Volume 23 — Arkansas Reports

Hon. Len B. Green, Circuit Judge, The Circuit Court erred in excluding from the consideration of the jury, the deed of assignment, executed by Lockwood and Phillips, for the benefit of their creditors. ' The deed was for a fair and meritorious consideration ; and divested Lockwood and Phillips of all ownership of the property at the the time the attachment was levied, at the suit of the defendant.

Him. Ben B. Green, Circuit Judge. The representations by the lessor in the deed of lease, viz: that there was on the lots described therein a fire proof brick cotton ware-house, was not a mere description, but is an implied covenant on the part of the lessor. See Pa/rker et al. vs. Smith et al. 17 Mass. R.p. 413, and Gates vs. Oaldwell gb al. ews. 7 Mass. R. 68. A covenant may be created by any form of words, which show the intention of the parties.

Hon. John C. Murray, Circuit Judge. It is a general principle that where an appellate jurisdiction only is exercised by one court of record over cases coming from another, such cases are to be taken as they were in the latter court, without] addition or diminution, Marbury vs. Madison, 1 Cramch, 137; 4 Bou/o. Inst. 70.

<p>It is not necessary that the affidavit, prescribed by section 180, chap. 99, Gould's Dig., should be signed by tbe affiant — the omission to sign it not affecting its validity.</p>

<p>The oases of Reed et al. vs. S. Bank, 5 Ark. 193 — that itis errorto render-judgment by default, while there is an issue undisposed of — and Martin et al. vs. S. Bank, 20 Ark. 336 — that it is error to amend the record at a subsequent term without notice to the party — adhered to.</p>

Hon. John C. Murray, Cii'cuit Judge. The appellant is not liable for the trespass complained of in this action (though the owner of the slaves,) he not being present at the time, having no cognizance or knowledge of the matter, and never having approved of it. The whole matter being done wholly and solely by Harrold, and under his direction, he is alone liable; he being, in every view of our law, the “ master or owner ” of the slaves when committing-the trespass.

<p>The finding of the Circuit Court sitting as a jury will not be disturbed, where it does not appear that it was against evidence, nor without any evidence on which to rest.</p>

Hon. John J. Clendentn, Circuit Judge. Where a parent, upon the marriage of his daughter, suffers property to go into her possession, it is prima facie evidence of a gift. 4 Me Cord 228; 1 lb. 214, 139; 4 Iredell 165; 1 Hay. 2; lb. 97; 2&. 451; 2 lb. 126; 5 .More.' 504; 1 Ala. 652; 20 i&. 720; 22 lb. 422; 3 Hen. 4 Munf. 127; 2 Bibb 32; 4 lb. 73.

<p>If all the parties interested as plaintiffs do not join in the action, it is ground for non-suit upon the trial.</p>

<p>Appeal from Dallas Circuit Court.</p> <p>lion. John C. Murray, Circuit Judge.</p>

Tlon. Len. B. GREEN, Circuit Judge. The prisoner was not in a condition to be tried; and therefore a new trial should have been granted. We submit that the terms used by onr statute are, in effect, that the prisoner shall not either be tried or sentenced, when he has not intelligence enough to understand the nature of the proceeding against him. (See AreJiboWs Cr. Pr. and PI. 5, and notes).

Hon. Hulbebt F. Faibchild, Chancellor. The error to which we ask attention, and confidently rely on to reverse the decree,- is, that the sale was directed to be made, not at the court-house door of the county of Chicot, where, the land is situate, but at the court-house door of Pulaski county. This was wholly unwarranted by law. See see. 56, chap. 68, Gould's Dig., page 509, title Execution ; sec. 15, ■ chap. 117, p. 801, title Mortgages.

Hon. JohN C. MueRAy, Circuit Judge. If it appear that a defendant was ignorant of important facts material to Ms defence, upon the trial at law, and which he could not have discovered and availed himself of, by due diligence, at the time of the trial,, a court of equity will grant relief. Hempstead et. al. vs. Watkins, 1 Eng. 368.

<p>Appeal from Hempstead Circuit Court in Cha/ncery.</p> <p>Hon. SheltoN WatsoN, Circuit Judge.</p>

<p>Ajypeal from Drew Circuit Court.</p> <p>Hon. J. Gould, special judge.</p>

<p>Appeal from Columbia Circuit Court.</p> <p>Hon. Len B. Gbebk, Circuit Judge.</p>

<p>Appeal from Washington Circuit Coiwt.</p> <p>Hon. J. M. Wilson, Circuit Judge.</p>

Hon. John C. Murray, Circuit Judge. The action was not founded on the receipt, but on the implied contract to refund the money: and the period of limitation was three years. Sec. 10, ch. 106, Dig. The receipt is not a contract, but only evidence of one. Beébe et al, vs. B. E. Bank, 4 Ar7c. 127; 4 T. B. 151; 2 Id. Baym. 758.

<p>Appeal from Independence Circuit Court.</p> <p>II011. "William C. Bevens, Circuit Judge.</p>

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

<p>Tim defendant in an action of Unlawful Detainer, having paid the balance of the purchase money for the plaintiff and gone into possession under a contract that he was to retain it free of rent until the return of the plaintiff, holds under him, and not adversely, until the return of the plaintiff and demand of possession; and so is not entitled to the benefit of the act of limitations nor, under such contract, is he entitled to retain possession of the property until the money advanced is repaid him.</p>

<p>Upon a non-suit, in an action of Unlawful Detainer, the defendant has no right to have a jury called to assess his damages — his remedy is on the plaintiff’s bond.</p>

Hon. J. M. Wilson, Circuit Judge. It is contended, on the part of the plaintiff in error, that the act of Congress, providing “ that all executory contracts, made and entered into by amj Indian, for the payment of money or goods, shall be deemed, and held to be null and void, and of no binding effect whatever,” has no limitation, but is general in its character; that it applies to all contracts made with an Indian, and that the contract, when made with an Indian by a white…

Hon. Len B. Green, Circuit Judge. The equities of this case are all with appellant. He was the first purchaser. He purchased in good faith, according to the routine of the commissioners, and paid for the land in the same mode. He received his certificate of purchase, and took possession of the land — and this was done long prior to the inception of appellee’s title.

Hon. Len B. Green, Circuit Judge. It was proper for ;the complainants to apply to chancery for a construction of this will.

<p>Appeal from Hempstead Gi/reuit Court in Qhancery. •</p> <p>Hon. Len B. Gjbeen, Circuit Judge.</p>

Hon. Len B. Green, Circuit Judge. An authority by the justice to alter a particular execution is good, though authority to alter any and all executions is void. Pierce vs. Hubbard, 10 John R. 405. The alteration by the constable at the instance of the justice was his act. Justices of the peace have-jurisdiction throughout the county, and so have constables to execute civil process. Gotitd’s Dig. sec. 29, p. 254, sec. 34, p. 280.

■ Hon. William C. Bevens, Circuit Judge. The deeds exhibited were no part of the record, and could not be regarded. Redmond vs. Anderson, 18 Ark. 449. We have examined the transcript with some care, but have not discovered how the Circuit Court got jurisdiction of the case. A writ of certiorari was issued, but no return was made.

A justice of the peace has jurisdiction of an account for rent not exceeding one hundred dollars. Appeal /rom. Independence Circuit Court. Hon. William C. Bevens, Circuit'Judge. The account, upon its face, showed an indebtedness by the-defendant to-the plaintiff, and the court could not know, except by a trial de novo, whether the title to. land was involved. It was therefore error to dismiss for want of jurisdiction under the decision in Beebe vs. Fitzgerald, 2 Eng. 308.

<p>The suppression of a portion of a deposition before the parties go into trial, or the issues are made up, is not cause for a new trial on the ground of surprise.</p> <p>Where the portion of a deposition suppressed could have been of no benefit to the party offering to read it, if it had been admitted, its suppression is no cause for granting a new trial.</p> <p>Where it was the appropriate province of a jury to determine a matter of fact before them, and their conclusion is not without evidence to sustain it, this court will not disturb their finding upon the matter.</p> <p>Where judgment is for an excessive amount, it will be affirmed, under the rule, on a remittitur of the excess; otherwise it will be reversed.</p>

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

<p>Appeal from Jefferson Cvreuit Court.</p> <p>Hon. J. Gould, Special Judge.</p>

Hon. John C. Murray, Circuit Judge. On the trial, the plaintiff read an absolute bill of sale from Elmyra Hundley, to said Hosea George, for the negroes in question, dated 13th September, 1855, and proved the due execution of the same, and that at the time Elmyra Hundley had actual possession of the slaves; but there was no formal delivery of them to George, and in fact, they were left in the said Elmyra Hundley’s possession, but for no fraudulent or improper purpose ; and…

<p>Appeal from' Crittenden Circuit Court.</p> <p>1-Ion. Mark W. Alexander, Circuit Judge.</p>

Hon. Lem B. Green, Circuit Judge. On the sufficiency of the motion, we refer the court to 1 Kent 411; United States vs. Mart, 1 Pet. C. R. 390; United States vs. Barney, 3 Hall’s Law Jour. 128. The record does not show that the writ was returned, therefore the clerk could not take the bond and release the levy. But if the defendant had given bond, he did not waive his right to have an illegal levy quashed.

Hon. John C. Murray, Circuit Judge. It is submitted confidently that the complainant below cannot be heard in this tribunal. In Handle vs. Williams, 13 Ark. 380, it is held that a chancery proceeding to correct an excessive assessment would be wholly unwarranted and unauthorized, and that if the assessment and levy were excessive, the appropriate remedy was by appeal to the county court.

Hon. Len B. Green, Circuit Judge. On the application of the vendor, equity will npt compel the purchaser to take a doubtful title:»and, under this contract, Walker had no right to expect that an unencumbered estate in fee simple would be conveyed to him: and there is nothing shown which places him in position to have forced upon him an unsound title for a sound price, or to oblige him to be satisfied with the possession of the land-alone, without title, and to accept, in…

Hon. William C. Bevews, Circuit Judge. The court erred in discharging the jury after tlie trial had commenced. The defendant had a right to a verdict on his plea of ne unques administrator, under which it might well have been shown that the plaintiff’s letters had been revoked. 1 Saund. PI. 1130.

<p>Appeal from Johnson Circuit Court.</p> <p>Hon. J. M. WilsoN, Circuit Judge.</p>

<p>The appellant haying been made a witness, and the jury, who héárd hís statement having rendered a verdict against him, and the presiding judge who had an opportunity of observing his manner of testifying, having refused to set aside the verdict, this court being nnable to say that there was a total want of evidence to sustain the verdict, affirms thejudgment.</p>

Hon. Len B. Green, Circuit Judge. We insist that the plea was good, and that the demurrer to it should have been overruled, and we base ourselves upon two plain propositions of law: first, that by reason of the facts stated in the plea the estate of Johnston was forever discharged from'liability to the appellees on account of the cause of action stated in the declaration.

Hon. John J. Clendenin, Circuit Judge. The allowance of the account in this case for the several claims paid by the appellee, on the testimony of the original claimant, was not only in violation of the well settled rules of evidence, but also in face of the letter of the statute. Gould's Dig., secs. 102, 103, chap.'4; i Greenl. Ev., sec. 326, p. 440; 1 Gilb. Ev., 223, 224.

<p>The language of the statute (15th sec. ch. 106 Gould’s Dig.) making ten years the period of limitation on judgments and decrees', is comprehensive, and embraces all judgments and decrees without discrimination or exception; and the statute may be pleaded to a judgment or decree as well on a proceeding in the probate court for allowance as in ordinary suits at law.</p> <p>The assignment of a judgment or decree does not vest in the assignee the legal ■title; but the assignee does acquire the equitable title, with the right to control its collection, and there is no substantial reason why it may not be allowed as a claim in favor of the assignee, against the estate of a deceased judgment debtor, if not barred at the time of his death.</p>

<p>A plea to a scire facias to revive a judgment, that it has been assigned to a third person, is bad on demurrer; because the assignment vests only the equitable title in the assignee, with the right to control the collection and use the name of the plaintiif.</p> <p>To a scire facias issued in 1857, to revive a judgment rendered in 1846, and which had been revived in 1852, the presumption of payment from lapáe of time does not apply.</p> <p>The failure of the Circuit Court to dispose of a bad plea, is not sufficient cause to reverse the judgment.</p> <p>A party may pursue concurrent remedies — issue a scire facias to revive a judgment against the administrator of a deceased judgment debtor, and present the claim for allowance in the Probate Court — though he can have but one satisfaction.</p>

<p>That a person was in feeble health at the time of selling land, is no cause for rescinding the contract of sale, in the absence of proof that he was legally incompetent, from mental imbecility, to make a valid contract.</p> <p>Partial loss of memory, one of the infirmities incident to advanced ago, doe1 not render a person incapable of making contracts, while his other faculties remain unimpaired.</p> <p>In the absence of mistake, fraud or want of capacity, satisfactorily made out, a court of chancery cannot relieve a person from the consequences of an improvident sale of his land.</p>

Hon. William C. Sevens, Circuit Judge. The first question presented is, who became entitled to the half of the slaves which we contend would have vested in John M., had he arrived at the age of twenty-one years; or, in the issue of his body surviving, had he died under that age, absolutely?

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

<p>Appeal from, Hempstead Circuit Court.</p> <p>Hon. Lem B. Green, Circuit Judge.</p>

Hon. William C. Bevens, Circuit Judge. If there was any failure of consideration, it was only partial: the pleas were not-supported, and of course the verdict ought to have been for appellant. 6 Ark. 416; 17 lb. 10; 10 lb. 273; 19 lb. 666.

jError to Sebastian Circuit Court. Hon. Felix I. Batson, .Circuit Judge. Where there is no indictment in the record sent to this court, the conclusion is that none was found against the defendant, much less presented in open court; and the proceedings against him are a nullity, sec. 14, art. 2, Const.

Hon. John C. Murray, Circuit Judge. If any right or title was claimed under the contract, the objection that.there was no profert of it, might be good; but the plea sets up none. It merely denies the plaintiff’s right to recover on the note, because of a failure of the consideration and the contract is alleged as one of the facts arid circumstances showing how, or in what manner it had failed, and the legal effect is the same, whether it was in parol or in writing.

<p>It is error to refuse to permit a defective replevin bond to be amended.</p>

Hon. John C. Murray, Circuit Judge. An ordinary action of assumpsit or debt could not have been maintained without making proferí of the letters of administration (18 Ark. 243). And no reason is perceived why the same necessity does not exist, in this form of action, for the plaintiffs to show their right to sue in the capacity of administrators.

I-Ion. John J. Clendenin, Circuit Judge. That the payment for the horse did not depend upon Stout’s paying the defendant for his services as overseer, see Hilliard on Sales, p. 13G, sec. 4; Dana vs. Mason, 4 Verm. 368.

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

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

<p>A deed, purporting on its face to be a conveyance of property, could not be made a mortgage in this case, because the evidence did not establish such a conclusion.</p> <p>Where notes are barred by the statute of limitations, the payment of money as'security for the debtor, cannot revive them.</p> <p>A note which has not been delivered, and which is in the hands of the maker, cannot be presumed to represent an existing debt.</p> <p>In a proceeding to settle a partnership concern, it is not proper to take into consideration an account between the parties for clearing and building upon their joint lands, and rents received therefor — the account in such case should be settled in a proceeding for partition.</p> <p>The settlement of an unliquidated partnership transaction should not involve with it mero personal demands: but if, on ascertaining a balance, it appears that the other party had an existing demand for moneys paid, to an equal or greater amount, it is not equitable to render a decree for such balance.</p>

Hon. Leu B. Green, Circuit Judge. The court clearly erred in refusing to permit the defendant to prove that if, after the accident, the cotton had been shipped, by the established custom, it would be at the risk of the shipper, and could not be covered by insurance, either by the open policy of the boat, or by any other policy. “ The custom of the place is to be observed,’' (6 Co. 60.) and the“proof of the established custom would have released the defendant from all clairft…

Hon. J. M. WilsoN, Circuit Judge. We maintain: 1. A wager on a turf race is illegal and void. The statute makes all wagers void, and 'gives to all losers, except those on turf races, a remedy for the recovery of what they lose, leaving the parties to a wager on a turf race precisely in the same situation the parties to illegal wagers stood at common law.

<p>In an action upon a penal bond, if the breach shows a good cause of action, defectively stated in form, but not deficient in substance, it is sufficient, after plea, on error.</p> <p>In actions upon penal bonds, the judgment should be for the penalty of the bond, with a further judgment that the plaintiff have execution for the damages assessed.</p>

Hon. Maee W. AiexaNdeb, Circuit Judge. The writ of certiorari was not issued and returned. No consent of parties could dispense with the writ itself, without which there was no proceeding. But if the case were really in court, and it had power and jurisdiction to examine the order of allowance of Rightor’s account, and the order of payment, it is surely clear that those orders were not void.

Hon. John'J. CleNDBNIN, Circuit Judge. Appellee was acting in a fiduciary capacity in paying half tbe estimated cost of re-entry, and even bad appellant executed a deed to bim, equity would have enforced tbe trust to tbe benefit of Sawyer’s beirs. 3 Wen. 368; 5 J. C. B. 409; 3 Berna 265.

AjypecH from, Salmo Ci/rouit Court. Hon. JohN J. ClendeNIN, Circuit Judge. It may seem like trifling with the majesty of the law, for the state, charging an accused with the crime of murder, to seek to hold him amenable for an assault and battery involved in the commission of that crime. Nevertheless such a question is here presented. It is submitted that murder is a crime of such a grade that all leaser offences that may enter into its commission, are merged and lost in it.

Hon. John J. Clendenin, Circuit Judge. Admitting that the partnership had been dissolved, Parker, as a member of the late, firm, hada right to collect the amount of the note from the appellant. Story on Part. sec. 328. And the fact that he misapplied the amount received would not affect the validity of the payment made to him by the appellant. Major vs. Hawks, 12, 111. Rep. 298.

Hon. William C. Bevens, Circuit Judge. laid in the decide If the plaintiff had fully proved his case, as ration, he was only entitled to recover the balance due for the corn after deducting the set-off proved by the defendants. But when we look at plaintiff’s evidence, we are left in doubt whether there was any contract between plaintiff and defendants for the sale of any corn.

Here an assignee of the notes claims to enforce the lien of the vendor, and to enforce it against assignees of the land. All this may be done. 13 Ark. 540; 14 Ark. 633. in this State, is, that a sale by title bond is, in all its material features, the same as a mortgage by the purchaser to the vendor to secure the purchase money. If a note secured by mortgage be assigned, the mortgage passes with it. 18 Ark. 575.

Hon. Josiah Gould, Special Judge. The complainant insists that he has established every material allegation in his bill, and has made manifest his legal and equitable right to the negroes, Ned and Fanny, from the facts proven that he bought them from C. J. Hundley, in Louisiana, about the 4th of February, 1856, for $1500, a fair price, which he paid Hundley; that he took them into possession and removed them to Arkansas, and held them in possession peaceably until the 6th of…

Hon. John M. Wilson, Circuit Judge. If the facts set up in the notice are sufficient to justify, they enure to the benefit of the officer alone, and not to his co-defendants. See Scmders vs. Hamilton, 3 Dana 550, and cases cited.

<p>Error to Benton Circuit Court.</p> <p>Hon. J. J. Green, Circuit Judge.</p>

<p>Error to Union Circuit Court.</p> <p>Hon. Len B. Green, Circuit Judge.</p>

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

<p>In an indictment for selling ardent spirits to a slave, without permission, it is necessary to state the name of the master, and allege the sale to have been without the permission of the mistress, overseer or person having charge of him, as well as of the master.</p>

Hon. Lest B. GseeN, Circuit Judge. Appellant surely had the right to explain by his contemporaneous and concurrent declarations at the time of the sale alluded to, whether it was a conditional sale, an agreement for a sale in futuro, or a positive transfer of property.

<p>A homestead is not subject to attachment any more than it is to an execution.</p>

Hon. Read Fletcher, Special Judge. It is well settled that if the representations of a vendor, on a sale of property, are false, to the knowledge of the party making them, this is sufficient to maintain an action for deceit. 2 Rob. Prac. 621, 622, 627; LobclelV vs. Baker, 3 Mete. R. 469; Polhill vs. Walker, 23 Png. Com. Law R&p. 49. Oousotte was the agent of Scull to sell the negro, and he had * all the authority necessary to effect that object.

<p>Ajypeal from Glarh Ci/reuit Court.</p> <p>Hon. LeN B. GreeN, Circuit Judge.</p>

Hon. JohN J. CueNdeNIN, Circuit Judge. The items of the set-off due to Fowler and Stillwell jointly, were not properly allowed as a set-off in this action, against the executor of Fowler. Eizzellvs. Stone, 7 Eng. 378; 2 Pcursons on Con., 243, 244, and cases cited in notes. They are not due to Fowler’s representative, but belong to the surviving partner, who alone can sue for them. Story on Pa/rt. sec. 346, and cases cited.

Hon. Len B. GreeN, Circuit Judge. On the main question — the question of authority in the city by virtue of her general powers under her charter as a municipal corporation — it is stated, in Pierce on Am.

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

Murray, Circuit Judge, Conceding, for argument sake, that upon the completion of the whole or part of the work under his contract, the defendant would have had a right to select land in kind, and might have selected rear lands — if you please, the lands in controversy — in payment, he must have furnished the numbers to the commissioners, and obtained certificates; yet he had an option, and chose to receive compensation in scrip.

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

<p>This court cannot presume, for the purpose of sustaining the judgment of the Circuit Court, that a plea was stricken out for some good and sufficient cause, against the affirmative showing, made by the record, that the court erred.</p> <p>A plea that the bond sued on was given for the last payment of a tract of land, and that the plaintiff had not made or tendered a deed, according to his bond for title, is not a good defence, if it fails to show that the bond, which was not made a part of the record, contained mutual and dependent covenants.</p>

lion. J. 0. Tappan, Special Judge. The replication set up the infancy of three of the plaintiffs and came within the statutory exception. Could’s Dig.,p. 749, seo. 5. The land was not divided between the Wilder heirs, and this disability enured to the benefit'of all. So far as this suit is concerned, on part of plaintiffs, but one interest was before the court, and the infancy of some of the plaintiffs was sufficient to take the case out of the statute.

<p>A man who sells lumber for building a house is not entitled to the lien provided for in the statute (Gould's Dig., ch. 112, sec. 1;) though it is the privilege of a mechanic or builder to include in his lien the price for materials furnished.</p>

<p>A plea of partial failure of consideration of a note given on the sale of property, based upon misrepresentation, must deny that the representations were according to the facts; and if unsoundness in the property sold be alleged, the plea must show that the representations as to soundness were such as in law to constitute a warranty, or were known to the vendor to be false.</p>

<p>On appeal from the county court, the circuit court has no jurisdiction to try the merits of the case anew, unless there be error found in the proceedings and judgment of the county court.</p> <p>Unless the bill of exceptions shows that a record, or paper, was read or used in evidence, such record or paper ought not to be copied in it; and for the omission to do so, in such case, a certiorari will not be ordered to perfect the record.</p>

<p>An action will not lie upon an instrument of writing acknowledging the receipt of money by the defendant of the plaintiff, specifying its payment on account of a partnership concern, unless the plaintiff prove that there was not an existing or unsettled partnership.</p> <p>The court having affirmed a partnership, by which the plaintiff’s action was defeated as to the receipts, erred in permitting a partnership indebtedness to be set-off against an individual debt due to the plaintiff by the defendant.</p>

The main defence relied on is the statute of limitations, and upon this point the case was decided by the Chancellor. It is proved beyond any question, that all the time Brumback, or those before him, held any of the lands or lots, there was pending in the courts here litigation about them. Appellees holding thus, acquired no title whatever, and their possession could never make them a title. There is no basis upon which the limitation can rest.

<p>Appeal from Pulaski Chancery Court.</p> <p>Hon. Uriah M. Rose, chancellor.*</p>

<p>The affidavit to a claim against the estate of a deceased person need not be signed by the affiant. (Gill vs. Ward, 22 Arle.)</p> <p>Where neither the certificate, the caption nor the body of the transcript of a decree shows what court rendered the decree, it is no evidence.</p>

<p>In an action by the State for the use of the trustees of schools of township No. etc., on the bond of M., the common school commissioner, the declaration alleged a liability on the bond of M., as common school commissioner, for his acts as commissioner of the townships; the defendants made default, and on enquiry of damages, the plaintiff offered to prove that M. had eolleeted money belonging to the specified township; Held, that the default of the defendants admitted that the declaration contained a cause of action against them, and that the evidence ought to have been admitted.</p>

<p>On a reversal of a judgment of the county court on appeal to the circuit court, that court ought to set the case down for trial upon its merits, not remand it to the county court for trial.</p>

t, Hon. John J. Clendenin, Circuit Judge. We submit that, at the death of the testator, the title to the property vested in his two children, subject to the maintenance of their grand parents-: upon the death of the surviving child, his administrator had the right to the possession and control of the negroes.

Hon. Mark W. Alexander, Circuit Judge. The words of the will are ample to vest the absolute property in Hannah and Elizabeth Pollard, and unless qualified by the subsequent clause, no right vested in appellee upon her death, to either Hannah or her descendants. If the testator referred to, dying without hevr, before the bequest took effect, (the time of the death of the testator,) appellee’s claim is wholly unfounded.

<p>Adverse possession of slaves, under a verbal gift void by statute, for the period of limitation, confers title upon the possessor, and bars a recovery by an adverse claimant. (Spencer vs. McDonald, 22 Ark.)</p> <p>The possession contemplated by the statute (Gould’s Dig.,p. 1026,) must be a peaceable possession, adverse or hostile to the true owner; and does not as a general rule run in favor of a direct trustee, (19 Ark. 666; 18 2b. 498; 22 lb. 9.) but where the trustees sells, or otherwise disposes of the trust property to another person, who holds and uses the property as his own for the period of limitation, his possession is adverse within the meaning of the statute, and he is entitled to its protection. (Halliburton ad. vs. Fletcher et al., 22 Ark.)</p>

Hon. JohN J. CleNdeNIN Circuit Judge. The face of the proceedings show the assessing of the lands by the assessor of Perry county, and their forfeiture to the state by the collector of that county, which render the acts of that, officer nugatory and void.

<p>A collector has no legal authority to receive payment of taxes, and execute a receipt therefor, before the assessment of the property.</p>

<p>A sale of land for taxes, after tender of payment by tbe owner, tbougb the land is assessed in the name of another person, does not divest the owner of his title.</p>

Hon. Len B. Queen, Circuit Judge. Under the state of case, did the court err in mating'tie decree, to reverse which this appeal was taken? We insist it did.' And 1st, we maintain that it was competent to prove the sense in which the testator used the words “ die without cm hei/r at death” as expressed in the 7th clause of his will by the scrivener who wrote it.

<p>The 19th section, chapter 154, Gould's Digest, Acta of 1854, page 109, Acte of 1852, page 42, are public acts in their character and subject matter, though local in their application, aud the courts are bound to take judicial notice of them.</p>

<p>The person, who furnishes the lumber for a building, not being the mechanic or builder, is not entitled to a mechanic’s lien for the price of the lumber. (Duncan vs. Bateman, ante.)</p>

i Hon. John C. Murray, Circuit Judge. Beyond doubt actions for money had and received may be maintained against third persons who receive money to be paid over to others. Ch. on Con. 615; Amos vs. Ashley, 4 Pick. 71. But Parker being liable on the note with Ervin, and undertaking to discharge the agency, established his liability beyond question. Even if he had been a volunteer in' receiving the money and undertaking to pay it over, his liability would have been fixed.

Hon. William C. B'evbns, Circuit Judge. The court seems to have refused the instruction of the defen* dants below, on the ground that the making of a mark by the testatrix is not a subscribing; and that in case the party signs by making a mark, it must appear that her name was written by one of the subscribing witnesses.

<p>Appeal from Prairie Ci/rcmt Qowrt.</p> <p>I-Ion. JohN J. ClisndeNIN, Circuit Judge.</p>

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

Hon. John 0. Olendenin, Circuit Judge. The second plea was clearly good. Haralson’s bond did not bind him to deliver the negro, if dead. The act of God or the public enemies always did excuse the performance of a covenant, if it thereby became impossible. Ch. on Con. 635; Shep. Touch. 173, 382; The People vs. Manning, 8 Orneen, 297; 4 Picfc. 101; 19 John. Pep. 44.

<p>Error to Washington Circuit Court.</p> <p>Hon. John M. Wilson, Circuit Judge.</p>

<p>On a bill for the spocific performance of ftjcfatract, the contract must be clearly aud unequivocally established befor». n < ourt. of equity will decree its specific performance. In this case, the testimony leaving it in doubt what the interest of the complainant was to be in the lands in reference to which the contract is alleged — that interest being uncertain, indefinable, unascertainable — the bill is dismissed.</p>

Hon. H. F. Fairchild, Chancellor. The court cannot consider the testimony pf Giles and Still-well as of any effect. They were the deputies of the sheriff, and it is attempted to contradict the deed of the sheriff -by their testimony. It seems that the testimony of the sheriff is not competent for this purpose. Biscoe el al. vs. Coulter et al., 18 Ark. 423.

Hon. H. F. Fairchild, Chancellor. Jonathan Lewis, the father, was not a competent witness for the appellee. He was in possession of the property in controversjr, and the effect oí his evidence was to enable him to retain the possession and use of the property. Gresly's Eq. Ev. 353, 354, 358; 2 Cowp. R. 621; 1 Hill (JV. F.) Rep. 100. Another effect was to release him from liability for rents accruing pend-the suit.

Hon. H. F. Fairchild, Chancellor. The records read in evidence, and the deposition of Davies, who was a trustee of the Bank, and one of the committee to consummate this matter with Ware, show that instead of accepting the mortgage, the Bank rejected it, because of the incumbrance created by the deed of trust in favor of Ware’s creditors under which Davies and Johnson now act. Then, if the mortgage was not accepted by the Bank, she has no rights under it.

Hon. William C. Bevens, Circuit Judge. The original interrogatories were not attached to the commission as required by sec. 11, chap. 55, Dig., p. 437; and the copy attached is one that the clerk had no right to make out, the original not being an office paper; so the copy is a nullity. Neither did the certificate of the-justice of the peace state that the deposition .was reduced to writing in his presence, as required by sec. 13, chap. 55, Dig.

Hon. William C. Sevens, Circuit Judge. Whether Fowler’s or Patterson’s purchase shall hold the property, is a question of mere legal priority. Any right that Fowler acquired at the marshal’s sale of 25th January, 1847, was a legal right, and the same remark is to be made of the sheriff’s sale to Patterson. Not Fowler, nor his assignee, Bertrand, has any equity that can make his title any stronger in this court, than it would be in a court at law, in an action of ejectment.

Hon. H. F. Fairchild, Chancellor. Mrs. Beebe should have been made a party to the suit. She had an interest in the suit, and in the decree to be rehdered in it. And the general rule is that persons materially interested, either legally or beneficially, in the subject matter of the suit, are to be made parties, either as plaintiffs or defendants. Story Eq. PL sec. 72; 73, 74, 138; Brodie vs. Skelton, 6 Eng. 120; Bailey vs. Inglee, 3 Paige Ch. R. 278.

Hon. H. F. Fairchild, Chancellor. We shall confine ourselves, principally, to the discussion of the two main leading questions involved. First, was Mrs. Anthony a trustee. Second, if she was, did the court, in the reference to the master for account, make the basis too narrow in excluding matters of personal dealing, and in afterwards refusing to correct the master’s report on exceptions by a re-reference. As to the first proposition.

Hon. H. F. Fairchild, Chancellor. It seems to us that the statute, itself, settles the question, that a voluntary conveyance in favor of a wife cannot be held good against a subsisting debt. Gould’s Pig., 765, 767. What Bender desired to do — to secure these lots against the .pressure of creditors — to provide a home for himself and family that could not be touched or molested by Creditors — was precisely what the law did not allow him to do.

Hon. John J. Clendenin, Circuit Judge. A voluntary conveyance, entirely free from fraud, will be sustained against a subsequent purchaser with notice. Fond. Eg. 213, note g.; Gowp. 431; lb. 708 ; 1 John. Gh. Hep. 2704 Cow. 603. A conveyance directly from the husband to the wile will be supported in equity. Dyer vs, Dean, 15 Arle,. 534; 7 John. Gh. Rep. 62 ; 2 Swanst. 113; 21 Eng. Law Eg. Rep. 559.

Appeal,from Pulaski Ghcmcery Gourt. Hon. Ueiah: M. Bose, Chancellor. The youngest of the plaintiffs was under 24 years of age when the suit was brought; and the right of action of all, continued during the minority of each. The infancy of one heir prevents the limitation as to all. May vs. Bennett, 4 Litt. 311; Lahiffe vs. Smart, 1 Bus. (S. G.) B. 162. The opinion in Lytle vs. The State, If Ark, differs from the above position; but that was the opinion of one judge only.

John J. Clendenin, Circuit Judge. The granting a license to'keep a ferry by the County Court of the proper county, establishes such ferry, and the party to whom such license is granted acquires in such ferry privilege a private vested right. Lindsay vs. Lindley, 20 Ark. 573.

Hon. John C. Murray, Circuit Judge. The clause in the bill of sale which required Templeman & Richardson to take back all unsound negroes, cannot operate to the injury of the defendants. It was, doubtless, inserted for their benefit. But it only expressed what the law itself implied; We cannot suppose it imposed any additional burden upon the defendants of tendering back the unsound negroes. This they eould do, or not do, at their option. 2 Stark. N. P. 162.

Jefferson Circuit Court. Yell, for the appellants, contended that the plaintiffs having a lien upon the slaves in Mississippi, or a right to their possession, under the statute law of that State, had the same right in this State. 1 Admitting that plaintiffs really had complete and full title to the. slaves, yet it was only by virtue of a statutory conveyance (not a voluntary one on the part of the owner), and which operated only on the property whilst it was within the…

<p>'Where a creditor sells the property of several tenants in common as the property of one, buys it all, and asserts, on a trial, his right to the whole, the other tenant in common may recover his interest without proof of the sale or destruction of the property by the purchaser: But this court might infer that such proof was made , where such inference is not excluded by the bill of exceptions.</p> <p>And so where the correctness of the verdict depends upon the fact whether cotton, ginned by a third person, was still in possession of the ginner — he having no lien upon it for ginning, if it was out of his possession — this court might infer that the evidence sustained the, verdict, unless the bill of exceptions excluded such inference.</p> <p>On a motion for a new trial on the ground of newly discovered evidence, this court will infer that proper diligence was not used, where the new witness was one of the joint owners of the property in litigation.</p>

<p>Any question that could be raised upon the overruling of a demurrer to some of the counts of a declaration, is waived by afterwards pleading to the whole declara tion.</p> <p>The obligation of principals to reimburse to securities the money paid by them, is not founded on the bonds which securities give for their principals, but on the express contracts of indemnity which the parties make, or upon the implied promi* ses raised by the law upon the payment of money for another at his request.</p> <p>To refuse an instruction asked for soon after the court had refused one deemed deficient in form but containing the same legal principle, because tendered after the time fixed by the court for the presentation of instructions, is not a proper exercise of the discretion of the court, where the giving it could not injure the opposite party, and refusing to give it was to' deprive the party of the application of a legal principle to which he was entitled by the facts of the case.</p>

<p>Error to Jackson Circuit Court.</p> <p>Hon. Wm. R. Cain Circuit Judge.</p>

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

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

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

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

<p>To a suit upon a note the defendant pleaded, that the consideration of the note was an agreement, signed and sealed, by the plaintiff and her testator, to sell to the defendant their possession as occupants of certain lands, and deliver possession by a certain day, and alleging that possession had not been delivered, and so the consideration had failed: Held, that the plea contained proper subject matter of defence.</p>

<p>Appeal from St. Francis Circuit Court.</p> <p>Hon. Mark W. Alexander, Circuit Judge.</p>

<p>On the trial of an indictment against an overseer of a road, for neglect of duty, if the State fails to prove that the road is a public road, as defined by the statute, the jury must acquit.</p> <p>An order of the county court appointing an overseer for a particular road or district, is evidence that, during the term of the appointment, the road described is a public road.</p> <p>Although, if a private person cut a ditch across a public road and bridge it he may be liable for not Peeping it in repair, that would not excuse an overseer for allowing a dangerous bridge over the ditch to remain in the road.</p> <p>4. On an indictment against an overseer, although the ¡átate may prove that he was appointed overseer, she must also prove that he received notice of his appointment: and if he worked on the road, it is a circumstance from which it may be inferred that he had notice.</p>

<p>An order of the county court appointing an overseer for a particular road or district, is evidence that, during the term of the appointment, the road described is a public road.</p> <p>On the trial of an indictment against an overseer of a public road, the State having shown, by record evidence, that a particular road; by a name other than that given to the one in the indictment, was duly established by order of the county court, may show by parol evidence the identity of the two roads. ’</p>

<p>The depositions falling far short of sustaining the allegations of the bill against the sworn denial of the answer, the bill is dismissed for want of equity.</p>

<p>Ayypeal from PulasJci OJva/ncery Oov/rt.</p> <p>Hon. H. F. Fairchild, Chancellor.</p>

<p>"Where articles of co-partnership provide that one partner Bhall exclusively manage the affairs of the concern, and the other partner violates such provision by intermeddling with them, and losses are thereby sustained, they are to be borne exclusively by the intermeddling party; but upon its being shown that such acts were expressly assented to, the articles of partnership will, in a court of chancery, be considered as waived.</p> <p>Where one partner commits an injury to the individual property of the other, used in the partnership business, the damage cannot be brought into the partnership account — the remedy is by action at law.</p> <p>Partners are not entitled to charge for their services in the business, unless there is a special agreement to that effect, or one can be implied from the course of business.</p> <p>The entries made in the partnership boohs are evidence for and against each partner, unless one has been denied access to them ; and especially are they evidence when supported by the sworn answer of a partner from whom discovery is sought.</p>

<p>Appeal from Ouachita Ovrcuit Court in Chancery.</p> <p>Hon. Lbn B. QreeN, Circuit Judge.</p>

<p>The agent, who pays the taxes upon land for the owner, is a competent witness to prove the payment, on a petition for confirmation by a purchaser of the land at tax sale.</p>

<p>Appeal from Phillips Circuit Court.</p> <p>lion. Mark W. AlexandeR, Circuit Judge.</p>

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

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

<p>The deed of trust, executed by the Real Estate Bank having expressly and plainly fixed the compensation to be allowed the trustees for their services in the execution of the trust, they clearly had no power, by an order passed by themselves, to increase it.; and though it was within the power of the Chancery Court to allow additional compensation, if they had shown a faithful and efficient performance of the duties imposed by the deed, and that the compensation was inadequate, no additional compensation should be allowed where they have not faithfully performed their duties.</p>

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

<p>As upon the death of-a trustee he ceases to be such, and as to him the trust is no longer continued, his indebtedness to the ti'ust becomes a demand against his estate, to be authenticated, allowed, classed and paid out of the assets of his estate, as other demands.</p> <p>The statute of non-claim is a bar to the claims of the State, if not exhibited within the time prescribed by the statute, as in the case of private individuals.</p>

<p>Where the evidence, in a bill for divorce by the husband, fully establishes the fact of adultery on the part of the wife, and that, afterwards, and with a full knowledge of her guilt, he received and kept her as his wife, the law will imply that he remitted her fault and forgave her the violation of her marriage vow — the doctrine of con-donation as acted upon in all English and American courts, where divorces are granted, not being, destroyed by the statute upon divorces.</p>

<p>Appeal from Randolph Circuit Court in Chancery.</p> <p>Hon. William C. Bevens, Circuit Judge.</p>

<p>Where the bond of the sheriff and collector is in a sum less than double the amount of the state and county taxes, the county court has the legal power to require him to give a new bond: and if he fail to do so, he cannot compel the clerk, by mandamus, to deliver to him the tax book.</p>

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

<p>Error to Prairie Circuit Court.</p>

<p>In ease of misjoinder of counts, the entire declaration is bad, and it is error to sustain a demurrer to some of the counts and overrule it as to others — in such cat)'.' the court should, in general, on motion, grant leave to amend by striking out.</p>

<p>Appeal from Jackson Circuit Court.</p> <p>Hon. Wm. R. Cain Circuit Judge.</p>

<p>A court of chancery has no power over the judgments of the County Court except for fraud : where errors have been committed, the remedy is by appeal to the Circuit Court.</p> <p>Where the County Court, instead of requiring a collector to make settlement in March, as as the law directs, when he was solvent, delayed it until October, when he waB insolvent, the sureties are not thereby discharged.</p>

<p>Writ of Error to Jefferson Circuit Cowrt.</p> <p>lion. John C. Murray, Circuit Judge.</p>

<p>Where the court announces that, on the call of the docket, no case would be tried, but all would be continued but such as were undefended, in which judgments by default would be rendered, it is still a regular calling of the docket, within the 63d section of ch. 126, Eng. Dig. — a defendant having made no defense nor employed an attorney has no cause to complain of a judgment by default being taken against him — nor has he a right to an extension of time for trial or for pleading, because of the continuance of causes.standing before his on the docket.</p>

<p>Where incompetent evidence is not objected to, either when offered, or by motion to exclude it, but is presented for the first time as one of the'causes on a motion for new trial, the party merely appeals to the discretion of the court for a favor to be extended to him, and its refusal is not an error of law.</p>

<p>A sub-commissioner reported the measurement and estimates of the value of work done and furnished by M., a levee contractor, and the reports were confirmed by the Board of Swamp Land Commissioners. M. then applied to enter certain lands in part payment of the sum reported due him for levee work, and received from the Secretary of the Board a certificate that he had applied to enter the lands, and also a certificate of the balance due him after deducting the price of the lands. The Board afterwards, on ascertaining that the levee work was insufficient, rejected the reports, and canceled the certificates : Held, that the reports of the sub-commissioner, their confirmation by the board, and the issuance of the application certificate, etc., did not constitute a complete sale of the lands, so to pass the matter beyond the control and revoking power of the commissioners — that they had the authority to cancel the certificatesjon ascertaining the insufficiency of the levee work, of which they were the judges — that a sale by them was not complete until the lands were legally paid for, and a patent certificate issued.</p> <p>Where parties to a contract for the sale of lands mutually manifest an intention to repudiate and abandon the agreement, by a series of acts in hostility to it, neither of them can afterwards enforce the specific performance of the contract in chancery.</p>

<p>The appraisement act of 1840, (Acts 1840, page 58,) applied as well to executions against steamboats, aB where other property was seized; and the defendant’s right to have the boat appraised, etc., did not depend upon his giving bond for the delivery of the boat on the expiration of the stay.</p> <p>The defendants having claimed the benefit of the appraisement act, and the property failing to bring two-thirds of its value, the law made it the duty of the sheriff- to-reserve the property from sale, without any request of the defendant; and if such request be alleged in the declaration in an action on the official bond of the sheriff for proceeding to sell, such allegation is mere surplusage.</p> <p>The granting of permission to file pleas out of time is a matter within the sound legal discretion of the court; and the court may well strike out the plea of limitation where the defendant had neglected to plead for nearly five years.</p> <p>The declaration in a suit upon a sheriffs bond for a tresspass committed in selling the plaintiff’s property, under an execution issued by the clerk of the Circuit Court upon a judgment of a justioe of the peace, having alleged in the breach that the plaintiff in the execution did not cause a transcript of the judgment and proceedings of the justice to be filed in the clerk’s office, such allegation becomes material and traversable.</p> <p>Under the laws of this state, an action on an official bond in the name of the State for the use of the-party injured, is a private suit in all respects and to the same effect as if the party were the nominal plaintiff. And so a replication to the plea of limitation, in an action by The State use of Brown & Bean, alleging that the State had instituted suit against the same defendants, on the same cause of action, the judgment in which was arrested and the present suit brought within a year, is insufficient.</p> <p>Where the action is misconceived — as where an action on the case exdclicto, instead of an action of debt, was brought — it is within the mischief intended to be remedied by sec. 21?, ch. 106, Gould’s Digest.</p> <p>To the plea of limitations in an action brought by The State use of Brown <h Bean, after the period of limitations had elapsed, the plaintiff replied, setting forth an action within the period of limitation, by The State use of Brown against the same defendants, on the same cause of action, and arrest of judgment, and the present suit within a year: Held, that the replication did not avoid the plea: all the plaintiffs in the present suit not having joined in the first.</p> <p>In an action against a sheriff, on his official bond, for abusing the process of execution whereby the defendant in the execution has suffered injury, it is within the province of the jury to allow interest on the valué of the property injured by way of increasing the damages: but it is error in the eourfr to instruct them to allow interest.</p> <p>For the tortious sale of a steamboat by a sheriff, under execution, the owner is entitlod to recover the actual value of the boat as property, though she may havo been unriver-worlhy at the time of the Bale.</p> <p>The death of ono of Several plaintiffs before verdict *and judgment, is not technically a matter in arrest; but if the court is satisfied of the death, during the term, the judgment ought to be set aside, and a judgment rendered in favor of the survivor.</p>

<p>Appeal from, Jefferson Cvrcuit Court.</p> <p>lion. JonN C. Murray, Circuit Judge.</p>

<p>Appeal f rom Ghioot Gircwit Gov/rt.</p> <p>Hon. J. C. Murray, Circuit Judge.</p>

<p>Where a party files a petition for discovery, and uses the answer as evidence, all in it relating to the matter'of the suit is to be considered.</p> <p>In a suit by the widow of the payee, upon notes given to the husband, or bearer, to a petition for discovery, as to the single fact of the transfer of the notes by the payee, the plaintiff answered that she held them, as his widow, under a statute of Louisiana, that gave her the right to, and possession of, the notes: Held, that she might well state her. claim to the notes; and that the answer need not be regarded as an attempt to prove a statute of Louisiana by her own statement.</p>

<p>Appeal from Clark Circuit Cou> t in Chancery.</p> <p>lion. Lest B. Green, Circuit Judge.</p>

<p>The certificate issued by the Board of Swamp Land Commissioners, under Ordinance No. 9, that a party had made application to purchase certain swamp lands and had presented accounts of levee work or scrip in payment thereof, was not a sale of the land — the certificate merely evidencing an application to purchase, which the commissioners might subsequently accept or reject.</p>

<p>Appeal from Pulaski Chancery Court.</p> <p>Hon. URIAH M. Rose, Chancellor.</p>

<p>Where the jury is kept together, from day to day, on the trial of a criminal prosecution, the 'expenses of boarding and lodging them must he treated as a part of the expenses of the court, incidental to the administration of justice, and chargeable to the county ; and it is the duty of the circuit judge to audit and settle the account therefor, and certify it to the county court for payment.</p>

<p>-Appeal from Gonway OircvAt Court.</p> <p>Hon. JohN J. ClendeniN, Circuit Judge.</p>

<p>Where the owner of an improvement on the public land sells his claim, making a relinquishment thereof, whereby the vendee is permitted to locate it in his own name with a land warrant, he will not be allowed to avail himself of the plea of no consideration in a suit for the purchase money, whether the claim of the vendor was valuable or worthless, or a right to a pre-emption or an improvement.</p>

<p>Writ of JEJrror to Pulaski Ciromt Court.</p> <p>Hon. JohN J. ClbkdeNIN, Circuit Judge.</p>

<p>The discretionary power of the court to allow amended or supplemental answers to he filed, unless abused or exercised in violation of established rules, is not the subject of review.</p> <p>Whether the receipt upon a judgment’ and the entry of satisfaction upon the execution thereon, be a valuable consideration for land, or not, the payment of over two hundred dollars in money, in addition to such receipt and satisfaction, would be a valuable consideration; and equity will not enquire whether it is an adequate consideration; at least, in favor of one who had purchased at a merely nominal price.</p> <p>The court can find no adjudged case nor is it laid down in the text books, that a purchaser must hold under a general warranty deed to entitle him to protection as an innocent purchaser without notice; but it is no doubt the law that where a person bargains for and takes a mere quit claim deed, or deed without warranty, it is a circumstance, if unexplained, to show that he had notice of imperfections in the vendor’s title, etc.</p> <p>The bill charged that K., a judgment debtor, made a fraudulent arrangement with F., by which the latter purchased the lands of the former, with his money, at execution sale, and held them for his use and benefit, to prevent the lands from being sold to satisfy other judgments against him, and that the defendants, subsequent purchasers of F., had notice of the fraudulent arrangement; which was positively denied by the answer; Held:</p> <p>1. That in the absence of allegation and proof, as to the possession of the land, the presumption, if indulged in, is that possession was with the legal title.</p> <p>2. That to make the insolvency of the judgment debtor a circumstance from which to infer notice of the fraud, it was necessary to prove that the defendants had notice of the insolvency at the time of the purchase.</p> <p>8. That though the acceptance of a special warranty deed may be a circumstance from which to infer notice, it is liable to explanation — as that the defendant’s attorney, upon examination of the title, believed that a good legal title might be made to his clients — the payment of a fair price, etc.</p> <p>4. That the facts, that the negotiation for the purchase of the land was made by K., the judgment debtor, and the entire consideration paid to him, and the deed executed by E., are strong circumstances from which to infer notice of the fraudulent arrangement between the parties; but the force of these circumstances is overcome by the positive denials of the answer and the uncontradicted testimony of the attorney, etc.</p>

<p>The defendant purchased lands, for R., of S. and F. &B., agreeing with S. to stand in the place of R. if he did not ratify the purchase: R. declined to take the lands and conveyed them to the defendant, who assumed to pay and did pay the purchase money; the defendant was a member of the firm of F. & B., though not interested in the lands nt the time of the purchase, but afterwards retired from the firm, settling up his co-partnership business and accounting for the unpaid installments of the purchase money. Afterwards, F. & B. became indebted to the plaintiffs, who caused an attachment to be laid on the lands, bought them under'execution, and filed a bill against the defendant, who was in possession of the lands, praying that his deed be canceled, and that the title be vested in them, on the ground that the sale was a contrivance to defraud the creditors F. & B:</p> <p>By the Qourt: Upon a careful examination of the allegations and proof, we find no evidence showing that the 'defendant, who was not a voluntary grantee of the lands, and who had the right to take the place of S. as against the vendors, when he declined to take the lands, is chargeable with any fraud in the purchase of the lands, or with being engaged in any scheme to appropriate them to himself without consideration, or to the disadvantage of subsequent creditors of F. & B., or of any person.</p> <p>By Mr, Justice Fairchild: A court of chancery will not interpose its assistance to support a mere legal right, but in two classes of cases — as where ajudgment creditor being unable to make his debt by execution, seeks to Bubjeet to its payment a debt, or thing in action, or equitable right or interest, which the common law remedy cannot reach ; and where his judgment, or execution, is a lien on property covered by a fraudulent conveyance, or by a mortgage or incumbrance which he is willing to redeem or remove.</p> <p>Where a party has purchased lands under ajudgment and execution, which have been fraudulently conveyed to a third person, he may appeal to the suppletory jurisdiction of a court of chancery, asking that the deed be pronounced fraudulent, so that he may perfect his lien by legal proceedings.</p> <p>It is apparent, upon principle and authority, that a bill setting forth a legal claim to lands of which the plaintiff is not in possession, against the claim of one in possession, cannot be sustained, either as a bill for general relief, or as a bill to remove a cloud from the title of the plaintiff under the quia timet jurisdiction of a court of chancery, though it allege that the title which clouds that of the plaintiff was a contrivance to defraud creditors]</p> <p>The cases of Ringgold vs.Waggoner, 14 Ark. 69; Mitchell vs. Fitter, 22 Ark. 184, and Shell vs. Martin, 19 Ark. 141, commented upon — the decrees in the first two approved, in the latter disapproved.</p>

<p>Appeal from, Clarh Circuit Court, in Cha/ncery.</p> <p>Hon. Len B. Green, Circuit Judge.</p>