Volume 22 — Arkansas Reports

Hon. Len B. Green, Circuit Judge. Willis being a trustee, an executor, he could not, by any length of possession, gain a title to any negro which came to him from the estate of Floyd. And this was expressly decided by this court in Harriet vs. Swan, 18 Arle. 504. He cannot shield himself from liability by the statute of limitations or lapse of time.

<p>A court of chancery will make a decree between co-defendants, according to the equity of the case as founded upon the pleadings and proof between the complainants and defendants, but not as to matters outside of such pleadings and proof, unless upon cross bill.</p> <p>Where a deed or judgment is distinctly referred to in the bill, but a copy not exhibited, and the defendant, by his answer, admits its existence, and proceeds in the cause, without insisting that a copy bo filed, the objection conies too late at the hearing.</p> <p>It is not necessary to file as an exhibit to a bill in chancery any paper upon which the complainant does not rely as the foundation of his suit, and which is only evidence of an admission by the defendant.'</p> <p>B., against whom there were several judgments, placed in the hands of T. the attorney of his judgment creditors, Arkansas Bank paper, and claims against several persons, to be collected and appropriated to the judgments: suits were brought upon the Bank paper and judgments obtained, which were compromised by T., who received the principal only, and not the interest that had accrued: a portion of the other claims was collected: after some years, B. filed his bill against T. and the judgment creditors, callingcupon T. to account for the moneys collected, and to have the amounts appropriated to the judgments: the judgment creditors answered by other attorneys whom they employed to collect their debts: Held:</p> <p>That, upon the application of the judgment creditors the court will direct the case to proceed for their benefit, and decree in their favor for the amount collected by the attorney;</p> <p>That, as the bill calls upon the attorney to account only for money received, he is not chargeable with the difference between the amount of the judgment against the Bank and that received by him: nor for debts against solvent persons and which might have been, but were not collected;</p> <p>That the attorney will not be allowed to appropriate any part of such collections to the payment of his own claims against the judgment debtor;</p> <p>That the attorney is entitled to a reasonable compensation out of the fund collected for his services in reference to the claims not collected;</p> <p>That he is entitled to commissions, as against the judgment debtor, on such sums as were collected, and an additional commission, as against his olient, on such sums as he paid them; but that he is not entitled to commission, as against the judgment creditors, on the balance in his hands, which he had refused to pay over on demand, and which the creditors had been compelled to employ another attorney to collect.</p>

The decision of this court in Newton vs. The Bank of the State of Arkansas, 14 Ark. 9, was, as between Newton and the Bank, something more than an ordinary authority or case in point. It was the law of the case. It was a final adjudication of the point, as between them, forever thereafter conclusive. No re-adjudication of that point could be obtained by shifting the forum; unless the Bank could not only allege, but prone fraud.

Hon. Hulrert F. Fairchild, Chancellor. It is admitted at once, that, as a general rule, a hill in equity for compensation merely, cannot he maintained.

If the storing of heavy articles in the house was a violation of the contract, the plaintiff should promptly have dissented: and in the absence of such dissent, with a knowledge on the part of the plaintiff of the breach of the contract, no assent is necessary, but will be implied from plaintiff’s silence. The. instructions of the defendant should have been given without the two propositions appended thereto by the court.

<p>If a person was entitled by law to enter lands of the State at $1 25 per acre, and execute his bond for the purchase money, but the officer whose duty it was to sell the lands, in disregard of the statute, required him to execute his bond for the lands at §2 per acre, the bond for the excess over the price fixed by law would be without consideration.</p> <p>The defendant, under the act of 31st December, 1842, entitled “an act for the benefit of such persons as have settled on, or made improvements on the public lands,” etc., made application to the governor to locate and purchase from the State a part of the internal improvement lands, and such application was allowed and entered upon the proper books, etc., and nothing remained to be done by the defendant but to execute his bond for the purchase money, which he neglected to do until after the act expired by limitation, and then claimed the privilege of entering the lands under the act of 20th December, 1844. at a less price; but failing in this, executed his bond in pursuance of the original application, dating it as of a day when the act, under which the location and agreement tó purchase had been made, was in force. Held that the bond was not void; nor was there any want of consideration.</p>

Hon. John J. Clendenin* Circuit -Judge. Due diligence constitutes the measure of an attorney’s engagements. 6 Eng. 212; 13 Ark. 193. Where a note is received for a particular purpose as so much money, it will be considered as money, and if lost, or misapplied, or not applied, an action for money had and received will lie. 16 Ark. 237; Com. on-Con. 324; 7 Cowen 661; 13 East 20; 2 Wash. C. C. R. 172; 4 lb. 253; 4 Hill 442.

Hon. John J. Clendenin, Circuit Judge. The words “grant, bargain and sell” in our statute on conveyances, make a covenant against incumbrances whether done or suffered by the grantor or any one under whom he claims. Dig. 264; Funic vs. Voneider, 11 Serg. & R. The covenant raised by the words “bargain and sell” extends only to incumbrances created by the grantor. Dig. ch. 37, sec. 1; JRawle on Cov. for Title 486; Sug. on Vend. 524.

Hon. Felix I. Batson Circuit Judge. The wrongful detention of the property only was put in issue. The plaintiff's title was not put in issue. Wallace did not set up title in himself or a third person, and th.e defendants were not entitled to a judgment of a return of property. See Hinny's L. C.. 542; The People vs. Niagara, 4 Wend. 219; Wend. 671; 1 John. R. 380; 12 Wend. 36; Rawle 283.

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

Hon. Lbn B. Geeen, Circuit Judge. ■ The attempt to show that Jones was insane., o.r not capable of making a contract, was a signal failure. He was fully capable of contracting. He was endowed with such a degree • of reason and judgment as to enable him to comprehend the the subject. He was not capable of managing his affairs. The disposition he made of his property was neither improvident nor unreasonable.

Hon. Hulbert F. Fairchild, Chancellor. The statute of limitations, to which Walker and wide are entitled, is that oí five years to a purchaser at a judicial sale; and there was not only a claim of title but an actual possession continued more than five years after the sale, and before the filing of the bill.

Hon. IIulrert F. Fairchild, Chancellor. Pike has admitted his liability in his answer, and why then should not the amount be decreed against him? The idea of the chancellor appears to be that Pike is a surety; that it is a hard case on him as such, and that the Bank has been guilty of negligence. Now as to Pike being principal or surety, it cannot possibly make any difference in his liability that-we can perceive.

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

Hon. John C. Murray, Circuit Judge. The statute relied on by the defendant in his pleas, was intended as a mere police regulation, the non-observance of which does not avoid a contráct, for the purchase money of a slave. We are fully supported in this view of the meaning of the law relied on by the defendant in the case of Harris vs. Runnels 12 Howard's U. S. Rep. 80.

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

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

Hon. Felix I. Batson Circuit Judge. A deed does not take effect until it is delivered. Jackson vs. Richards, 6 Cow. 617; 12 John. 419; 4 Kent's Com. 454Í Merely executing a deed and delivering it to the register for registry is not a delivery; 10 Mass. 456; 3 Mete. 275; and there is no pretence of an actual delivery to the mortgagee until after the time of the judgment under which the appellant purchased the land.

Hon. Hulbert F. Faiechild, Chancellor. The testimony of the wife of John H. Leach was improperly rejected, because Leach had no interest in the cause. His deed to J. W. T. Leach, whether fraudulent or not,.as between them divested him of all interest in the land. 1 Ohio 207; 3 Monroe 378; 16 Johnson Rep. 189; 8 Leigh 510; Britt vs. Aylett,Q Eng. 475. The interest to disqualify must be certain and fixed — hope of benefit only goes to credibility. 1 Phil. Ev. 47-8.

<p>A writ of error will lie to the judgment of the circuit court striking an attorney from the roll; though if an attorney be guilty of a contempt of court he, like every other person, is subjeet to punishment by fine and imprisonment, without the right of appeal or writ of error.</p> <p>The circuit court has the inherent power to disbar an attorney who makes a personal attack upon the judge for his action as such; but the attorney is entitled to notice and an opportunity to be heard in defence — the usual practice being to make charges in writing against the attorney, and issue a rule upon him to show cause why he should not be disbarred.</p>

Hon. George W. Beazley, Circuit Judge. A contract must be construed according to the plain and apparent sense thereof. Greenlf. Ev. sec. 278 et scq. There being a subsisting contract at the time, suit must have been brought thereon. 24 Wend. 202; 2 Pick. 275; 9 Ala. 108. Defendant’s two last instructions were clearly the law. 5 Shep. 372; 4 Iredell 247.

■ Appeal from Pulaski Circuit Court. Hon. Join? J. Clemdenin, Circuit Judge. An answer responsive' to the bill is evidence for the defendant, but matters averred in avoidance are not. An answer admitting payment, but averring that it was made on a different account from that charged in the bill, is not responsive so as to be evidence for the defendant. A retainer of a party as counsel may be inferred from circumstances.

Ap-peal from Pulaski Circuit Court. Hon. John J. Clendenin, Circuit Judge. 1. The testimony of Gallagher should have been excluded. 2 Stark. Ev. 578; 1 Tidd 536; 1 Phil. Ev. 191; 4 Con. R. 55. 2. English had no authority to substitute Williams in his stead as attorney. 18 Wend. 485; 4 Litt. 412; Story on Agency 12, 13,14; 2 Kent 495, sec. 41; 1 Lio. on Agency sec. 5,p. 54, 56. 1.

Hon. William C. Bevens, Circuit Judge. The court had no power to set aside the order for a new trial which had been granted at the previous terra. 2 Ark., 66; 5 lb. 25; 1 Eng. 101; 5 lb. 241; 14 Ark. 203. 1. The order for a new trial was not absolute, but conditional: it could not become absolute until the condition — payment of costs — had been complied with. 2.

Hon. Shelton Watson, Circuit Judge. argued this case and that of Mitchell vs. Kinsworthy, (21 Ark.) at length, upon the points decided in that case. On the defence of limitation he said': If it is true, as contended by Mitchell and wife, that this tax deed is void, it is useless for any purpose. The defence of limitation cannot be made under such a deed.

Hon. Theodoric F. Sorrells, Circuit Judge. Possession of property by the grantor fora reasonable period authorized by a deed, is no badge of fraud. Taylor vs. Vaughn et al. 18 Ark. 65: lb. 123. To prevent multiplicity of suits, removal of property, etc., ‘equity will take cognizance of a private trust. The facts disclosed prove that the deed was executed to defraud creditors and is therefore void.

Hon. Shelton Watson Circuit Judge. No decree can be passed against a party who claims no interest in the subject in controversy, and against whom no decree is prayed. Adams Eq. 312, 314; 19 Ark. 607. An order of the probate court cannot affect one who has no notice of the proceeding. Gould's Dig. Ch. 4, sec. 129. Demandant may either claim an assignment of dower from an innocent purchaser, or an equivalent in money when for the interest of all..

lion. IIulbert F. Fairchild, Chancellor. The misrepresentation of a material fact — (or concealment •of defects in title, or of an outstanding title) invalidates a contract, whether the misrepresentation be wilfully or innocently made. 13 Peters 26; 1 A. K. Marsh. 496; 1 Story's Eq. 193; 4 How. Miss. Rep. 435; 3 Humph. 347; 4 Scam. 569; 1 McLean 50; 5 J. J. Marsh. 96; 3 Cranch 381.

Hon. L. B. Green, Circuit Judge. An act of the legislature takes effect from the first moment of the day of its passage, ü. S. vs. Williams et al., Paine’s C. C. R. 291 ; 20 Verm. 633 ; 1 JBish. Cr. Law s. 59. Where a rule has been entered that witnesses withdraw, none can be examined unless they had been under the rule. 1 Phil. 268; Barb. Cr. Trea. 433 ; 1 Hill S. C. R. 254 ; 9 Price 4.

jError to Desha Circuit Court. Hon. John C. Murray, Circuit Judge! No final judgment can be entered upon overruling a demurrer to a plea iñ abatement of an indictment — the party should be allowed to plead over, and if he declines, a plea of not guilty should be entered by the court. Buzzard vs. State, 20 Ark. 106. The grand jury was improperly empanneled.

<p>It is ho error to overrule a motion for a new trial on the ground of a total absence of testimony when any evidence has been introduced supporting the verdict.</p>

<p>An issue of fact, in a criminal proceeding, cannot be submitted to the court — a jury must try all issues of fact on indictments.</p>

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

Hon. Felix I. Batson, Circuit Judge. A written acknowledgment, to remove the bar of the statute, must be an express acknowledgment of a present subsisting debt, and must be unqualified and unconditional. Brown vs. Bank, 5 Eng. 134; Bdl vs. Morrison, 1 Peters 351; 6 Peters 86; 11 John. 146; 4 Pick. 110.

Hon. William G. Sevens, Circuit Judge. ' The writ under which defendant justified was void on its face, showing no charge of a criminal offence — “ hilling a dog” is not a criminal offence. Dig. sec. 1, ch. 52; Bl. Com. 236; 1 Hale PI. Cr. 512. A warrant issued by a justice of the peace for the arrest of a party accused of a criminal offence will protect the officer making such arrest, whether rightfully or wrongfully issued. Hemp. C. G. R. 34; 10 Cush. 46; 8 Md.

Francis Circuit Court. Hon. M. W. AlexandeR, Circuit Judgel The representative character of the plaintiff cannot be enquired into on the general issue. 1 Ark. 596; 1 Bibb 404; 1 Ch. PL 485; 2 Stark. Ev. 320. The fourth count in the declaration being on an account stated between the plaintiff as administrator and the defendant, the plea of the general issue put the plaintiff upon proof of her representative character. 3 Taun. 13; 2 Jbd. Raym. 824; 3 Stark, on Ev. 548-9.

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

Hon. Len B. Geeen, Circuit Judge. In a bill for the specific performance of a contract, the party complaining must aver a performance of the conditions precedent upon his part, or a legal excuse for non-performance. 6 Eng. 734; 3 Ark. 252, 334; 4 John. C. R. 559; 1 lb. 360; 9 Mass. 78; 2 Pick. 267; 4 Pick. 101; 12 John. Rep. 165; 13 lb. 94; 19 lb-337.

Hon. John C. Murray Circuit Judge. The plaintiff below by adopting covenant as the form of action could not avoid the necessity of assigning specific breaches. Sec. 5, ch. 127 Gould’s Dig.; 1 Ark. 367; 2 lb. 389; 5 Term Rep. 583, 638; 2 Wils. 377. And the omission to assign breaches is fatal on demurrer. 4 V\?end. 570; 2 Ark. 389. The declaration must show every essential compliance with the statute. 3 Ark. 159; 6 lb. 604; 14 lb. 171; 1 Eng. Law 6p Eq. 765.

Hon. John G. Murray, Circuit Judge. It appears that Gross was dead when the county court settled with him; and of course such settlement was a nullity. Every judgment against a dead man is not merely voidable, but void. 12 Smedes Mar. 67, 538; 5 Ark. 128; 2 Tidd’s Pr. 846; 25 Miss. 31, 513. The balance was ascertained agreeably to law, and an order of court was passed charging Gross with the same.

<p>Error to Jefferson Circuit Court.</p> <p>Hon. John C. Murray, Circuit Judge.</p>

Hon. Theodoric F. Sorrells, Circuit Judgei Where a party defends an action on the ground of breach of warranty, he should prove a return or offer to return the defective goods. 2 Kent 480; 6 Eng. 73; 5 Ark. 397; 17 Ark. 228. Where a contract is relied upon in defence of an action, the proof must correspond with it as laid in the plea, or the defence fails. 6 Eng. 42; lb. 339; 17 Ark. 32.

Hon. William C. Bevens, Circuit Judge. Even unnecessary allegations in an indictment must be proven as laid. 4 Eng. 195; 5 Eng. 259. An erroneous instruction calculated to mislead the jury is ground for reversal. 6 Eng. 1 9; 16 Ark. 309. It was unnecessary to name the particular game played, and its averment may, therefore, be regarded as surplusage not requiring proof. Vanderworker vs. State, 13 Ark. 700; 18 Ark. 540.

• Appeal from Hot Spring Circuit Court. Hon. John C. Murray, Circuit Judge. The requisition of licenses for the retail of spirituous liquors has simply for its object an increase of revenue, and if the license be paid the object of the requisition is subserved. A license granted at a subsequent time, reciting a privilege to retail from a previous date will, in effect, relate to the first date.

Hon. John J. Clendenin, Circuit Judge. The assent of the beneficiaries was not necessary to the validity of the assignment. JBurril on Assignments 308-9; 4 Mason 206; 18 Ark. 123. The assignee of a chose in action holds by an equitable and not a legal title. 1 Par. on Con. 198, 194; 11 Ark. 104. If the assignee be a mere nominal holder without interest, then the suit should be brought in the name of the party in interest. 1 Pars, on Con. 194.

Hon. M. W. Alexandee, Circuit Judged A party to a contract who, without fault of his own, is prevented by the other party from completing it, is at liberty to treat it as rescinded, and proceed for the value of the labor actually performed. Ckitly on Con. 741 et seq. 1. The death of Erwin terminated the contract. 1 M. Sf. G. 96; 3 Mon. 68.

Hon. Hulrert F. Fairchild, Chancellor. A feme covet is entitled to dower in an equity of redemption. 6 John. 290; 7 lb. 278; 15 lb; 319; 15 Mass. 278. Limitation is no bar to a claim of dower. 10 Yerger 340 ; 2 G. The right of dower could not be destroyed by a tax sale. 10 Ohio 157; Wright’s Ohio Rep. 273. The equity out of which the statute gives dower must be a perfect equity. Craib vs. Pratt, 15 Ala. 843.

Hon. Felix I. Batson Circuit Judge. It is clear that the court below erred in refusing to set aside the sale upon the ground of fraud in the conduct of the appel-lee.

Hon. John C. Murray, Circuit Judge. The rule that a party is bound by the defence he makes, in whatever court it may be, does not apply to cases in which defences are attempted that are not properly within the jurisdiction of the court in which the suit is pending. Judgments are conclusive between parties and privies in regard to matters that were directly at issue. 1 Greenl. Eu. 528, 521); 7 Pick. 149; 17 Pick. 7; 2 Gall. 216; 6 Mass. 286; 1 Phil. Ev. 321, ti. 557.

Hon. MarkW. Alexander, Circuit Judge. To authorize a decree upon constructive notice all the requisites of the statute must be complied with, and must be shown upon the record. 11 Ark. 130; 13 lb. 492; 14 lb. 408. The affidavit of non-residence was insufficient. Gould’s Dig. sec. 7, p. 219, sec. 13, p. 220. The exceptions were bad for generality. 5 Paige 115; Mit. Eq. PI. 285.

Hon. L. B. GaEEW, Circuit Judge. It is sufficient to remove the bar of the statute, if the acknowledgment be of a debt due in whole or in part; and a promise to pay will be implied from the admission of a subsisting indebtedness. 4 Eng. 457; 5 Eng. 136,137; 7 Eng. 764; 6 Eng. 670; 18 Ark. 522; 4 Hump. 183; Barnard vs. Bartholomew, 22 Pick. 294; 2 Dev. 4 Batt. Ch. R. 82; 2 Hill's Ch. R. 87; 9 Md. Rep. 52; 38 Eng. Law «f* Eq. 487; 1 Cromp. df Mees. 623; 1 Man.

Hon. Felix I. Batson, Circuit Judge. To maintain an action upon the bond as a statutory bond, a forfeiture of the bond must have been previously declared by the court. Gould’s Dig. Gh. 99, sec. 5; Gh. 52, sec. 02.- The record does not exhibit valid legal proceedings — without which the bond was void — no warrant of imprisonment appears to have been issued, the mere order of the court is not sufficient for this purpose.

lion. William C. Biwexs, Circuit Judge. C wearing tbe jury to try tho truth of tho breaches docs not include tho Mai of issues outside of the broaches and is irregular. Dig. 618, see. 40; Ch. 127; 2 Ark. £02. The record introduced in evidence exhibited no adjudication in tho character of a final judgment — a judgment alono imports verity and precludes enquiry. 1 Cread. on Eo. see.

William C. Bevens, Circuit Judge. The bill sued on being in renewal was without consideration, liability on the original bill having been discharged by non-presentment and the second given in ignorance of such discharge. Byles on Bills 268; 4 Humph. 336 ; Chitty on Bills 541. Part payment in ignorance of discharge by laches will not render a party liable. Tibbetts vs. Dowd, 23 Wend. 379; Thornton vs. Wynne, 12 Wheat. 183.

<p>It is not necessary to the validity of an. indictment, under section 4 Ch. 51, Gould's Dig-, for illegal co-habitation, that it should specify whether the prosecution was for the first or second offence.</p>

Hon. John J. Clendenin, Circuit Judge. When the living parents have not the means of educating and supporting their children, an indenture of apprenticeship does not require approval by the probate court to give it validity. Gould’s Dig. 150. An indenture of apprenticeship void by statute is still obligatory upon the father at common law; or only voidable by the apprentice. Fowler vs. Hollenbac/c 9 Barb. 314; 8 John. 328; 13 lb. 248; 3 B. $ A., 59; 6 Leigh. 560.

Hon. John C. Murray, Circuit Judge. In taking a new bond the Probate Court acts ministerially under a specific power, and is bound to a strict compliance with •its authority. Polk vs. Wisntr, 2 Yerg. 523. The taking oí the new bond is not necessarily an abandonment of the surety of the old. It is a cumulative security, and no satisfaction of the old.

<p>Appeal from. Prairie Circuit Court.</p> <p>Hon. John J. Clendemn, Circuit Judge.</p>

<p>Appeal from, Sebastian Circuit Court</p> <p>Hon. J. M. Wilson, Circuit Jud’ge!</p>

Hon. J. M. Wilson, Circuit Judge. When a prior confession is proved to have been obtained .by improper means and influences, all subsequent confessions are deemed subject to the same influence, unless it is clearly shown to have been removed. Wheeler's Am. Cr. Law 257 ; Russ, on Cr. 832-3-4 ; State vs. Guild, 5 Halst. 163, 179 to 182 ; 1 Greenf. Ev. 282. Whether a confession is voluntary or not is a question of law for the court, not of fact for the jury to determine.

Hon. John C..Murray Circuit Judge. The true object of the act of 20th January, 1853, was to enable any one who had paid for, and received a certificate for swamp lands to have his title perfected to the same.

<p>While the contract is executory, or where the mode of payment is otherwise than in money, the declaration must be special — on the contract — and no recovery can bo had on the money counts.</p>

Hon. J. M. Wilson, Circuit Judge. As a general rule threats and hostile demonstrations unknown to defendant before the killing, are inadmissible in his defence. This rule, however, is not universal, and the facts in this case bring it within the recognized exceptions supported by the cases of State vs. Goodrich 19 Verm. R. 116; Campbell vs. The People 16 111. jR. 17; Keene vs. The State 8 Yerger 194.

Hon. William C. Bevens, Circuit Judge. A plea in abatement must not only conclude with a prayer of judgment, hut the particular kind of judgment prayed for must be specified. 1 C/i. PI. 460 ; 4 New Hamp, R. 76; 6 lb. 434.

<p>Error to the Circuit Court of Drew County.</p> <p>Hon. John C. Murray, Circuit Judge.</p>

<p>The service oí'a writ of summons fay leaving a copy with the wife of the defendant,, “ over the age of 14 years,” held to be defective.</p>

Hon. John C. Murray, Circuit Judge. A writ unattested by the judicial seal of the court from which it issues, is void. 3 Ark. 450; lb. 558 ; lb. 451. A writ directed to the sheriff cannot be legally executed by the coroner. Howes Pr. 93-4; 11 Mass. 181; 4 Pick. 405.. Every presumption should be made in support of a judgment— it must be intended that the sheriff was disqualified, and therefore that the writ was legally executed by the coroner. Gould’s Dig. 272.

Hon. John C. Murray, Circuit Judge. The return of service was defective in not stating that the person with whom the writ was left was a white person over the age of fifteen years. 5 Ark. 505; 4 Eng. 20, 192. It was error to permit the jury to assess the damages without first being duly sworn. Dig. 646, Sec. 40. When there is an inconsistency between the record entry and the bill of exceptions, the entry will prevail. 1 Ark. 360 ; 8 Eng. 482.

Hon- L. B. GReex, Circuit Judge. The discretion reposed by statute in the Probate Courts in appointments of guardians is asoundlegal discretion, notan arbitrary uncontrollable discretion. Sadler vs. Rose, 18 Ark. 602.

Hon. J. M. Wilson, Circuit Judge. Judgments of a court rendered at a term not authorized by law are void. Dunn vs. The State, 2 Ark. 229. The several clauses of a statute should be so construed, that if possible, all shall stand and be operative.

J. M. Wilson, Circuit Judge. The evidence of a deceased witness given on a former trial of this case should have been admitted. 3 U. 8. vs. Wood, 3 Wash. U. S. C. G. R. 440 ; Rex vs. Barber, 1 Root 76 ; 12 Wend. 45; 12 Serg. Sf R. 34, 35. The proof offered, if admissible, was cumulative, and there was no error in its rejection. 1 Dali. 118; 3 W. C. C. R. 440; 4 Rand. 501; Ros. Cr. Ev. 28, and notes.

Hon. John J. Clendenin, Circuit Judge. Bertrand had no cause of action against Fowler until he recovered a valid judgment against Mrs. Baker, the principal. The judgment against Mrs. Baker was void. 3 Grayéll, 412; 12 Sm. 4- Marsh. 67; 3 Mon. 267; 18 Ark. 63; 3 Yerger 396. The proper mode of pleading the statute of limitations to a set-off is to refer the accrual of the cause of action thereon to the commencement of the suit. 16 Ark. 196.

<p>In a suit unon an appeal recognizance, tie averments that both judgments are in full force and unsatisfied, and that the penalty of the recognizance is unpaid, are, on demurrer, sufficient allegations of breaches of the recognizance.</p> <p>Where a party has several securities for the same cause of action, he can pursue them all to judgment at the same time, though he is entitled to but one satisfaction.</p>

Hon. William C. B evens, Circuit Judge. A non-suit cannot be ordered in any case by the court without the consent and acquiescence of the plaintiff. Martin vs. Webb, 5 Ark. 72; lb. 161; 14 lb. 162; 707; 15 lb. 122. One partner cannot sue his co-partner at law. 1 Ch. PI. 39, 40; 1 Saund. PI. Sp Ev. 141, 2, 3; 2 lb. 701; 1 Story 157; 2 lb. 672, 702.

<p>Appeal from Crittenden Circuit Court.</p> <p>Hon. M. W. Alexander, Circuit Judge.</p>

Hon. Lem. B. Green, Circuit Judge. A verdict which superadds to a correct finding upon the offence charged a qualification notknown to the law is not void: the qualification may be disregarded and sentence passed upon so much of the verdict as is good. 1 Gh. Cr. Law 648 vote 1. Matters of form may be corrected even in a capital case to fulfill the intention oí the jury. 1 Ch. Cr. Law 646; 23 Pick. 405.

Hon. John 0. Murray, Circuit Judge. The endorsement on the note being only an agreement to waive the formality of notice, did not deprive the defendant of the right to notice. 3 Ark. 263. A waiver of the right to notice must be of record, and not in pais. 4 Eng. 452. Nunn having neither appeared to the suit, received notice, noi waived his right thereto, the judgment against him was a nullity. 8 Eng. 34; 16 Ark. 47; 6 Eng. 157, 525.

Hon. MaricW. Alexander, Circuit Judge. A discovery of the contents of a lost obligation is a proper basis for equitable relief. 1 Story’s Eq. Jar. Secs. 83, 88. The bill states no ground for equitable relief, for though it alleges the loss of the written memorandum, it does not aver that it was signed by either party. Sec. 1 Ch. 74, Gould’s Dig.

Hon. William C. Bevens, Circuit Judge. Evidence tending to show an illegal or immoral consideration for a bill of sale is admissible in impeachment of such instrument, and it is sufficient if such illegal or criminal purpose forms only a part of the consideration Donallen vs. Lenox, 6 Danu 91; 4 Peters 410; lb. 184. The plea of non-detinet to a declaration in the detinet puts in issue the plaintiff’s right of property. Gould's Dig., chapter 145, sec. 34.

The “ residence” of a defendant, to entitle him to the benefit of a homestead exemption from execution, must, under the statute, be a bona fide actual residence. The purpose of the act is to exempt from sale that place of residence which is the real home place of the debtor. Gould's Dig. Ch. 68, Sec. 29. The residence, to exempt, must attach in apt time, before a levy made under an execution. Analogous cases, 18 Ala. 127; 14 Ark. 57; 15 lb. 272; 18 lb. 419.

Hon. John C. Murray, Circuit Judge. To avail of usury in the contract, as a defence, it must be specifically pleaded.with an affidavit. 4 Ark. 44, 410 ; 2 Eng. 146. Usury may be taken advantage of by way of récoupment of damages. 12 Ark 699 ; 1 Slew, fy Port. 71 ; 9 How. U. S. R. 226.

Hon. William G. Bevens, Circuit Judge. The authorities are clear, that an infant can not bind himself by a bond, even for necessaries. 10 Johns. R. 33; Fenton vs. White, 1 Southard’s Rep. 100; McCrillis vs. Rowe, 3 N. H. 348; JBouchille vs. Clary, 3 Brevard 194. Although liable to an action for necessaries, he is not liable on the bond, especially upon a bond providing for the payment of a conventional interest.

Hon. William 0. Bevens, Circuit Judge. Interest at 10 per cent, per^annum may be legally contracted for, and making it payable semi-annually in advance does not render the contract void for usury. Agricultural Bank vs. Bis-sell, 12 Pick. 586; 6 Wend. 652 ; 3 Peters 40 ; 9 Wheat. 581 ; Wend. 408; 8 Cow. 664-70.

<p>Error to Jackson Circuit Court.</p> <p>Hon. William C. Bevens, Circuit Judge.</p>

<p>Where a defendant is indicted under the 9 th section of the gaming act, for betting a sum of money on a game of hazard, played with dice, he cannot be convicted i the proof shows that the gamo at which he bet — being a lottery, where the exhibitor receives money from the player as the price of whatever he may lose upon the chances of a throw of dice — falls within the denomination of the banking games prohibited by the first section of the act.</p>

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

Hon. William C. Bevexs, Circuit Judge. A vendor, to maintain an action for the purchase money against the vendee, must tender a conveyance, and demand the purchase money. A vendee, to maintain his action is under the same obligation of tender of payment. Sug. on Vend,. 229, 280 ; Smith vs. Henry, 7 Ark. 207 ; Doug. 684 ; Add. on Con. 171. In dependent covenants performance by both parties must be simultaneous. 2 Par. on Con. 147, 154, 168, 172.

. Appeal from Union Circuit Court in Chancery. lion. Len B. Geeeit, Circuit Judge. ■ The married woman’s law gives the wife a separate estate in the land and negroes which came to her since the passage of the act, which is not defeated by a failure to file a schedule, which is a mere registry of title, and may be done at any time. Gould’s Big., chap.

<p>To an action for the purchase money of a tract of land, the vendee cannot aet up in bar apprehended difficulties in the title of the vendor, or require the exhibition of an abstract. If defects exist in the title they must be specifically pointed out in pleading, and must be of substantial and existing quality.</p> <p>If the defence of outstanding title be interposed, the title must be specified, and alleged and proven to be paramount to that contracted to be conveyed.</p>

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

Hon. L. B. Geeen, Circuit Judge. 1st. The appellant, has, by proper and necessary averments in his declaration, set forth such a state of case as under the law gives him a right of action against appellees. 2d. Every allegation in the declaration necessary to be proved, in order to a recovery, was in proof before the jury. 3d. J. L. May, as Commissioner, is bound by the condition of his bond here in suit, and by the 31st section of chapter 154 of Gould’s Digest, to turn over…

Hon. Len. B. Green, Circuit Judge. The cause of action was intended to be payable to the county commissioner or his successor, and not to the commissioner of the township. The county commissioner alone could act in eontroling townships under such a state of case as is presented by this declaration ; and this the appellees were bound to know from the nature of the transaction. Brown et al. vs. State Bank 5 Ark. 234. The demurrer was properly sustained.

Hon. William C. Bevens, Circuit Judge. Appellant, by the form of action adopted, affirmed the contract, and sought to reeove4r the damages resulting from the deceit. Consequently an offer to return the slave was not necessary. Johnson & Grimes vs. McDaniel 15 Ark. 117.

<p>Upon the dissolution of an injunction, the defendant may sue upon the injunction bond to recover the damages assessed on sueh dissolution, without waiting uxitil a final decree in the chancery suit, or suing out execution on the decree.</p>

Hon. Tiieodoric F. Sorrells Circuit Judge. No length of possession, although upon a claim of property, will constitute title in the bailee against the bailor, unless there has been a demand and refusal, or some act changing the nature of the possession. Baxter vs. Henson, 13 Ire. 459; 1 Dev. & Bat. 13; Lenox vs. Notrebe et al., Hemp. C. C. R. 255; 2 John. C. Rep. 30, 269. The possession of the bailee cannot be adverse until the bailment is determined.

Hon. Tiieodortc F. Sorrells, Circuit Judge. There is no proof in the case that McNeill, previous to his purchase, ever had any notice, actual or constructive, that Samuel Burke had conveyed the negroes to Glover as trustee for the use of Virgil Burke’s wife and children. The fourth instruction was, therefore, purely abstract, and ought not to have been given.

Hon. Holbert F. Fairchild, Chancellor. Argued before Mr. Chief Justice English, Mr. Justice Compton, and Hon. H. Flanagin, Special Judge. The first and most important enquiry is, whether the decree under which Fowler claimed, was a lien at all; and if so, whether it had relation to the first day of the term at which it was rendered, and the lien dated from that point of time.

lion. Wm. R. Cain Special Judge. The application of Brooks to a court of equity is not to enforce the specific execution of a verbal contract for the sale of land, but to obtain a conveyance for land, to which a conveyance had been made to him, and which conveyance, by the fraudulent act of Isbell, had been destroyed. Hunter vs. Semral et al. 5 Litt. 63; Kent's Com. (6 Ed.) 456; Souverbye vs. Arden 1 C. R. 240; 15 Wend. 545 ; 6 Conn. Ill ; Ch. on Con. (8 Amer. Ed.) 4.

<p>A steam boat and cargo having been sunk in the Mississippi river for a period of nearly thirty years, and during that time, an island having been formed, by the changing of the current of the river, over the wreck, and the owners having made no effort, nor done any act showing that a design was entertained to save the property, the law- WOllld imply an «.hn.nrimunfint. of it. jf</p> <p>The finder of a wreck} as such, would be entitled to the property as owner, or to its possession as salvor, and would be protected from the interference of third persons with his possession. '</p> <p>Pi’operty is said to be abandoned when it is thrown away, or its possession voluntarily forsaken by the owner, in which case it will become the property of tho first occupant. When involuntarily lost, or left without hope or expectation of again acquiring it, it becomes the property of the finder, subject to the superior claim of the owner, on the payment of salvage in admiralty eases.</p> <p>The occupation or possession of property lost, abandoned, or without an owner, to constitute a good title by occupancy, must depend upon an actual taking of the property, and with the intent to reduce it to possession: And so where the claimant had marked trees on the bank of the river, and placed buoys over the wreck, to indicate tho .place where it lay — those acts only indicate a desire or intention to appropriate the property, and are not — as placing a boat over the wreck, with means to raise it, and with persistent efforts to do so, would be — such acts of possession as the law would notice and protect.</p> <p>Where an injunction has been issued and served upon the defendant, the court may well impose a line upon the defendant, for contempt, in disobeying the process of the court; but not as damages to the complainant for any supposed injury to him in consequence of such disobedience.</p>

Hon. John J. Clendenin, Circuit Judge. An agent who discloses the name of his principal, acts under and within the scope of his authority, is not personally responsible unless he makes himself so, either by fraud or contract.

<p>Where the defendant files two pleas, setting up the same matters of defence, he is not injured, though a demurrer to one of the picas be erroneously sustained, if on issue to the other plea he has the benefit bf a trial of its subject matter.</p> <p>The sheriff being bound under the statute (sec. 74, ch. 68, Gould’s Dig.) to pay the amount due upon an execution in his hands, for not returning it according to law; he is not excused from returning such execution by the conduct of the plaintiff in embarrassing him in making sales, or adjusting or collecting their proceeds.</p> <p>The defendants in a suit on a sheriff’s bond, are estopped to deny that the person ■ described as sheriff in the condition of the bond was such at its date, aud the law will presume that he continued sheriff from that timo during the term for which he was elected.</p> <p>It is no excuse for failing to return an execution issued upon a judgment on a forfeited delivery bond, that the security in the delivery bond is a mairied woman— the sheriff cannot set up that the delivery bond, judgment and execution thereon, are void on account of the coverture of the security.</p> <p>If the declaration states a cause of action, though defectively, a demurrer to a subsequent pleading will not reach back to the declaration. (18 Ark. 286.)</p> <p>In assessing damages against the defendants in an action on a sheriff’s bond, for failing to return an execution, interest will be computed on the aggregate of the debt and interest in the execution at the rate of interest thereon. (Henry vs. Ward, 4 Ark. 151.)</p>

Hon. Jonas M. Tebbetts, Special Judge. The 4th plea is bad, because it denies a fact admitted by the defendants in the condition of the bond sued upon. They are estopped from denying that Main was sheriff. Outlaw et al. vs. Yell, Gov., Sfc., 3d Eng. 345; 3 Marsh. 303; 15 Wend. 502; 9 Wend. 209; 2 .7. J. Marsh. 280; 1 Lilt. 418.

<p>The plaintiff and defendant in an action of ejectment, both claiming under deeds from the Governor for a tract of swamp land, the deed of oldest date will prevail.</p>

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

Hon. Theodoric F. Sorrells Circuit Judge. Did complainants lose their rights under the Deed of Trust, and all interest, in the trust properly, because they did not “probate a claim ” against the estate of Richard C. Byrd, within two years from the date of administration upon his estate? We think not, most clearly.

Hon. Len B. Green, Circuit Judge. It is well settled that a party, giving a letter of credit, or a guaranty, Ras a right to know, by notice in a reasonable time, whether it is accepted, or acted upon, and the amount of goods or credit given on the faith of it. Reynolds vs. Douglas, 7 Pet. 125; Russell vs. Clarke’s exrs., 7 Cranc/i. 69; Edmondson vs. Drake, 5 Peters 624; Oxley vs. Young, 2 H. Bl. 613; Peel vs. TatlocJc, 1 Ros.

Hon. A. A. Stith, Circuit Judge. It was error to take a forfeiture of the recognizance at a sub-term — the court having failed to meet at the term following the date of it. 2 Penn. Rep. 24 ; 3 Yerger 281 ; 3 Dana 224.

<p>The rule in State Bank vs. Conway, 13 Ark. 344 — and in numerous other cases— again applied.</p>

Hon. L. B. GReen, Circuit Judge. contended that the statute does not require a bill of exceptions to be taken in all cases of appeal from the Probate Court, but leaves it discretionary with the appellant; and that when the record itself pre-. sents every fact necessary, to a full adjudication of the case, it is not necessary to give the circuit court jurisdiction on appeal from the Probate Court, that a bill of exceptions should be filed (Dempsey vs. Fenno\ 16 Ark. 491;)…

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

<p>Appeal from Phillips Circuit Court.</p> <p>Hon. M. W. Alexander, Circuit Judge.</p>

. Hon. Hulrert F. Fairchild, Chancellor. For appellants we submit, that: 1st. Watkins was not entitled to a decree, not being within the statute. Smith vs. Robinson, 13 Ark. 563. 2d. The forfeiture was void because for more than was due. 13 How. U. S. R. 24; 19 Ohio. 237; 8 Blackf. R. 336, 582. 3d. Taxes are not due till assessed. 26 Penn. S. Rep. 437; 4 Watts 352; 1 Munf. 430. 4th. The county tax in 1854-5, &c.,was for too much. Dig. sec. 1, 2, 3, p. 213. 5th.

Hon. Len. B. GReen, Circuit Judge. It was clearly the intention of the testatrix to give to her daughter only a life estate in the property in dispute ; and that after death the property should go to her children. And according to the recognized construction of wills, the latter clause of the bequest in this case which, probably, was unintelligible to the testatrix, will not be allowed to defeat her manifest intention. Sims vs. Doughty, 5 Ves.

Hon. Charles C. Farrelly, Special Judge. We take the ground that Russell being a non-resident was not bound to follow the rules prescribed by the State Legislature in order to collect his demand against Ferebee. He had his remedies before him, either of which he was at liberty to pursue, and the election of one secured to him all benefits and rights he could possibly have had, by taking the other.

Hon. John C. Murray Circuit Judge. The county court is the forum for adjudication of all the financial matters of the county, and any exception to the general rule must be based upon positive statutory regulations, subject to the “ superintending control of circuit courts.” Carnall vs. Crawford county 6 Eng. 604.