Volume 24 — Arkansas Reports

<p>Petition for Mandamus to lion. J. J. Clendenin.</p>

<p>Appeal from, Sevier Oweuib Oouvt.</p> <p>IIon. Len. B. Gkeen, Circuit Judge.</p>

<p>The declarations and representations of one person, that another was his partner in the purchase of goods, are not admissible to charge the latter, unless tliero be a sufficient foundation laid for the admission of such declarations. (Berry vs. Barnes et al. 23 Ark.,411.)</p>

<p>Appeal f rom Union Cvreuit Court.</p> <p>lion. LeN B. Green, Circuit Judge.</p>

<p>Motion to quash Writ of Error.</p>

<p>Error to Monroe Circuit Court.</p> <p>Hon. Earl C. Bronaugh, Circuit Judge.</p>

<p>A widow is entitled to dower in the undivided estate of her deceased husband, held by him and others as tenants in common — and so if the estate be a^p¿nt ten aney, as held in Menifee vs. Menifee, 3 Mng., 60. .¿f"' ,</p>

<p>The failure of an executor or administrator to present bis account, annually, for settlement in the probate court, as prescribed by the statute, is a breach of tho condition of his bond, for which any person interested in tho estate may maintain an action: but by no rule of construction can it be held, that the statute fixes tho measure of damages at tho entire value of the estate in the hands of tho executor or administrator.</p> <p>A porson interested in tho estate may recover suoh damages as he has sustained by the failure of tho administrator to malee his settlement. If no special damage is alleged and proven, he cun then recover only nominal damages.</p>

lion. H. F. Faikohild, Chancellor. The ground- relied on for the appellant in this case is, that although it might be true that by the hypothecation of the 500 Keal Estate Bank bonds by the North American Trust and Banking Company, to Holford, he became subrogated in equity to any claim of the Trust Company against the Beal Estate Bank, for moneys advanced upon them in the first instance ; yet Holford was a party to the suit brought in New York for marshaling and…

<p>Appeal from Independence Circuit Court.</p> <p>Hon. W. C. Bevens, Circuit Judge.</p>

<p>Whore there aro two pre-emption claimants of tho same tract of swamp land, and one of thorn is allowed a pre-emption right by the land agent and obtains the legal tillo, no fraudulent or illegal conduct on his part in obtaining the title can prejudice the other unless the right of the latter was prior in time and superior in equity; and so, in deciding upon the rights of parties in such ease, it is the province of the court simply to determine whether, ®n account of fraud in the one obtaining the legal title perpetrated against the other, the latter was prevented from obtaining tho title, which was equitably due to him, without regard to the soundness of the pre-emption claim of the successful party.</p> <p>To entitle a party to a pre-emption of public land, his improvement must exist at the time of the application, under the law, to make the entry — if an improvement once made be destroyed, it cannot be considered as such.</p> <p>It would seem to be a perversion of terms to call land improved so as to entitle a party to a pre-emption, where tho whole existing improvement was an acre of ground deadened some four years and so grown up with vines aud bushes that it would be as much trouble to prepare it for cultivation as if it were enliroly wild land.</p>

<p>Wliero the owner of land, in making a doadoning upon it, to increase its market valuó and throw it sooner into market, extends the deadening over his lino upon tho public land, without any design of set-tlomont upon or improvement of it, especially if the improvement is of little amount and value, ho is not entitled, under the act of 16th January, 1856, to bo a preferred purchaser of the land.</p>

<p>The court can exorcise no jurisdiction in review of the acts of swamp laud agents in pre-emption eases : but if a person makes use of an official act to perpetrate a fraud upon another, ho shall be deprived of any benefit that has thereby nc- . crued to him to another’s prejudice.</p> <p>Attaching equal credibility to the statements of the witnesses on both sides, the whole testimony does not preponderate in favor of the plaintiff. In such case better is the condition of the defendant, and his legal title having been acquired without fraud upon the plaintiff, must prevail.</p>

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

<p>Error to Monroe Circuit Court.</p> <p>Hon. George W. Beasley, Circuit Judge.</p>

<p>A collector is entitled to commissions only when lie collects the taxes; and i'f- he fails to take the tax book, and it is delivered to his successor, he has no claim for commission on the taxes collected ‘by his successor.</p>

<p>Error to Drew Circuit Court.</p> <p>Hon. Join* C. Murray Circuit Judge.</p>

<p>Appeal from Ghieot Oireuit Court.</p> <p>Hon. Josiah Gould, Special Judge.</p>

<p>The rule established in England is, that if the complainant means to roly on the admissions, conversations, or confessions, of the defendant, whether oral or written, as evidence of facts charged in the bill, the bill must also specifically charge what those admissions, etc. are and to whom made; but, under the practice in this state, it is not necessary that the bill should contain any specific charge as to such admissions or in any way indicate that they will be relied on as evidence.</p> <p>The notice to take depositions, to a party non-resident of the state, may, under the statute, be served on his attorney of record, and the fact, that it is inconvenient to the attorney to attend, cannot affect the sufficiency of the notice, or furnish any ground for suppressing the depositions.</p>

<p>Appeal from Washington Ci/reuit Oourt m Ghcmeery.</p> <p>lion. JohN M. WilsoN, Circuit Judge.</p>

<p>It was within the power of the convention of 1S61, to continue in office any or all of the officers deriving their authority from the old constitution until their terms expired, or for any shorter period;-or to permit their tenures to expire with the existence of the instrument under which they held them, and to have appointed persons to fill the offices provisionally, until elections could be had and appointments made under the provisions of the new constitution.</p> <p>Under the present constitution, the state senators in office at the time of its adoption, were to continue to hold their offices until their successors should be elected.</p> <p>The constitution of 1861 provides for the election of successors of the senators of the first class, on the first Monday of October, 1862, and for the election of the successors of senators of the second class, on the first Monday in October, 1864.</p> <p>It was an error to elect all the senators at the general election in 1862, when only the successors of the first class should have been elected and vacancies in the second class, if any existed, filled.</p> <p>Oates belonged to the second class of senators, and his term expired by law in 1864: after the adoption of the present constitution he was not ineligible to the office of secretary of state, by reason of being a state senator.</p>

<p>Appeal from Hempstead Circuit Court.</p> <p>IIon. Len. B. Green, Circuit Judge.</p>

<p>The act of January Id, 185'/, amending the charter of the Mississippi, Ouachita and Red River Rail Road Company, sanctioning a material and unwarrantable departure from the route of the road as designated in tho original charter, having been accepted by the president and directors of the corporation, acting by authority of a majority of the stockholders, was binding on such of the stockholders as solicited or assented to the passage of the act; but such stockholders as did not assent to it were released from their contracts of subscription. (Witter vs. M., 0. & JR. £. JR. R. fía„ 20 Arle., 490.)</p> <p>An act of the general assembly altering the charter, to be binding on all tho stockholders, must be accepted by a vote of the majority of the stock, exclusive of that taken by tho stale, at a meeting of the stockholders regularly convened for that purpose, as provided by tho 21st section of the original charter of tho company. Ib.</p> <p>The charter of a private corporation is an executed contract between the government and tho corporators, and the legislature cannot repeal, impair or alter it in a matter materially affecting the interest of the corporators against their consent, or without the default of the corporation judicially ascertained.</p> <p>Tho board of directors may act for and represent the stockholders in matters within the scope of the powers conferred upon them by the charter; but when they undertake to aocept a legislative amendment of the charter, they act beyond the scope of their authority, and their act is not obligatory upon the corporation.</p> <p>The plea, failing to show that the act of 14th January, 185‘l, changing the provisions of the charter, as to the location of the road, was so accepted as to make it valid and binding on the corporation, held bad on demurrer.</p> <p>If the directors were proceding to apply the funds of the company in building tho road on a line materially variant from that designated in the charter, the defendant had his remedy by injunction. (M., 0. & JR. R. JR. R. vs. Gross, 20 Ark., 443.)</p>

<p>Appeal from Popa Circidt Court.</p> <p>lion. JohN J. Ci,endentn, Circuit Judge.</p>

<p>In a suit for title to land, the party in possession failing to make good his title, cannot be allowed for improvements more than the value of tho rents.</p>

<p>Appeal from Hempstead Circuit Court in Chcmcery.</p> <p>Hon. L. B. GeeeN, Circuit Judge.</p>

No appeal was taken on the principal judgment against King; and of course that wa3 a valid and subsisting judgment, and record evidence of the debt, which could neither be enquired into or impeached in any collateral proceedings. Borden vs. The State, 6 Bng., 519.

Hon. Lew B. OiiseN, Circuit Judge. The decree assigning dower to the widow in each specific tract of land, is disastrous to her; and Pike is injured by it because it is an unwise restriction, a clog and incumbrance upon the advantageous sale of his share or interest in the land. It is quite plain that Pike and Underhill entered into a land speculation in partnership. Their agreement constituted them partners quoad the proposed land investment.

The plea of the statute of limitations is admissible in all cases, both in law and equity, where the facts support it; and will not be disallowed on account of any supposed odiousness to it in the particular case. . During the pendrenc^ of the appellee’s suit for freedom, she was a free woman, and might at any time have brought her suit in trover; and as by her laches she has permitted the statute bar to become complete, she must bear the loss.

Hon. IJ. M. Rose, Chancellor. Two points are submitted to the consideration of the court for the reversal of the decree herein: 1st. That the improvement upon which appellee bases his right of pre-emtion was not on the quarter section in controversy. 2d. The accrual of the right of appellant to a pre-emption on the land, is prior in date, and therefore paramount to that of ap-pellee.

<p>The county court has jurisdiction to render judgment against a delinquent collector or his sureties, for the county revenue which he has collected and failed to pay over as required by law. (Goultfs Big., ch. 14/1, secs. 3Í-45; Lawson vs. Pulaski " county, 3 Ark.; Goree vs. State, 22 ib., 235; Jones vs. State, 14 ib., 1Í2.)</p> <p>A statement made by the clerk, in the transcript sent to this court, that a notice ■ ordered by the court had been issued, but had been mislaid, is no evidence of that fact.</p> <p>No notice to the delinquent collector of the preliminary adjustment of his accounts is necessary, hut he must have notice before final judgment. (Trice vs. Crittenden county, 2 Eng., 162; Carnall vs. Crawford county, 6 ib., 623.)</p> <p>A scire facias issued against the collector and his sureties, after a preliminary adjustment of his accounts, commanding thSm to appear and show cause why judgment should not he rendered against them for the moneys due the county, etc., and duly served before final judgment, is a sufficient notice.</p> <p>The securities in a collector’s bond are liable for the nmonnt of the penalties imposed upon him for his delinquencies.</p> <p>The county court properly imposed the penalty of twenty-five per centum upon the amount of revenue found to be due, and fifty per centum per annum thereon.</p> <p>(Carnall vs. Crawford county, 6' Eng., 625.)</p> <p>The funds arising from county licenses, fines and forfeitures, constitute a part of the revenue of the county; the collector is required to settle with the county court ’ therefor; and on his failure to do so, his securities are liable for the same. (Law sori vs. Pulaski county, uhi sup.)</p> <p>The sureties in a collector’s bond given for the year 1869,are not liable for monej-s collected for 1860.</p> <p>It appearing in this case that a part of the moneys had been collected for 1859 and and apart for 1860, and that the collector had paid over an amount exceeding the sum collected for the latter year, which amount was duly credited to him in rendering the judgment: it does not affirmatively appear that the collector and his sureties were charged in the final judgment, with any revenues collected after the year 1859, which was the period of responsibility of the sureties.</p> <p>There being no evidence as to whether the sums paid by the collector were appropriated in the adjustment of the accounts, to the payment of the amount due for the year 1860, the court must presume in favor of the correctness of the judgment of the county court. (Lawson, ex parte, ubi, sup.)</p> <p>In entering the final judgment, the county court did not credit the collector with the two last payments, but directed them to be credited on the execution. Held, That it would have been proper to have given credit for them in entering the judgment; but the direction that they should be credited on the execution was in effect the same, the penalty only being upon the remainder of the judgment _ after the deduction of these payments.</p> <p>The sureties were not released by the failure of the county court to compel the collector to settle at the time required by statute. (Christian, ex parte,23 Ark., 641.)</p> <p>The transcript showing that the proceedings were had “ in the county court of the county of Ashley, the Hon. R. T. Harris, judge, etc., presiding, assisted by Esq’s. John Hill and Samuel H. Moore,” it will be presumed that the two last named persons were the associate justices.</p>

Hon. JohN C. MüRRAy, Circuit Judge. In this case, there is neither allegation nor proof that Loring had any estate or interest of any character in, or even any pos session of the lots on which the building was erected. Brown vs. Morrison, 5 Aria. Hep., 217. Gould’s Dig., ch. 112, seo. 1. The lien given to the mechanic is dependent upon his compliance with the requirements of sections two and three of the statute.

Hon. M. W. AlexaNdeb, Circuit Judge. No person but a free white citizen of this state can claim the benefit of the homestead exemption. Sec. 29, ch. 68, Could’s Digest. We maintain that no one is a citizen unless he is a citizen of the United States.

lion. LibeRtt Bartlett, Circuit Judge. ^ In construing the constitution in reference to the qualifications of electors, the intention of the convention may well be inquired into; and the intention of the convention not to confine, absolutely, the qualifications to those enumerated in the constitution may well be inferred from the fact that, in an election directed by the convention, other qualifications were prescribed. Sec. 2, article IV, State Constitution.

Hon. Libbkty Bartlett, Circuit Judge. 1. These several cases were not consolidated in the circuit court, nor before the justice; and were as separate and distinct as if between different parties or in different courts. 2. Each one of these claims seems to be upon a wholly separate and distinct cause of action. Berry vs. Dmton, 1 Arle., 251. 3.

Hon. W. B. CaiN, Circuit Judge. There being no question of law reserved, this court will not reverse the judgment upon the mere weight or preponderance of evidence, unless the verdict shocks one’s sense of justice. 15 Arle., 403; 18 id., 598; 19 ib., 559.

Petition for Habeas Corpus to admit to bail. An. indictment for a capital offence does not raise a presumption of guilt against the prisoner so strong as not to be rebutted by him; and upon an application to be admitted to bail, the court may go behind the indictment. White, ex parte, 4 Eng., 222.

Hon. LibeRty Bartlett, Circuit Judge. The words “ for value received,” were a material part oí the note and should have been averred in the declaration, as descriptive of the contract. 10 J. B., 418; Lawes Assumpsit, '78-9,106; 6 Bast., 567; and especially Bossiter vs. Marsh, 4 Conn., 198. The case of Matlock vs. Purefoy, 18 Ark., 493, we respectfully submit, is erroneous.

Hon. Liberty Bartlett, Circuit Judge. Defendant’s special plea was a plea in abatement, (1 Oh. 440, 461, note; Staph. PL, 49,) and should have been stricken out because not sworn to. 5 Ark., 140, 522; 14 ib. 27.

The complainant offers in his bill to withdraw all defence at law and submit to judgment for the reason that his relief is alone in equity; and therefore the rule in Gonway vs. EUison, 14 Arh., 360, is not applicable in this case. The contract to re-purchase is not a nude or naked contract, without consideration; but is as valid and binding upon the parties as the original contract of sale.

lion. Liberty Bartlett, Circuit Judge. The uniting of two notes in one petition in debt is not authorized by the statute (Digest, 838,) and this proceeding being in derogation of the common law, the statute must be strictly construed. It the two notes could be sued on in one petition, they must be considered as separate counts; and the court erred in instructing the jury that if Hanger applied his seal to either of the bonds they must find the issue for the plaintiff.

<p>Appeal from Pulaski Circuit Court.</p> <p>Hon. Liberty Bartlett, Circuit Judge.</p>

<p>When a contract is reduced to writing in plain, definite and -unambiguous terms, and accepted by the parties as the sole evidence of the contract, neither party will be permitted to introduce parol evidence to alter, or vary its terms or meaning; nor will any conversations, or declarations, either before, at the time, or after the contract is reduced to writing, be admitted to modify or contradict its plain import. (13 Arle., 449-598; 15 ib., 648.)</p> <p>And so, in a suit upon a noté given for the payment of so many “dollars,” a plea setting up that the consideration of the note was property to be paid for in Confederate States money, and that when the note was given it was understood and agreed between the parties that the word “ dollars ” therein should be understood to mean “ Confederate States money,” held bad on demurrer.</p>

Hon. LibeRtt Bartlett, Circuit Judge. The action of replevin lies in favor of any one having the right of possession; but there shall be no cross replevin, nor for property in the possession of an officer by virtue of any legal authority. In this case there was no cross-replevin, the plaintiff being a stranger to the other suit. See opinion of Piatt J. in Ciarle vs. Skinner, 20 John. 466, and cases cited.

<p>Appeal from Lawrence Ci/reuit Court.</p> <p>Hon. W. B. Cain, Circuit Judge.</p>

Hon. Thomas Boles, Circuit Judge. Admitting that, as the erroneous instructions of the court were not made the ground of the motion for a new trial, they are not to be… Held: the property was wasting and liable to be totally destroyed; that it was entirely abandoned, and the request of the only person interested, was sufficient authority to him to preserve and sell it, and that he should not be held responsible for the subsequent loss, without his fault, of the proceeds.

Hon. Thohas Boles, Circuit Judge. That there was a variance between the obligation sued on and that given on oyer, referred to Baekett vs. Spencer, 29 Barb. {1SÍ. Y.) Rep., 180; Jones vs. Brown, 11 Ohio, (W. S.) 601; Cornell vs. Moulton, 3 JOenio, 12; 8 John., 189, 375; 2 McCord, 246.

<p>It is error to entertain a motion to strike a case from the docket, setting up matter of justification in an action of trespass, which can be availed of, if at all, only by special plea.</p>

Hon. Liberty Bartlett, Circuit Judge. The objection to the affidavit that it was made on the belief of the affiant, is settled by the case of Heard db Co. vs. Lowry, 5 Arle., 524-525. All that the statute requires in the affidavit is that the defendant is about to remove his goods, etc., not that they are being removed.

<p>The 6th section of the act approved 31st May, 1864, providing that certain classes of persflns therein described, shall be barred from the collection of their debts in this state, - is in violation of that clause of the constitution of the United • States which declares that no state shall pass any law impairing the obligation of contracts.</p>

Hon. Libeety Bartlett, Circuit Judge. The whole question is as to the sufficiency of the delivery, which is essential to the validity of the instrument, though the manner is not material. It is a question of intention, and,should be left to the jury. 11 Verm. 621. A deed found in the possession of the grantee will be presumed to have been delivered. 1 McLean, 321; 6 Mo. 326.

Hon. Libeety Bartlett, Circuit Judge. The amendment should have been allowed only on payment of costs, and a continuance of the case, that the defendant might have opportunity to plead to the amended' declaration. 2 Hay. N. C. E, 282; 3 Wendell, 361; CiVp. B., 139. It was clearly within the discretion of the court to allow the amendment, uiider seo. 113, oh. 133, p. 862, of the Digest,. as construed in Stillwell, Ex. vs. Badgett, 22 Arh., 166.

'Hon. Elias Harrell, Circuit Judge. A witness, whether interested or not, testifying against his interest is competent. Brown vs. Burlce, 22 Georgia, 574; Lof-lin vs. Wally, 24 Texas, 565 ; McCanon vs. Cassidy 18 Ark., 48. When the witness is equally liable, he is competent, Caldwell vs. Meek, 17 111., 220; 6 McLean, 463; 1 Greenleaf, p. 536, sec. 391. The testimony as to the conversation occurring after the sale was clearly incompetent.

Hon. LibeRty Bartlett, Circuit Judge. It is hardly necessary to cite authorities to show that the parol testimony offered to show that Logan was colonel, was improperly excluded. 1 Qreenleaf’s Evidence, 83; and authorities there cited are full and conclusive. See, also, 1 Green. Ev., 518. To establish the fact that Col. Logan was a legally constituted officer, his commission was the best evidence and ought to have been produced. 1 Oreen, on P/o., 82.

<p>Error to Carroll Circmt Court.</p>

<p>Appeal from Arkansas Circuit Court.</p> <p>Hon. W. M. Harrison, Circuit Judge.</p>

Hon. LibeRtt Bartlett, Circuit Judge. Request and demand of tbe property before suit is necessary. Storm vs. Livingston, 6 John., 44; Barrett vs. Warren, 3 Hill, 348. When tbe possession was rightful at its inception, tbe plaintiff in replevin must make a demand before bringing his suit. Gilchrist vs. More, 7 Clark, 9; Newman vs. Jonne, 47 Maine, 520. See also, Pirani vs. Barden, 5 Ark., 81; Beebe vs. JDeBa/wn, 3 Fngr, Hill vs. Robinson, 16 Ark., 90.

lion. L. L. MacK, Circuit Judge. The special plea was no defence to the action. It was bad in substance. The decision of this court, at the present term, in Roane vs. Green & Wilson, settles the point that the plea is bad. The plea being bad in • substance, though the defendant took issue to it after his demurrer was overruled, he was entitled to judgment, Dickerson vs. Morrison, 1 JEhg. Rep., 264, and cases cited. Hughes vs. Sloan, 3 Eng. Rep., 146.

<p>On appeal from the judgment of a justice, the surety is not responsible beyond the penalty of the recognizance, If the finding in the circuit court exceed the penalty, the appellee may elect to release the excess and take judgment against both principal and surety, or take judgment against the principal alone for the amount found, and pursue his remedy on the recognizance against the surety.</p>

ITon. LibeRty Bartlett, Circuit Judge. After the property taken in replevin has been turned over to plaintiff, a party other than the defendant may replevy the same from him, or any one holding under him. 7 Monroe, 427; 3 J. J. Marsh. 124; 4 B. Mon., 93. In this case Morris was not a party to the original suit; and the rule is stringent that a plea in abatement must' show that the other suit pending is between the same parties for the same cause of action. Bao.

<p>Application for Bail.</p>

Hon. LibeRTY Bartlett, Circuit Judge. The main point is, whether, under the general averment of demand and notice of non-payment, evidence of circumstances dispensing with such demand and notice is admissible.

¥i. M. HaeeisoN, Circuit Judge. This suit was brought by Campbell a non-resident for the use and benefit oí ¥m. A. Coit a resident of the state, and hence no-bond for costs was necessary. Dig., ohcvp. 40, sec. 1; Palmer use etc. vs. Hioks, 17 Arle., 505; State use etc. vs. Lawson, 5 Ark., 665; 3 Ark., 142.

<p>This court has no jurisdiction by appeal, unless the prescribed affidavit is filed( or waived of record.</p>

<p>'Where the transcript of a judgment of a justice of the peace is filed in the circuit court and entered in the judgment docket, the statute of limitations commences to run from the time of such filing and entry, and not from the date of the justice’s finding.</p>

Hon. LebeRty Bartlett, Circuit Judge. We respectfully submit that the proposition, that the judgment upon which the execution was issued was rendered by a court whose acts were made void by the preamble to the' present constitution of the State of Arkansas, is contrary to law. The preamble to the constitution does not, ex vi termini, admit of such a construction; nor can the same be given to it by any fair intendment.

Hon. ¥m. M. Harrison, Circuit Judge. The question raised upon the demurrer to the first plea, is, did the proclamations of the president of September 1st, 1862, and January 1st, 1863, operate to make the negro free so that would cease to be a valid consideration for a contract. It is suggested that the president, as commander in chief of the army, and a military necessity existing, might in the absence of law make his wish the law of the land.

W. M. HaebisoN, Circuit Judge. If this case is to be tested by the laws of war, the. re-cap ture of the mule by the confederate scout, and restoration of it to Taylor, restored his title. If it is to be tested by the opinion of Chief Justice Chase in Mrs. Alexander’s cotton case, 2 Wallace, 420, there was no showing that the mule was subject to capture under the act of congress — no showing that Taylor’s title was ever divested by any legal seizure or confiscation.

<p>Appeal from Saline Circuit Oow't.</p> <p>lion. Liberty Bartlett, Circuit Judge.</p>

Hon. 3L H. Powell, Circuit Judge. The circuit court erred in empanneling upon the jurymen who were disqualified by prejudice, to act as impartial jurors. The legal rights of the negro in the courts when charged with crime are the same as the white man’s; and a jury as impartial and unprejudiced must be awarded to him as is accorded to the white man.

lion. LeN B. (xkeeN, Circuit Judge. Eelease by parol even of a sealgd instrument is sufficient, a fortiori, a parol release is good in this case which is a mere simple contract. Dearborn vs. Cross, 7 Cowan, 48: The contract was discharged so far as appellant is concerned for a full and valuable consideration; and the party absolutely discharged by substituting a new security who was accepted. The defendant attempted to set up a release of the claim sued on in parol.

Hon. William 1VI, HajíbisoN, Circuit Judge. The pleas set up that the instrument sued on being payable at 'a particular place, should have been presented at that place before suit brought, and that the declaration should so aver: and there is no doubt of the correctness of this. Byles on Bills, (3d Amer. Bel.) 166-7-8; Gohen vs. 'Hunt, 18m. & Mar., 227.

<p>Appeal from Hempstead Cwcuit Court.</p> <p>Hon. Thomas Elliott, Circuit Judge.</p>

<p>Application for Mandamus.'</p>

lion. James T. Elliott, Circuit: Judge. We think none of the grounds taken in the demurrer, separately or collectively, to be well taken. The bill shows that the pretended consideration of ten thousand dollars in the deed of conveyance was not paid in money, as appears prima facie, but in negroes at that time free. Vau-(jine vs. Taylor et al-, 18 Ark., 18.

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

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

<p>So far as the answer of the defendants is responsive to the bill, replying to it in the negative and positively, and not admitting it and seeking to avoid the effect of the allegations and admissions by counter allegations, it is the testimony of the defendants in their .own behalf, and must prevail unless overweighed by other- testimony.</p> <p>Two witnesses, or one whose testimony is well corroborated by circumstances, are necessary to overweigh the direct testimony of a respondent so given.</p> <p>. At the same time the answer is no more sacred than the testimony of a disinterested witness.</p> <p>And its credit may be wholly destroyed by equivocations, evasions, concealments evident on its face, contradictions, improbabilities, or any other of the many defects and vices in evidence which often make the most positive statement of a witness weigh little or nothing.</p> <p>Green’s executor having filed a cross-bill to subject certain lands to execution at law, the defendants being father and son, answered that after the bond for title had been made, whereby the father acquired a right to the land, he made a transfer of the bond and delivery of-possession of the land to the son: Held, that this was matter in avoidance which the defendants must prove.</p> <p>The father having denied that he purchased the land for himself, States in his answer that “ he may or may not have told his vendor that he was purchasing for himselfthis being in regard to a matter within his own knowledge, and not being a denial, is in law equivalent to an admission that he did so state.</p> <p>The answer of one of the defendants being evidently untrue as to a certain statement of a fact within his Qwn knowledge; the maxim falsus in uno falsus in omnibus applies, and his testimony ceases to be entitled to any credit whatever.</p> <p>The defendant must take the privilege of being a witness for himself cum onere, subject to all the rules and principles of the law of evidence by which the law strives to guard against the dangers of perjury.</p> <p>He must be careful to testify fairly, frankly, ingenuously, fully, and it is the duty of his solicitor to see that he does it.</p> <p>A claim against the estate of a deceased person cannot be verified by the affidavit of an agent.</p> <p>Execution having been levied on certain lands as the property of the defendant in the judgment at law, the son of the defendant filed a bill in chancery to injoin the sale, claiming the lands as his own, asserting that they had been conveyed to him by his father. Many circumstances combining to show that this alleged conveyance was merely colorable and intended to hinder and delay the creditors of the father, the same is held to be void.</p> <p>The creditor having filed a cross-bill to subject the lands to the payment of his debt, the court below, in decreeing the sale from the father to the son to be fraudulent and void, should have further decreed that unless by a day fixed, the defendants in the cross-bill should pay the plaintiff the amount of the debt, damages, interest and costs adjudged at law, and also costs on the original and cross-bill, the lands, or so much thereof as as should be necessary, Bhould be sold by a commissioner.</p> <p>The proceeds of such sale should first be applied to payment of the costs on the original and cross bill and the expense of executing the decree, and the residue should be applied to the payment of the judgments at law, and the surplus, if any, should be brought into court.</p> <p>Should the proceeds of such sale fail to produce satisfaction of the costs and judgments at law, the creditor should be remitted to his proceedings at law for the collection of the residue by execution or garnishment.</p> <p>Damages on the dissolution of an injunction can only be awarded by the court where money is injoined, and then “ on the amount released by the injunction.”</p> <p>The suit on the original bill in the case not being to enjoin the collection of a debt generally, but only to prevent the sale of particular property for payment of it, damages should not have been awarded by the court below on dissolving the injunction.</p> <p>And the court below having erred in this respect to the injury of the appellant, the appellee must pay all the costs accruing in this court, although in other respects the decree entered in this court be in his favor.</p>

<p>When any of the defendants in a chancery suit are minors, the court is the guardian of their rights, and must give them here as well as below, the benefit of every ground of defence of which they might have availed themselves by demurrer or by general and particular denial of the allegations of the bill.</p> <p>Nor would they, not demurring, nor even if the objection were not made at the hearing, lose the benefit of an objection to the jurisdiction of the court that would have been valid on demurer.</p> <p>Where a party has the only or better legal title to land, he may obtain or regain possession by an action of ejectment if he is out of possession; and it is reasonable that equity should decline to interfere where he may obtain all the relief he needs at law. (Apperson, vs. Ford, 23 Ark, Í46.)</p> <p>If he be in possession, then, as he can bring no action at law, it has been held that he may ask a court of equity to remove a cloud upon his title which makes it less valuable, or may prevent his disposing of it to others.</p> <p>But where one holding an equitable title only to lands, or a junior legal title with prior or superior equities, comes into a court of equity to impeach or cancel, or compel a conveyance of, the senior or better legal title, the jurisdiction of the court in no wise depends on the question of possession.</p> <p>And in each case the court of chancery will have jurisdiction though no fraud is charged the bill.</p> <p>Depositions read before the register and receiver of the United States land office could not be read in this suit in chancery, unless it wore shown that the witnesses were dead or beyond the reach of the process of the court.</p> <p>A person conveying lands by a deed containing the words “grant, bargain, sell and convey,” is not a competent witness for his grantee in a suit between such grantee and a third person concerning the title to the lands.</p> <p>When, on an appeal from a decree in chancery the question presented to this court is one simply of fact, it is precisely as it would be if the parties had had it tried before a jury on an issue out of chancery, and the verdict being against the appellants, their motion for anew trial had been overruled.</p> <p>Even if we thought the weight of the testimony was against the finding, we should not disturb it, unless it was palpably and glaringly wrong.</p> <p>If there is merely a doubt, or a preponderance of testimony one way or the other, the finding below must remain conclusive.</p> <p>By the words of the act of congress of September 28, 1860, all the lands in the-state which were swamp and overflowed, and thereby unfit for cultivation, immediately passed to and vested in the state.</p> <p>The provisions of the 6th section of the act of January 11, 1861, must be construed to be a consent on the part of the state to receive from the United States the purchase money paid to the latter for only such of the swamp lands as the state could rightfully relinquish; and not for any which any person might obtain a right to as against the state before the purchase of the same by another from the United States.</p> <p>Under the act of January 11, 1851, a levee contractor had a preference right of' entry to lands in the rear and adjacent to his front lands ; and he might make his selections before he had completed his levees.</p> <p>The law of January 6, 1861, did not say that he should not select his land until after hediad finished his work; but only that when he had done both he should furnish the numbers of the land to the commissioners, and receive from them a certificate.</p> <p>When he had finished the work, if he had selected the lands and furnished the numbers to the commissioner, his right to the land was complete, whether he ever obtained a certificate or not.</p> <p>No matter at what date he selected the lands; if he finished the work, in whole or in part, and the commissioner approved and received it, and the amount due for it was enough to pay for the lands, they became his, and his title, if necessary, as against any intervening purchaser or claimant, would relate to the 11th of January, 1861, on which day the right of preference in building the levees and taking these lands in payment vested.</p> <p>His right of pre-emption was to all the lands in rear of and adjacent to the front land by right lines.</p> <p>The selection in this case was made by a letter addressed to the commissioner, which was sufficient.</p> <p>And the entries in the book kept by the commissioner, whether it was a record or not, are sufficient to prove the selections and applications noted in it, where the commissioner has sworn that he entered them correctly there.</p> <p>When he filed it in the office of the board, it became sufficient evidence to the board on which to base its confirmations.</p> <p>The entry of the appellee having been confirmed by the commissioners, their decision is conclusive unless properly impeached.</p> <p>The law presumes in favor of the commissioners that they acted on sufficient data and evidence.</p> <p>The commissioners had power to pay for the work as it advanced towards completion.</p> <p>The appellee had a pre-emption right and was only bound to pay for the land in one way, by doing the workundertaken by him to a sufficient amount, by a certain time and in accordance with his contract.</p> <p>Whether he made known his selection of the lands sooner or later, so that he did not permit his right to lapse by abandonment, made no difference. It was only material that he’ should do it when or before his work was finished and received.</p>

<p>Appeal from Jefferson Circuit Court m Ghance'ry.</p> <p>Hon. JohN C. Murray, Circuit Judge.</p>

<p>A sheriff having sold certain lands for taxes, and having afterwards taken an assignment of one half of the lands so sold from the purchaser to himself, the • sheriff was properly made a party to a bill filed by the original owner of the land to set aside the tax sale.</p> <p>The answer of the purchaser at the tax sale having set up that the transfer from himself to the sheriff was rescinded soon after it was made; this was matter in avoidance which the defendant must prove.</p> <p>But it could not be proved by the sheriff, he being a necessary and proper party, and interested.</p> <p>The bill having charged that the sheriff and the purchaser were parties in the purchase, and jointly interested therein, and the answer stating that there was no partnership at the time of the sale, but that the assignment to the sheriff, was made afterwards, and not in pursuance of any previous understanding the answer herein was directly responsive to the bill, and being uncontradicted by testimony, stands as if proved.</p> <p>A tax deed is by law evidence of the truth of its own recitals.</p> <p>General averments of fraud amount to nothing unless the facts constituting the charge are distinctly and specifically averred; and unless also those facts do in law and fact constitute fraud.</p> <p>Though any sheriff who is concerned in the purchase of any lands at a tax sale, is liable to a penalty of five thousand dollars, to be recovered by indictment, yet when the bill merely charges that the sheriff was interested in the purchase of certain lands, without any allegation that by the combination between the sheriff and thepurchaser, it was intended to prevent competition in' bidding, or that such was the effect, or that any other person did bid, or desire to bid for themselves, this does not amount to a charge of fraud.</p> <p>The collector for a particular year is the only officer authorized to collect the taxes for that year; and although his term of office expires before the day fixed for the sale of lands for such taxes, he alone can make such sales. He may do this himself or by his deputy,</p> <p>It is only when the collector has died or been removed from office, or is otherwise disqualified to act, that the actual collector can sell in such case.</p> <p>Any judicial sale made by any person or officer other than the one authorized by law to make it, is void.</p> <p>Lands having been assessed for taxes for 1856, and the tax book for that year given to one collector; and the lands sold by another collector in 185V, the former collector being alive and not disqualified from selling at the time of such sale, the sale was void.</p> <p>In this ease the collector who made the sale had been the deputy of the former collector to whom the tax book had been delivered, but as the sale was not made by him as such deputy, but as collector of 185V, the sale was void.</p> <p>Plaintiff filing a bill to set aside a tax sale, offered therein to pay whatever amount of taxes the defendants might have paid on the lands, with proper interest and other dues; the court below, in granting the relief sought by the billa should have ordered that these sums and the value of any improvements made on the lands by the defendants should be brought into court by the plaintiff.</p>

<p>Error to Chicot Circuit Oourt.</p> <p>Hon. John C. Mukbat Circuit Judge.</p>

<p>Motion for perpetual Svpersedeas of Judgment.</p> <p>Gallagher & Newton, for the motion.</p>

<p>Whore an offence and on exception to it are contained in the same clause of the statute, an indictment must charge that the defendant is not'within the exception; otherwise, where the exception is in a subsequent clause or statute. (5 Eng. 301.) J</p>

<p>The only point insisted on in this case was decided in Hawkins vs. Filkins, ante.</p>

Hon. W. M. HaRRIsoN, Circuit Judge. We submit the following propositions: Statutes of limitations admit of an equitable as well as legal construction. Smith’s Com., 710, 814 et seg.] 18 Wend., 131. They are regarded as statutes of repose and presuppose a state of peace and access to'legally constituted tribunals. Angelí on Lim. 9 et seg.\ 5 Peters, 470; 1 Peters, 360.

lion. Libeety Baetlett, Circuit Judge. When there are more defendants than-one in a judgment, and one dies, that severs the judgment and no revivor is necessary against the survivors, Firm as ad. vs. Crabt/ree as admJr., 12 Ark., 597; and the judgment being severed, execution may be issued against the survivors.

Hon. Elias B. Harrell, Circuit Judge. It is insisted for the appellants that the court erred in sustaining the demurers to the 2d and 3d pleas, and in striking out the 5th. Soldiers cannot be held liable tor legitimate acts done in the prosecution of war. Halleoh on lnt.

<p>Appeal from Washington Circuit Cowrt.</p>

Hon. Libeety Bartlett, Circuit Judge. That the maker, indorser, and guarantor who subscribes a note on the back for that purpose, may be joined in debt for the recovery of the note is well settled under our statute, and understood to need reference to no authorities ; nor is it necessary to refer to any on the point, that the releasing of a valid lien upon lands held by the payee in security for the payment of a bond would be a good consideration for the guarantor’s…

<p>The decree of confirmation of a tax title can have no effect to preclude a party in possession of the land from the benefit arising from lapse of time prior to the rendition of the decree — the proceeding for confirmation being in nowise a pos-sessory proceeding; and held in this case: that as the full period of limitation had elapsed, whether the cause of action accrued on the day of the tax sale, at the expiration of the time allowed for redemption, or at the date of the collector’s deed, it -was immaterial to inquire on which day the purchaser’s right to sue commenced.</p>

Ajypealfrom Chicot Circuit Cowt in, Chcmccry. lion. Win. M. HaeeisoN, Circuit Judge. Undoubtedly the court of chancery, in England, had no jurisdiction in matters of divorce and alimony.

<p>Appeal from Jefferson Circuit Oou/rt.</p> <p>Hon. W. M. IIabRISON, Circuit Judge.</p>

Hon. Libeety Bartlett, Circuit Judge. The proofs show that Semantha Edwards, whose negroes had been abducted, run off and sold by the appellee, refused to relinquish her right to the negroes; that she was illiterate, but the contents of the alleged release were not read or explained to her, and she evidently intended only to relieve the appellee from criminal liability; that the compromise (or whatever it be) was in fact made and executed by Fielding Price who received the…

L. B. Mace circuit judge. 1. We take it, there was no evidence at all showing any sale of the cotton — no specifying the property — no delivery; but a mere general agreement that Dodd was to have some cotton, but it was net pointed out, marked or delivered. According to the rule laid down in Belter vs. Bloch, 19 Arh., 566, there was in truth no sale of the cotton so as to give Dodd title to it. And see Pothier on Contracts of Sale, 190 et seq. (§ 307 et seq.) 2.

Hon. Z. Stoddakd, special judge. I. The declaration contains, substantially, the averments which it was insisted, were wanting. 1. The act of January 11th, 1851, under which the bond sued on in this case was given did not require as a prerequisite to suit, that the county court should render adjudgment against the obligor for the balance due.

<p>The principles decided in Roane vs. Green & Wilson, approved.</p> <p>On demurrer the court will consider the sufficiency of the previous pleading.</p> <p>The suit by petition in debt must be brought by the parties to whom the note was given, not by one of several payees, unless there be an assignment, which must be averred.</p>

<p>Appeal from Ga/rroll Ovrcuit Court.</p>

Hon. Libeety Bartlett, Circuit Judge. If tbe estate amounted to only $300, Mrs. Jackson did not take tbe proper course to have it given to her. There was no petition to court, no order of court. The statute upon which she relies was not complied with. Gould’s Dig., ch. 4,p. 104, sec. 3.

Hon. ¥m. M. Harrison, Circuit Jucjge. Riggs had a vendor’s lien on the land he sold to Harris to secure the two notes which Harris gave him for the purchase money ; and he assigned the two notes to Crawley as collaterals. The appellant seeks by this bill to collect the collaterals by enforcing Riggs’ lien for the benefit of Riggs, and the casé stands just as if Riggs himself had filed the bill to enforce the lien.

Hon. Liberty Bartlett, Circuit J udge. This court should give such judgment, upon the whole record, as the court below ought to have given. Digest, title Practice in Supreme Court, seo. 37. The plea in form was a plea in bar, but the matter set up was only pleadable in abatement, and the motion to strike out the plea ought to have been sustained. Mcmdelvs.

<p>Error to Washington Cvrouit Court.</p> <p>Hon. Elias Harrell, Circuit Judge.</p>

Hon. Elias HaeRell, Circuit Judge. The action of unlawful detainer is based on contract, either express or implied. The relation of landlord and tenant must -exist. See MeGuvre vs. Goofc, 13 Ark..M>0 ; Miller vs. Turner, ib. In his declaration, appellee expressly declares that the “right of possession belonged to him, and that he had never alienated transferred or conveyed away the same.” How, then, could a contract, express or implied, have existed?

<p>Appeal from Ohieot Circuit Court.</p> <p>lion. W. M. Harrison, Circuit Judge.</p>

Hon. Elias Haekell, Circuit Judge. Hearsay evidence of death seems to be receivable under the same restrictions as that respecting other matters connected with questions of pedigree. To what extent hearsay evidence may be received to prove the death of a person, see Scott’s Lessee vs. Ratcliff,5 Peters, 81, 86; Jackson ex. dem. Miner vs. Boreham, 15 John. Rep., 226; Jackson ex dem..

Hon. John T. Bearden circuit judge. The indictment contains all the requisites oí a good and sufficient indictment. Gold’s Dig.-, ch. 51, sec. 7, 361; Wh. A. Gr. Law, 2191. The substance of the oath need only be stated in an indictment for perjury. JRoscoe Or. Evidence, 749, 750, 766.

<p>Motion for an Appeal.</p>

Decree in Crittenden Circuit Court in Cha/ncery, Hon. James M. Hanks, Circuit Judge. for Hodges et al.,- filed a motion to dismiss this case, submitting that no sufficient recognizance had been given, that no appeal has in fact been taken from the said decree of Crittenden- circuit court, and that there is no case before this court for adjudication. Gould’s Digest, secs. 146, 147, 149; Moss vs. AsTibrooks, 15 Ark., 169.

Hon. John J. Clendenin, Circuit Judge. who argued this case at the December term, 1862, contended that the court was bound by the ordinances of the convention to continue this cause. In the court below, the defendant Hart, filed plea» of nil (lebei, payment and alien enemy, and also exceptions to the affidavit on which the attachment issued — the same being fatally defective according to Hillma/n c§ Go. vs. Fowler & Oo., decided at the present term.

Ajypeal from Gross Oirmit Oourt. Hon, James M. Hanics, Circuit Judge.

Hon. L. L. Mack Circuit Judge. The judgment on the plea in abatement of Logan and Bell should have quashed the entire suit, and discharged McDonald as well as the other defendants. Edmondson vs. Carnal, 11 Ark., 284; 9 Ark., 159. If not, the summons clause in the attachment was good, (Hatheway vs. Jones, 20 Ark., 111.) And a discontinuance as to Bell and Logan was a discontinuance also as to McDonald.

Hon. Liberty Bartlett, Circuit Judge. I. The record does not show that the prisoner was present in court, personally, at the time the writ of venire facias for the trial of this case was issued. Pig. sec. 166, p. 416; Sweedm vs. The State, 19 Ark., 205; 4 Bl. Com., 318; 1 Oh, Or. L., 337; Wwrem vs. The State, 19 Ark,, 214. II.

<p>Where there is no exception to the decision of the court overruling a motion for new trial, the party making the motion will be regarded as acquiescing in the decision.</p>

Hon. Libeety Bartlett, Circuit Judge. The first point we submit to the court is whether or not, in view of section 11, of the bill of rights, a change of venue in a felony case can be .ordered on the motion of the court, without the application or consent of the accused; and we submit the point for the consideration of the court.

Hon. L. L. Mack, Circuit Judge. A pariioeps erimmis is not an incompetent witness so long as be remains not convicted and sentenced for an infamous crime, if be has not been put on bis trial at the same time with bis companions in crime. 1 Greenl. on Ms., § 379. The entry of the nol.pros. as to Bremage discharged him from the record, and after that he.was a competent witness. Id., § 363.