Volume 18 — Arkansas Reports

We insist, first: That the note and mortgage were executed upon a usurious consideration and void. Upon this point it is only necessary to refer to our Revised Stat. p. 614, sec. 1, 5, 6, 7 and 8. 5 Barber 8. C. Rep. 127, and the current of authorities. Second, That the Bank had no authority to make such a contract, and that it was not binding either upon the Bank or Pel-ham or Magruder.

<p>It is not necessary that the power to authorize an agent to pay over money for his principal, should be in writing- — -as where the owner of land sold for taxes, authorizes an agent to pay the taxes, etc., and redeem the land.</p>

1. The mere ownership and possession of land even on both banks of a stream, do not give a party a right to keep a ferry. (Digest chap. 69.) 2. As the bill is silent upon the subject of the proprietorship on the opposite bank, it may well be that the appellees have license based upon their possession on that side; and if so, they could not be prevented from landing on this bank. 3.

<p>Appeal from the Circuit Court of Pulaski county in Chancery.</p>

That parol testimony is admissible to show that a deed, absolute upon its face, was intended as a mortgage, is no longer an open question. 4 John. Gh. Rep., 167; 4 Kent 141, A. seq.; 3 Dana. 27G; 1 Hozo. 8.

That all the contracts of an infant are voidable, and not void. Bing, on Infancy 11 note 2; 2 Kents Com. 236; Story on Con. sec. 38; Reeves Bom. Rel. ¡¿51, and cases cited; 1 Am. Lead. Cas. 90 et seq., 104 etseq., and authorities cited; 3 Bac. Air. 546-7; Cro. Jac. 465; 2 Tidd Pr. 436; 19 J. R. 422; Bing, on Infancy 27 n 2; Burr. 1794, 1808; 5 B. & Aid. 759. JThat a judgment rendered against an infant is not void, but wmly erroneous, and cannot be impeached collaterally.

That parol proof is not admissible to vary, explain, or contradict a deed, nor can the terms of a deed be varied or explained by parol, where there is no latent ambiguity. Singleton vs. Fore, 7 Miss. 515; Same vs. Price, 5 lb. 101; Davis vs. Davis, lb. 56; 1 Ala. 436; 1' Brevard 166; Falconer vs. Garrison, 1 McCord, 209; McCullock vs. Girard, 4 Wash. C. C. R. 289; Greenleaf chap. é,p. 162; 3 Starkie 1008.

Carrington owned that, under the agreement between her and Bouldin; and the effect of the decree in favor of Fowlkes, was to confirm both sales to him, that under order of the Probate Court and that made by Hannah, the trustee, and absolutely decreed to Fowlkes all the title which Carring-ton had at his death in the property so sold. A deed of trust with power of sale will be regarded in equity simply as a mortgage, with like power.

A slave is but a mere chattel interest; and as such cannot be regarded as capable of being in the peace of the State. Wheeler’s Law of Slavery, 243; 2 Hill S. C. ,Rep., 453; 2 Bailey S. C. 98; 2 Bay S. C. R. 700.

Beyond any doubt, whatever, if the master commanded, or ordered tbe servant to commit the crime, he, and not the servant, is liable for the injury; and the testimony offered to be introduced, in exculpation of the servant, by showing it to have been done at the command, order, or direction of the master, was certainly competent and material.

<p>In order to charge the heirs and legal representatives, by decree of a Court of chancery, with the debts of their father, it is incumbent on the complainant, first, to establish his demand against their father; and then make it appear that lands or slaves had descended, or assets been distributed to them from their father’s estate, which were chargeable with the payment of the debts. (Walker ad. vs. Byers, 15 Ark. 253.)</p> <p>The answer of the defendant, as to a matter within his personal knowledge, being sworn to, and responsive to the bill, must be taken as true, unless it is overturned by two witnesses, or one with strong corroborating circumstances.</p> <p>After the submission to final hearing and decree of a bill to charge the heirs with a debt of their father, the complainant, having failed to establish by his depositions that the heirs had received any assets, moved a reference to the master to ascertain what assets had come to their hands from their father’s estate: held, that it was the business of the Court to ascertain from the pleadings and evidence whether the heirs had received assets, etc.: that if they had, then the Court might have required the master to ascertain their character and value.</p>

Assignments in preference of creditors are tolerated, not favored by the law.

1st. Did not the Bank, if she ever had any lien upon the property in dispute, waive and lose the same by accepting the bill of exchange, with a new and additional security, inpayment of the note assigned to her and which was given for the property?

The legal effect of a mortgage of personal property, independent of any stipulation contained in it as to the possession, is to transfer the possession to the mortgagee, or to give him an immediate right of possession. Watson et al. vs. Williams et al., 4 Blaclcf. 26; Hawkins vs. Ingals, id. 35, 4 Blaclcf. 425.

The Court should have sustained the motion to strike out thatpart of the testimony objected to, as it was irrelevant, for no proof can be admitted of any matter not noticed in the pleadings. DanielPs Gh. Pr.. 814, 815, 992. As fraud is never presumed, the facts and circumstances constituting the fraud must be stated with distinctness and precision. Conway vs. Ellison, 14 Ark. 363; Alden vs. Lincoln, 13 Mete.

<p>It is not necessary, in an indictment under the act of 12th January, 1852, (Paraph acts of 1852, p. 205,) for playing cards on Sunday, to allege that the game was played for amusement, or that the defendant bet upon the game.</p>

<p>Appeal from the Independence Circuit Court.</p>

<p>An indictment charging the defendant with betting upon a gambling device commonly called a Faro Bank, held good on motion in arrest of judgment.</p>

<p>Appeal from, the Circuit Court of Drew county.</p>

Writ of error to the Circuit Court of Pulaski county. As to the variance between the declaration, in alleging a decree for costs, and the decree offered in evidence, see Stephen on Plead. 190; Butler vs. Owen use, etc., 2 Eng. 373; Caldwell vs. Bell Sf Graham, 3 Ark. 421.

<p>Appeal from the Circuit Court of Sebastian county, in Chancery.</p>

<p>Appeal from, the Circuit Court of Independence co., in Chancery.</p>

<p>The defendant in a suit by attachment -will not be allowed to call in question the truth of the affidavit on which the writ of attachment issued. (Taylor vs. Mearás Hoffman, 4 Eng, Bep. 378.)</p> <p>Under the provisions of the Statute {oh. 17 Dig.,) an attachment may be issued as well against a defendant, who is a non-resident of this State, or who is about to remove out of this State, or who is about to remove his goods and effects out of this State, or who so secretes himself that the ordinary process of law cannot be served on him, as against absent or absconding debtors — the grounds specified in the third section being cumulative of those named ia the first.</p> <p>The word “ absent” in the first section of the act should not be taken or understood in its literal sense; but as intended to mean those who have absconded or are nonresidents — mere absence from the State temporarily, on business or pleasure, not being within the mischief of the act.</p> <p>It is not necessary that the affidavit for an attachment, when made by a person other than the plaintiff, should state that the affiant made it for the plaintiff.</p> <p>An affidavit that the defendant “ has been removing part of his goods and effects out of this State, and is about to remove the remainder of his goods and effects out of this State,” is sufficient under the Statute of attachment.</p> <p>A plea in abatement that “ it is not stated in the attachment bond filed in the suit, , that the Peet, Simms & Co., therein named, are Eleazer Peet, Philip Simms and John Lorathe, the plaintiffs named in the declaration,” held frivolous.</p> <p>So also, a plea that “ it does not appeal that the bond filed in the suit was ever duly approved by the clerk before the issuance of the writ of attachment” — the endorsement of approval upon the bond being merely one of the means of proving the fact, and though a duty on the part of the clerk, not essential to the legal rights of the defendant.</p> <p>So also, a plea averring “ that the bond for costs filed in the suit describes it as an action of debt;” but that it is an action of debt by attachment.</p> <p>The bond for costs required to be filed by a non-resident, before the institution of his suit, was made payable to the defendant by the given name of Hermant instead of Herman, his truéname; held that the variance was not sufficient to abate the suit— the defendant having a legal remedy upon the bond by proper averments and proof. (5 Arle 236; 14 ib. 627; 1 Eng. 70.)</p> <p>Where the affidavit in an attachment suit describes the plaintiffs as Peet, Simms Sf Co., and the writ describes them as Eleazer Peet, Philip Simms and John Lorathe, partners, etc. under the name of Peet, Simms 8¡ Co., there is no such variance as will abate the writ.</p> <p>A plea in abatement must exclude every conclusion against the pleader: and so a plea that the person who signed an attachment bond for the plaintiffs, had no competent authority from them to make it, is defective, unless it also avers that the act was not subsequently adopted and ratified by the plaintiffs. (Taylor vs. Ricards S¡ Hoffnan, 4 Eng. 378.)</p> <p>It is not necessary that the plaintiffs in an attachment suit should execute the bond required by the Statute: if a bond, good in form, for a sufficient amount, and payable to the defendant, be filed and approved by the clerk, though executed by others than the plaintiff, it is sufficient.</p> <p>The power of amendment is within the discretion of the Court. (4 Eng. 211; 16 Ark. 121.) And so, where the clerk approves and files an attachment bond, but fails to endorse upon the bond his approval before the issuance of the writ, the Court may direct him to make such endorsement: And so also, where there is an error in the bond for costs required to be filed by a non-resident before bringing his suit, in the name of the obligee, the Court may permit the obligor to amend the bond by inserting the true name of the defendant.</p> <p>It is error in the Circuit Court to proceed to render final judgment until all the issues raised or tendered in the cause are disposed of. (4 Ark. 527; 5 ib. 197; 14 ib. 621; 4 Eng. 67.)</p>

<p>Writ of error to Phillips Circuit Court.</p>

The points in this case are simple and few: the special causes of demurrer point out the objections to the plea, sufficiently — although the act of incorporation gives the town council power to prevent and remove nuisances. See Acts of 1854, page 68, sec. 7. Yet, the Council is bound by the constitution and laws of the land. See Constitution of Arkansas, art. 2, see. 6, 9 and 10.

<p>The declaration alleged that the note sued on was made payableto “ D. Bender:” the note filed on oyer was made payable to “ D. Bender & Co.” (with lines across the “& Co.”): the defendant’s plea, not sworn to, alleged that the note was not made payable to “ D. Bender” as alleged in the declaration; but to D. Bender and one James A. Henry partners, ete., by the name of “D. Bender & Co.:” Held that the plea was, in legal effect, a special plea of non est factum; that under the Statute, the plea should have been verified by affidavit: that for want of an affidavit it was properly stricken from the files.</p>

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

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

This cause was argued at considerable length, upon questions not involved in the decision, before Mr. Justice Scott, and Mr. Justice Hanly, and the Hon. George Conway, Special Judge — Mr. Chief Justice English, not sitting. An action of covenant in this case is an absurdity. The law authorized the Board to sign the contract, but not to seal it.

On demurrer to plea, the Court can only regard such defects in declaration as are absolutely fatal. 2 Ark. Rep. 115. The assignee of a lessee is a tenant, and subject to the same remedies as the original lessee; and so the assignee of lessor is landlord and entitled to the same remedies as original lessor. 2 Eng. 329; Arch. L. & T. 69, 70; Com. L. & T. 257,258, 259. Act of January 19, 1855 cannot warrant assessment of damages on judgment for defendant.

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

<p>The Supreme Court having adjudged, on motion to quash a supersedeas of a delivery-bond judgment, that such judgment was a mere nullity, all parties are bound by . the adjudication (Borden et al. vs. State use, etc., 6 Eng. 519;) and it was error in the Circuit Court to hold the judgment as still subsisting.</p>

<p>Appeal from, the Circuit Court of Randolph county.</p>

<p>Appeal from, Chicot Circuit, Court.</p>

This cause was argued at length by the counsel on both sides upon points made as to the validity of the deeds of settlement. also contended that there was no lien upon the slaves after the return of the execution and forfeited delivery bond: that the lien created by the levy was lost; that an execution is a lien only while it is in the hands of the officer unless the property is in his possession by a subsisting levy, (Rev. Stat. ch. 67, sec. 2; Biscoe etal. vs. Sandefur et…

From the nature of the subject, it would seem impossible to ■ err in respect to the intention, and scope and extent of the provision of the statute {sec. 12, ch. 58, Dig.,) authorizing alterations in the allowance of alimony. See Miller vs. Miller, 6 J. C. R. 93. In England, the matter of alimony, whether temporary or permanent, is always subject to modification according to the varying circumstances, in the sound discretion of the Court, upon a view of all the facts.

<p>A demand against an estate, barred by tbe statute of non-claim and regularly adjudged at law to be so, cannot afterwards be successfully prosecuted to recovery in equity, either against the representatives, or the heir or distributee, to whom assets may have descended or been distributed.</p> <p>All demands subsisting at the time of the death of the testator or intestate, whether matured or not, capable of being asserted in a Court of justice, whether of law or equity, must be exhibited within two years; also all coming into existence at any time after the death and before the expiration of the two years — without regard to questions of hardship, inconvenience, or diligence, unless they challenge a want of constitutionality in the operation of the non-claim statute, as applicable to a particular case. ( Walker ad. vs. Byers, 14 Ark. 247.)</p>

Petition for a Mandamus. For violation of a charter in appropriating funds to different purposes than those contemplated by the charter — -depreciating stock, etc., stockholder can enjoin collection of his stock in equity. Dodge vs. Woolsey Howard 331, and authorities cited: and also 16 How. 288; 11 Geo. 569; Angelí & Ames on Corp. sec. 312; Robinson vs. Smith, 3 Paige 231; Am. Law. Reg. Jan., 1853, p. 154; New Haven R. R. Go. vs. Croswell, 5 Hill 385.

1. The third breach is good, and the demurrer having been sustained to the whole declaration, the judgment must be reversed. 7 Eng. 725; 6 Blackf. 192; 2 Ala. 425. 2. The first and second breaches are good, because according to the real design and scope of an injunction bond, all damages occasioned by the injunction may be recovered by the party injured, whether technically adjudged or not. Digest 593.

<p>Writ of error to Prairie Circuit Court.</p>

<p>A discontinuance as to one of several defendants, served with process, in an action upon a joint and several promissory note, is a discontinuance as to all. (Jester vs. Hooper, 13 Ark. 47, and previous cases.)</p>

<p>Appeal from the Circuit Court of Bradley county.</p>

The complainant was not entitled to the relief prayed for in his bill,“for the reason that he did not bring into Court, or offer in his bill to pay the amount really due, with legal interest thereon; and his bill should have been dismissed with costs, etc. 1 Story’s Eq. Jur. sec. 64; Fanning vs. Dunham, 5 J. C. R. 122; Eagle vs. Shotwell, 1 J. C. R. 536; Rogers vs. Rathburn, 1 ./. C. R. 367; Tupper et al. vs. Rowell, lb. 436; McRaven et al. vs. Forbes, 6 Row.

The petitioner had his remedy by application to the County Court, under sec. 4, p. 55, Acts of 1852, to correct his taxes if they were overcharged; and having neglected that, he was without remedy. See Asborn vs. The Inhabitants of Dow?'iss, 9 Pick. Rep. „ If the petitioner had been compelled to make the payment, he had his remedy against the sheriff for money paid by compulsion. 12 Pick. 7; 21 lb. 64; lb. 75.

The depositions ought to have been excluded because taken before issue joined. Digest 431. The depositions from Alabama were not authenticated by the certificate and seal of the clerk of a Court of record, and should have been excluded. Dig. 434. The instructions given to the jury were improper. Three years is the limitation in an action of detinue: and this may be relied on under the general issue. Sand. PI. & Ev. 434; 3 J. J. Marsh. 365.

<p>Appeal from the ■ Circuit Court of Ouachita county.</p>

Wherever the law prescribes the form or mode of manumission — that form and mode must be followed, even where there are no negative words, forbidding a resort to other modes. McCutchen vs. Marshall et al. 8 Pet'. 238; Winney vs. Cortwright, 3 Marsh. 403; Bazzi vs. Rose and her child, 3 Mart. La. R. 149; 7 La. R. 135; 14 /. R. 53; Coche vs. Cocke, 3 Litt. 236; Beall vs. Joseph, Hardin's R. 51; 5 Martin's R. 494; 4 Mart. La.

By the common law, and in those States where the common law is in force and not changed by statute, “ The lien of an execution bears date from the teste of the writ, and although an execution is not, in reality, issued until after the death of the defendant, yet if it is issued and properly tested, as of a day previous to the death of the defendant, it is presumed to have been issued on the day of its teste, and by relation dates from that day, and by relation it can be…

<p>Appeal from the Chancery Court of Pulaski county.</p>

argued at considerable length, that upon the sale of the bonds of the State issued to the Real Estate Bank, it became as impossible for the State to tax the lands mortgaged by the stockholders of the bank to secure their stock bonds, for á tax imposed upon the owners of the lands, as to tax her own absolute property.

That it is not legal to tax and sell an undivided interest in a tract of land. Such a sale is void. Digest 887, 888] 10 Ohio 433; 12 Serg. & Rawle 299; 9 Ham. 43; 12 S. & M. 498; 23 Miss. 122. Indefiniteness of description renders a sale for taxes void. 4 McLean 481; 13 How. 18. The law concerning tax sales must be strictly complied with. The tax deed is only prima facie evidence and may be overthrown. 15 Ark. 337.

<p>Appeal from the Circuit Court oj Ashley county in Chancery.</p>

<p>The cases of Lemon's Heirs vs. Rector et al, 15 Ark. .436; peay et al. vs. Anthony, ante; and Slocomb, Richards Co. vs. Blackburn et al., ante, that the administrator, and not the heir, is the proper person to sue for a debt due the deceased, approved.</p>

The Circuit Court has jurisdiction by writ of certiorari, (Car-nail vs. Crawford co., 6 Eng. 616; 7 Eng. 84;) though an appeal lay from the judgment of the Probate Court — the petitioners having suffered substantial injustice, and having lost their remedy by appeal without any laches of their own, they being minors. (15 Ark. 49; 1 Salk. 147; 2 Burr. 1040; 8 T. R. 544; 14 m. 35.) The Probate Court had no jurisdiction. Moss vs. Sandefur ex., 15 Ark. 351.

<p>Appeal from the Circuit Court of Johnson county.</p>

<p>Appeal from the Circuit Court of Lafayette county in chancery.</p>

That the payment of the purchase money is not sufficient to take the case out of the statute of frauds, referred to Lister vs. Foxcroft, 1 White & Tutor’s Eq. Cases 507, and the authorities there cited.

It is true that the military bounty act of 1812, contained a prohibition against any sale or assignment by the soldier of his bounty, until after the issuance of the patent, and declared all such assignments void.

It was not necessary to allege that the note was payable to bearer, nor to state the words “value received” in the declaration — nor the place of its execution. Story on Prom. Notes, sec. 51; 2 Arch. N. P. 128. That the note could be given in evidence under the issue on the second count, see Jordan vs. Ford & Dixon, 2 Eng. 416; 2 Arch. N. P. 128; Pierce vs. Crafts, 12 J. R. 90.

Slavery is recognized by our constitution, and it is the fundamental law of the land, and the constitution has directly prohibited the Legislature from emancipating slaves without consent of the owner. Tit. Eman., sec. 1, p. 55, Dig. Rev. St at.

A debtor in failing circumstances may prefer one creditor to another; but if he conveys to such creditor a much larger amount of property than is sufficient to secure his debt, postponing the appropriation of it to that purpose for an unreasonable length of time, such conveyance hinders and delays his other creditors, and is void as to them. Bennett vs. Union Bank, 5 Humph. 612.

<p>To the plea of the statute of limitations, in an action upon a bond or sealed instrument, the plaintiff replied a part payment, and it appeared that he held several undisputed claims against the defendant: Held, that the plaintiff, in support of the issue on his part, must prove not only a part payment by the defendant of the bond, but an appropriation of that part payment, by the defendant, to that particular debt.</p> <p>The doctrines of the eases of Alston vs. State Bank, 4 Eng. 462; State Bank vs. Woody et al, 5 Jb. 642; Woods vs. Wylds 6 lb. 758; Brown vs. Hutchings, 14 Ark. 85, as to limitation and part payment, should be regarded as settled.</p> <p>If a debtor makes a payment, generally, to his creditor, who holds two or more undis. puted claims against Mm, without exerting, at the time, his general right of appropriating the payment to any particular debt, the right of appropriation would pass from the debtor to the creditor; and he might apply the payment to either demand —even to one then barred by the statute of limitations: but if he apply it to a debt due by bond, then barred by the statute, the appropriation by the creditor would not have the effect of reviving the residue of the debt.</p> <p>An instruction which assumes as proved a fact requ^fco be found by the jury, is erroneous. So, also, if by the use of broad and un^^Ked terms it is calculated to mislead the jury, although in a restricted and qualrod sense it contained the law applicable to the point.</p> <p>The plaintiff read in evidence, to sustain the issue on his part, two letters, proved to be in the handwriting of the defendant, but addressed to no one, and containing matters in which there was a reasonable ground to infer that they related to the subject matter of litigation: Held, that as the letters were produced by the plaintiff and no suspicion was thrown upon his possession of them, the Court decided correctly in permitting them to be read to the jury for what they might think they were worth.</p>

<p>In a judicial garnishment tlie plaintiff filed, among others, a special allegation, that the garnishee was indebted to the judgment debtor in a certain amount due to him as his late guardian, in a settlement and confirmation of accounts in the Probate Court, and propounded a special interrogatory whether he did not owe the sum, “and if so, was the same, or how much thereof, unpaid:” the garnishee answered that long before the service of the writ, ho had settled up, and paid over all moneys, credits and effects due by him to the judgment debtor: Held, 1. That the answer, being responsive to the interrogatory, was evidence to establish payment, until rebutted: 2d. That as the issue was not, whether the garnishee had owed the sum found due upon the settlement, but whether it had been paid, the record of the Probate Court showing the settlement and confirmation of the guardian’s account, was not evidence to prove the issue.</p>

<p>Error to the Circuit Court of Yell county.</p>

contended that the Court erred in sustaining the demurrer to the replication; because, the act of the Legislature changing the terms of the Circuit Court had not been published, at the time of issuing the writ, so as to affect the rights of the citizen. 1 Domats Civil Law, p. 112, secs. 9 and 16; p. 114, secs. 16 and 23. That the Court should always permit amendments in furtherance of justice, and not intended to hinder or delay.

<p>The act of 22d January, 1855, intended, doubtless, to dispense with the necessity of stating, in an indictment under the 8th section of the Gaming Act (Digest 367,) the names of the persons by whom the game was played. (The State vs. Parnell, l 16 Arle. 506; Medloclc vs. State, ante.)</p> <p>Several counts for distinct offences, being misdemeanors, of the same nature or class, and subject to the same judgment, may be joined in one indictment.</p> <p>The mode of examining a witness, who is personally present at the trial, is very much under the control and sound discretion of the presiding judge; and no objection can be perceived to the general question whether the witness had seen the defendant play the game charg'ed in the indictment at any time within twelve months, etc.</p> <p>Where a person is indicted for betting at any game of cards embraced by the provis- < ions of the 8th section of the Gaming Act, (Digest 367,) it is sufficient to charge the betting on a game of cards, naming the game; and it is not necessary to charge that the game of cards named is a game of hazard or skill; but if so charged, it will be considered as surplusage and need not be proved. ■ ,</p> <p>But where a person is indicted for betting on a game not embraced within the 8th section, but embraced by the 2d section of the act of January, 1855, it is necessary, it would seem, to charge the game bet upon as one of hazard or skill.</p>

<p>To an action upon a recognizance, entered into on appeal from a judgment of the Circuit Court, which was affirmed, the defendants pleaded, that the plaintiff had filed a bill in chancery to foreclose a mortgage given by the defendant in the judgment to secure the payment of the same bond on which the action at law was founded and the original judgment recovered, and in the decree upon that bill the Court compelled the plaintiff to execute and perform an agreement, which his agent had previously made, with the defendant, to take goods, etc., in satisfaction of the mortv gage debt: and the debt by the terms of the decree was so discharged and extinguished: held, that the effect of the decree was to extingush the debt upon which the judgment at law was rendered; and that the plea was a good defence to the action upon the recognizance.</p> <p>A creditor may proceed by bill in equity to foreclose a mortgage given to secure the payment of a bond, and at the same time by action at law upon the bond: and though he can have but one satisfaction, he is entitled to his costs in both Courts.</p> <p>The plaintiff, in an action upon an appeal recognizance, assigned as breaches the nonpayment of the debt and interest, and also of the costs on the appeal: the defendants pleaded payment, and also a special plea showing satisfaction of the debt and interest only: ‘ held that the plaintiff might have taken a default for the costs, subject to the final judgment on the plea of payment; but that he is not entitled to a reversal because of his own failure to obtain such judgment.</p>

<p>Writ of error to the Circuit Court of Pulaski county.</p> <p>Interest on interest is not allowable. 8 Mass. 455; 4: Rand. 406; 23 Pick. 169; 5 B. & JL 34; 1 Veseyjr. 99; 1 J. C.R. 13; 1-7 Conn. 243; 7 Barb. 632; 11 Paige 231; 2 Cush. 97; 17 Mass. 417; 11 Mctc. 210; 7 Greenl. 48; 6 J. C. R. 313; 2 A. K. Marsh. 335; 5 Paige 98; 3 H. & M. 89.</p> <p>as to the right of the corporation, and not the trustees, to sue, cited the several acts of Congress in reference to the Bank; and upon the point, that the Court below properly allowed interest upon the semi-annual instalments of interest overdue on the bonds, and for which suit was brought, admitting that the cases of Ferry vs. Ferry, 2 Cush. 92; Hastings vs. Wiswall, 8 Mass. 455; Dean vs. Williams, 17 id. 417; Yon Hemert vs. Porter, 11 Mete. 218; Wilcox vs. Havland, 23 Pick. 168; Doe vs, Warren, 7 Greenl. 48; Connecticut vs. Jackson, l J. C.R. 314; Van Benschoton vs. Lawson, 6 J. C. R. 314, were against the point, cited the following authorities as outweighing them: Pierce vs. Rowe, 6 N. liamyj. 179; Drew vs. Drew, id. 40; Sedgwiek on Dam. 407; Kennonvs. Dickens, 1 Taylor 131; Wr’ght vs. Wright, 2 McCord’s Civ Rep. 202; Rhodes vs. Bythe, 5 B. Mon. 33G; Bowles & wife vs. Dray-ton, 1 Dessau. 489; Watkinson vs. Root, 4 Hamm. 373; Hollings-worth vs. The City of Detroit, 3 McLean 472; Austin vs. Imus, 23 Verm. 291; Gihbes vs. Chisholm, -1 Nott & McCord 38; Singleton vs. Allen, 2 Strobh. Eq. 172; Doig vs. Barkley, 3 Richard. 126; and contended that the inducement to both capitalists and persons of small means, "to invest in these bonds, as in other States) was the punctual payment of the interest. Of many stocks and funds, it is not expected that the principal will ever be paid. A man invests so much in stocks, that he may derive therefrom a fixed and certain income, precisely as if, with the same capital, he purchased an annuity The State cannot redeem and pay off its bonds at pleasure. The holders have a vested rjght to receive the interest regularly during the whole time fixed for the bonds to run. Bonds with the principal redeemable at pleasure would not sell at all.</p> <p>The contract, in all such bonds is, in effect, to pay so much money every six months, and so much at a definite period. The semi-annual payments are really as much principal, as is the principal sum itself. The interest on public stocks is like the annual rents of land — a semi-annual payment, which the State agrees, with a pledge of her faith and honor, that she will pay with punctuality. If she does not pay punctually, and after long delay declines to pay interest on these semi-annual payments, she violates her plighted faith*.</p> <p>When a man invests his capital in stocks, it is the dividends or payments of interest that compose his fortune,</p> <p>When suit is brought on such bonds, for overdue instalments of interest, the judgment is not given for such interest as incident or accessary of the debt. The debt is not due. Judgment is not given for the interest, by way of damages for the detention. of the debt, for that is done only where the debt is unjustly detained, contrary to the contract. What is unjustly detained, contrary to the contract, are the instalments of interest themselves. The instalments of interest stipulated to be paid are themselves independent principal sums.</p>

<p>An action will not lie, under the statute, Dig. ch. 77, to recover property lost on a bet or wager, against a third person, to whom the winner has sold it.</p> <p>In an action to recover property lost on a horse-race it is incumbent upon the plaintiff to prove that the race was not a turf race.</p> <p>Motions for a new trial, on the ground of surprise, because the party’s witness swore upon the trial contrary to his expectation, are addressed to the sound disci'etion of the Court: and should not be granted, unless the party shows proper diligence on his part to prevent surprise by taking the precaution to converse with the witness before the trial: nor unless he produce the affidavits of the witnesses by whom he expects to make out his case on a second trial; or, at least, their names.</p>

1st. Are mortgages assignable? A mortgage is a conveyance of title upon a condition, and if the condition be not performed, the title becomes absolute in laio, and nothing remains to the mortgagor but the right to redeem in equity — 1 Lomax Digest 329; Story Eq. sec. 1031; — and the mortgagee is entitled to the possession of the mortgaged property — 4 Kent Com. 138, 159; 2 Verm. 78; Story on Bailm. sec. 287; Story's Eq.

<p>Error to the Circuit Court of Tell county.</p>

The claim was a plain money demand, upon which the ap-pellees could have recovered judgment at law, and have issued their writ of garnishment against appellant, and thus have reached his indebtedness. Hempstead & Conway vs. Watkins, 1 Eng. 317) 1 Story’s Eq. Jur., sec. 61 ,p. 49. The appellees had no right to a decree against the appellant in this case until they had recovered judgment against him and issued an execution and it returned nulla bona.

Writ of error to the Circuit Court of Pulaski county. made the point, among others, that the allegations and interrogatories were not filed in time. Dig. ch. 78, sec. 3. as to the point that the allegations and interrogatories were not filed in time, relied upon the case of Lawrence vs. Sturdivent, 5 Eng. 133.

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

<p>The Probate Judge is invested with a sound legal discretion in the appointment of guardians, and his judgment should not be overruled except in eases of manifest error or abuse of such discretion.</p> <p>The 3d section, ch. 80 Dig., providing for the removal of a guardian for good, cause shown, does not apply to a case where the appointment of the guardian is revoked at the term when it is made, whilst the orders of the Probate Judge are under his control, and before the guardian has entered upon the discharge of his duties.</p>