Volume 20 — Arkansas Reports

<p>On reviewing the decision of the Circuit Court, refusing to admit to bail,, in a prosecution for murder, this Court will hold, that the Circuit Court was competent to judge of the credibility of the witnesses, if they were personally present, and examined in Court; but where the application for bail is made and denied, upon the testimony taken before the committing magistrates, this Court will give to the prisoner the benefit of all reasonable doubts arising from a conflict of testimony.</p>

<p>It is the proper practice for the Court to determine the issue to a plea of nul tkl record, by an inspection of the transcript of the record; and if the transcript fails to show that the Court rendering judgment had jurisdiction of the person of the defendant, it cannot be aided by other evidence.</p> <p>Where it appears from the face of the transcript that the Court had not jurisdiction of the person of the defendant, he may avail himself of the objection under the plea of nul tiel record.</p> <p>To warrant a judgment in personam, against the defendant, where he has not been served with process, it is necessary that he enter his appearance to the action, or do some act equivalent thereto — the recital in the record, by the clerk, at the time of rendering judgment, that the defendant had appeared at a previous term, is not sufficient evidence of an appearance to warrant a judgment as by default.</p>

<p>Appeal from Phillips Circuit Court in Chancery.</p> <p>Hon. George W. Beazley, Circuit Judge.</p>

Hon. George W. Beazley, Circuit Judge. The decree of the Circuit Court is fully sustained by the law as declared by this Court in the case of Kelly's Heirs vs. McGuire et al., 15 Ark. Rep. 555. There is no new question raised in this case, and it is not to be presumed that a case that had undergone the consideration and deliberation of that case is to be overruled. It cannot, with any plausibility, be contended that Wm. R. Lipscomb died seized or possessed of any real estate.

John J. Clendenin, Circuit Judge. It is submitted that so far from the matters set forth in the bill being so different in character that they cannot be litigated in one record, it is manifest that a suit could not be properly brought without including the whole of them in it, according to the strict rules of chancery proceedings: that all the defendants were necessary parties: that the minor complainants might well be either complainants or defendants.

<p>Motion for Writ of Error and Supersedeas.</p> <p>Hon. Felix I. Batson, Circuit Judge]</p>

Hon. Felix I. Batson, Circuit Judge. Though the statute, authorizing special terms to try criminals in jail, does not, in express terms, require notice to be given to defendants, still we conceive it to be a right guarantied by the spirit, if not the letter, of the constitution: without notice, he could not have his witnesses ready,, or take steps to procure them until brought into Court. See Du,nn vs. State, 2 Ark. 229.

Hon. William C. Bevens, Circuit Judge. The showing made on the ground of surprise was sufficient, and a new trial should have been granted. 1 Clarke’s R. 182; 3 Marsh. R. 109; 2 Bibb 33; 8 B. Mon. 39; 16 Wend. 62; 9 Humph. 654; 4 Blackf. 307; 6 Eng. 16; 18 Ark. 57. It was illegal to permit the State to read the affidavit of Coker to the jury to impeach witness Nolen. 1 Hawk. 6; 2 Hall 40; 17 John. R. 89; 3 Cowen R. 612; 4 M. $ S. 532.

Writ of Error to Lafayette Circuit Court. Hon. Abner A. Stith, Circuit Judge 1 The joinder of the two counts was not objectionable. 4 Ark. 56; 13 S. Sp M. 468; 1 Cheves 103; 2 McLean 325. If objectionable, it could not be reached by demurrer. 4 Ark. 56; 13 S. Sp M. 468.

<p>The statutory judgment upon a forfeited delivery bond merges and extinguishes the original judgment, as held in Smiser et al. vs. Robertson et at. 16 Arle. 599, and previous cases.</p>

Hon. John J. Clendenin, Circuit Judge. The indictment charges that the appellant did “utter, pass and give,” etc., “ one certain false, forged and counterfeited Bank note,” etc.: which is absurd. If it is a Bank note, it cannot be counterfeit. The statute knows no such description.

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

. Hon. Len. G. Green, Circuit Judge. moved for a perpetual supersedeas, and cited the cases of Dunn vs. The State, 2 Ark. 230; Gregg vs. Cooke, Peck’s Rep. 82; Galushavs. Butterfield, 2 Scam. 227, to the point that the judgment was void.

Hon. Hulbert F. Fatrchild, Chancellor. The complainant presented to the Probate Court for allowance, the claim which he held as administrator of his father against the estate of Conway. He could not allow it himself, but had to present it to the Probate Court to be allowed, if proved to the satisfaction of the Court, and he had to make the same affidavits as the law required of other claimants. Digest 125. The Court did allow it.

Hon. George W. Beazley, Circuit Judge. In Duncan et al. vs. Biscoe et al., 2 Eng. Rep. 175, this Court decided this, and no more than this: that the naked stock mortgage was no statutory, or legal security, for moneys borrowed from the bank by a stockholder. That is all that can be made of that decision — utterly and radically wrong as it was even to that extent. Wilson vs. Biscoe et al., 6 Eng. 44.

<p>In a suit by the surviving partner of the firm of P. & Co., the breach in the declaration, that the defendant had not paid to the surviving partner, nor to P. & Co., is sufficient — the negation of payment to the firm, is a negation of payment to any member thereof.</p> <p>Though one partner cannot bind another by deed or bond, by virtue of the partnership relation merely; yet a declaration alleging that the partners “ made their certain writing obligatory signed by their firm name,” “ and sealed with their seal,” etc., is good on demurrer — if it was the deed of but one, it must be shown by plea on the part of the partner who did not execute the bond..</p>

<p>The decision in the ease of Stilh vs. State, (13 Ark. 680), that the owner or occupant of a house cannot be indicted for permitting any of the games mentioned in the 8th section of the act to be played in his house, approved.</p>

<p>A defendant indicted by the name of Bennaux, pleaded in abatement, that he was known by the name of Beneux; Held, that the names were idem sonans.</p>

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

<p>The act of Congress approved 15th September, 1850, granting to the State the swamp and overflowed lands within her limits, vested in the State, proprio vigore, from the day of its date, title to all the land of the particular description therein designated.</p> <p>The act of the Legislature, approved 11th of January, 1851, was not, in itself, a confirmation of any sales, made by the land officers of the United States, of the swamp and overflowed lands granted to the State. But if the State had received the indemnity mentioned in the act, before any private rights had attached by purchase from her, the receival of the indemnity would be treated, in equity, as a sale to the United States, and the title thus acquired by the United States would enure, by way of estoppel, to her grantee.</p>

Hon. Len. B. Green, Circuit Judge. argued that the defendant could not be indicted for the offence charged, because in his examination before the grand jury, he had given evidence by which they were enabled to procure testimony against himself; and contended that upon sustaining the demurrer to the plea, the Court could not assess the fine. Guess vs. State, 1 Eng. 147; Rex vs. Johnson, 6 East 583.

<p>Appeal from Ouachita Circuit Court.</p> <p>Hon. Abner A. Stith, Circuit Judge.</p>

Hon. Ti-ieodoric F. Sorrells, Circuit Judge. The most liberal view that can be taken of the case at bar, for the complainant, is, that it is a proceeding for confirmation of title, under the act of November 3d, 1836, which provides, that in that proceeding, a sheriff’s deed shall be sufficient evidence of the authority under which the sale wras made, the description of the land, and the price at which it was purchased.

Hon. Abner A. Stith, Circuit Judge. Where the husband survives the wife, her choses in action survive to him whether or not they are reduced to possession, as her next of kin; and his right to administer includes the right to her choses in action. 6 John. Ch. Rep, 112; 5 John. Ck. R. 207; Gregory ad. vs. Marsh ad. .1 Rand. Possession of Ashbrooks, as guardian, was possession of Mrsl Moss. Coke Litt. 479.

<p>Appeal from Bradleij Circuit Court in Chancery.</p> <p>Hon. Tiieodoric F. Sorrells, Circuit Judge.</p>

<p>Appeal from Clark Circuit Court.</p> <p>Hon. Len. B. Green, Circuit Judge.</p>

<p>An agreement in writing, under seal, by the defendant, that the title to the property in controversy is in the plaintiff, and expressing the desire that the suit be tried upon its merits without regard to error in the proceedings, so that the finding may be that it is the property of the plaintiff, so as to vest the title in him fully by the judgment of the Court, has the effect of a release of errors.</p>

Hon. John J. Clendenin, Circuit Judge. The instrument sued on is a bond, and there is no way by which a man could become the legal holder, or acquire a right of action in his own name, but by assignment in writing. The proceedings by petition and summons under the statute, is essentially an action of debt, and subject to all the rules of law governing rights of action.

Hon. John J. Clendenin, Circuit Judge. The indictment describes the offence in the words of the statute, and under the rule laid down in Lemon vs. The State, 49 Ark. 171, the description is sufficiently certain. The exposing of one’s person was a misdemeanor at common 'law, and indictable as a common nuisance, but such exposure must have been in a public place, and to more than one person. Wharton’s Cr. Law 703, 704; Cruden’s Case, 2 Camp. 89; 1 Russell 302; 1 Barn.

<p>Appeal from, Crawford Circuit Court.</p> <p>Hon. Felix I. Batson, Circuit Judge.</p>

Hon. Felix I. Batson, Circuit Judgel The remedies prescribed by the statute are debt, if for money, and trover or detinue, if for property. ■ Digest chap. 77, sec. 1. “ Where a statute creates a right or defines a wrong, which had-no existence at the common law, and prescribes a remedy to enforce or protect the one, or redress the other, no action would lie at common law, but that prescribed by statute, and no other must be adopted.” Blackwell on Tax Titles 729; 23 Pick. 36;…

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

<p>Appeal from the Circuit Court of Pope County.</p> <p>Hon. John J. Clendenin, Circuit Judge.</p>

Appeal pom Independence Circuit Court. -Hon. William C. Bevens, Circuit Judge. The first additional replication to the plea was interposed under the 29th section of chapter 99 of the Digest, entitled (Limitations. See page 700, sec. 29. Did Williams, by “ any improper act of his own, prevent the commencement ” of this suit? If he had hot made the representations, the promises, the ■entreaties, that the replication narrates, he would have been sued in 1849.

Hon. John J. Clendenin, Circuit Judge. It is well settled that a deed defectively acknowledged cannot be admitted to record, and if such a deed be improperly admitted to registry, it is of no avail as constructive notice. Main et al. vs. Alexander, 4 Eng. 112; Blagg vs. Hunter, 15 Ark. 249; 3 Md. Ch. Beds. 57; 7 Geo. 432; 24 Verm. 560.

'Hon. Hulbert F. Fairchild, Chancellor. The claim of the complainant was barred by the statute of limitations, as shown upon the face of the bill. A demand barred at law is barred in équity. See Story’s Eg. PL 378, 389, 581; Humbert vs. Trinity Church, 24 Wend. R. 587; 2 A. K. Marsh. 45; 3 lb. 223; Thompson vs. Blair, 3 Murphy 583; Barden vs. Shelden, 10 Yerger 41; 1 Dev. Sf Bat. 73; Taylor vs. Bates, 4 Dana 139; 2 American Ch. Dig., by Wharton, p. 641.

<p>Indictment for selling spirituous liquors, under the act of 21th December, 1856, to aid certain townships in preventing the sale of liquors therein.</p>

Hon. Len. B. Green, Circuit Judge. Proof that one acts as an officer, and is therefore such officer, can be made only when he serves process, commands peace, etc. Barb. Crim. Treatise 92; 1 Hale 461; 1 East 315. The notice, with acceptance endorsed (Gould’s Dig., p. 963, secs. 7, 8,) is the best evidence, and should, therefore, have been introduced. 17 Ark. 154; 2 Greenl., sec. 63; Barb. Cr. Treat. 394.

Hon. Ti-ieodoric F. Sorrells, Circuit Judge. The plaintiff in error insists that the c'ourt below erred in sustaining the demurrer to the plea of nul tiel corporation. Such a plea is always admissible in a suit by a private coiv poration. Angdl Ames on Corp. sec. 634, et seq. and cases cited.

Hon. Abner. A. Stitii, Circuit Judge. That the Court erred in refusing to permit the plaintiff to read in evidence a certified copy of the Sheriff’s bond, also the original, also the order of the County Court, appointing Crow Sheriff, the following authorities are submitted: Outlaw et al. vs. Yell, Gov., 3 Eng. 345; Adams et al. vs. State, use Wallace, 1 Eng. 497; Eng. Digest chap. 66, sec. 11; Mitchell vs. Gibson et al., 14 Ark. 229; 3 Marsh. 303; 15 Wend. 502.

Hon. Felix I. Batson, Circuit Judge. The opinions of a witness, that a party has not the mental capacity to make a contract, are worthless, only so far as they are based upon facts declared in the evidence of the witness. Bee Sears vs. Shafer, 1 Barbour S. C. R. 412; 3 Wash. Cir. Court Rep. 589; Gowen and Hill’s notes, 2 vol. Phil. Ev. note 529; 3 Dev. 357. In this case the plaintiff relies upon his mental incapacity to contract.

Hon. George W. Beazley, Circuit Judge. The authority of the pilot to sell is clearly disproved. As the agent of the owners for a special purpose, no such authority can be implied, unless it was necessary to the successful execution of his trust. Story on Agency, sec. 61, p. 74, (2d Ed.), and authorities cited; Livermore on Agency, vol. 1, p. 102. Marlatt was entitled to recover upon an implied warranty. Story on Sales, sec. 367; 1 Parsons on Con. 456; 1 John.

Abner. A. Stith, Circuit Judge'. The covenant to Mrs. Stacy either vested in her or her husband. If it vested in the husband, as we think it did, being a chose in action, (2 Bl. Com. 597; 1 Chit. Gen. Pr. 99; 1 McQueen Hus. 4* Wife 19,) it was a merger of all prior parol contracts, {Smith on Con. 18; Platt on Cov. 585,) and he must resort to the remedies under that alone — action on the covenant or for specific performance. 2 Parsons on Con. 494, 507; 16 Ark. 340.

Hon. Abner A. Stith, Circuit Judge. The principle of law is clear, and without exception, in an equity forum, that where parties are meritorious and equally innocent the law must prevail, or, in other words, the legal title must be held paramount. 1 Story’s Eq., 63, c\ Fitzsimmons vs. Ogden, 7 Cranch. 2; Caldwell vs. Ball, 1 Term Rep. 205, 214.

Hon. Felix I. Batson, Circuit Judge, presiding. Held: and he purchased the whole of the lands for the taxes, etc. If a transaction of this sort is not a positive fraud, it is certainly an act on the part of the purchaser which the Court will hold to be a constructive fraud on the owner of the land.

<p>Appeal from Crawford Circuit Court.</p> <p>Hon. Felix I. Batson, Circuit Judge.</p>

<p>Error to Clark Circuit Court.</p> <p>Hon. Len. G. Green, Circuit Judge.</p>

Hon. Holbert F. Fairchild, Chancellor. The bill alleges, by way of avoidance of the Statute of Limitations as to Chase, that be was a Trustee for the Bank, and that it was his duty to have collected the note sought to be recovered in this suit. This would not avail the complainant anything, because, as the proof shoWs, he did not become Trustee until the month of May, 1840, before which time the note was barred. Faulkner et al. vs. Thompson ei al. 14 Ark.

Hon. Abner A. Stiti-i, Circuit Judge. The statements of a defendant in his answer, directly responsive to the bill, or explanatory of matters there charged, relied upon and enquired about, and which are, of necessity, or frora their nature, apparently within the personal knowledge of the defendant, are evidence in his favor.

<p>Appeal from, Pulaski Chancery Court.</p> <p>Hon. Hulbert F. Fairchild, Chancellor.</p>

<p>Where a debtor executes two deeds of trust to different trustees, to secure the payment of several debts, and the latter trust deed embraces all the property mentioned in the first, and also other property, a court of equity will not interfere to require the trustee in the second deed, to exhaust such other property, before resorting to that also embraced in the first deed, unless all tile parties interested are before it — the grantor, trustees and beneficiaries.</p> <p>Where it appears from the evidence [for which see opinion] that a deed of trust was executed and accepted in good faith for the purpose of securing the debts recited in it, a court of equity will not conclude that the deed was a fraudulent contrivance to hinder and delay creditors.</p> <p>Where the bill contains a prayer for specific relief, and also a prayer for general relief, the complainant may have specific relief other than that prayed for, provided it be consistent with the case made by the bill; it is otherwise, however, if the bill ask for specific relief only.</p>

Hon. Thomas Hubbard, Circuit Judge. ' made the following points: A mandamus only lies against a public officer, where there is a plain legal right, and no other specific remedy 1 Ark. 16; 5 Eng. 416; 2 Com. Rep. 492; 3 Texas, 51. The relation or petition must show the right of the re.lators, and also that there has been a refusal on the part of the officer to perform the specific act demanded. 12 El. 248; 11 Humph. 306; 15 Barb. 607.

Brim and cross-bill determined in the Pulaski Chancery Court, The bill was filed, 4th May, 1850, by Mary W. W. Ashley, as executrix of Chester Ashley, deceased, and Roswell Beebe, against Henry M. Rector, to quiet title, etc., to the north-west fractional quarter of fractional section three, south of the Arkansas river, in tovmship one, north of range twelve west, embraced within the plan of the city of Little Rock.

lion. Abner A. Stitii, Circuit Judge. The first objection we take to the decree of the court is, that even admitting the relief prayed for by complainant tobe well founded in equity, yet the court, by rendering a decree in favor of the complainant, for the whole of the land in controversy, erred most egregiously.

Hon. Hulbert F. Fairchild, Chancellor. argued this cause at length, as to the personal obligation of the appellant to pay for the repairs; and as to the knowledge of the appellee, that after the purchase of the premises by the appellant, he did not intend to become responsible for such repairs; and as to the appellee’s claiming interest for some ten years, on the ground of a vexatious delay of payment, of an alleged debt, not due by contract, and the amount oí which was…

Hon. George W. Beazley, Circuit Judge. The whole proceeding is erroneous, ab initio: the record showing on its face that it is a case of which the Probate Court could not take jurisdiction, The claim is founded on a contract in writing, partly performed, alleged to be broken, and sought to be held as partially rescinded; and therefore, clearly not within the jurisdiction of the Probate Court.

Hon. Felix I. Batson, Circuit Judge. It is respectfully, submitted that the Probate Court erred in substituting the account which had not been exhibited to the executor; and acting upon the same, instead of the account which had been exhibited and disallowed by the executor. The Circuit Court erred equally in affirming the judgment. It is maintained that the proceedings of both Courts in the premises were coram non judice. See chap. 4 of the Rev. Stat., sec. 102.

Writ of Error to Hempstead Circuit Court. Hon. Harris Flanagin, Special Judge. We think that the merits of this case are settled by the deciion of this Court in the case of Booker, Ex parte, upon an application by one of the stockholders of the company to enjoin the company from collecting the calls made on account of his subscription. See 18 Ark. Rep. 338. We also cite 21 Vermont 30; 13 Metcalf 311; Amer. Railroad Cases 226, 422; Chester Glass Co. vs. Dewey, 16 Mass. R. 94.

Writ of Error to Drew Circuit, Court. Hon. John C. Murray, Circuit Judge. Plaintiff sues by her corporate name, given her by public law of the State, and of which our courts are bound to take notice. Angel 4* Ames on Corp. 632; Act of 22d January, 1855, sec. 3. The legal liability of the defendant arises from his taking the shares of stock, and is fixed by the act of incorporation, and a promise to pay is implied. Pierce on Am. R. R. Law, 63 note, GO, n. 4.

<p>[The declaration must show that the notice, prescribed by the charter, was given See the case of Gaster, ante.]</p>

Hon. Len. B. Green, Circuit Judge. The instructions asked by the defendant, and refused, enunciate the principle, that where the line of a railroad is fixed in a charter, and a person subscribes for stock in the road, it is a contract that the road shall be fixed, located and constructed on the line or route thus designated, with only such deviations as shall be necessary in the progress of the work, and that a material and substantial change in the location and line of the…

<p>Writ of Quo Warranto.</p>

There had been no application for a writ of habeas corpus to the Circuit Court, nor had any such writ been issued by the Court, There was merely a motion for a preliminary examination, with a view of granting bail; and, on the adjournment of the Court, there was no longer an application for bail pending before the Court.

Hon. Georoe W. Beazley, Circuit Judge. contended that the Circuit Court erred in striking out the demurrer of the complainant to the cross-bill; in refusing an extension of time to answer the cross-bill; and in refusing to permit the answer to be filed when presented. That although a tax-sale may be void, a person claiming under it is entitled to compensation for improvements. Blackwell on Tax Titles, 688 to 696, note 4, p. 691.

Hon. B F. Neely, Circuit Judge! In cases of dead person’s estates, and the administration thereof, the Probate Court, in Arkansas, has the exclusive original jurisdiction; and by statute, it is expressly provided that the settlement of an executor or administrator, made as Ringgold made his, and confirmed as his was, “ shall never thereafter be subject to investigation, unless in a court of chancery, upon the allegation of fraud in the settlement of such account, supported…

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

George.W, Beazley, Circuit Judge! The collector of taxes, in everything connected with his duties, as such, is considered as acting under a special authority; and all his acts, materially affecting the rights of parties, and in order to divest the title to real property, without the owner's consent, must be strictly conformable to law, and to the statute prescribing his duties, and the acts to be done. See 14 Pet.

' Hon. John J. Clendenin, Circuit Judge. It can admit of no question, that the complainants are obliged to trace their title, if they have any, up to the original proprietor, the United States, or to stop short of that by resting on a tax title; which is a separate and independent title; a new right, in no way connected with previous claims or rights. Blackwell on Tax Titles, 631. This being the case, it must appear that the tax sale was made in accordance with law.

Hon. John J. Clendenin, Circuit Judge. Public ferries are purely of legislative creation, and a matter of regulation in the United States; (I Nott A court of chancery cannot set aside a ferry grant from the Legislature although obtained by fraud. The test of the proper exercise of the discretion of the County Court, is public convenience in licensing several ferries over public streams, and that discretion must be controlled by a direct proceeding by appeal or certiorari.

Hon. William C. Bevens, Circuit Judge. The bill shows upon its face, that Lindsay is entitled-to the relief he asks from a court of Chancery. It must certainly now be taken as an elementary proposition, that if legal relief is due, and cannot elsewhere be afforded, or if it cannot be adequately afforded, it will be extended by a court of Chancery, according to its own rules and practice. Lindsay could obtain no relief from the courts of common law and statutory jurisdiction.

<p>Where a person purchases property under an execution, issued upon a valid and subsisting judgment, in an attachment; and, afterwards, a re-hearing is granted the defendant, verdict in his favor, judgment that the attachment be dissolved, and the property restored, — this does not affect the validity of the sale aiid purchase of the property under the judgment while it was in force, nor revest the title to it in the defendant.</p> <p>It is no error to reject testimony on the trial, which, if permitted to be offered, could have been of no benefit to the party.</p> <p>In an action by a bailor against his bailee, it is no defence to the latter that the bailor purchased the property while acting as agent or attorney for a third person, who may have the right to claim the benefit of the purchase.</p> <p>The construction of a contract, and the form of action to be brought upon a breach of it, are questions of law, to be determined by the Court, and not by the jury.</p> <p>Where the contract of bailment was that, upon a certain contingency, the bailee was to account to the bailor for the property; and the proof was, that upon legal demand, the bailee refused to deliver the property — disputed the bailor’s right to it — and offered, in no way, to account for it; the bailor had the right to bring trover after the demand and refusal.</p>

Hon. Abner A. Stith, Circuit Judge. One cannot make testimony for himself, and all such should be rejected; 1 Stark. Ev., part 2, p. 121, et seq.; ^and all testimony not touching the issue should be rejected, lb., part 3, 386. Books under title of “ codes,” with notes, etc., cannot be introduced as testimony. Dixon vs. Thatcher et al., 14 Aik. 141; Sec. 2, p. 490, Ark. Dig. Proof of identity of property is essential to the action of replevin.

Hon. Abner A. Stith, Circuit Judge. For the appellant we make the following points: That Sarah Coor took a life estate only in the woman. 23 Wend. Rep. 452; 3 Murph. (N. C.) Rep. 549; 1 Dess. Rep. 253; 14 Ark. 607. Appellant’s intestate and her brother, Council B., took the remainder. 1 Bay’s Rep. 457; 1 Dess. R. 271; 2 McCord’s R. 440; 4 John. Rep. 61; 3 Barb. S. C. R. 387.

Hon. Theodoric F. Sorrells, Circuit Judge. So far as negro property is concerned, a Court of Chancery will always interfere to prevent a sale or trespass. That a court of equity has jurisdiction in this case; see Crapster vs. Griffith, 6 Har. As the complainant could have had full and complete relief at law, if entitled to the negro man, she could not apply to a court of equity. Story’s Eq. PI. sec. 472; Lovette and wife vs. Longmire, 14 Ark. 340.

Hon. John J. Clendenin, Circuit Judge. This case wag argued before Mr. Justice Compton and Hon! Thomas Johnson, Special Judge. Mr. Chief Justice English not sitting, and Mr. Justice Rector, absent. contended that the lien of a Justice’s judgment attaches upon the filing of the transcript, under the statute, and that the failure of the Clerk to docket the judgment as required by law, does not prevent the lien from attaching; and cited Jones vs. Luck, 7 Mo.

<p>Appeal from Phillips Circuit Court,</p> <p>Hon. George W. Beazley, Circuit Judge</p>

Hon. John J. Clendenin, Circuit Judge. 1. The provision in the charter, that the bridge should ever remain free and open to the citizens of Pulaski county, was only a personal exemption from the payment of tolls, and did not exempt the property of the citizen. 2. Where a special privilege or exemption is conferred upon an individual or class of persons, it must be construed strictly. 9 Bac.

Hon. John J. Clendenin, Circuit Judge. If the entry of satisfaction in this case is a record, it cannot be impeached by parol testimony, at least in a court of law and in a collateral proceeding. Is it a record? Of that there would seem to be no room for doubt. It was an act judicial in its nature and proper to be done. It was performed in open Court, and tbe evidence of its performance enrolled among its proceedings.

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

Hon. John J. Clendenin, Circuit Judge. contended that there was a variance between the contract, as alleged in the declaration, and that proved upon the trial, and cited the cases of Johnson Grimes vs. McDonald, 15 Ark. 109; Penn vs. Stuart, 6 Eng. 41; Turner vs. Riggins, ib. 337; 1 Chilly 299, 304. contended that there was no variance between the allegation in the declaration and the proof as to the contract — that the contract, as proved, was not an exchange of property,…

Hon. H. F. Fairchild, Chancellor. We insist that the injunction having been properly awarded, in the first instance, that it should have been retained until all the answers came in, so that the respective rights could all be finally adjusted. See 4 Johns. Rep. 516, McVickarvs. Walcott; 1 N. Jersey Ch. Rep. 404, Vliet vs. Lowmason; 1 Hojfm. Gh. Pr. 360; 2 Johns. Ch. Rep. 148, 149; 1 Paige Gh. Rep. 165, Noble vs. Wilson; 6 Ark.

Hon. Theodoric F. Sorrells, Circuit Judge. 1. The deposition of John Gillis was improperly excluded, he not being interested although a party to the record. 15 Ark. 281. A witness is always competent against his own interest. 1 Greel. Ev. 410; 15- Ark. 282.- 2. Specific performance is not a matter of right but of discretion. 2 Story’s Eq. 742. And a vendee cannot ask it without having complied, or offered to comply with the contract on his part.

Hon. George W. Beazley, Circuit Judge! The appellants interested in this case insist that the sale should be set aside and and a re-sale ordered, because: The terms of the sale were unusual; and therefore operated as a surprise without fault on the part of those interested. [2 Alabama 256.] The demand for specie was unjustifiable and oppressive; [5 Paige Chan.

Hon. George W. Beazley, Circuit Judge. When a contract is voluntary and based on no good or meritorious consideration a decree under it for specific peformance will not be granted. Story’s Eq. Jr., secs. 105, a., 176, 433; 18 Yes. 84; 1 Yes. jr. 50; 4 Johns. Ch. 497; 1 Cowen 74. Mere moral obligation is nothing. Ehli vs. Judson, 24 Wend. 97; So too of a contract where there is no mutuality. 2d Sto7-y Eq. p. 60, note 2; 1 Johns. Ch. 360; 4 Ai-k. 251.

This was a bill in equity, filed in the Chancery Court of Pulaski county, by the appellee against the appellants, to enforce a solicitor’s lien. The following brief statement of facts is substituted for that contained in the opinion: M. Cunningham employed the complainant and other solicitors to prosecute a suit in Chancery for a tract of land. After several years litigation a decree was rendered against Cunningham, which, on appeal to this Court, was affirmed.