Volume 16 — Arkansas Reports

Apjjeal from the Circuit Court of Hot Spring County. Hon. Shelton WatsoN, Circuit Judge. 1. The question presented for the consideration of this court, is, whether the papers, offered in evidence, show such prima fade title in the plaintiffs as authorized them to maintain ejectment. That they do show sufficient title, and were competent evidence, vide Digest 454, see. 2/ McClairen vs. Wicker, 3 Eng. 195 / Morton vs. lleeder¿ 5 Miss. R. 356 / Jackson vs. Wilcox, 1 Scam.

<p>Appeal from the Circuit Cov/rt of Sot Bpring County.</p> <p>lion. J’oiiN C..Mubray, Circuit Judge.</p>

Writ of Error to the Oirewt Ooxvrt of Phillips Oounty. Hon. Ciiaeles W. Adams, Circuit Judge. Tbe statute requiring no formal pleading in tbe Probatef Court, tbe objection to tbe prayer of the petition, will be treated as having tbe legal effect of a plea of ne xm-ques administrator.

Writ of Error to the Cvrouit Gourt of PulasM County. Hon. WilltaM Ii. Eeild, Circuit Judge. The affidavit is a substantial compliance with the statute. When the debt is stated, and the further fact that all credits are given, to say that “the amount demanded is justly due,” is only stating a conclusion of law from facts already stated. Digest, 127.

<p>Appeal from, the Gireidt Court of Oxiaehita County.</p> <p>Hon. Shelton "Watson, Circuit Judge.</p>

<p>The cases of Hemphill vs. Hamilton, ad., 6 Eng. 425, and Anderson et al vs. Wilson, 13 Arh. 409, as to the right to sue in the representative or individual capacity, approved.</p>

Hou. Beaueort H. Neely, Circuit Judge. The law requires the County Cotvrt, at its first term, after the adjournment of the Circuit… Held: it is the duty of the sheriff, within 20 days after the time when it ought to have been held, to summon sixteen persons so qualified, &c. And if the sixteen persons so summoned, do not attend, on the first day of the Circuit Court, then such court shall order the sheriff, forthwith, to summon a sufficient number of qualified persons,…

Ajpjpeal from the Circuit Court of Independence Cou/nty. Hon. Beaufort H. Neely, Circuit Judge. The law of tbe land in force, where a contract is made, enters into every contract, and becomes a component part thereof: and more especially a particular statute, providing for a particular class of contracts to be made a part of a record and of a judicial proceeding, enters into such contract.

lion. .William If. Feild, Circuit Judge. 1. That tbe appellant, having been elected Swamp Land Agent, given bond, taken the oath of office, and received a commission, was entitled to compensation from the date of his commission. 2. That the 6th section of the swamp land act does not deprive him of compensation: but merely increases his powers on reciv-ing “books &c.,” as therein provided. 3.

Hon. A. B. Greenwood, Circuit Judge. To sustain tbe count for money paid, it is necessary, 1st. That money should have been paid or expended by tbe plaintiff: 2d. That tbe defendant requested the plaintiff (expressly or impliedly) to pay tbe money for bis use; and 3d. That tbe money should have been paid for a debt for which tbe defendant was originally or primarily liable to the third party. Chitiy on Con. (7 Amer.

Apjpeal from the Circuit Court of Chicot County. Hon. JohN C. MURRAY, Circuit Judge. The Planters Bank of Mississippi was the owner of the note, and her paper, which she was bound to receive in payment, was depreciated, and the surety, if he chose to pay the debt, should have paid it in such paper, for the benefit of his principal. Woodruff vs. TrapnaTl, 10 How. U. 3.

Writ of Error to the Clrcidt Gourt of Sevier Gounty. Hon. Shelton Watson, Circuit Judge. The defendant bad a lien on the property for services, and it could not be removed until tender or payment; and, of course, replevin would not lie. Wheeler vs. MeFa/rla/nd, 10 Wend. 318 / Sharp vs. Whittenhall, 3 Hill 576. Replevin will only lie for a tiling capable of clear identification, and of specific delivery. 2 Saund. PI. d> Jiv. 760/ 1 Oh. Pleadings.

<p>A party conveys property by doed, duly recorded in another State, to a trustee for the benefit of bis wife and children; afterwards, upon the death of his wife, he removes to this State, and sells the properly to a third person: the purchaser connot defend as “an innocent purchaser,” when it appears that ho was informed that the children had a claim to the property, and was referred to one who could give further information.</p>

Writ of Error to the Circuit Court of Prai/rie County. This was an action of assumpsit for $300, instituted by Mace against Robinson, for work and labor in making and burning brick, and determined in the Prairie Circuit Court, at the February Term, 1853, before the Hon. William H. Feild, Circuit Judge.

AppecA from the Circuit Cou/rt of Lawrence County. Hon. Beaueoet H. Neely, Circuit Judge. That the refusal to deliver the cow and calf on the written demand of Boothe, and the reasons given for such refusal, were a conversion. 2 Saund. 47 f., 47 p./ JParher vs. Coden, 2 Sir. 818/ Grant vs. King, 14 Verm. 367.

<p>R., by written contract, sold to D. Iris improvement on unsurveyed public land, binding himself to prove up his pre-emption right to a quarter section, embracing his improvement; and if obtained, make a valid title to D. Previous to the written agreement, R. stated to D., who made a personal examination of the laird, and was aware of R’s. rights, that he claimed the adjoining lands, supposed to be 64.0 acres, to conditional linos: and that by common understanding, this claim would be respected. The claim to the adjoining- lands was not respected, and the quantity fell short of that supposed: the pre-emption was not proved up by R., who applied to do so, because, by the sale to and possession by D., he alone had the right of pre-emption, which he proved up. I-Ibld, 1st. That there was no such deceit or misrepresentation as would affect the validity of the contract: 2d. That as D. obtained the right to a pre-emption through his purchase from R., it was equivalent, in equity, to a proving up of the pre-emption by R., and transfer of the title to D.</p> <p>As failure of consideration is a good defence at law, a bill in equity to enjoin a judgment at law, on such plea, should allege that no defence, whatever, was made at law. Arrington vs. Washington, 14 Aria. 218.</p>

<p>Appeal from Bradley Oiromt Court.</p> <p>Hon. Tueodorio F. Sorrells, Circuit Judge.</p>

Hon. Beaufort H. Neely, Circuit Judge. To entitle a party to a decree for specific performance, all the material facts must be clearly proven. A stronger case must be made to establish a right to a decree than will be sufficient to resist the claim of specific performance. 2 Story’s Eq., see. 693, 742, 769/ 12 Ark. 551, 552. The complainant was barred from recovery by lapse of time. The complainant’s action was barred by the statute of limitations.

Hon. SheltoN WatsoN, Circuit Judge. This deed in trust conveyed tbe legal title to James Hadley, and, by construction, possession also of said slaves, and his remedy at law, by replevin or detinue, was complete to get possession, had he been deprived of it, and in such case equity has no jurisdiction. Story Eq. PI. 473/ Mitf. Eq. PI. 123/ Oooper Eq. PI. 124.

lion. SheltoN Watson, Circuit Judge. We are really at a loss to know on wbat ground tbis suit was brought. It seems, from tbe allegations of tbe bill, to have been imagined that where a specific legacy is made to a woman, during her coverture, and she dies before her husband has reduced the legacy into actual possession, leaving him surviving, the legacy belongs not to him, but to her heirs or representative.

<p>Cross Appeals from the Circuit Cowt of JPulasJci County in Chamo&ry.</p> <p>Hon. "Wm. H. Feild', Circuit Judge.</p>

<p>If this court reverso a deoreo and remand the causo to the Circuit Court for further proceedings, that court can only carry into effect the mandate of this court so far as its direction extends: but tho Circuit Court is left free to mako any order or direction in the fnrthor progress of tho case, not inconsistent with tho decision of this court, as to any question not presented or settled by such decision.</p> <p>In this case, a right to the rents and profits of tho land, during the wrongful and fraudulent disseizin of tho complainant, necessarily follows tho recovery, as a consequonco resulting; and no express claim for rents and profits need have been sot up in tho bill, but they may bo recovered under the general prayer for relief.</p>

Writ of Error to the Circuit Court of Jefferson Cownty. Hon. J. C. Mueeav, Circuit Judge. Tbe point saved by exception, as to tbe impropriety of tbe evidence offered to prove payment of the drafts, And 1st. It is well settled law, that no person can be made tbe debtor of another against bis will; but be must voluntarily become tbe debtor, either by express or implied consent.

<p>jEjttot to the Circuit Court of PulasM County.</p> <p>Hon. "War. H. Feud, Circuit Judge.</p>

<p>Petition for writ of Mandamus.</p>

Ippeal from the Cvrowit Oowrt of Independence Govmty in Ohmeery. Hon. Beaueort H. Neely, Circuit Judge. contended that tbe circuit judge was disqualified to act by tbe constitution and tbe laws. Kelley et al. vs. Neely, (Judge) 12 Arh. Rep. 657. That tbe decree was rendered for more than was due on tbe debt. That tbe decree does not direct that tbe lands be sold in tbe order prescribed in tbe opinion of this court.

lion. J. 0. Murray, Circuit Judge. The plaintiff in error contends that the court erred in rendering judgment for a larger amount than appeared, by the bill of exchange, to be due, and-that it could not legally iind the damages, interest, and protest fees, unless- by the consent of the parties, but should have called a jury — especially as one of the counts was on an account stated. Ark. Digest, 809, sec. 81, 82, p. 216, 217.

<p>whore an account against a party is delivered to him, and he examines it carefully, and makes no objection to it, or any thjng contained in it, it amounts to an indirect admission of the debt — acquiescence or silence, when a demand is made, is equivalent to an admission.</p>

<p>Tha statute of limitations, prescribing ten years as the period of presumption of payment of a judgment, having been repealed before any vested right of defence under it, had accrued to the defendant, he can derive no benefit from it under his plea of payment.</p>

<p>On Appeal from Olm'Jc Ci/rcuil Gou/rb.</p>

Hon. *WM. H. Feild, Circuit Judge. So far as tbe ground, of relief set up in tbe bill, is tbe same as tbat set up in tbe garnishment suit, we insist tbat tbe complainant is concluded by tbe decision made in tbat case, and that tbe question is res adjudi-cata. A court of chancery cannot review tbe supposed errors of a court of law, much less of tbe Supreme Court, either directly or indirectly. Watkins ad. vs. MeDonald et al., 3 Ark. Rep. 270.

Hon. SheltoN WatsoN, Circuit Judge. Tbe note was deposited by tbe appellee with deceased for collection, and there is no proof that be ever collected tbe money, or failed to do so, through gross negligence or mismanagement. No proof was introduced showing that any demand had ever been made of deceased for the same, either note or money. See Ashley c& Bmgo vs. Taylor . 385.

Hon. SixeltoN Watson, Circuit Judge. 1. Where a general replication is put in to an answer, and the parties proceed to a hearing, the statements in the answer responsive to the bill, are to be taken as true, unless disproved by two witnesses, or one witness and strong corroborating circumstances. 1 Gill c& J. 270/ 3 Gill & J. 425/ 2 Blackf. 324/ 1 Paige 239/ 3 Wend. 532/ 4 Encj. 550.

Hon. William Ii. Fjsild, Circuit Judge. The plea tendered no 'material issue. It does not show that letters testamentary were granted to anybody. If it had done so, it could not affect Clark’s letters granted in Tennessee, or bis right to sue, as administrator, under our statute. If letters testamenta/ry had been granted in Kentucky, under general principles of law, they would have been wholly inoperar live in Tennessee. See Fendwick vs. Sear’s admr., 1 Pet. Cond.

Hon SiieltoN WatsoN, Circuit Judge. Tlie depositions could not have been suppressed on account of the first ground stated in the motion to suppress. Held: that the matter could not be set up, and the exceptions to the answer were sustained. This decision, whether right or wrong, is the law of this case; and settles and concludes every question now presented. No new question is presented by this record.

Hon. Charles W. Adams, Circuit Judge. To a cross-bill, tiled by a defendant against the complain ant, who himself has brought the defendant into the forum, a demurrer for want of equity in such cross-bill, should never be permitted or sustained. Mitf. Eq. PI., p. 64, -65/ 1 lloffm. Gh. Pr. 356; Fl-acI vs. Perry, 1 Mon. Rep. 258.

Hon. SheltoN WatsoN, Circuit Judge. Tbe record from Georgia, unless tbe defendant bad been party thereto, or been notified thereof, by tbe plaintiff, was not legal evidence against him. Duchess Kingston?s case, 11 St. Tr. 261; 20 Sow. St. Tr. 538, 1 Phil. Ev. 326, 3 Tb. (Cow. c& HUVs notes,) 803. A record is not evidence to prove tbe facts upon which a recovery was bad, as between persons not parties to such recovery. Lovel vs. Cunold, 2 Mum,.

<p>Appeal from the Cvreivit Cou/rt of Union County.</p>

Hon. William: H. Feild, Circuit Judge. The facts in this case are stated in the opinion of the court, at a former term. See 14 Ar7c., p. 268.

Hon. Felix J. BatsoN, Circuit Judge. One responsible obligor to the bond is sufficient — the statute does not require two. See Digest, eh. 17, see. o; and a bond is good, executed by securities alone. See Taylor vs. Richards, 4 Eng. 378. The substance of the issue, viz: the sufficiency of the bond, was therefore sustained oy proof of its execution, by one of the obligors; even if the rejoinder was good without being sworn to.

Writ of Error to the Circuit Court of Sevier County. Hon. SheltoN Watson, Circuit Judge.

Writ of Error to Sebastian Oircuit Gourt. Hon. Felix J. BatsoN, Circuit Judge. Upon the subject of variance, a distinction is now fully established between allegations of matter of substance, and allegations of matter of description. The former require to be substantially proved — the latter must be proved literally. Phil. Ev., vol. 5, p. 2/ Rossiter vs. Marsh, 4 Con.

Hon. JohN C. Murray, Circuit Judge. The court erred in sustaining the demurrer to tbe plea: 1st. Because act of December 28th, 1840, {seo. 5, chap. 47, Rev. St.,)-is not a general law. It only warrants terms 8 weeks after regular terms, on failures at the times fixed in that act — not where failures occur under subsequent acts. 2d. There can be but two return terms in the year.

Hon. John Quillin, Circuit Judge. It is certainly good law, that a court will not enforce the specific performance of a contract, unless it is ee/rtavn.favr, cmd just, in all its parts, and a requisite of all such contracts is that the remedy must be mutual and reciprocal, for one party as well as the other. This agreement is not only “certain, fair, and just,” but the remedy is mutual and reciprocal.

<p>Ajypeal from the Cvretiit Court of Union County.</p> <p>lion. Siielton Watson, Circuit Judge.</p>

<p>This court has the constitutional power to punish, as for contempt, for the publication of a libel, made during a term of the court in reference to a case then decided, imputing to the court, officially, bribery in making- the decision — such power being-inherent in courts of justice, springing into existence upon their creation, as a necessary incident to the exercise of the powers conferred upon them.</p> <p>The legislature may regulate the exercise of, but cannot_abridgethe express, or necessarily implied powers granted to this court by the constitution.</p> <p>The] statute, (Digest, chap. 36, sec. 1,) so far as it sanctions the power of the courts to punish, as contempts, the acts therein enumerated, is merely declaratory of what the law was before its passage: the prohibitory clause is entitled to respect as an opinion of the Legislature, but is not binding on the courts.</p> <p>By the common law, courts possessed the power to punish, as for contempt, libelous publications upon their proceedings, pending or past, tending to degrade the tribunals, destroy that public confidence and respect for their judgments and decrees, so essential to the good order and well being of society, and to obstruct the free course of justice.</p> <p>When the Supreme Court was created by the constitution, and certain judicial powers conferred upon it, the power to punish contempts of its authority, was impliedly given to it as a necessary incident to the exercise of its express powers.</p> <p>Tliero is no feature in the constitution, or in the character of our free institutions, which denies to this court the power to punish, as for contempt, libelous publications tending to degrade its authority, and destroy public confidence in the integrity of its judgments and decrees.</p> <p>The fact, that the convention, which framed the constitution, had the subject of con-tempts before them, and placed a limitation upon the legislative, but none upon the judicial department, to punish contempts, warrants the conclusion that the courts were left to exercise such common law powers on the subject, as might be necessary to preserve their authority, and enforce their legal process, orders, judgments, and decrees.</p> <p>Any citizen has a right to comment upon the proceedings and decisions of this court, to discuss their correctness, and the fitness or unfitness of the judges for their stations, and the fidelity with which they perform the important trusts reposed in them; but he has no right, under the 1th section of the Bill of Rights, to attempt, by libelous publications, to degrade the tribunal, &c. — such publications are an abuse of the liberty of the press, for which he is responsible.</p> <p>The cases of Neü vs. The Stale, 4 Eng. Hep. 263, and Gossart vs. The State, 14 Ark. 541, quoted with approbation.</p>

Hon. ShbltoN WatsoN, Circuit Judge. Lands selected by tbe State agents as part of tbe 500,000 acre grant, vested in tbe State as soon as selected; or, to avoid any doubt, we will say as soon as the list or evidence of selection was filed with tbe Register of tbe proper Land Office. In June, 1842, if not on the 16tb of May, this tract of land became vested in the State, as part of the 500,000 acres, unless-the pre-emption of Mrs. Taylor prevented.

Hon. SheltoN WatsoN, Circuit Judge. We apprehend that the counsel opposed to us hardly think of controverting the fact of mistake, at least; but rest their case on the broad position, that the… Held: and admitting that it stands on the same high ground as the sentence of a prize court, still it may be assailed for fraud, and its effect altogether avoided. Bradstreet vs. Neptome loisura/nce Oompcwiy, 3 Swnn. 604/ Pratt vs. Northam, 5 Mason 103/ 1 Gi-eenl.

JoiiN QuilliN, Circuit Judge. The sureties of Mrs. Clark, on her administration bond, were improper parties. The remedy against them on the bond, was purely of legal cognizance. Outlaw vs. The Governor, 5 Ark. 468/ Jones vs. The State, 14 Ark. 171. Tiie Probate Court is the forum where the alleged default of the administrator, for which they are to become liable on the bond, must be ascertained and established.

<p>The Circuit Court lias no jurisdiction to try, as an appeal case from a justice of tho peace, where only a copy of the judgment and the note sued on are filed: but should either dismiss the case, or upon proper showing cause the justice rendering the judgment,j,or his successor, or other person having custody of his docket, to certify a full transcript of the record.</p>

Hon. Beaufort H. Neely, Circuit Judge. Tbe pleas in abatement and exceptions to affidavit are merely frivolous. The exchange was no part of tbe demand. 2 II. Bl. 378; 3 B. Tbe contract for exchange is merely what is implied in any contract to pay in a particular place; that is. that tbe party will pay tbe value in money in that place. 1 McLea/n 423/ Story Conflict of Laws, sec. 509, and notes.

Hon. ¥m, H. Feild, Circuit Judge. Tliis was a petition filed in the Probate Court by James Lawson and Joseph Fenno, who are the securities of the ajipellant in a guardian’s bond, setting forth that he is not solvent and responsible ; and that he has in his hands five or six slaves, the property of his ward, which he does not hire out, as he ought to do, but keeps them in his own employment, and for his own use; averring, that they are unwilling, and refuse absolutely longer,…

<p>Appeal from, the Circuit Court of Johnson County.</p> <p>Hon. Felix J. BatsoN, Circuit Judge.</p> <p>Mr. Attorney General JORDAN referred to sec. 23, et seq., oh. 160, Digest ¡ Moffat vs. State, 6 Eng. 169 ; State vs. Mclridge, 7 Eng. 608.</p>

Hon. Theodokio F, Sokbells, Circuit Judge. There is no evidence in this case but the admissions of the party: but it is a well settled principle that the admissions of a party, when given in evidence, must be taken together, as well what makes in his favor as what makes against him. Stover vs. Gowen, 6 Shep. 174/ Howard vs. Newson, 5 Miss. 523/ Reese vs. Ha/rdy, 7 Miss. 343/ 1 Phillips Ev. 397/ 4 JBlackstom 357/ Roseoe’s Cripi. Ev. 38 to 44.

Hon. Felix J. BatsoN, Circuit Judge. Tbe indictment pursues the language of the statute; and is, in substance, good. It is wholly unnecessary to set out the name of the person to whom the spirits were sold. Digest Ark., chap.f51, sec. 3; Moffatt vs. Tbe State, 6 Eng. 169; Bhover vs. State, 5 Eng. 259; Brown vs. State, 13 Ark. 96; The State vs. Eldridge, 7 Eng. 608.

<p>Error to tho Oircidt Qoivrt of PulasM Oormty.</p> <p>Hon. William H. Feeld, Circuit Judge.</p>

Appeal ^from the Circuit Court of GoT/umhia County m Chancery. Hon. ShbltoN WatsoN, Circuit Judge. 1. Can a decree pro confesso be rendered in an application for a divorce, a vinculo matrimonii, without some proof being adduced in support of the allegations of the bill ? Viser vs. Bertrand, 14 Ark. 282. 2. Is a service of subpoena in chancery by reading, a sufficient service to warrant the rendering of a decree pro confesso? Sec. 10, chap. 28, Digest.'

<p>In proceeding, under the statute, against the reputed father of a bastard child, it is not necessary that there should be other pleading than the mere denial of the defendant to authorize the Circuit Court to submit the matter, whether he is the father or not, to a trial by jury.</p> <p>And in such proceedings the defendant should not be allowed, on cross-examination of the mother of the child, a witness for the State, to ask her as to the number of times, the place where, the time of day when, he had connection with her, or the mode of pi meeting for such purpose, unless such questions be confined to some definite time within which the child might have been begotten.</p> <p>But the defendant may well ask the witness in such case: how do you know that the defendant is the father of the child?</p>

Hon. TiioMAS Hubbard Circuit Judge. It is the duty of the grand jury to preserve the .minutes of their procedings and of the testimony given before them, which shall be delivered to the attorney lor the State. Dig., chap. 52, sec. 61. This is intended as a guide for the attorney in the prosecution, and it is at least a reasonable inference that it was as much the intention of the Legislature to protect the innocent as to convict the guilty.

jError to tho Circuit Court of Arkansas County. lion. Tiieodoexo F. Soeeells, Circuit Judge. Plea alleging death of wife after suit, was a good bar to the action as to the husband. IS Wend. 300/ 2 Kent 143/ 1 Sch. d¡ lef. 263/ 3 P. Wms. 409/ 2 Pop. on II. dc W. 73, 74/ McQueen's II. dc W. 193/ 5 Parr 359.

Hon. Beaufoet H. Neely, Circuit Judge. This case must be determined by tlie construction of the 31si section, chap. 37, Digest.

Hon. Tiieodoeio F. Soekells, Circuit Judge. The indictment cannot be sustained as charging the statutory offence created by seo. 4, chap. 51, Digest, for it is a rule of pleading that it is, in general, necessary not only to set forth in the indictment all the circumstances which make up the. statutable definition of the offence, but also to pursue the precise and technical language in which they are expressed. Chitty’s Grim.

Hon. TiioMAs Iíubbaed, Circuit Judge. 1. The court should bayo sustained Atkins’ motion to be discharged, for the court discharged the jury without absolute or inevitable necessity. 3 Phill. on Ev. 953, a/nd cases there cited j Commonwealth vs. Coove, 6 Serg. & Ramie 577/ 10 Yerger 536 / Stewart vs. State, 13 Arh. 747/ Sevens vs. State, 6 Eng. 455. 2.

Hon. War. II. Feild, Circuit Judge. That the bill was evidence of consideration, and a right of action existed in the payee, see the case of Owen vs. Lamine, 14 Arh. 390.

Writ of Error to the Gi/rcuit Court of Phillips Qov/nty. After making points and citing authorities to show that the original judgment was erroneous, contended that the original proceeding and first judgment, being erroneous, the second and dependant statutory judgment is necessarily erroneous also. Fowler vs. Gibson et al., 4 Arrie. 11. 427/ Barton vs. Petit <& Bayard, 2 Oond. B. 494/ 8. G. 7 Oranoh. 288.

<p>Writ of Error to Arleanscts Circuit Cowrt.</p> <p>Hon. Theodoeic F. Sobbblls, Circuit Judge.</p>

Writ of Error to the Cwouit Court of PulaSlci County. Hon. ¥k. H. Feild, Circuit Judge. This court has decided that the statute of limitations does not run against the creditor of an estate, from the period of the death until administration is had.: that when the statute has commenced to run, it will stop At the death, and will not commence running again until there is administration.

The Eon. Felix J. BatsoN, Circuit Judge. 1. That the report in this case was partial and unjust, and ought to hare been set aside. 2. That the exceptions to it should have been sustained. 3. That the testimony does not warrant the decree, and that it is erroneous. Authorities referred to : Digest 236/ 1 Dev. Oh. B. 61/ 2 Munf. 235/ 9 Porter 79 / 13 Arh. 619/ ílitt. 258/ 2 John. Oh. B. 495/ 2 Daniell 1390, 1388/ 2 Smith 151/ 2 Da/niellPT^th to 1395, 1355.

<p>The statutory judgment on a forfeited delivery hond, is perfect, immediately upon the forfeiture, unless set aside for cause at the return term of the execution, without any action of the court confirming the judgment: and as the original judgment is extinguished, eo insimti, upon the forfeiture, hy the statutory judgment, a writ of error will not lie to the original judgment, though sued out before the return term of the execution.</p>

Apjpeal from Yell Ovrouit Oowrt. Hon. “WM. H. Feild, Circuit Judge. In this case, the deceased having had peaceable possession of the slave for five years from the 19th of December, 1816, and there being no writing acknowledged and recorded, his title was perfect; and, therefore, there should be a new trial.

<p>Appeal from Sebastian Circuit Court.</p> <p>I-Ion. Felix J. BatsoN, Circuit Judge.</p>

<p>Error to Monroe Circuit Court.</p> <p>The Hon. Ciiaeles W. Adams, Circuit Judge.</p> <p>referred to Borden et al. vs. Trustee B. E. Banh, 6 Eng.</p>

The Hon. Felix J. Batsox, Circuit Judge. A copy of the claim, not having been served, on the administrator, the judgment, according to Borden vs. Fowler, 14 Arle. 474, must be reversed.

The Hon. Thomas Hubbaed, Circuit Judge. A payment made by a stranger, without the consent of thé defendant, and where there is no privity of contract, cannot amount to an extinguishment of a judgment. To produce that result, it must be made by the defendant, or with his authority and consent, express or implied.

ThoMAs Hubbard, Circuit Judge. Fraud renders all contracts tainted with it void. Ch. on Con. 678, (5 Am. Ed.,) and notes d ■and 2; and is a good defence : 1 Story Ey. Jursee. 60; 3 AT. Samp. 455/ 15 Mass. 319, Procuring an illiterate person to execute an instrument or deed, which is different from what he understands it, or misreading it to him,- is a fraud which will avoid it, Jaclcson ex. dem. Btissell vs. Gory., 12 J. P. 469; 24 Wencl. 419/ 1 Story's Eq. Jur., sec. 60.

<p>Appectl from Hempstead Circuit Court in Chamcery.</p> <p>The lion. Thomas Hubbabd, Circuit Judge.</p> <p>The deed of Matthew to B. P. Ryburn, was a testamentary instrument. 4-Dessau. 617/ 12 H. Hamp. 371/ 4 MeCorcl 198/ 1 Phil. 1, and cases cited; 4 McGordVb/ West’s case Ho. ¥l1¡p. 314/ 1 Hagg. 130 / ib. 488 / 1 Russ. 498 / 3 Keb. 310/ 8. C. 1 Mod. 117/ Ves. J. 204 / 8. C. 4 Bro. C. C. 335/ 4 Hawks. 141; 2 Hagg. 554/ Walker 520.</p> <p>B. P. Ryburn was a direct trustee — to pay debts and distribute residue.</p> <p>Any property may be the subject matter of a trust; and a trust of personalty, ’may be created or proven by parol. Hill on Tr. 44, 57, 58/ 2 Ala. 156/ Ambl. 264/ 2 8. TP 393/ 2 J.<& W. 565, 573/ Hill on Tr. 114, 119 H. A. / 2 Kelly 297/ 4 8andf. Sup. 102/ 7 8m. c& M. 319.</p> <p>Where parties act at all in respect to trust property, they will be deemed trustees, with like effect, as if they had executed the deed, and assented to act as such. Hill T. 215/ 17 Ves. 488/ 19 Ves. 638 / 2 Sch. c& Lefr. 231/ Hill T. 215/ 3 McLean 50.</p> <p>In cases of express trusts, the statute of limitations, or the analogous bar in equity from the staleness of the demand, has no application. 14 Ark. 66/ 2 Eng. 518/ 3 J. C. R. 216/ 7 ib. 90/ 17 Ves. 97/ 2 Sch. c6 Lefr. 633/ 4 M. dé C. 52/ 2 KeenlTl; Hill on Tr. 265/ 3 M. & Or. 31, 33/ 7 B. Mon. 556/ 3 Kelly 383/ 1 Maryland Oh. Dec. 53.</p> <p>The act of December 19th, 1846, {Rev. St. chap. 153,p. 943,) does not operate a bar unless there is adverse possession, which, never can exist in cases of express trusts, as between trustee and cestui que trust.</p> <p>The concealment of the facts, and the mistake under which the parties acted, would debar B. P. Byburn from protecting himself by lapse of time. Hill on Tr. 148/ 3 S. W. 300/ 1¡] Y. c& 0. JEkeh. Gas. 238/ 2 Lead. Gases in Equity, part 2d.,p. 251, 255/ 3 Swanst. 409/ 4 Russ. 58/ 3 P. Wms. 315, 321/ 2 Russ. <& M. 614/ 2 Ball dé B. 171/ 2 Bear. 31, 56/ 3 P. Wins. 315/ Cow. <& HilVs Botes, p. 1438, 1439, and eases cited / Bill Tr. 527. '</p> <p>Infancy and coverture will prevent the operation of the statute, whether trusts are express or implied, until the disability is removed. 3 Brev. 438/ Bill on Tr. 265/ 1 Bro. O. G. 9, (&c., ib. 266/ 3 Myl. ds Gr.\ 31, 42/ 4 Geo. 75/ 3 Swanst. 64/ Or. <& Phil. 135/ Bill on Tr. 527, and eases cited.</p> <p>Points, &c. 1. That the property acquired by the appellee, from his father, was not sufficient to pay his debts.</p> <p>2. That it belonged, and does now belong, to the appellee.</p> <p>3. That it was not a testamentary disposition of property. Digest 987. Consideration may be proved by parol. 15 Arle. 278.</p> <p>4. The paper signed by appellee, was without consideration and a nude pact. 1 Shitty on Cont. 29/ 4 Shepley 458/ 4 John. 235. There was no mutuality. 2 Story's Eq. 723, 790. Specific performance would not be decreed of it. 1 Madd. R. 1/ 1 Seh. dsLef. 13/ 2 Story’s Eq. 742, 793 a.</p> <p>5. Appellee did not become or act as a trustee.</p> <p>6. Under act of 19th December, 1846, the title of appellee is good by five years possession. Digest 943/ Angelí 205/ 17 Yesey 93/ 1 Eng. 16, and cases cited.</p>

<p>Since the passage of the act of 11th January, 1853, in relation to common schools, the Trustees of Common Schools, and not the county commissioner, are proper parties to bring suits on notes given for the purchase of the sixteenth section.</p>