Volume 15 — Arkansas Reports

Hon. JoiiN C. Mueeay, Circuit Judge. Baird incompetent, (J Wend. P. 453. 19 Wend. 353. 20 Jb/m. 142,) being a party to the record. He was interested. 2 Verm. 144. 4 Taunt. 752. 8 Taunt. 139. The filling of the endorsement was error: 1st. It was done after note offered in evidence, (6 Eng. P. 325); and, 2d. After evidence on both sides closed, (2 Phil.. Ev. 407); 3d. The endorsement was so filled up as to deprive appellant of his legal right to notice.

lion. William I!. Eeild, Circuit Judge. That, as the chancery -cause, set up in the plea, was first instituted, and the subject matter drawn in controversy there; and that the plaintiff was bonnd to defend in the chancery suit successfully before she could harrass the defendants at law by a second suit for the same canse of action; that, the court which first obtains or assumes jurisdiction over the parties and subject matter, can alone judge of that jurisdiction ; that,…

Rep. 321,) and, by writ of error, carried up to the Supreme Court of the United States, where, at the December Term, 1853, it was decided: “That so much of the laws of the State of Arkansas (Act of 31st of January, 1843; act of 10th January, 1845; act of 23d December, 1846; act of 9th January, 1849,) as authorized and required the cancellation of the bonds of the State, given for money borrowed of the Bank by the State of Arkansas, or authorized and-required the withdrawal…

<p>One partner flies Ills bill after the expiration of the term of partnership against his co-partner for a settlement and share of the profits;1 the defendant, in his answer, denies that there were any profits, and alleges that the complainant is indebted to him on tho partnership account: Held, that a court of chancery, having acquired jurisdiction of tho cause and parties, will dispose of tho whole case and decree for tho one or for the other', as the account may stand; for the defendant, if the balance be due him, without driving' him to a separate suit.</p>

Writ of Error to Phillips Circuit Cowrt. The certificate of the clerk-of tbe Probate Court tbat tbe will and other papers, including tbe letters testamentary, bad been recorded, was sufficient. Tbe law does .not require a separate certificate to eacb paper recorded.

Before Hon. Sheltoh WatsoN, Circuit Judge, Tbe petition was filed too late. It w-as not presented until after tbe cause bad been pending for tliree terms, and when it bad been called and stood for trial, and there was no pretence that any diligence bad been used, or effort made to procure testimony. A petition under tbe statute is governed by precisely tbe same rules governing bills for discovery in equity. Digest, cheap. 126, see. 93, 96, 96, 97. Field vs. Pojpe, 5 Arh. 66.

Hon. ¥m. H. Feild, Circuit Judge. contend, tbat if tbe justice of tbe peace bad jurisdiction, tbe writ of prohibition would, not be, although there was an erroneous proceeding before tbe magistrate, (Williams, Ess pcvrta, 4 Arlo.

. Hon. B. H. Neelt, Circuit Judge. Tbe pleas to tbe scire facias were improper, and tbe demurrer to them should have been sustained. Dig., 126, 5 JEhg. 584, Byars vs. Wallow, July Twin, 1853. TJpon tbe principles declared by this court, in tbe Case of WdlJcer, ad. of Pope vs. Byars, decided at tbe last July Term, tbe judgement of tbe Circuit Court must be affirmed.

<p>Appeal from Bernier Cvremb Cowrt.</p> <p>Hon. SheltoN WatsoN, Circuit Judge. .</p>

Hon. Charles W. AdaMS, Circuit Judge. That the petition, of Williams should have accurately described the termini of the proposed private road, See Digest, eA..140, seo. 62. . That Williams should have .deposited “a sufficient sum of ino-ney,” before-tbe court could appoint viewers, See Digest, chap. 140, see. 63. That tbe viewers should have been sworn before entering upon their duties; and that tbe record should show that fact, See Digest, chop. 140, see. 63, 47.

<p>Appeal from Sevier -Oi/rcmt Oowrt in -Chcme&ry.</p> <p>.'Hon. SheltoN WatsoN, Circuit Judge.</p>

■ Ayypeal from GMeot Gvrouit Gowri in Glicmoery.. Hon. Josiaii Hould, Circuit Judge..! If tbe levy on these lands: under tbe execution of Johnson was regular,.tlie lien of tbe judgment was wholly independent of the levy. As long as the-lien lasted, there was no need of a levy,, and, by allowing the judgment lien to- expire, the lien of. Johnson was -entirely gone.

■ The Hon. J. O. Murray, Circuit Judge. When the contract was entered into, it was the mutual understanding of the parties that the timber should be delivered to Gilliam, in a condition that he could take immediate possession of it, or obtain the power and control over it, and not while in the actual possession of those who-•claimed the right to it and refused to surrender possession. 2 Kent Com. 552, 554; Chit, on Con. (5 Amer. Eel.) 73, and authority cited; Stoifs Con.

The act of the Legislature, as to a grand jury for Fort Smith, is contrary to the spirit of tbe bill of rights, and yoid: and from which it follows that there was no legal conviction in the case. Acts 1852, see. 34/ 1 Eng. 187.

<p>An indictment, charging that the defendant, with others, “bet the sum of twenty-five-dollars, upon a certain unlawful gambling device, commonly called a raffle,” does not describe an offence, within the meaning cf any statute heretofore enacted against gaining.</p>

<p>Appeal from the Mayor’s Court of Fort Smith.</p>

Hon. William H. Feild, Circuit Judge. This cause was argued and submitted at tbe January term, 1851. On tbe 13tb February, 1854, tbe Court, the Hon. C. C. Soott, and Hon. David Walicer, Judges, and Hon. Isaac Strain, Special Judge, rendered a decree reversing that of tbe Circuit Court. Opinions were delivered by tbe Hon. Daved Waleer, in wbicb Hr. Justiee'SooTT concurred, and by tbe Hon. Isaao STRAIN.

Affeál from Sevier Ciremt Court. Hon. SheltoN WatsoN, Circuit Judge. To reverse these proceedings, and set aside this allowance, tbe appellant relies on tbe following points : First — Because a court of probate is not invested with chancery jurisdiction; and that, without such ample and discriminating powers, it could not legally mate the allowance in question.

Writ of Error to Crawford Circuit Cowrt. The Hon. A. B. CegeNWOod, Circuit Judge. A tenant may dispute the title of his landlord, when he disclaims the tenure, and claims the fee in his own right, and the landlord has notice thereof, and the relation of landlord and tenant theretofore existing is put an end to.

Hon. A. B. GkeeNwood, Circuit Judge. ¥e maintain, first, That to support an action on tbe case for deceit in tbe sale of personal property, it is essentially necessary to prove tbe scienter. Oha/ndelor vs. Lopus, Smith’s Leadi/ng Oases, Am. Ad., notes .and authorities collected; Ormond vs. Iluth eb al., 14 Mees, dk Weis. 651. Secondly, That tbe principal is not liable for the acts of a special agent, where be transcends tbe limits of bis authority.

Hon. B. H. Neely, Circuit Judge. No matter bow mucb to blame tlie Cate Joyeuse might be, Duggins bad a right to sne- tbe defendants, if tbe Talma was in tbe wrong, as tbe injured partj may sue one, some or all joint wrong doers. 1 Ch. PI- (7 Am.

Tbe Hon. A. B. GbeeNwood, Circuit Judge. Tbe trustees of tbe Institute, in whom all its property rested under tbe charter, were incompetent as witnesses, on tbe ground that they were parties to tbe suit— parties on tbe record baring a direct interest, to tbe extent of the costs at least. Phill. Eh. 57/ 1 Crernl. on Ed., seos. 329, 330/ Pet. O. C. P. 807/ 4 How. V. 8. Rep. 417/ 5 lb. 94.

<p>The failure of the obligee or payee to sue the principal debtor, within the time prescribed by the statute, will not release the security where the notice to sue, given by the security, under the statute, is served, not upon the obligee or payee himself, but upon his attorney at law, who has the note for collection.</p>

A-jppeal from Union Qi/remt Coivrt. Hon. SheltoN WatsoN, Circuit Judge. contended that the appellee, by allowing bis sons to trade for themselves for the year 1850, and by paying the account so made, constituted them in law his agents, and became liable to pay the account subsequently made by them with the same parties ; and cited Story on Agency, sec. 45 and 55; 2 Kent Com., 614, 615; 2 Greenl.

<p>The notes of the Bank of the State of Arkansas, issnedin the years 1838 and 1839, are receivable for taxes due to the State of Arkansas.</p>

jError to the Circuit Cowrt of Pulaski Coimty. Hon. ¥m. H. Feild, Circuit Judge, presiding.. 1 contended that, under the plea of payment, the defendant was bound to prove actual payment; and that he could not take advantage of the presumption of payment from lapse of time, under the statute, except upon special plea. relied upon the statute of 5th March, 1838. JEt&o. /Stat., ch. XOl, secs. 29 md 31.

Hon. ¥h. H. Feild, Cfficuit Judge. Fowlee. A set-off is not merely a defence, but a cross-action, in which a defendant becomes plaintiff, and may recover against tbe original plaintiff as a defendant. (See Bern.

The lion. A. B. GkeeNWOOD, Circuit Judge.. Unless tbe master actually command or consent to tbe trespass committed by bis servant of slave, an action of trespass cannot be maintained tberefor against bim. 1 Oh. PI. {Ed. of 1809) 18% Johnson vs. Gastleman, 2 Pana B. 378/ Middleton vs. JBowler, 1 Salic. Pep. 182/ Puryear vs. Thompson, S JEDimph. Pep. 399/ Wright vs. Weatherby, 7 Yerg. 378/ Ohureh vs. Mansfield, 20 Corm. Pep. 287.

B. H. Neelt, Circuit Judge:- made the following-pointsÍ 1st.- That the action should have been in case and not in tres^ pass: (Gomyn’s Big., rol. 7, Title Trespass, [B. 5,]p. 513/ 1 Ch* PI. 80/ Bo/rns vs. Bud, 11 Mass. 57/. 2 Oh.- PI. 867).. Where' a-statute prohibits fin injury, and enacts that the party injured shall recover a penalty or damages for tbe injury, and is silent as to tbe form of action, case is tbe proper remedy. 1 Oh.

Hon. Shelton ’Watson, Circuit Judge, Tbe statute {Rig. 769, seo. 1) provides that a company of patrol shall be appointed in (not for) eacb township : and, though they are not bound to patrol out of their township, tbey are not confined to their particular township; as is tbe case witb justices of tbe peace, wbq may act out of tbeir respective townships, Humplvries vs, MoCraw, 5 Ark. Hep.

<p>Ajpjpeal from Pilco Oi/rcmt Gowrt m Ohmcery.</p> <p>Hon. SheltoN "Watson, Circuit Judge,</p> <p>for the motion to dismiss.</p>

Hon. ¥h. H. Eeild, Circuit Judge, presiding. The instruction asked by Clark should have been given, because it would seem to be a plain proposition that under a count for work and labor done for one person, evidence is not admissible to show that work was done for another and different person, and, when so admitted, cannot' sustain the count. .

. Hon. Vi. H. Feild, Circuit Judge.- Under the order of the- Probate Court, a demand on Byrd was necessary in order for the plaintiff to maintain the action; and whenever a previous demand is necessary, it is also* necessary to allege it specially in the declaration, with certainty as to time, &c. Irwm vs. Wells,. 1 Mo. S&p. 13/ 1 Ch.-Pl. 322/ jlrch.. Civ.- PI.. 168.

<p>At common law, and under the general law of this State, where personal property comes to the vafe by distribution, the title vests in the husband, and the property is liable for his debts; and if, in such case, the wife sets up a separate estate in the = property, under the statute of another State, such statute is a matter of fact to be established by competent evidence.</p> <p>Where a chancery cause is tried upon the pleadings and exhibits, this court will not presume, for the affirmance of the decree, that testimony was heard at the trial; as where the cause is so set down for hearing, no oral testimony can be given.</p>

<p>Appeal from PulasM QvrcuAt Gowrt,</p> <p>S. H. Hempstead, Special Judge.</p>

<p>Appeal from Ola/rle Qvrcwvb Gowt in Ohcmcery»</p> <p>The Hon. Johh QuilliN, Circuit Judge.</p>

Before Hon. B. H. Neely, Circuit Judge. The. Circuit Court had no right ;to issue a writ of attachment beyond its own county, and tbe defendant violated tbe rights of Moses Brown & Co., and their deriva-tire holders of the note sued on, by appearing to tbe suit and ■acknowledging the indebtedness.

Hon. B. H. Neely, Circuit Judge. Tbe facts charged in an affray, do not include those necessary to put a party on defence of an assault and battery, for he is not apprised whom, he has assaulted, nor that he has beaten any body.

Hon. Felix J. BatsoN, Circuit Judge. The plea in abatement was out of time, after demurrer to the declaration, and much more after the plea of not guilty. The proper motion was to strike it out. Knott eb al. vs. Glemmts ad., 13 Ark.E. 335.

Writ of Error to Well Cvrcmt Qowt. Hon. Wm, H. Feild, Circuit Judge. The condition of a bond may be either in the same deed or another — it may be included within it or endorsed upon it. (Jacob’s La/w Die., Title, Bond; 2 Baile. 462/ 5 Mod. 281.-) Any words, by which the intention of the parties can be discovered, are sufficient to make the condition of a bond. 2 Golee, 669 a/nd notes.

lion. B. H. Neely, Circuit Judge. contended tbat tbe sale of land by an officer, under execution, is valid, and passes tbe title, although be fails to give notice of tbe time and place of sale, as required by law, and although the purchaser may have been aware that no notice was given, (Turner vs. McRea, 1 Mott & McGordRep. 12/ Lawrence vs. Speed, 2 jBibb Rep. 401/ Hayden vs. Dunlap, 3 11). 216/ Webber . [Ed. cf 1842,] secs. 112, 177, 233/ 1 Bar. Oh.

Before Hon. B. H. Neely, Circuit Judge. We submit that tbe provision in tbe first section, title Conveyances, (Steele c& MeQamp. Dig.,p. 131,) was designed to abolish tbe common law rule, requiring tbe term “heirs ” to be used in a conveyance to constitute a fee.

' Tbe PLon. J. C. Mubbay, Circuit Judge. Balcer vs. State, (3 Arh. Hep. 491,) does not bold that a judgment is void, because it does not contain tbe word “considered.” If equivalent terms are used' — ‘as “adjudged and decreed” — there would be a valid final judgment. Dooley et al. vs. Watldns, 5 Arle. Bep. 105; DrexeVs appeal, 6 Barr. 272; NcmeBs appeal, 5- Watts c& Serg. 473.

<p>Error to Iza/rd Gvrcidt Court.</p> <p>The Hon. A. B. GbeeNwood, Circuit Judge.</p>

lion. Charles W. Adams, Circuit Judge. Should not a soi.fa. be served by copy? {Sec. 9, oh. 93, Pig.) See form of return in Evans’ Ea/rris. The judgment should have been for the revival of the original judgment; and that plaintiff have execution thereof; and not in the form of a new judgment, as in debt on a judgment. Eva/ns’ Ea/rris, Entries, 2dvol.,p. 361/ 3 booh Elaoh. Gom. 421. The'judgment is for an excessive amount.

Hon. SheltoN WatsoN, Circuit Judge. 1. The depositions taken in Tennessee, should have been suppressed. The application was to take testimony in an action of replevin, and this was an action of detinue. 5 JEng. 420. .2. It was a proper enquiry as to whether the negro woman and her child were conveyed to Buck’s wife, to enable her husband to avoid payment of his just debts, and among them the debt due to the appellant. 5 Podge 586. 3.

Hon. B. H. Neely, Circuit Judge. The deed should have been admitted by the Court to go to the jury as an enrolled or recorded •deed; the certificate of the clerk should have been received, admitting it to record, thereby placing the plaintiff within sections 7 and 8, articled, chapter 153, Digest. As to the effect upon the plaintiff produced by the rejection of the deed, as an unrecorded deed, see 2 Bl. Com. 441/ 2 Kent Com. 354/ 1 Ark.

<p>Appeal from Randolph Owcuit Court.</p> <p>Before Hon. B. H. Neely, Circuit Judge.</p>

J. C. Mukkay, Circuit Judge. The admissibility of the proof under seo. Y, eh. 66, Rev. St, was a question of competency addressed to the Court. ■ Churchman v. Smith, 6 Whart. 146/ 2 'Oreenl. Ev. 143,4/ 2 Cow. & Mill’s notes, 682, Y01, which show the evidence to be competent.

The Hon. A. B. G-keeNwood, Circuit Judge. The question raised by the record in this case is as to the construction of section 1, of chapter 51, of the Digest of Arhcmsas. The State was not required to prove that the game specified in the indictment was a banking game, for any gambling device would subject the offender to indictment.

<p>Where a defendant, indicted for a misdemeanor, punishable by fine only, has been tried and acquitted, and on appeal or writ of error to this Court, the judgment reversed, and the cause remanded, he may be tried again, without any violation of the constitutional provision, “ that no person shall for the same offence be twice put in jeopardy of life or limb.”</p>

<p>"Where two complainants are claiming the same property — the one as purchaser at execution sale against the other — their interests are distinct and several, and' they will not he allowed to sue together as such for the purpose of divesting the title of a third party, also execution purchaser of the same party..</p> <p>The Bank of the State of Arkansas, upon a bill for injunction, will be required to verify the allegations of her bill, and give bond, like other suitors; and will not be allowed to prosecute her suit under cover of privileges which belong alone to the State, by uniting the State with her as complainant.</p> <p>The State, averring in her bill in chancery, that she bid off property at execution sale against the State Bank, but neither alleging that she paid the amount bid, or offered to pay it, but only that she was able and willing to pay, and that the Bank had the means and was able to pay, does not show such title as will warrant the granting of an injunction to restrain a purchaser of the same property, at a subsequent execution, sale, from asserting his legal remedies.</p>

<p>Appeal, from Hempstead Gircmt Court in CTumoerry.</p> <p>Hon. SheltoN "Watson, Circuit Judge.</p>

Hon. JohN 'QuilxJN Circuit Judge. That although the deed for laud by a father to his son, may express a consideration, testimony'may be admitted to show that nothing was paid, and that the conveyance was given as an advancement.

<p>Appeal from Jackson Ci/rcmt Gourt m Oha/ncery.</p> <p>Hon. B. H. Neely, Circuit Judge.</p>

Hon. John QuilliN, Circuit Judge. On the point that the instrument executed to Tarwater, wasaconveyancempresentí,and nota covenant or bond to convey in future, cited Chiles vs. Candy's hei/rs, 2 Dana 2i / Jackson vs. Bladjet, 16 J. JR. 172/ Jackson vs. Kipelbrack, 10 J. JR. 336/ Fisdale vs. Essex, JBJob. 34/ Baxter vs. Brown, 2 W. Bla. 973/ Jackson vs. Delacroix, 2 Wend. 433.

lion. B. H. Neely, Circuit Judge, presiding. The proof is that Brown and all who purchased at the auction sales, did buy by the stakes,, and with the understanding that their deeds describing the lots according to their numbers vested in them the area included within the boundaries indicated by the stakes: as in the case of the United States surveys, where the boundary lines actually run and marked by the public surveyors, are to betaken and considered as the true…

The Hon. Shelton Watson, Circuit Judge. There is no prayer in this case, for a reformation and correction of the bill of sale ; nor under the prayer as connected with the special relief prayed, •can a decree be rendered for such correction. 1 Bibb 468 ; 2 Ath. 3; lb. 141; J. R. 590; 16 Ret. 194. There is no proof of notice to Daniels, of the suit in Alabama, as would render the proceedings conclusive against him, (3 Watts 306; 9 Lou.

'Appeal for Hempstead Owomt Court m Chancery. Tbe Hon. SheltoN WátsoN, Circuit Judge. Tbis case falls clearly within tbe principles recognized and settled in the case of Hector vs. Keatts, 1 Ark. Hep. 191. The agreément between Cain and Leslie, was without any valuable or meritorious consideration; and equity will not enforce a voluntary -agreement. 3 Story Eg. Ju-ris. 430, seo. 43, n. 3/ 18 Ves. 84/ 4 J1 0. R. 497/ 1 Gowen Rep. 711.

Ajypeal from PulasJd Owowit Court'm Chcmo&ry. Tbe Hon. William: H. Eeldd, Circuit Judge.. Tbe- question wbicb we present is, whether it was necessary to aver, or prove tbe fact of notice, and whether Bozeman can be allowed, after bis plea j¡ná» da/rrien continuance, to insist tbat there was no notice given to Mm. The plea puis da/rrien continuance waived all- previous, pleas, and every thing is confessed except the matter contested by the pleayms.

Tbe Hon. B. H. Neely, Circuit Judge. 1. Tbe agreement between tbe parties to tbe conditional line between them, was made when tbe lands belonged to tbe United States, and so tbe agreement was utterly void. (1 Scam, lié, ”170, 396, 472/ 5 JBlachf. 64/ 1 How. Miss. R. 150/ 5 Eng. 560/ Moyd vs. Rides, lé Arid) No agreement as to tbe public lands can be binding so as to affect tbe legal title of tbe proprietor. 2.

Tbe Hon. Jorra: C. Murray, Circuit Judge. When title to personalty is vested in a trustee, who holds a naked legal title without other duties to perform, and tbe whole beneficial interest is vested in tbe wife, tbe husband tabes tbe property precisely as if tbe legal title to tbe property bad been vested in tbe wife directly.

Appeal fro'n PulasTci Gi/rcmt Oov/rt i/n Ghaneery. Hon. William: H. Feild, Circuit Judge. Proceedings by attachment, under our statute, {sec. 8,43, ch. 17, Per. St.,) are proceedings in reon. The latter section expressly contemplates the property from the levy of the writ to a sale under execution, as remaining in the custody of the law. Without such express provision, the statute would have received the- same construction.

Hon. SbeltoN Watsoet, Circuit Judge, presiding. contended that tlie evidence clearly shows, that the damages are grossly excessive; that the verdict must have resulted from mere prejudice, or other improper motive; and that Sexton had probable cause for causing tlie arrest. {De JBawi vs. Beebe, 3 JEhiq. 510.) That the mere judgment offered as evidence was, of itself, inadmissible; the whole record should have been produced, (28tcvrTc. 371, 291,) and no parol evidence could…

<p>Ajypeal from Lcmrmee Cwcmt Qowrt-</p> <p>Hon. B. H. Neely, Circuit Judge,</p>

Francis Gi/rewit Gov/rt. Hon. Charles W. Adams, Circuit Judge. We submit i£hat the purchaser, at a tax sale, 'Cannot -be disturbed by -reason of any irregularity liere alleged': that the -sheriff’s deed is conclusive. Bees. 112, 113, eh. 139, Rev. Btat./ Pillow vs. Roberts, 7 Ark. 822/ ATewtotb vs. State Bcmk, 14 Ark.

<p>Appeal from Jadkson Cwcuit Gowrt.</p> <p>Hon. B. H. Neely, Circuit Judge.</p>

, , The Hon. SheltoN WatsoN, Circuit Judge;. If there was any proof of an-agreement for time, that agreement- was dependant on an act of defendant — the giving bis note, which was not done. This failure-annulled'tbe contract for time, and the money became payable on completion of the work. Oh. Oon.ZIS ¡Hussellvs. Mwwr,^& Wend-659 / Ivpm et.. ál- m., Ma/rie et. al. 6 Wend. 77/ 2 Sail 345 / 17 PieJi. 606.

The-civil rights of a slave, were- merged in tbe master. Any donation or conveyance of property to a. slave, wbicb tbe master chooses to accept, vests-alone in tbe owner. “1 Bleb. Oom. 424/ 1 D&mcotfs Civil Z(m,jc>r 143, curb. 1. sec. 97 / 4 JDesscm. 266, 267. Property found by a negro, vests in tbe owner. 1 Stewa/rt- JRejp. 320/ 9 Mm.. 271/ 2-JPicJs. 424. Tbe Probate Court bad no jurisdiction.

Appeal front/ Lafayette Cvrcmb O'owvt im, QTicmeery. Hon. Sheetoh WatsoN, Circuit Judge, presiding.. After a cause is set for bearing and before a bearing, a party cannot by motion dismiss a* bill for want of equity, because there- may be a remedy at law.. 14ANA.358.. • Nothing but tbe facts- on face of tbe-bib can-be- considered'here,. and these facts show jurisdiction.. 1- Sto.. Eg., see._28,. 33, 65,71..

<p>Error to Hempstead 'Owouit OovH.</p> <p>Hon. SheltoN "Watsoh, Circuit Judge.</p>

Tbe Hon. ShbltoN WatsoN, Circuit Judge. Tbe Circuit Court bad no jurisdiction to try tbe case on tbe merits, until tbe justice of tbe peace bad responded to tbe writ of certiorari, and where tbe Circuit Court acquiresjurisdiction on a writ of certiorari, it can render no other judgment than merely to quash tbe proceedings of tbe justice, or affirm them with an order to return them to tbe justice for executing tbe judgment. 1 A/rk. 480/ 4 ib. 473; 5 ib. 364/ 3 Eng. 115 / 4 ib…

<p>Whore one of several defendants pleads to tin action, and the plaintiff replies, and on motion of a co-defondant, the original writ of summons is quashed, and judgment “that he go hence,” there is no final judgment in favor of the defendant pleading, to -which a writ of error will lie.</p>

Tbe petitioner filed a motion for a writ of babeas corpus, to admit to bail bis negro man, who was in tbe custody of tbe sheriff of Pulaski county, on an indictment for murder. Tbe petition alleged tbat tbe office of Judge of tbe Circuit Court of Pulaski county was then vacant, and would continue so for some time, and prayed tbat this court would issue tbe writ, &c.

Hon. Beaufoet H. Neely, Circuit Judge, presiding- contended’ that tbe jury might well have resorted to tbe mode here adopted of ascertaining tbe amount of tbe plaintiff’s damages, or to any other mode they might think proper, by way of compromising conflicting' opinions, in a case, like this, sounding in damages. That neither tbe affidavit of a juror, nor bis statements to others, is admissible in evidence to prove facts impeaching bis own verdict.

Writ of Error to the Oi/rcuit Oowrt of Eot Spring Oowity. Hon. John C. Mubbay, Circuit Judge. submitted that, as the-cause of action in this case did not accrue until within a few months before the expiration of the two years, this case does not come within the recent decisions of the court upon the statute. The legislature can limit the time for bringing actions without impairing the obligation of contracts, but cannot shorten the time unreasonably.

Hon- William: H. Hemd, Circuit Judge. The facts that Ashley 'was the accommodation endorser or security for Sevier, which Was necessarily known to the plaintiffs; that the note was suffered to remain under protest from IVIarch, 1846, contrary to all banking usage, without any suit or demand -against Asbley, until December, 1848, after bis death and'the insolvency of Sevier; that payments of interest on 'the note were made by- Sevier from time ■to time subsequent to the…

Tbe Hon. Shelton WatsoN, Circuit Judge. General construction and effect of pardons. & Eng. 284/ 7 id. 122 / 7 Peters 130/ 3 vol. U. 8. Pig.,p. 78, sec. 14, and case there cited. Tbe judgment or conviction wbicb was pardoned by tbe Governor, was in favor of tbe State of Arkansas.

The Hon. William: H. Eeild, Circuit Judge. Even where there is an executor or administrator, who will not sue, or assent for the distributees to sue for chattels, to which they are entitled, such distributees ma j file a bill in equity to enforce their rights. Thomas vs. White, 3 Htt. Rep. 180/ Wood/uoa/rd vs. Threlheld, 1 A. K. Ma/rsh Rep. 10/ Deatley, áse., vs. Mwphey, dke., il>. 480.

<p>W. and T. entered into a contract, some time in the month of January, that Twas to oversee for W. that year, at the rates of five hundred dollars per annum: Held, That'this was not a special contract for a definite time, and at a feed price, the complete performance of which was a condition precedent to a right to compensation; and that the contract being- performed though, in some respects, differently from the terms of the agreement, indebitatus assumpsit will lie for such, compensation as the overseer is entitled to.</p> <p>A contract, that the overseer shall not cany a horse, or dogs upon the plantation of his employer, and if he does, that he shall forfeit his wages: the penalty is waived by the employer, if upon the horses and dogs being carried there, he agrees to receive compensation for keeping the horse, and merely requests that the dogs be taken off, instead of promptly discharging- the overseer.-</p> <p>A contract, under such employment, that the overseer shall make a “fair average crop," means that the crop should be a fair average one, making- due allowance for the season and unforeseen events beyond the control of a prudent, faithful overseer; and not that the crop shall be an average one, at all events.</p> <p>Upon ascertaining the compensation due, in such case, to the overseer, the jury may, in then- discretion, allow interest.</p>

<p>Writ of Error to the Circuit Gov/rt of Independence Comity.</p> <p>Hon. B. H. Neely, Circuit Judge.</p>

Hon. Felix I. BatsoN, Circuit Judge. A valid writ of attachment or execution, is a protection to an officer in seizing personal property, wbicb be finds in tbe possession of tbe defendant in snob writ — possession of personal property bein g prima facie evidence of ownership. Williams vs. Lownds, 1 Hall 595/ 8 Gowen Rep. 65/ 7 Wend. 236.

Agypedl from the Oi/rcmt Ooxvrt of Jefferson Ooxmty. Hon. J. C. Murray, Circuit Judge. In a plea of failure of consideration, tbe facts must be set out wherein it has failed. Eicleson vs. Bxvrh, 1 Eng. 412/ Oheney, use, c&o. vs. Higginbotham, 5 Eng. 213. Such plea must ayer a complete failure. Willit vs. For-mm, 3 J. J. Marsh. 292. A plea, admitting consideration/but denying its validity in law, is not supported by proof of no consideration, or a failure of consideration.

Tbe Hon. SiieltoN Watson, Circuit Judge, presiding. Tbe instrument sued on in this case, was not assignable at common law. Its negotiability depends wholly on our statute of assignments. Ch. 15, Reto. 8tat. 161.

Writ of Error to the Circuit Cowrt of Ciarlo Coimty. Hon. J. C. Murray, Circuit Judge. In suits on endorsed paper, before justices, it is not necessaiy that endorsements should be filled up. Sterling Failure to prove notice on endorser, would not release maker jointly sued. Ferguson et al. vs. State Ba/nk, 7 Eng. 512. The action was upon a bond, .and, in such case, the endorsement must be in writing, or full endorsement, to show any legal title. Bloch vs. Walker, 2 Ark. Rep.

Hon. Feliz I. BatsoN, Circuit Judge. The negroes in. controversy were purchased with a part of the proceeds of the sale of their mother’s “ reservation under the provisions of the treaty made by and between the United States and the Chickasaw Nation of Indians; and conveyed, by deed of conveyance, by the agent who purchased them for the defendant, Joab Bean, and by his express direction.

<p>Appeal from the Cwcmt Cowrt of Pulasl&i County.</p> <p>Hon. WilliaM H. Feild, Circuit Judge.</p>

Hon. Beaufort H. Neely, Circuit Judge. Tbe subject of tbe conveyance in tbe deed of John J. to Benjamin B. Clanton, admits of no doubt or ambiguity. Pelham ad. vs. Wilson et al., é Arle. Pep. 292. Tbe court will effectuate tbe intention of tbe parties, if it can be done consistently with, the rules of law. 1 Mass. Rep. 219 / 10 J.-R. 133/ Oh. on Bills, 8th Ed. 92.

Before tbe Hon. A. B. Greenwood, Circuit Judge. Tln'fi cause was argued at tbe January Term, 1854, before the>; Hon. ChRistopheR C. Soott, Judge, and Hon. Sakuel H.. Hemp-stead, Special Judge. James Kelly’s beirs. 1.

. Appeal from JPulaski Circuit Court. Hon. ¥h. H. Feild, Circuit Judge. cited -sections 68, 6% 70, 5é cmd 55, ch. 67, Pig., and contended that it was the duty of the sheriff to have -struct off the property for cash, and required ■the same to be paid, and as, in this ¡case, he saw fit to strike off ■■the property without requiring cash to be paid down, he is liable to the plaintiff, as he thereby saw fit to assume the payment of the amount bid, and it was a satisfaction of…

A writ of quo wourrante was issued, upon tbe motion of tbe Attorney General, against tbe defendant, to sbow by wbat authority be exercises tbe office of chancellor, and assumes to exer•cise a separate chancery jurisdiction, aside and apart from tbe Circuit Court, in and for tbe County of Pulaski.

Hon. Thomas Hubbaed, Circni t Judge. The defendant had tlie right to ask the prosecutrix and witnesses as to particular acts of lewdness on her part, and was not confined in the examination to her general character as to want of chastity and virtue, or truth and veracity; and had the right to ask the prose cut-rix as to her connection with other men ; and also to ask of, and prove by, other witnesses, particular instances of such connection.

<p>Ajppeal from the Oi/rmit Oowrt of Pulaslci OownPy.</p> <p>Hon. ¥m. H. Feud, Circuit Judge.</p>

Hon. ¥m, H. Field, Circuit Judge. Tbe complainant was entitled to tbe decree asked for. Sec. 19, chap. 28, Digest. It is competent to dismiss a bill for wrnnt of prosecution. Monteith vs. Taylor, 9 Vesey 615/ Lyon vs. Dvmbell, 11 Vesey 608.

Writ of Quo Wa/rrmto. The only question to be determined in this case, is, whether the resignation of Josiah Gould, in 1851, created a vacancy in the office of Circuit Judge of the 2d Judicial Circuit, or a vacancy in bis term of that office.

<p>Ajojoedl from the Circuit Court of Lafa/yette Cowntyy m Chancery.</p> <p>Hon. SheltoN WatsoN, Circuit Judge.</p>

Cross Appeals from the Pulaslci Circuit Court im Chamcery. Hon. ¥k. H. Field, Circuit Judge. West et al. Tbe first question in this case, is, wbetber the intestate, Eugene L. H. Williams, took, at tbe death of tbe testatrix, the share devised to bis mother, Henry E. Williams, for life ;• or wbetber that legacy of tbe residuum lapsed.

Cross Appeals from the Circuit Court of Jefferson County in Chancery. Hon. John C. Mukbay, Circuit Judge. The pretended deed of trust executed by Taylor and others, was a mere nullity, because it was executed by parties having no interest whatever, unless it be as to Paul and Francis Yaugine, who were direct heirs of the intestate. As to them, possibly, it had force.