Volume 21 — Arkansas Reports

A contract to convey lands carries an equitable title, and the right to compel a conveyance of the legal title descends to the heir of the purchaser. Rutherford .vs. Green, 2 Iredell's Ck. R. 121. A mere possibility coupled with an interest in real estate is assignable. Weight vs. Wright, 1 Ves. Sr. 491; Lawrence vs. Bayard, 7 Paige 76.

It is error to give judgment against a party while a plea interposed by him is not disposed of. 4 Ark. 527; 5 lb. 193; 4 Eng. R. 469; lb. 597. A consideration which is executed is not sufficient to support a subsequent promise, unless the act or service was done at the request of the party promising. Burge on Suretyship 14; 1 Parsons on Con. 362, 363; Pitman on Pr. Surety 55, 58; 2 Kent 465; 7 J. R. 87.

Appeal jrom Independence Circuit Court in Chancery. Hon. WtLLrAM R. Cain, Special Judge. So far as the subject matter of this suit is concerned, Greenwood & Co. must certainly fail in their defence, because it is not well pleaded. The requisite allegations of a plea of purchase lor a valuable consideration, without notice, may be seen by reference to 2 Dan. Ch. PI. 4* Pr. 775, 776, 778; 3 Sugden on Ven. {Qlh Am. Ed., side page) 490.

Appeal jrom Chicot Circuit Court in Chancery. Hon. John C. Murray, Circuit Judge. It has been decided by this court that the law which exempted swamp lands from taxation, was a contract — was constitutional — and the after repeal of it by the legislature, was against the constitution; 19 Ark. 360. The period of exemption begins from the day of purchase. This is true evidently, but it does not touch this question.

<p>Appeal from Chicot Circuit Court in Chancery.</p> <p>IIon. John C. Murray, Circuit Judge.</p>

Hon. Felix I. Batson, Circuit Judge. The administrator is entitled to the possession of the lands of his intestate, and may therefore maintain the action of ejectment for their recovery. Dig. ch. 4, sec. 62; Adamson et at. vs. Cummins, 6 Eng. 549; Menefee’s adr. vs. Menefee, 3 ib. 48. The proof that the intestate was in possession of the land at the time of his death, is presumptive evidence of a seizin in fee until the contrary appear.

Hon. Abner A. Stitii, Circuit Judge. The verbal agreement and correspondence between the parties were admissible, as part of th^ res gestee; 2 Par. on Con. 65, 68; 11 Mete. 199; 16 Penn. Rep. 43; to prove that plaintiff had control of the drugs at the time of the contract, 1 Par. on Con. 239; 20 Wend. Rep, 268; 2 Wash. C. C. R. 294; and to explain the equivocal terms used in the contract, 1 Greenlf. Ev. p. 400, sec. 297-300.

Hon. John J. Clendenin, Circuit Judge. It is submitted that the Court erred in excluding from the jury the declarations of the wife; and the case does not fall within the rule laid down in Funkhouser et al. vs. Pogue, 13 Ark. 291; that the declarations were admissible as evidence against herself, if not against her husband. 1 Phill. on Ev. 76, 77, 78; that the receiving of his wife by the defendants, and taking her to California was a wrong, for which they have shown no…

<p>Appeal jrom Montgomery Circuit Court in Chancery.</p> <p>Hon. Abner A. Stith,* Circuit Judge.</p>

<p>Appeal from the Chancery Court of Pulaski County.</p> <p>Hon. H. F. Fairchild, Chancellor.</p>

Hon. Felix I. Batson, Circuit Judge. The coupons tendered should have been received. They were a good payment under the charter, the acts of 1843 and 1853, and a good set-off under the general law. See secs. 9 and 1Í of the charter of the bank, and the acts of 31st January, 1843, and 12th January, 1853, chap. 150 Gould's Dig. title Set-off. See also Stillwell vs. Fagan Rec'r. 19 Ark.

<p>R is not within the power of the legislature to compel the Receiver of the Real Estate Bank to receive the bonds of the State issued to the State Bank in payments of debts due to the Real Estate Bank. .</p>

<p>Appeal from Chicot Circuit Court.</p> <p>Hon. Tiieodoric F. Sorrells, Circuit Judge.</p>

<p>Where a bond, or note, or other written contract, is conditionally delivered to a stranger, it has no efficacy and is not operative and binding until the conditions are performed.</p> <p>An instrument for the payment of money, executed in 184?, and payable in 1845, is within the operation of'the Act of Limitation of the 14th December, 1844, and of the saving clause in favor of infants and married women.</p> <p>A plea is demurrable, which neither denies any material allegation in the declaration, nor sets up any fact in avoidance.</p>

Hon. John C. Murray, Circuit Judge. We submit that the bonds of the State, and coupons due thereon, were a good tender. Secs. 1, 10, 11, Act 26th Oct., 1836; secs. 1, 2, Act 19th Bee., 1837; sec. 5, Act 24th Feb’y, 1838; sec. 3, Act 12th January, 1853; 18 Ark. Rep. 288; 7 Eng. 811; 11 Ark. Rep. 45.

Hon. Felix I. Batson, Circuit Judge. The Circuit Court erred in holding this cause to be within the last clause of the act of Congress,'3c? sec., approved March 3d, 1847, entitled “ An act to provide for the better organization of the Department of Indian Affairs,” etc. This act is only intended to apply to contracts made by an Indian in the Indian country, or in relation to claims against or moneys to be received from the United States.

Hon. H. F. Fairchild, Chancellor. It is clear that the possession of Morrison, under the assent of the trustees, and the acts done by him in pursuance of the contract, though it be a merely verbal one, is such part performance as will take the case out of the statute of frauds. Earl of AylesfOrel’s Case, 2 Strange 637; Foxcroft vs. Lyster, 1 Leading Cases in Equity, (White Tudor) 512; 1 Ark. 418; 3 Eng. 272; Harr. Ch. 31; 5 Wend. Rep. 638, 1 Sand. Ch. R. 579.

Appeal jrom Hempstead Circuit Court in Chancery. Hon. Abner A. Stith, Circuit Judge. It is proved that the note upon which the original judgment was obtained had been long previously satisfied and extinguished by the payment of a State bond and the execution of a new note, which were received as a complete extinguishment and payment of the original note. See State Bank vs. McGuire, 14 Ark. 533; Grade vs. Sanford. 4 Eng. 232.

<p>The partial failure of consideration in the quality of the land, for which the vendeemay recoup damages, in a suit for the purchase money, must be understood as embracing not only qualities essentially inherent in the lands, as fertility of soil: but also qualities evtrinsieally added, such as preparation for cultivation, or any other material improvement made upon the land.</p>

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

Hon. Felix I. Batson, Circuit Judge. Where one party wishes to avail himself of a written instrument, in possession of his adversay, he must give notice to produce it. • 3 Johnson’s R. 346; 12 John. 221; Thayer vs. Middlesex Mxltual Fire Ins. Co., 10 Pick. 326; Blood vs. Harrington,- 8 ib. 552; 'Smith, vs. Morrow, 7 Monroe, 239; Waring vs. Warren, 1 John. 340.

Courts of equity have no power or right to decree specific performance of a verbal contract respecting lands, although admitted, where the statute of frauds is insisted on in the answer. 1 Ark. 417; 8 N. ffamp. 9; 9 lb. 385; 1 A. K. Marsh. 437; 1 Bibb 203. Neither payment nor possession obtained not in reference to the contract, will be sufficient to take-a case out of the statute. 1 Ark. 418; 1 Sch.

Hon. Abner A. Stitii, Circuit Judge. It was error to refuse the introduction of the evidence by which it was shown that the receiver had applied thé effects of his receivership to his own private use, and afterwards refused to account for them, as this was the very substance of all the issues. The jury should have been sworn to enquire into the truth of the breaches as to Sargent, who made default, and to truly assess the damages, 2 Ark. 382; 1 Eng. 490.

Hon. Shelton Watson, Circuit Judge. There was no listing or assessment of these lands for taxation for 1851, by the sheriff, in the sense contemplated by law; no valuation by the only authority competent to make it — and all the sheriff pretended to do was to adopt the unauthorized and illegal private work of Williams.

<p>Appeal from Iiempstead Circuit Court in Chancery.</p>

contended that there was no legal, Adalid assessment of the land; that the sale by the collector wks void, and the deed conveyed no title to the purchasers: that the defendants were not estopped to deny the validity of the tax sale, because they did not hold under the tax title, nor did Maddux recognize Etter and Williams as joint owners, or promise to pay them rent, or admit them into possession: that if they were tenants in common, Maddux had claimed adversely, denying the…

Appeal jrom Drew Circuit Court in Chancery. Hon. Tiieodoric F. Sorrells, Circuit Judge. Glennon was clearly a competent witness, and his deposition was improperly excluded. His being security on the attachment bond in the suit at law created no interest in him in regard to this. 1 Green. Ev. sec. 386; 1 Stark Ev. 102; Roscoe's Civ. Ev. 81; 3 lei'm R. 27.

<p>Where an offence, as defined and prohibited by the statute, is essentially the same as that defined and prohibited by the common lav — as in the statute concerning riots, etc. — an indictment that would be good at common law, is also good upon the statute.</p>

Hon. Abner A. Stith, Circuit Judge. The third plea was improperly stricken out. The plea offered to show that the parties suing were not entitled to a lien, or a lien for the amount claimed. The 4th plea was both a denial and avoidance of the action; and the facts stated being admitted by the demurrer, the plea was good, as the party could not have the benefit of the writ until the money was due.

<p>Where the same order of the County Court, appointing an overseer of the public road, also defines the boundaries of the road, it is sufficient evidence, on the trial of an indictment for not keeping the road in repair, of the appointment, and that the district was laid off.</p>

<p>Vulgar language, however offensive, does not justify an assault and battery, though it may be considered by the jury in mitigation of the fine.</p>

<p>To refuse to conform to the mandate of this Court, when a ease is reversed and remanded to the Circuit Court, is a gross error.</p>

Hon. John C. Murray, Circuit Judge. It may well be doubted whether the decision in Straughan rs. The State, 16 Ark. 37, is correct; the power being expressly given to the County Court to select the grand jury, and the statute (sec. 4, chap. 98, Dig.,) only confers the power on the Circuit Court “ to supply the deficiency” in the panel of the grand jury.

Appeal jrom Clark Circuit Court in Equity. Hon. Abner A. Stitii, Circuit Judge. The doctrine that the vendor of real estate has a lien upon it for the purchase money, is too well established in the equity courts, both in England and in this country, to admit of contradiction. And the principle, says Chancellor Kent, is founded in natural equity, and seems to be inherent in the English jurisprudence.

Hon. John J. Clendenin, Circuit Judge. The Legislature may vest such jurisdiction in corporation courts as is deemed necessary. See. J, art. 6, Ark. Const.- — • to have separate constables, magistracy, etc. lb. sec. 16. Original charter to city of Little Rock granted by territorial Legislature in 1835, and made the mayor and aldermen a body politic complete.

Hon. John J. Clendenin, Circuit Judge. After an appeal is granted, or a writ of error with supersedias is awarded, the Circuit Court has no power to amend the record in any case; and as the record in this case before the amendment was not sufficient to support the conviction, and he amendment was unauthorized, the judgment should be reversed. 27 Miss. 370; 1 Texas 611.

<p>In an indictment for playing cards on Sunday, it is not necessary to allege the name of the game played. (Siot/den vs. The State, 18 Ark- 1S6.)</p>

<p>Appeal from Chicot Circuit Court.</p> <p>Hon. John C. Murray, Circuit Judge.</p>

Hon. William C. Bevens, Circuit Judge. relied upon section 70, page 507, Revised Statutes, in support of the motion for judgment against the sheriff.

Appeal f rom Sebastian Circuit Court. Hon. Felix I. Batson, Circuit Judge. Admitting that the appellant had failed to execute a good and valid title to the land within one month after the contract, he is entitled to judgment, for the plea admits that the defendant had received in consideration of the bonds sued on, the possession of the lands, and the bond for title of O. C. Wood, which vested in him the title of the appellant.

Hon. Abner A. Stith, Circuit Judge. We concede that, in accordance with the decision of this court in Merrick 4’ Fenno vs. Hull, 15 Ark. 331, a sale for taxes is not vitiated by the assessment of the property to, or in the name of, one who is not the owner.

Hon. Tiieodoric F. Sorrells, Circuit Judge. Byrd being involved, his property covered with mortgages and about to be sold at sheriff’s sale, he procures Hamilton as his friend, by placing notes and accounts (not money) in bis hands, to buy the property for him, and hold the title, until he could reimburse himself, for the liabilities he had incurred for Byrd — Byrd in the meantime retaining possession of the property.

I-Ion. Tiieodoric F. Sorrells, Circuit Judge. The claim is an account stated verbally, and frequently admitted by Pettit, in his lifetime: and the amount so admitted, we may reasonably infer from the evidence, had been previously agreed upon and stated between the parties. It is not necessary in order to constitute an account stated, that it should be signed b}' the parties, or either of them. 1 Barb. S. C. Rep. 539; 3 How. Miss. Rep. 356.

Hon. Theodoric F. Sorrells, Circuit Judge. If to use and waste the money was not a breach of the sheriff’s bond, it is difficult to conceive what would be. And as to the second breach, it was clearly Ducker’s duty so to keep the money, that, in the event of his death, the object for which it had been placed in his hands would not be defeated. He did not do so, and in consequence of his not doing so, Dennard lost the benefit of his attachment.

Hon. Theodoric F. Sorrells, Circuit Judge. That the Circuit Court had full power to issue the writ in this case, as the party interested had no opportunity to appeal. 13 Ark. 355; 7 Eng. 95; 6 Eng. 604. That the Circuit Court erred in rendering judgment for cost on dismissing the appeal. 1 Ark. 55. The court had no power to interfere with the judgment at a subsequent term. 2 Ark. 66; 5 Ark. 23; 14 Ark. 203.

Hon. Theodoric F. Sorrells, Circuit Judge. It is alleged and admitted that the land sought to be enjoined from sale, was the complainant’s separate property, purchased with her sole and separate money, made so by marriage contract. The suit was brought by the wife, by her husband as next friend — he consented to act as such — knew the object of the bill — consented to it as drawn, and may therefore be considered as a party to it.

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

Hon. William C. Bevens, Circuit Judge. Bailey was not employed by Mrs. Watkins. His services were rendered without any request on her part, and of course, she was under no legal obligation to pay him any thing. Bertrand vs. Byrd, 5 Ark. 658. The hirer was bound to pay the negro’s medical bills, unless there was an express agreement to the contrary. Wheeler's Law of slavery, 156; Grundy, etc., vs. Jackson etc., 1 Litt. Rep. 11

Hon. Abner A. Stith, Circuit Judge. The contract set forth in the bill was not sufficient to support the decree. It is stated that it was not in writing. No part performance is averred to take it out of the statute of frauds. It is not averred that possession was taken of the land under the contract, nor that such possession was taken with the consent of the owner. 2 Stoj'y's Eq. sec. 763; 18 Ves. Jr. 328. There is no proof of any contract, either in writing or parol.

Hon. John J. Clendenin, Circuit Judge. Every contract must be supported by a good and valuable consideration) else it is void. Story on Con. Ill, 112, 113. If the plaintiff could show that Ferguson hud no title to convey to him, and perpetrated a fraud upon -him in pretending to do so (which he offered to do,) he was entitled to recover back his money. 2 Com. on Con. 24, 41; 5 Burr. 2639; 1 Dal. 428; 1 Bay 161; Camp'vs. Pulner, 5 Barb. S. C. R.. 91.

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

Hon. John J. Clendennin, Circuit Judge. The stalute of limitation refers to the remedy and is governed by the lex fori, 2 Parsons on Con. 102; and if the defence set up in the third and fourth pleas, was binding upon Carter, in Maryland, and consequently a good defence for Adamson, the pleas would be liable to objection because the statute of Maryland should have been pleaded.

Hon. John J. Clendenin, Circuit Judge. The defendants were the private officers or servants of .the Cincinnati and Little Rock Slate Company, and are not charged as claiming or exercising any public office or authority, and therefore, this proceeding does not lie against them. 6 East'. 356; Com. vs. Dearborn, et al. 15 Mass. 125.

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

Hon. George W. Beazley, Circuit Judge. The act of an agent ratified by the company makes it the act of the company; 12 Barb. S. C. R. 573; 17 John Rep. 60. User under a charter is proof of the acceptance of the charter, and of the performance of all conditions precedent. Ang. Sp Ames, on Corp. chap. 2, sec. 3; 12 Barb. 573; 7 Eng. Rep. 769. The corporation could have no legal existence until all the requirements of the statute had been complied with.

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

Hon. Shelton Watson, Circuit Judge. The supposed will was not signed by the testator — a signature consists of the act of writing the party’s name, and the intent. 2 Greenl. Ev., sec. 674. The testator’s name was not signed for him by either of the attesting witnesses; 10 Paige R. 91; the signing was by Cobb, who was not an attesting witness. Dayton on Surrogates 1G2; Dig., secs. 4 and 5, Statute Wills; 14 Ark. 682; 17 lb. 319.

Hon. John J; Clendenin, Circuit Judge. contended that this case is one of contract, where the sum in controversy exceeds one hundred dollars — the agreement to pay ten per cent, interest being as much a part of the contract as the agreement to pay the principal debt, both agreements constituting one entire contract; and referred to Walker vs. Byrd et al., 15 Ark. 38; Howell vs. Milligan, 13 lb. 42; Henry vs. Ward, 4 lb. 151.

Hon. John J. Clendbnin, Circuit Judge. We contend that the husband’s deposition was inadmissible for any purpose, and that admitting the truth of the allegations in the bill, the husband held a life-estate in the lands. No objections having been taken to the deposition of the husband at the heaving, it is too late to raise any objection in this court. Me Carrón vs. Cassidy, 18 Ark. 34.

Hon. Ti-ieodoric F. Sorrells, Circuit Judge. The act of 10th January, 1857, attempting to cut off eo instanii existing causes of action, is unconstitutional and void. Smith’s Com. secs. 371, 372; 2 Gall. Rep. 105; 2 Greenlf. Rep. 293; 4 Wheat. Rep. 122. The 2d and 3d sections, attempting to deprive a man of his property without a trial, violate Art. 7, Const. U. S.and secs. 2 and 10 of Art. 2, Const, of Ark., 4 Dill’s Rep. 146; 1 Dev. Rep. 4; 10 Yerg.

Hon. George W. Beazley, Circuit Judge. “ Section ” is a tract of land described by one number; and under the devise to the defendants of one section of land, they were required to select by sectional lines, and could not cross them to make up the quantity. See Gavin’s case, Ins. ¿p Opns. 180; Noah Wall’s case, ib.pt. 2,207; 1 Opns 'Atty. Geni. ü. S. 862; Opns Sp Inst.'pt. 2, 434.

Writ of Error to Union Circuit Court. Hon. Shelton Watson Circuit Judge. The deposition of Whitt should have been excluded. Before anything said or done by Hardy could be used as evidence against the plaintiffs, his agency must first be established. 1 Phill. Ev. 101,102; 2 lb. Hill Cow. notes 180,182.

Union Circuit Court. Hon. Shelton Watson Circuit Judge. A party has a right to an impartial jury (sec. 101, eh. 126 Dig.$ the jurors having just passed upon a case where the issues and evidence were the same as in this, were incompetent for having formed and expressed an opinion. Wood vs. Stoddard, 2 John. Rep. 194; Black vs. Millpaugh, 1 lb. 316; Rogers vsRogéis, 14 Wend. 131.

Hon. William C. Bevens, Circuit Judge. Fraud is within the jurisdiction of a court of equity; and if the contract should be declared void and rescinded as fraudulent, a court of equity is the only court that could give adequate relief in having an account stated between the partners in the firm. Adler was a partner, and consequently a necessary party.

Hon. William C. Bevens, Circuit Judge. Contended that the court erred in striking the amended bill from the files: that if the amendment contained no new matter strengthening the complainant, it could only be met by demurrer.

Hon. Felix I. Batson, Circuit Judge. The original bill and the cross-bill were but one cause (3 Danl. Ch. PI. Pr. 1743; 17 J. R. 252,) and if the defendant was entitled to the relief he asked for, the leave to dismiss the original bill ought not to have been granted. 1 Rich. Ch. Rep. 292; 2 V. S. Ch. Dig. p. 428; sec. 342.

Hon.- Shelton Watson, Circuit Judge. contended that there was no proof that Henry was unsound at the time of the exchange; and if there was any proof that he -was unsound after-wards, no unsoundness was proved within the rule. 1 Par. on Con. 473. The opinions of physicians are usually received in evidence, but such opinions are not to be received implicitly in all cases, (Cowen Sf Hills notes to Ph.

Hon. John J. Clendenin, Circuit Judge. The receipt was not admissible — it was not conclusive but merely prima facie evidence: 2 Stark Ev. 571, and note. It could not operate as an estoppel, but was capable of being rebutted by other circumstances. 2 Stark Ev. 703-4. The second instruction was not applicable to the facts, and was calculated to mislead the jury.

<p>Appeal from Jefferson Circuit Court.</p> <p>Hon. John C. Murray, Circuit Judge.</p>

Writ of Error to Pulaski Circuit Court. Hon. John J. Clendenin, Circuit Judge. The decree of Pulaski Circuit Court was void and should not have been admitted in evidence. It was rendered in a proceeding summary in its nature, and consequently, the statute must be strictly construed, and every fact necessary to give the court jurisdiction, must appear. 3 Ala. 153; 5 Ark. 410; 3 Yerg. 359.

Writ of Error to Pulaski Circuit Court. Hon. John J. Clendennin, Circuit Judge. The action of the court in excluding the deeds offered by the defendants as evidence of title, and in connection with proof of possession as color of title, and to show the nature and extent of defendants possession of the land, was erroneous, as it was the right of the defendants to have them go to the jury for each and all of the purposes for which they were offered. Wright vs. Mattison, 18 How.

Writ of Error to Crawford Circuit Court. Hon. Felix I. Batson, Circuit Judge, Under the facts Rachel Ross could not defend against the title of Drennen, or set up title in a third person. 3 Wash. G. G. Rep. 547; 3 Caines’ Cas. 188; 10 J. R. 222. The life estate reserved was subject to sale, and the rights of her creditors could not be defeated by the introduction of Benoni. He was a mere tenant of hers.

. Hon. Hulbert F. Fairchild, Chancellor. The mortgagee is always entitled to the possession of the mortgaged property, unless there is a contrary agreement in the mortgage itself; (11 Mete. 458; 1 Cush. 482; 4 Ala. 735; 1 Hill on Mart. 149;) therefore, where no adverse possession is shown, the law presumes the possession to be with the title; and the defendant in this ease having failed to show that he has continued in possession of the mortgaged property, can derive no…

Hon. William C. Bevens, Circuit Judge. In this case, Robert S. Bryson was insolvent, owned neither horses nor oxen; was in the habit of hiring out his sons and appropriating the proceeds of their labor to his own use. The appellee lives with his father; is one of the family, a minor; the father by law entitled to his labor or the proceeds thereof.

<p>In an indictment for betting at Faro, the betting is the gist of the offence under the statute: and if the defendant merely bet or play off checks, which by an understanding with the banker do not represent money, and he wagers nothing, he is guilty of no offence.</p>

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

Hon. John J. Clendenin, Circuit Judge. The general authority of the plaintiff’s attorney ceases with the judgment. Jackson vs. Bartlett, 8 J. R. 361; Commissioners vs. Rose, 1 Dessau. 469; Treasurer vs. McDowell, 1 Dill 184; Richardson vs. Talbot, 2 Bibb, 382.

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

<p>Where no motion for a now trial has been made, nor any question of law reserved at the trial, there is nothing' before this court for adjudication.</p> <p>The rule established in State Bank vs. Conway, 13 Ark. 344 — which is simple, and easily understood and followed — applies as well to cases submitted to the court, as to a jury, and to cases where there is an agreed statement of facts, as where the facts are proven by witnesses.</p>

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

<p>Where no motion for a new trial has been made, nor any question of law reserved at the trial, there is nothing before this court for adjudication.</p> <p>Ihe rule established in State Bank vs. Conway, 13 Ark. 344 — which is simple and easily understood and followed — applies as well to cases submitted to the court, as to a jury, and to cases where there is an agreed statement of facts, as where the facts are proved by witnesses.</p>

<p>Appeal from Crawford Circuit Court.</p> <p>Hon. Jonas M. Tebbetts, Special Judge.</p>

Hon. Felix I. Batson, Circuit Judge. Contended that Baker was not liable to be sued upon his bond until settlement with the Probate Court and an order by the court to pay over any balance of the estate in his hands. Dig. ch. 7, sec. 5; Jones vs. State use, 14 Ark. 170; 2 Eng. 107.

Hon. William C. Bevens, Circuit Judge. If we understood the opinion of the circuit court, it was, that the court could.not notice any error that appeared on the record unless it was specially pointed out by bill of exceptions. We have always understood the law to be, that where an error appeared upon the face of the record, no bill of exceptions is required; that the office of a bill of exceptions was to bring upon the record something that did not appear upon the record.

Writ of Error to Drew Circuit Court. Hon. John C. Murray, Circuit Judge. By our statute joint obligations and contracts are to be construed to have the same effect as joint and several obligations’, and may be sued on and recoveries had thereon in like manner. Goulds Dig., ch. 94, sec. 3; ch. 133, sec. 6o; 19 Ark. 701; 6 Eng. 320.

<p>Writ of Error to Sebastian Circuit Court.</p> <p>Hon. Felix I. Batson, Circuit Judge.</p>

Francis Circuit Court. Hon. George W. Beazley, Circuit Judge. Since the case of Wheat vs. Dotson, 7 Eng. 699, it cannot be questioned that part payment may be plead at law, and if this be so the 4th plea was improperly stricken from the record.

<p>The plaintiff having called on defendant for settlement and payment of a fee due him as attorney, and the parties having agreed as to the amount, which the defendant promised to pay, the plaintiff is entitled to a verdict for the amount, as upon an account stated between the parties.</p>

Hon. Shelton Watson Circuit Judge. A demand should have been made before suit brought. 1 Eng. 47; 3 Eng. 585. The plaintiff did not prove that he had the right to the immediate possession of the horse, (3 Shep. 373; 6 Eng. 475), it appearing that White had the loan of him for a time, which had not expired.

<p>On certiorari to the judgment of a justice of the peace, the judgment should be quashed or affirmed upon what appears upon the face of the papers, not upon the admissions of parties, as to facts not appearing therein.</p>

Hon. John J. Clendenin, Circuit Judge. This is a question of construction, and one confessedly important; and, to a proper understanding of its merits, it must be remembered that by an act, approved 1st January, 1853, (Acts 1852, p. 55), several radical changes were made in the revenue law.

Ajrpedl from Lafayette Circuit Court in Chancery. Hon. Shelton Watson, Circuit Judge. The appellant has a right to expect and demand that damages shall be awarded commensurate to the injury sustained in consequence of the issuance of the injunction and the seizure of his property; 2 Greenl. Ev. 253.

Conway Circuit Court. Hon. John J. Clendenin, Circuit Judge. Did Stell, the defendant, have an improvement upon the land within the meaning of the act of 11th of January,° 1851. Gould's Dig. chap. 101, sec. 19. The act providing for the donation of these lands, provides improvement of them as a condition, upon failure to comply with which, the “land and improvement thereon are to “revert to the State. See English's Dig. chap. 97, sec. 4; Gould's Dig. chap. 101, sec. 4.

Hon. Felix I. Batson, Circuit Judge. The title to the lot donated, was divested by the non-performance of the condition, and reverted to the donor. 5 Iiam. 389; 18 Martin 221; 4 Kent 125; 2 Bl. Com. 156; 18 John. 104; 1 Aik. 383. The appellee relies on the following authorities to sustain the decree of the court below. Gould’s Dig., chap. 44, sec. 12; The Stale vs. Allis, 18 Ark. 289; Blackburn. Ex parle, 5 Ark. 21; Adams rt al. vs. Logan counhj, 11 111.

<p>Appeal from Sevier Circuit Court.</p> <p>lion. Len B. Green, Circuit Judge.</p>

Hon. George W. Beazrey, Circuit Judge. An action at law cannot be maintained on a guardianship bond before the accounts have been adjusted* and a specific sum decreed to be paid over. 19 J. R. 303; 3 Hill 77; 1 Root 51. It is admitted by the demurrer to the plea that previous to the execution of the bond sued on, the guardian had wasted all the property of the ward which had come to his hands; and that, none had come to his hands since the execution of the bond.

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

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

<p>Whore a note is declared upon as having been made upon a particular day, but the note produced on oyer bears no date, any question as to the date must be raised br plea, and not by demurrer as for variance.</p>

Hon. Felix I. Batson, Circuit Judge. The judgment of the justice was not rendered by default within the meaning of the statute — Dig., sec. 86,. part 2, chap. 95 — the defendant having appeared and filed his set-off, and a regular trial being had upon testimony. Parsel vs. Mayer, 2 Eng. 95; Pryor vs. Williams ex., 295. The court should have permitted the appellant to prove that he did appear before the justice, or to disprove the justice’s response.

Hon. Len B. Green, Circuit Judge. The testimony of the absent witness was legal and competent — the defendant having procured the property in suit by fraud in the trade. Paige 537; Root vs. French, 13 Wend. 570. The overruling the appellant’s motion for a continuance not being a reasonable exercise of the discretion of this court, it is subject to revision and correction on appeal. Hensley et al. vs. Tucker, 5 Eng. 528.

<p>There is no variance between the names “Woolley” and “ Wolley.”</p>

Hon. Len B. Greer, Circuit Judge. Three years peaceable adverse possession not only takes away the remedy from the original owner, but invests the possessor with the absolute property, so as to enable' him to recover it from the original owner, should he come again into possession. Blackburn vs. Morton et al., 18 Ark. 384; Sims vs. Can-field’s Exrs. 2 Ala. n. s. 561; Shelby vs. Guy, 11 Wheat. 361; Brent vs. Chapman, 5 Crunch 358; Newby vs. Blakely, 3 líen, cf-Mun. 57.

Hon. L. B. Green Circuit Judge. It was an error in the Circuit Court to remand the cause, for if the judgment of the County Court was reversed, the cause should have been tried de novo. Gould's Dig. 138, 319, 680; Wells vs. Fletcher, 17 Ark. 585. The County Court has the power¿.o audit, settle and direct the payment of all demands against the county. Gould's Dig. 317. But all allowances must be made on the authority of law. 3 Ark. Rep. 7.

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

<p>Appeal from Drew Circuit Court.</p> <p>Hon. Tiieodoric F. Sorrells, Circuit Judge.</p>

Hon. A. A. Stith, Circuit Judge. It is clear that, according to the older precedents, the demurrers in this case ought to have been sustained: and it is submitted whether the defence falls within and is affected by the rule as laid down in the case of Desha ex. vs. Robinson, ad. 17 Ark. 228. The fourth plea was not verified by affidavit, and it was error in the court to refuse to strike it out on motion, and to overrule the demurrer thereto. Alexander vs. Foster, 16 Ark. 669.

<p>Where the defendant dies during the pendency of a suit, and it is revived against his administrator, the claim or demand in suit is legally exhibited against the estate, under section 100, ch. 4, Gould’s Dig., and if the plaintiff suffer a non-suit, and institute a new suit within a year, it is not necessary to exhibit the claim again to the administrator.</p>

Hon. William C. Bevens, Circuit Judge. It is submitted that the proceeding of the .county court, in stating the account of appellant, as internal improvement commissioner, without notice to him, and in charging- him interest on money received, at 10 per cent, if not void, was clearly erroneous, and consequently the writ of certiorari odght to have been granted as prayed.

Hon. Felix I. Batson Circuit Judge. contended that the ignorance of the defendant of the canceling of the trade for the sale of the note to Houston was no defence as to the amount paid to him by the defendant; that the debt was as much due to Sellars, at the time of the transfer to Sadler, as if the note had never been assigned, or had been re-assigned to him, and the transfer to Sadler cannot affect the case, because the debt was bound by the garnishment’previous to the…

• Appeal from Crawford Circuit Court. Hon. Felix I. Batson, Circuit Judge. The case of Clarke vs Crosland, 17 Ark. 43, is not an authority governing this case, because in that case the plea alleged that the contract was made in the Indian country; and in this, there is no such averment; and under the rule that the pleading must be construed most strongly against the pleader (1 Chit.

<p>Error to White Circuit Court,</p> <p>lion. William C. Bevens, Circuit Judge.</p>

Hon. Len. B. Green, Circuit Judge. The plaintiffs had the right to seek relief in chancery, though the statute gives them an action at law, as held by this court in the case of Bob alias Robert Crow vs. Powers, 19 Ark. Rep. 437.

<p>Appeal from, Hempstead Circuit Court in Chancery.</p> <p>Hon. Len B. Green, Circuit Judge.</p>

Hon. John J. Clendenin, Circuit Judge. The lease in writing, supposing it not to have been signed by Merrick, was, nevertheless, a written contract between the parties, and bound him to pay the stipulated rent.

Hon. John J. Clendenin, Circuit Judge. contended that the Circuit Court had. no jurisdiction, because there was no bill of exceptions setting out the testimony on the trial in the Probate Court: that in Dempsey vs. Fenno, (16 Ark. 491,) it was decided that a bill of exceptions was unnecessary where the record itself presents everything necessary to a full adjudication of the case; but in this case there was testimony, which does not appear upon the record.

<p>Appeal from Crawford Circuit Court.</p> <p>Hon. John M. Wilson, Circuit Judge.</p>

Hon. John J. Clendenin, Circuit Judge. An indictment ought to be certain to every intent, and without any intendment to the contrary. 1 Eng. 1G5; 1 Ch. Gr. Law, 172; Pthart.

Hon. John J. Clendenin, Circuit Judge. The deed from Lawson, sheriff, to Newton, executed in 1845, having been read, the plaintiff to show that it was wholly inoperative, offered the decree of the court of chancery annulling it for fraud, but which evidence was rejected on the ground that the decree had been appealed from.

lion. John C. Murray, Circuit Judge. A party must present his claim duly authenticated to the administrator for allowance before he can sue on it. 2 Eng. R. 78; 14 Ark. 237; lb; 246; sec. 99,p. 120, sec. 102, p. 121, Gould’s Dig. The administrator, acting in a purely fiduciary character, cannot be sued until demand, especially on contracts of his intestate. 2 Williams Ex’rs. 1370; 2 Eng. 429.

Hon. John C. Murray, Circuit Judge. There is no such denial of payment to Kirkpatrick as the law requires. The negative is limited to the plaintiff, and it is evident that the breach is insufficient. 13 Ark. 326; 1 Ch. Pl. 278, 291, 392. The bond granted on oyer is entirely different from the one set out in the declaration — shows a different cause of action. The variance, therefore, is fatal. 1 Ch. PL 338, et seq. .

Writ of Error to Monroe Circuit Court. Hon. George W. Beazley, Circuit Judge. A scire Jadas will lie only upon'recognizances taken in strict compliance with sections 57 to 62, chap. 52 Dig. It was error to issue the scire facias out of the Circuit Court of Monroe county to the sheriff of Prairie county — all the defendants resided in Prairie county.

<p>The mere reservation of a life estate in an absolute conveyance of land does not necessarily make the conveyance testamentary in its character.</p>

Hon. A. A. Stith, Circuit Judge. contended that the court in rendering the decree sought to be reviewed, manifestly erred in perpetually enjoining all proceedings in the replevin sui^ after deciding that the claim of Sims to the negro was fraudulent — and that the proceedings in this case to review and correct the error in the original decree are consistent with the general principles laid down in 3 Danl. Ch. Pr. 1723 to 1741; Story Eq.

Hon. George W. Beazley, Circuit Judge. The memorandum in pencil is sufficient evidence of the contract of sale: and by it the sale is taken out of the statute of frauds: it is no objection that it was in pencil, any note or memorandum of the contract being sufficient. Glason vs. Bailey, 14 John. 49.

Hon. Felix I. Batson, Circuit Judge. The first question in this case is, what was the legal nature and character of Ross’®claim? It was a right to select, by way of gratuity from the United States, 320 acres of land, of any unappropriated land in Arkansas. Did this right pass by a devise of personal estate, goods and chattels? It is familiar law that a term for years, however long, descends, or passes by devise as personal estate, 7 Scamm. 119; Id. 124; 1 N. Hamp. 350.

Hon. William C. Sevens, Circuit Judge. That the court erred in permitting the plaintiff to recall Ledger, and examine him in chief, and upon the same subject that he had been examined upon, see Freleigh vs. The State, 8 Miss. R. 606; Brown vs. Burris, 8 Miss. R. 26; ü. S. vs. Wilson, 1 Bald. Rep. 79; People vs. Mather, 4 Wend. Rep. 229; Law vs. Merrells, 6 Wend. Rep. 26v8;v Hughes vs. Mulvey, 1 Sandf. Sup. Ct. Bcp. 92.

<p>Where an instruction is given, which purports to be predicated upon the evidence, and upon the hypothesis that certain facts shall have been proven to the satisfaction of the jury, the appellate court will presume, in favor of the court below, that such evidence, though it do not appear of record, had been adduced. (Duggins us. Watson, 15 Ark. 118.)</p> <p>A writ of attachment against a party as executor de son tort, issued by a justice of the peace, having jurisdiction of the subject matter in controversy, is erroneous and voidable, and not void; and for an injury done to the defendant under such a proceeding, an action on the ease is the proper and the only remedy.</p>

<p>An objection to the declaration in an action of unlawful detainer, for insufficiency in describing the property, cannot avail the defendant after trial upon the general issue — there being a good cause of action defectively stated, the pleading is cured by the statute: sec. 119, ch. 126, Eng. Dig.</p> <p>The demand in writing of possession of property claimed, provided for in the 3á section of chap. 72, Gould’s Dig. is not required to be in any particular form, and though it may not be very definite in the description of the property, it will be sufficient if, in connection with other evidence, it appears that the defendant knew or might have known what premises were alluded to.</p> <p>The commissioners who have assigned dower to a widow will not be allowed to prove ^.different boundary from that stated in their report to the Probate Court, in a proceeding by the widow for the recovery of the dower assigned her.</p> <p>The county surveyor, who has surveyed the lands assigned to the widow for her dower, according to the report of the commissioners, is a competent witness to prove what lands are included in the lines designated in such report — though such survey may not have been recorded, nor notice given to the party in possession.</p>

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

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

Hon. George W. Beazley, Circuit Judge. The testimony utterly failed to make out fraud upon the part of appellant or Lyles, but on the other hand fraud and oppression on the part of the appellees were proved. That the money was unpaid on the day of sale, that the required notice was given and the sale made on the proper day, between the hours, and at the place designated by the deed of trust, was not controverted.

Prairie Circuit Court in Chancery. Hon. John J. Clendenin, Circuit Judge. At common law an infant feme covert could not convey her lands, by fine and recovery. She must be of full age. See the case of Charnock wife vs. Worsley, Croke Eliz. 12®. Fil-z. Nat. Bre. 21 D.; 4 Com. Dig.