Volume 14 — Arkansas Reports

<p>Writ of Error to Pulaski Circuit Court.</p> <p>This canse was argued at length at the July term, 1848, by</p>

This was an action of debt, commenced in February 1843, in the Johnson Circuit Court,' by the State, for the use of Wallace, against Wm. Adams, James P. Patterson, Samuel Adams, John W. Patrick and Joseph James, securities on the official bond of Abram Sinclair, as sheriff of said county. The case has been twice to this court before this. See 1 English 497, and 6 English 466.

F. W. & P. Trapnall, for the appellants. In this case there was no warranty, and to sustain the action on the ground offraud, it was incumbent on the plaintiff to show. 1st. The sale to him by the defendants, 6 Eng. 339. 2d. That there must be no variance between the consideration alleged and the one proven. Penn vs. Stewart, 6 Eng. 41. Buckman vs. Haney, id. 340. Robins vs. Otis, 1 Pick. 368.

<p>On the trial of mil tiel record to a scire facias, to revive a judgment where the court rejects the record offered in evidence by the plaintiff to prove the recovery recited in the writ, this court will presume in favor of the correctness of the decision, until the plaintiff in error will show to it the particular wherein the court below erred.</p> <p>This court cannot know what record of the original recovery may have remained in the court below, except so far as the bill of exceptions may make it a part of the record sent here.</p> <p>The omission of the plaintiff to produce a record of recovery, corresponding in date with the judgment recited in the scire facias, amounts to such a variance as would authorize the court below to reject the evidence.</p> <p>Under our statute, a scire facias to revive and continue the lien of a judgment must be issued against all of the defendants jointly, if all are living; and a-judgment in favor of one defendant on the plea of nul tiel record enures to the benefit of, and discharges the others.</p> <p>Alexander vs. Steele, 13 Arle., cited and approved.</p> <p>Where a scire facias issues against two defendants to a judgment, a plea in abatement, by one of them, that the other was not in existence when the writ issued, is good.</p> <p>The want of an affidavit to a plea in abatement, is not ground of demurrer, but the objection should be raised by motion to strike out or disregard the plea.</p>

The bond for costs being executed in the name of both partners, the legal presumption is, that both authorized or adopted its execution; and if a deed be executed by one partner, in the name of the firm, with their assent, it shall be deemed the deed of all. Story on Part., sec. 120, 121, 122, note 2. 3 Kent Com. 47-8. But it is certainly a valid bond, as to him who did sign and seal it. Rector vs. Onstott, 1 Ark. 218. 4 Mason 232 and note. Dayetal. vs. Lafferty, 4 Ark. 452.

W. H. Neely, Circuit Judge, presiding. contended that the bill does not present such a case, as a court of equity can take jurisdiction of. An injunction will not be granted against a judgment at law, upon grounds that were available at law. Bo.nl. PI, ¿yPr. 1840. 4 Hen. Sf Munf. 553. 2 J. G. R. 230. 7 Cranck 332. Blake's Gh. Pr. 334. Story's Eq., secs. 893 to 896: or because there has been a mistake in the conduct of a cause. Danl. Gh.

W. H. Feild, Circuit Judge, presiding. The lien was itself a levy on the true tract, and no other levy was necessary. Wood vs. Calvin, 5 Hill 228. And if there be a defective description of the land, or a variance between the return on the execution and the deed, it may be corrected by parol. Jackson vs. Walker, 4 Wend. 464. 1 Munf 269. Mathews vs. Thompson, 3 Hamm. 272. So if there is no return, Gates vs. Gaines, 10 Verm. 346.

The Hon. A. B. Green-wood, Circuit Judge, presiding. Before the Hon. C. C. Scott, and D. Walker, Judges, and Hon. Edwrd,Cross, Special Judge. submitted that a court of equity would permit a complainant to amend “for the furtherance of justice,” at any time before a plea is set down for final hearing, (2 Danl. Ch. Pr. 796) and for this reason the court ought to have permitted the bond for costs to be filed, as no injustice could have been done to defendants.

<p>No bond for costs is required on appeals from the Probate to the Circuit Courts: tho 3d sec. of the act of January 4th, 1849, applying to appeals from the county , courts, as decided in Biscoe vs. Maiden, 7 Eng. 765, overruling Morrow vs. Walker, 5 Eng. 569.</p>

Appeal ft orn the Circuit Court of Arkansas county in Chancery. ■ The Hon. J. C. Murray, Circuit Judge, presiding. We contend, that in this-proceeding, the court could not render a common law judgment for the debt alone, after it was shown that the property could not be reached; for where a statute gives a new special remedy, that remedy must in all things be pursued. (Jett vs. Cave Sf Schafer,. 2 Ark. 254. Denning vs. Corwin etal., 11 Wend. 647.

<p>Tlio slaves of the husband were levied upon and taken into possession by the sheriff, under a writ of execution • before the return day the husband died ; and the slaves were sold under the execution after his death : Held, That the husband was not so seized and possessed of the slaves at the time of his death, as to entitle the widow to dower in them.</p>

Writ of Error to Randolph Circuit Court. The Hon. W. H. Neely, Circuit Judge, presiding. The court ought to have permitted the amendment — the motion being in apt time, and for the furtherance of justice; and the amendment in a matter merely of form. Dig. 814, sec. 113. Brinkley vs. Mooney, 4 Eng. 448. McLarren vs. TIvurman, 3 Eng. 315.

<p>Appeal from Jefferson Circuit Court in Chancery.</p> <p>The Honi Josiaii Gould, Circuit Judge, presiding.</p>

The Hon. W. C. Scott, Circuit Judge, presiding. 1st. That John Waggoner was indebted to the appellant, and while so indebted and after suit brought, but before judgment, being in failing circumstances, conveyed all his lands and personal property to his son, Edmund P., who was a member of his family and insolvent, for the purpose of hindering and delaying his creditors ; and such conveyance was void as against creditors. Reid vs. Emery, 8 Paige 417. Edgall vs. Lowell, 4 Term.

Plon. Tuo. B. Hanly, Circuit Judge, presiding; contended that the commission allowed by the statute (Dig. cji. 4, sec. 108,) for the “ risk and trouble in attending to the settlement” of the estate of a deceased person, should be computed upon the claims composing the estate, and not upon the aggregate amount.

Hon! A. B. Greenwood, Circuit Judge, presiding! Where a sale and delivery have been induced by fraud, all that passes between the parties is null, and notwithstanding an actual delivery, the vendor .in the eye of the law, retains not merely the right of property, but a constructive possession of the goods delivered.

The Hon. W. H. Feild, Circuit Judge, presiding^ Part payment will take a note out of the statute, or form a new point from which the statute will run again ; and it may be established by proving that the holder of the note endorsed a credit thereon before the note was barred, and when it was against his interest to make such endorsement. Alston vs. State Bank, 4 Eng.

B. H. Neely, Circuit Judge, presiding. contended that there is no evidence of any payment in this- cause, except the several payments admitted, and made the following points: That James Boswell could not be the administrator of the estate and the agent of a claim against it; and if he was the agent of Cox, his admissions and statements would be no evidence against him, except when transacting his business, and then only when they form a part of the res gesla.

<p>Appeals from Independence Circuit Court.</p> <p>Hon. B. H. Neely, Circuit Judge, presiding.</p>

Writ of Error to Pulaski Circuit Court, The Hon. W! H. Feild, Circuit Judge, presiding. This case was argued and submitted at the July term 1848. This is an application to compel the sheriff to acknowledge a deed which lie had executed to the purchaser of property, sold under execution. Without such acknowledgment the rights of the purchaser are impaired, and the mandamus is the only specific remedy to compel the performance of a duty, clearly enjoined by the statute.

The Hon. Josiaii Gould, Circuit Judge, presiding. Argued and submitted at the January term, 1850. As the defendants did not appeal, no question is presented to this court as to the sufficiency of the crossbill: and the only matter for enquiry is whether a final settlement in the Probate Court can be impeached and opened by an answer without a bill.

<p>Appeal from the Circuit Court of Lafayqtte county in Chancery.</p> <p>The Hon. Josiaii Gould, Circuit Judge, presiding.</p> <p>Argued and submitted at the January term, 1850.</p>

Writ of Error to Fulton Circuit Court. The Hon. W. C. Scott, Circuit Judge, presiding. contended that the court erred in the instructions given ; and that notice to the assignor of the nonpayment of the bond assigned after due, given the da3f previous to the institution of the suit, and nearly two years after the assignment, was insufficient to charge the assignor: that notice of demand and non-payment must be given within a reasonable time, (Ruddell McGuire vs. Walker, 2…

pjrror to Pulasjci Circuit Court. Tbe Hon. W. H. Feild, Circuit Judge, presiding. This case was argued and submitted at January term, 1850. The first position assumed by us is, that the plea is insufficient. 1 st. Because it shows that the levy was upon negroes and recti' estate and avers that both together were of sufficient value. 2d, Because it is not alleged that 1he property levied upon belonged to either o.f the defendants in the execution.

<p>Several persons enter into a partnership for the erection of a dam and mill, one of them, after spending rome money and several months work, abandoned the partnership without just cause for dissatisfaction: This was a dissolution of the partnership; and though the retiring partner has no interest in the specific property, the mill having been finished by the remaining partners,-he is entitledHo a fair compensation for his work and for money advanced.</p>

The Hon. Wm. H. Feild, Circuit Judge, presiding. This action was originally brought against Samuel Thatcher, and upon his death being suggested, the present appellees, his heirs at law, were admitted as defendants. Argued and submitted at the January term, 1854.

Appeal f? om Arkansas Circuit- Court. The Hon. Josiah Gould, Circuit Judge, presiding. If the donation of 1835 was absolute to Mr. Bellette, and not controlled by the testamentary instrument concurrently executed, then, upon the death of Mr. Bellette, the negroes, subject to Mrs. Bellette’s dower interest, descended to Mrs. Notrebe, and all her interest vested in Mr. Notrebe, as her husband, by virtue of his marital rights, and passed under his will to Mrs. Bellette.

Writ of Error to Pulaski Circuit Court. The Hon. W. H. Feild, Circuit Judge, presiding. as to the admissibility of the .evidence, contended, that books kept by persons in public offices, in which they are required to record particular transactions occurring in the course of their public duties and under their personal observation, are admissible in evidence. 1 Grcenl.

<p>The plaintiff or appellant, has a right to dismiss his appeal, or writ of errror, at his own costs, where the judgment has not been suspended, or superseded : otherwise, where recognizance has been entered into in the court below, and this court having control of the cause, ought to award damages on affirmance.</p>

Writ of Error to Pulaski Circuit Court. The Hon. Wm. H. Feild, Circuit Judge, presiding. The demurrer to the plea reached back to the declaration,, which- was clearly bad, for not alleging the amount of the fee, and a demand on defendants to pay it, or notice to them to pay. The defendants were not estopped by their covenant from denying by plea that any fee was due, or that the parties did not-charge any fee in the case.

Writ of Error to Pope Circuit Court. The Hon. W. H. Feild, Circuit Judge, presiding^ The judgment must be reversed, because it does not appear that the plaintiffs in error were served with process. 1 Ark. 50. 2 Ark. 26. 1 Eng. 453. 4 Eng. 21. The truth of the breaches should have been found; and for this ’ error, the judgment must be reversed. 2 Ark. 382. 3 Eng. 477. ib. 353. 4 ib. 362. 5 ib. 258.

Writ of Error to Pope Circuit Court. The Hon. W. H. Feild, Circuit Judge, presiding. The act of the Legislature extending the time of paying the revenue into the treasury, released the securities of the sheriff, as it changed their contract. The judgment should be reversed, because the truth of the breaches was not found, nor the damages assessed by a jury. Dig. 775. 4 Eng. 363. 3 Eng. 477, 353.

Writ of Error to Washington Circuit Court. The Hon. A. B. Greenwood, Circuit Judge, presiding. The allegations in the third replication are substantially good, and that the replication is sufficient does not admit of serious question. It is not, perhaps, as full as in the case of State Bank vs. Magness, 6 Eng. 345, yet good, for in that case the court very clearly intimate that it is not necessary. State Bank vs. Sherrill, 6 Eng. 344.

Writ of Error to Clark Circuit Court. Hon. Shelton Watson, Circuit Judge, presiding. the declaration was insufficient in not averring a demand of a deed; and that one was tendered to be executed : (Phillips vs. Fielding, 2, H. Black. 123. Day. 684. 1 Lev. 44. 7 Wend. 129. 2 Edw. 78.) A jury should have been called to enquire into the truth of the breaches, and assess the damages.

Appeal ft om White Circuit Court. The Hon. W. C. Scott, Circuit Judge, presiding. The cause of action in a suit before a justice being filed and subject to the inspection of the party, need not be described in the summons; and if misdescribed it is immaterial. Dig. ch. 95, sec. 181. Levy us. Sherman, 1 Eng.-182.

<p>Writ of Error to the Circuit Court of Clark county.</p> <p>The Hon. Shelton Watson, Circuit Judge, presiding.</p>

Hon. Shelton Watson, Circuit Judge, presiding. 1st. The court below erred in compelling him to elect between the 5th and 6th .pleas; for the defendant may file as many pleas as he may think necessary for his defence, Dig. p. 807, and the two pleas were not the same, in that the one proceeds on the admission that the assignment was in full, and the other avers it to have been in blank. 2.

The Hon. John Quillin, Circuit Judge, presiding. Held: 5 Ann. Rep. ,61.

The Hon. John Quillin, Circuit Judge, presiding. This' suit was brought on the 23d day of May, 1850 was : “ That an allowance in favor of the ^ made in the court of Probate against the plaintiff, in his said character of administrator, and marshaled in class five, cannot be set-off against a demand due from the defendant to the said intestate, John O. Hightower, in his lifetime, and which remained due and unpaid at the time of his death, it appearing to the court that the…

Writ of Error to the Circuit Court of Yell county. The Hoq. Wm. H. Feild, Circuit Judge, presiding, cited sec. 24, ch. 99 Dig., as to the sufficiency of the replications.

<p>Although it is the settled law of this court, that a refusal to grant a new trial on the general ground that the verdict is contrary to law and evidence, will not he reviewed; it is otherwise where the verdict is without evidence to sustain it.</p>

<p>Error to the Circuit Court of Pulaski county.</p> <p>The Hon. W. H. Feild, Circuit Judge, presiding.</p> <p>This cause was argued and submitted at the January term, 1849.</p>

The Hon. John T. Jones, Circuit Judge, presiding. This cause was argued and submitted at the July term, 1850. The declaration does not, upon its face, show any cause of action against Holleville; because, 1st, It is not shown that payment was demanded of the maker; and this averment is absolutely necessary. Ruddett Sf McGuire vs. Walker, 2 Eng. 457. Speed vs. Brent, 1 Pick. 404. Price vs. Young, 1 Nott 4 McCord, 439.

Hon. B. H. Neely, Circuit Judge, presiding, Under'the general replication to the plea of the statute of limitations, evidence of part payment cannot be given to avoid the statute bar. Wherever a party relies upon an exception in the statute, he must plead it specially. Walker vs. Bnk. Mississippi, 2 Eng. 504. Ringgold fy Rynson vs. Dunn, 3 Eng. 499. McClellan vs. Slate Bank, 7 Eng. 143.

<p>A demurrer to the declaration is such an election to defend at law, as will preclude the defendant from coming into a court of equity for relief, as to any matter of defence of which he could have availed himself in the court of law.</p>

<p>Error to the Circuit Court of Ouachita county.</p> <p>The Hon. Shelton Watson, Circuit Judge, presiding.</p>

<p>Appeal from Circuit Court of Phillips county</p> <p>The Hon. Thomas B. Hanly, Circuit Judge, presiding.</p>

Appeal ft om the Circuit Court of Yell county. The Hon. W. H. Feild, Circuit Judge, presiding*. As the sheriff is required by the statute to return the bond given by the plaintiff in forcible entry and detainer, it is filed in court, and becomes a part of the record in the cause, (sec. 11, 12, ch. 71, Dig.,) and is therefore beyond the control of the defendant in such action, and he cannot make proferí of the original in an action on the bond.

The Hon. B. H. Neely, Circuit Judge, presiding. contended that a fair construction of the testimony of the notary, is that the notice was deposited in time to go by the first mail, after protest; and if it be doubtful •the law will so presume, as it was his duty. 19 J. R. 347. 7 Ark.

<p>The appearance of the defendant in the Probate court, on an application for the allowance of a claim against him as administrator, and his consenting to a continuance are substantive acts dispensing with service of process, and which make him a party to the cause. Rogers vs. Conway, 4 Ark. 70.</p> <p>The two years statute of non- claim gives the rule as to claims against the estates of deceased persons, not barred at the time of the death, and not the general statute of limitations, as held in Walker ad. vs. Byers.</p>

Writ of Error to the Circuit Court of Randolph county. The Hon. B. H. Neely, Circuit Judge, presiding. The affidavit to authenticate a claim against the estate of a deceased person, may be made by ,any one who can make it truly, whether the creditor, or his agent ,or attorney. See the cases of The People vs. Fleming, 4 Denio, 142. The People vs. Duchess co. Judges, 5 Cow. 35. Ex parte Holbrook, 5 Cow. 35. 1 Cow. 210. 2 John. Gas. 169. 1 Overton, 184.

The Hon'. W. H! Feild, Circuit Judge, presiding! contended that the claim was not legally allowed, that the trust confided to the representative of a deceased person is a personal trust and cannot be performed by an attorney or agent, and therefore, there w’as no legal allowance of the claim.

The Hon. W. C. Scott, Circuit Judge, presiding. Neither the bill of Manning, nor of Byers was sworn to; nor was an affidavit authenticating either claim to be just and true as required by the statute, presented at the hearing or shown by any means ever to have existed; the bill ought, thereiore, to have been dismissed, Dig. p. 126, secs. 88, This is not a case of trust, for that had ceased, not only by the dissolution of the partnership, but by the death of the appellant’s…

<p>Tlie bond required by the statute in actions of replevin, is a pre-requisite to the execution of the writ; and if the sheriff takes the property into possession without the bond, he is not bound to deliver it to the plaintiff; but should restore it to the defendant.</p> <p>In an action against th'e sheriff on his official bond for failing to execute such writ, the allegation in the breach that the sheriff “refused to lake bond and security as required by law,” or “would not, and did not take bond,” is insufficient — the plaintiff must aver a tender of a sufficient bond.</p>

lion. W. H. Feild, Circuit Judge, presiding! The main questions in this case arise upon the vicious and illegal consideration at the foundation of the contract sued on.

Hon. J. C. Murray, Circuit Judge, presiding. This was. an action of trespass quare clausum fregit, for, entry of the W £ of the N. E. £ Sec. 21, T. 1, 4 S. R. 12 W., and seizure and conversion of the growing crop, instituted by the appellee against the appellants. The defendants pleaded “not guilty,” and as it appears from the replications, liberum tenementum.

The Hon. Shelton Watson, Circuit Judge, presiding. The last will and testament of Thomas M. R. Bankhead, was duly probated in vacation, before the clerk of the Probate Court, who granted letters testamentary to the executrix therein named, without requiring bond and security, under the following clause in the will: “Lastly, I appoint my beloved wife sole executrix, and direct that she shall not be required to give bond.” Upon motion in the Probate Court, by the executrix, to…

W?'it of Error to Lafayette Circuit Court. The Hon' John Quillin, Circuit Judge, presiding. This suit was brought by Gray & wife against Abrahams, as executor of Thomas H. Edwards, on a writing obligatory executed by Edwards in favor of the wife of Gray. Before the Hon. C. C. Scott andD. Walker, Judges, and Hon. Isaac Strain, Special Judge. Every one of these pleas is fully sustained by the recent case of Wheat use §c. vs. Dotson, (7 Eng.

The Hon. W. H. Feild, Circuit Judge, presiding. This cause was before this court at the July term, 1849, (5 Eng. 211,) on writ of error, at the instance of the present appellee, when the judgment was reversed, and the cause remanded for further proceedings.

<p>Appeal from Phillips Circuit Court in Chancery.</p> <p>Before the Hon. Charles W. Adams, Circuit Court presiding.</p> <p>cited Day vs. Chism, 10 Wheat. Rep. 449. Fowler vs. Poling, 6 Barb. S. C. R. 165. Miller vs. Avery, 2 Barb. Ch. R. 582. Lockwood vs. Sturdevant, 3 Conn. 373. Meux vs. Anthony et al., 6 Eng. 411.</p>

Appeal fiom Yell Circuit Court. Hon. W. H. Feild, Circuit Judge, presiding; The clerical mistake in averring that the plaintiff tendered the deed to the plaintiff, will be supplied by intendment, or is only ground of special demurrer. 1 Ch. 287. The covenant here sued on is for the purchase and sale of land with stipulated damages, for the non-performance by either of the parties; the consideration for which, could not be enquired into upon demurrer.

The Hon. B. H. Neely, Circuit Judge, presiding. contended that the sum stated in the agreement sued upon, was a penalty, and not stipulated damages; and cited, sec. 82, ch. 138, Dig. 2 Story's Eq. Pr.p. 674, sec. 1314, and authorities cited. 2 Greeril. on Ev. page 262 and 263 and authorities cited. Dennis vs\ Cummins, 3 John. Cas. (2 Ed.) 297 and notes. Bright vs. Rowland, 3 How. Miss, R. Spencer vs. Tilden, 5 Cow. Rep. 145 and notes. Baird vs. Tolliver, 6 Humph. Ten.

The Hon. W. H. Feild, Circuit Judge, presiding. Where a note is assigned after due the general rule as to the time of presentment for payment is that it must be presented within a reasonable time. Ch. on Bills, 379, note 1. Jones vs. Robinson, 6 Eng. 510. Mims vs. The Central Bank of Georgia, 2 Ala. R. 294. That the demand in this case was made within a reasonable time. Viceland vs. Hyde, 2 Hall’s Rep. 429. VanHoosen vs. Van Alstyn, 3 Wend. 75. Chit, on Bills, 379.

<p>Writ of Error to the Circuit Court of Pulaski county.</p> <p>The Hon. W. H. Feild, Circuit Judge, presiding.</p> <p>The Circuit Court erred in refusing to take jurisdiction of this case. See Dig. Ark. page 313. 6 Eng. Rep. 604, Carnall vs Crawford county.</p>

<p>A judgment was recovered against the husband, in May, 1846. In ^December, 1847, certain slaves came to the possession of the husband, by inheritance front the wife’s ancestor. In November, 1848, a schedule Of them as the separate pro‘ perty of the wife, was filed in the recorder’s office. In March, 1850, the slaves were taken in execution of the judgment. Held, upon the construction of the statute passed December, 8,1846, concerning “Married Women,’’that the slaves were subject to the execution as the property of the husband.</p> <p>Chancery has no jurisdiction to enjoin the sale of the separate property of the wife, under an execution against the husband, where the wife, after the sale, would have an adequate remedy to recover back the possession of the property.</p> <p>Where the defendant, in his answer, reserves an exception to the sufficiency of the bill for want of equity, such reservation has the effect of a demurrer»</p> <p>Upon the final hearing of a bill to enjoin a judgment at law, it is error to decree- a sale of the property taken in execution — the decree should be that the bill be dismissed, and the injunction dissolved.</p>

<p>The endorsement that “this indictment is preferred upon the testimony of the par« ty injured, who was summoned on presentation, and by order of the grand jury,” does not imply that the indictment was preferred on the information of any of the grand jury, and is not a compliance with the statute, which requires the en* dorsement of a prosecutor in certain cases.</p>

The Hon! Shelton Watson, Circuit Judge, presiding. The ground on which the decree was rendered in this case, was, that after answering, it was too late to object to the jurisdiction or raise the question. The principle so stated is obviously too broad.

<p>The judgment of the court of another State can only be impeached for want of jurisdiction over the subject matter, or person, or on the ground of fraud, and not for any irregularities.</p> <p>When fraud is relied on as a ground of relief, the facts and circumstances constituting the fraud, must he stated in the bill with distinctness and precision, so as to apprize the defendant of the true matter of the case, and the points to which testimony should be supplied.</p> <p>A strictly legal defence must he made at law; if the party fails to make it there, he cannot come into a court of equity for relief, unless he shows that he was prevented from doing so by accident, surprise or mistake, or by the fraud of the opposite party, without his own fault or negligence.</p> <p>Unless in aid of a suit at law no injunction should he granted where the applicant for it does not submit to judgment; as he cannot he allowed to litigate at law and in chancery at the same time as to .the same subject matter.</p>

<p>■Where a demurrer to a declaration is sustained, though erroneously, the defendant is entitled to a continuance under the 6th rule of practice for the Circuit Courts, adopted by this court at July T., 1848.</p> <p>A mandamus will not he awarded to correct an erroneous decision of the inferior court, which the plaintiff could only call in question by suffering final judgment upon the demurrer and prosecuting a writ of error or appeal.</p> <p>A mandamus is to compel a court to proceed in the adjudication of a cause, but not to control or review the exercise of judicial discretion.</p>

The Hon. W. H. Feild, Circuit Judge, presiding. The first question presented is, whether the complainants had a lien at all, even before they took the notes, by the law of Ohio.

<p>Appeal from the Circuit Court of Union county.</p> <p>The Hon. Shelton Watson, Circuit Judge, presiding.</p> <p>cited and relied upon Hamilton vs. Myrick cj- Williamson, 3 Ark. 541. Henry vs. Hazen, 5 ib. 401. Hawkins vs. Watkins, ib1481.</p>

The Hon. Shelton Watson, Circuit Judge, presiding. contended that the court below erred in overruling the demurrer to the plea, because the legal interest of the obligee in the note, passed by the assignment to the plaintiff, and was not divested by operation of law upon the obligee ceasing to be guardian of Tobin. Dig. ch. 15, sec. 1, 2. Greenwood, vs. Buckner, 1 Eng. 206. Pond vs. Curtis, 7 TVend. 45.

The Hon. Shelton Watson, Circuit Judge, presiding. The widow is entitled to one-third of the reasonable hire of the slaves of which her husband died possessed, until dower be assigned her, or a sum of money equivalentto herinterest in said hire. Dig. ch. 4, sec. 60. 3 Engl Rep. 41. 4 Kents Com. 70. 5 John. Ch. 482.

Hon. W. H. Feild, Circuit Judge, presiding. contended that the State was the sole owner of the assets of the State Bank, and this court will judicially take notice of all legislation in regard to it, (State Bank vs. Curran, 7 Eng. 364,) that when the State descends to and engages in any business transactions, she is bound by all the rules of law and equity applicable to individuals. Bank U. S. vs. United States, 2 How. Rep. 711' 15 Pet. 317. 6 Cond.

The Hon. B. H. Neely, Circuit Judge, presiding. The affidavit of non-residencé is insufficient, because the affiant swears as to his belief, and not positively. Fienk vs. Flanagan, 1 Gilm. Rep. 37. Dig.p. 227, sec. 13. The notice is defective, as it states the object of the bill to be for partition and distribution, and is wholly silent as to the divestment of the title of the appellant in the lands and slaves. Dig. p. 227, sec. 13; Brodie et al. vs. Skelton, 11 Ark. 129.

Writ of Error to Pulaski Circuit Court. The Hon. W. H. Feud, Circuit Judge, presiding. This case was argued at length, as to the sufficiency and legal effect of the plea, by

<p>Writ of Error to the Circuit Court of Jefferson county.,</p> <p>The prosecution of an appeal to issue and submission is a bar to a writ of error. Ch. 126, sec. Ill, Rev. Stat. Jarvis vs. Blanchard, 6 Mass. 4. Savage vs. Gulliver, 4 Mass. 178. Champion vs. Brooks, 9 Mass..220. Com. Dig. Title 3 B. 18. 2 Tidd's Pr. 1096. Story PI. 371. Fowles vs. Bridges, 1 Shaw, 186. 2 Tidd, 1097. Cheetham vs. Tillotson, 4 J. R. 499.</p>

<p>Writ of error to the Circuit Court of Hempstead county.</p> <p>The Hon. Shelton Watson, Circuit Judge, presiding.</p>

<p>Appeal from the Circuit Court of Sevier county.</p> <p>The Hon. Shelton Watson, Circuit Judge, presiding.</p>

<p>Petition for an appeal from the decree of the Circuit Court of Pulaski county in Chancery. ■</p>

The appeal granted by the Circuit Court had been dismissed before the plea, in abatement was filed. Notwithstanding an appeal may have been granted by the Circuit Court, a judge of this court may, in vacation, grant an appeal and take recognizance. Taylor vs. Adams, 13 Ark. 61. Davis vs. Tarwater, 13 Ark. 83. Clay vs. Notrebe, 6 Eng. 631. The case in 5 Mass. 174, shows that the prior suit must be actually pending when the plea is pleaded.

<p>A judgment quashing a writ of scire facias upon a forfeited recognizance, is not a final'judgment, from which an appeal lies to this court. The plaintiff having the right to sue out an alias, the case was not out of court by the quashal of the writ; and unless she would elect to proceed no further, but resting upon her exception, suffer a judgment dismissing the suit, the decision quashing the writ is merely interlocutory.</p>

The Hon. A. B. Greenwood, Circuit Judge, presiding. contended that the judgment of the Circuit Court was erroneous (sec. 39, ch. 136, Dig.) and that the evidence was insufficient to sustain the verdict.

Writ of error to the Circuit Court of Pulaski county.. The Hon. W. H. Feild, Circuit Judge, presiding. contended that as the matter set up in the 4th plea of the defendants was a temporary suspension of the right to sue, and under the opinion in this cause in 6 Eng. 675, not an absolute bar, the replication showing the removal of the temporary suspension is a sufficient avoidance of the plea; as to a plea setting up a levy, a replication showing that the levy had been…

The Hon. J. C. Murray, Circuit Judge, presiding. Every question presented in this ■case is determined by the decision made in the case of Floyd vs. Ricks, at the last term. The question is not changed by the fact thatthe wood had been cut before Brock purchased the land. The doctrine of accession ■does not apply. The law will not allow a man to acquire title -to property upon the principle of accession if he take the property wilfully as a trespasser. 2 Kent. Com. 363.

The Hon. Shelton Watson, Circuit Judge, presiding. The court erred in admitting the declarations of the defendant when the notice was served on him; for a bailee is not competent to prove by his own testimony that the loss was not by his neglect or carelessness. Ch. on Con. 471, note 2. Story on Bail. (2 Ed.) 417.

The Hon. W. H. Feild, Circuit Judge, presiding. The rule is well established that the whole admission is tobe taken together, which relates to the subject matter, as well for as against the party making it. And it is for the jury to say how much of the statement they believe worthy of credit. 1 Greenl. Ev. sec. 201, 152, note on page 305, and authorities cited. 4 T. R. 669. 2 Sta?-k. Ev. 34. 1 Phil. Ev. 34, 357 note 1.

Writ of Error to the Circuit Court of Yell county. The Hon. W. H. Feii.d, Circuit Judge, presiding. The plea in abatement was not filed in apt time — a demurrer had been filed, which is an abandonment of every defence in abatement. Fort vs. Hundley, 5 Ark. 179. 1 Eng. 172. 1 Gh. PI. 440. The defendant having appeared to the action was precluded from filing a plea in abatement of the writ. Hixon vs. Weaver, 4 Eng. 133. 5 Eng. 428. ib. 646.

Hon. W. H. Feild, Circuit Judge, presiding. This cause was argued and submitted at the January term 1851. as to the question whether Crittenden had such tifie in the lots that his widow was entitled to dower, said: The question we malta is whether a grantee can use, against Ms grantor or the widow of Ms grantor, a new title which comes to Mm through the grantor, for which the grantor paid the consideration, and which the grantee obtains and takes by virtue of Ms original…

<p>C. holding a regular chain of title from persons recognized as the original proprietors of the city of Little Rock, conveys by deed certain lots to W., and dies; a patent for the same land issues from the United States to B., who had executed a covenant to assure the title of all persons having a regular chain of title from the original proprietors, if claimed within a specified time: after the time stated, B. for other considerations conveys the lots to W.: Held, That O’s widowisnot entitled to dower in the lots.</p>

Writ of Error to Pulaski Circuit Court. The Hon. W. H. Feild, Circuit Judge, presiding. The statute is not peremptory in the mode of presenting claims against estates. The original may be presented unless the administrator requires a copy, (Dig. ch. 4 sec. 88.) The administrator waived all informality in presenting the claims by appearing to the suit in the Probate Court after the claims were filed, fester vs. Hopper, 13 Ark. 43.

<p>Appeal from Van. Burén Circuit Court.</p>

The Hon. Thomas B. Hanly, Circuit Judge, presiding. A court of equity had no jurisdiction of the case, as there was aplain and adequate remedy at law. Although Biscoe was one of the trustees and could not sue himself, the right to sue the other co-promissors was not affected by that circumstance, as the note was the several note of each maker.

<p>Appeal from, Crawford Circuit Court in Cuancery.</p> <p>Before the Hon. B. H. Neely, who had interchanged circuits With Hon. A. B. Greenwoob.</p>

W. H. Feild, Circuit Judge, presiding! contended that a pre-emption right, granted by the Land Officers, vested a title in the land itself to the pre-emptor and his heirs and assignees, {Nicks’ heirs vs. Rector, 4 Ark. 283. Pettigrew vs. Shirley, 9 Mo. Rep. 688. Fletcher vs. Peck, 2 Cond. Rep. 321. 9 How. U. S. Rep. 333. 7 Sm. Mar. 789,) and that under our statute the pre-emptor, his heir or assignee, claiming under such pre-emption right, might maintain ejectment.

The Hon. W. H. Feidd, Circuit Judge, presiding. The replication shows that an injunction was granted, which suspended the operation of the statute, sec. 27, ch. 99, Dig. The replication was a plain departure in pleading. Goulcl’s PI. ch. 8, part 3, sects. 65; et seq. A mortgagee may sue athhe same time on his bond at law, and on his mortgage in equity. Jones 41 Jones vs. Coade and wife, 6 J. C. R. 77. 10 ib. 482.

<p>After assignment and joinder in errors,"neither party has a right to allege diminution, because by that they admit that the record, upon which they have joined issue, is a true and perfect one.</p> <p>But no admission of the parties can restrain the court, in the plenitude of its authority, to be exercised in sound discretion, to award a writ of certiorari ex-officio at any time, to supply any defect that may appear in the record.</p> <p>Among the rules of practice governing this discretion, is that although the court, ad iffiormandum conscientiam curiae, will award a certiorari to affirm, it will never award one to reverse or make error.</p>

The Hon. Shelton Watson, Circuit Judge, presiding. Where improper evidence-is given, although it may be cumulative only, the judgment must, be reversed, because the court cannot say what effect such evidence may have had on the minds of the jury. Marguand vs. Webb, 16 John. 89. 2 Hall N. Y. Rep. 40. 3 Cowen 621. 12 Wend. 65. 4 Ark. 531. The letter of Dick & Hill was improperly admitted and the verdict is clearly excessive.

The Hon. Shelton Watson, Circuit Judge, presiding. The declarations and statements of a grantor or assignor, in relation to his title to the property, whether real or personal, made whilst he is in possession and before he parts with his title, are good evidence not only against himself, but against those who claim under him; yet if made after he has parted with the possession, they cannot be used as evidence at all. Carrell vs. Early, 4 Bibb Rep. 270.

On precisely the case, no more arid no less, which was before this court, when it decided it before, the Circuit Court has deliberately reversed the decision of this court; and refused to decree in conformity to its opinion, judgment and express and positive mandate. We merely say that this gross contempt of this court and authority is error.

<p>Appeal from Phillips Circuit Court.</p> <p>The Hon. C. W! Adams, Circuit Judge, presiding.-</p>

<p>Writ of Error to Independence Circuit Court.</p> <p>Hon. B. H. Neely, Circuit Judge, presiding.</p>

<p>The Statute, Digest, Title, Oriminai, Proceedings, sec. 235, et seq. allowing appeals and writs of error in criminal cases, applies to prosecutions by indictment pr presentment, and was not designed to extend, nor does it in terips, to summary convictions for contempt of court.</p> <p>■Whatever may be the remedy, where the inferior court, in punishing for contempts, shall exceed its lawful authority or jurisdiction, there is none according to existing law, by writ of error or appeal.</p>

<p>Error to Pulaski Circuit Court.</p>

<p>No appeal will lie from the judgment of the Circuit Court punishing as for contempt of court, as held in Cossart vs. The State.</p>

The Hon. B. H. Neely, Circuit Judge, presiding. A magistrate’s court is a court of limited jurisdiction. but to the extent of that limit, its jurisdiction is •co-extensive with that of the Circuit Court. It has all the powers, to the extent of its jurisdiction, conferred upon the Circuit Court, among which is the discretionary power of granting a new trial. Const. Arks., Art. 6, sec. 15, Dig. ch. Sé, page 254.

<p>Appeal from Crawford Circuit Court.</p> <p>The Hon. A. B. Greenwood, Circuit Judge, presiding.</p>

The Hon. J. C. Murray, Circuit Judge, presiding. It is submitted, 1st. That there is a fatal variance between the allegations in the indictment, and the evidence as to the persons by whom, the game was played. Parrott vs. State, 5 Eng.

The Hon. B. H. Neelv, Circuit Judge, presiding. The exception preserved in the first bill of exceptions is good. The facts occurring on the evening and night previous had no connection with the unfortunate affair of the next day. They did not show the disposition of Austin to the deceased. Payne was not concerned in them. The evidence did not show a general depravity, and the intent and enormity of a criminal act should always be gathered from the act itself.

Appeal fi om Hempstead Circuit Court in Chancery. This was a bill in chancery decided before the Hon. John Q,uillin, Circuit Judge, at the May term, 1851. The material facts are, that, on the 8th of October, 1841, the Real Estate Bank recovered a judgment against Naborne T. Nelson, Charles T. Nelj son and Robert Carrington, upon which a Ji. fa. issued and was levied on two slaves of Naborne T. Nelson.

The defendants filed a plea in bar to the writ of error; to which the plaintiffs demurred.

<p>Writ of Error to Desha Circuit Court'.</p> <p>Plea in bar; demurred</p>

<p>Appeal from Pulaski Circuit Court.</p> <p>Hon. W. H. Feild, Circuit Judge, presiding.</p>

The Hon. W. H. Feild, Circuit Judge, presiding. It is well settled that if any interest in a chattel vest in a female before or during coverture, although a particular estate may exist undetermined, so that no actual possession is acquired by the husband during the life of the wife, the right will belong to the husband in case he survives, and pass to his administrator: and the husband is entitled even to her contingencies as much as to any other species of property.

<p>The defendants filed several pleas, to which the plaintiffs replied, and issues of law and of fact were formed: a jury was empanneled and sworn to try tbeissues of fact: the issues of law, being submitted to the court, were found for the defendants; to which the plaintiff excepted: "whereupon the plaintiffs refusing to proceed further,” the jury was discharged by the court, and judgment that the plaintiffs take nothing by their writ, and that the defendants go hence without day and recover their costs : Held, that the plaintiffs should have proceeded to try the issues of fact, after the issues of law were disposed of; and that the most favorable construction of the record entry is, that they snbmitted to a judgment of non-suit, to which a writ of error will not lie.</p> <p>When a cause has been decided by this court, and remanded to the Circuit Court for further proceedings, and that court, upon like issues and evidence, decides against the adjudication of this court, it is a gross error, for which this court will, without hesitation, reverse the judgment.</p>

The Hon. W. H. Feild, Circuit Judge, presiding. Where a party declares on a note or bond in his own name, averring it to have been made to him, by a different name, whether of an individual, firm or corporation, such averment is material and traversable. Nicholay et al. vs. Kay, 6 Ark. Rep. 68. Bower et al. vs. State Bank, ib. 236. Pendleton vs. Bank of Ky., 1 Mon. Rep. 175. 10 Co. Rep 125.

Writ of Error to the Circuit Court of Phillips county. * The 1 egal title to the land was in theBowies, they having retained it to secure the payment of the purchase money. The judgment of Irvin (independent of his lien asassignee of the vendor), was a lien upon the lands from its rendition, 19th November, 1841, for three years. Dig. ch. 93, sec. 4,-5, 36.

Appeal fiorn Pulaski Circuit Court in Chancery. Hon. W. H. Feild, Circuit Judge, presiding. This cause was argued at length upon other points made than those decided: referring to 2 Paul. Ch. Pr. 982. 1 Greenl. Ev. sec. 178, note 4 and 5. Whiting <£• Slark vs. Beebe, 7 Eng. 421, that the answer of Moses Ferguson was evidence against his co-defendant.

<p>Where the defendant in chancery, in his answer denying the allegations of the bill, sets forth a complaint against the complainant, and calls for an answer, and prays for a decree, such answer, for all substantial purposes, is a cross bill, and under our practice in chancery must be so considered.</p> <p>A complainant cannot dismiss the bill against the consent of the defendant after he has filed answer by way of cross bill: nor can the court, under such circumstances, though the complainant refuse to give security for costs, as previously ordered by the court — the defendant objecting to the dismissal and agreeing to waive security for costs:</p>

Hon. B. H. Neely, Circuit Judge, presiding. Simmons being an infant and not bound by his contract, Leach was solely bound on the note and could set off what Lambeth owed- The authorities are express, and the principle certainly reasonable. Slocum vs. Hooker, 12 Barb. 566. Burgess vs. Merrill, 4 Taunt. 468. Gibbs vs. Merrill, ib. 307. Referred to ch. 150, Dig. sec. 1. Harrell vs.. Trammell, 4 Ark. 602. Woodruff et al. vs. State, 2 Eng. 333.

The Hon. J. C. Murry, Circuit Judge, presiding. The only question in the case — variance between the declaration and the transcript offered in evidence — is settled by the following cases. Adams vs. State use Wallace, at July term, 1853. 7 Eng. 128. Ib. 183,135, 171, 760, 766, 768. 6 Eng. 334. Ib. 344. All averments in a declaration, by way of description, must be strictly and literally proved. (1 Ch. PI. 335. 5 Phil.

Several of the interrogations put to the witness, Nelson, are leading, Clark's ad. vs. Moss, 740; and it is error. Rogers vs. Diamond's exr. 13 Ark. The requisitions of the statute ol wills must be complied with, {ch. 170, Rev. Stat.); or no will can exist. Rogers vs. Diamond, 13 Ark. Remson vs. Brinkerlioff, 26 Wend. 331. Butler vs. RemAon, 1 Barb. 534.

The Hon. W. H. Feild,. Circuit Judge, presiding. In regard to the substance of the response, we submit that the certificate of the Secretary of State was not final and conclusive upon the Auditor; that it did not preclude him from looking into the correctness and legality of the account of Whiteley certified to him by the Secretary, that he was not bound by law to issue his warrant for the amount claimed if it was not really due, and that the courts will not compel him to do…

Hon. J. C. Murray, Circuit Judge, presiding. The court evidently erred in giving the instruction to the jury that the deposition was some evidence but not sufficient for tliem to find a verdict: the plaintiff should have proved that the defendant had either ordered or received the goods: Because, 1st, The court transcended its authority and invaded the province of the jury who were the judges of the weight and sufficiency of the testimony, Jones vs. Yarborough, 2 Ala. 524.

Writ of Error to Independence Circuit Court. Hon. B. II. Neely, Circuit Judge, presiding. Payment to Lyon after. Plynson was out of office, simply on Lyon’s authority to do the business of Hynson when in office, was no defence to this action. Lyon was not Hynson’s agent after his removal from office. Story on Agency, secs. 462, 481, 484, 499, 430; and the court ought to have granted a new trial.