alexander Robinson, and William Robinson, determined in the circuit court of Independence county, at ihe August term, 1844, before the Hon. Thomas Johnson, then one of the circuit judges.

Writ of error to the circuit court of Pulaski county. Action of assumpsit, by Watkins against Hawkins. A bill or draft payable in Arkansas bank notes, assigned to Watkins, and accepted by Hawkins, was made the basis of the original action.

<p>(See the case immediately preceding this.)</p> <p>Appeal from the circuit court of Independence county.</p>

Writ of error to the circuit court of Pulaski county. Action of debt, upon the official bond of the cashier of the Bank of the State of Arkansas, brought by the bank against John H. Crease, principal in the bond, and his securities, determined in the Pulaski circuit court, at the Nov. terna, 1843, before the Hon. J. J. CxENDENIN, judge.

This was amotion for .possession, by a purchaser of land at sheriffs sale, determined in the circuit court of Pulaski county, at the April term, 1845, before the Hon. J. J. Clenbenin, judge. ' Benj.

Bill in chancery, to enjoin a judgment at law, by John B. Johnston and Thomas Johnston against John J. Morse, and Isaac Alexander, determined in the circuit court of Yell county, chancery side, at the August term, 1844, before the Hon. R. C. S. Bhown, judge.

This was a bill in chancery, to injoin a -judgment at law, filed by William Cummins against Harrell and Scott, determined in the Pulaski circuit court, at the November term, 1843, before the Hon. J. J. Chgndenin, judge. The bill was filed in August, 1839, after which Cummins departed this life, and the cause progressed in the name of his administrator, E. Cummins, to final decree. The judgment sought to be injoined, was obtained against Wm.

D. 1831, upon an instrument of writing under seal, by which Logan conveyed to Moulder a claim to three hundred and twenty acres of land, commonly called a Lovely claim, of one Peler Mercer, and bound himself in the following words: “And sa^ Logan hereby warrants and defends said claim to be good agreeably to said act of Congress; and the said -Logan farther*binds himself to make such other and further proofs as may be .necessary to establish the aforesaid claim*” The breach…

This was a bill in chancery, to injoin a judgment at law, by Samuél Ii. Held: not on the ground that it was so originally, but upon the ground of the adoption by courts of law, of the principles acted on by courts of equity in such cases. “The liabilities of sureties are governed by principles which have been long settled in equity, -and are now adopted in courts of law.

The facts of this case are fully stated in the opinion of the court. The plaintiff in error conceives that the court below erred in sustaining the demurrer. Upon argument of the demurrer, but two grounds were, assumed by the defendant, nor does the plaintiff anticipate that other grounds will be taken in this court.

<p>Same points decided as in the State vs. Ashley et at; ante.</p>

<p>Error to Pulaski Circuit CourU</p>

<p>In action of debt on writing obligatory, evidence that the plaintiff had borrowed a wagon of the defendant, which was to have been returned in four or five days, is not admissible to sustain a plea of payment.</p>

This was an action of trespass in the circuit court of Jaclrson county, by Hatch against Dyer.

The facts of this case are so fully stated in the opinion of the court, that it is unnecessary here to repeat them, and tbe reader, therefore, is referred to the opinion. The plaintiff contends, 1st. That a plea in abatement must be filed within the four first 'days of the return term, or it is a nullity. In this case it was filed on the tenth day. Arch. Pr. p. 1, et seq. 1 ch. p. 489,490. . iindly.

On. the 26th of December, 1844, Berryman Jones sued Thomas Latham, before a justice of the peace of Randolph county, upon the following instrument: “$42 90: One day after date I promise to pay David Larkin forty-two dollars and ninety cents for two jepgments in Wm. B, Hunter’s office, for value received: October 12th, 1840. THOMAS LATHAM, [seal.] WM.

Writ pf error to the circuit court of Washington county. This was a judgment upon a forfeited delivery bond, obtained by Brodie against McKisick, at the November term of the circuit court of Washington co.unty, 1842, before the Hon. J. M. Hoge, .one .of the circuit judges. The plainüfl' filed a declaration, and then, on motion, obtained a judgment by default, the court assessing the damages.

This was an action of covenant brought by the defendant in error against the plaintiff in error upon a lost .bond, stated in the declaration to be lost by time or accident; and profert was .made of a record copy thereof.

Writ of error to the circuit court of Union coutity. This was an action of debt upon a promissory note, brought by Mathis for the use of Van Hook & Carr against Bird, and determined before the Hon. John Field, then one of the circuit judges, at the May term of the circuit court of Union county, 1844. At the return term, November, 1843, Bird filed a plea in abatement of the writ on the ground of variance between it and the declaration.

Writ of error to the circuit court of Johnson county. This was an action of debt by Johnson against Patrick, Adams and Floyd, determined in the circuit court of Johnson county, at the March term, 1845, before judge Brown.

Writ of error to the circuit court of Jefferson county. This was an action of assumpsit by Spears against Taylor, determined in the circuit court of Jefferson county, at the April term, 1845, before'judge Sutton. The nature of the action, the pleadings, testimony, and instructions given the jury by the court, sufficiently appear in the opinion of this court.

This suit was brought by Bridges against Warner beforq a justice of the peace, upon an account. Bridges obtained judgment» and Warner appealed to the circuit court of Randolph county. The case was determined before the Hon. Wm. Conway B., at the April term, 1845. « It was submitted to a jury, and there was a verdict and judgment for Bridges.

EkRor to Johnson Circuit Court. This was an action commenced by the plaintiff above, by writ of •attachment. The .affidavit on which writ issued was that the defendant “is justly indebted to the plaintiff in the sum of three hundred ■and seventy-six dollars £0-100, and that he verily believes that the said Martin is about to remove his effects out of this State.” The writ was directed to the Sheriff, and returned served by the Coroner.

Writ of error to the circuit court of Benton county. The writ of error commanded the clerk of the court below to' Send up to this court the record and proceedings in a case wherein Warren Wight was plaintiff and James A. Jackson, defendant.- The clerk sent up the transcript of a case commenced by Warren Wight against James A. Jackson' before a justice of the peace, in which Wight recovered judgment against Jackson; and he appealed to the circuit court of Benton, giving James…

Writ of error to the circuit court of Crawford county. Robert Harris and wife, Margaret, brought suit in the probate court of Crawford county against Josiah Foster as administrator of Henry S. Foster deceased, upon an account for $176 27 for boarding, clothing and tuition of the minor heirs of defendant’s intestate after his death.

This is a bill in chancery for the specific execution of a parol agreement in relation to the sale of land.

Writ of error to the circuit court of Pulaski county. Held: p, 441, that a letter from the Josephs to the garnishee which-was prior to the attachment, constituted a valid transfer or assignment of the assets claimed,' and that as garnishee Levy had a right to claim and hold under that against the attachment. ' By reference to Aiken’s Digest it will be perceived that our law of garnishment…

Writ of error to the circuit court of Hempstead This was an action of assumpsit by Benson, against Hyde, determined in the circuit court of Hempstead county in November, 1843, before the Hon. R. W. Jonson, special judge. The action was founded upon Hyde’s endorsements of promissory notes to Benson. He pleaded non-assumpsit, upon which issue was taken, the case submitted' to the court sitting as a jury, and finding and judgment for Benson.

Writ of error to the cirvuit court of Johnson county. This was an action of debt by Whiting & Slark against Alston & Patrick» determined in the circuit court of Johnson county, in March, 1845, before the Hon. R. C. S. Browm, judge.

Writ of error to the circuit court of Pulaski county. Tiiis was an action of debt, by John. Held: and very properly as we think, in that case that the plaintiff must show in himself a legal title before ho can sue, and that he cannot malte that showing but by showing the .death of the payee and the subsequent commission to the plaintiff, by competent authority, the execution of the last will or grant of administration, &c.…

This was an action of debt by Burk against Dickson, upon a writing obligatory, determined in the circuit court of Benton county in May, 1845, before Sweed, judge.

Writ of erren' to the circuit court of Benton county. This was an action of debt, by attachment, brought by Wright against Veeder, and determined in the circuit court of Benton county, at the May term, 1845, before the Hon. S. G. Sneed,. judge.

Petition for certiorari,. At the January term of this court, 1846, A. J. Hays hied a petition for certiorari, in substance as follows: “On 11th April, 1845, one Louisa Hogins, administratrix of A. D. Hogins, commenced suit against petitioner before John James a justice of the peace of Yell county.

Writ of error to the circuit court of Pulaski county. Petition for mandamus, determined in the Pulaski circuit court, at the April term, 1845, before Clendenin, judge. Lockert filed for .allowance in the probate court of Pulaski county, an account against Beebe as administrator of Burton, the court allowed the claim, Beebe excepted, and prayed an appeal to the circuit court.

<p>Writ of errar to the circuit court of Washington county.</p>

Writ of error to the circuit court of Pulaski county. The facts are stated sufficiently in the opinion of the court. A writ of error will only lie on a final judgment or on an award in the nature of a judgment, given in a court of record, acting according to the course of the common law. In the matter of Negus. 10 Wend. 34. It will not lie to .decisions on interlocutory or collateral points; as to a refusal to set aside an execution. Brookes vs. Hunt, 17 J. R. 84.

<p>E««oa to Pulaski Circuit Court.</p>

Writ of error to the circuit court of Washington county. The case is sufficiently stated in the opinion of the court.- The jury are made, by law, the judges of the facts. It is their peculiar province to judge of the credit to be given to the statements of witnesses, and to determine upon the weight and bearing of facts deposed by them; and the courts will not, therefore, set aside their verdicts unless they are manifestly and palpably wrong.

Appeal front the circuit court of Benton county. This was an action of debt by Gatvin, Carson & Co., against tCox & Nelly., determined in the Benton circuit court. Judgment was rendered, by default, against defendants, and they brought the .case to this court, and reversed it on account of defective service ,of the writ. See 5 Ark. R. 664. At the May term, 1845, the mandate of the supreme court was filed, and the case again determined before Sneed, judge.

This was an action of detinue, brought by Alfred Edwan Martha his wife, late Martha Robbins, and John R. Robbii William Robbins, infants by their next friend Polly Robbins, a and legal representatives of William Robbins, deceased, against Danley, for a slave. The defendant below pleaded non detinet, am actio non inf am five years.

<p>Where an applicant for mandamus has a legal right and no other specific legal remedy, the writ will not be denied.</p> <p>Where one, holding a claim against an estate, presents it to the administrator, obtains his approval and allowance, files it in the office of the clerk of the probate court, and the judge refuses to class or allow it, the-remedy is by appeal to the circuit court, and not by mandamus to compel him.</p> <p>The approval of the account by the administrator, does not deprive the brobate judge of a controlling power over it,</p> <p>If the probate judge refuse an appeal from his decision, he may be compelled by mandamus to grant it.</p>

<p>As to tria!, verdict and judgment whore the defendant appears, and submits the ease to the jury without pleading.</p>

Writ of error to the circuit court of Hempstead county¿ This was an action of debt, by petition, .brought by Thruston against Campbell, and determined at the January term of the circuit court of Hempstead couiity, 1845, before the Hon. George Conway, judge. The dction was founded on a note, executed by Campbell to Fannin, and assigned to plaintiff.

Writ of error to the circtiit court of hidcpendence Bounty* , Debt, determined in Independence, before Hon. Tiios. Johnson, then circuit judge. The declaration was filed 12th April 1843, and the action was upon a bond1 for the payment of money, dated 2d February, 1837, due one month' after its date.

in August 1843, Lorenzo Gibson, surviving partner of the firms W. R. Gibson & Co. and L. &. W. R. Gibson, suing for the use of Wm. K.' Inglish, presented to the probate judge of Pulaski county for allowance against Sarah Pennington as adminisiratrix of W. D. Pennington deceased, four notes executed by her intestate to the firms which Gibson represented.

This was an action of trespass g. c. f. The plaintiff below, (Led-better,) produced on the trial two witenesses to prove the identity of the premises mentioned in the declaration, and his possession thereof.

Tins was an action of assumpsit, by Newcomer against Stayton., determined in the Phillips circuit court, at the October term, 1844,. before Jones, judge. On the 4th of October, judgment fry default was rendered against Stayton, and a writ of inquiry awarded.

W?'it of error to the circuit court of Hempstead county. This was an action of debt upon a constable’s official bond, brought by the State for the use of Brooks against Kirby, the principal in the bond, and Jett and Trimble his securities: determined in the circuit court of Hempstead county, in January, 1845, before the Hon. Geo. Conway, judge.

' Error to Johnson Circuit Court. This was an action of debt, upon a writing obligatory, brought by the plaintiff in error against the defendants in error; and a capias ad respondendum issued on 'the following affidavit, made the plaintiff to wit: “ That the action of debt that he is now about to institute, against the defendants, is founded on a real subsisting debt, and this affiant verily believes that the sum of six thousand dollars as bail, will not be more than will…

Writ of error to the circuit court of Pope county, This was an action of debt, by Smith, Hubbard & Go. against John Hickey, Gibson, and James Hickey, determined in the circuit court of Pope county, at the September term, 1843, before the Hon. R. C. S. Brown, judge. The action was founded on a writing obligatory for the payment -of money. The writ was served, by the Sheriff, upon John Hickey, Gibson, .and returned not found as to James Hickey.

Writ of error to the circuit court of Jefferson county. This was an action of debt, by attachment, brought by Charlotte Barden, assignee of Absalom Fowler, against Mary C.- Shields, and determined in the circuit court oí JeAsr on comity, at the April term 1845, before the Hon. Wijlmasi H. Suva-ron, Judge. The action was founded an a writing obligatory, for the payment of money, executed by the defendant to Fowler, and assigned by him to the plaintiff.

Writ of error to the circuit court of Pulaski county. This was a suit by David Durr against Isaac J. Howard, for money had and received by the defendant for the plaintiff’s use, commenced before a Justice of the Peace of Pulaski county.

Writ of error to the circuit court of Crawford county. This was an action of assumpsit, by Sandford and George Turner, partners, against William Miller, determined in the Crawford circuit court, at the February term, 1845, before Brown, judge. The plaintiffs declared upon a promissory note, executed to them by ¡the defendant, on the 15th October, 1844, for $289 29, payable, one day after its date, and bearing interest upon its face at the rate often per centum per annum.

f. brought by Bushnell in the court below, for entering upon his close, and cutting trees, splitting them into cord wood, selling and 'conveying away cord wood, and keeping a woodyard there.

Writ of error to the circuit court of Pulaski county. Thin was an action of assumpsit, by attachment, brought by Kellogg & Kenneth against Miller and Rogers, and determined in the Pulaski circuit court at the May term 1844, before Clendenin, Judge. The declaration charged the defendants, as owners of the steam boat, Gov. Yell, for supplies &c. furnished the boat by plaintiffs.

D. 1833: which confirmation was asked under the provisions of chapter CXL1X of the Revised Statutes. To this petition the plaintiff in error filed her answer, setting Up the facts that she was in possession of said land, and that the said Auditor’s sale was utterly void, and conveyed no .title to the defendant in error for reasons therein stated.

Writ of error to the circuit' court of Hempstead county. This was an action of debt Brought by Benjamin J. Harris against Hanson R. Lungren, determed in the circuit court of Hempstead county, in January 1845, before the Hon. George, Conway, judge. The action was founded uporna bond for the payment of money.

Writ of error to the circuit court of Johnson county. This was a suit commenced before a justice of the peace of Johnson county, by Wilson &Co. against Patterson, in January 1843» The justice gave judgment for the plaintiffs, and the defendant appealed to the circuit. court, where the case was determined, in January 1845, before Browst, Judge.

This was a proceeding in the county court of the county of Crittenden, determined in October 1841, before the Hon'. Atiiony Menesinger and William B. Hay, Judges of that court.

This was an action of forcible entry and detanier. The suit was originally brought before two Justices, of the Peace for the recovery of the possession of Lots No. 1 and 2, in block or square 31, in the City of Little Rock; wherein Thomas Thorn was plaintiff and John H. Reed, defendant.

Writ of error lo the circuit court of Crauford county. This was an action of debt, by attachment, 'brought by Joseph Riddle, assignee of Absalom J. Meredith, against Thomas F. Chea-dle, and determined in the Crawford circuit court, in July, 1844, before Brown, Judge.

<p>Writ of error to the circuit court of Pulaski county..</p> <p>This was an action of debt by William McKee against Jacob B. Couch, determined in the circuit'court of Pulaski county in June 1845, before the Plow. J. J. ClendeNin, judge.</p> <p>The plaintiff declared on a promissory note, made by the defendant'to McKee, Young & Co. for $461,60, dated 29th July 1839, due twelve months after its date, and assigned to the plaintiff by the payees.</p> <p>The declaration was filed, and writ issued on the 1st May 1844-</p> <p>The defendant filed two pleas: the first, that the cause of action did not accrue to the plaintiff at any time within three years next before the commencement of the suit: the second failure of consideration, in substance as follows:</p> <p>“And for a further plea &c., the defendant says actio non, because he says that on the 8th day of August 1839, at Memphis Tennessee, to wit &c., this defendant re-sold to Lawson B. McKee a negro slave, named Abram, for $1100, which slave this defendant had before that bought of said Lawson B., and one James Erwin, for the like sum of $1100 therefor paid to them by this defendant; and it was then and there agreed by and between the said Lawson B. and this defendant, that said Lawson B. should transfer to this defendant, a note of Dixon, Strong & Co. to McKee, Young & Co., of which latter firm the said Lawson B. was a member, for the sum of $1561,60, dated Memphis 29th January, 1839, and to become duo eighteen months after date thereof, in payment for said negro; and that this defendant-should execute his note to McKee, Young &• Co. for the sum of $461,60 to become due at twelve months from the 29th day of July 1839, being the overplus or difference between the sum of $1100, the stipulated price of said negro, and the amount of said note of Dixon, Strong & Co: which agreement was then and there carried into effect, and this defendant then and there received from said Lawson B. the assignment and transfer of said McKee, Young & Co., of which firm the said Lawson B. was a member, of said note of Dixon, Strong & Co.; and at the same time sold and delivered to said Lawson B. the said negro, Abram, and executed to said McKee, Young & Co. his note for the said sum of $461,60 to become due as aforesaid, and which is the same note mentioned in said declaration and no other, in pursuance of said agreement, and for and in consideration of the said assignment and transfer of said McKee, Young & Co. to this defendant of said note of Dixon, Strong & Co., and upon no other consideration whatever: and defendant further says, that when the said note of Dixon, Strong & Co. became due, according to the tenor and effect thereof, the same was not in fact due and collectable by the exercise of due legal diligence, or otherwise, by this defendant, and the said firm of McKee, Young & Co., and the persons composing the same, had before then become and continued to be and still are in-' solvent and irresponsible to this defendant, and the amount thereof became and is wholly and utterly lost to this defendant: and so this defendant says that there is an existing and total failure of the consideration of and upon which said note, in said declaration mentioned, was given and executed; and this defendant is ready to verify: wherefore” &c, — usual conclusion. The plea was -verified by affidavit. The plaintiff’s counsel moved the court to strike out the first plea, upon the ground that it was no answer to the declaration; and demurred to the second plea, assigning the following causes of demurrer:</p> <p>“1st, said plea shows no failure of consideration: 2d, it ‘shows no total failure of consideration: 3d, it shows no liability of said McKee, Young & Co. on the said assignment of said note of Dixon, Strong & Co-, to said defendant: and 4th said plea shows that the assignment of said note of Dixon, Strong & Co. to said defendant, by McKee, Young & Co. was the consideration for the note sued on, which is, in law, a sufficient consideration. ></p> <p>The court sustained the motion to strike out the first plea, to which- the defendant excepted, and took a bill of exceptions setting ■out the plea &c. The court also sustained the demurrer to the second .plea, and, the defendant declining to plead further, rendered final j udgment for the plaintiff.</p> <p>Defendant brought error.</p> <p>The effect of a statute of limitation upon causes of action existing at the time of its passage, is the same as upon those accruing on the day it took effect. The people vs. The Supervisors of Columbia, 10 Wend, 363. It is evident from the record that Me Kee’s action was barred at the time of the passage of the act of ’44 —if so, did that act revive it'i When a law, that merely affects or changes the remedy upon, and does not impair the obligation of, contracts, is expressly made retrospective, courts will give it that operation; but unless a contrary intention is clearly evinced it is a universal rule to construe such statutes so as to make them operate prospectively. The essence of a new rule is, that it forms a law for future cases. Sayre vs. Winser, 8 Wend. 663; Dash vs. Van Kleeck 7. J. R. 477.</p> <p>We are ready to concede that statutes of limitation only affect the remedy upon-contracts, and that the time limited for instituting suits may be shortened or extended, at the will of the legislature, so that an existing remedy is not entirely cut off; and indeed we may admit that the legislature possesses the constitutional power to, and could have revived the right of action in this case, but what we deny is, that it has done so.</p> <p>The cases which decide that a statute will not be construed to act retrospectively unless such is clearly the intention of the legislature, necessarily apply lo statutes of limitation, because the principle can only obtain in construing statutes affecting the remedy,— a statute which operated upon the obligation, on account of the constitutional impediment, could not, by the use of any language evincing such an intention on the part of the legislature, be made retrospective, — ^consequently there would be no necessity for such a rule in the construction of statutes'of the latter description. It is evident from the language employed in the 1st section (the one involved in this case) of the act of December 14th 1844, that it was the intention of the legislature to make it prospective. The 3d section is made to act retrospectively and the claims of non residents which were then barred are thereb}r expressly revived; and if it was the intention to revive the 'class of claims included in the 1st section, why was not the same language used in the 1st as in the 3d section, or why was it necessary expressly to make the 3d section retrospective, if th.e language employed in the 1st implied, or had the effect?</p> <p>So great an encroachment upon natural justice, are laws, which even operate upon the remedy retrospectively, always considered, that it has become a fixed and universal rule never to give such statutes a retroactive operation, unless such an intention on the part of the legislature, is positively expressed: Whitman vs. Hopgood 10 Mass. Rep. 437; Inhabitants of Somerset vs. Inhabitants of Digh-ton 10 Mass. Rep. 383; Colder vs. Bull 2 Dallas, 386.</p> <p>From the fact thatit is contrary to the policy of statutes of limitation, and subversive of the end to be attained thereby, to make changes in them, there have been but few adjudications upon the precise point in this case — But even if there were no adjudged cases upon the question, there can be no difficulty in ariving at a correct conclusion upon principle, if the following propositions are true, viz: 1st, that the first section of this act is not expressly made retrospective, and, 2d that unless such a statute is expressly so made, courts will not give it a retrospective operation.</p> <p>In the case of 'Taylor vs. Henderson adtn’r. of Peck, 2 Devereux Rep. 372, it was held that actions barred will not bo revived or in any manner affected by the passage of anew statute of limitations, So in Biglows Exr’s. vs. Biglows adm’r. 6 Ohio Rep. 97, and in Davis vs. Minor et nx., 1 Howard’s Miss. Rep. 183 ihe same principle was ruled. In the last case the high court of appeals- in Miss-, carry the principle to much greater length than we contend for in this; in that case the court not only hold that a subsequent act will not be construed to revive a cause of action barred by the old statute unless it is so expressed, but even go so far as to deny the power of the legislature, by express statute, to revive a cause of action once barred,</p> <p>In this case we admit that the legislature could have revived the right of action, but deny that it has done so.</p> <p>The construction we contend for was placed upon a statute, in principle, similar to this, in Penn: vide Eakin et al. vs. ■Raub et al. 12 Serg. & Rawle p. 340:</p> <p>Statutes of limitation are now more thair in former times, liberally construed in favor of defendants. A plea of the statute instead of being viewed in an unfavorable light, as an unjust and discreditable defence, should receive such support from courts of justice,- as would make that class of Statutes what they were intended to be, emphatically statutes of -repose — vide Bell vs. Morrison et al. 1. Peters Rep. 357 and cases there cited.</p> <p>The said defendant, McKee, by his attorney presents for the consideration of the court the points and authorities following, viz:</p> <p>1. That every right, whether it be a right of action or of'defences must be a subsisting legal right, invested in the party asserting it, at the period of the adjudication thereof; otherwise, the adjudica-1 tion thereupon must be against the party asserting such right.- The Irresistible, 5 Cond. Rep. 343, United States vs. Passmore, 4 Dali. 371: Teaton et al. vs United States, 2 Cond. Rep. 256, United State's 'vs. the Helen, ib. 346. The Rachel vs. United States, ib. 38S', United States vs. Preston, Attorney General, 3 Pet. Rep. 57; Gray et al. vs. Real Estate Bank, 5 Ark. Rep. 93.</p> <p>2. That no person can acquire a vested right in any particular mode of proceeding prescribed by a general law, so as to entitle him to use the same in the assertion of any supposed, right -whether of actio/i or defence, after such law has been repealed, or otherwise ceased to be the rule either as it regards the right asserted, or the mode and time of asserting it. This principle appears to the defendant to be well established by the cases cited abve.</p> <p>3. Statutes of limitation affect the remedy alone; do not affect any right protected either by the constitution of the United States, or this state. Therefore no right depending upon them can become vested in any person. But. the legislature may at will renew, extend or contract the period as well in respect to contracts and rights of action pre-existing, as to such as 'may be made, or arise subsequently: and the term prescribed at the day and place of adjudication always furnishes the rule by which' the right of the parties in this particular must be ascertained and determined. Bank of the United States vs. Donnally, 8 Peters 361. McCluny vs. Silliman, 3 Peters 270. Colder et ux. vs. Bull ct ux. 1 Cond. Rep. 172. Commonwealth'vs. Me Cowan 4 Bibb 62. McElmoyle vs. Cohen. 13 Peters 312.</p> <p>4. The 1st plea (the plea of the statute of limitation of 3 years was interposed on the supposition that the 6th sec. of the 91s/ ch. Rev. St. Ark. governed the remedy in this particular instead of the 1st Sec. of the statute of Deer. 1844, session acts 24) was properly stricken from the records of the case, because it set up as a bar to the action the time prescribed by the former, instead of that prescribed by the latter statute, which was in operation both when the plea was pleaded and the adjudication thereupon made, and furnished the rule by which the remedy in this particular must be • governed, and the right of the parties determined.</p> <p>5. The period of limitation prescribed by the statute of 1844 for the institution of actions on promissory notes, being' 5 years from the day the cause of action accrued, and that prescribed by the statute of March 3, 183S, being 3 years, both cannot operate at the same time, and therefore the former statute is by necessary implication superseded and repealed by the latter statute.</p> <p>6. Two periods of limitation in respect to the same right of action cannot co-exist; and the clear and palpable design of the first part of the 1st Sec. of the statute of 1844, being to regulate the remedy upon all promissory notes and other instruments in writing not under seal, and prescribe the period within which the remedy upon sach'liabilities may and must be prosecuted, there can be no other rule in regard thereto beside that prescribed by said statute; nor would any interpretation thereof restricting this rule to a por, tion only of such contracts and applying a different rule to another portion, be consistent with the manifest design of the law, or any known precedent, but repugnant to the former and without the authority of the latter — The plea was therefore inapplicable in the case and rightly excluded from it as a defence now unknown to the latter in such case.</p> <p>7, The act of 1844 establishes a rule applicable to all cases of unsealed contracts; and the essence of a new rule is, that all cases within it subsequently adjudged must be determined by it. It applies to demands existing at the time of its going'into operation and regards them as rights of action accruing on that day; and they may be sued upon at any time within the period prescribed by the new rule. The People vs. Supervisors of Columbia,, 10 Wend. 363. Baldwin vs. Cross, 5 Ark. Rep. 510. Dickerson vs, Morrison, decided by this court at the present term.</p> <p>8. The second pleadiscloses a case of mixed consideration, where the plaintiff in error for his negro sold to Lawson B. McKee (not the defendant, nor in any-wise connected with him as respects the note or negro in question,) and his note (the note now in suit) pay, able to the defendant in error, agreed to receive and did receive of said L. B. McKee, a note of Dixon, Strong & Co. payable to McKee, Young & Co. transferred by the lattpr to the plaintiff ip error, for $1563 60, dated the 29th January 1839 payable 18 months months after date. The transaction therefor was one of barter, the plaintiff giving his negro at the price of $1100 and his promissory note for $461,60 payable at a future day for the transfer of the note of Dixon, Strong & Co. payable also at a future day without any express guarantee of the solvency of any of the parties by either McKee or Couch. The contract therefore was not executory, but fully executed ip all its parts, so soon as the plaiip tiff delivered the negro and his note aforesaid to L. B. McKee, and said L. B. McKee, for the firm of McKee, Young & Co. endorsed, transferred and delivered the note of Dixon, Strong & Co. to Couch; all of which was done at the time the contract was completed. The full consideration therefore for the contract on each side was then received by the respective contracting parties —it was a chancing bargain, in which each party took upon himself the entire risk in respect to the thing received: the demurrer thereto was therefore rightly sustained, the plea not showing any failure of consideration ; nor is it a good plea of non est factum, because it admits the execution and delivery of the note, notwithstanding it claims that the transaction was of a different date from that of the note: and that the note was to have been given to Me Kee, Young & Co. showing by implication that by mistake it bears an improper date and is payable to a wrong party.</p>

<p>Under the Territorial law, the prayer and grant of an appeal from the decision of a justice to the Circuit Court, conferred jurisdiction on the Circuit Court-; and the jurisdiction did not depend upon the giving of hail in appeal, or the sufficiency of the bail given.</p> <p>Where no special bail was given before the justice, or where such bail, being insufficient, is not perfected in the Circuit Court, the appeal will be dismissed, but not on the ground of want of jurisdiction.</p> <p>'This however is an objection which it rests with the appellee to make, and if he goes to trial in the Circuit Court, or takes judgment by default without making, he waives it, as expressly as if he had placed his waiver on the record.</p> <p>■If he does so waive it, the appellant cannot assign for error here that there was no special bail, and that the Circuit Court had no jurisdiction. He -cannot take advantage of his own wrong.</p> <p>Where a party appeals from a judgment of a justice, and afterwards brings his writ of error, he cannot assign for error any defect in the justice’s writ, or the service thereof; or his non-appearance before the justice. By appealing, he makes himself1 a party to the proceedings, and must rest on such defence as he may lawfully-make upon the merits.</p> <p>And if the appellant fails to file in the Circuit Court a transcript of the justice’s proceedings, or take steps to cause it to be filed, it is his own fault.</p> <p>An order to set aside a final judgment by default, made at a term subsequent to the one at which such judgment is rendered, is wholly illegal; and no fact stated in such an order can be noticed in this court.</p> <p>•If it is stated in such an order, that no transcript of the justices’ proceedings was filed in the Circuit Court; and if a transcript comes up to this court, though not certified by any authorized officer, but which is referred to in the assignment of errors, and not denied to be a correct transcript, this court will presume that such transcript was on file in the court below.</p> <p>Where there were two defendants in the justice’s court,and one only appealed, and judgment in the Circuit Court was rendered against “ t'he said defendant,"’ it will be considered as rendered against the appellant alone.</p>

Writ of errar to the circuit court of Johnson county• Tuns was- an action of debt, determined in the Johnson circuit court, at the March term, 1845, before the Hon. R. C. S. Brown, judge.

This was an action originally commenced before a justice of the peace, and the summons commanded the constable to summon “ John Ruddell, surviving partner of John Ruddell and Aaron Gillett, partners under the style, &c. of Ruddell & -Gillett, to appear and answer unto John Moser and Barnett Mozer in an action on a parol agreement The justice gave judgment- against Ruddell for $33, and heap-pealed to the Circuit Court.

Writ of error to the circuit court of Crawford county. Replevin, for a horse, determined in the Crawford circuit court, át an adjourned term- in July, 1844, before. Brown, Judge. In addition to the statement made by the court, it i's necessary Only to add that in the declaration the plaintiff’s name was written*' límale; in the writ,' Duval, which the defendant pleaded in abatement as a variance.

This was an indictment against John P.endleton, a free negro, determined in the Cjawford circuit court at the September term 11843, before Brown, judge. The indictment was framed under the 3d section of the act of 1843, “ to prohibit the emigration and settlement of free negroes, •or free persons of color, into this state,” charging a non-compliance with its requisitions. See acts of 1842-3, page 61, — The defendant was convicted, and appealed ,to this court.

Writ of error to the circuit court of Chicot county. Tins was an action of debt, by petition, brought by James: Campbell against John S. Hawkins, and determined in the circuit-Court oí Chicot, at the May term 1845, before Stjttow,-judge. The suit was commenced 21st March, 1845, upon a promissory note executed by defendant to D. H. Abernathey, for $320, bear--ing date 9th April, 1840, due 25th December, 1840,. and assigned* by the payee to plaintiff.

Writ of Quo Warranto. On the application of the attorney for (be State, separate writs issued, on the 20th day of February, A. D. 1839, out of this court against Chester Ashley, Roswell Beebe, William W. Stevenson, E. A. More, R. C. Byrd, James De Baun, and James L. Davison. ■ The writ against Chester Ashley was in the following form: «STATE'OF ARKANSAS, Sot.

Writ of error to the circuit court of Pulaski county. This was an indictment against William Gabe alias Santa Anna for having in his possession a counterfeit bank note, determined in ■-the circuit court of Pulaski ..county, at the October term 1845, before Glendenin, Judge.

Writ of error to the circuit court of Independence county. Held: taking the law to be analagous with that in the case of a bond with .a condition, where oyer of the bond is not oyer of the condition. The principle is supposed by the court to be settled by certain authorities there referred to .which we respectfully crave leave to examine.

<p>Writ of error to the circuit court of Benton county.</p> <p>'Tins statement made by the court is sufficient.</p>

This was an action of assumpsit by Slater against Merchant',determined in the Independence circuit court, at the August term,.-1845, before the Hon. Wm. Conway B., judge. The action was upon a promissory note, executed by Merchant-to one Dickinson, and assigned by Dickinson to plaintiff.

Petition for Supersedeas. This was a petition to this court by Henry Cheatham for á su-persedeas: the facts sufficiently appear in the opinion of the court.

This was an appeal from the judgment of a justice of the peace, determined in the circuit court of Hempstead county at t the November term, 1845, before the Hon. Geokgb Conway, judge. The facts appear in the opinion of the court. Want of jurisdiction is fatal at any stage of the proceedings, and -when it is apparent from the record or shown by evidence, the court will on motion, or ex-officio, without motion, dismiss the case, as no valid judgment can be rendered.

Writ of error to the circuit court of Independence county. This case was determined in the Independence circuit court, at the August term, 1843, before the Hon. Thomas Johnson, then one of the circuit judges. The statement madej by this court is sufficient. The court erred in striking out the pleas of payment. They were good in form and substance, and pleaded in apt time according to the rules and practice of that court.

Writ of error to the circuit court of Pulaski county. This was an indictment against the plain tiff in error for passing counterfeit coin; determined in the Pulaski circuit court, at the October term, 1845, before Clendenin, judge.

Writ of error to the circuit court of Independence county. This was an action ol debt determined in the Independence circuit court, at the August term, 1844, before the Hon. Thomas Johnson, then one of the circuit judges.

Writ of error to the circuit court of Crawford county. This was an action of assumpsit, by Robinson against Clauson and Boyer,determined in the Crawford circuit court, at the August term 1845, before the Hon. R. C. S. BrowN, Judge. The facts appear in the opinion of this court. Boyer brought error.

This was an action of replevin for sundry goods, wares, and merchandise, instituted in the court below by the defendant in error against the plaintiffs in error and Robert Magness and William Me Craw, The plaintiffs in error pleaded non ccpit, and judgment by default was taken against Magness and McCraw., and a writ of inquiry awarded to assess the damages as to them. Nothing more was ever done as to Magness and McCraw.

Petition for rule to show cause, why a mandamus should not issue. This case was disposed of on the question of jurisdiction. It is therefore only necessary to state that it was a petition for a rule upon-James S. Conway, Governor of the State, to show cause why a peremptory mandamus should not be awarded against him, commanding him to issue a commission to the petitioner, Richard G. Hawkins, as Commissioner of Public Buildings.