Volume 17 — Arkansas Reports

<p>"Whore tho declaration upon a bond contains two counts, one in the usual form; the other, also, in the usual form, but sotting up matter intendod to meet the defence, a plea, that there was no consideration for the bond, but failing to notice the matter sot up in tho second count, will bo intendod to apply to both counts.</p> <p>"Where tho defondant pleads, generally, that there was “no consideration for tho bond sued on," the burden of the issue is upon tho plaintiff; but if ho pleads, specially, the matters showing a want of consideration, ho thereby assumes tho proof of the issue.</p> <p>The burden of the issue being assumed by the defendant, by ploading specially, it is not removed from him to the plaintiff by a replication averring that there was a “valuable consideration for the bond” — such averment will bo taken as a simple tra-verso of the plea, or treated as surplusage. McDaniel vs. Grace at al., 15 Ark. Sep. 490.</p> <p>Where tho maker of a bond assures tho assignee, before assignment, that the bond will bo paid at maturity; and aftowards, to an action upon the bond by the assignee, pleads that there was “no consideration,” lie must prove that, at tho timo of such assurance, ho was ignorant of any fraud or deception in the contract — if he was aware of any equity that would release him from the payment of the bond, and he concealed it, he is forever precluded from setting it up against the assignee.</p> <p>Under a special plea of no consideration, it is incumbent upon the defendant to prove every material fact set out in his plea, and a failure to do so, will determine the issue against him.</p> <p>A plea of no consideration, is sustained by proof, that the consideration of the bond sued on, was the sale of a “patent right" to. make, use, and vend a certain medicine, represented as being patented, and that no patent had ever been issued for such medicine.</p> <p>The acts, declarations, and admissions of a person, who has sold and transferred an article, or a right or privilege, made subsequent to such sale, are not admissible in evidence in a suit between others, growing out of a contract in relation to the sama subject.</p>

<p>A judgment by attachment, boforo a justice of the peace, without personal servico of process upon the defendant, or appearance, is a judgment in rein; and cannot be transferred to the office of the clerk of the Circuit Court, for tho purpose of constituting a lien upon the realty of the debtor, or of being satisfied by execution or garnishment, out of property or effects, other than the goods attached.</p>

<p>Appeal from the Circuit Court of /Scott County.</p> <p>The Hon. Felix I. Batsof, Circuit Judge.</p>

Writ of Error to Montgomery Circuit Court. Hon. Thomas HdbbáRd, Circuit Judge. That the instructions asked for by tbo plaintiff in error ought to have been given. 4 PMll. Ev. 121/ 2 Saund. PI. <& Ev. ¡,677/ 2 Creenlf. Ev. 98, sec. 112/ 1 Stark. Pep. 474/ 4 Esp. 9.

<p>Tire latter clause of tlie 3d section of the act of Congress, approved 3d of March, 184Í, amendatory of acts in relation to tho Department of Indian Affairs, and to trade and intercourse with the Indians, is too broad and comprehensive, in its terms, to be restricted to contracts for spirituous liquors,</p>

The TIon. Thbodoeio F. Soeeells, Cirbuit Judge. The court below, we think, clearly erred in dismissing the bill of review, for whatever may be the evidence as to the new matter charged, or the law arising thereon, some of the errors pointed out by the bill as existing in the former decree, clearly ought to have been corrected. And, if so, to dismiss the bill, was erroneous. See 2 8m. Chan. Rep. 51, 56/ 4 Mon. Rep. 145/ 3 Cilm. Rep. 10/ 4 Hen. dé Munf. Rep. 244/ Story’s Eg.

Hon. John C. MURRAY, Circuit Judge. There is no proof that Graham furnished Yarn with any money, or appointed him his agent. The answer in this respect is not responsive; and, therefore, no evidence. Yarn’s answer is no evidence for Graham, and if it were it could only be so, so far as responsive to the bill. 1 Eng. 317 y ib. 79 y 5 Ark. 9y 9 Cow. 37y 2 Dana 167 y Ores. Eg. Evidence 21. The evidence of Case, unexplained by other evidence, was conclusive.

Hon. JoiiN C. MueRAy, Circuit Judge. No principle is. better settled by authority, than that where the signature of an unlettered man is obtained to a bond, by misreading, or misrepresentation as to its true character he may avoid it, by plea of fraud, or special non estfaotwn. If a man, that is illiterate, desire a bond read, that he is to seal, and it is not done, and he seal it, it is not a good deed.

Writ of Error to the. Ovrcuit Qourt of PMllüps Coimty. Hon. ChaRues W. Adams, Circuit Judge. The plea is not objectionable, because it amounted to the general issue ; or because the matter relied on, could have been given in evidence under the general issue. In detinue, at the common law, to which our statutory remedy of replevin in the detinet is analogous, a lien must always have been pleaded specially. 1 Gh.

Writ of Error to the Circuit Court of Pulashi Comity. Hon. William II. Beild, Circuit Judge. There is no difference in the form, or construction, or effect of notes and bonds made under our law. Story Prom. Wotes, sec. 3, 4, 33, 34, 35 ; Walher et al. vs. Johnson et al., 13 Arh. Pep. 528. No contract is to be construed as a surrender of a legal right — • as to assign contracts generally — especially as against a party wlio does not execute the contract.

Writ of Error to the Circuit Court of Ashley Cou/nty. The Hon. Tueodoeio F. Soeeells, Circuit Judge. The judgment in this case was clearly wrong. The proof of the assignment in full was uncon-tradicted; and there was no pretence that the note was either reassigned, or the assignment stricken out. The plea was a proper-one in bar, and judgment ought to have been rendered in Kirkpatrick’s favor. Gamblin et al. vs. Walker, lArk.

<p>Appeal from the Circuit Court of Ouachita County.</p> <p>Hon. Thoitas Hubbaed, Circuit Judge.</p>

This was an action of ejectment brought by Jordan against Bradshaw and Manuel, and determined in the Pulaski Circuit Court before the Hon. William: H. Peild. The plaintiff, to sustain the issue to the plea of not guilty, read in evidence a deed from the Auditor to James Mills for the land in controversy, which had been forfeited for non-payment of taxes; and a deed from tbe sheriff of Pulaski county to him, reciting an execution against said Mills, in favor of Asa Gr.

<p>Cross Appeals from the Ciarle Circuit Court in Chcmcery.</p> <p>Hon. Thomas Hubbaed, Circuit. Judge.</p>

Hon. Beaufort H. Neely, Circuit Judge. . It is a serious question whether under our comprehensive administration system, as regulated by statute, there can or ought to be such a thing in this State as an executor de son tort The courts of Probate are, in the first instance, the custodian of all estates. The policy of the administration law, is to have a speedy administration of all estates.

<p>Appeal from the Circuit Cov/rt of Union County.</p> <p>Hon. Shelton Watson, Circuit Judge.</p>

Writ of Error to the Pulaski Oirouit Oourt. Hon. Willau: H. Feild, Circuit Judge. „ The court below erred in refusing the 1st, 2d, and 5th instructions moved by defendant below ; and in charging the jury that no presumption of payment arose within twenty years from date of judgment. This latter instruction was erroneous upon another ground.

Writ of Error to the Independence Girouit Court. Hon. Beaufort II. Neely, Circuit Judge. That the writing obligatory for which the money advanced was tho sole consideration, was void for usury, was settled by the decree of the chancellor. And the law clearly fixes usury upon the transaction. Diz/est, p. 61é ; sec. 5 to 8; Weatherheadvs. Boyers, 7 Yerg. Rep. 562; Andrews vs. Pond et al., 13 Ret. Rep. 15; 3 Stark. 1524/ Levy vs. Brown & Eenno, 11 Arle. Rep. 22.

<p>Appeal from Bradley Circuit Court,</p> <p>Hon. Theodorio F. SoRrells, Circuit Judge.</p>

Hon. TiieodobiC F. Sobeells, Circuit Judge. A demand was necessary before tbe institution of this suit, and the court clearly erred in refusing the instruction upon this point. 2 Creenlecuf, chap, on Trover, page 532 ; Beebe vs. DeBawn, 3 Eng.

Hon. Theodobic F. Sorrells, Circuit Judge. The court erred in overruling the objections to the introduction of the deposition of Samuel Burke, because the deposition itself showed that Burke was incompetent as a witness. Greenlf. Ev., secs. 300, 393, 395; and because a party cannot be introduced to impeach any instrument executed by him, or deny that he has any title in the property. Greenl. on Ev.,page 30, see. 24; Randal vs. Phillips, 3 Mason 378.

Ciiaklks W. Adams, Circuit Judge. The appellees bad. a complete remedy at law. The husband was liable. When the writing obligatory was executed, Mrs. Dobbin, had full power and authority to do it. It was expressly reserved to her by the contract with ber former husband, Fillow. During her widowhood, she might have been sued at law; and after her marriage with Dobbin, lie became liable for all lier debts then existing.

<p>Appeal from the Circwit Court of Arkansas County in Chancery.</p> <p>Hou. Tiieodoeic E. Soeeells, Circuit Judge.</p>

<p>Appeal from the Circuit Court of Ashley County in Chancery.</p> <p>Hon. JoiiN C. Murray, Circuit Judge.</p>

<p>Appeal from Lafayette Circuit Court in Chancery.</p> <p>Hon. Siielton Watson, Circuit Judge.</p>

<p>Each party’s pleading is to be taken most strongly against himself; but pleas in bar are not to be construed with the severity which is applied when testing dilatory pleas, and will be deemed sufficient, if by rational intendment they meet the cause of action in matter of substance.</p> <p>To an action upon a note payable to the Real Estate Bank and assigned to the plaintiff, the defendant pleaded that the consideration of the note was the transfer and. assignment of the control and management of an execution, then in the hands of the sheriff, and of all executions to be issued thereafter, on a judgment in favor of the éank against S. and R.; that the execution was returned unsatisfied, except as to a partial payment made out of the property of one of the defendants ; that another execution was issued upon the judgment, of which the Bank, subsequently, while it was in the hands of the sheriff, took the control and direction, and caused it to be returned, while it was unsatisfied and the money still due and unpaid, without the consent and against the will of defendant, whereby the consideration of the note sued on had failed — in all which the plaintiffj as agent of the Bank, participated :</p> <p>Held, 1st. That as the plea did not negative the fact, that the money made on the exeention was paid to the defendant, the rule, that all pleadings will be construed most strongly against the party pleading, will so intend.</p> <p>2. That the facts set up in the plea did not show a total failure, nor a total want of consideration; nor do they constitute a bar to the action, upon the principle of re-scisión of contracts; but as the assignee was entitled to a cross action for damages for the breach of the contract on the part of the Bank, in taking control of the execution and causing it to be returned, the defendant might recoup such damages.</p> <p>A party to a contract will not be allowed to repudiate or rescind it, where the failure of performance by the opposite party was but partial and without fraud, leaving in his hands a subsisting and executed part performance; nor where it is impossible for both parties to be restored to the condition in which they were before the coinraot was made.</p> <p>And even in eases of fraud, the party seeking to rescind a contract, must, within urea-sonable time after the fraud comes to light, make his election and proceed u> rescind by a return or offer to return whatever he may have recuvc-d under the contract of any value whatever to either party.</p> <p>In all that class of cases, commonly called failure of consideration, "whether involving bad faith or not, or where fraud has intervened, or there has been a breach of warranty, fraudulent or not, or of any other stipulation of the contract sued upon, entitling the defendant tó a cross action against the plaintiff to recover damages for such failure, fraud or breach, he may, instead of resorting to such cross action, recoup the damages sustained by him.</p> <p>The cases of Wheat etal. vs. Dotson, 1 Eng. 699; Smith vs. Gapers, 13 Arle. 9: and Robinson vs. Mace, 16 Xb. 91, as to recoupment, approved; also the cases of Glarle vs. Moss ei al, 6 Eng. 136, and Woire & Miller vs. Pennington et al, Ib. 145, as to the assign, ment of judgments by parol.</p> <p>"Where a part of the plaintiff's declaration is unanswered by the plea, he may take judg. ment therefor, but if he fails to do so, it is his own laches, and this court will not reverse the judgment for that cause.</p>

<p>Appeal from {Dallas Ciromt Court.</p> <p>The Hon. Theodobio D. Sobeells, Circuit Judge.</p>

<p>Appeal from Hempstead ''Circuit Omrt.</p> <p>Hon. Shelton Watson, Circuit Judge.</p>

Writ of Error to Clark Circuit Court. Hon. Thomas Hcjbbaed, Circuit Judge. The only point in this case is, whether the demurrer should have been sustained to the amended plea. The question is decided, that the plea is good, by this court, in Smith vs. Henry, 2 ling. 207.

Writ of Error to Sebastian OirGwit Court. Hon. Felix J. Batson, Circuit Judge. The utmost strictness is required pleas in abatement, and no intendment will be made in their favor. 2 Saund 209, C. / 1 Eng. 103/ 4 Eng. 388. The plea in this case, having prayed judgment of the writ and declaration, was bad, and the demurrer to it was properly sustained. 5 Arh. 460/ 3 Arle. 502 / 1 Mg. 460 / 3 T. R. 185/ 13 Wend. 495/ 2 Hen. ds Munf. 308.

<p>The issue to a plea of not guilty to an indictment for assault and battery,' cannot, by consent of parties, be tried by the court. (Wilson vs. The Slate, 16 Ark. Sep.)</p>

<p>Appeal from, Lafayette Gweuit Court.</p> <p>Hon. Shelton WatsoN, Circuit Court.</p>

<p>One of several defendants in an indictment, still pending against him for the same offence, is not a competent -witness for his co-defendant.</p> <p>This court will not set aside the verdict of a jury upon the weight of evidence. (14 Ark. 419 ; 13 16. 285, 236, 112; 1 Eng. 43.)</p> <p>This court will presume in favor of the verdict and judgment, where the bill of exceptions fails to state that all the evidence is put upon the record. (2 Eng. 348; 3/6. 429; 4 /&. 418.)</p>

<p>Where it appears from the transcript that there is a conflict between the statements in the record entry, and in the bill of exceptions, this court will disregard the statement contained in the bill of exceptions. (State vs. Jennings, me &c., 5 Sng. 449.)</p> <p>Where the record states that the jury were “ duly elected, tried and sworn herein,” this court will hold that it is shown with sufficient certainty, by intendment, that the jury were properly sworn in the cause.</p> <p>The appointment of a deputy sheriff continues no longer than the term for which his principal was elected; and if the principal sheriff be re-olectod, it requires a new appointment, and approval under the statute, to continue in office his former deputy.</p>

<p>Appeal from Cla/rh Circuit Cou/rt in Chancery.</p> <p>Tbe Hon. SheltoN WatsoN, Circuit Judge.</p>

<p>Appeal from the Clarlt Circuit Court.</p> <p>Hon. ThoMAs TIubbaRD, Circuit Judge.</p>

<p>Writ of Error to Pulaski Circuit Cou/rt.</p> <p>Hon. John J. Clendenin, Circuit Judge.</p>

<p>On the trial of a scire facias on recognizance for appearance in a criminal case, the hail bond and record entry of forfeiture are competent evidence, and sufficient to fix tho hail, if the recognizance he in form, and taken by the proper officer, and the scire facias follows, substantially, tho recognizance.</p> <p>To a plea of former recovery to a scire facias on recognizance, the State replied, in substance, that the trial and former recovery pleaded by the defendant, was not a trial and recovery upon the merits, but was only a judgment in bar, rendered upon a question of law, not involving the facts or the merits of the cause: Held, That tho replication was a good response to the matter of the plea.</p> <p>A substantial compliance with the statutory form (sec. 61, chcvp. 52, Digest,) in a scire facias on recognizance of bail in criminal cases, sufficient.</p>

<p>Where the defendant interposes' a demurrer, -which was argued and submitted, and the-record then states, “that the parties came by their attorneys, and the plaintiff saying nothing' further in reply to the defendant’s demurrer, the court doth render judgment against said plaintiff,” and then follows a final judgment in the cause, this court will hold, that the demurrer was disposed of before final judgment was rendered..</p> <p>Where one of several defendants interpose a demurrer, going to the right of the plaintiff to recover and not to the personal discharge of the party pleading, and it is adjudged in his favor, it enures to the benefit of his co-defendants.</p> <p>The provision of the statute, that the recognizance of bail, for the appearance of a party, to answer for a criminal offence, shall name the nature'of the offence charged, is sufficiently complied with, by stating that he shall appear and answer the “ State upon a charge of ltilling one Thomas Wheeler: ” which will be construed to mean a felonious killing.</p> <p>It is not necessary that a recognizance of bail should recite all the facte, which prove-that the officer, before whom it was acknowledged or executed, had, jurisdiction to act in the particular case, if it is conditioned to do some act, for the doing of which, such an obligation may properly be taken.</p> <p>As to the form of a recognizance an0. scire facias thereon, see Ccmnon ei'al vs. The Stats, ante.</p> <p>Where the scire facias purports to issue upon a- recognizance taken before one justice-of the peace, and the recognizance given on oyer, appears to have been taken before two justices of the peace, it is a fatal variance — the demurrer presenting the variance being treated as a plea of ml iiel record,.</p> <p>Quere: Is a demurrer the proper mode of taking advantage of a variance between a recognizance of bail and the scire facias thereon ?</p>

Hon. William Ii. Ficild, Circuit Judge. A deposit in court is an absolute payment pro tanto. The appellant could, but the appellees never could withdraw it. 1 Wencl. 197; 7 J. B. 315; 3 Cow. 338; 5 Mass. Bep. 365; 2 T. B. 645; 1 Saund. Bep. 33 c. n. e. and f; 2 Salk. 397 and notes; 2 Str. 1027; 1 J. B. 202; 1 Bos. dk Bull. 332; 10 Bast 48. Courts deal summarily with deposits. 2 Hill N. Y. 538; 3 Dan. Ch. Pr. 2028.

<p>It is by no means certain that sections 132 and 133, {chap. 126, Digest,) were intended to apply to cases pending in the Circuit Court on appeal from a justice of the peace; and where, in such case, the courts upon consolidating several suits, upon which one action might have been brought, refuses to tax the plaintiff with the costs in all the cases but one, this court will not control the discretion of the Circuit Court in that respect.</p> <p>It is not the province of this court to disturb the verdict of a jury, if it be not totally unsupported by evidence, although inclined to think the weight of evidence is against the verdict.</p> <p>The application of a witness to explain his testimony, after he has given it in and retired, is addressed to the discretion of the Circuit Court.</p> <p>"Where the defence, to an action on a note is, that it was given for the purchase money of a slave, and that the slave was unsound at the time of the purchase, there is no objection to proof that the slave was sound at some time prior to the sale, provided the jury clearly understand that his soundness, at the date of the sale, and not at a prior time, is the matter in issue.</p>

<p>Error to Union Circuit Court,</p> <p>Hon. Thoaias Hubbabd, Circuit Judge.</p>

<p>An affidavit for attachment, containing all the substantial requirements of the statute, and filed before the issuance of the writ, is sufficient, though not “entitled,” nor attached to any of the original papers in the cause.</p> <p>An action will lie at the suit of a drawer of a bill of exchange, against the acceptor, upon presentment to, and refusal to pay by the acceptor, and payment by the drawer: And such bill, with endorsement of acceptance, is admissible in evidence for the • plaintiff.</p> <p>The cases of State Battik vs. Gonway, 13 Aria. 305, and Jones vs. Gatlin, 16 lb. 35, as to the practice on motions for new trial, cited and approved.</p>

<p>Appeal from Phillips Oi/rcuit Court.</p>

<p>Newly discovered evidence, to afford a ground for new trial, must have been discovered since the fomer trail; must be such as reasonable diligence could not have secured at the former trial; must be material, and not cumulative; must be such as ought to produce on another trial, a diffierent resuelt, on the merits, and must go to the merits. ;</p> <p>A motion for new trial, in general, will not be granted unless 'accompanied by the affidavit of the newly diecovered witness.</p>

<p>A candidate for an elective office, receiving a majority of the votes polled, where tlier wore but two persons voted for, but not a majority of the votes of the qualified electors, is not legally elected to the office, though so proclaimed by the judges of election, and commissioned by the Governor — the authority to fill the office being derived from the free choice and election of the qualified electors, not from the pro clamation of the judges of election, nor the certificate of election, nor the eommis sion of the Governor.</p> <p>A commission is, simply, evidence of a right to hold an office, gives color to the acts of the incumbent, and constitutes him an officer de facto; but invests him with no right to the office, and it becomes destroyed, canceled and superseded, upon the issuance of a commission to another, who has been legally elected to fill the office.</p> <p>The corporate authorities of a city, having the right, by their charter, to pass an ordinance providing a tribunal before whom contested elections, under it, should bo tried’, and providing the course of procedure in such cases, may pass such ordinance after an election has been held, and invest such tribunal with power to determino contests arising out of such previous election.</p>

<p>This court lias jurisdiction, on appeal from the Circuit Court, of a cause originating in the County Court, on the petition of a land owner to reduce and correct the assessment of his lands.</p> <p>The 4th section of the act of 1853, (Acts of 1853, page ‘13,) prescribing the mode of assessing the lands of non-residents, is not in conflict with Article 4, section 2, of the Constitution of the United States, nor of the compact entered into between this State, upon its admission into the Union, and the United States, which forbids nonresident proprietors to be taxed higher than residents.</p> <p>This court will not set aside the assessment of lands made by three house-holders of the vicinage under oath, upon the testimony of witnesses who swearmerely as to the value of the lands, generally, in the same township.</p>

<p>Appeal from the Circuit Court of Johnson County.</p> <p>Hon. JohN J. CleNDENIN, Circuit Judge.</p>

<p>A remittance of money by mail, is at the risk of the party mailing it, unless there he an express direction to remit in that mode, or a usage or course of dealing from which the authority so to remit maybe inferred.</p> <p>The fact that a previous remittance had been made by mail, and the mode of remittance not objected to, is not an authority or direction to adopt that mode at the risk of the creditor, to whom the remittance is made: nor is the letter of the creditor requesting remittance, but specifying no mode.</p> <p>A usage is not proved by a single, isolated instance: nor' is a course of trade or dea ing proved by a custom on the part of one person.</p>

<p>The plaintiff or his attorney may, -under our statute, dismiss, in vacation, any suit pending in any of the courts of this State, except in actions of replevin; but he cannot, by an order to dismiss an attachment suit, relieve himself of the costs incurred in preserving the property attached, where the sheriff cannot deliver such property to the owner and relieve himself from responsibility; and this court will not interfere with the discretion of the Circuit Court in allowing the sheriff Ms reasonable costs incurred in the preservation of the property under such circumstances.</p>

<p>Appeal from Johnson Circuit Cowrt,</p> <p>Hon. JohN J. CleNdeotN, Circuit Judge, presiding.</p>

<p>Error to Jolmson Circmt Court.</p> <p>Hon. Felix J. BatsoN, Circuit Judge.</p>

<p>Appeal from Poinsett Gvrewit Gowrt.</p> <p>The Hon. G-eoege W. Beazlby, Circuit Judge.</p>

<p>Appeal from Crawford Circuit Court.</p> <p>The Hon. Felix J. BatsoN, Circuit Judge.</p>

<p>It is error in tlie court to render judgment, by nil dicii, against the defendant, -without disposing of a demurrer interposed to the declaration.</p> <p>The right of action upon an assigned note is in the assignee; and if it passes into the hands of another without assignment or endorsement, he has but an equitable interest, which gives him the right to use the name ol the assignee in bringing suit upon the note.</p> <p>The payee and assignor of an instrument of writing, under seal, for the payment of money, may be sued jointly with the obligor, in an action of debt, by the assignee, on non-payment.</p> <p>The defendants demurred to the declaration; their demurrer was overruled; they craved oyer of the instrument sued on; and again demurred, and set down for cause, that the declaration did not allege a delivery of the writing obligatory sued upon: Herd, That, as this cause did not grow out of the oyer granted, it should have been set down in the first demurrer.</p> <p>The cases of Byrd vs. Cummins, 3 Arh. 394, and Cummins vs. Woodruff, .5 Arle. lit, as to the effect of oyer of the instrument sued on, and the right of the defendant to take advantage of a variance between it and the note as described in the deelation, cited.</p> <p>The prayer and grant of oyer of the instrument of writing sued on,-do not bring the assignments on the note, &c., upon the record: and if the defendant would take advantage of any defence, growing out of the assignments, he must crave o-ver of them.</p>

<p>Appeal from Crcmfovd Circuit Court.</p> <p>Hon. Felix J. Batson, Circuit Judge.</p>

<p>The eases of State Banin vs. Conway, 13 Arle. 344; Jones et al. vs. Gatlin, 16 Arle. cited.</p> <p>Quere: Does a mistake in stating the name of the judge, before whom a judgment, upon which the suit is founded, was rendered, constitute a variance, of which advantage may be taken.</p>

<p>Appeal from Pulashi Cvrouit Court.</p> <p>The Hon. JohN J. ClehdeNIN, Circuit Judge.</p>

<p>"Where there is an exception to the instructions given by the court below, and all the testimony saved by bill of exceptions, but no motion for a new trial, this court will consider the testimony only so far as it may be necessary to do so, in order to test the correctness of the instructions.</p> <p>An instruction, in a suit by a surviving partner, on a writing obligatory given to the firm, to which the defendant pleaded that the bond was not given to the firm, but to the deceased partner, by the firm’s name; “That if the jury believe, from the testimony, that the bond in evidence was given for a debt contracted prior to the dissolution of the partnership, the name of the partnership could be used after the dissolution, and the suit maintained by the surviving partner,” is not calculated to mislead — being stated hypothetically: nor abstract — there being some evidence conducing to prove the hypothesis; and is good law^ — one of the firm, having authority to use the firm name in the settlement of its concerns, after dissolution..</p>

<p>The' case of MiUer vs. Bailiff, 14 Arle. 419, and other'decisions, that this court Will interfere with the finding of a jury upon the Weight of evidence, approved.</p>

'This cause was decided by the lion. Thomas P. Hanly, Judge, and the Hon. Thomas Johnson, Special Judge — the Hon. E. H. ENGLISH, Chief Justice, not sitting, and the Hon. C. C. Scott being absent.

<p>It is not against public policy, nor the spirit of our laws, to donate, in perpetuity, a lot of ground for charitable purposes — as for the use of a religious denomination as a place of worship: and deeds for such purposes should be liberally construed, in order to uphold the trust.</p> <p>The trustees under such a deed, which provides that the “lot of land is never to be sold, or to be used iu any other way, only for the use of a church,” cannot create a charge upon the lot by a contract for the erection of a house thereon^ so as to authorize the mechanic to obtain a lien and sell the lot in payment thereof — they cannot do indirectly that which they are prohibited from doing directly.</p> <p>And if the trustees permit such a hen to be cheated upon the lot, and suffer it to- be sold, thereby defeating the object of the grant, the grantor, though there be no clause of forfeiture in the deed, may apply to a court of equity to set aside the sale, and divest the title and possession of the purchaser.</p>

<p>Appeal from Independence Ovreuit Oourt.</p> <p>Hon. BeaueoírtJEL Neely, Circuit Judge.</p>

<p>Ajpjpeal from Drew Circuit Court.</p> <p>Hon. Theodokic F. SoRRels, Circuit Judge.</p>

<p>The plaintiff, for whose use a suit is brought, is liable under the statute, for the costs; and, if a non-resident, is required to file a bond for cost before the institution of the suit.</p> <p>■Where a non-resident plaintiff brings a suit without filing bond for costs, and the defendant pleads that fact in abatement, but cannot prove the non-residence of the plaintiff, he is entitled to discovery from the plaintiff.</p>

<p>A constable in the execution of civil process, is not restricted to the township in which he resides: and it is sufficient in an indictment for resisting process in the hands of a constable, that it state that the resistance was made in the county where he resides.</p> <p>An indictment for resisting an officer in the execution of process is sufficient if the charge be made in the language of the statute (Digest, page' 359,) without stating the manner of resistance.</p> <p>As to the necessary averments of an indictment descriptive of the offence charged, see the case of Slicker vs. The State, 13 Ark. 397.</p> <p>We have no law authorizing the court to sit as a jury in the trial of a criminal case ( Wilson vs. The State, 16 Ark.; Bond vs. State, at the present term.)</p> <p>In an indictment for resisting process, the justice, who issued the process, is a competent witness to prove his own official character.</p> <p>On the trial of an indictment for resisting process of execution, upon which the officer has made return of “no property found,” it is not contradictory of the return — in the sense in which the truth of a return of an officer is not permitted to be disputed. — to prove acts of the defendant preventing the levy of the execution.</p> <p>The defendant may well prove, in such case, that the property upon which the officer attempted to make the levy, being in his possession, was his own, and not the property of the defendant in the execution.</p>

<p>A court of equity is competent to relieve against an ordinary Judgment obtained in a court of record by means of fraud; and the statutory judgment springing into being upon the forfeiture of a forthcoming bond, cannot stand upon any higher ground: And so, where there is fraud in procuring an execution to be levied upon property not subject to execution; and in procuring the bond given for its delivery, to ,be forfeited, and so returned by the sheriff, the court will grant relief by perpetual injunction.</p>

<p>The act of the íth December, 1854, entitled “An act further to regulate the manner of bringing’ suits against the State,” is constitutional and within the competent powers of the Legislature.</p>

<p>This case comes within the rule laid down in State Sania vs. Oonway, 13 Ark. Eep¡ 344.</p>

<p>This court will not reverse a judgment, for the failure of the record to state that a motion, in the court helow, to set aside the judgment, had been disposed of; but will presume in favor of the regularity of the proceedings of the Circuit Court, that the motion had been abandoned.</p> <p>The blank endorsement and delivery ‘of a promissory note,’ constitute such a transfer of the interest in the paper as to vest in the transferee the right of action and recovery. (Worthington vs. Curd & Go., IS Ark. 508.)</p> <p>Independent of the ordinary presumption, in favor of the regularity of the proceedings of the Circuit Court, this court will presume that the cause was regularly tried by the court on all the issues — being issues of fact — though not so stated of record, where the judgment recites a finding by the court of all the facts necessary to sustain the judgment.</p>

<p>Writ of Error to Pojpe Cvrouit Cowrt.</p> <p>Hon. "Wm. H. Feild, Circuit Judge.</p>

Hon. William H. Feild, Circuit Judge. On the 24th April, 1852, Joseph R. Bettison brought ejectment against John J. Budd, in Pulaski Circuit Court before the Hon. Wm. H. Feild, Circuit Judge, to recover possession of lots one, two, three and fov/r, in fractional block, twelve, in Pope’s addition to the city of Little Rock.

<p>Error to Phillips Oirouit Gow't.</p> <p>Hon. Charles W. Adams, Circuit Judge.</p>

<p>The estate of a deceased person, in the hands of his administrator, is not liable to pay for medical services rendered to the family of the deceased after his death.</p> <p>It is the right, and duty of an administrator to employ medical attendance for the slaves of the deceased, in his possession, when sick; and it would be the duty of the Probate Court to allow such expenses, as costs of administration.</p> <p>But the employment in such case would be a personal contract, as between the administrator and physician; .and compensation, therefor could not be recovered in an action of assumpsit against the administrator as such, as upon a promise by the intestate.</p>

<p>Appeal from Pulaski Circuit Court.</p> <p>Hon. Jorar J. Clendenin, Circuit Judge.</p>

<p>Petition for writ of O&rtiora/ri to a Justice, of the Peace.</p>

<p>Appeal from the Circuit Court of PulasM County.</p> <p>Hon. ¥m. H. Feild, Circuit Judge.</p>

<p>The terms and subject matter of a submission to arbitration, when not in writing, and not shown by other evidence, can only be gathered from the award and what may be shown to have followed: And where the award is of the widow’s claims for dower in the personal estate of her deceased husband, and under sec. 51, chap. 4, Digest, the court will not conclude that any other claims, not of the nature of dower, were included in the submission.</p> <p>It is within the legal discretion of the Probate Court, which ought not to be controlled unless shown to have been used to manifest injustice, (Bcmkhead vs. Hubbard et al, 14 Ark. 298,) to allow the widow a certain sum, by way of commutation, for the provisions, &c., on hand at the death of her husband, where they have been used by the administrator instead of having been delivered to the widow under sec. 56, chap. 4, Digest.</p> <p>An appeal cannot be taken from the judgment of the Probate Court, allowing a claim against an estate, after the expiration, of the term. (McMorm vs. Overholt, 14. Ark. 245.)</p>

<p>A party, who calls Ms adversary as a witness, under section 108, chap. 95, Digest, has up right to he sworn as a witness himself, unless his adversary refuse to testify.</p> <p>Pleas to the merits are a waiver of the necessity of proving the representative character of the plaintiff, in a suit by an administrator.</p>

<p>Appeal from Monroe Circuit Court.</p> <p>Hon; Chaeles W. Adams, Circuit Judge.</p>

Framois County. This cause was argued in this court before the Hon. C. C. Soott, Judge, and the Hon. Thomas Johnson, Special Judge— the Hon. E. H. English, Chief Justice, and Hon. T. B. Hanly, Judge, not sitting.

Francis Ci/rcuit Court. Action of debt upon a writing obligatory in tbe Circuit Court of St. Francis county, before Hon. Charles W. Adams, Circuit Judge.

The Hon. HulbeRT F. Fairchild, Chancellor. Held: that it can make no difference whether the possession be held uniformly under one title or at different times under different titles, nor whether the possession be held by the same or a succession of individuals, provided tbe claim of title bas been ad/uerse to that of the plaintiff, and the possession has been continued and…