Volume 26 — Arkansas Reports

<p>Coneedebate money. — Where consideration of a contract is Confederate money, the contract is void ab initio.</p>

ÍIon. James M. Hanks, Circuit Judge. The instructions given by the court on the motion was manifestly wrong; ferrymen are common carriers.

<p>Jurisdiction — Appeal.—Appeals only lie from one court to another, not from an executive officer to a court.</p> <p>■Registrars. — The duties of registrars are executive, and so far as the right of appeal from their decisions to this court, by a party aggrieved, may be inferred from, or may have been intended to be given by the act of July 15, 1868, providing for the appointment of registrars by the Governor, being contrary to the meaning and intent of the Constitution, no> appeal will lie.</p>

<p>Equity — Confederate money act — The act of March 5th, 1867, known as the Confederate money act, being unconstitutional, no benefit is derived from it, and a court of equity can grant no relief under it.</p>

<p>Appeal from the Pulaski Circuit Court</p> <p>Hon. Joiin Whytock, Circuit Judge.</p>

'Host. Elisha BaxteR, Circuit Judge. 1. The demurrer should have been stricken out. The causes ’.assigned were general in terms and extended to the whole Bill. The only causes assigned being multifariousness and want of equity. The filing of the plea was a waiver of the demurrer, the •demurrer being to the whole bill. 'The cross bill was not multifarious. 1 Danl. Ch. PI. A demurrer for multifariousness goes to the whole bill. 1 Danl.

<p>Emancipation proclamation. — The emancipation proclamation of January 1, 1863, did not liberate and free the slaves in the insurrectionary States, outside the lines of occupation of the national forces.</p> <p>Pleading — Presumption of facts. — Pleas are taken most strongly against the party pleading, and a |>lea, not averring that the sale took place -within the Federal lines, or that the negro man had ever been -within them after the proclamation of January 1, 1863, the presumption is against such facts.</p>

IIon. William K May, Circuit Judge. Strayhorn delivered the whole without explanation, and ho cannot be heard to say that Wilson did not purchase… Held: possessed and used as part of his premises by Strayhorn, for more than the longest period of limitation ever prescribed by any statute of this State, ho acquired a perfect legal title to the ground, so enclosed and held, as against the corporation and all others. Cunningham, v. Brumback, 28 Ark. 336; Hicks v. Fluit, 21 Ark.

<p>Illegal Co-habitation. — An indictment for illegal co-liabitation, should charge the parties to be of different sexes, and that they co-habited as husband and wife. The statutes of this State do not prohibit person» from co-habiting together, nor is such an offense at common law.</p>

<p>'’CONFEDERATE Money. — Contracts based upon Confederate money are illegal and void.</p> <p>Pleading — Time of filing. — After issue joined, the filing of a special plea, at subsequent term, is within the discretion of the court.</p>

Hon. John Whytock, Circuit Judge. Counties are liable as bodies politic, as also municipal. Gould’s Dig. ¡887, Sec. 1, Chap. J¡.1\ corporations are liable at common law for trusts and acts of their agents. Hawkins v. Duchess of Orange; Steamboat Co., 8 Wend. lf>3; McCready v. Guard, of the Poor, S. $ B. 9j; Lyman v. White Biver Bridge Co., 8. Ark. 355, 8.

Hon. William N. May, Circuit Judge. Fraud avoids a contract both at law and in equity. Stray-horn v. Giles, @2 Ark., 5S1; and the evidence tending to establish the fraud, should have been allowed to go to the jury; Mullen v. Wilson, 44 Penn., 4^S; Millett v. Pottinger, 4 Mete. (Ky.), SIS; Babcock v. JEJckler, S4 N. Y, 6S3; Porter v. McDonnell, SI Missouri, 6%; Telles v. Register, 4 Min., 391; Chandler v. Roeder, S4 How. TJ.

<p>Appeal from, Jefferson Circuit Court.</p> <p>Hon. IT. B. Mohse, Circuit Judge.</p>

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

<p>Vendor's Lien — Taos Title — Neither the legal or equitable title to lands or town lots, sold for the non-payment of taxes, vests in the purchaser or holder of the certificate of purchase, until the execution and delivery of the collector’s deed, and the relation of vendor and vendee does not exist between the purchaser and owner until such .execution and delivery.</p> <p>Redemption. — The owner, in order to redeem, is not required to pay to the purchaser taxes paid by him subsequent to the purchase and before redemption.</p>

<p>Appeal from Pulaski Circuit Court.</p> <p>I-Ion. John Whytock, Circuit Judge.</p>

Petition for Prohibition. The power of amotion is incident to every corporation, 8 Kent. Com. §4-8-9; Angelí $ Ames on Corp. sec. 408-9, 27, 82; 5 Ind. 77; Grant on, Corp. p. 240, and is conferred by statute in this State. See page 273, New Digest, sec. 67, Law of Mun. Corp. The city council is not a court and the provisions of the Code (see. 681,) do not apply to it.

Hon. JIenry 33. Morse, Circuit Judge. We submit: 1. Actionis barred by Statute of Limitation. Gould’s Rig. p. J/63, sec. 33. Ib. p. 739, sec. 3. 2. Suit of 1862 is a nullity. Const. 1868, art. 1, sec. 35. -3. Refusal to allow first plea reinstated, was error. 4. Refusal to declare law propositions of appellants, was «error. As to third proposition, see Goioper, JJ73. There was nothing dubious in appellant’s equity. 3 Johnson’s cases, 8*21.

<p>Judgments — When enjoined. — Equity -will not relieve against a judgment at ' law when the defense could he made at law, unless it is clearly shown that the defense set up is meritorious, and the party was prevented from making it, hy unavoidable circumstances, or without any default or laches on his part.</p>

Hon. Elisha BaxteR, Circuit Judge. A mortgage -will not pass chattels not in existence at the time it was made, or not in the ownership of the mortgagor at the time. 1 Hilliard on Mortgages, p. 6; 3 lb., ch. J$, sec. J, T- and cases cited, particularly Moody v. Wright, IS, (Mass.) SO, S9; Winslow v. Merchants, etc., 3d, 306; Bernard v. Eaton, 3 Cush., 394-; Godman v. Freeman, 3d Ga., 306; Otis v. Sill, 8 Barb., 103; Gardner McEwen, 19 N. Y., 133; Qhapin v. Cram., 40 Maine…

<p>Appeal from, Pulaski Circuit Court.</p> <p>IIoN. ¥m. Story, Judge 2d Judicial Circuit, presiding.</p>

<p>Motion to enter Remittitur..</p>

Hoy. IIeney 13. Morse, Circuit Judge. The decree in this case is most clearly erroneous, as it was given upon the pleadings, answer replied to, and no proof whatever outside of the pleadings and exhibits. The answer responded directly to the bill, and denied some material aver-ments in the bill, and most assuredly the bill should have been supported by proof. 8 Ark., 890; Sneed v. Town, Ark., 535; H Ark., 410; 19 lb., 166; 13 lb., 592; 20 lb., 309.

<p>Petition for Mandamus.</p>

<p>Appeal from Columbia Circuit Court.</p> <p>Hon. JohN T. Bearden, Circuit Judge.</p>

<p>Attachment — Publication.—Publications in suits by attachment, made, in conformity to the law in force at the time of the institution of the suit, will not be affected by a subsequent statute changing the manner of giving notice.</p> <p>Liens. — A judgment in attachment, though, in form, i;i personam, under-the statute, is a lien on no other property than that- attached.</p>

How. JoiiN 'Wiiytocic, Circuit Judge. The statute prescribes one form of acknowledgment, whore the wife owns the land, and a different form where she merely has a dower interest. Gould’s Big. eh. 37, see. 81, and forms 89 and SO, in the appendix. In the case of Lane v. Bollicie, 6 McLean, 800, on a like statute, and the cases there cited, are, to our minds, conclusive •of this case.

<p>OeHSTiTTraoiTAii Law — Contracts for sale of slaws. — Section 14, article 15, of the present Constitution, relating to contracts for the sale or purchase of slaves, is repugnant to section 10, article 1, of the National Constitution, relating to the obligation of contracts and is therefore unconstitutional and void.</p>

it Court. 1ÍON. Thomas Boles, Circuit Judge. The receipts offered in evidence, should have been received as presumptive proof, at least, of payment, to be rebutted by W. & Co. 1 Greenl. Fv., 1J¡.., 88 and 1¡£; lb. 117, note. From the proof, every presumption must be indulged that the parties were satisfied that the note was settled.

<p>Appeal from. Phi 'lips Circuit Court.</p> <p>Hon. John E. Bennett, Circuit Judge.</p>

Hon. John Whytock, Circuit Judge. The note sued on does not show the amount, or when interest commences, whether from maturity or date, and is not such as is contemplated by sec. £5, chap. 99, Gould’s Pig. p. 657. It was wanting in one of the essential elements of a promissory note, which must he for a fixed and certain amount. Story on Prom. Notes, sec. 19, and citations. The plaintiff is not without remedy on a mutilated note.

<p>Appeal from Benton County.</p> <p>Host. E. D. IIam, Circuit Judge.</p>

<p>Appeal from I'ope Circuit Court.</p> <p>Hon. William N. May, Circuit Judge.</p>

<p>Partners — When rights vest. — Agreement of partnership to commence in futuro, upon the death of one of the parties, before the time fixed for commencement, no estate or interest intended to he contributed by either of the parties, vests in the partnership and the survivor takes nothing as such.</p> <p>Eight of Survivor. — A surviving partner has a right to the possession and control of the partnership property for the purpose of settling and closing the business, and not for the purpose of carrying it on.</p>

<p>Indoksehs — Release of. — To release an indorser on the ground of extension of time given l)y the indorsee to the maker, or on further security given by the maker to the indorsee, it must bo shown that a consideration was paid or promised for the delay or further security.</p> <p>“Waiver — Mow shown. — It is competent to show by parol, the waiver of demand and notice at the time of the indorsement.</p> <p>Liability — Demand and notice, within proper time, or a waiver thereof, must be proved, to fix the liability of the indorser.</p> <p>Demand and Notice — Waiver of. — An unconditional promise to pay by the indorsee, with a full knowledge of the facts by which he is released at law, is an implied waiver of demand and notice and a promise by in-dorser of a promissory note to pay after due, is prima facie evidence of demand and notice.</p>

<p>Appeal from Ashley Circuit Court.</p> <p>Hon. IIenRy B. Mouse, Circuit Judge.</p>

<p>Peactioe — The several pleas or defenses that may be set up in an answer, under paragraphs three and. four, section 116, Oode of Practice, stand each upon its own merits, and a demurrer may be sustained as to some and overruled as to others.</p> <p>Pleadinc — It is a rule well understood that a litigant is not bound to prove more than he avers, and a plea or defense, not denying title in plaintiff, or averring title in defendant, is bad on demurrer.</p>

Appeal front Pope Circuit Court. Hon. William N. May, Circuit Judge. The claim was not authenticated by affidavit, as required by law, to authorize a judgment of allowance. Lafferly Exr. v. Lafferly, 10 Ark. 268; Carnallv.

Hon. LibbRTY Bartlett, Circuit Judge.- In all eases of grants, the interpretation should be most favorable to the public and most strongly against the grantee. Held: after a careful and thoughtful review of this record and the points as presented-

<p>Vendors — Wtien Haile for taxes. — A. plea or answer by the maker of a note; giren in part consideration for the purchase of lands, that indorsee of the note, knew at the time of the indorsement that there was a controversy between the vendor and vendee (the maker and indorser), concerning who should pay the taxes on the lands so sold — should aver such a character of contract between the vendor and vendee, as would entitle the vendee to a deed with covenants of general warranty or a bond to that effect.</p>

Hon. Henry B. Morse, Circuit-Judge. ¥e submit that where a ft. fa. has been levied on particular lands and afterwards a ven. ex. is issued, the sheriff can neither levy on or sell any other property than that on which they?. fa. is levied. Whiting $ Clark v. Beebe, 18 Ark. f88; Keith v. Wilson, 3 Mete. (.Ky.) 801; Kenno v. Coulter, U¡, Ark. 38; Smith v. Hughes, 8^ III. 870; Holmes v. Melndoe, 80 Wis. 657. A homestead is not subject to sale under execution.

HoN. H. B. Moese, Circuit Judge. It is well settled, by a series of decisions of this court, that where an execution is issued upon a judgment, levied on personal property, a delivery bond taken, and returned forfeited, a new statutory judgment thereupon springs into existence, which merges and extinguishes the original judgment. Frazier v. McQueen et al.; 20 Ark. 68, and cases cited; Douglas etal. v. Twombly, 25 Ark,., 124-, and cases cited.

<p>Mandamus. — Mandamus will lie to compel tlie heads of departments of State to perform a mere ministerial act imposed upon them by law, though not in those acts requiring the exercise by them of judgment and discretion.</p> <p>Petition to be Sworn to. — The practice is well settled, that a jurat is necessary to a petition for mandamus.</p>

IIon. James M. Hanks, Circuit Judge. The main question involved, and raised for the decision of this court is, as to the validity of the notes and the powers of the courts to adjudicate the question — and it is submitted on behalf of the appellant, that slavery, as it is known to have existed in this and other States, was not recognized by the Constitution of the United States, and was not compatible with the spirit and purpose of that instrument.

JÍ0N. E. J. Searle, Circuit Judge. Realty of intestate cannot be sold save by the intervention and under the authority of some court of competent jurisdiction; and the answer not averring anything of this kind, and merely alleging a parol purchase thereof from the agent of Burgauer, is clearly insufficient, and seems conclusive as to reversal, without further reference to other points.

Appeal f/om Jefferson Circuit Court. TIoN. Hekry B. Morse, Circuit Judeje. The appellant submits tlie following: First. That the appellant was put in jeopardy of bis life by being put on bis trial on the merits in the former indictment in the same case; and that his trial under the indictment under which he was convicted, was putting him in jeopardy of his life twice, which Bhould not be done. Constitution of U. 8., 5th Amendment. Second.

<p>Appeal from Ouachita Circuit Court.</p> <p>Hon. Gr. W. McGowen, Circuit Judge.</p>

<p>Appeal from Woodruff Circuit Court.</p> <p>IIon. ¥m. Stoey, Circuit Judge.</p>

<p>Petition for Quo Warranto.</p>

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

’Hon. E. D. Ham, Circuit Judge. Contracts can only be rescinded by the mutual consent of the parties; and a contract cannot, in general, be rescinded in ‘toto, by one of the parties, when both of them cannot be placed in the identical situation which they occupied, and cannot stand upon the same terms as those which existed when the contract was made.

<p>Appeals — Practice on, from Justices' court. — Upon appeal from a justice of the peace, the circuit court does not review the case as upon error, hut tries it anew, as if no judgment had been rendered, and no appeal can he taken except from the judgment.</p> <p>It is error, on dismissal of an appeal, for want of jurisdiction, to render judgment for costs.</p>

Hon. H. 23. Moese, Circuit Judge. The court erred in refusing to allow parol evidence to show that the absolute deed, was, in fact a trust and mortgage. Hoffman’s Chy. H. 31, and cases cited on note, p. 84; 5 Page Chy. 10, and cases there cited in note 1. The appellee being the widow of the intestate, Littleberry B., was legally entitled to dower of one-third, for life, of the lands in question. Gould’s Dig. eh. 60, sec. 1, p. J¡A1; Nexo Digest, eh. 11, see. 1.

IIon. William N. May, Circuit Judge. In a case of felony, the defendant waives nothing that the record shows to he defective, unless there is an express waiver; and on error or appeal he has the benefit of all objections that he might have urged below. Sweeden’s case, 19 Ark., 205; Mriel’s case, 21 Ark., 212. The indictment is not in form and •charges no offense specifically.

<p>Appeal from Arkansas Circuit Court.</p> <p>Hon. Heney E. Mob.se, Circuit Judge.</p>

<p>Murder — Time of intent immaterial. — Where the State proves beyond a reasonable doubt, that the accused perpetrated the murder, by lying in, ■wait, or by other kind of willful, deliberate, malicious and premeditated killing, it is murder in the first degree, and the time when the intent was formed to take life is not material, so it be shown the design thus-formed was before the act of killing.</p> <p>Sanity — Burden of proof. — The legal presumption is in favor of sanity, and the killing not being denied, but assumed to be excusable, the burden of proof is upon the accused, and if he fail, by sufficient evidence, to change the presumption raised against him by the killing, the- jury being the judges of the weight of the testimony, tile case would be legally adjudged against him.</p> <p>Recoud — Must show objections. — Where the record fails to show that the defendant objected to the instructions given by the court, or that the-court refused to give instructions asked by the defendant, the objection will not be heard here.</p> <p>Jeopardy. — When, after the jury has been selected and sworn, unauthorized separation and misconduct is satisfactorily shown, the court may quash the venire, discharge the selected jurors, and award a new venire j and the defendant will not be entitled to a discharge from sentence under the verdict found against him, by reason of being formerly put in jeopardy.</p> <p>When Attaches. — Jeopardy cannot attach until the jury is duly impan-elled, and all the machinery of the court fully organized.</p> <p>Discretion of Courts. — In preliminary steps of a trial, a proper discretion may be exercised by any of the courts of original jurisdiction, which, if not grossly abused, will not bo considered here.</p> <p>Improper Influence — New Tría?. — When it is made to appear, to the satisfaction of the court, that what may have appeared tobe an improper influence upon the jury, was not so in fact, the court should overrule a motion for a new trial, based on that ground.</p>

Hoh. L. B. Mack, Circuit Judge. We submit that the court erred in permitting the bill to be amended after the cause was submitted, so as to make the allegations correspond with the proof. Shields v. Barron, 17 Mow. U. S. R. llj.li.. Batter son v. Fowler, Fx’r., 28 Ark. IflO. No facts are in issue unless charged in the bill, and no proof can be offered or relief granted for facts not charged in the bill. Story’s Fqt.

IIoN. Elisha Baxter, Circuit Judge. We submit: In the first place, according to the rule laid down by the Supreme Court of this State, in the case of Trap-nail et al v. Jordan et al, 7 Ark., JfiO, the court had no jurisdiction of the subject matter of Casey’s petition, and we suppose the circuit court should be bound by the same.

<p>Appeal from. Crittenden Circuit Court.</p> <p>IIoN. James M. Hanks, Circuit Judge.</p>

Francis Circuit Court. Hon. James M. Hanks, Circuit Judge. The plea 'of limitation was a meritorious defense, and it was error for the court below to refuse to receive it before the cause- - was submitted. Code of Practice, p. 61, secs. 156-56. ■ The court erred in not giving the second instruction asked by Ford, that is, “a past consideration will not support a promise.” See 1 Parsons on Contracts, p. 81J5, et seq.; Williams v. Perkins, 21 Ark., 18.

Hon. John Whytock, Circuit Judge. Appellant was entitled to dower — her husband bought the land in 1857, and died in possession of same. The proceeds which he used to pay for the lands belonged to him. Walker's A. M. Law, 838; 8 Erie f J. 81; 1 Har. £ G. 876; 1 Comst. 473; 8 Page 137; 3 Barb. Chy. 169; 15 Ark. 180. Kirby had an “equitable fee,” and in such a widow is endowable. Sec. 8 chap. 11, New Dig.; Adams’ Eq. llfi; 1 Jones N. C. 430.

<p>Appeal from St. Francis Circuit Court.</p> <p>Hon. ¥m. Story, Circuit Judge.</p>

IIon. ¥m. M.- Harrison,. Circuit Judge. The evidence of duress is confined to Bunyard, but it is. iiot made out. Burr v. Burton, 18 Ark., £18. The answer of Freeman being full, explicit and responsive in denial of the allegations of the bill, it is entitled, as evidence, to its full weight. Jordan v. Ftnno, 18 Ark., 593; Byrd v. Belding, 18 Id., 118; Spence v, Dodd, Id., 19,166.

Hon. John E. Bennett, Circuit Judge. All that is essential to the sale of a chattel at common law, is the agreement of the parties, that the property, in the subject matter, should pass from the vendor to the vendee. 1 Parsons on contracts, 519; 5th edition.

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

Host. John E. Bennett, Circuit Judge. Before tlie note could have been offered as evidence in a court of law, it should have be&n stamped with the proper amount. Dorris v. Gfrace, Ark. §26. There is a fatal variance between the note sued on and the one offered in evidence. See notes to Ky. Code, page 1 Mete. 839, ib. 4$0. There is an entire failure of proof as to John H. Hicks. Notes io Ky. Code, p. J$b., g. g. et seg; Gasper v. Adams, 28 Barb.

IIoN. W. N. May, Circuit .Judge. The rule is well settled, in this State, that in actions ex-con-tractu, a dismissal as to one defendant served with process, is a •dismissal as to all. Frazier v. State Hank, 4, Ark. 509; Hehee v. R. H. Hank, 4 Ark. 54-6-, Sillivantv. Reardon, 5 Ark. 540; Ashley v. Hyde, 1 Eng. 93; Pleasant v. State Bank; 3 Eng. 456; Pinjoy v. Hill, 18 Ark. 361.

IIoN. E. D. Ham, Circuit Judge. . We submit: That tlie instrument entered into before the sheriff, was not a recognizance, but simply a bond, and that no forfeiture could be had, nor could a scire facias issue upon it: Hicks v. The State; and if it were a recognizance, it is not in the form prescribed by the statute. See Gould’s Digest JfiO, chap. 52, sees. 59, 60; nor was it acknowledged, 5 Jacobs, S98; 2 Saund.

<p>Appeal from Johnson County Circuit Court.</p>

Francis Circuit Court. Hoy. ¥m, Story, Circuit Judge. The testimony of one witness will be sufficient against the denial of an answer, where the defendant can have no personal knowledge of the fact. The same principle holds where the fact denied cannot be supposed within the knowledge of the defendant. In such case, the only effect of the denial in the answer,. is to put the complainant to the proof.

Hon. E. I). Ham, Circuit Judge. It is submitted, that the appellant proved every thing in the court below, that the law required of him. See Daniel v. Le-fevre, 19 Ark. SOI. The probate court had no power to grant an order of sale to be made, unless publicly. Gould’s Dig. chap. 81, sec. 17, et seq; Ih. chap.

Hon. T. G. T. Steel, Circuit Judge. We submit that the court erred in overruling the motion for a now trial. See Chap. Dig. 120; 2 Wharton, 294.7, and Stewart v. State, 13 Ark. 74.9. Fraudulent practice is not a felony under our statute; 224, Chaps. New Dig. There are no grades in it as in larceny; McKenzie v. State, 6 Eng, 594; People v. Haynes, 14 Wendell, 572 3; 11 Wend. 18.

<p>Appeal from Jefferson Circuit Court.</p> <p>Hon. "Wm. M. HaRmson, Circuit Judge.</p>

<p>Trustees — Purchase by, / raudulent. — Tlie purchase, by a trustee or agent, of the property of which he has the sale, or in which he represents another, whether he has an interest in it or not, carries fraud on the face of it.</p> <p>Any sncli purchase is an abuse of such confidence and relationship, and any title, benefit or advantage derived therefrom, by the purchaser, is, in equity, fraudulently acquired, and inures to the benefit of the cestui que trust, or principal.</p>

<p>Appeal from Pulaski Chancery Court.</p> <p>Hon. T. D. W. Yonley, Chancellor.</p>

<p>Appeal from Independence Circuit Court.</p> <p>Hon. Elisha Baxter, Circuit Judge.</p>

Hon. H. B. MoRSB, Circuit -Judge. The county court of Chicot had authority to subscribe the internal improvement fund of that county; see sec. 52, chap. 101.,p. 713, Gould’s Dig.; and that the Mississippi, Ouachita and Red River railroad company, was a valid and duly authorized railroad company; see State v. same, 20 Ark., 4,95, on quo warranto. Having authority to subscribe for stock, the power to issue its bonds, for stock taken, follows as’an incident.

Tlie Supreme Court has appellate jurisdiction over the final orders and judgments of the county court, unless in cases where the appeal is given to the circuit court. See Code, p. £3, sections 15 and 16. The appellate jurisdiction of the circuit court, over the orders and judgments of the county courts, does not embrace a case like this. See Code, p. %5, sec. 19.

Hon. W. U. May, Circuit Judge. It is clear that Wells’ attempt to carry on the ferry, was in direct violation of law. Gould’s Dig chap. 70, sec. 1, et seq., and it is perfectly evident that this ferry franchise in Haynes, or his estate, was property which the courts would protect. See Brearley v. Norris, 82 Ark. 514; 18 lb. 19; 20 lb. 561; lb. 578.

<p>Practice. — Where there is no judgment on the finding, there is nothing to appeal from.</p>

<p>Injunction — Dissolution of. — The dissolution of a temporary injunction, before a hearing on complaint and answer, is not such a final order as that an appeal will lie from it.</p>

Hon. Elisha Bastee, Circuit Judge. We submit: 1. That whore the wife is the agent of the husband, acting in his absence, then from the necessity of the case, the wife is competent. . lown v. Lamp shire, 87 Vt. 52. Littlefield v. Hice, 10 Mete. 887; Stanton v. Lap, 378; 1 Gr. ISv. sec. 834, n. 1; Owen v. McCaioley, 36 Barb. 55; and our Constitution removes all incompetency on account of the witness being either a party to the record or a party in interest. Art. 7, sec. 88. 2.

Hob. John Whytock, Circuit Judge. AVliile the court may require a party in interest, where the evidence is nearly or equally balaueed, or in some other instances, to testify, yet we submit that, in this case, Wright not having been required by the court to testify, it was error in the court to permit him to do so.

<p>Practice — Sills of exceptions — Where there is no hill of exceptions taken— no motion for a new trial, an agreed statement of facts constitutes no part of the record, unless made so by bill of exceptions.</p>

<p>Pbacticb — Buie to show causa— Rule to show cause against particular relief sought, is obtained, on motion, ex-parta, and the time for the party to answer is governed entirely by the circumstances surrounding the case, and is left within the sound discretion of the court granting the same.</p>

Petition for Mandamus. This court can issue, hear, and determine writs of mandamus in all eases in which its jurisdiction may be invoked for that purpose. See Price ft. Barton v. Page, treasurer, 25' Ark. 527. We submit that the matters stated in the petition are sufficient to maintain the cause, in law, and that mandamus is the only proper remedy in this case, and not quo warranto, as insisted by the defendant. There is no other specific legal remedy that is complete.

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

Hon. John T. Bh AR»en, Circuit Judge. We submit that the affidavit for a new trial contains all the essential requisites as laid down in the cases cited in Rose’s Digest, p. 563. We submit, that motions for a new trial, on the ground of newly discovered evidence, are addressed to the sound discretion of the court, and the motion, in this instance, was not sufficient.

<p>Vendou’s lien — What assignee must allege. — The assignee of a note, which is a lien upon land, must allege in his bill, to inforce the lien, the agreement between the vendor and vendee, and unless he does, he will not bo heard in a court of equity.</p> <p>On title bond to convey, on the payment of the residue of the purchase money, an assignment of the note carries with it the lien; and the as-signee, to avail himself of the vendor’s lien, must allege in his bill the considerations of the title bond; as, also, whether any other notes, which are liens, remain unpaid; so the holders thereof should be made parties before tendering a deed.</p> <p>Tender of purchase money. — Where vendor wants the purchase money, the deed should be tendered before filing a bill; and where vendee wants a deed, the purchase money should be tendered before filing a bill.</p> <p>Purchase money — Failure to pay, not a forfeiture. — The mere fact that money is due, and upaid, does not create a forfeiture, nor is snch neglect regarded, in equity, as a default.</p> <p>Deed and tender of PAYMENT. — The payment of the purchase money, and the execution of the deed, are acts that are to be simultaneously done, and not in the order tliey happen to be stated in the title bond.</p>

<p>Petition for Jfandamus.</p>

. Hour. Elisha Raxteii, Circuit Judge. The court erred in permitting the witnesses to prove that a part of the defendants were sureties. Parol evidence was not admissible to vary the written contract.

<p>Bills oe Exception. — Where the bill of exceptions fails to show that appellant objected to the ruling of the court in refusing to give instructions asked by him, and fails to set out the instructions asked for by appellee, but sets out the declarations of law made by the court, without showing at whose instance they were made, the judgment will be affirmed. ></p>

<p>O32i~L AND Wi~xr~~ T~sTn~oNy-How mado of 9'eoo~d.-Neither oral or written testimony constitute any part of the record, miloss it is made s~ by order of the court, by agreement of the parties, by demurrer, by oyer by bill of exceptions or by spt~cial verdict.</p>

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

<p>Appeals — What necessary. — Where no exceptions are taken to any decision or ruling of the court, no motion for a new trial, nor any hill of exceptions, or other steps to bring the evidence beforo this court, there is nothing presented for the action of the court.</p>

Hon. Hjsniiy 3?. MORSE, Circuit Judge. That the affidavit was properly authenticated and sufficient. See Kauman v. Stone, 25 Ark. We submit that there should have been a trial de novo in the circuit cQurt. See sec. 20 of the Code; also sec. 830, which provides, that on appeals from probate courts {see sec. 806,) the action shall be tried anexo.” See also Gotdd’s Dig., p. 188, sec. 201; Grimes v. Bush, 16 Ark, 61/.9.

<p>Murder -Verdict should find the degree. — In an indictment for murder, a verdict of conviction, which does not find the degree of murder, is so fatally defective that no judgment can be entered upon it.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Hon. Henry B. Mouse, Circuit Judge.</p>

Hon. John “Whytock, Circuit Judge. This suit was brought under the Ijth section of uAn Act, ■defining the jurisdiction of Justices of the Peace,” approved December 16,1863, and was properly brought in the name of Ringo, the party in interest, if brought at all under the law then in force.

How. L. H. Mangum, Special Judge. The infant appellant, Littleton Penn, was never properly notified of the original bill. Held: in White v. Gannon, 6 Wallace, 448, that a judgment rendered by the Supreme Court of Louisiana, during the rebellion, was not void, but valid.

<p>Error to Arkansas Circuit Court.</p> <p>Hon. William M. HaRRison, Circuit Judge.</p>

<p>Judgment by Confederate Court void. — A judgment rendered by a court held in this State, after the passage of the ordinance of secession, is coram non jwdice and absolutely void?</p>

Francis Circuit Court. IIon. William Story, Circuit Judge. We submit that it is not necessary to obtain leave of the court, before a bill of review for error of law apparent on the face of the decree, is filed. ' Sec 405, Story’s Com. Eq. (4 ed.) “It may be brought upon error of law appearing in the body of the decree itself.

Hon. E. D. Ham, Circuit Judge. The denial in the answer of appellant threw the burthen of proof upon the appellee; Greenl. Ev. 838, Sec. 860. The presumption of law is in favor of soundness of mind; 8d Kent, 668. Mere mental imbecility is not sufficient, there must be a total loss of the reasoning faculties, to avoid a deed or contract; 8d Kent, 564■; Bambean v. Brant, 17 How., J3; 81 Curtis, 854. Nor will inadequacy of consideration avoid a deed; lb.

<p>Mandamus — Will not control judicial discretion. — The issuing of an injunction is not an act ministerial in its character only, hut one of judicial discretion, and mandamus never lies to control that discretion.</p>

<p>"Obimxnal Law. — A verdict of conviction in a case of murder, which does not find the degree of murder, is so fatally defective that no judgment can be entered upon ijr.</p>

<p>Appeal from Pulaski Circuit Court.</p> <p>Hon. John Whytock, Circuit Judge!</p>

Hon. W. M. HaRRIson, Circuit Judge.' . The notes, which are the foundation of the claim in this case, were not negotiable by the law merchant, because, first, they were under seal; Walker v. Johnson, IS Ark., 5S7. Second, they were not for the payment of a certain sum of money, absolutely and unconditionally; Story' on Notes, sec. 1.

<p>Appeal from Carroll Circuit Court..</p> <p>HoN. Elias HaRrell, Circuit Judge.</p>

<p>Appeal from Pulaski Chancery Court.</p> <p>Hon. T. D. W. Yonley, Chancellor.</p>

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

<p>Appeals — When damages awarded on, eta. — Where, upon examination of the record, no error in the proceedings is found, but the appeal appears to have been prosecuted for delay, the judgment will be affirmed and damages awarded.</p>

<p>Appeal from Arkansas Circuit Court.</p> <p>TIon. Henry B. Morse, Circuit Judge.</p>

<p>Illegal Consideration — A plea that the consideration of a note sued on was a horse, bought by the maker for the Confederate service, with the knowledge of the payee, is a good defense, to a suit thereon, by the payee.</p> <p>Mis-joinder or parties, etc. — Where the assignor of a note is improperly joined with the assignee in a suit upon the note, and judgment is rendered in his favor, jointly with the assignee, although the judgment as to him is erroneous, yet if no motion be made in the court below to correct the error, it will be no ground for reversal in this court, and will .be considered as waived.</p>

Hon. Henry B. Morse, Circuit Judge. The point involved here is apparent on the record, and no bill of exceptions is needed to put it there. 5 Ark., 700; 35 lb. 503; 3 Bush. (Ky.) 580. We submit that the defendant, after giving bond to dissolve the attachment, was estopped from pleading against the affidavit. He could only plead matters that went to the merits of the case and not preliminary matters or matters in abatement.