Volume 2 — Arkansas Reports

\ This action was commenced before a Justice of the Peace, on a writing obligatory for the sum of $45 50, payable to William C. and Thomas J. Howell, and subscribed in the name of Israel Woolford and Co. By the original summons, the constable was commanded to summon Israel Woolford and John Latham, partners in trade, under the firm of Israel Woolford and Co., to appear before the Justice of the Peace, to answer unto Thomas J. Howell, survivor of the late firm of William C.…

This was an action of debt, commenced by James II. Walker, for the use of Nicholas T. Perkins, against Abraham Block and William Simms, on a common money bond.

■ Writ of error to the circuit court of Washington county '.

Yell sued Wise before a justice of the peace of Bradley county; and the justice rendered judgment in favor of the defendant. Yell petitioned the circuit court of Bradley to issue a writ of certiorari, commanding the justice to send up the cause for re-hearing in that court. The court, it seems from the record, ordered the writ to be issued, but it does not appear from the record that the writ ever issued.

Case, for slanderous words, determined in the circuit court of Madison county, at the May term 1845, before the Hon. S. G. Sneed, judge.

This was an action of detinue, commenced in the court below by Pike and wife and Smith and wife, against Lenox, for certain slaves. The declaration was in the usual form. The defendant pleaded the general issue, to which the plaintiff joined issue, and the case was tried by a jury. The jury found the slaves to be the property of the plaintiffs, found their values respectively, amounting in the aggregate to $3,500, and $2,710 for their hire.

Appeal frbm the Circuit Court of Independence County. Replevin, determined in the circuit court of independence, at the February term 1845, before the Hon. Wat. Conway B., then one of the circuit judges.

Aiteai. from Chicot Circuit Courts This was an action of debt, commenced by Ford & Co. against Rose. The return on the original writ was in the following words: “ Executed the within by reading, April 8th, 1839. W. G., Sheriff, by T. H. R., Deputy.” The defendant did not appear, and judgment was rendered by default, on the 21st of May, 1839. On the 22d, the defendant filed his affidavit and prayer for an appeal.

On motion for Mandamus. In November 1845, Absalom Fowler, Esq., presented to the chief justice of this court, in vacation, a petition, stating substantially, that on the 5th Nov. 1839, James Boswell, adm’r. of Hart-well Boswell, obtained against J. L. Lafferty, on petition to foreclose a mortgage, in the circuit court of Van Burén county, judgment for the mortgage debt, damages and costs, and a decree that the mortgaged lands be sold to satisfy the same.

On defendant’s motion and affidavit, the case was then continued on account of the absence of James Ellis and James Wise, two material witnesses.

Writ of Error to the. Circuit Court of Independence County. Covenant, determined in the Independence Circuit Court, at the February term, 1844, before the Hon. Thomas Johnson, then one of the circuit judges.

On the 4th of May 1846, Edward and Robert Cross presented a petition to this court for a supersedeas to a judgment of the Hemp-stead circuit court. The petition and transcript accompanying it disclose the following facts, substantially: In August 1840, Farrelly brought an action of debt against David W. Carroll and Edward Cross, returnable to the October term of the Hempstead circuit court following.

This was an action of trespass, commenced by Jesse JVoaks against Thomas B. Ballard, John Hill, James Mitchell, Alfred Bryan, and Daniel Thomison, in Washington Circuit Court. The first count in the declaration, was for entering the plaintiff's tanyard, tearing up and damaging the vats, taking out hides, trampling them in the mud, &c., and seizing and carrying away to their own use 208 sides of leather.

Writ of Error to the Circuit Court of Pope County, John Caudle, as administrator of Joseph Poe, obtained judgment, in an action of debt, against Thomas J. Dare and Andrew N. Caruthers, in the circuit court of Pope county, at the October term, 1841. On the 29th August, 1842, an execution was issued upon the judgment to the sheriff of Pope county, returnable to the following term of the court.

Writ of Error to the Circuit Court of Pulaski County. James Lawson, as administrator of Ben. Trotter, brought suit against Peter T. Crutchfield for the use of Taylor, before a justice of the peace of Pulaski county, upon a bond for cost executed to Trotter in his life-time by Crutchfield. The justice rendered judg* ment in favor of Lawson, and Crutchfield appealed to the circuit court.

Writ of Error to the Circuit Court of Crawford County. This suit was commenced in May 1843, by J. H. Heard & Co. against John Miller, before a justice of the peace of Crawford county. It was founded on a note made by Miller to J. H. Heard & Co., without any specification of the individual names composing the firm. Miller was summoned to answer J. H. Heard .& Co., 'he appeared, contested the suit, and the magistrate rendered judgment against him.

<p>The justice of the peace in rendering judgment states that “this case for the want' of proof to sustain the plaintiff’s demand was dismissed at the plaintiff’8 cost” — held that it was inferable from the entry that this was a final determination of the case upon the merits, and not a judgment of non-suit, and that an appeal would lie from it.</p>

Writ of Mirror to ihe Circuit Ctiurt of Washington County. This wds an actiori of debt brought b'y íhé Bdtík óf ihe State df Árltánsás ágainst Murphy, Evdns and Oldham, and determined in! ihe Washington circuit court,- at the Mdy term 1845, before the Hon. S; G: Sneed, Judge.

Writ of Error to the Circuit Court of Scott county. Indictment charging Hugh ■ A. and Lucretia Patterson with murdering Joseph Butler, determined in the circuit court of Scott county, at the August term 1843, before the Hon. R. 0. S. Brown, Judge. The defendants were tried upon a plea of not guilty, Lucretia acquitted, Hugh found guilty of murder in the second degree, qnd sentenced to the penitentiary for five years.

In the winter of 1838, a great portion of records, record-books, and papers of the Chicot Circuit Court, were stolen from the Clerk’s office by some person unknown, and never recovered.

Writ of Error to the Circuit Court of Pulaslci County. Assumpsit by Alfred Wallace against the Bank of the State of Arkansas, determined in the Pulaski circuit court, at the May term 1.844, before Clkndenin, Judge, The suit -was founded upon four certificates of deposit. The declaration contained four special counts upon the certificates of deposit, to -which were added common money counts.

This was an action of debt, brought by Peter Dudley, executor of Isharn Talbot, deceased, and assignee of Theobald &f Bain, against Grandison C. Smith, George W. C. Graves, and Claiborne W. Smith. A bond for costs was filed by Wm. H. Sutton and Thomas Ware, conditioned that Dudley would pay, or cause to be paid, all costs which might be incurred in the investigation and determination of the suit.

Writ of Error to the Circuit Court of Crawford County. This was an indictment against William and Michael Mayers for keeping a Billiard Table, determined in the circuit court of Crawford county, before Bkown, Judge. The indictment was found at the September term, 1844, and charged that the offence was committed on the 10th of August, 1844. The defendants were tried, and convicted at the August term 1845.

Writ of Error to the Circuit Court of Pulaski County. Action of debt, determined in the Pulaski circuit court, at the October term 1845, before Clendenin, judge. The declaration, in substance, follows: “ M. H. Hill, as administrator of the estate of John B. Gravier deceased, complains of Henry E. D. Semons, Albert Haney and Kindred Delk of a plea that they render unto him, as such administrator, the. sum of $250, which from him they unjustly detain.

This was an action of debt, in the name of Elias JV. Conway, Auditor of Public Accounts, for the use of the state, against William E. Woodruff, Chester Ashley, Edward Cross, Thomas Thorn, James De Baun, Jacob Reider, Sam C. Roane, and Peter T. Crutchfield, for the penalty of the official bond of Woodruff, as State Treasurer, given to James S. Conzoay, Governor, and his successors, in the sum of three hundred thousand dollars.

the Circuit Court.of La Fay elte County. This was an action of covenant brought by Samuel Moore against II. and W. B. Crabtree, determined in the La Fayette circuit court, at the October term, 1845, before the Hon. George Conway, judge. The action was founded on a writing obligatory, executed by the Crabtrees to Moore for $28, dated 18th February, 1843, and due one day after its date.

Writ of Error io the Circuit Court of Pulaski County. This was an action of debt, brought by Ryan and Waldron, for tho use of Trapnall & Cocke, against Lemon as ad’r of Davinport, determined in the Pulaski circuit court, at the October term 1845j before Clenhenin, Judge. The action was founded on a writing obligatory, for the payment of money, executed by defendant’s intestate to plaintiffs. Defendant craved oyer of the obligation sued on, which was granted.

This was an action originally commenced by Harrington, before a Justice of the Peace. The summous issued was as follows : “ State of ,Arkansas, County of Pulaski, City of Little Rock, ss. The State of Arkansas to the Constable of the City of Little Rock — Greeting.

Writ of Error to the Circuit Court of Pulaski County. This wits' an action of assumpsit, commenced in the Pulaski circuit court to the September term, 1840. The declaration contained two counts, the first on a promissory note, the second for work and labor.

Writ of Error to the Circuit Court of Hempstead County, This suit was commenced before a justice of the peace of Hemp-stead county, by S. A. Stone against Charles B. Mitchell, on a writing obligatory executed by Mitchell to Stone for fifty dollars.

This was an application for a writ of injunction to stay certain proceedings at law in Lafayette Circuit Court. The matter having been decided on the Constitutional question as to the power of .the court to grant the writ, it is unnecessary to slate the facts set up in the bill.

<p>Writ of Error to the Circuit Court of Clark County,</p>

<p>íbe points raised in this case were settled in McKnight vs. Smith, 5 Ark. Rep.-409-,- and Pelham et al. vs. Page, 1 English's Rep. 148.</p>

Writ of Error to the Circuit Court of Johnson Gomití]'. This was an action of trespass vi et armis, brought by Henry Clay against William P. Pryor, determined in' the Johnson circuit court at the September term 1845, before the Hon. R. C. S. Bkown, then one of the circuit judges. .

This was an action of replevin brought by Thomas C. Ripley against James Duncan, for a mare and colt, and determined in the Phillips circuit court in October 1845, before the Hon. John T. Jones, judge. The. plain tiff filed with his declaration the following affidavit: “ State of Arkansas, ) „ , County of Phillips.^ .

This was an action of debt, commenced by Lorenzo N. Clarke against Sheldon Wooster. The declaration contained five counts— • two on writings obligatory, one on a promissory note, and two on simple contracts. The defendant pleaded nil debet, payment, and, set-off.

Writ of Error to the Circuit Court of Johnson County. Debt, by petition, determined in the circuit court of Johnson in September 1845, before Brown, judge.

<p>Writ of Error to the Circuit Court of Pulaski County.</p> <p>The Bank of the State of Arkansas having recovered judgment against Powell et al. in the Pulaski circuit court, sued out a writ of Garnishment to St. Francis county against Allen and others. Allen made default, and judgment was rendered against him for the amount of the orignal judgment, at the May term 1845.</p> <p>He brought error, and assigned for error, among other things, that the writ of garnishment improperly issued to St. Francis county, beyond the local jurisdiction of the court.</p>

In obedience to a writ of certiorari, the clerk of the probate court of Independence county returned to the present term of this court a transcript of the i'ecord in this case, from which it appears that on the 11th day of April 1845, the probate court of said county made the following order: It being represented and shown to the satisfaction of the court that James De Witt Clinton Kelly, a minor, has departed this life having property and effects in the hands of Joseph H.…

This was an action of debt brought by Gibson against Clark, on a writing obligatory for the sum of §2,000. The declaration was in technical form, and sufficient. A bond for costs was filed, in the condition of which it is stated that Gibson was a non-resident. The defendant craved oyer, but there was no showing on the record that his prayer was either granted or refused; although the transcript contained a copy of a bond for §2,000, executed by Clark and others.

<p>Writ of Error to the Circuit Court of Pope County,</p> <p>This was an action of debt brought by Elijah and Clark Kellogg, late merchants and partners under the firm name of Elijah Kellogg & Co., against Sam. Norris, and determined in the Pope circuit court at the Sept, term, 1845, before Brown, judge.</p> <p>After the usual. commencement in debt, the declaration set out the cause of action thusFor that whereas* on the 1st day of October 1832, at Elizabethtown, New Jersey, to wit, &c., the said defendant, by his certain promissory noté, &c¡ &c., the date whereof is the day and year aforesaid, which said note has been lost and cannot be exhibited to the court, promised eighteen months after date to pay to plaintiffs* by their partnership style aforesaid, or order, two hundred and eighty-nine dollars, with interest at the rate of six per cent, after twelve months from date &c.” — Usual breach,</p> <p>Plaintiffs filed with the declaration, an affidavit made by Edward N. Kellogg, before the deputy Mayor, and one of the presiding judges of the court of common pleas, of the Borough of Elizabeth, New Jersey, and authenticated in the usual form, describing the note declared on, stating what had been paid on it* what was still due, and that it was lost, <fce. &c.</p> <p>Defendant pleaded nil debet and payment, to the first of which there was issue, to the second replication and issue, all in short upon the record by consent of parties, Upon these issues the cause was submitted to the court* sitting as a jury, and the finding and judgment were for plaintiffs. Defendant moved for a new trial upon the grounds* first, that the court found for plaintiffs without evidence, and* second, that the court refused to permit defendant to file a plea denying the loss of the note declared on. The court overruled the motion, defendant excepted and took a bill of exceptions* from which it appears: •</p> <p>“ After the issues were submitted to the court, and after defendant’s counsel had concluded his argument, but before plaintiffs’ counsel had concluded and before final judgment* defendant tendered to the court, and asked leave to file an additional plea, traversing the allegation in the declaration of the loss of the note sued on, but the court refused to allow it filed* to which defendant excepted.” It further appears that “on the trial of the cause no evidence was introduced by either party: that the plaintiffs relied upon the admissions made by defendant upon record by the pleadings, and the court decided that under the state of the pleadings plaintiffs were entitled to judgment; that they were not bound to prove the loss of the note* or repel the presumption of payment.”</p> <p>The motion for a new trial was improperly overruled. The 65th sec. of the 116th ch. Rev. Stat. which authorizes the plaintiff, in an action upon a lost note, to allege its loss or destruction as an excuse for not making proferí, declares that such allegation shall be considered a material averment in the cause. The plea of nil debet puts the whole of the plaintiff’s material allegations in issue; Starkie on Evidence, 2 Vot. m. page 369. The pleas of nil debet and payment are not repug» nant or inconsistent, and may be pleaded together. Chittyfs Pleadings, Vol. 1 ,m. p. 595. Mervey v. Say, 3 Pick, Rep. 338. Cults v. The United States, 1 Gall. Rep. 69. It follows, therefore that under the pleas, it devolved upon the defendants to prove the allegation of thp loss of the note.</p> <p>The bill of exceptions shows that no evidence whatever was adduced on the trial. The affidavit of Edward- Kellogg is no part of the record. We have no statutory provisions in relation to the proof of the allegation of the loss of a note sued upon, and therefore the affidavit of Edward Kellogg, a stranger to the record (and for aught that appears upon the record, a competent witness) could not have been used for any purpose 5 because that allegation, like any other material averment, must be proven in the ordinary way, that the opposite party may have the benefit of a cross examination. The plaintiffs allege that the note was made on the fh’st day of October, 1832, and was payable eighteen months thereafter: the action was instituted on the 24th day of July, 1844, so that ten years had elapsed from the time the right of action accrued thereon at the time of the institution of the suit, and therefore it was necessary for the plaintiffs in the court below to have proven the necessary facts to repel the presumption of payment. See 31 sec. of the 91 ch. Rev. Stat.</p> <p>The 104th sec. of the 116th ch. Rev. Stat. declares that “ the pleas of nil debet and non assumpsit may be filed in actions of debt •or assumpsit founded on any instrument of writing, not under seal,” but that “ such pleas shall not put in issue the execution of such writing, unless the saíne shall be verified by affidavit.” It will not be contended that this section dispenses with the necessity of proving the loss of the note. In Coleman v. Walcott, 4 Bay's Rep. 388, it was held that the allegation of the loss of a specialty, upon which the suit is founded, is a material and traversable one to be determined by the jury- See also Swift v. Stevens, 8 Conn. Rep. 431.</p> <p>By the record and assignment of errors, two questions only are presented for the consideration and judgment of this court. 1st. Did the court err in refusing to receive the additional or third plea of the plaintiff in error? 2d. Did the court err in refusing the motion of the plaintiff in error for a new trial of this cause ?</p> <p>As regards the first question the defendants insist that the matter was not of legal right, but addressed to the sound discretion of the court; and therefore this court is not at liberty to reverse the judgment upon this ground: unless it appears from the record that in refusing to receive such plea, at the time it was presented, and in view of all the circumstances of the case then appearing, the court committed a palpable and flagrant abuse of its legitimate powers to the injury of the plaintiff in error. That no such abuse of its legal discretion is shown by the record, but on the contrary the record affirmatively shows that the legal discretion confided to the court, was in this instance well exercised: 1st. Because such plea was calculated to surprize the opposite party. 2d. It must inevitably have produced delay in the trial of the cause. 3d. It was neither calculated or designed to affect the justice of the demand, or of the action of the defendants in error, which the previous pleading admits, and this does not controvert. 4th. It is too late to enlarge or increase the issues after the cause has been submitted to the court or to a jury, during the trial thereof. But 5th. the record no where shows any exception taken to the opinion of the court refusing to receive said plea, at the time of such refusal. This plea is not therefore legitimately parcel of the record of this cause, consequently no question in regard to it can be considered and adjudicated by this court.</p> <p>In regard to the refusal of the court to grant a new trial on the motion of the plaintiff in error, the defendants insist that this also (under the circumstances disclosed by the record) was a motion addressed to the sound legal discretion of the court: in the exercise of which this court cannot interfere unless some flagrant abuse of such discretion is shown by the record, the contrary of which appears in this case. Because, 1st. the plea of nil debet, according to the literal import of its language, only puts in issue the fact of the present indebtedness of the party so pleading at the time of the institution of the suit, which at the common law imposed upon the opposite party the necessity and burthen of proving the execution of the note, when (as in this case) the action was founded upon a promissory note — the proof of which established ■per se the debt, and devolved upon the defendant the burthen of establishing such facts or matter as in law discharged the action. 1 Chitty PI. 516. But under our Statute, Rev. St. Ark. ch. 116 sec. 104, p. 633, the plea of nil debet, as filed in this case not verified by affidavit, does not put in issue the execution of the note, consequently it must admit the debt as proven by the note, and cast upon the party so pleading, the burthen of proving himself discharged from the action, and this appears to have been the opinion of the circuit court. The burthen of the issues joined was therefore manifestly upon the plaintiff in error, who by and upon his whole pleading admits his execution of the note as alleged in the declaration, and rests his defence upon matters in discharge. But who, nevertheless, failed at the trial to produce any testimony whatever, and after judgment was pronounced against him for what the record showed to be due from him to the defendants in error, moved the court to grant him a new trial, because of his own failure to establish by proof any matter in discharge of the action, without showing any excuse or cause of such failure; and ,on the ground of such refusal to grant him a new trial, he invokes this .court to adjudicate this act of the circuit court a flagrant abuse of its legal discretion; and thereupon reverse the judgment .against him and grant him a new trial.</p> <p>2d. There is no testimony in the cause, nor any reason showp for fhe failure to establish the issues joined by competent proof; copse-quently, if the judgment is in favor of the party entitled to it upon the pleadings, there is no ground upon which it can be disturbed. And that it is right upon the pleadings appears to us clear: for they expressly admit the existence of the debt, and there is no proof that it has been discharged.</p>

This was an action of debt, commenced and prosecuted by Gibson against Davies in the Circuit Court of Chicot county, upon a writing obligatory, which is described in the declaration as the single obligation of the defendant. At the term to which the original writ was returnable, Davies appeared and craved oyer of the supposed writing obligatory in the declaration mentioned, which was granted by filing a copy thereof.

Tins was an action of assumpsit, on a promissory note, brouglit by Hugh Campbell, Arch. Campbell and John H. Martin, partners under the firm name of H. & A. Campbell & Co., against John and Charles Hardwick, and determined in the Benton circuit court, November term 1845, before Sneed, judge.

This was an indictment against Robinson for an assault and' battery upon Patterson, determined in the Johnson circuit court,, at the September term 1845, before Bkown, judge. Appellant was indicted by the name of Allen Robinson; he pleaded in abatement that his name was not Allen Robinson, but Alney McLean Robinson.

Writ of Error to the Circuit Court of Crawford County. Covenant, determined in the Crawford circuit court, at the August term 1845, before the Hon. R. C. S. Brown, judge.

At the May term, 1839, of the Circuit Court of Chicot county, the plaintiffs in the court below, asked leave to reinstate on the record of that court a judgment at law previously obtained by him at the April term thereof in 1838, upon the ground that the original entry was lost or destroyed.

This was an action of assumpsit, brought in the Court below, by Roach against Scogin. The declaration contained three counts.

This was an action of debt on a writing obligatory, commenced and prosecuted in the Circuit Court of Pulaski county, by Dugan against Woolford.

Writ of Error to the Circuit Court of Crawford County. Debt, determined in the Crawford circuit court, at the April term 1844, before Brown, judge.

This was an action of assumpsit, brought against the plaintiff in error, and also James Tate and Jonathan Rogers, in the Circuit Court of Pulaski county, returnable to the March term thereof, 1839. Process not having been served on the two last named defendants, Robins alone appeared and pleaded his plea of non-assumpsit, to which issue was joined. The declaration contained three counts.

Writ of Error to the Circuit Court of Crawford County.- John Howell sued Isaiah Vinsant upon a wiiting obligatory for $78 25, before a justice of the peace.of Crawford county, in January 1845-.

The record in this case states that at the October Term of .the Circuit Court, 1837, Grayson moved the court for a judgment against Clark for the sum of $125 14í cts., paid by him as his security, to one Abraham Block, in recognizance of appeal from a judgment of Justice of the Peace to the Circuit Court, and judgment was accordingly entered against him for the above amount, with interest thereon at the rate of ten per cent, per annum from the 24th day of May, 1835, until…

Writ of Error to the Circuit Court of Pulaski County: This suit was commenced before a justice of the peace of Pulaski county, in March 1844, in the name of Richard C. Byrd, for the use of John K. Taylor, against Peter T. Crutchfield; and was founded on a bond for costs, executed by Crutchfield to Byrd on the institution of a suit by Gasquet & Co. in the circuit court of Pulaski county against Byrd, and conditioned for the payment of all the costs of the suit.

Writ of Error to the Circuit Court of Pulaski C&unty. This was an action of debt brought by Leo Tibbatts against Thomas W. Newton upon a bail bond, determined in the Pulaski circuit court, at the November term 1847, before Clendenin, judge.

<p>Error to the Washington Circuit Court.</p>

Writ of Error to the. Circuit Court of Hempstead County. Covenant, determined in the Hempstead circuit court, at the May term 1845, before the Hon. Geo. Conway, judge.

trespass instituted .in -the Circuit Court o£ Washington county, by Thomas Wagnon against the plaintiffs, in error.

Error.to Pulaski Circuit Court. This was a suit commenced by the defendant in error as a minor' under- twenty-one years of age, by William Ward, as his next friend and guardian, against the plaintiff in error, in the Circuit Court of Pulaski county, in assumpsit. The declaration contains but one count, which is in the usual form of the common count fbi work and labor done and performed, and money lent and advanced.

<p>Certiorari to the County Court of Crittenden.</p> <p>The facts appear in the opinion of the court.</p> <p>This judgment must be quashed for many reasons.</p> <p>1st. The record does not show any such notice to Trice as authorized the court to render judgment against him. It contains an order for a citation, but no citation — a writ of attachment, but no oi’der for it. The attachment was the authorized act of the clerk, and the recital therein, by the clerk only, that he had been cited, is the only evidence of that fact. The attachment was for contempt, not to compel him to answer, and upon it he was served by the sheriff and delivered to the judge. What particular right the judge had to take charge of him does not appear.</p> <p>2d. The record shows no data on which the court proceeded. It is a court of limited jurisdiction, and a judgment so rendered, without any premises, is a nullity.</p> <p>3d. The county court had no power, at the April term 1841, to make settlement with Trice on account of the revenue for 1840. That could only be done at a regular or special term in November. Rev. Stal. 683. Lawson v. Pulaski Co. 3 Ark. 8, 9, 16.</p> <p>4th. There is no showing on the record that the accounts of Trice in regard to the revenue of 1840 were not correct and true, and therefore the imposition of the penalty of twenty-five per cent, was illegal and improper. Lawson v. Pulaski Co. 3 Ark. 15,16.</p> <p>5th. The record does not show that Trice was in any default in regard to the moneys received from the sale of the runaway slave. All the county court had power to do, was to ascertain the amount due by him and certify to the treasurer. Rev. St. 714.</p> <p>6th. No penalty of 25 per cent, could legally be charged up until the court had first ascertained the balance due upon the sheriff failing to render true accounts and settle, and until the expiration of ten days thereafter. Then, and not until then, the clerk could charge up the penalty. Rev. Si. 226. If he did render true account and settle, then the only additional liability was 5 per cent.'a month.</p>

Writ of Error to the Circuit Court of Clark County. This suit was commenced by John S. Brinkley against Edward Barinds before a justice of the peace of Clark county, in Nov. 1845.

Writ of Error to the Circuit Court of Crawford County, At the July term of the probate court of Crawford county 1845, on the 12th of the month, James H. Moore presented for allowance against John J. Dillard as administrator of William H. Dillard dec’d, a bond for $350, executed to Moore by Dillard’s intestate, which had been exhibited to the administrator for allowance, properly authenticated, and rejected.

Appealfrom the Circuit Court of Hot Spring County. The 10th section of “An act to repeal the 10th section of the 62d chap.

Ereos to Pulaski Circuit Court. ■ This was an action of debt, founded on the official bond of the defendant, Taylor, as late Sheriff of Pulaski county, and his securities, against all of whom, except Benjamin Williams, who is alleged not to be sued in this action, and James Lowery, who in the queritur of the declaration, is alleged to be dead, the defendant who was plaintiff in the Circuit Court, in his official character as Auditor of Public Accounts, declares for the…

Writ of -Error tb the Circuit Court of Crawford, County. This was an indictment against Abram G. Mayers for an assault and battery, determined in the Crawford circuit court at the August term, 1845, before Brown, judge. The indictment charged the defendant with an assault and battery upon one Mannet, whose Christian name to the grand jurors was unknown, on the 10th June 1844, in said county. The case was submitted to a jury, on plea of not guilty, and defendant was convicted.

This was a bill to foreclose a mortgage, filed by Biscoe et al. as Residuary Trustees of the Real Estate Bank against William B. Duncan, Francis Suget and John Ker in the chancery side of the Monroe circuit court, and determined at the September term 1845, before the Hon. Wm.

This was an action of debt brought by Jesso Shelton againsi Huldah Clark as administratrix of Benj. Clark, determined in thecircuit court of Hempstead county, at the May term 1845, before-the Hon. George Conway, judge.

This was an action originally instituted before a Justice of the Peace, and founded on a writing obligatory. The process was served on Kuykendall alone, against whom judgment was entered by default, and from which he took an appeal to the September term of the Circuit Court.

Writ of Error to the Circuit Court of Hempstead County. Interpleader, determined in the Hempstead circuit court, at the November term 1845, before Conway, judge. The facts appear in the opinion of this court. The only ground upon which the sale from Johnston to Cocke can be avoided is upon that of fraud, either in fact or in law. Fraud in fact was not so much as even pretended in the court below.

Strong, as assignee of Salathiel Knight and James Bell, late merchants, trading under the firm of Knight and Bell, commenced an action of debt, on a writing obligatory, made by Small, bearing date the 7th day of October, A. D., 1837, for the sum of $603 97 cents, payable to the said Knight and Bell on or before the 1st day of January, A. D., 1838, which he avers was regularly endorsed, signed, and made over, and delivered to him, by the said Knight and Bell, on the 15th day…

) before a justice of the peace of Pulaski, in December, 1845, on a note. Judgment against Sterling; be appealed to the circuit court, giving Snapp as security for the appeal, and the cause was tried at the May term, 1846, before Clendenin, judge. It was submitted to a jury; they found for Bender, and judgment was accordingly rendered against Sterling and his security in the appeal.

Writ of Error to the Circuit Court of Clark County. Ezra Hill brought suit against Presley Watts on a note, before a justice of the peace of Clark county, in July 1844. The justice rendered judgment against Watts, and Hill appealed to the circuit court. The justice sent up what purported to be a transcript of the proceedings before him, but it was not authenticated by his certificate and official signature.

Writ of Erroi' to the Circuit Court of Crawford County. Debt, determined in the Crawford circuit couit, at the August term 1845, befoi’e Brown, judge. The facts sufficiently appear from the opinion of this court. The writing obligatory declared upon was subject to all the defences that existed at the time of the assignment. See 3 sec. 11 ch. Rev. St at.

This was an action of debt, instituted bj defendants in error, as partners under the name, style, and firm of Tunstall and Waring against W.… Held: that if a debtor gives his note endorsed by a third person, as further security for part of the debt, which is accepted by the creditor in full satisfaction, it is a valid discharge of the whole of the original debt, and may be pleaded in bar as an accord and satisfaction ; and said, that the additional security required by the…

Writ of Erj'ot' to the Circuit Court of Crawford County. Covenant determined in the Crawford circuit court, in October, 1844, before Brown, judge.

<p>In an action against a sheriff for failing to take the body of a defendant in execution, under a writ commanding him to levy the judgment specified therein oi the goods and chattels, lands and tenements of the defendant, and in default thereof to arrest his body, the declaration should allege that the defendant had not sufficient goods and chattels and real estate of which to levy the judgment.</p> <p>It should also allege that the sheriff failed to have the money before the court on the return day of the writ.</p>

Debt, by attachment, determined in the Bradley circuit court at the May term 1846, before the Hon. Wm. H. Sutton, judge. The suit was brought by Wm.

Atpeah from Phillips Circuit Court. By an indictment of the grand jury of Phillips county, returned to and filed in the Circuit Court of said county on the 11th day of May, at the regular term thereof, held in May, 1839, the appellant was charged as accessory before the fact, to the murder of John Williams, thereby charged as having been committed in said county, on the 9th day of January, 1839, by William Broadus and John Lucas, who are also charged and indicted by said…

Bill in chancery determined in the chancery side of the Independence circuit court, in February 1846, before Hon. William Conway B. then one of the circuit judges. The decree was in favor of the Bank, McJenkin, the defendant, appealed, and filed the following affidavit therefor. “ I, Wm.

Petition for Mandamus. Petition to this court for mandamus, filed at the January term 1846, by David Walker, Abraham Allen, and John Hammock.

At the July term, 1844, of this court, Sam. M. Hays presented a petition for certiorari to the county court of Pope, stating that on the 26th October 1843, he presented to said county court for allowance an account due to him as sheriff of the county for $426 22, which said county court refused to allow upon the ground that it was barred by the statute of limitation, and he excepted.

Writ of Error to the Circuit Court of Perry County. Replevin, in the detinet, for three slaves, Maria, and her two children, Jack and Winny, brought by Harris Crain and wife Martha, James, William, Alfred and Jeiferson Tucker, James Campbell and wife Melissa, Richard H. Burtram and wife Fanny against Ja’s Carr, and determined in the Perry circuit court, at the April term 1842, before Clendenin, judge.

Trover, by Alexander as administrator of Payne, against Foreman determined in the Benton circuit court at the Nov. term 1845, before Sneed, judge. The defendant pleaded former action pending at the commencement of the suit, plaintiff replied nul tiel record, to which defendant joined issue. The cause was submitted to the court, and the court found for defendant, and rendered judgment that the suit abate.

Writ of Error to the Circuit Court of Pulaski County. Detinue, for steam boat, Lady Morgan, brought by Barnett, Read and Lewis against Mason, Smith and Taylor, and determined in the Pulaski circuit court, in June 1844, before Clendenin, judge. Defendants pleaded non detinet, issue to the plea, cause submitted to the court, sitting as a jury, and finding and judgment for defendants.

Writ of Error to the Circuit Court of Hot Spring County. Debt, by Reardon & Son against P. & Z. Phillips, upon a writing obligatory, determined in the Hot Spring circuit court in February 1844, before Clendenin, judge. At the August term 1843, to which the suit was brought, defendant pleaded payment, and plaintiffs took issue to the plea, all in short upon the record by consent.

<p>Writ of Error to the Circuit Court of Independence.</p> <p>The facts are stated by the court.</p>

On Quo Warranto. This was a writ of quo warranto, sued out and prosecuted by the attorney for the State in the Supreme Court, by which the defendant was commanded to appear and answer unto the State of Arkansas, and show by what warrant he exercised the franchise of Commissioner of Public Buildings of the State of Arkansas, and had entered into, and upon, and used the powers, rights, and privileges, thereunto appertaining, it being alleged that no legal or valid grant of…

<p>Debt by fourteen original Trustees of the Real Estate Bank: plea, puis darrein continuance, that the plaintiffs had, since the commencement of the suit, ceased to be trustees, by limitation of the deed of assignment, and that five residuary trustees had been elected from their number, under the provisions of the deed, to whom the assets of the bank, including the notes sued on in this case, passed : demurrer to the plea — Held that the suit had abated : that on the election of the five residuary trustees, the legal interest in the causes of action vested exclusively in them, and the fact should have been suggested upon record, the suit abated as to the others, and progressed in the names of the residuary trustees.</p>

InterpleadeR, determined in the Crawford circuit court, at the October term 1844, before Brown, judge. Held: that it is merely evidence of fraud, and may be explained. And so this court say in Cocke vs. Chapman, ante 179. Neither rule, however, strictly applies to this case, for the whisky was in possession of Stoneroad, as bailee of Ratcliff, when he sold to Simco.

Writ of Error to the Circuit Court of Pulaski County. Assumpsit by Ignatius Wilamowieez against Richard T. Jennings, upon a promissory note, executed by the defendant to Baker, endorsed by him to Brown & Fenno, and by them to plaintiff. The cause was determined in the Pulaski circuit court at the April term 1847, before Clendenin, judge.

Writ of Error to the. Circuit Court of Crawford County> Ejectment, by James Stennett and Jesse Busheyhead against William C. Scott, in the Crawford circuit court. At the return term (Sept. 1843) Scott moved the court to make Isam Herrick a party on the ground that he claimed title through him: which was done. After several continuances, the cause was tried at an adjourned term in July 1844, before Brown, judge.

Covenant, bv Alfred Wallace against Benj. H. Pierson, determined in the Washington circuit court, at the May term 1845, before the Hon. Sebron G. Sneed, judge. Plaintiff declared on a writing obligatory executed by defendant to L. Brodie for “ the sum of six hundred dollars in current bank notes,” dated Dec. 1st 1840, and due 1st Dec. 1842, which was assigned to plaintiff by Brodie.

On Quo Warranto. A quo warranto issued against the defendant, John Hutt, summoning him to appear and show by what warrant he claimed to exercise the office and franchise of Justice of the Peace, in and for the county of Pulaski.

On Certiorari to Pulaski County Court. This was a proceeding upon a writ of certiorari to the county court of Pulaski county, issued upon the petition of plaintiffs, requiring the county court to… Held: were originally parcel of the flowers of the crown, as waifs, deodands, wrecks, &c., and if these came again to the King they were held to be merged in the crown.

Writ of Error to the Circuit Court of Hempstead County. At the November term of the Hempstead circuit court, 1845, Jonathan West filed in said court a transcript of the proceedings of the county court of said county, in which he had been fined for failing to work on a road.

Writ of Error to the Circuit Court of Johnson County. This suit was commenced by Philemon Williams upon an account for $100, money loaned, against Absalom B. Pryor, before a justice of the peace of Johnson county. The account was filed, and summonses issued 11th May, 1842, returnable on the 21st, which was duly served by the constable.

Writ of Error to the Circuit Court of Pulaski County. Debt by James A. Scott against Absalom Fowler and Albert Pike, determined in the Pulaski circuit court at the May term 1845, before Clendenin, judge.

Writ of Error to the Circuit Court of Pulaski County. The facts of this case deemed material to an understanding of the points decided by the court, are stated in the opinion,

The plaintiff presented his petition to one of the Judges of the Supreme Court, in vacation, to be relieved from the payment of a sum of money with which he stood charged on the tax book of Pulaski county, for the year 1838, as a county tax imposed on him for the privilege of keeping a stallion, or stud-horse, and thereupon, according to the prayer of his petition, obtained a writ of supersedeas, suspending the collection -thereof until the matter could be heard in the…

Writ of Error to the Circuit Court of Pulaski Comity, Motion for possession of real estate, by Roswell Beebe against James D. Fitzgerald and others, determined in the Pulaski circuit court, at the May term 1845. The petition was filed December 1st, 1843, and its substance is stated in the opinion of this court. Beebe claimed possession by virtue of a purchase at sheriff’s sale under executions against James DeBaun, and against DeBaun and Thorn.

The defendant pleaded non cepit, and property in himself and not in the plaintiff, and also gave notice that he would prove property in himself and one Wynn. The plaintiff joined issue to the plea of non cepit, and demurred to the second plea, which demurrer was overruled, and, as stated by the record, he then “joined issue 2nd plea.” The record is a meagre one, and very little was done by the plaintiff, in the court below, to present his case fairly before this court.

Writ of Error to the Circuit Court of Pulaski County. Assumpsit, determined in the Pulaski circuit court, in June 1844, before Clendenin, judge. The facts appear in the opinion of the court.

Writ of Error to the Circuit Court of Pulaski County. Debt, by the Bank of the State or Arkansas against Michael Bozeman, determined in the Pulaski circuit court, Nov. term 1845, before the Hon. J. J. Clendenin,-judge. The action was founded on a writing obligatory for $3 500 executed to the bank, by Simeon Buckner as principal, the defendant and Lambert J. Reardon as securieties, dated Nov. 22,1840, and due at six months.

This was an action instituted by Prescott and Jones against Webb, by petition and summons, in the Circuit Court of Chicot county.

Writ of Error to the Circuit Court of Pulaski County. This was an. action of debt instituted in the Pulaski circuit court by the State of Arkansas on the official bond of Woodruff as treasurer of the State. The defendants filed three pleas: to the first and third issues were taken and a demurrer filed to the second.

This was a suit in chancery, and was brought up by a writ of error The defendant in error moved to dismiss, because no writ of error lay to a court of chancery.

Writ of Error to the Circuit Court of Marion County. Garnishment. The facts are stated in the opinion of this court. In this case a writ of garnishment issued against the plaintiffs without showing a joint debt or liability, and appears to have been served on the return day thereof. Plaintiffs contend that the service was not good; but if good, this is in the nature of an original action, and in order to charge them jointly the writ should have shown a joint liability.

This was an action of assumpsit founded upon a writing in the'following words: “ Ninety days after date Steamer Tecumseh and owners promise to pay M. & H. Devinney, or order, the sum of two hundred and seventy-six TVo dollars for value received, F. C. KENDALL.” Endorsed, “ pay Ormsby Hite & Co., Sept. 3, 1837.” M. & H. DEVINNEY.” The declaration contained two counts.

Writ of Error to the Circuit Court of Pulaski County. On the 8th May 1845, Humphries filed in the circuit court of Pulaski county the following motion: “ John Humphries comes and represents and shows to the court here that on the 7th day of May 1842, one Pleasant McCraw, by the consideration and judgment of this court, recovered against him the sum of $311 14 damages, with costs, Said Humphries therefore moves the court for a rule on said Lawson requiring him to apply said…

Writ of Error to the Circuit Court of Pulaski County. At the October term of the Pulaski circuit court, 1845, John Humphries filed the following motion against James Lawson, having given him the usual notice thereof: “John Humphries, by attorney, comes and represents and shows to the court here, that heretofore, to-wit: on the 16th day of May 1842, one Pleasant MeCraw by the consideration and judgment of this court, recovered against said Humphries the sum of $31114 in…

This was an action of assumpsit, brought by Hill against Olmstead. The general issue was pleaded; and by consent the evidence was submitted to the court, instead of the jury, and a judgment was rendered for the plaintiff below. There was a motion for a new trial on the part of the defendant, which was overruled; whereupon he excepted to the opinion of the court, and incorporated into the record, the whole of the evidence that was given upon the trial.

Writ of Error to the Circuit Court of Pulaski County. Assumpsit, by William W. Adams, against Pleasant Jordan as. administrator do bonis non of James Danley deceased, determined in, the Pulaski circuit court, at the May term 1845, before the Hon. J. J. Clendenin, judge. The declaration contained two counts, one upon a physician’s bill,’the other for money paid, laid out and expended by plaintiff for the use of Jordan’s intestate.

Writ of Error to the Circuit Court of Pulaski County. .. This was an action of debt by Yell as Governor of the State, for the use of Smith, against Lawson, as sheriff of Pulaski county, upon his official bond, determined in the Pulaski circuit court, in December 1845, before Clendenin, judge.

Writ of Error to the Circuit Court of Clark County. This was a motion for judgment on a forfeited delivery bond, by Sam. C, Roane and others, trustees of the Real Estate Bank, against Calloway and Manning, determined in the Clark circuit court, at the September term 1845, before the Hon. J. J. Clendenin.

This suit was founded on a writing obligatory, purporting to have been made by Nathaniel H. Buckley and N. Menifee, payable to H. R. Cartwell, in whose name it was commenced and prosecuted, for the use of John L. Houston, before a Justice of the Peace, who rendered a judgment upon it against the defendant in error, from which he appealed to the Circuit Court, and while the case was there pending, obtained a rule upon John Linton, an attorney at law, representing the…

<p>Writ of'Error to the Circuit Court of Hempstead County.</p> <p>Assumpsit, by attachment, brought by Block & Son, partners, on a promissory note, against Smith, and determined in the Hemp-stead circuit court. The facts sufficiently appear in the. opinion of this court. The judgment below was against Smith by default, and he brought error.</p>

<p>On Certiorari to the Circuit Court of Hempstead County.</p>

This was an action of debt brought by Sam. 0. Roane and others, trustees of the Real Estate Bank, against James B. Harris, Samuel Adams and Wesley Garrett, determined in the circuit court of Johnson county, at the September term, 1845, before Brown, judge. The action was founded on a promissory note, made to the plaintiffs, as trustees of the bank, by Harris as principal, and Adams and Garrett as securities, payable at the office of the bank in Van Burén. Harris made default.

Eeros to Pulaski Circuit Court. This was an action of debt brought by Howell against Webb. The defendant pleaded set off, for money due for the rent and occupation of a certain house and lot.

<p>Writ of Error to the ..Circuit Court of Pulaski County.</p> <p>In addition to the statement of this case made by the court, it is only necessary to copy the second count of the declaration. The defendant below moved in arrest of judgment on the ground of a misjoinder of counts, contending ,that the second count was in case, while the other two were in assumpsit. It follows,: “And for that whereas .piso heretofore, to wit, on the first day of January, in the year 1842, at &c., in consideration, that the said plaintiff, at the special instance and request of the said defendant, had caused to be delivered to him, the said defendant, certain goods and chattels, to wit, a cotton gin stand, of him the:said plaintiff, of great value, to wit, of the value of three hundred dollars, to be taken care of, and safely and securely kept by the said defendant for the said plaintiff, he the said defendant undertook, and then and there faithfully promised the plaintiff to take due and proper care of, and safely and securely keep the said cotton gin stand, for the said plaintiff, and to re-deliver the same to him, the said plaintiff, when he the said defendant should be thereunto requested; and although the said defendant then and there had and received the said cotton gin stand of and from the said plaintiff for the purpose aforesaid; and although the said defendant was afterwards, to wit, on the first day of July, in the said year of 1842, at, &c., requested by the said plaintiff to re-deliver the said cotton gin stand to him the said plaintiff yet the said defendant, not regarding his said last mentioned promise and undertaking, but continuing, &c., did not, nor would take due and proper care of, and safely or securely keep the said cotton gin stand for the said plaintiff, nor did, nor would, at the said time when he was so requested as aforesaid, or at any time afterwards, re-deliver the same to the said plaintiff but on the contrary thereof, he, the said defendant, so conducted ¡himself with respect to the said cotton gin stand, that the same became and was wholly lost to the said plaintiff, to wit, at,” &c.</p>

Absent, Dickinson, J. Peter Dudley, assignee of Theobald & Bain, and executor of Isham Talbot, deceased, stated by his petition under the statute “that he is, as the assignee of Theobald & Bain, and executor of Isham Talbot, deceased, the legal holder of a bond against the defendants Grandison C. Smith, George W. C. Graves, and Claiborne W. Smith, executed to said Theobald & Bain, and by them assigned to the plaintiff, executor of Isham Talbot, deceased, to the following…

Writ of Error to the Circuit Court of Pulaski County. Debt, upon transcript of a judgment, brought by Owen, use of Kitchen, against Butler, and determined in the Pulaski circuit court in Dec. 1845, before Cusndenin, judge. The facts appear in the opinion of this court.

This was an action of assumpsit, and the declaration contained three counts: two of them charging the defendant in indebitatus assumpsit in different ways, and the other count seeking to render him liable on a quantum meruit. The case was tried upon the general issue, and there was a verdict and judgment for the defendant. Afterjudgment, the plaintiff filed his motion for a new trial, also his motion in arrest of judgment.

<p>On an indictment for an assault with intent to commit mayhem, the defendant may be acquitted of the intent charged, but convicted of an assault.</p> <p>An attempt to commit a felony against the person of another involves an assault.</p>

The plaintiff instituted ah action of debt against the defendants in the Circuit Court of Arkansas county, and declared, in the usual form, in action of debt. “ For that whereas the said defendants heretofore, to wit: on the third day of June, A.. B. 1833, at the county of Arkansas, by their writing obligatory, signed by their respective styles, of James Clark, John Thompson, Jr., Robert §.

Assumpsit, determined in March 1846, before Browfi, judge. The declaration contained a special count upon a promissory note to Cassiday, alleged to have been executed by May and A. M. Stray-ham as partners, under the firm name' and description of “ A. M.. Strayham & Co.” The declaration also contained the common counts and breach. May pleaded two pleas tb the whole declaration, the first being non-assumpsit and the second denying the partnership.

Assumpsit, determined before Clendenin judge, in June 1846. The declaration counted upon a promissory note made by Jennings, Tucker and Lincoln to Baker, who endorsed to Brown & Fenno, who endorsed to the plaintiff Wilamowicz. Lincoln only was sued, he pleaded five pleas all of which except the first, which was non-assumpsit, were sworn to.

This was an action of debt, on an administrator’s bond, commenced by “James S. Conway, Governor of’the State of Arkansas, and successor of John Pope, Governor of the late Territory of Arkansas, for the use and benefit of Samuel Dennis” and others, as heirs of David Trimble, deceased, against the plaintifls in error, together with Green-up D. Womsley, on the bond of Womsley as administrator of the estate of David Trimble, dec’d, in which bond the plaintiffs in error were…

Writ of Erro}' to the Circuit Court of Clark County. Debt, determined in September 1845 before Clendenin, judge. The declaration had three counts on a writing obligatory for $, 110, neither count containing a breach in itself — there was a fourth count for money paid, and the fifth count was on an account stated. The breach was that the defendants had not paid the sum of money in the writing obligatory specified.

This case having been disposed of by the court upon a question not argued, or involving the facts, a statement of facts is deemed unnecessary.

Writ of Error to the Circuit Court of Clarke County. Indictment for mayhem — determined' by Clendenin judge, in September 1845. The indictment was quashed upon motion of defendant: no defect or imperfection was pointed out, nor indeed was there any written motion made or filed. The indictment was entirely regular in all respects upon its face. The State brought error.

<p>A 'note payable to “the Branch of the Bank of the State of Arkansas, at Arkansas” may well be considered as a note payable to the State Bank by name.</p> <p>The additional words, do not vary the substance. But the matter was previously determined in Sower vs. State Bank, 5 Ark., and Wallace vs. Stale Bank, ante.</p>

<p>Before a court can pass upon and determine the rights of an individual, he must have either actual or constructive notice of the proceeding.</p>

Writ of Error to the Circuit Court of Pulaski County. Debt, on the official bond of Lawson as sheriff of Pulaski.

This was an action of assumpsit. Harter sued Hanna upon an alleged agreement, by parol, that the latter would sell and deliver the former twenty-six pork hogs, to be delivered at Hanna’s house by a certain day, for four dollars per hundred weight.

<p>Writ of Error to the Circuit Court of Pulaski County.</p> <p>Debt by the bank against Bates, and several others as his securities. Bates was served with process by the name of Asher B, Bates when the declaration and judgment names him Ashley B. Bates. Bates never appeared, Hughes pleaded two pleas which are sufficiently set forth in the opinion of the court, and the other defendants pleaded their bankruptcy and discharge. Upon issue to the plea .of Hughes there was a trial by the court sitting as a jury by consent, before Clendenin judge in May 1846, and judgment in favor of the bank upon the issues formed.</p> <p>Judgment for plaintiff against Hughes on the pleas, and against Asher B. Bates by default.</p> <p>Bates and Hughes brought error.</p> <p>The only question in this ease is whether the evidence of the defendant in the court below sustained the p'leá of notice.</p> <p>The statute requires the notice, to release a security, to be in writing, and it must necessarily be implied to be certain and definite in its character. It must require the person having right of action forthwith to commence suit against the principal debtor and other party liable. Rev. St. p. 722, sec. 1-2.</p> <p>In this case the paper relied on as a notice is neither definite in its character, nor does it require the party having the right of action to commence suit. It is a mere suggestion and is informal and indefinite.</p>

This was an action of assumpsit, upon a parol agreement, by which Hanna sold to Harter ten head of hogs, to be delivered six weeks from the date of the agreement, at Hanna’s residence, upon the delivery of which, Harter was to pay him four dollars per hundred for the pork. Demurrer to thd declaration being overruled, the plea of non-assumpsit was filed, and upon trial of the issue judgment was rendered in favor of the plaintiff below for nine dollars, and costs.

Wit of Error to the Circuit Court of Crawford County. Held: and the performance of some public act, indicative of a design to perform the functions of a court. Co, Litt. 58, a. 6 Tin. ab. 484. Wheat. Dig. 127. 3 Com. Dig. 300. . 8 id. 386. Dane’s ab. index p. t. and- see also 1 Bouvier’s Law Die. 361.

This was an action of assumpsit, commenced in the court below by McLain and Badgett against Cummins. The declaration contained two counts. The first alleged a retainer of Cummins by McLain and Badgett, to collect a note due by G. G. McKinney, for three hundred and forty-three dollars and seventy-five cents, and a draft on the postmaster at Chicot for sixty-seven dollars and fifty cents, and a failure to collect. The second count was for $700, money had and received.

<p>Appeal from the Circuit Court of Carroll County.</p> <p>Appeal from justice of the peace determined in November 1845, before Sneed, judge.</p> <p>The facts will be found in the report of the same case in 5 Ark. ’•619, and in the following opinion of the court.</p> <p>The question now before this court, is, should the circuit court obey the order of this court or disregard it upon a supposition that the supreme court had made a mistake? We contend that the circuit court is bound by the decisions of the supreme court, and should carry into execution its mandates and ■opinions, and to this point refer the court to 5 Ark. Rep. 200, For-■tenbury vs. Frazier et al. In that case, like this, a mistake had arisen in regard to fact; but the court say, no matter how irregular or illegal the decisions may be, the circuit court is bound to observe and execute their mandate. There are but few questions of gi’eater importance than this. The inconsistency in allowing the •circuit court to revise (for it amounts to that) the decisions of a supreme tribunal is manifest. The consequence to suitors would •be severely felt, as in this case the points raised on the record were passed over by the supreme court, those points might or might not have settled this litigation ; but unless the decision of the supreme court be carried out, the defendant loses his benefit of exception. Whilst on the other hand, if Gallen has suffered wrong, it was because he failed to present this error to the court, if committed by them, and ask a reconsideration, or if by the clerk, to have caused a perfect record.</p> <p>The justice however never gained jurisdiction of this case. The receipt sued on was not marked filed, nor does the record show .that it was filed at any time. Clark vs. Rives, 5 Ark. Rep. 37. Fowler vs. Pendleton, 6 Ark. Rep.</p> <p>There also appears to have been a regular continuance of the case before the trial, which was never set aside. This may, however, have been waived by appearance and trial as in the case of Ashley vs. May, 5 Ark. 408.</p>

Writ of Error to the Circuit Court of Pulaski County. Debt, on a writing obligatory for $458 33 determined before •Clendenki judge in November 1845. Sutton sued Beebe. There was a plea of payment stating that on the day the bond fell due the defendant paid to the plaintiff three hundred dollars, parcel of the sum demanded.

On application to the probate court of Pulaski, Smith judge, the claim was allowed: Mitchell excepted, and appealed. The only material part of the bill of exceptions was, “ that the account was satisfactorily proved to the court, and the statute of limitations was overruled,' to all which he excepted,” &c. The bill of exceptions does not attempt to set out any of the testimony.

Writ of Erro?- to the Cit-cuit Court of Crawford County. Debt, determined by Brown judge in February 1845. Bielde sued Brown.

Writ of Error to the Circuit Court of Lawrence County. Debt by attachment, determined in August 1844, by Johnson, C. J. then a circuit judge. No personal service was ever had upon ■the defendant, there was an affidavit that he was non-resident filed with the declaration. The declaration, attachment bond, affidavit for attachment, and a bond for costs reciting that the plaintiff was non-resident, were all filed on the same day.

Absent, Ringo, Chief Justice. This was an action of trespass on the case instituted in Lafayette Circuit Court, by the plaintiffs in error, against the defendants in error, together with Burkett D.… Held: that the owners were not chargeable as trespassers, for then one of them might be charged alone, but in point of contract, upon their receipt of goods to be carried on hire.

The declaration contained four counts. The first,a special count on a promissory note ma'de by Spencer Jackson and payable to the defendant, by whom1 it was endorsed to the plaintiffs, and by them endorsed to Joseph B. Mason; which, was protested for non-payment, and was subsequently paid by the plaintiffs; the second count was upon a judgment rendered in the State of Tennessee in favor of Joseph B. Myers against the maker and all the endorsers of the note with an averment…

The appellants presented their petition to the probate court of Pulaski county, setting forth that they were slaves of the late Cynthia Robinson deceased, that they had been manumitted by herlast will and that the other assets of the estate were sufficient to pay the debts, and praying the court to declare them manumitted and dischai’ged from all liability for said debts.

Steadman iritefpleaded, claiming a portion of the lands. To support his claim he produced a deed from the Auditor of Public Accounts of this State, which recited that by virtue of the act providing for the levy and collection of the revenue of this State, and the act changing the time of the Auditor’s sales of lands forfeited for taxes, the first approved 5th March 1838, and the other 15th December 1838, he had sold the lands in question to Steadman at public auction, ánd…

'Writ of Error to the Circuit Court of Pulaski County. The plaintiff instituted an action of debt upon a writing obligatory for $1050. The defendant appeared and pleaded that he had paid $300 parcel of the debt, to which plea there was a general replication and issue.

The facts in this case are sufficiently set forth in the opinion of the court. Upon the petition filed by the sheriff, the circuit court proceeded to award distribution of the money made under the' several executions. Trapnall and others appealed, and the case' was argued in this court as well upon the merits as upon the question of jurisdiction.

Writ of Error to the Circuit Court of Pulaski County. This was an action of covenant determined in the circuit court of Pulaski county'at the June term A. D. 1845.

'Writ of Error to the Circuit Court of Hempstead County. This was a scire facias issued by the clerk of the circuit court of Hempstead county on the 27th day of August 1847, against the representatives of William Bolls deceased, to revive a judgment rendered in said court on the ISthday of October 1839 against said William Bolls and others, and to continue the judgment lien on certain real estate of said Bolls.

Writ of Certiorari to the Probate Court of Newton County. This was an application to the probate court by Jane Breeding to allow an account against the estate of John Hudson.

Writ of Error to the Circuit Court o f Pulaski County. This was an action of replevin instituted in the circuit court of Pulaski county. The writ commenced as follows: “ The State of Arkansas, county of-. The State of Arkansas to the coroner of the county of-Greeting.” The defendant pleaded in abatement that the writ was not directed to the sheriff or coroner of any particular county.

This was an action of debt, instituted by the defendant in error against the plaintiff in error in the Circuit Court of Pulaski county.

Writ of Error to the Circuit Court of Hempstead County. This was a suit originally commenced before a justice of the peace, instituted on the 9th January 1846 by Julia Davis as executrix of Aquilla Davis for the use of William McGuire against Daniel A. Sullivan upon a note bearing date the 6th January 18-32 and due 1st June 1832, for $50.

Writ of Error to the Gir.euit Court of Pulaski County, This was;a.n action of assumpsit instituted in the circuit court of JP.ulaski ,'county. Held: that some of the municipal courts are held at other places or houses in the city: the plaintiff then proved that the house first spoken of was known as the court-house, and that there was no other court-house in the city. The court overruled the objection and permitted the depositions to be read in evidence.

This suit was commenced befóte a justice of the peace on a sealed instrument, executed by W. L, Ramsey and A, Baird, in favor of John Ruddell and W. S. McGuire for seventy-five dollars, dated Dec. 1,1842, and payable at twelve months after date.

Heard sued Yeates by petition in debt. Yeates moved to dismiss the suit on the ground that there was no copy of the writing sued on, filed with the petition as required by statute, but the motion was overruled by the court. He then demurred, setting oüt as causes of demurrer, that there was no copy of the instrument sued on filed with the petition; and, that it did not appear that Richard II.

This was a proceeding by petition and summons. The defendant below moved to dismiss the suit on the ground that there was no copy of the note filed with the petition as required by the statute. The motion was overruled, and there being no further defence, judgment was accordingly entered in favor of the plaintiff. Pike, for plaintiff in error, offered the same argument as in the case last preceding.

Writ of Error to the Circuit Court of Pulaski County. This case was decided in this court on writ of error at the July term 1845, and reversed. Vide 1 Eng. Rep. 241. The case being remanded to the circuit court a jury was empan-nelled to try the issues; and a verdict and judgment for the defendant.

This was an action of covenant, upon certain articles of agreement, by which Sumner agreed and covenanted, that whereas he had employed Roysdon, as an attorney, to defend him in the case of Wm.

This was a suit by petition and summons, brought against Newman and Presley Pollock. Service was had on Newman alone.

Writ of Error to the Circuit Court of Clark County. Keath instituted a suit before a justice of the peace and obtained judgment against Berkley and Wood, who appealed to the circuit court. Upon a trial in the circuit court judgment was rendered in favor of Keath for a less sum than he recovered before the justice, and against him for the costs.

Writ of Error to the Circuit Court of Pulaski County. This was an action of covenant determined in the circuit dourt of Pulaski county before the Hon. John J. Clendenin.

This was an action of indebitatus assumpsit, brought by Faulkner against McDonald, and a bill of particulars was filed when the suit was commenced. At September term, 1839, McDonald pleaded non-assumpsit. The record shows this plea to have been filed, and issue joined on the 10th of September, and that on the same day the issue was'tried by a jury, who found for Fanlkner one hundred and twenty-seven dollars damages, for which, with costs, judgment was entered the same day.

Writ of Error to the Circuit Court of This was an action of debt brought by Harrison E. Watson, and determined in court, at the May term 1846, before the Hon. George Conway, judge. The suit was commenced September 5th 1845, and was founded on two writings obligatory, executed by defendant to plaintiff: one dated 17th Jan’y 1830, due 1st Jan’y 1832 for $754 ; and the other, bearing the same date, due 1st January 1833, for $700.

Absent, Ringo, Chief Justice. This was an action of covenant instituted by Sabin, as administrator of Ludovicus Belding, deceased.

Writ of Error to the Circuit Court of Jefferson County. Debt, by the State, use of Trapnall & Cocke, partners &c., against Hammett and his securities, upon his official bond as sheriff of Jefferson county, determined in the Jefferson circuit court, at the October term 1845, before the Hon. Wm. H. Sutton, judge.

Appear from Chicot Circuit Court. Upon a petition and affidavit of Anthony H. Davies, and others, a writ of certiorari to the Auditor of Public Accounts of the State was issued by the Judge of the Chicot Circuit Court, returnable unto that court, with a supersedeas to the Coroner of Chicot county, to bring before the court a distress warrant issued by the Auditor against them as securities of the former Sheriff of Chicot county, with the proceedings of the Auditor prior to…

Assumpsit, determined in the Chicot circuit court, at the May teim 1S46, before the Hon. Wm. H. Sutton, judge. The facts are .stated, sufficiently, in the opinion of this court.

<p>A plea puis darrein continuance is a waiver of all previous pleas : and if the judgment on the plea be against the defendant it will be peremptory.</p>

Debt, determined in the Chicot circuit court, at the May term 1846, before Sutton, judge. The facts are stated, sufficiently, in the opinion of this court. The only question to be decided here is whether an action on a bond is banned in 5 years. Sec. 11, page 528, Rev. St. is conclusive. That statute is in force as was determined in Hawkins vs. Campbell, so far as this action is concerned. The case falls entirely within the rule of Hawkins vs.■ Campbell, 1 Eng. R. 513.

This was a bill to redeem mortgaged property, brought by Blake-more against Byrnside, and determined in the Washington circuit court, chancery side, in June 1845, before the Hon S. G. Sneed,-judge.

Absent, Ringo, Chief Justice. This was a proceeding against Mason, as garnishee, according to the provisions of the statute of the Territory in force at the institution of the suit. McCampbell, the plaintiff below, commenced an action of assumpsit against Steele, a non-resident debtor, by suing out a writ of attachment, and obtained judgment against him on the trial of the cause.

This was a bill in chancery, filed by Sam. C. Roane and others, Trustees of the Real Estate Bank, against Robert S. Gibson, one of their number, and George G. Pickett, determined in the Crawford circuit court at the Sept, term 1844, before Brown, judge.

Absent, Hingo, Chief Justice. This was an action on the case. The declaration contained three counts. Held: that after verdict, it should be intended that it was within the time, otherwise there had been no cause to have damages — and it was not material that the time of disturbance should be alleged; for it. was collateral to the promise. Hall vs. Marshall, Cro. Car. 497.

<p>Appeal from the Chancery side of the Circuit Court of Lafayette.</p>

The facts are stated by the court The appellee excepted in this case because the answer to the cross bill showed that the interests of Barraque and Mason in a part of the liabilities intended to be secured by the mortgage are several, and not joint. We insist that this objection, if it be one, could not be raised by exceptions, and we deny that it is any objection at all.

Bill in chancery by Bennet B. Ball and Mary E. Menifee against Benj. P. Howard, Dudley D. Mason and James Menifee, administrators of Nimrod Menifee, determined in the Conway circuit court,* chancery side, at the Sept, term 1845, before Brown, judge. The material allegations of the bill are stated in the opinion of this court. On the filing of the bill, the master granted a temporary injunction to the judgments at law.

Camp sued Gullett and Wife before a justice of the peace of Pulaski county in August, 1845, on a note for $50, made by Mrs! Gullett (formerly Mrs. Gray,) before her marriage with Gullett, to Camp, dated 12th Sept. 1841, due 25th Dec. 1842. Defendants filed (as the justice states in his transcript) an account against plaintiff for $78 08 consisting of various items running from a period before the execution of the note to 13th Sept. 1842, as a set-off.

This was a bill in chancery, brought by John D. Moore, James Moore and David Moore against James W. Madden and Wife Clarrinda, in the Washington circuit court,, and determined in June-1845, before Sneed, judge.

Bill in chancery by Benj. Cravy against Hill & Sargent, determined in the Union circuit court, chancery side, Nov. term 1845’, before Conway, judge.

Writ of Error to the Circuit Court of Pulaski County. This was an action of assumpsit, by John W. Walker against Samuel D. Walker and Faulkner in the Pulaski circuit .court, determined before the Hon. John J. Ciendenin, judge, and founded upon a bill of exchange drawn by one Moss on, and accepted by one Standifer, dated 17th June 1839, payable at Canal Rank, New Orleans, at six months from date, in favor of Faulkner, and endorsed by him and by Samuel D. Walker.

Absent, Ringo, Chief Justice. This suit was commenced in Hempstead Circuit Court, by filing a bond for costs, and issuance of a writ of… Held: that where the endorsee of a promissory note had recovered against the two promisors, and one of them had been committed in execution, he was still entitled to his action against the endorser, nothwithstanding the jailer, after liberating the prisoner, had received the amount of the judgment, and tendered it to the assignee of the…