Volume 27 — Arkansas Reports

<p>Landlord — him of, when attaches. — The lien of the landlord, for rent, is a charge upon the crop, and accrues as soon as there is any crop upon which it may attach.</p> <p>Same — Enforcement of, ly Attachment. — Under the Act of December 28, 1860, the process of attachment was designed to give the landlord a more efficient remedy tor the enforcement of his rights under the lien, and the attachment, when issued, relates bad!:, as enforcing the lien, to the time when the lien accrued.</p> <p>Practice — Judgments in Attachment where Interplea. — Under the Act of January 9,1861, where property attached is interpleaded for, the judgment, when against the defendant in the original suit, should be against him with an order of execution against the property attached, in the event the interplea should be determined in favor of the plaintiff.</p> <p>Interpleader — Judgment on. — On trial of the interplea, if the property . be found subject to the attachment, the judgment should be that the plaintiff have execution against the property, and if the same is not delivered to the sheriff by the interpleader, on demand, that execution issue, on the return of the facts in the scire facias by the sheriff, against the interpleader and his securities.</p>

Hon. Henry 13. Morse, Circuit Judge. We submit that, as appellants had no notice of the liens whep the case was tried, the appellee’s equitable lien could not be enforced against him, -an innocent purchaser, without notice. Shall vs. Biscoe, 18 Ark. 142 ;■ Scott vs. Orlnson, 21 ■ Ark. 202.

IIon. Elisi-ia Baxter, Circuit Judge. 1. Tlie Probate Court may revoke letters, on affidavit, notice and proof wlien an executor or administrator becomes of unsound mind, or wastes or mismanages the estate, or acts so as to endanger his eo-executor. Gould’s Digest, ch. 4, sec. 35. 2.

As to the objection that the writ of quo warranto can only be brought on the relation of the Attorney General, and not on the relation of .any other person, we submit: That the amendment of the law by Sec. 525, of the Code, was merely the adoption of the- English statute of-9 Anne, ch. 20. ‘The Code proceeding is only the quo xoarranto, of the common law, codified, and it does not lie in the Code to impair the jurisdiction of this court, by prescribing new forms, though the…

Hon. Q-. ~W. McCoavn, Circuit Judge. In this case we take it that if the law would subrogate the negligent sheriff to the rights of the creditor, whose judgments he had paid, an assignment would be useless; and that an assignment could not impose any additional burden on the surety, which was not inherent in the nature of the situation.

1. Courts Lave power over tlieir own process, wlien deed Las not been executed, approved, etc. State Bank vs. Noland,. 18 Ark., 301; 6 AN., 425; 10 Ark., 541. 2. - Judgment for costs cannot be rendered when courts Lave no jurisdiction. 5 Eng., 569; 21 AN., 93. 3. At tlie time of the issuance of tlie execution and pretended sale, tlie terms of the Supreme Court were the third Mondays of April and October- of each year. Acts of 1868, p. 144. 4.

We submit that the statute ought not to be construed so as to have a retroactive effect, or to make contracts good that were illegal at the time they were made. Baldwin■ vs. Cross, 5 Ark., 510; Crittenden vs. Johnson, 14 Id. 464; Couch vs. McKee, 6 Id. 498. That the repeal of the usury laws did not affect contracts in force at the time of the repeal; see particularly, Mitchell vs. Boggett, 1 Branch, {Fla) 356; Merville vs. Be Blanc, 12 Ba.

<p>APPEAL-RROM CLARK CIRCUIT COURT.</p> <p>Hon. E. J. Searle, Circuit Judge.</p>

Hon. Elisha Baxter, Circuit Judge. Appellee sued appellant as indorser, and offered no' evidence of demand of the maker and notice to the defendant. Without these, the defendant was under no obligation either moral or legal. Green vs. Thornton, 7 Ark., 383; Ruddell vs. Walker, lb. 457; Grace vs. McDaniel, 13 Id. 395; Nevill vs. Hancock, 15 Id. 517; Jones vs. Robinson, 11 Id. 504; Levy vs. Drew, 14 Id. 336.

<p>ARREAL FROM CHICOT CIRCUIT COURT.</p> <p>Hon. Henry B. Morse, Circuit Judtje.</p>

<p>Forcible Entry and Detainer — Actions of, distinct. — The actions of Forcible Entry and Forcible Detainer, as provided for in our system of practice, are separate and distinct actions.</p> <p>Forcible Entry— What necessary to show. — In an action of forcible entry it is necessary to show that the defendant' did actually enter into the lands or tenements of the plaintiff', without the consent of the person having the possession in fact of the pi'emises.</p> <p>Forcible Detainer — What must appear. — In an action of forcible detainer it must appear on the face of the warrant, in some way, that the relation of landlord and tenant exists, or existed between the plaintiff and defendant, * said to have "been in possession, at the time of the entry.</p> <p>Actions of — Cannot he joined. — The actions of forcible entry and forcible detainer cannot be joined so that a warrant for forcible entry can be the foundation for a verdict of forcible detainer; in the one, force is the gist of the action; the other is founded on a breach of contract.</p>

Hon. Henry B. Morse, Circuit Judge. We think the court clearly erred in refusing to give the second and third instructions asked for by the plaintiff.' That the tenant cannot dispute the title of his landlord. See 1 Ark., 495; 9 Ark., 333; 13 Ark., 387 and 455; 15 Ark, 104; 20 Ark., 560; Taylor’s Landlord and Tenant, section 728, and note; 1 Washburn on Real Property, 483, 484, 486 and 487; 3 Pet., 44, 5 Pet., 485.

<p>APPEAL ER0J1 SEBASTIAN CIRCUIT COURT.</p> <p>Hon. E. 1). Ham, Circuit Judge.</p>

<p>APPEAL PROM ASHLEY CIRCUIT COURT.</p> <p>I Ton. Henry B. Morse, Circuit Judge.</p>

<p>Constitutional Law — Writs of Error, Clerks may issue. — Chapter 124, QoulcEs Digest, regulating the issuance of Writs of Error, is pot in conflict with the present Constitution, and so much thereof, as has not been repealed by subsequent legislation, is in force, an'd the clerk of this court is authorized to issue such writs in vacation, as well as in term time.</p>

,IIon. Wm..Story, Circuit Judge. We submit that the balf .interest of tbe sister in tbe lands having been conveyed and fully paid for, tbe court erred in decreeing that tbe administrator of Brown bad a lien upon all tbe lands. Bailey vs. Greenleaf, 7 Wheat, 50. At most, Brown was only an agent for bis sister’s interest in tbe lands, and neither an agent or trustee could have a vendor’s lien. Burr vs. Bobinson, 25 Ark., 281.

<p>APPEAL FROM JOHNSON CIRCUIT COURT.</p> <p>IIon;, W. N. May, Circuit Judge.</p>

Hon. John Whytock, Circuit Judge. Under our statute, the death of a sole plaintiff or defendant does not abate the suit, but the party, in whom the action survives, may continue the cause, by an order of court, substituting himself.

Hon. Elisha Baxter, Circuit Judge. First, Tlie Circuit Court erred in affirming tlie judgment of the Probate Court without a trial de novo — Collier, ad. 'vs. Kilcrease, MS. opinion, present term. Second, The cases were treated as consolidated without an order of court for that purpose. Third, The coui't erred in sustaining the demurrer to appellants plea of bankruptcy. Brightley’s Bankrupt Law, p. 48.

Non. -John WiiYtocic, Circuit Judge. First, We submit that no trust could result or be declared in favor of Smith.; lie invested the money as the agent of Northrop, and with the understanding that Northrop should pay it hack. 17 Miss., 228; 5 Gush., 431; 1 Md., chap. 479; 2 Paige, 217; 1 Dev. and Bat.

<p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>Hon. Henry B. Morse, Circuit Judge.</p>

<p>APPEAL EltOM I10T SPRING CIRCUIT COURT.</p> <p>IIon. .John Whytocic, Circuit Judge.</p>

<p>PETITION FOR MANDAMUS.</p>

APPEAL ER0M JOHNSON CIRCUIT COURT. Hon. William N. May, Circuit Judge. Eirst, The obligation filed before the Justice, as the foundation of the suit, shows no canse of action, and the Circuit Court should have dismissed the case, on appeal.

<p>Appeals — Will only lie from final judgments. — An appeal will only lie from ' a final order or judgment; the overruling of a demurrer is not such a final order or judgment.</p>

Hon. Henrry B. Morse, Circuit Judge. A sheriff is entitled, “for receiving and paying moneys on execution or process, when lands or goods have been taken in custody, advertised or sold, to two per centum commissions, and in no event shall be deprived of such commissions after an execution has gone into his bands, by any settlement or compromise between the parties.” Acts of General Assembly, Ark., 1868, lsi Session, p. 240; Crittenden County vs. Crump, 25 Ark., 235, and…

APPEAL PltOM uxrox COUNTY CIRCUIT COURT. Hox. (Riorum AV. AIcCWx, Circuit Judge. A mandamus is not a. writ of right. It is always ex ■parte, and will be granted only when a party has shown ho has a 'legal right, and no other adequate specific legal remedy. 1st Chp. Geni.

Hon. Henry Ik Morse, Circuit Judge. Tlie charges made upon the estate by the will, made the estate equitable assets to be administered in a court of equity. Silk vs. Prime, 2 Ijead. Cases Eq., part 1, top page 212, et seq. and notes; Note, Booth vs. Blundell (top page, 213); Merival, 232; S. G 19. . The-estate being kept together for a certain time to be worked for the benefit of all, charges it with equal burdens, upon the principle of contribution.

<p>PETITION ROB MANDAMUS.</p>

Hon. Elisha Ranter, Circuit Judge. During tlie prevalence of a war, the citizens of the hostile States are incapable of entering into a valid contract with each other. 7 Peters, 586; Story on Prom. Notes, Sections 94 and 95. The civil Avar betAvecn the United States, and the seceding States, involved the usual cousequences and rights of international Avars. The Sarah Star, Bl. Pr. Cas., 69.. The war continued, and AAas not ended till August 20th, 1866.

IIon. John 'Whytock, Circuit Judge. First, The .Code does not authorize a recovery upon any statement of facts, which, before its adoption, did not authorize a recovery in some form of action. See Hill, for use of Ylintersmith vs. Barrett, etc., 14 B. Monroe, p. 84, 86. Second, The body of the petition should show who complains, and if partners, to describe and name each partner, etc., as at common law. 1 Chittg PL, 257-264 ; Stephens’ PL, 302-441; Gould’s PI. 77-8.

<p>Practice— When case stricken from docket. — Where no exceptions are taken, nor any appeal prayed for or granted, either in the court below or by the clerk of this court, the case will be stricken from the docket.</p>

Hon. IIenry B. Morse, Circuit Judge. Tunstill was in possession of the land, and there was nothing to hinder Duncan, the .appellee, from bringing ejectment. According to the allegations of the hill, the appellee had an ample remedy at law, and no right to go into equity. See Hanley vs. Byers, decided at present term. The appellants mistook their remedy in attempting to seize' this trust fund through a process from a law court. It should have been attempted only in equity.

<p>Trustees — Carchase >•[ trust property by, when set as.de. — A purchase made by a trustee, of trust property, may be set aside, by the beneficiary, on the ground that the same is a fraud either actual or constructive, but the trustee, as such purchaser, will not be allowed to raise the objection.</p> <p>Purchasers — Cannot retain possession and avoid payment. — The vendee, 'in possession, under a contract of sale, cannot retain possession and avoid payment of the balance of the purchase 'money, on the ground that the vendor cannot make as good a title as agreed; before ho can avail himself of such defense he must offer to rescind the contract.</p>

Hon. T. D. W. Yonley, Chancellor. The bill charges that Killian obtained the conveyance from his wife by taking advantage of the weakness of her mind, occasioned by excessive use of morphine, and ill-health. The answer directly denies this, and is good, unless contradicted by two witnesses, or one with strong corroborating circumstances. Burr vs. Burton, 18 Ark., 214; Spence vs. Dodd, 19 Id. 166.

QUO WARRANTO. We submit it was competent for the legislature to repeal the act of July 9, 1868, which made the county clerks of the several counties, ex-officio recorders thereof, and confer the duties*of recorder upon another officer. The office of recorder is not an office created by the Constitution. ' See Sec. I, Chap. 142, Gould’s Dig. The Constitution of 1836 is silent as to the office of recorder — it was created by act of legislature.

<p>APPEAL EROM ASHLEY CIRCUIT COURT.</p> <p>Hon. Henry JR. Morse, Circuit Judge.</p>

APPEAL If ROM SEBASTIAN CIRCUIT COURT. - Hon. William Glass, Special Circuit Judge. TIlc proof shows -that the partnership was a special one, and. in such case, one having the right of possession may maintain replevin, though the general title to the property may not he in him. Prater et al. v. Frazier and -irife, 6. Eng., 249; Cox et al. v. Morrow, 34. Ark., 603.

<p>APPEAL EROM JEEEERSON CIRCUIT COURT.</p> <p>IIon. Henry E. Morse, Circuit Judge..</p>

<p>APPEAL PROM JEEEERSON CIRCUIT COURT.</p> <p>Hon. Henry B. Morse, Circuit, Judge.</p>

APPEAL J’’ROM CRITTENDEN CIRCUIT COURT. The question in this ease is, as to the rights of prior and subsequent incumbrancers to have satisfaction out of the land, according to their priorities. The rule of law which governs this question is laid down in the following authorities : 2 Story’s JEq. Juris. See. 837; Berry vs. Mat. Ins. Co., 2 John. C. JR., 607, 611; JHJaines vs. Beach, 3 John.

• Hon. E. I). Ham, Circuit Judge. The rule that once obtained requiring a party, having a mere equity in land, to resort to a court of equity to attack a deed or patent, has been changed, and the case can be heard in aTaw court. Trulock vs. Taylor, 26 Ark., 54.

IIon. E. D. Ham, Circuit Judge. For more than four years previous to the year 1860, Greenwood wa's the county seat of Sebastian county, as it was for many years afterwards. By Section 20, Chapter 44, page 297, Gould’s Digest, county sites, established over four years, cannot be removed but upon paying inhabitants for their lots, etc. This is still in force by Article VI, Section 15, Constitution of Arkansas.

IIon. Henry B. Morse, Circuit Judge. We submit: First, There are no answers or denials from Sessions as to the debt due B. & Co., and this default admits it as alleged, and a decree pro covfesso on that, binds them and all their privies : Cunningham v. Steele, 1 Litt, 58; 2 J. J. Marsh, 136; 6 Mon., 192; 8 Porter, Ala., TP)-, 4 Hen Munf, 476; Stoi-y Fcq. Pis., (by Redfield) 789-94 and notes.

Hon. E. D. Ham, Circuit Judge. The deed was properly executed. It is in due form and recites all the prerequisites necessary to be contained in a tax deed. The statute, Gould’s Digest, Chap. 148, See. 112, makes such deeds good and valid titles, in law and equity, and evidence of the legality and regularity of the sale of such lands until the contrary appears. The court did not err in excluding the deed from the jury.

APPEAL ER0JI RANDOLPH CIRCUIT COURT. ‘ Hon. Elisha Baxter, Circuit Judge. It is settled law that a vendor has a lien for the purchase money, though he make the purchaser an absolute deed, reciting the receipt of the purchase'money; and this, as against the vendee or a person purchasing with notice that , the purchase money is unpaid. Scott vs. Orbison, 21 Ark., 202; Harris ■vs. Hanks, 25 Id., 510.

<p>Cloud upon Title — To remove, what bill must allege. — A party, when asking for equitable relief in removing clouds from his title, must be in actual possession of the lands, or they must be unoccupied or not in the actual possession of another; otherwise his remedy is complete at law.</p>

<p>APPEAL FROM JEEEERSON CIRCUIT COURT.</p> <p>Hon. William M. Harrison, Circuit Judge.</p>

II011. M. L. Stephenson, Circuit Judge- The only evidence, before the court, of the property seized by the sheriff, is his return. It is the record evidence of the fact, not to be contradicted. Pose vs. Ford, 2 'Ark., 26; Dawson vs. State Bank, 8 Ark., 505; Stewart vs. Houston, 25 Ark., 311; Tucker vs. Bond, 23 Ark., 268; Ayres vs. Dupuy, 27 Tex., 593; Carr vs. Commercial Bank, 16 Wis., 50.

<p>PETITION EOR. MANDAMUS.</p>

■APPEAL FROM PHILLIPS CIRCUIT COURT. Hon. John E. Bennett, Circuit Judge. This bill should have been dismissed without prejudice, so' that appellee might begin a new suit whenever he should acquire a title that would justify such a step. See Wakefield A Johnson, 26 Ark., 506. 1st. The lien of the-appellee for the unpaid purchase money was good — 2 Wash. Beal.

Hon. Henry B. Morse, Circuit Judge. On behalf of the appellant it is submitted : That the ruling -of this court, in the case of Hornor vs. Hanks, 22 Ark., 572, ;and upon which the court below based its decision, is incorrect, in principle, and annulled by other decisions of binding •obligation. ' As to the issuance«md final control of the final process of the Federal courts, it is confessed that there are no acts of Congress by which any substantial element of power has ever…

Whether the decision in Hawkins vs. Filldns, 24 Ark., 286, or that of Penn vs. Tollison, 26 Ark., 515, was the true interpretation of the law is immeterial.

Hon. J. M. Hanks, Circuit Judge. It is submitted on behalf of the appellant: That the law being, that the husband shall be liable for the debts of the wife, created dum sola, it could only be changed by the law making power. Story on Contracts, Section 88; Chitty on Contracts, 38; Higason vs. Collins, 8 Ark., 241; Lamb vs. Pelden, 16 Ark., 539; Dobbin vs. Hubbard,, 17 Ark., 194; Tyler on Infancy and Coverture, 332.

IIon. John Whytock, Circuit Judge. First. The affidavit hy the attorney to the hill is not within the purview of Section 603 of -Code. Second. The proof of publication fails to show who “ John* G. Price ” was, which was absolutely necessary. Saffold vs.. Saffold et al., *14 Ark., 408. Third. There .was no attorney, appointed by the court, to-defend for the appellant, as required by law. Code, sec. 603,, Sub. Div. First* Fourth. The court erred ’in decreeing a sale for cash.

Hon. John E. Bennett, Circuit Judge. 1st. The County Court has control over its judgments during the whole of thegterm at which they áre rendered. 2 Ark., 66; 6 Id., 92; 10 IJ.,-241; 5 Id., 25; Code, page 176, Sec. 571. 2d. Presumption in law is in favor of the finding of the County Court. 2-3 Ark., 14; lb. 208. 3d. Section 13 of the law, (new Digest, p. 166) places the matter of appointing county attorneys with the County Court, and unless there is a plain abuse of this…

<p>Aclams obtained á decree in chancery for the payment of money, or in default thereof, for the sale of lands.’ Afterwards, without payment, on supposed equitable grounds, by agreement with the judgment debtor and by consent of the Probate Court, an order was made in the Probate Court directing the administrator to enter satisfaction of the decree on the chancery record, and releasing him, as such administrator from responsibility for the amount of the decree. On application of administrator de bonis non, to enforce the decree; Held, That the Probate Court had no authority to make such order, and the administrator was accountable for the amount of the decree.</p>

<p>Cohvedebate Money'- — Not a valid payment. — The payment in confederate money is not a valid discharge or payment of a debt or obligation. (Thompson vs. Mankin, 26 Ark., 586, and Yinsant vs. Knox, paye 266. App>rovcd.)</p>

Hon. Henry B. Morse, Circuit Judge. First. The court below erred in not allowing attorney’s fees as legitimate costs of administration ; See Secs. 194-5-6, Chap. 4, Gould’s Dig. That the court should have considered the question of attorney’s fees; See Sec. 201, Chap. 4, Gould’s Dig. As to*the matter of bill of exceptions : See Dempsy vs. Fenno, 16 Ark., 491. Second.

<p>APPEAL FROM CRITTENDEN CIRCUIT COURT.</p> <p>Hon. J. M. Hanks, Circuit Judge.</p>

Hon. William N. Mat, Circuit Judge. . First. Appellee had full and complete remedy by execution', after order of payment and refusal to pay. Gould’s Digest, Chapter 4, Sections'143-47. Second. The whole matter was pending in another court, the Chancery, which takes jurisdiction for all purposes, and the court first taking jurisdiction retains it; therefore the sci. fa. should have been dismissed. 5 Ark., 424; 21 Id. 367;, 10 Peters, 400; 25 111., 107; 24 Howard (TI.

Hon. T. D. W. Yonley, Chancellor. That the deed from Field to-Rapley, and mortgage from Rapley to the Bank was not intended, and did not pass the title out of Field — and for construction of these deeds. See Guthrie vs. Field, 21 Ark. Rep., 385, and Trapnall et al. vs. Benton et al., 24 Ark., 389, and this last case is applicable to the present one throughout. That possession gave Field title, and limitation would bar Rapley and his heirs as to deed of 1837.

Hon. Elisha Baxter, Circuit Judge. The first instruction asked for by the plaintiff ivas precisely the law (sec Tr., ¶. 60), and should have been given. Dickinson vs-Burr, 15 Ark.., 372; Taylor vs. (Joolidge, 17 Id., 457. First. The matter of permitting a witness to be' recalled is within the sound discretion of the court, and will not be interfered with unless it clearly appears that discretion was abused. 1 Greenlf. Fv., 467, 21 Ark., 559. Second.

IIon. John Whytock, Circuit Judge. First. This is not an excessive valuation, which could be corrected by the board of equalization; but even if the board had the power, this court would interfere to prevent “an irreparable injury.” Section 294 of Code. A sale for taxes, illegally assessed, will be restrained by injunction. Burnett vs. Cincinnati, 3 Ohio R., 78. Second. That it was the intention of the Legislature to make mills taxable, and sold as real, property.

<p>Forcible Entry and Detainer. — Under Section 497 of the Code of Practice on traverse of the verdict of a jury, on appeal to the Circuit Court — Held, That the jury in their verdict could not pass upon the question of misjoinder of parties or upon the constitutionality of the law.</p>

<p>Appbals— When no final judgment, etc. — "Whore the record shows no Anal judgment or decree, in the court below, the appeal will be dismissed.</p>

<p>APPEAL EROM PULASKI CIRCUIT COURT.</p> <p>Hon. John Whytock, Circuit Judge.</p>

Non. W. N. May, Circuit Judge. The appellee having only a dower interest, the form of the mortgage is defective. There is no relinquishment of doioer ■clause in the mortgage, and the acknowledgement is fatally defective as to appellant. Gould’s Dig., -Ch 37, Sec. 21. The mortgage was not entitled to he recorded; See Section 22 ; nor to be offered in evidence; See Sec. 26, Gould’s Dig.

<p>APPEAL PROM PRAIRIE CIRCUIT COURT.</p> <p>Hon. John 'Wiiytock, Circuit Judge.</p>

<p>APPEAL EROM POPE CIRCUIT COURT.</p> <p>IIon. "W\ N. Mat, Circuit Judge.</p>

<p>Appeals — When dismissed. — When, on appeal, the transcript is not filed within the time prescribed by law, the appellee, on filing a certified copy of the judgment and order of appeal, may have the same dismissed.</p>

PETITION E0R HABEAS CORPUS. Under tbe Constitution of 1836, tbe Circuit Courts were regarded as tbe principal courts of assize of their respective counties — bad jurisdiction throughout tbe county… Held: and bold at tbe county seat. No other Circuit Courts were known, and we should give to tbe language tbe same meaning which it had in the minds of those who used it. State vs. Scott, 9 Ark., 270; Allis, ex parte 12, Id., 101.

<p>PETITION EOR HABEAS CORPUS.</p>

<p>'Gaming — Who liable for. — Wherever a gambling table or gambling device is kept, set up or exhibited within the State, all, whether proprietor, clerks, servants or agents, who aid or assist in the keeping, setting up or exhibition, are liable to indictment and punishment.</p> <p>Same — “ Kenof a gaming device. — The game called and known as “Aereo,” is a game at which money or property may be won or lost, and is a gaming device within the meaning of the statute.</p>

<p>“Keno” — A gambling device, etc. — All persons who play at the gamo commonly . called and known as “Keno," are guilty of gambling; and the person who sets up, keeps or exhibits this apparatus, contrivance or machine, is guilty of setting up, keeping or exhibiting a gambling device, and is liable to the penalties of the statute.</p> <p>Misconduct oe Jury — When defendant cannot complain. — Where misconduct on the part of jurors has been of injury to a party, it is the duty of the court to set aside the verdict, but the defendant cannot complain where the act or misconduct would have been for his benefit.</p>

“APPEAL PROM YELL CIRCUIT COURT. IIon. William N. May, Circuit Judge. We submit tliat tbe court erred in giving tbe second instruction of tbe plaintiffs, as tbe evidence clearly shows that the appellees were not partners, in respect to the transaction or cause of action upon which the instruction was basedSee Oliver vs. Gray, 4 Ark., 425; Kent. Com. vol. 3., Sec. 24; Champion vs. Bostwick, 18 Wend., 175; Louis vs. Marshall, 12 Cowen., 69 ; Slory on Partnership, Secs'. 27-29.

IIon. IIenry B. Morse, Circuit Judge. The complainant failed to file with bis hill the original deed, ór a copy of the same, or to state that he could not procure said deed, or a copy thereof, on which he relied; his bill should have been dismissed. Sec. 48, Chap. 28, Dig.; Sec. 148, Ark. Code; 11 Ark. 121; Hill, use, etc. Wintersmith vs. Barrett, etc., 14 B. Mon. 86; 2 Metcf. Ky. 88; 25 Ark. 30.

IIon. William M. Harrison, Circuit Judge. The declaration is insufficient, and the demurrer to defendant’s plea reaches back to these defects. See Bose Dig. Tit. Demurrer, page 269, section 34. 'There was no covenant to pay $4000 for the entire interest of Williams, only permission given to buy at a certain price, and no breach could be assigned: 10 Johns. 575 ; 2 Hayer. 127; 7 Cowen662.

<p>APPEAL PROM LITTLE RIVER COUNTY.</p> <p>'Hon. E. J.. Searle, Circuit Judge.'</p>

<p>APPEAL FROM MONROE CIRCUIT COURT.</p> <p>TIon. John E. Bennett, Circuit Judge.</p>

IIon. John E. Bennett, Circuit Judge. The court erred in granting the writ of mandamus, because: . First. The Board of Equalization bad and exercised a legal discretion. “Mandamus will not lie where an inferior tribunal, having a discretion, has exercised it.” Fx parte Barrett, 2 Coto. 458; Fx parte Nelson, 1 Coto. 417; Gray vs. Bridge, 11 Pick. 189; Fx parte Bailey, % Cow. 479; Fx parte Benson, 7 Cow. 363; Lamar vs. Marshal, 21 Ala. 722; People vs. Judge of Wayne Co..

Hon. John E. Bennett, Circuit Judge. The land in controversy in this suit was, and is admitted to be included in the Act of Congress, 28th September 1850..

Hon. ~W. N. May, Circuit Judge. Although a record is not as full as it might he, yet if there is enough presented in and by it, to place this court in possession of the points involved, that is quite sufficient, and this court will proceed to consider and determine the case; Nichols vs. State Bank, 3 Yerger, Tenn., 107; Stamps vs. Bush, 7 How., Miss., 255; Jordan vs. Adams, 7 Ark., 348.

<p>Appeals — Pi'actiee on. — Where no error appears upon the face of the record, and. no exceptions taken, motion for a new trial, or in arrest, in the court below, the judgment will be affirmed.</p>

We submit: First. This court has no jurisdiction of the subject of the action. See State vs. Ashley etals., 10 Ark. 280. Second. The rule should disclose the grounds upon .which the information was granted, which-it does not do. See Fields Practice, 3d American, from the 9th Pond. Fd., vol. 1 .,page 657; Chap. 2, Civil Code. Third. That the defendant, under the Constitution and laws of the land, is entitled to hold the office until January 1, 1873.

<p>APPEAL FROM CALHOUN CIRCUIT COURT.</p> <p>IIon. Gr. "W. McCown, Circuit Judge.</p>

IIon. W\ N. May, Circuit Judge. The consideration for the note was the debt of Draper to Sykes, and not that of Lafferry to Draper, or rather it was a new debt, the consideration of which was the discharge of the old debt; 1 Parsons on Cord., 221. It was a case of new parties by novation; Id. 217, and authorities cited.

TIon. William C. IIazeldine, Circuit Judge. First. The chapters of the Digest not being law, the Circuit Court had no jurisdiction, and its judgment is a nullity. Bevy vs. Shiarmav, 6 Ark., 182; Derton vs. Boyd,, 21 Id., 267. Second. The answer was evidently good. If the administrator had illegally squandered the assets, or had claims allowed which were not valid, he and his sureties would be liable for the devastavit, and he could not ask for a sale of tire land.

<p>.Bamjuíuptci'. — After property was attached and sold, assignee in bankruptcy, appeared by attorney and moved to be substituted as defendant; also filed motions to have attachment dissolved, and the proceeds of the sale turned over to him. Held, That the facts set up in the motions were matters in abatement and should have been pleaded in an issuable shape, and verified by the claimant.</p>

APPEAL- EltOM CHICOT CIRCUIT COURT. IIon. Henry B. Morse, Circuit Judge. The demurrer should have been sustained. The statute is positive in requiring the affidavit to he made. See Gould’s Dig., Chap. 106, Secs. 6-9; and this statute has been sustained and enforced in such a case as- this: Craig vs. Flcmigin, 21 Ark., 319. This decision standing, the case should be reversed : Pope vs. Mason, 23 Ark., 644. First.

To sustain tbe position that-the incorporation of Camden, under tbe act of 1868 is still in all respects valid-, I refer to the following cases: Hughes, vs. Farrar, 45 Maine, 72; Walworth vs. Whittaker, 17 Wis., 193; Janesville vs. Markoe, 18 Id., 350; Crosby vs. Patch, 18 Gal., 438; Shinn vs. Commonwealth, 3 Grant (Pa..), 205; McLaughlin vs. Hoover, 1 Oregon, 31; Nixon vs. Piffet, 16 La.

IIox. T. 1). W. Yonley', Chancellor. First. There is no equity in tlie bill. Second. The State of Arkansas shows no right in herself to proceed in behalf of the creditors and the bondholders of the Real Estate Bank. Or, in other words, as appears here, she fails to show any legal interest in the suit as a party com•plainant, and failing’ in that, she has no case.

<p>Appeals — Regulated by the Code — The provisions of the Code of Practice, in relation to appeals, regulate the practice and are the general law for proceedings in that respect in all the courts, and they prescribe the requisites for all changes from one court to another, in bringing and prosecuting suits through all the courts.</p> <p>Construction op Statutes — See. 1C, Act of 1868. — Section 16, of “An act to amend chapter sixty-nine of Gould’s Digest, etc., approved July 1G, 1868, was not enacted under its appropriate title, and further, in so far as it prescribes a condition precedent to the right of appeal, by the payment of all costs, is in conflict with See,. 4, Art., 1, State Const., and is inoperative^</p>

<p>APPEAL FROM PHILLIPS CIRCUIT COURT.</p> <p>Hon. M. L. Stephenson, Circuit Judge.</p>

<p>Confederate Courts — Acts of void. — All acts and proceedings of the different courts of the State, done and had under authority of the Convention of 1801, or while the State was in rebellion, are void.</p>

IIon. George W. McCown, Circuit Judge. We submit: First. That the demurrer in the court below should have been overruled, as being general and not specifying the grounds of objection to the complaint. See section 112, Code of Practice. Second. That the bond to refund, to be given by an heir and distributee, under section 2, p. 49 Chapters Digest, is not'a prerequisite, but is discretionary with the administrator to demand, and the court to order such bond given. Third.

It makes no difference in wliose name land is assessed, if. the taxes are unpaid the sale is valid. The name of the owner is unimportant. The particular land taxed stands liable for it, no matter who may be the owner. See Merrick $ Fenno vs. Hutt, 15 Ark., 331. Defendants being residents of Pulaski county, are not entitled to redeem. Section 145, GoulcVs Digest, (which was the law when and under which this sale was made).. Chapter 148,. 953.

Mandamus is an extraordinary remedy, and to entitle a party to this remedy, he must show a clear- right in himself, and a corresponding obligation on the part of the officer, for if the right or the obligation be doubtful, the court will not interfere by this process: Asbury vs. Beavers, 6 Texas, 473. Same principle, State ex. re. vs. Jacobus, 2 Dulcher’s (A. J.) R., 135. Draper vs. Notewear, 7 Cal., 279, ions refused because of a casus omissus in the law. In Rawlevs.

We submit that, by the purchase of the appellant at the administrator’s sale, the relationship of landlord and tenant was created between him and the appellee holding under the lease. 1 Washb. Real Prop., 445. This being true his action was properly brought and his case fully made out. 13 Ark., 448; 18 Id. 284-304. That the Legislature could not take away the jurisdiction of the Circuit Courts in such action; 4 Ark., 147; 7 Id. 173.

<p>APPEAL FROM CHICOT CIRCUIT COURT.</p> <p>]Ion. IIenry B. Morse, ’ Circuit Judge.</p>

First. We submit that all powers not expressly granted by The charter of a mujiicipal corporation, or necessary to carry out these powers, are denied. The corporation can take nothing by implication. Abb. Eig.

QUO WARRANTO. Persons convicted of malfeasance in office, or crimes punishable by law with imprisonment in the penitentiary, cannot hold office in this State. Constitution, 5th clause, Sec.. 3, of Art. 8; Sec. 4, page 383 Gould’s Digest. Every attempt to exercise the functions of an office, after conviction, is an usurpation. The Commomoealth ts. Fugate,2 Leigh (Va. R.) 724, and cases there cited.

<p>Equity Jurisprudence — When no cognizance of a suit in rem. — Equity jurisprudence, independent of a statute for that purpose, has no cognizance of a bill brought in rem against real estate to foreclose a mortgage given thereon.</p>

<p>APPEAL PROM YELL CIRCUIT COURT.</p> <p>Hon. W. N. May, Circuit Judge.</p>

<p>Mandamus — Where affidavit filed under Section 760, Amended Code. — Where suit was pending in the Circuit Court, the defendant filed an affidavit under Section 760 of Amended Code; the circuit judge refused to proceed further with the trial of the case; on petition for mandamus by the plaintiff, Held: That the filing of the affidavit disqualified the judge, and that the clerk of the circuit court should have made an order changing the venue as in -such case provided by law.</p>

APPEAL ER0M PHILLIPS CIRCUIT COURT. Hon. M. L. Stephenson, Circuit Judge. If it be true, as was charged, that the executor had used the means of the estate to purchase these lands, and had taken the title in her own name, there is no doubt that a triist would result in appellant’s favor. Wallace vs. Duffield, 2 S. Sf B., 521; Buck vs. Ulrich, 16 Penn.

<p>APPEAL EROM JEEEERSON CIRCUIT COURT.</p> <p>Hon. Henry E. Morse, Circuit Judge.</p>

Hon. M. L. Stephenson, Circuit Judge. Jñrst. We submit that the indictment is insufficient. The indictment must charge explicitly all that is essential to constitute the offense. It cannot be aided by intendments. Archibald’s Crim. Prac, and Plea., title Indictment d., and authorities cited and illustrations given in Note 1, Waterman’s Ed., p. 283.

Hon. E. D. Ham, Circuit Judge. . First. We submit that the court erred in striking out the defendant’s plea of the statute of limitations to the plaintiff’s action; It is true that this court, in the ease of Pennington vs. Gibson, 6 Ark., 447, held that they would not where timely service had been had,, set aside a judgment by default to let in the plea of statute of limitations.

APPEAL I’ROM MONROE CIRCUIT COURT. . Hon. John E. Bennett, Circuit Judge. Tile submit there is no question of law before this court. All exceptions not incorporated in the motion for a new trial are waived. Collier vs. State, 20 Ark., 360; Graham vs. Poark, '23 Ark., 19. That the scope of review in this court is limited by the grounds taken in the motion. Hopkins et al. vs. Dowd, 11 Arkansas, 62T.

<p>Circuit Courts— When no jurisdiction on appeal. — "Where the amount) in controversy, in a suit before a justice of the peace, is above the jurisdiction of the justice, the Circuit Court can- acquire none on appeal.</p>

Hon. John Wiivtock, Circuit Judge. ■ We submit that the decision of the court below was erroneous on two grounds : First. Mistake of original transaction. See Baltimore etc., Steamboat Co., vs. Featherston, 54 Penn., (4) 77; Woodfin vs. Slader, (.Thill. N. C.) 1. 200. Second. It was a collateral substantive agreement, and as such can be proved by parol. Branch vs. Wilson, 12 Fa., 543. Part only was reduced to writing.

<p>Practice— When evidence conflicting'. — It is the province of the jury to weigh the evidence and find the facts, and this court will not disturb that finding in doubtful cases, or where the evidence is conflicting.</p>

IIon. Henry B. Morse, Circuit Judge. First. As a general proposition, if a debt is secured by an express lien upon property, by agreement of parties, an assignment of the debt, secured by such lien, will give the assignee the benefit of such lien: 2 Wash. Beal. Brop. 92; 4 S. $ N. 294; 5 Hump.,-489; 2 Terg., 84; 4 Iowa, 480 ; 2 Dana, 98 ; 6 B. Mon., 67; 1 Blackf., 417; 7 lb., 329; 5 Bid., 492; 13 Ark., 533; 15 Ves., 339 ; 10 Ala., 441; 7 Blackf., 227.

IIon. E. D. Ham, -Circuit Judge: We submit that the parties were tenants in common and, in such case, one of the parties had the same right of possession which the other had, and therefore each will be presumed to have held in accordance with his or her title, and. not otherwise : Dresser vs. Dresser, 40 Barb., 300.

<p>APPEAL PROM RANDOLPH CIRCUIT COURT.</p> <p>IEon, Elisha Baxter, Circuit Judge.</p>

Hon. Henry B. Morse, Circuit Judge. ¥e submit that, the purchase money being upaid, equity charges the land with its payment, and permits the facts of sale and non-payment to be shown outside. See 18 Ark.; 142; Mackreth 'vs. Lymmans, 1 Leading Cases in Equity, (notes by Hare § Wallace) 194, etseq; top page 248, et sea.

IIon. John Whytock, Circuit Judge. We submit: First. That where a party takes out an open policy of insurance, and his application is an agreement that he will insure all property shipped and belonging to him during the existence of said policy, and fails to do so, it avoids and vitiates the policy, is a fraud on the company and they are entitled to cancel the policy as soon as they find it out.

<p>Appeals — When objections not considered. — -This court will nob consider objections or errors in a record where there was no .motion for a new trial in the court below.</p>

<p>Judgments — When may he several. — Under the Code of Practice, a several judgment may "be entered whenever a several suit might have been brought.</p>

<p>Injunction — Whan should he made perpetual. — Lands were mortgaged, with power of sale, to secure payment of note; note was assigned; assignor and assignee each demand payment in his own right; the lands were advertised for sale. On bill by mortgagor, offering to pay, praying that receiver bo appointed, claimants required to interplead, and sale be enjoined. Held: That, after interpleader was decided, and payment by receiver, it was error to dissolve the injunction, but that the same should have been made perpetual.</p>

IIon. Henry B. Morse, Circuit Judge. W e submit that Saunders, at the time of liis death, did not own, or did not die seized or possessed of the crop of cotton. The personal property acquired by the husband through the wife, and reduced to possession, becomes his absolute property; his conveyance of the saméis valid; she, having no' vested rights therein, is not entitled to dower as against the purchaser. Cook vs. Cook, 12 Ark., 381.

IIon. Henry B. Morse, Circuit Judge. A vendor’s lien will not prevail against a purchaser without notice. Petit vs. Johnson, 15 Ark., -55; Shall vs. Biscoe, 15 Ark., 142. Mortgagees and trustees in conveyances made to secure the payment of debts are purchasers. Leading Cases in Equity II TP., vol. 1, p. 277; Story’s Equity, vol. 2, p. 481, see. 1229. A vendor’s lien will not prevail against a conveyance to creditors in consideration of antecedent debts.

IIon. M. L. Stephenson, Circuit Judge. Tlie legal principle seems to be well settled that tlie liability of tlie warehouseman or wharfinger does not commence until that of the carrier ceases. Sleadevs. Payne, 14 La. An., 453; Lean vs. Vaccaro, 2 Head, 488; Alabama, etc., P. P. Co. vs. Kidd, 35 Ala., -209.

Hon. Henry B. Morse, Circuit Judge. Tlie law giving a laborer’s lien is broad and comprehensive. It speaks of all laborers, doing any work under any kind of contract at all, having a lien on the production of their labor.. See Acts of 1868-9, ¶. 224, Sec. 1, (act of July 23,1868). If any person can be called a laborer he who does work on. a railroad can. The diíiículty of identifying the product of his labor is nothing in this question.

Hon. John Wiiytock, Circuit Judge. The construction of a public work by a.corporation is necessary before a recovery can be had for damages resulting from it. 1 Black. 39; Conrad vs. Ithaca, 158; Mayer vs. Furze, 3 Hill,Q12; Montgomery vs. Gilmer, 33 Ala., 116; Shearman § Redfield on Negligence, p. 631, sec. 579 ; Rochester White Lead Co. vs. Rochester, 3 Comstock, 463.

<p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>IIon. Henry U. Morse, Circuit Judge.</p>

<p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>IIon. Henry B. Morse, Circuit Judge.</p>

Hon. Henry 33. Morse, Circuit Judge. As to the question of jurisdiction, we submit that the Circuit Court has concurrent jurisdiction with the Probate Court in claims of this kind. See chap. 4, Gould’s Digest-, 5 Ark., 472; Ryan vs. Leman, 7 Ark., 84, and Saunders vs. Rudd, admr., 21 Ark., 519. Under our Code, there is no such thing as dismissing a bill for want of equity. See secs. 3, 18, 338, 606.

<p>APPEAR PROM ASHLEY CIRCUIT COURT.</p> <p>IIon. Henry B. Morse, Circuit Judge.</p>

Hon. E. E. IIam, Circuit Judge. While a court of equity will not interfere with an estate in process of settlement in the Probate Court, .yet, if the-administrator refuse or neglect to account, the creditors or distributees can hold him to account in a court of equity. Mallett et al. v. Dexter, 1 Curtis, U. S. Ct. Ct. Rep. 178; and certainly under our Code of Practice. See Section 465, page 141.

<p>Appeals — When not taken in time. — An appeal, not taken in the manner and within the time prescribed by law, will be dismissed for want of jurisdiction.</p> <p>Same— When time may he extended. — The court, in the exercise of its sound discretion, may extend the time for filing the papers on appeal, by a proper showing, on the part of the appellant, that the delay was not owing to laches • on his part; that due diligence has been used, and that he has been prevented by means and circumstances over which he had no control.</p> <p>Same — When taken by Executors, etc. — Executors and administrators, appealing from judgments rendered against the goods of their testator or intestate, are not required to file the bond and security as in other cases provided, but they will bo hold to file the affidavit, for appeal, required by the statute..</p>

<p>State Scrip — Not receivable in payment of county or school district tax.— The Legislature cannot make the certificates of State indebtedness and Auditor’s warrants receivable in payment of county taxes, or school district taxes.</p> <p>Same — Where the Legislature authorizes money to bo raised for one purpose, the funds so raised cannot be applied to another and different purpose, but each levy is a separate and distinct tax and must be discharged in money, or by a warrant drawn on that particular fund.</p>

Non. M. L. Stephenson, Circuit Judge. We submit that it was not necessary that.the pi’omise to revive the debt should have been in writing. Samuels vs. Cravens, 10 Ark., 380. That if the defendant promised to pay the debt absolutely, no express acceptance was necessary. Williams vs. Robbins, 32 Maine, 181; Pratt vs. Russell; 7-Cush., 462; Fitzgerald vs. Alexander, 19 Wend., 402; Ilerndon vs. Givens, 16 Ala., 261.

<p>Gosstitutiomal Law — Article X. eonstrued. — The words, “the treasury,” occurring in the several sections of Article X. of the Constitution, moan the State treasury, a»d arc not to be construed to moan the various county treasuries.</p> <p>Same — Power of Legislature to tax pxermits, etc. — The Legislature has power, under Article 10, Section 17 of the Constitution, to impose a State tax- upon such privileges, pursuits and occupations as are of no real use to society, and the occupation of wholesale dealer in spirituous liquors, is such a' pursuit as the Legislature may require the party, exercising the same, to pay into the State treasury a compensation for the 'privilege of engaging in such pursuits, and the imposition of such tax is not. a tax upon property within the meaning of the Constitution.</p> <p>Statutory Law — Act 2~>th March, 1871, construed. — The Act of March 25, 1871, Section 154, providing that there shall be levied and collected as a ' county tax, upon dealers in liquors, etc., is not to be construed as an attempt to raise a State revenue by a tax upon dealers in liquors, and the Act is not in contravention of the provisions of the Constitution in regard to the raising of State revenue. ■</p> <p>Liquor Licenses — Power of Sheriff to collect, etc. — The acceptance of a license issued by the clerk,.and tendered by the sheriff) is optional with the, dealer and, in the absence of a 'provision of law to punisli, criminally, the sheriff cannot distrain and sell property for the non-payment of the tax.</p>

A1TKAU FROM CROSS CIRCUIT COURT. IIon. J. M. Hanks, Circuit Judge. First. Tlie plea was had because the defendant did not offer to bring the money into court. See 2 Grecnlcaf JSv., 600; 3 Chüty PL, 055-6; Slack os. Hice, 1 Bibb., 272; Fddy vs. O’Hara, 14 Wend., 221; Booth rs. ' Conneggs, 'Minor’s B. 201. The money should (have been brought into court, and notice of that fact given at the time of serving the plea. Sheridan vs. Smith, 2 JUll (A”.

T.L’ COURT. Hon. IIenry P>. Horse, Circuit Jud.r¡c.. We submit the demurrer was well taken. The hill shows on its face that there are other creditors beside the complainants, and the rule, in equity, is that all persons interested should he made parties: Story Eq. PI. (Redfield’s Ed.) 76 cl seq.; Note 2 top page 77. Where the parties are not known it must be so charged in the bill: 'lb., 99. The fourth cause of demurrer is fatal, and not amendable.

Hon. M. L. Stephenson, Circuit Judge. We submit that tbe appellee, Toms, was not entitled to a homestead. For the determination of this question, we assume that there is no substantial difference between the old statute (Gould’s Digest, Chapter 68, Section 29,) and the constitutional enactment (State Constitution of 1868, Article XII. Section 8.) By the old law, the requisites for claiming this privilege were: First.

7Eon. Henry 7». Morse, Circuit. Judge. Ve submit, tlio court erred in sustaining .the demurrers. Between the plaintiff and Leach, the assignee of C. J. Lassiter, and the heirs at .law of Lassiter, no personal, mutual and reciprocal rights and obligations exist. The plaintiff has no right, in law or equity,, to demand the payment of money«from either of the defendants. Nor can. they or either of them, by any right in law or equity, demand a deed from plaintiff.

Hon. T. J). ~W. Yon ley, Chancellor. Ry the general nature and purposes of the hank, without any reference to its positive provisions, it seems to us plain that the hank could not, either by a foreclosure in a Court of' Chancery, or under the power of seizure and sale contained in the charter, become the owner of these lands in her corporate right, so that they would belong to the general funds.

Hon. J. II. Rogers, Special Circuit Judge. The whole tlicoTy of our Constitution, and the revenue laws under it, as to taxes, etc., is to place the subject entirely at the control of the County Court. Every body having cause of complaint, as to assessment and collection of taxes, has his day in this court, subject to appeal, etc., but there is no jurisdiction in equity to enjoin the collection of taxes there-assessed.