Volume 19 — Arkansas Reports

Hon. William H. Feild, Circuit Judge. The question as to the power and duty of the Board of Swamp Land Commissioners to audit and adjust the account presented and to give a certificate of its justice, before by law it could be paid at all, seems to us a very plain one.

<p>Appeal from, the Circuit Court of Pulaski county in Chancery.</p> <p>Hon. William H. Feild, Circuit Judge.</p>

The Hon.' John Quillet, Circuit Judge. contended that the right claimed here is a servitude, an interest, or incorporeal hereditament in… Held: in Hewlinsvs. Shippam, 5 Barn. & Cres. 221, and Fentiman vs. Smith, 4 East 107, and other cases, that a right of drain, and other like incorporeal hereditaments, if not created by deed or writing, but merely resting in parol, are rights at will only, mere licenses, revocable at pleasure: that though such a parol license might be an…

Hon. William H. Feild, Circuit Judge. We need scarcely refer to authority to prove, that, where an agreement, set up in a bill, is denied, the statute of frauds is available to the defendant, without expressly pleading or relying upon it. 3 A. K. Marsh. 445; 4 Ark. 301; 2 8to. Eq. 757; 1 Pet. C. C. R. 338, 380.

The Hon. Felix J. Batson, Circuit Judge. The complainant in his response, denies any contract or agreement whatever in the premises, he is therefore, as to the pleadings, entitled to the benefit of the statute of frauds. See Harris vs. Knickerbocker, 5th Wend. 638. Cozzine vs. Graham, 2d Paige, 177. 1 Marsh. Ky. 437, and the defendant must show a valid contract within the statute or such as is not affected by it.

<p>A deed of gift of slaves to a married woman, for her use, etc., for her natural life, with remainder to the heirs of her body, vests in her the absolute title, and the slaves pass to her husband.</p>

<p>Appeal from the Circuit Court of Hot Spring county.</p> <p>The Hon. Joins C. Murray, special Judge, presiding.</p>

<p>Appeal from, the Circuit Court of Hot Spring county.</p> <p>The Hon. John C. Murray, special Judge, presiding.</p>

<p>(For the principles involved in this case, see Rector et al. vs. Gaines et al., ante.) A Cherokee pre-emption cannot be located upon the same tract of land upon which a pre-emption has been proved and allowed, and a patent certificate issued.</p>

<p>For the principles involved in this case, see Rector el al. vs. Gaines et al., ante..</p>

<p>Appeal from the Circuit Court of Mot Spring county.</p> <p>The Hon. John 0. Murray, Special Judge, presiding.</p>

<p>There is no place for the functions of a Special Judge of the Circuit Court to be exerted until the regular term of the court is opened, by the lawful Judge thereof, for the despatch of business; and no presumption will be indulged in favor of the regularity of the proceedings over which a Special Judge presides, unless they appear to have been had in the regular progress of the business of the Circuit Court.</p> <p>A Special Judge can have no authority to preside in a cause originating before him.</p>

Hon. Hulbert F. Fairchtld, Chancellor. 1. By the contract Hill represented the tract in question to contain 180 acres more or less, and upon actual survey there was a deficiency of 84 acres, nearly one-half, and the purchaser is entitled to an abatement in the purchase money to the extent of the deficiency. Hill vs. Buckley, 17 Vescy jr. 394; 1 Sugden 525,526,511; Waters vs. Travis, *9 J. It. 465; 1 Yesey jr. 218; 10 Yesey jr. 315; 1 Bro. Ch. Rep. 140; 2 Bro.

<p>The decision in Miller us. Ratliff, 14 Ark. 419; Houch us. Lynch, 17 lb. 478, and Lindsay us. Wayland, lb. 385; that this Court will not reverse the verdict of the jury unless there be a total want of evidence to sustain it, adhered'to.</p>

<p>Appeal from the Circuit Court of Clark county.</p> <p>The Hon. Abner A. Stith, Circuit Judge.</p>

<p>Where a person, held as a slave, sues for freedom, and it manifestly appears that he belongs to the negro race, whether of full or mixed blood, he is presumed to be a slave, that bring the condition generally of such people in this State.</p> <p>If it appear that he belongs to the white race, he is presumed to be free.</p> <p>If it be doubtful, whether he belong to the white, or the negro race, there is no basis for legal presumption one way or the other; but it is safest to give him the benefit of the doubt.</p> <p>Slavery and.not freedom being generally the states of the negro race in this State no presumption arises, in suits for freedom, that the plaintiff is free, from the fact that he is less than one-fourth negro.</p> <p>The fact that the plaintiffs, in a suit for freedom, or their ancestors have been actually held in slavery, or their words and acts in that position, are not conclusive evidence that they were rightfully held in slavery; but if the plaintiffs and their mother were long held as slaves, treated and acted as such, this was prima facie evidence of the right to hold them as slaves.</p> <p>Where it is stated on the face of the declaration, in a suit for freedom by several, that the plaintiffs are the “ mother and her minor children,” the defendant would hardly be required to prove the fact so admitted.</p> <p>An instruction that every presumption, consistent with reason, should be indulged in favor of freedom, is too general and abstract, in a suit for freedom, to be of any practical legal advantage, unless the Court should also tell the jury what presumptions it considered consistent with reason.</p> <p>If the plaintiff’s mother, in a suit for freedom, was always held and treated as a slave, and the plaintiff herself so held, treated and acted, it is prima facie evidence that she and her children are slaves, unless they were emancipated.</p> <p>Persons skilled in the natural history of the races of men, are competent witnesses to state the distinguishing marks between the negro and the white race, in suits for freedom, when the issue depends upon the question whether the plaintiffs belonged to the one race or the other.</p> <p>The jury are the judges of the weight of the evidence.</p> <p>The plaintiffs petitioned the Court for permission to sue as paupers, stating the grounds upon which they claimed to be free; the defendant filed an answer controverting the grounds stated in the petition: the Court, on motion, struck the answer from the files; Held, That the defendant could not have read his answer as evidence on the trial; and there was no error in striking it from the files.</p> <p>Where an exception is not made one of the grounds of a subsequent motion for a new trial, it is waived.</p>

<p>A Court of chancery is the only forum qualified, under our system of jurisprudence, to afford relief where another person has obtained a deed for a party’s land, which it is against conscience for him to use or enforce, and which operates as a cloud upon the owners’s title.</p> <p>The complainants filed a bill in equity to cancel an auditor’s deed, executed to the defendant, for a tract of land returned by the collector forfeited for non-payment of taxes, setting out their title and alleging that the taxes were actually paid for the year when the land was returned forfeited, and that the collector had made a fraudulent return: praying that their title be quieted, that the defendant yield possession, and for rents and profits: on demurrer, the Circuit Court dismissed the bill for want of equity: Held, That the Court erred.</p>

The Hon. John J. Clendeiot, Circuit Judge. The averment that the parties were not married was a necessary one, and should have been proved. Wharton's Am. Cr. Law 132 note.a, 133 noted: 1 Ch. Cr. Law 227 et seq., .554; Wkart. Cr.'Law 216; 1 Stark. Ev. (5 Am. Ed,) 394; 1 Har. (£• J. 427; 13 Pick. 359. It is not such a matter as should come from the defence. Whart. Cr. L. 138; 1 McCord 365; 2 Russ. on Cr. 691; 10 East 216; Clayton vs. Wardell 4 Corns. Rep. 122.

Hon. Abner A. Stith, Circuit Judge. After the decree had passed, discharging the complainant, the Court had no power to award his costs, without showing error, mistake, or the like, in regard to his costs. 3 Danl. Ch. P. 1553. The parties interested in this fund could not, without notice, have their rights thus affected. That the Chancellor could not allow the interpleader his solicitor’s fee. Dunlap vs. Hubbard, 19 Ves. 205; 3 Danl.

Tbe Hon. John J. Clendenin, Circuit Judge. The juror, Beard, was incompetent, because, 1st, he did not know that the persons with whom he conversed, were not witnesses; nor whether they professed to speak from personal knowledge or hearsay; 2d, he did not state that the opinion formed from rumor had left no bias'or prejudice on his mind. Stewart vs. The State, 8 Eng. 727; Nelson vs. The State, 13 S. & M. 500; People vs. Vermilyen, 7 Cow. 121.

The Hon. Abner A. Stith, Circuit Judge. The rule is, that in cases where the bill is sworn to, one witness is sufficient to outweigh the answer, and entitle the complainant to a decree.

Hon. John J. Clendenin, Circuit Judge. The indictment is defective in not showing in what the wounding, charged to have been committed by the prisoner, consisted. State vs. Ayedelot, 7 Blaclcf. Rep. 157. And malice against the owner of the animal should have been charged and proven. State vs. Wilcox, 3 Yerg. Rep. 278. The prosecutor was an incompetent witness, on account cf his interest. 3 Pick. 356; 8 lb. 518.

The Hon. Theodoric F. Sorrells, Circuit Judge. The Court proceeded to try the defendant upon a pretended transcript, that did not show with sufficient certainty in what court the proceedings were had, and after the prisoner had been tried, and verdict rendered, ordered a writ of certiorari to the clerk of the Circuit Court of the county, from which the trial had been moved by change of venue, to supply omissions in the transcript.

<p>Appeal from the Circuit Court of Sebastian county.</p> <p>The Hon. Felix J. Batson, Circuit Judge.</p>

Hon. AbneR A. Stith, Circuit Judge. By tbe act of 1851, page 120, sec. 24, tbe office of School Commissioner was abolished; and by sec. 27, tbe officer was required to surrender the bonds in bis bands, and was thereupon discharged: and by act of 1853, p. 148, sec. 31, 39, 42, the township trustees were made successors of the School Commissioners, and authorized to sue upon bonds given to the latter.

<p>When the title of the plaintiff in ejectment is controverted, under the general issue, he must prove: 1st. That he had the legal estate in the premises at the time of the commencement of the suit: 2d. That he had the right of entry; and 3d. That the defendant, or those claiming' under him, were in possession of the premises.</p>

Hon. Felix J. Batson, Circuit Judge, presiding. Upon appeal in a felony case, the party stands on all his legal rights that he has not expressly waived of record. Bivens vs. The State, 6 Eng. 451; Patterson vs. The State, 2 lb. 60. By no inference, intendment or construction, can the Court come to the conclusion, from the record, that appellant was present when the verdict was returned into Court.

The Hon. Abner A. Stitii, Circuit Judge. That Emerson could appear by attorney to the indictment preferred against him, it being for a simple misdemeanor punishable by fine only. Sec. 164 p. 412 Dig.; Sawyer vs. Joiner, 16 Verm. 497; Tracy, Ex-parte 25 Verm. 93,1 Ch. Cr. Law,marg.,p. 430; Queen vs. Templeman, 1 Salk. 56.

<p>Appeal from the Circuit Court of Marion county.</p> <p>Hon. William C. Bevens, Circuit Judge.</p>

<p>On appeal from the judgment of the Probate Court, sustaining a demurrer to the defendant’s plea, the Circuit Court decided that the Probate Court erred, opened the cause for trial de novo, and proceeded to try it upon further pleading and evidence.</p> <p>A claim against an estate, consisting of a single item, was presented to the administrator: he had it in possession six weeks — examined the books and papers of the deceased, in reference to that and other claims, and took a list of them. Held that the Court sitting as a jury, was warranted in finding a waiver of a copy of the claim.</p> <p>An administrator is an incompetent witness in his own favor in a suit against himself.</p> <p>In a suit against an administrator for a sum of money deposited with his intestate, proof that at the time of his death the deceased had in his house a bag in which was a purse containing the exact sum claimed, both labeled in the hand writing of the deceased with the name of the plaintiff, and that it was delivered to the administrator, makes a prima facie case for the plaintiff.</p>

<p>Error to the Circuit Court of Pulaski county.</p> <p>Pión. John J. Clendenin, Circuit Judge.</p>

Hon. Abner A. Stitii, Circuit Judge. When there is a palpable abuse of discretion in the Circuit Court in overruling a motion for continuance, this Court will review the decision and correct it. Eustis & Co. vs. Turner, 3 Eng. 119; 5 Geo. 48.

<p>Appeal from the Circuit Court of St. Francis county, in Chancery.</p> <p>Hon. George W. Beazley Circuit Judge.</p> <p>cited Eq. Dr. 299; 1 Story's Eq. Jur. 646 to 658; 4 Dessau. 86; 3 Am. Ch. Dig. 171, to show that.the Chancery Court has jurisdiction in cases of partition.</p>

<p>Where the evidence clearly shows that the damages assessed by the jury are excessive, this Court will set aside the verdict and reverse the judgment, or allow the party to remit the excess.</p> <p>It is within the discretion of the Circuit Court to give general instructions, at the request of parties; but if the Court refuse to instruct generally, it is no cause for a new trial.</p>

<p>It is within the sound legal discretion of the Circuit Court to permit the filing of a special plea, after issue formed and a continuance of the cause.</p> <p>The plea of non cepit, in an action of replevin in the cepit et detinet, puts in issue only the taking.</p>

<p>Appeal from, the Circuit Court of Franklin county.</p> <p>The Hon. Felix J. Batson, Circuit Judge.</p>

Writ of error to the Circuit Court of Phillips county. The Hon. George W. Beazley, Circuit Judge. Where a defendant craves oyer properly of that to which he is entitled, and the plaintiff does not grant oyer, the Court can dismiss the- suit, and give judgment against him for costs, and it is no ground of error. 1 Tidd’s Pr. 516; 7 (3Amer. Ed.;) 1 Ch. PI. 466; 2 Stra. 1186; 1 Wils. 16; 1 Bac. Abr. 12.

The Hon. Theodorio F. Sorrells, Circuit Judge. As to all the grounds of demurrer it is submitted that the last clause in section 140 (Dig., •p. 661) was designed solely for the benefit of the defendant — to oblige the plaintiff to make his money, if he could do so, by a sale of defendant’s personal property, under the Justice’s execution, rather than by a sale of his real estate under the Circuit Court execution.

<p>Writ of Error to Independence Circuit Court.</p> <p>Hon. William C. Sevens, Circuit Judge.</p>

Hon. William C. Bevens, Circuit Judge. It is not necessary to specify the amount sued on in the orig1' nal writ, and especially in a suit by petition in debt. Ellis vs-Cossitt et al. 14 Ark. 222; 6 Eng. 289, 332.

Hon. George W. Beazley, Circuit Judge. The separate property of the wife was chargeable with her contracts made during the coverture: but the remedy to enforce payment out of such property is in equity. 1 Vesey p. 277; 7 Paige 112; 2 Story’s Eq. PI. sec. 136, 1333, 1401; Reeves Bom. Rel. 164, etc.', 1 White & Tudor’s Lead. Cas. 364; Bobbin and wife vs. Hubbard, 17 Ark. 189.

Hon. George W. Beazley, Circuit Judge. The plea set forth an entire contract and a violation, abandonment, and rescisión of it on the part of the plaintiff, without just cause, and against the will of defendant. Under such circumstances, the plaintiff cannot recover on the contract. 4 Camp. 375; 1 Stark. 358.

<p>A writ of error will not lie to the original judgment, where an execution has been issued on it, a delivery bond given and forfeited, and so returned by the sheriff (14 Ark. 595, 597.)</p>

<p>The eases of State Bank vs. Barber et al. 7 Eng. 775, and State Bank vs. Fowler and Pike, 14 Ark. 164, approved.</p>

<p>Appeal from the Circuit Court of Chicot county.</p> <p>Hon Theodoric F. Sorrells, Circuit Judge.</p>

The Hon. Theodoeic F. SoeRells, Circuit Judge. If the general custom was proven by the evidence and the jury so found, plaintiff was in effect insurer of goods, and on loss was liable to defendant therefor. 13 Ark. 461 and cases cited. The general custom was proven and could well have been proven, and verdict cannot be disturbed, 1 Hall 84; 13 Ark. 236, 295; 15 Ark. 403; 14 Axk. 706.

<p>The proof that a bill of sale absolute upon its face, was intended as a mortgage, ought, in the absence of fraud and imposition, to be clear, decisive and without doubt.</p>

Hon. John J. Glendenin, Circuit Judge. The obligation, being a specie contract in its inception, did not lose that character by transfer to the bank, and Stillwell had no right to discharge it in any thing else than specie. 5 Peters 659; 3 Holst. 172; 6 How. S. C. R. 342. Bonds are receivable for bank debts, but coupons are not. Acts 1843 p. 72. Stillwell having tendered coupons in discharge of the judgment, the financial receiver was not bound to receive them.

Hon. William E. Butts, Special Judge. We insist there is no question presented for review in this court, there being a mere exception to finding on issues. 13 Ark. R. 344.

Erro* to the Circuit Court of Union County. The Hon. A. A. Stitii. Circuit Judge. contended that, as but part of the judgment against the defendant was assigned to the plaintiff and his partner, the acts of the defendant in getting control of the judgment, and causing the same to be satisfied, was a fraud upon the plaintiff, for which an action would lie. Jeremy B. 3, pt. 2,p. 358; Story's Eq. sec. 186.

William H. Feild, Circuit Judge. That it was competent and proper for the sheriff to file a bill of interpleader, see King vs. Green, 10 Missouri, 195. There are too many equitable questions in this case, not to make it proper to resort to this forum. If one of the claims is purely equitable, it is indispensable to come into equity. 2 Story's Eq. sec. 808; Shaw vs. Caster, 8 Paige 346; Nash vs. Smith, 6 Conn. 421.

Hon. Felix J. Batson, Circuit Judge. Whether the United States had any right to the sixteenth sections, or could exercise any legitimate control over them after the grant in the compact of 1836, or whether those lands belonged to the State, is a material inquiry.

Hon. John J. Clendenin, Circuit Judge, presiding. That the plaintiff was estopped by the recitals in the condition of the delivery bond from setting up a title to the property; citing Trimble and others vs. The State, 4 Blackf.

Hon. Beajford H. Neely, Circuit Judge. The subject matter in controversy in this case, set up by Byers’ defense, to wit: that Walker, as the administrator of Pope, is indebted to him, from him and Pope being partners in tbe firm of I. M. Manning, is that for which Byers’ cross bill in Walker vs. Byers, 14 Ark. 246, was filed.

Hon. Beaufort H. Neely Circuit Judge. That upon service of attachments, no schedule of the indebtedness of the garnishee to the defendant in the attachment suit should be made and returned by the sheriff.

The Hon. John J. Clendenin, Circuit Judge. • Contended that, under the true construction of the statute, Dig., chap. 104, p. 712, and the Amendment, Acts of 1850, p. 122, the property of the wife vested absolutely in her, as her sole and separate property, whether a schedule be filed or not: that the only effect of filing the schedule prescribed by the act, was to exempt the wife’s property from sale for the husband’s debts — so that, under the statute, the property was the…

Hon. Felix J. Batson, Circuit Judge. The testimony given by the plaintiff before the justice of the peace, and concerning which he was charged by defendant with having sworn a lie, was not material to the issue in the case, and therefore the witness could not have been guilty of perjury, and the present action cannot be sustained. Coon vs. Robinson, 3 Barb.

<p>Appeal from the Circuit Court of Crittenden County.</p> <p>Hon. George W. Beazley, Circuit Judge.</p>

¡APIon. Charles W. Adams Circuit Judge. Does the death of a defendant, after levying an attachment and before judgment, ipso facto, dissolve the attachment? We think not. Digest, chap. 17, secs. 9, 15, 31, 47, 51; BurveE vs. Robinson, 5 Gilman 582; McRea et al. vs. McLean, 3 Porter 153; 10 Peters 405; 3 Munf. 417; Pond vs. Griffith, 1 Ala. 683. It is analogous to lien of execution, in which case, levy before death of defendant; sale valid.

Hon. Beaufort H. Neely Circuit Judge. :We insist that the statutes, ch. 104 Dig.', Act of Jan. 1851, do not change the common law as to the marital rights of the husband in the real estate of the wife.

Hon. John J. Clendenin, Circuit Judge. A person acquiring an estate from the father by devise, gift or descent, and dying without issue, the estate ascends to the father and his heirs. Dig. 437, sec. 10; Kelly’s heirs vs. McGuire, and wife et al., 15 Ark. 587. The father paid the money and entered the lands in the name of the son: this is a gift of the land to the son by the father. 1 Story’s Eq.

Hon. Theodoric F. Sorrells Circuit Judge. The indictment in this case is not sufficient as as indictment for maiming. 3 Chit. Cr. Law 787; 1 East. P. C. 402; -7 Mass. R. 247; Arch. Cr. PI. 450. Words of art which the law has adopted must be used in charging crime. 2 Hawk. P. C. 249,107; 2 Br. Crown cases, 29, 85, 95, 389, 412; McBride vs. State, 2 Eng. 374. The indictment is not good as an indictment for an assault and battery.

<p>Swamp and overflowed lands: (The State vs. the County Court of Crittenden County, ante.)</p>

<p>The case of Allis ex parte, 7 Eng'. 101, that this Court awards the writs of habeas corpus, mandamus, etc., in the exercise of its supervisory powers over the inferior tribunals, except where the exercise of primary jurisdiction is necessary to prevent a failure of justice, adhered to.</p> <p>A writ of mandamus will not be awarded to compel the Circuit Court to admit to bail, unless all the facts upon which the Circuit Court based its decision are legally certified to this Court.</p> <p>The statute (Dig., chap. 52, sec. 178) providing that the Circuit Court shall allow and sign the bill of exceptions taken by a party in the “ progress of any trial,” does not apply to applications for bail; nor can an appeal be taken from, nor a writ of error lie to, the decision of the Court or judge refusing bail.</p> <p>If the Circuit Court or judge refuse to admit a prisoner to bail, upon a proper application to this Court, and showing of the facts upon which the judge acted, if the showing be sufficient, a writ of certiorari would be awarded to bring up, for revision, a transcript of all the proceedings upon the application; and for such purpose the judge, whether the application be made in term or vacation, should make a memorial of all the facts proven upon the application, and file the same with the clerk of the Circuit Court.</p> <p>The application to this Court for a writ of certiorari to revise the judgment of the Circuit Court refusing to admit to bail, should contain a duly certified transcript of all the papers, etc., upon which the Circuit Judge acted, and of the memoria* of facts so filed by him.</p>

<p>The constitutional provision for the election of township constables by the qualified voters (sec. 16, Art. 6), did not operate as a repeal of the mode of appointing the town constable of Helena, as provided by the charter granted by the Territorial Legislature</p> <p>In a suit upon a collector and town constable’s bond, conditioned to pay over all moneys by him collected, according to the order of the town council; and at the expiration of his term of office to deliver to his successor all moneys, etc.; the breach in the declaration, was, that on a specified day, a certain amount of money collected by the constable in the execution of his office, wasin arrears, and unpaid, and is still in arrears, and unpaid. Held, That the declaration was clearly bad.</p>

Hon. George W. Beazley, Circuit Judge. A married woman’s contracts at common law are valid: and her separate property can be charged only in equity. An attachment cannot be issued against her, nor levied on her separate property. Bobbins & Wife vs. Hubbard, 17 Ark.) Clancy on Husband & Wife, y. 831; 1 Bro. C. C. 16; 1 Mad. 262.

Yell Circuit Court. Hon. John J. Clendenin, Circuit Judge. To hold that a slave cannot be manumitted and set free under our statute, either by deed or will, would, it seems to me, be to deny the plain provisions of its language. Dig., chapter entitled Emancipation, secs. 1, 2 and 3.' It can not be urged that the case at bar does not come within the purview of the statute, without assuming a position wholly untenable.

<p>Appeal from Phillips Circuit Court.</p> <p>Hon. Charles W. Adams Circuit Judge.</p>

Hon. Thomas Hubbaed, Circuit Judge. 1. The complainant can only rely upon the doctrine of technical estoppel by matter of record, as a conclusive bar to any averment of the truth, contrary to the adjudication, i. e. that the title of Nancij Browder et als., was not superior or paramount to that derived by Whitfield, or those under whom he claims, from Easely.

Hon. Felix J. Batson, Circuit Judge. Upon a demurrer to the evidence, any inference which the jury might draw therefrom is admitted. See Bank of the United States vs. Smith, 11 Wheat 175; 6 Concl. R. 257. The entirety of the contract as averred and proven is a question for the consideration of the jury from the testimony.

<p>The verdict of a jury, in a criminal prosecution, is of no validity until delivered by the jury, in court: and if the clerk receive the verdict, in the recess of the court, without the direction of court or consent of parties, and the jury disperse, a venire de novo should be awarded.</p>

The Hon. John J. Clendenin, Circuit Judge. A corporation can by no possibility bind itself by deed only under its corporate seal: nor can any one bind a corporation only by the corporate seal; notwithstanding the corporation would be liable to an action on an implied contract upon an agreement sealed with the private seals of the agents, either before, or after benefits were derived under the contract: But because the corporation might be liable on an implied assumpsit upon…

Hon. TheodoRIC F. Sorrells Circuit Judge. It is erroneous to render a judgment against an administrator in the Probate Court for an allowance, without giving him ten days notice of the application, after he has endorsed his refusal to allow the same on the account, note etc. See section 100,p. 128, Dig.; Pennington's ad. vs. Gilson, 1 Eng. 447. Administrator is not liable on bill of exchange drawn by his intestate, unless he has notice of its dishonor.

<p>Error to Pulaski Circuit Court.</p> <p>Hon. John J. Clendenin, Circuit Judge.</p>

Hon. William H. Feild, Special Judge. The fir t and second pleas of Logan were good, and the Court erred in sustaining the demurrur to the first. {Wilson et al. vs. Shannon and ivife, 1 Eng. 196; Delano, et al. vs. Kennedy, 5 Ark. 459; Ghildres vs. Fowler, 4 Eng. 159.) The order of publication was insufficient to authorize a judgment against Boon and Ellison Logan, in not stating “ the nature of the plaintiff’s demand.” (See sec. 24, ch. 17, Digest 177, and Brodie vs.…

Hon. W.illiam H. Feild, Special Judge. The entry on the record that the parties or defendants appeared, has reference to, and means only that those defendants, who are under legal obligation to appear — those served duly and in time with process: and it is error to enter judgment against those who have net appeared in name; or on whom there is no service of process, and the motion to arrest, by Dickson Logan, should have been sustained.

The Hón. John J. C-lendenin, Circuit Judge. Held: that a statute authority by which a man may be deprived of his estate must be strictly pursued.” The same doctrine will be found in 13 Wend. 465; 20 lb. 241; and in 7 lb., as cited in 1 Hill 141. In the case in 1 Hill, the decision in Denning vs. Gor-win, 11 Wend., is restricted to the facts before the Court.

<p>Appeal from the Circuit Court of Monroe County in Chancery.</p> <p>Hon. Charles W. Adams Circuit Judge.</p> <p>relied upon the statute of five years possession, citing the case of Crabtree et al. vs. McDaniel, 17 Ark. 222.</p>

The Hon. A. A. Stitil Circuit Judge. This is a case of misrepresentation, deceit and concealment upon a sale of- certain land, whereby there was a failure of title and consideration. 'Complainant, Hill, therefore claims a rescission of the contract. It will be sufficient to cite the cases of Yeates vs. Pryor, 6 Eng. 67; 1 S. & M. 443; 3 lb. 73, 683. There are several rules with regard to rescissions of contracts op the ground of misrepresentation: 1.

Hon. A. A. Stitii, Circuit Judge. We set out with the proposition, that to overthrow a will, for fraud or undue influence on the part of a legatee, or insanity of the testator, the burden of proof is on those attacking such will, and the strongest possible evidence is always required; the courts cannot presume at all; and doubly strong is the proof required to be when the proceedings are had at law.

Hon. George W. Beazley, Circuit Judge. contended that as the United States had made no provision for paying tbe appellant for the extra services imposed upon him by the grant of the 500,000 acres to the State, he had a right to charge the State for the services rendered in respect to the grant, and set off his claim in the present action, which was brought to recover the price of a portion of the same lands.

<p>Appeal from the Circuit Court of Benton County.</p> <p>Hon. Felix J. Batson, Circuit Judge.</p>

<p>Appeal from the Circuit Court of Washington County.</p> <p>Hon. Felix J. Batson, Circuit Judge.</p>

Appeal f rom Hempstead Circuit Court. Hon. Thomas Hubbard, Circuit Judge. The sale was not binding on Beller, because within the statute of frauds. Sec. 2, chap. 73, Digest. There was no earnest, delivery or membrandum in writing. The sale was illegal, and no valid contract can arise out of it. The statute, Dig., p. 95, prohibits any one except a licensed auctioneer from selling at auction.

Hon. George W. Beazley Circuit Judge. contended that a judgment is -an entirety, and if void in part, it is void in whole, and that no averment can cure it — as that it was a clerical mistake in entering the judgment.

<p>Appeal from Lawrence Circuit Court.</p> <p>Hon. William C. Bevens, Circuit Judge.</p>

Hon. William C. Bevens, Circuit Judge. The law upon which the indictment is founded, does not make “ laughing and talking” in a congregation assembled for religious worship, an offence; and the inserting of those words in the indictment does not vitiate it. The indictment in this case is in the identical words of the statute, sec. 1, Art. vi, ch. •51, Dig.

Hon. Felix J. Batson, Circuit Judge. ' contended that the evidence established that the complainant is white; that the presumption of law is that all white persons are free, and that presumption cannot be counteracted by any thing short of direct and positive proof that the white person, whose right to freedom is in question, descended from a negro on the mother’s side.

<p>Appeal from the Circuit Court of Crawford County.</p> <p>Hon. Felix J. Batson, Circuit Judge.</p>

Hon. William C. Bevjsns, Circuit Judge. contended that the Court erred in overruling both motions for a continuance — the showing being sufficient, (Dig., chap. 126, sec. 86): that the testimony of Wit-cher, for the want of whose testimony the continuance was asked, was competent and material to the defence; that he could not issue a subpoena for the witness until indictment was found against him; and though arrested before the term, he had the same right to a continuance to…

<p>The sheriff and collector, who sells lands for taxes, is not a proper party defendant to a bill in equity to set aside and cancel the deed to the purchaser — no relief being prayed as against him — and the objection may be taken by motion to dismiss as to him.</p> <p>A deed to J. G. & Co. for land, only operates to transfer the legal title to J. G.</p> <p>In cases of misjoinder of plaintiffs, the objection should be taken by demurrer.</p> <p>When the assessment list is returned by the assessor, and the process of assessment is completed by the action of the County Court, it becomes in the nature of a judgment; and the warrant attached to the tax-book delivered to the collector is in the nature of an execution; and the condition of the lands — that is, as being lands of resident or non-resident owners — becomes fixed: and so, if a resident owner of lands become a non-resident after the delivery of the tax-book to the collector, the collector is bound to'pursue ..the mode prescribed by the statute for the sale of the lands of resident tax-payers.</p> <p>A tax deed is not void because it omits to recite that the collector demanded payment, etc., before levying on the land — if the fact of 'demand, etc., be put in issue, the omission of it in the recitals of the deed may be supplied by additional proof.</p>

Hon. John J. Clendenin, Circuit Judge. contended that the Court erred in quashing the indictment: that the indictment is in the very language of the act creating the offence {Acts of 1854,p. 38;) and that it is not required, nor is it necessary to state the names either of the slaves harbored or their owner— the name being no part of the description of the offence; that it is not necessary to conclude each count in an indictment “ against the peace and dignity of the State”…

The Hon. John J. Clendenin, Circuit Judge. contended that the Court erred in declaring- the law to be, that defendant was not liable without an express promise in writing: and to the effect, also, that he had ceased to be liable, because he had ceased to be guardian.

Hon. George W. Beazley, Circuit Judge. In criminal cases, on overruling a demurrer to a bill of indictment, it is error for the Court to render final judgment against the accused. Arch. Gr. PI. and Ev. 116; Wilson vs.. State, 16 Ark. R. 601. The judgment should have been respon-deat ouster, on overruling the demurrer in this case. 4 Texas Rep. 242; State vs. Allen, 1 Ala. 442. Private acts should be specially pleaded. 1 Kent's Com. 589.

Hon. George W. Beazley Circuit Judge. After the repeal of a penal law, no penalty can be inflicted, although the offence may have been committed and the law violated before the repeal. 1 Kent's Com. 515; 5 Crunch Rep. 281; 7 Wheat. Rep. 551; 3 Peters Rep. 57; 2 B. Mon. Rep. 402.

<p>The 14lh section of the Helena charter (Acts of 5th Dec., 1856,) authorizing the council to regulate and tax the sale of liquors, etc., in said city, does not repeal the operation of the 5th section of the Article, entitled Sabbath Breaking, {chap. 51, p. 369, Dig.,) as to its inhabitants; nor did the act of 16th January, 1855, to regulate the sale of spirituous and vinous liquors in the county of Phillips, etc.</p> <p>Upon an indictment for the sale of ardent spirits on the Sabbath, it is not material to prove the particular kind or quantity of spirits sold — or the persons to whom it was sold — and if the kind and quantity be alleged in the indictment under a videlicet, the allegation may be treated as surplusage.</p>

<p>Where the plaintiff in attachment elects to commence his proceedings in ran, against a boat by name, be must proceed in rein, and take judgment against the boat — it is error to take judgment in personam against persons not sued.</p>

<p>Appeal from Independence Circuit Court.</p> <p>Hon. William C. Bevens, Circuit Judge.</p> <p>That proceedings instituted against a. steamboat by name, should be sustained, referred to Thompson vs. Steamboat Julia D. Morton, 23 Ohio Rep. 26; S. B. Rover vs. Stiles, 5 Black/. Rep. 483; 7 lnd. Rep. 521; 10 Mo. Rep. 583; 6 lb. 552; 14 Ohio Rep. 408.</p>

<p>Appeal from Independence Circuit Court.</p> <p>Hon. William C. Bevens, Circuit Judge.</p>

Hon. Tiieodoric F. Sorrells, Circuit Judge. The plaintiffs below not having made the affidavit or entered ■into the recognizance required by the statute, the Circuit Court had no jurisdiction in the case. Secs. 176, 182, 183, Ich. ,95, Dig.; 2 Ark. Rep. 85; 4 lb. 65; 5 lb. 406; 2 Eng. 182; 6 lb. 302; 6 Eng. 664.

Hon. A. A. Stitii, Circuit Judge. The deed of gift from Milton Holloway relied on by the ap-pellee, for title to the slave, Sam, is an imperfect voluntary gift, to take effect in the future, without a meritorious consideration — never acknowledged, or produced and recorded, and will not be enforced under the circumstances of this case, whatever may have been the intention of the parties.

Writ of Erro- to Johnson Circuit Court. Hon. William C. Sevens, Circuit Judge. 1. The affidavit to the plea of nil debet was insufficient. See. 103, chap. 126, Rev. Slat., sec. 105. We respectfully submit to the Court if the affidavit come within the above provisions. The affidavit does not state that the plea is true in substance and in fact; neither does it deny the execution of the instrument sued upon.

Hon. James L. Witherspoon, Special Judge. Declaration bad for joinder of counts for liability as administrator and individually. 1 Tuld's Pr. 11, 12, 13; 3 Barn. & Aid. 101; 2 Saund. R. 117. If the plaintiff seeks to recover on an express contract, the law cannot imply one. 2. Pick. 275; 9 Ala. 108.

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

Hon. Theodoric F. Sorrells, Circuit Judge. Delivery is necessary to vest a full legal title to a note in the assignee (Dig.,. p\ 161), and he acquires such title by full assignment and delivery. 2 Ark. 4; 4 Ark. 535; 5Ar/r..649. Assignment alone without delivery does not vest title. 2 Eng. 376, 475; 3 lb. 459; 17 Ark. 96. Before judgment can be taken the note must be filed.

<p>Appeal from Van Burén Circuit Court.</p> <p>Hon. Beaufort H. Neely Circuit Judge.</p>

<p>It is the province of the jury, and not of the appellate court, to iveigh the evidence, and determine whether the testimony of a witness is to be believed.</p>

<p>To warrant the reversal of the judgment of a County Court refusing to grant license to keep a grocery or dram-shop, upon the question of fact, whether the petition was signed by a majority of the resident voters of the township, it should affirmatively appear that the petition was so signed — the poll-book, showing the number of votes for constable, nearly a year previous, without other proof as to the number of voters, or that the petitioners were resident voters, insufficient.</p>

<p>The maker of a note, due upon its face twelve months after date, cannot set up, as a defence, a contemporaneous verbal agreement between himself and the payee, fixing a different time for payment, or making the time contingent.</p> <p>A note payable twelve months after date does not bear interest until maturity, whore there is no stipulation for interest; and if judgment be rendered for interest from the date, it will be reversed, unless the party remit the excess, etc.</p>

<p>The oases of The Trustees, etc. vs. Hartfield et al. (5 Arle. 551,) and Biscoe et al. vs. Jenkins et al. (5 Eng. 108,) and other oases, that'a part payment by one of ■ several contractors, or partners, before the bar of the statute of limitations has attached, forms a new point from which the statute begins to run as to all, ajiproved and adhered to.</p>

Writ of Erro* to Ashley Circuit Court. Hon. Theodoric F. Sorrells, Circuit Judge, The statute allows an action in the nature of-a cjiii tarn' to be brought by any one, against the judges of an election, for-acting corruptly, neglecting to perform duties, misbehaviour, etc., anddsmot confined to corruption. See, sec. 28, Dig., p. 463: see also, secs. 6, 40, 41, 27, 28, for violations of law charged in the several counts.

<p>Appeal from Columbia Circuit Court.</p> <p>Hon. Shelton Watson, Circuit Judge.</p>