Volume 25 — Arkansas Reports

Appeal f rom Jackson Circuit Court lion. L. L. Mack, Circuit Judge. The court below conceived that a commissioner of deeds could not take the affidavit for an attachment. The law could not be plainer. See ch. 32 Dig., secs. 1 and 2; also, Lafferty v. Lafertg, JO Ark., 268. As long as Edmondson v. Carnall, 17 Ark., 284, is recognized as the law of the land — and it has stood too long to he overruled upon slight grounds — there is no doubt that the plea is good.

Hon. Liberty Bartlett, Circuit Judge. The object of a bill of particulars is to apprise the opposite party of the nature of the claim, so there can be no surprise. Broxon v. Williams, J Wend., 368. And its effect is to confine the range of proof. 1 Hall, 379; 17 Wendell, 88; 8 Arch., 199; 3 Star Me Mo., 1057. Proof of property received will not support counts for money had and received, and money pai'd out and expended. Miller v. Alcorn, 3 Bibb, 867.

Hon. John T. Bearden, Circuit Judge. The plea in abatement was well pleaded, and should have been sustained. The defendant in error conceded this, in asking permission to amend. In Anthony v. Beebe, 2 Eng., 447, it was held that, after plea, the motion to amend the writ came too late.

Hon. C. Thrower, Special Judge. There was no fraud in the contract in this case; the contract between the plaintiff and Chase was a bona fide contract; the plaintiff advanced the money to purchase the articles replevied, and which were sold under an execution against Chase, who was in fact the owner of the property; on a-verdict for the defendant the judgment should have been for a return of the property and damages for the detention,’ so that the plaintiff might have…

Hon. Liberty Bartlett, Circuit Judge. The set-off not having been pleaded before the justice of the peace, proof of a set-off was incompetent in the trial before the circuit court. Gould’s Dig., eh. 99, sec. 196.

II011. A. N. Hargrove, Circuit Judge. The right of a plaintiff to withdraw his demurrer to a plea in abatement or in bar, after it was overruled, and to reply, where the application to do so was in apt time, has never before been questioned in this State.

Hon. Richard H. Powell, Circuit Judge. The farm was held by the brothers in joint tenantcy, and therefore the act of one in reference to the joint property was, as to the rest of the world, the act of both. 1 Wash. Beal Prop., ch. IS, secs. 11, IS, 13; 4 Blent, marg.p. 359; SO Ark.,381.

Hon. Richard H. Powell, Circuit Judge. It is submitted that the circuit court erred in overruling plaintiff’s demurrer to defendant’s fourth plea, which raises the question whether a justice of the peace has jurisdiction in attachment cases where the sum in controversy exceeds one hundred dollars, and we think the question is easily and plainly answered in the affirmative by sections 8 and 18 of art. VII. of the Constitution, by 'which the jurisdiction of justices of the…

lion. William M. Harrison, Circuit Judge. When the county court established Roane’s ferry privilege and granted him a license, the franchise ■was established, and became a vested right and interest, and did not cease to exist upon the mere failure or refusal of the county court to renew the license. Lindsay v. Lindley, SO. Ark., 573. Roane had a vested interest in the franchise, which was property, and was, unquestionably, within the protection of 'law.

<p>In a proceeding by petition to foreclose a mortgage on land, the petition should state whether there is any occupant of the land or not; and if there is an occupant he should he made a defendant.</p> <p>A copy of the deed relied on in a petition to foreclose a mortgage must he filed as an exhibit.</p>

Hon. Liberty Bartlett, Circuit Judge. The “ notice in writing,” required by the statute to be served on the opposite party, in contested election cases, amounts in effect to a declaration and writ; and if defective in substance as a declaration, or in its service as a writ, must be fatal to the party relying on it. The service in, this case was clearly defective.

Liberty Bartlett, Circuit Judge. The appellant submits that the plaintiff, in his declaration, must set forth such facts as will show a right of recovery, and the want of such a showing can'be taken advantage of by motion in arrest. Sevier v. Holliday, 3 Ark., 513; Keith v. Pratt, 5 Ark., 661. In tliis action the remedy is given by the statute, and certain allegations are required to sustain the action. One of the most important of these allegations is omitted.

lion. E. J. Searle, Circuit Judge. The default admitted the plaintiffs’ right to some damages, but not. any particular amount. Thompson v. JTaislip, 14 Ark,., 8%0.

lion. Wm. M. Harrison, Circuit Judge. The judgment is erroneous, because there is no averment in the declaration of demand and notice. Sevier v. Holliday, 2 Ark., 512; Ruddel §• McGuire v. Wcdker, 7 Ark., 46%; Anderson v. Yell, 15 Ark., 14; Gould’s Dig., pp. 158,159.

<p>The declaration on an executor’s bond for a legacy is fatally defective unless it alleges an order of the probate court to pay the legacy and a refusal by the executor.</p> <p>Held: That the suit in this' case could not be considered as based on the 191st section of the administrative statute, as it does not seek a recovery for the benefit of all persons' interested in the .estate, nor is the capacity in which the plaintiff sues averred.</p>

<p>The statement in the record, that the jury was duly elected, impaneled and sworn to try the issue, is, substantially, that they were sworn according to law.</p>

<p>Appeal from Clark Circuit Court.</p> <p>Hon. E. J. Searle, Circuit Judge.</p>

lion. War. M. Harrison, Circuit Judge. The 5th section of chapter 60,Dig., under the head of “Dower,” was intended to give the wife dower in all lands the husband may die seized and possessed of, except lands purchased during coverture and that were mortgaged for the purchase money; for it was, at the time that section was passed, well settled, that a wife could not take dower as against a lien for the purchase money. Mackieth v. Simmons, White $ Tudor’s head.

Hon. James M. Hanks, Circuit Judge. The decree should be reversed, because the appellant was not served with process actual or constructive. No subpoena was issued against him; nor was there airy affidavit filed stating that he was a non-resident of the State; and without such affidavit, neither the clerk nor court could make an order of publication, (Gould’sDig., ch. £8, sec. 18; Saffold v. Saffold, et al., 11¡.

<p>Appeal from Gravford Circvif Court.</p> <p>II011. Thomas Boles, Circuit Judge.</p>

Hon. James M. Hanks, Circuit Judge. s The county court has power to enter into the contract, and the appellant to compensation for his services.

Hon. James M. Hanks, Circuit Judge. The liability of the indorser in this case depends on two things, having been rightly done — demand of payment, and notice of non-payment. Holder must use due diligence, for the indorser is only responsible after default by the maker. 3 John.

Hon. John T. Bearden, Circuit Judge. Tlie filing of a bond for cost was a prerequisite to the institution of a suit by a non-resident. Sec. 1, eh. Ifi, Gould’s Dig.; 1 Ark., 21fi; 2 ib., 109; 10 ib., 169; 17 ib., SOS. The words of the statute are plain and unambiguous, that the non-resident shall file a bond for cost, and cannot be construed away.

Hon. John T. Eearden, Circuit Judge. The breaches negative the performance of tlie conditions of the instrument in every particular.

<p>Appeal from Sebastian Circuit Court.</p> <p>Hon. A. N. Hargrove, Circuit Judge.</p>

Hon. James M. Hanks, Circuit Judge. The declaration, or statement, shows who is plaintiff as plainly as the forms laid down in 1 Chit., 868; 8 Chit., 18 and 13, and in 5 Ark., 661. . The ancient forms and terms of pleading are not necessary, so that the facts plainly appear in the pleading. Gould’s Dig., ch. 113, sec. 60; 3 Chit., 1109-1111 and notes.

Hon. William Story, Circuit Judge. No bond was filed in this case by the plaintiff, and for this reason the whole proceeding is unauthorized and without warrant of law. Didier v. Galloway, 8 Ark., 501; 5 Ark., 458. An attachment issued without the bond is absolutely void; 4 8. £ M., 683; and is not remedied by appearance and jileading to the action. 3 Hovoard (Miss.), 669; 8 B. Mon., 80.

<p>Tlie rule adhered to, that where there is a conflict in the evidence, and the evidence is sufficient to sustain the verdict, this court will not reverse the judgment of the circuit court refusing a new trial.</p> <p>A new trial will not be granted on account of newly discovered evidence, where such evidence is but cumulative and not likely to change the verdict.</p> <p>Judgment reversed where hearsay evidence was permitted to be given, though there was other legal evidence to the same point.</p>

Hon. Liberty Bartlett, Circuit Judge. The appellant claims that it was legitimate, in cross-examination, to go into all the circumstances connected with the arrest and informal examination of the parties jointly indicted, a part of which the prosecution had brought out, so as to ascertain whether any threats or inducements had been held out to induce the parties to testify.

<p>Appeal from Sebastian Circuit Court</p> <p>Hon. E. J. Searle, Circuit Judge.</p>

JError to Johnson Circuit Court. Hon. Thomas Boles, Circuit Judge. The defendant made himself a party to the cause by appearing and contesting the case and appealing; and will not now be heard to say that the court had no jurisdiction of his person. 1 Ark., 55; Ark., 70; Ark., 286.

Hon. William Story, Circuit Judge. Where a party takes the property of another and sells it for money, the party aggrieved can maintain a count for money had and received. Chitty on Con. (6 Eng. Ed.), 678-680; 1 Ch. PI., 100; % Greenl. Ev.,secs. 1W-1%1.

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

<p>No judgment can be rendered for the plaintiff when there is a good plea in the case unanswered.</p>

<p>Appeal from Crawford Circuit Court.</p> <p>Hon. Thomas Boles, Circuit Judge.</p>

<p>The statement, indorsed on an indictment for trespass on personal property, that it was found on the testimony of several persons — naming them— whose property was not injured, and signed hy the prosecuting attorney, though not a literal is a substantial compliance with the statute.</p>

<p>It is irregular and erroneous for the prohate court of one county to appoint ■ a guardian for minors who reside with their property in another county.</p> <p>Both the principal and sureties in a bond are estopped from denying the truth of its recitals — as where the recital is, that the principal was appointed guardian, &c., they will not be permitted to deny the jurisdiction of the court making the appointment.</p> <p>Where a guardian voluntarily submits the settlement of his guardianship in a probate court other than that appointing him, he and his sureties are estopped to deny the jurisdiction of the court, however irregular its proceedings may have been. *</p> <p>Where a guardian settles his accounts in the probate court, the settlement is conclusive as well upon his sureties and wards as himself, except for fraud, and can not be inquired into collaterally.</p> <p>A guardian should not be permitted to resign his guardianship and be discharged until he makes full settlement.</p> <p>N. was appointed guardian of several minor lieirs, ■ and executed bonds as such, with different sureties in each bond, to whom N. mortgaged property to indemnify them. A large amount of property belonging to the wards came into the hands of the guardian. He was removed from the guardianship without making final settlement, and a successor appointed. No order was made by the in’obate court that he pay over to his successor. The heirs united in a bill in chancery against the sureties. Held, that no equitable jurisdiction was shown to exist upon which a decree could be rendered against the guardian, nor against the sureties. That there was no legal liability on the guardian to pay to his successor until an order on him by the probate court, and, until he made default, no liability to pay rested on his sureties. That the heirs could not jointly sue, nor the sureties in the several bonds be jointly sued, nor be held to account beyond their liability on their, several bonds. That the remedy of the heirs, being now of age, was severally on each bond by suits at law.</p>

<p>Appeal from Jefferson Circuit Court in CImneery.</p> <p>Hon. William M. Harrison, Circuit Judge.</p>

<p>Whore an execution has been issued on a judgment; been levied on personal property and a delivery bond given and returned forfeited, a new judgment springs into existence immediately upon the forfeiture, and the original judgment is extinguished, though the bond is defective in omitting the condition prescribed by section 51, ch. 6S, Big.</p> <p>A writ of error will not lie to the original judgment, where there has been a forfeited delivery bond; but if there be any defects or informalities upo n the face of the execution, the delivery bond, or the return and forfeiture, the proper tribunal to consider them is the court from which the execution issued and at the term to which it was returnable.</p>

lion. William -M. Harrison, Circuit Judge. The right of substitution is grounded entirely upon princi.7 >les of equity, and may be decreed where na contract of any kind, nor any privity, exists between the parties. Kyner v. Kyner, 0 Watts, 221; 11 Harris, 294• The right exists more from equity than per contract, and rests upon principles of equity wholly independent of contract. 1 Corns., 598.

<p>As held in Fesmire, et al., ®. Erode, the right of action for use and occupation is in the surviving tenant in common alone.</p> <p>Where the entry upon the lands of another is peaceable and the occupation acquiesced in, without any agreement, written or verbal, as to rent, the owner may bring an action for use and occupation..</p> <p>The use and occupation of the house of the plaintiff is a consideration sufficient to uphold a promise to pay for such use.</p>

Hon. William M. Harrison, Circuit Judge. The appellant having shown just and reasonable excuses, arising from unavoidable circumstances and casualties, for not filing her bill to enforce the vendor’s lien, within the period limited by the deed, is not barred in a court of equity. 8 Lead. Cases in Equity, Hare $ Wal., top page, 174-5, et seq.; Taylor v. Longxoorth, 14 'Peters P., 174-5; 13 Condensed {Curtis), 416; 3 Lead.

Hon. Liberty Bartlett, Circuit Judge. Although personal service was had on only one of the defendants, yet all through the record the showing is, that the defendants appeared, by their attorneys, and defended the suit. The only evidence offered by the defendant is, that he was not in Louisiana, so that personal service could be had upon him; but, as he appeared by attorney, the court had as complete jurisdiction over him as if he had been served with notice.

Hon. William M. Harrison, Circuit Judge. The mortgage, though unregistered, in pursuance of the statute, was good and valid between the parties. Maine v. Alexander, et al., 9 Ark., 112; 1 Hilliard on Mort., 663; 3 Bland, 126; 11 Ala., 691; 1 Dallas, 430; 4 Kent {3d ed.), 150; 2 Story’s JEq. Jur., 1020,1026.

<p>It is error to render a final decree on default of appearance at the return term.</p>

Hon. L, L. Mack, Circuit Judge. The breach that the animal was not sound, as far as he knew, was too vague and indefinite. It should have alleged some particular unsoundness, and the knowledge of the appellant of the unsoundness. 1 Chitty Plead., Jfi8,,et seq. The demurrer should therefore have been sustained.

<p>Where land is rented upon a condition to make certain repairs, and the occupant fails to perform the condition, the owner may consider the contract as .rescinded, and sue for use and occupation.</p>

Hon. Liberty Bartlett, Circuit Judge. The bond sued on was a bond of indemnity, but it was something more; and the question submitted is, whether upon this covenant Brugman could sue before .he had himself paid the debts of the late firm, or some part of them. The literal import of the covenant is to pay the debts due within a reasonable time, and those not due, as they fall due ; and when it is broken, a right of action accrues.

Hon. William M. Harrison, Circuit Judge. We submit that the excuse set up in the first plea for a failure to progress with the adverse suit is sufficient, and the proof of disturbance by adverse suit without eviction, together with proof of absolute want of title, as is set up in the plea, is a good defense, where the failure grew out of the fact that the property was destroyed and lost, so that a suit could not be concluded. The second plea is unquestionably good.

Hon. William M. Harrison, Circuit Judge.' The contract in this case was an agreement of sale, not a sale consummated. No title passed — the stipulations being that the title was to pass at a future time,- on the performance of certain conditions by each party, which conditions appellants have been and are ready to perform on their part, but the appellee is unable to perform the condition on his part.

<p>Appeal from Craighead Circuit Court.</p> <p>Hon. Ewing Y. Mitchell, Special Judge.</p>

<p>Appeal from Jackson Circuit Court.</p> <p>Hon. L. L. Mack, Circuit Judge.</p>

<p>Appeal from Independence Circuit Court.</p> <p>Hon. Richard H. Powell, Circuit Judge.</p>

Hon. Liberty Bartlett, Circuit Judge. This case, so far from being the same as that presented in Roane v. Green $ Wilson, or Hastings v. White, is one in which the appellant bases his right to relief upon an act of the Legislature of Arkansas, which grew out of those very decisions ; which was designed, and, as we insist, did relieve parties bound by Confederate money contracts from the hardships imposed upon them by the then existing law, as declared in those cases.

Hon. James M. Hanks, Circuit Judge. The position assumed in this cause, by our associates, as to the title, under the deed of trust, to the trustee, and the consequent rights and liabilities as to all parties concerned, is well sustained by reason, and by authority. We beg leave to cite Hill on Trustees, 51,274,316 ; 2 milliard on Mortgages, 518,522; Kannady v. MeCoxon, 18 Ark., 166 ; Gilchrist v. Patterson, ib., 575; Fitzgerald v. Beebe, 7 Ark., (2 Fng.,) 319.

<p>Appeal from Johnson Circuit Court.</p> <p>Hon. Thomas Boles, Circuit Judge.</p>

<p>Appeal from Union Circuit Court.</p> <p>Hon. John T. Bearden, Circuit Judge.</p>

<p>Practice — setting aside judgment. The only motions affecting a judgment, duly rendered, authorized by our statute, are motions in arrest of judg-j ment, for a new trial, and to set aside a judgment.</p> <p>Tt was too late, at the September term, 18GG, to move to set aside a judg ment rendered at a preceding term.</p> <p>. When judgment becomes final. A judgment, at the close of the term at which it was rendered, becomes final, and passes beyond the control] of the court.</p> <p>Amendment of record: It is now well settled that the circuit courts o, this State have poiocr to amend their records in accordance with the facts.</p> <p>In this case the circuit court had power to allow an amendment of tlr sheriff’s return to a writ of attachment, upon the affidavit of the sheriff.</p>

<p>Appeal from Craighead Circuit Court.</p> <p>Hon. L. L. Mack, Circuit Judge.</p>

<p>Appeal from Ouachita Circuit Court.</p> <p>Hon. John T. He-arden, Circuit Judge.</p>

<p>Married women — separate property. Property belonging to the wile at the time of the marriage is not within the provisions of chapter III., of Gould’s Digest, entitled “Married Women.” Filing a schedule of such property in the recorder’s office can not affect the rights of the husband in respect to it.</p> <p>All the wife’s personal property, in her i>ossession at the time of her marriage, vests absolutely in the husband.</p> <p>A court of equity will interfere to decree the wife a reasonable provision, out of her separate property only when the husband asks the aid of the court to enable him to obtain possession of the wife’s property, or where the property, not having come into his possession, is within the reach of the court.</p>

lion. E. J'. ¡¿earle, Circuit Judge. Tlie bill alleges that in April, A. I). 1863, Charles A. Birnie, |si\, and his wife, the father and mother of the defendants, [wore residing in the house upon the lots mentioned in the hill, and the defendant,. Charles A., jr., and his wife, were also residing with them, as a part of their family.

<p>Fees. An officer is entitled only to such, fees as the law expressly ptescrihes.</p>

<p>Appeal from Independence Circuit Court.</p> <p>Hon. Richard H. Powell, Circuit Judge.</p>

Mod. James M. Hanks, Circuit Judge. The second and third pleas set up, in different shape, the freeing of the negroes, and therefore the consideration; on which the drafts were based failed, and we presume nothing more is needed to show the court that they were good, and the .demurrer to them should not have been sustained, than to cite section 14, article 15, (miscellaneous provisions,) new Constitution.

Hon. William M. Harrison, Circuit Judge. The plea in this ease is, in truth, but a plea of partial failure of consideration. It is not an attempt to change or vary the written contract, but simply one to show that, as to so much of the money demanded, there ivas no consideration. And under this view of the matter, it was unquestionably proper for Leach to go behind the notes and show the parts of the contract. 2 Parsons Con., 59, 62, 63, 70, 79.

<p>Usury — intent—plea. To constitute usury, there must always he a loan in contemplation by the parties.</p> <p>No contract which in its inception is unaffected by usury can ever be invalidated by any usurious transaction.</p> <p>To constitute usury, there must be an intent to contract for and to take usurious interest.</p> <p>If neither party intends usury the law will not infer a corrupt agreement.</p> <p>A note for $700, bearing interest at ten per cent., the consideration of which was oxen worth $200, and $500 of Confederate money, worth but fifty cents on the dollar, is not usurious in its inception.</p> <p>The facts and acts which constitute usury, and an usurious intent, must be averred in the plea with certainty, and not left to inference.</p>

Hon. Liberty Bartlett, Circuit Judge. Sections 58, 59 and 60, Gould’s Digest, give county courts power to order in all scrip; and, under sec. 60, the scrip was annulled, if not presented. The appellees having failed to present the same, lost their claim against the county. Parties to the contract are presumed to have contracted according to existing laws. Newton v. Peay, 21 Ark., 86.

<p>Appeal from Jack&on Circuit Court.</p> <p>Hon. L. Yj. Mack, Circuit ,Judge.</p>

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

<p>On Plea of Abatement.</p>

lion. Richard H. Powell, Circuit Judge. The vendor retains a lien for the purchase money, although the deed recites its receipt.' Scottv. Orbison, 21 Ark., 202; Shall v. JBi'seoe, 18 id., 142; Hashill v. Sevier, ms. opinions of last term. The vendor of an equitable estate in land has a lien to-the same extent as the vendor of the legal title.

<p>Error to Hot Spring Circuit Court.</p> <p>Hon. Liberty Bartlett, Circuit Judge.</p>

Petition for Injunction. The issuance of change tickets by the city is illegal by statute. Gould’s Dig., p. 244. Nut the bills so issued are not void. Van Horne v. State, 5 Ark., 351. Nut, if they were void, the injunction ought to issue anyway. Hamilton v. Cummings, 1 I. C. 11., 520. Any inhabitant and tax-payer of a city may bring a bill for himself, and all other tax-payers and inhabitants, to prevent the execution of an illegal act by the common council. Sto.

The inhabitants of Little. Rock are exempt from the county roacl tax. Acts 1866, p. 84. To the act of- July 16, 1868, which it is said repeals the act on which we rely, we make the following constitutional objections: 1. It was a revenue bill, and originated in the Senate. Const., Art. 5, sec. 19. 2. The act embraces more than one subject not included in its title.

. The law against issuing change tickets (Gould ’s Digest, p. 244) has never been repealed or modified. The Chancellor based his decision, on a similar case, on the ground that, the bills being wholly void, no injunction should issue. But they are not void. Van Horne v. State, 5 Ark., 351. And if they were void the injunction ought to issue any way. Hamilton v. Cummings, 1 JohnsonChy. It., 520.

<p>Appeal from Washington Circuit Court.</p> <p>Hon. William Story, Circuit Judge.</p>

lion. L. L. Mack, Circuit Judge. If the proceedings before the justice were irregular, he having jurisdiction of the account and of the property attached, they were not void, but amendable, and the court will consider them as amended, whenever the question arises collaterally; and they should be so considered, so far as this proceeding was against the appellant, as he was a stranger to the suit. 5 N. C, 24; 1 Serg. and Paiole, 97; 5 Yerg., 443; 3 Murphy, 128; 3 Dev., 284,…

<p>Recognizance — ;judicial notice — liability of sureties — arrest by military authorities. The courts take judicial notice that in September, 1867, the civil State Government of Arkansas was provisional, and that the commanders of the United States military forces were clothed with authority to arrest and imprison citizens.</p> <p>Imprisonment by order of such military officers had the same force and effect as if upon a proper warrant from a civil tribunal.</p> <p>The act of God, of the obligee, or of the law, may excuse a surety bound in a recognizance for the appearance of his principal to answer an indictment.</p> <p>The recognizance of the surety, and the record of its forfeiture, raise a strong presumption of the liability of'the surety.</p> <p>If the surety can maintain by satisfactory proof that his principal was duly arrested and imprisoned by the military authorities at the time of the forfeiture, he will be excused from liability.</p>

II011. Jambs M. Hanks, Circuit Judge. Under our practice, the general reservation as to sufficiency,, in an answer in chancery, has the effect of a demurrer. Lorette v. Longmire, 14 Ark., 339. The bill should have been dismissed, because the claim was not sworn to, under the statute, prior to the commencement of the suit. Gould’s Dig., chap. 4, sec. 107; Byan v. Lemon, 7 Ark., 78; Beirne v. Imboden, 14 id., 237 ; Walker v. Byers, id., 247 ; Biscoe v. Sandefur, id., 594.

lion. II. 13. Morse, Circuit -Judge. In chancery, if the misjoinder is of parties as defendants, those only can demur who are improperly joined. .Story Eg. PI., sec. 544; Gortland v. Nunn, 11 Arle., 731. In a bill to settle a partnership account none should be made parties except those who are parties to the partnership contract. Colly er Part., sec. 365 ; Story Eq. PI., sec. 99 ; Peay v. Wright, 22 Ark., 198. The bill was not multifarious. Story Eq. PL, sec. 27.

Circuit Court. Hon. William M. Harrison, Circuit Judge. If there was error in the proceedings of the probate court, the circuit court should have heard the case de nove, and given such judgment as the probate court should have given, certifying its. judgment to that court. Dillard v. Baines, 5 Ark., 301; Harris v. Foster, id., 717. Quere.

Hon. William M. Harrison, Circuit Judge. The pleas interposed by the defendant below put in issue both the wrongful detention and the plaintiff's right of property, and the burden of proof is upon the plaintiff. Patterson v. Folder, 22 Ark., 396. To maintain these issues the plaintiff will be held to prove that he had, at the time of the institution of the suit, a general or special property in things replevied, coupled with the right of immediate possession.

Hon. Richard II. Powell, Circuit Judge. The sale of the cotton being by weight, and. the weight not being ascertained, the property never passed. Fagan v. Faulkner, 5 Ark., 161;.Everett v. Clements, .9 id., 478; Gilliam v. Toldes, 15 id., 64; 2 Kent, 496,' and cases cited; Bussell v. Lytle, 6 Wend., 390; Pope v. Tunstall, 2 Ark., 409; Crary v. Ashley, 4 id., 203; Ballard v. Noahs, 2 id., 45.

<p>Illegal consideration. The fact that the consideration for the note sued on was a horse, bought by the maker for the Confederate service, with the knowledge of the payee, constitutes a good defense to a suit thereon by the administrator of the payee.</p> <p>Kelly t. Tatum. Affirmed.</p>

<p>Appeal from Randolph Circuit Court.</p> <p>lion. L. L. Mack, Circuit Judge.</p>

lion. Liberty Bartlett, Circuit Judge. The statute, as to this summary proceeding, must he strictly construed, and every fact necessary to the jurisdiction of the court must appear of record. 8 Humph.,.318; 3 Ycrg., 355; id., 85; 7 Ycrg., 365 ; 8 id., 101.

Hon. James M. Hanks, Circuit Judge. This case, in its general features, is like that of Martin v. SMI, 19 Ark, 139. The mistake, in this case, is of no moment. A mere substantial compliance with the statute is all that is required. Jacoioay v. Gaidt, 20 Ark., 190. The fact of acknowledgment, and the identity of the party acknowledging, are the essential features, and, these appearing, it is sufficient.

<p>Appeal from Carroll Circv.it Court.</p> <p>Hon. Elias M. Harrell, Circuit Judge.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Il9n. William M. Harrison, Circuit Judge.</p>

Court. Hon. John T. Bearden, Circuit Judge. The only question presented in this case is, whether the writ of ne'exeat properly issued ? Appellant insists that it did, and submits that the 13th section of chapter 118, Gould’s Digest, fully sustains this position.

Hon. John T. Bearden, Circuit Judge. The.general issue in trover puts in issue the plaintiff’s title as well as the conversion. Stone v. Waggoner, 8 Eng., (8 Ark.,) 206; 2 Green. Ev., s. 648; 2 Sand. El. $ Ev., 872 unii-887; 1. Chitty’s EL, 436; ,(5 Am. 'edit.;) 2 Sdwn. N. E, 1068, (2 Am. edit.,) Bnlwer’s K. E, 48; Eanley v. Rector, 10 Ark., 211.

.Error to .Pulaski Circuit Court. Hon. Liberty Bartlett, Circuit Judge. The court below erred in permitting negroes to testify against the defendant, a white man. Digest of Arkansas, p. 1084. ■ ' The Civil Rights Bill did not confer upon the negro the right to testify against the white man, generally, in the State courts.

Hon. George W. McCown, Circuit Judge. At common law, the willful killing of a human being,'with malice aforethought, was murder, the punishment of which was death; and an indictment that charged such a killing was sufficient to support a verdict of guilty and a judgment of death. In this State, murder committed with malice aforethought, simply, is not a capital offense. See Gould’s Digest, page 328, sec. 7.

Hon. II. B. Morse, Circuit Judge. The landlord’s lien had priority over the attachment. Drake on Attachment, secs. 532, 223 ; 13 Ala., 465; Upham v. Dodd, 24 Ark., 548, and cases cited; DeWolf v. Dearbon, 4 Pick., .466; Rankin v. Schatzell, 12 Wheat., 177. A landlord has no specific lien or title to crops raised by his tenant.

Court. Hon. H. B. Morse, Circuit Judge. I. Under the circumstances of this case, certiorari was the proper remedy. Couch, ex parte, 14 Ark., 387; Lindsay, v. Lindley, 20 Ark., 581; Denton v. Boyd, 21 Ark., 264. II. The decree of the chancery court of Arkansas county was a final decree. Gerald’s Digest, title Chancery, secs. 125,182, 134,135,146,148. It is not necessary that the entire cause should be finally disposed of before an appeal can be taken on a branch of it.

<p>Appeal from Benton Circuit Court.</p> <p>Hon. E. I). Ham, Circuit Judge.</p>

Hon. John E. Bennett, Circuit Judge. Replevin in the cepit will lie in any ease where there has been a tortious taking, either originally of by construction of law, by some act which makes the party a trespasser ah initio. It lies in any case where trespass de bonis asportatis will lie. Trapnall v. Hattier, 1 JEng. P.,21; Meny v. Heard, 1 Mason, 319.

<p>Landlord and tenant — liability for rent in ease of fire. Where the lessee takes an interest in the soil upon which the leased building stands, he will be held for the rent, even if the building should be burned down, unless he protects himself by stipulations in the lease; othenoise, if he simply leases the building, or a room in it.</p>

<p>Mandamus. The writ of mandamus can be granted only on the motion of the party aggrieved, or of the State when the public interests are affected.</p> <p>The petition of the party, other than the State, must show wherein he is aggrieved.</p>

<p>Appeal from, Sebastian Circuit Court.</p> <p>lion. A. A. Hargrove, Circuit Judge.</p>

<p>Appeal from Pulaski Circuit Court.</p> <p>Hon. William Story, Circuit Judge.</p>

<p>Covenant against incumbrances. — The covenant against incumbrances is broken immediately where there is an. outstanding mortgage on the demised premises.</p> <p>Equity pleading. — A supplemental answer and' cross-bill can not be filed without leave of the court; but the Chancellor does not possess discretionary power to deny a defendant the right to avail himself of a meritorious defense.</p> <p>Where the answer and cross-bill set up that the-.complainant is insolvent, (which allegation is not denied,) and that, at the time of the conveyance of the lands by complainant to defendant, the former represented that they were free from incumbrances, and covenanted against incumbrances, (which allegation is admitted,) the - defendant is entitled ■ to file his supplemental answer and cross-bill, alleging that at the same time there was an outstanding mortgage on the premises, which is being foreclosed upon the defendant, showing that he learned of this fact after filing his original answer and cross-bill'."</p>

Hon. James M. Hanks, Circuit Judge. The only question presented was whether the horse in question was a lawful prize of war ? It does not appear that defendant was sent into the Federal lines by order of his superior officer; or that he had any authority to take the horse for the use of the. Confederate authorities.

Hon. George W. McCown, Circuit Judge. Statutes of limitations are now favorably regarded by courts of justice as a means of suppressing litigation, &c. Hawkins v. Campbell, 1 Eng., 513. No trust relation existed in this' case. Denton v. Embury, 5 Eng., 228, where the decision was between attorney and client. Peay v. Singo, 22 Ark., 68.

<p>Appeal from Phillips Circuit Court.</p> <p>Hon. John E. Bennett, Circuit Judge.</p>

<p>Appeal from Phillips Circuit Court.</p> <p>Hon. John E. Bennett, Circuit Judge.</p>

<p>Ferries. Ferrymen must use due diligence,' and provide ■ suitable means of transportation.</p> <p>Ferrymen must give due attendance on passengers, on all occasions, which, includes high and low water.</p> <p>The public grant the exclusive privileges of ferrying upon the consideration that, the traveling public shall be crossed at all reasonable hours, without unnecessary delay.</p> <p>Appeal prom verdict. A verdict will not be disturbed by this court if there was any evidence upon which to sustain it.</p>

Hon. Richard H. Powell, Circuit Judge. If the judgment of the prohate court ivas erroneous, the appellee could appeal. A writ of certiorari will not lie to, correct error in the proceedings of inferior courts, which could have been corrected on appeal. See Allston, ex parte, 17 Ark., 580.

lion. John T. Bearden, Circuit Judge. This court will always award a new trial where the damages are excessive. Walworth v. Pool, 9 Ark., 395 ; 19 Ark., 234; and this rule is one generally recognized. 1 Graham §- Waterman, Neto Trials, 442; 3 ib., 1158. A party having the immediate right of possession of personal property, can maintain- replevin regardless of the right of property, or absolute ownership.

<p>Appeal from White Circuit Court.</p> <p>Hon. John ANhytock, Circuit Judge.</p>

Hon. John E. Bennett, Circuit Judge. Unless a bailee has the power to contract for repairs, he can not bind the property by mechanics’ lien. Hauptman v. Catlin, 1' E. D. Smith, 784; Story Agency, see. 77, and cases cited. The statute (Gould’s Dig., eh. 112) confines the mechanics’ lien to “ work and labor on any building, edifice or tenement.” Neither of these terms could apply to a boat.

<p>Proceedings against unknown heirs. An affidavit of complainants" want of knowledge of the residence of unknown lieirs is a necessary prerequisite in the proceeding to obtain jurisdiction by publication.</p> <p>Where the complainant proceeds in his bill against unknown heirs, it is necesswry, to enable the court to obtain jurisdiction over them, for him to annex to his bill an affidavit of his want of knowledge of the residence of such heirs.</p> <p>Vendor’s lien. In a writ to foreclose a vendor’s lien, where the vendee is dead, the heirs are necessary parties.</p>

<p>Estates op deceased persons — lands as assets. Where part of the estate of a deceased person consisted of slaves, which the widow, who was the administratrix, sold, and the proceeds of which sale she vested in lands, taking the title in her own name, after dower is assigned to the widow out of these lands the residue of the lands should go to the administrator, as assets for the payment of the debts of the estate, and not to the heirs.</p> <p>Until the debts of the deceased are all paid there is no estate for the -heirs.</p> <p>Dower. The wife is entitled, in equity, to dower of all the lands purchasedby her, as administratrix of the estate of her husband, out of the proceeds of the sale of slaves, of which he died seized, to an amount equal to her unassigned dower in the slave property.</p> <p>The widow had dower of one-third of all slaves of which her husband died possessed.</p>

<p>Bill of exceptions — must set out or identify written evidence. The bill of exceptions must either set out at length, or sufficiently identify, the written evidence used on the trial.</p> <p>It is not sufficient for the bill of exceptions to simply describe the document used in evidence.</p> <p>Oral or written testimony constitute no part of the record, unless expressly made so by order of court, agreement of parties, demurrer, oyer, bill of exceptions, or special verdict.</p> <p>The party making up the bill of exceptions may obtain an order of the court compelling the opposite party to file documents used on the trial.</p>

Hon. John E. Bennett,- Circuit Judge. Where a vendor delivers the possession of an estate to a purchaser, without receiving the purchase money, equity, whether the estate be or be not conveyed, and although there ivas not any special agreement for that purpose, gives the vendor a lien on the land for the money. 2 Sugden on Vendors, ch. 12, p. 62.

Hon. John Whytock,.Circuit Judge. The court might set aside1 tile-judgment by default, against the garnishee, at any time within fifteen days. Gould’s Dig.? 665, secs. 86 and 90 ; Wilson v. Phillips, 5 Ark., 183,185. The court can only quash on certiorari where the record shows that the judgment is wholly void.

<p>Amendments. The circuit court has power, by the provisions of section. 116, chapter 133, Gould’s Digest, to direct the clerk to amend an execution by affixing the seal of the court; and to amend the amount recited in'a delivery bond; and to amend an execution on a delivery bond.</p> <p>Practice — motion to quash. After the statutory judgment on a delivery bond a motion to quash is not the proper proceeding by which to avoid the original judgment.</p>

<p>Supreme court — has original jurisdiction to issue writs of mandamus, Sfc. This court has power, by the present Constitution, to issue writs of mandamus, quo warranto, habeas corpus and other remedial writs, as an exercise of original jurisdiction.</p> <p>The clauses of the Constitutions of 186S and 1886, respectively, defining the jurisdiction of this court, are materially different.</p> <p>There is no language in the present Constitution callable of being construed into a restriction of the powers of this court to the exercise of appellate jurisdiction only.</p> <p>Treasury certificates. It is the true intent and meaning of the act of July S3, 1808, to prohibit the issuing of interest-bearing treasury certificates after July 1, 1869.</p>

<p>Vendor’s likn — defeated by misrepresentations. Where the vendee of land had no means of knowing the boundaries of the section conveyed, but relied upon the vendor, who did know thereof, but misrepresented as to the same, there is fraud.</p> <p>In a suit to enforce a vendor’s lien, the defendant is entitled to avail himself of a recoupment for fraudulent misreiiresentations made by the vendor, as to the land, at the time of the sale.</p> <p>Irregularity. There is irregularity where the record shows no proof of publication of notice to non-resident defendants.</p>

Hon. -Johm -K. Bkxnett, Circuit .’Judge. If Pearce had taken the cotton in hand and moved it, the delivery would not have been more complete. Story’s Sales, 811; 12 Mass., 800; 2 Kent, 501; 1 East, 192; 7 ¿¿.,558; 2 Eng., (7 Ark.,) 197; 14 Ark., 351; Better v. Block, 19 Ark:, 566; Pratt v. Parhnan, 24 Pick., 42.

<p>Appeal from Jefferson Circuit Court.</p> <p>Hon. H. B. Morse, Circuit Judge.</p>

<p>Motion eor new trial — waiver of objections. Under tlie practice existing in November, 1867, tlie party moving for a new trial in the court below waived all exceptions taken in the progress of the cause, which were not incorporated in the motion.</p> <p>Substituted record — When it appears to the court that a supplied record upon which the judgment was rendered is not a true copy, hut varies in material matters, and that the original papers have been found and reinstated, the cor t should award a new trial.</p>

<p>Special verdict. Where the issue arising on an interplea is submitted to the court, the finding of facts by the court is in the nature of a special’ verdict, and conclusive as to the facts.</p> <p>Motion for a new trial. In such a case the court will not review the evidence unless a motion for a new trial was made in the court below.</p> <p>Vendor’s lien. A vendor of personal property, relinquishing possession, reserves no lien for purchase money.</p> <p>A written instrument (which is not a mortgage) is inadmissible as evidence of such lien.</p> <p>Evidence. In a suit by attachment, where the claimant of the personal property attached interpleads, claiming under a sale to him by the defendant, before the suit was brought, a written instrument, evidencing a prior sale of the same property by him to the defendant, is admissible, as tending to show the subsequent sale to him.</p> <p>Unofficial certificate. A certificate by a sheriff, setting forth the performance of acts not in the line of his official duty, is not admissible as evidence.</p> <p>Instructions to the jury, founded upon hypothetical facts differing from the case at bar, are rightfully refused.</p>

<p>Assessment of damages. Where an interlocutory judgment by default is rendered, in an action upon an open account, the damages must be assessed by the jury.</p>

<p>Petition for Writ of Prohibition.</p>

<p>Error to Jefferson Circuit Court.</p> <p>Hon. Vm. M. Harrison, Circuit Judge.</p>

<p>’ Confederate money — contracts based -upon, even between individuals, void. Contracts for the payment of Confederate money made between individuals in the ordinary course of their private transactions, within the rebellious districts, while subject to the power of the rebellious authorities, are illegal and void.</p> <p>This currency was upon its face made payable after the ratification of a treaty of peace with the United States; and individuals making contracts based upon it must be held to have done so with a knowledge of the illegality of its issue.</p> <p>The rebellion — nature of it. The war levied by the so-called Confederate States was treason.</p> <p>All citizens of the United States who participated in the rebellious government, or voluntarily entered the armies or navies of the rebellion, or aided or encouraged the rebellion in the most minute degree, were traitors.</p> <p>The Confederacy was not a government “ de facto,” notwithstanding-the • concession by the political department of belligerent rights.</p> <p>This pretended government could not, as a government of paramount force, render valid contracts between individuals, based upon, or for the payment of, Confederate money.</p> <p>Notwithstanding the ordinances of secession, the rebellious States continued during the rebellion a part of the Federal Union, and the people thereof continued to owe allegiance to the Government of the United States.</p> <p>Political department — prerogatives of. It is the exclusive province of the political dex>artment to determine what rights shall be accorded the belligerents, in case of civil war, and to what extent the acts of the rebellious government, including the issuing of its notes to circulate as currency, should be recognized.</p>

<p>Brror to Pulaski Circuit Court.</p> <p>Hon. John Wi-iytock, Circuit Judge.</p>

<p>Internal revenue. Judgments and executions in tlie State courts are not subject to stamp duty, under the internal revenue laws of the United States.</p> <p>Judgment on delivery bonds. The former judgment is merged and extinguished in the judgment upon the delivery bond; and parties can not go behind the last judgment and assign error upon the former judgment.</p> <p>Effect op levy. A levy without a sale is not, per se, an absolute satis- , faction of a judgment.</p> <p>Plaintiff controls execution. Where the sheriff levies upon lands not owned by defendants, or makes an excessive levy, the plaintiff may release part of the property from the levy.</p> <p>Damages in this court. As there was no meritorious defense interposed in the court below, and the defendant appeals upon purely technical grounds, the judgment in favor of the plaintiff is affirmed, with ten per cent, damages.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Hon. H. B. Morse, Circuit Judge.</p>

<p>Appeal from Drew Circuit Court.</p> <p>Hon. William M. Harrison, Circuit Judge.</p>

Petition for Mandamus. Benjamin E. Johnson filed his bill of complaint, in the circuit court of Washington county, against the administrators, widow and heirs at law, of Tandy K. Kidd, deceased, to redeem certain real estate therein mentioned, which he had mortgaged to the said Tandy K. Kidd, in his life-time. A portion of the defendants appeared and put in their answers.

<p>'Confederate money — when it satisfies a debt. A note was paid and satisfied by a payment, in July, 1863, in this State, of Confederate treasury notes, received by the holder of the note without any evidence of threats or protest, even where martial law prevailed, and a military order rendered the receipt of such money compulsory.</p> <p>Relief will not be granted where parties are in pari delicto.</p>

<p>Appeal from Independence Circuit Court.</p> <p>Hon. Richard H. Powell, Circuit Judge.</p>

<p>-Appeals — when transcript must he filed. The appellant will not be permitted to file in this court the transcript of the record after the term to which, the appeal was taken, except upon a showing of due diligence, and upon notice to the appellee.</p> <p>Where the appeal was taken November 19,1867, and the transcript filed July 8,1869, and there is no such showing, or leave of court, the appeal is considered as not having reached this court, and the cause is stricken from the docket.</p>

<p>Special judge — must be qualified elector. A person who is not a qualified elector can not sit as special judge of the circuit court.</p> <p>A person may be a qualified elector, and hot a registered voter.</p> <p>Right op objection. A party may question the authority of an individual to try his case as special judge; if the objection is overruled, the grounds of the objection may be spread upon the record, and brought before this court, by bill of exceptions, to enable it to determine the right of said individual to exercise the powers of a special judge.</p> <p>It is error for the court below to refuse to hear evidence, or to pass on the objections to the authority of special judge.</p> <p>Time por piling pleas. Under the former practice the defendant has until the cause is regularly called, in its order on the docket to file pleas to the merits, and the court could not abridge the time ; and it is error to strike out pleas, before the case is so called, as not being filed in time.</p> <p>Judgment op nil digit. It is error to award judgment of nil dicit where a plea remains undisposed of.</p>

<p>Appeal from Yell Circuit Court.</p> <p>Hon. William N. May, Circuit Judge.</p>