Volume 28 — Arkansas Reports

<p>Bills of Exceptions : What must show and contain.</p> <p>Where papers are read in evidence by a party', on a trial, and the opposite party takes a bill of exceptions, undertaking to set out the evidence, it is his duty to insert such papers in his hill of exceptions, or have them filed, so the cleric may insen't them.</p> <p>Same : Documenta/ry evidence need not he inserted.</p> <p>It is not absolutely necessary to insert documentary evidence in a bill of exceptions; but it must be attached to the bill, and identified by being referred to as exhibits, etc.</p>

<p>APPEAL from Craighead Circuit Court.</p> <p>Hon. Wm. Story, Circuit Judge.</p>

<p>APPEAL from Independence Circuit Court.</p> <p>Hon. Eliseta Baxter, Circuit J udge.</p>

<p>APPEAL from Sharp Circuit Court.</p> <p>Hon. Elisha Baxter, Circuit Judge.</p>

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

<p>Mandamus : When ineffectual, will not be granted.</p> <p>Mandamus will not be granted where it would be fruitless and ineffectual to afford the relief sought.</p>

<p>APPEAL from White Circuit Court.</p> <p>Hon. S. F. Clark, Special Judge.</p>

<p>APPEAL from Prairie Circuit Court.</p> <p>Hon. John Whytock, Circuit Judge.</p>

<p>APPEAL from Arkansas Circuit Court.</p> <p>Hon. Henry B. Morse, Circuit Judge.</p>

<p>APPEAL from Phillips Circuit Court.</p> <p>Hon. M. L. Stephenson, Circuit Judge.</p>

<p>APPEAL from Monroe Circuit Court.</p> <p>Hon. M. L. Stephenson, Circuit Judge.</p>

<p>APPEAL from Chicot Circuit Court.</p>

<p>Decree oe Foreclosure : When not necessary to revive, to make sale under, etc.</p> <p>Where an execution and decree of foreclosure are put in the hands of proper officers to be executed during the lifetime of the plaintiff, and the plaintiff dies before the execution is completed, it is not necessary to revive the action and bring in the heirs or legal representatives of the deceased plaintiff as parties.</p>

<p>APPEAL from Ashley Circuit Court,</p> <p>Hon. Henry B. Morse, Circuit Judge.</p>

<p>Debtors : Preference of creditors by.</p> <p>A debtor, in failing circumstances, may prefer one creditor to another, if his act of preference is not prompted by an intention to defraud such other creditor, and a deed absolute in terms, made by the debtor to such preferred creditor, would not invalidate it as a mortgage, if intended by the parties so-to be; such a circumstance, of itself, being no evidence of fraud.</p> <p>Lien by Contract : When pcwcmnount to judgment lien.</p> <p>A lien by contract, upon real property, prior in time to the judgment, is paramount to tbe judgment lien, though the judgment creditor ha,ve no notice or knowledge of such prior lien by contract, and a purchaser at execution sale, under such judgment with notice, actual or constructive, acquires no greater interest than the judgment debtor had.</p>

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

<p>APPEAL from Randolph Circuit Court.</p> <p>Hon. Elisha Baxter, Circuit Judge.</p>

<p>Attorneys : When cannot delegate authority to colled.</p> <p>Where a claim is placed, in Hae hands of an attorney for collection merely, and it does not appear that he is employed generally to act for the party, he is a special agent for that particular purpose, and without authority to do so, cannot delegate his power to collect to a third person, so as to hind his principal.</p>

<p>Cabbying Concealed Weapons: What not defense to.</p> <p>On indictment for carrying a concealed weapon, it is not a good or sufficient excuse or defense, under the statute, for the defendant to show that he was on his own premises when he so carried such weapon, nor will it constitute any excuse for so wearing a weapon, to show that the accused was in fear or even danger of being attacked.</p>

<p>Wills: Construction of conflicting clcmses.</p> <p>Where, in the execution of a power under a will an invincible repugnancy appears as between two provisions, or as between the will and codicil, the latter clause should prevail over an earlier one, if not inconsistent, all things being considered, with a reasonable intendment as to which of the conflicting clauses, addressed to the judicial mind, is most likely to effect the intention of the testator.</p>

<p>APPEAL from Jefferson Criminal Court.</p> <p>Hon. Ira McL. Barton, Criminal Judge.</p>

<p>Statute oe Limitations : Suspended between belligerents.</p> <p>Upon the breaking out of a war, all contracts and rights between belligerents are suspended, and upon the restoration of peace the parties are restored to their rights and remedies as they existed at the commencement of hostilities.</p>

<p>Baukrctptcy : To what, disaha/rge in, may he pleaded,.</p> <p>To scire facias against surety on bail bond, the defendant pleaded liis discharge in bankruptcy. On demurrer to plea, held, that the plea was good.</p>

<p>Grand Jurors : What will not invalidate the proceedings of.</p> <p>Where there was not a sufficient number of competent grand jurors and alternates present, and not excused, the court ordered the deficiency to be made up from the petit jurors who had been summoned, though not impaneled and sworn. Held, that though irregular for the court to designate, by name, persons to fill the panel, yet, such irregularity would not invalidate all the proceedings of the grand jury.</p> <p>Prosecuting Attorneys : Discretion as to disclosures made by defendant.</p> <p>It is within the discretion of the public prosecutor to determine whether or not, the defendant, who is an accomplice, shall be permitted to become “state’s evidence,” and also whether, if he does, he is afterward entitled to exemption from further prosecution by reason of what he has done.</p> <p>New Trials:</p> <p>Applications for new trials, based on the ground of newly discovered evidence, should be received with caution, and should be corroborated by other affidavits than that of the accused, and should not only state that the defendant did not know of the testimony in time for trial, but that he could not have obtained it by reasonable diligence.</p> <p>Confessions : To be admissible, must be voluntary, eta.</p> <p>Confessions of the defendant, to be admissible in evidence, must have been voluntarily made, and whether they were so made is a question for the court to pass upon, and its ruling in that respect will not be ground of reversal unless arbitrarily abused.</p>

<p>APPEAL from Chicot Circuit Court.</p> <p>Hon. Henry B. Morse, Circuit Judge.</p>

<p>Contested Elections : Who is to try contest for office of Governor.</p> <p>The attorney general presented an information upon the relation of Joseph Brooks, alleging that Elisha Baxter, without any legal warrant, grant or right whatever, etc., held and usurped the office of governor, and moved the court for a writ of quo warranto. On objection to the filing of the application, and issuance of the writ: Held, that under our constitution, the determination of the question as to whether a person exercising the office of governor has been duly elected or not is vested exclusively in the general assembly of the state, and neither this nor any other state court has jurisdiction to try a suit in relation to such contest, be the mode or form what it may, whether at the suit of the attorney general, or on the relation of a claimant through him, or by an individual alone claiming a right to the office.</p>

<p>APPEAL from Ashley Circuit Court.</p> <p>Hon. Henry B. Morse, Circuit Judge.</p>

<p>Forfeited Recognizance : What plea will not release security.</p> <p>In answer.to scire facias on forfeited recognizance, the surety pleaded that his principal, by reason of mob violence existing in the county before and at the time he should have appeared, and the fear of losing his life by violence, had fled from the county, and that he could not safely have remained in the county and at the court for fear that he would not be protected by the law. On demurrer to plea, held, that the averments of the plea were not sufficient to release the security from the forfeiture or the principal from trial.</p>

<p>Statutes Construed : Sea. 127, revenue aot of March 25,1871, construed.</p> <p>The county clerk claiming, that under sec. 127 of the revenue act, approved March 25,1871, he was entitled to five dollars for each certificate issued for lands sold to the state for the nonpayment of taxes, presented his account to the auditer for services in that respect, who refused to allow or audit the same. On petition for mandamus: Held, that the auditor was not authorized to audit accounts against the state for the payment of such fees, without an express legislative provision allowing such compensation to clerks, and without a legislative appropriation for such purpose.</p>

<p>APPEAL from Arkansas Circuit Court.</p> <p>Hon. Henry B. Morse, Circuit Judge.</p>

<p>APPEAL from Ashley Circuit Court.</p> <p>Hon. Henry B. Morse, Circuit Judge.</p>

<p>Landlord and Tenant: Tenant cannot dispute title of.</p> <p>Where a party in possession, while using the premis.es, pays rents to, and contracts with one as owner, he will not be permitted to deny the title he thus confirms, but if he wishes to contest the title, he must first surrender the possession, and then bring his action.</p>

<p>Criminal Law : When wound the mediate came of death.</p> <p>Where A., with felonious intent inflicted a wound upon B., and within a year and a day death resulted, not from the wound immediately, but mediately, as from inflammation caused by the wound and occasioned by improper treatment on the part of the attendants: Held, That this may be murder in the first or second degree, or manslaughter, as the case may be.</p> <p>Evidence : As to character, limitation of.</p> <p>The defendant, on trial for a crime, is entitled to offer in defense, evidence as to his good character, and the only limitation by which the rule should be circumscribed is, that in each case the character sought to be proved should not be general, but such as would make it unlikely that the defendant would be guilty of the particular crime with which he is charged.</p> <p>New Trial : What not sufficient ground for.</p> <p>The fact that the jury, during a trial, in company with the sheriff, visited a saloon and took a glass of liquor each, though highly reprehensible, will not, of itself, be sufficient ground for granting a new trial, unless it appears that the defendant was prejudiced thereby.</p> <p>Same: What separation of jury not sufficient.</p> <p>Where the jury, while at dinner, were separated, part being in one room and part in another, but all remained under the immediate charge of an officer, this was not such separation as would authorize a new trial.</p>

<p>Mortgages : What not extinguishment of, etc.</p> <p>Where a mortgage is given to secure the payment of the purchase money, and subsequently a draft is given for the amount and dishonored, this is not an extinguishment of the mortgage, but only a mode of payment, and if the holder uses due diligence and cannot collect, he may resort to his mortgage.</p> <p>Vendor's Lien : When, not enforcible without actual notice.</p> <p>Where the husband executed a mortgage of lands, where in reality the title to the same was in the wife: Held, that the record of such mortgage was only notice that the husband had so executed it, and a purchaser from the wife would not, by this record, be affected with notice that the lands were not paid for, and if an absolute deed was made, a vendor’s lien could not be enforced against those holding under her without actual notice.</p>

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

<p>Vendor and Vendee: Tender of deed before suit brought, etc.</p> <p>Before the vendor can bring an action at law for the payment of the purchase money for lands, he must tender a deed in accordance with the covenants of his title bond and demand payment, but, in equity, the rule should not be applied with the same strictness as at law, and where it appears that the vendor, pending the suit, made tender of the deed in court, and the objection for the first time is made in this court that no deed was tendered before suit brought such objection will not be cause for reversal of the decree or an order of dismissal.</p> <p>Contracts : Purchase of slaves, when considered executed.</p> <p>Where slaves were sold, possession and bill of sale given, and the vendor took a mortgage back to secure the payment of the purchase money, and before payment, they were emancipated by the civil war: Held, that the contract was executed; that the mortgage was but a security for the debt, and the security being destroyed did not extinguish the debt.</p>

<p>Practice : Where damages excessive.</p> <p>Where the damages are excessive, the defendant should move the court to set aside such excess in order that the plaintiff may have an opportunity to remit before being taxed -with the costs of an appeal.</p> <p>Same : Where form of verdict or judgment objectionable.</p> <p>Where the form of the verdict is objectionable, or the proper judgment-is not rendered upon the verdict, such objection should be pointed, out to the lower court, before appeal granted.</p>

<p>Chattel Mortgagb; : When demand before suit not necessary.</p> <p>The continued use and possession of a chattel mortgage, after breach, of condition or nonpayment, is such adverse possession as will entitle the mortgagee to bring suit without first making demand.</p>

<p>Contracts : Novation or substitution of.</p> <p>Where parties intend the substitution of a new debt or obligation for an old one, their intention to that effect should be positively declared, or in whatever manner expressd, be made so evident as not to admit of a doubt.</p> <p>Foreclosure : Where mortgagor a bankrupt.</p> <p>On objection to a decree of foreclosure, that the mortgagor was a bankrupt, and the decree did not discharge him from all personal liability : Helct, that as the decree was against the property only, and did not fix any liability upon the defendant, it was sufficient.</p>

<p>Prosecuting Attorneys : When appointed pro tern., how paid.</p> <p>The salaries of prosecuting attorneys are entirely under the control of the legislature, and under the act of March 27, 1871, the auditor is authorized, in settlement of the same, to deduct any amount that may have been paid a prosecuting attorney pro tem. for the same district.</p>

<p>Statutes Construed : Act of April 25,1873.</p> <p>Under the act of April 25, 1873, appointing commissioners to locate the county seat of Pope county, Russellville became the temporary county seat, and judgments rendered by courts held at that place were valid.</p>

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

<p>APPEAL from Yell Circuit Court.</p> <p>Hon. W. N. May, Circuit Judge.</p>

<p>Swamp and Overflowed Lands : What certificates not a sede of.</p> <p>Certificates issued by tbe board of swamp land commissioners, under ordinance nine, were not a sale of tbe land, but simply evidence of an application to purchase, which the commissioners might subsequently accept or reject, and such certificates secured to the holders no right as against any other purchaser who adopted legal means in securing his lands.</p>

<p>Register Laws : What constitutes filing under, ete.</p> <p>To secure a party his full rights under our registry laws, the substantial act to be done is to take the writing or instrument and cause it to he placed on file, for record, in the office where such instruments are to he recorded, and to pay the fees allowed by law for recording, and such deposit may he made with the person in charge or custody of the office ; and being so deposited, with one having the control of the office for the time being, it does not devolve on the party to show that his deed or instrument was put in the hands of the recorder or a regular deputy; the one in charge, and performing the duties of the office, has sufficient authority for such purpose.</p>

<p>APPEAL from Phillips Circuit Court.</p> <p>Hon. M. L. Stephenson, Circuit Judge.</p>

<p>County Scrip: When bonded under act July 23,1868, by whom cancelled.</p> <p>It is tlie duty of the county cleric and not the county judge, under the provisions of the act of July 23, 1868, “ authorizing the funding of a floating debt in certain cases,” to receive and cancel county scrip and warrants presented to be funded, and to give the person presenting the same a county bond for the amount.</p>

<p>Dower : Claim, of, ly loidow, in partnership, etc.</p> <p>On demurrer to bill, by widow, to have dower assigned her in the real estate belonging to her husband in partnership, at the time of his death, and that she be permitted to take the same discharged of all debts of the partnership: Held,</p> <p>1. That, in equity, real estate purchased with partnership funds, or for the uses of the partnership, are chargeable, upon settlement of the affairs of the firm, with the debts of the copartnership, and any balance that may be due from one partner to another.</p> <p>2. If the realty be acquired in such manner as to make its owners tenants in common, other than that arising from and growing out of the partnership, in such case the widow is entitled to dower; otherwise, if acquired with partnership funds.</p>

<p>Pleadings : In suit against corporation, etc.</p> <p>In suits against corporations, it is not necessary to allege in the complaint the incorporation, further than by a statement of the corporate name.</p> <p>Same : When use of abbreviations will not vitiate.</p> <p>Where abbreviations or initials of words are used in pleadings, if, when taken in connection with the remainder of the pleading and subject matter, they can be clearly understood, and not be ambigú ous, the same effect will be given to them as if the words were written in full.</p>

<p>APPEAL from Woodruff Circuit Court.</p> <p>Hon. W. C. Hazeldine, Circuit Judge. .</p>

<p>APPEAL from Nevada Circuit Court.</p> <p>Hon. Gf. W. McCown, Circuit Judge.</p>

<p>APPEAL from Sebastian Circuit Court.</p> <p>Hon. E. D. Ham, Circuit Judge.</p>

<p>APPEAL from Crittenden Circuit Court.</p> <p>Hon. James M. Hanks, Circuit Judge.</p>

<p>APPEAL from Arkansas Circuit Court.</p> <p>Hon. Henry B. Morse, Circuit Judge.</p>

<p>PETITION for Mandamus.</p>

<p>APPEAL from Pulashi Chancery Court.</p> <p>Hon. T. D. W. Yonley, Chancellor.</p>

<p>Tax Sales: Redemption of lands sold for, ete.</p> <p>Where a revenue act provided that lands sold for the nonpayment of taxes could be redeemed within a certain time upon the payment of a certain penalty, and such act is repealed by a subsequent one, changing the time for redemption and the amount of penalty, but providing that the former act shall remain in force for the collection of the taxes levied thereunder: Held, that an act in force for the purpose of collection is in force for the purpose of redemption provided the penalty is tendered within the time prescribed by that act.</p>

<p>PETITION for Mandamus.</p>

<p>Legislative Enactments : When presumed constitutional, etc.</p> <p>Where an act. of the legislature is regular upon its face, duly approved by the speaker of the house, the president of the senate and the governor of the state, this, if not conclusive, raises a strong presumption in favor of the validity of the act, and where the proof fails to show that the legislature failed to conform their proceedings to the constitution, the act will be held as a valid law in full force.</p> <p>Legislature : Power of, over the subject of taxation.</p> <p>The power of the legislature over the .’subject of taxation is supreme, except only wherein limited by the constitution, and they may make and enforce such laws respecting the amount and kind of funds in which taxes shall be paid in the political subdivisions — the counties and towns — as may be deemed proper, and such counties and towns cannot resist, nor can their local officials in any way modify such regulations.</p> <p>Statutes Construed: Acts of July 33, 1868, March 34, 1869, March 16,1871, and April 39, 1873, construed; in what funds taxes payable.</p> <p>All state, poll, county, municipal, district school, and license taxes may be paid in five per cent, treasurer’s certificates, commonly known as state scrip, except tax to pay interest on the public debt. State scrip issued since the passage of any act by the legislature levying a tax, or authorizing a county or city to levy a tax, to be paid in United States currency, cannot be taken in payment of that tax; bona fide holders of county bonds issued in pursuance of the act of March 38, 1871, cannot be compelled to accept treasurer’s certifi- ■ cales issued after the passage of that act, nor could the counties be compelled to accept such scrip for the taxes levied for such purposes; state scrip issued since the 39th of April, 1873, cannot be received in payment of the tax levied to pay interest on county bonds issued under the provisions of the act approved April 39, 1873; neither can the state liquor tax, levied for the benefit of the sinking fund, be paid in scrip issued since April 38,1873.</p>

<p>Confederate War Bonds : Not a valid consideration.</p> <p>Bonds issued by this state, during the civil war, in aid of the rebellion, commonly known as war bonds, were not a valid consideration for a promissory note.</p>

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

<p>Judgment Lien : When enforced in equity.</p> <p>Oates was seized of certain lands at the time and in the county where the judgment was rendered; he conveyed the lands and died before satisfaction of the judgment. On demurrer to bill against his administrator to enforce'the statutory judgment lien •.■Held, that a judgment creditor will not be permitted to invoke the assistance oí a court of chancery to enforce a legal right, unless he aver and show by his bill that he has exhausted all the remedies afforded him by the law, without satisfaction, or that owing to some equitable interest in the property attempted to be subjected to the satisfaction of the debt, or by reason of some fraudulent conveyance thereof, the legal remedies cannot be made available; 2d. That the remedy of the judgment creditor was through the probate court.</p>

<p>APPEAL from Desha Circuit Court.</p> <p>Hon. J. P. Clayton, Special Circuit Judge.</p>

<p>Auditor : When cannot draw warrant.</p> <p>Where an appropriation made by the legislature for a specific purpose bas been exhausted, the auditor cannot draw his warrant in payment of the same.</p>

<p>Marriages : When in another state, and separate property of wife invested in this, etc.</p> <p>Husband and wife were married in the state of Alabama, both living there at the time, and the husband, having become possessed of the property and money of the wife, moved with his family to this state, and with the money and effects so acquired by the marriage, purchased lands and took a deed in his own name, against the express wish of the wife; husband and wife died leaving minor heirs; the lands were sold by administrator, under order of the probate court, he and the purchaser of the land at such sale having knowledge where the original purchase money of the lands came from. On bill by the heirs to vest title in the lands in them as heirs of the mother: Held, that by the laws of Alabama, the property and money so acquired on marriage by the husband remained the separate property of the wife, and that the lands so acquired by him in this state descended to the heirs of the mother.</p>

<p>Supreme Court : Jurisdiction of, to issue writs of certiorari.</p> <p>The supreme court, hy the constitution, in the exercise of a general superintending control over inferior courts, have power to issue writs of certiorari, as an exercise of original jurisdiction.</p> <p>■County Courts : Appeal from, by whom lies.</p> <p>In allowing or disallowing a demand against the county, an appeal lies only by the party interested and not hy citizens who are not interested.</p> <p>Legislative Enactments : Authority given hy, must he strictly followed.</p> <p>Where the legislature points out, specifically, how an act is to be done, although without it, the court or officer, under their general powers, would have been able to perform the act, yet, if the legislature impose special limitations, they must be strictly pursued, and although performed by a discretionary officer, the limitations of the statute render the doing of the act ministerial in him performing it, in which no discretion can be indulged.</p>

<p>PETITION for Rule.</p>

<p>APPEAL from Sebastian Circuit Court.</p> <p>Hon. E. ,D. Ham, Circuit Judge.</p>

<p>Sheriff’s Deeds: What mistakes in, may he corrected, etc.</p> <p>The sheriff made actual entry and levy upon, the proper lands of the judgment debtor, but made a mistake in his return as to the numbers of the land, and carried such mistake into his advertisement, and the lands were sold and deed executed therefor and filed for record, without knowledge on the part of the purchaser of such mistake; subsequently, under another judgment, the same lands were levied upon and sold by their proper description and deed executed therefor, the purchaser having notice of the misdescription in the former deed. On bill to cancel the deed under the second sale: Sold, that the continuance of the mistake in the advertisement did not deprive the sheriff of the power to sell, and the Iona fide purchaser was not affected by any irregularity or omission by the sheriff in advertising or conducting the sale; 2. That such accident, mistake or irregularity, after the deed has been acknowledged in court, cannot, at a subsequent period, be corrected by the law court, but is relievable in equity.</p>

<p>Legislative Enactments: Where constitutionality of, in creating neto counties, questioned, etc.</p> <p>When the constitutionality of an act of the legislature, creating a new county, is questioned because its area is less than the constitutional requirement, or that some county or counties out of which it has been organized has been reduced below six hundred square miles, to determine this fact, the courts cannot look beyond the act itself, or some other official record of like grade and character, or official survey or maps of which they are bound to take judicial notice.</p>

<p>Yendoes: When remedy against vendee limited, etc.</p> <p>Lands were sold and notes given for the payment of the purchase money, and at the same time, the vendor, retaining a lien, executed a deed, with covenants to the efiect that he waived and relinquished all right, in law or equity, to recover the same or any part thereof from any other lands or property of the vendee, expressly exempting the same from all liabilities for the payment of the purchase money. On suit on the notes: Held, that the covenants in the'deed were a part of the original agreement, and being so construed, the vendor, in his reniedy, should be confined to the property named in the deed as to the extent of his recovery.</p>

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

<p>Bail : When sheriff authorized to talce.</p> <p>When tlie court fixes the amount of bail and the sheriff upon process arrests the person charged, or he is already in custody, the sheriff is authorized to take bail.</p>

<p>Vendors Lien : When and how assignee may enforce, eta.</p> <p>Where lands are sold and notes executed by the vendee for the purchase money, and the vendor in the face of the deed retains a lien upon the lands for the payment of the notes, and the assignee, or holder of one of the notes, brings before a court of equity the vendor as well as the vendee, and the holders of the notes given for the purchase money of the lands, and asks'that the holders of the notes be subrogated to the right of the vendor, and the lands be sold, etc., the rule of decision as held by this court, that the assignment of a note secured by a lien reserved in the face of the deed does not transfer the lien to the assignee, so as to enable him to maintain a bill, in his own right, against the vendee to inforce the lien upon the lands, does not apply.</p>

<p>Practice : Indictment, defects in, how reached.</p> <p>Objections to an indictment on the ground that the names of the witnesses, upon whose testimony it was found, are not indorsed thereon, or that‘the indictment was not presented by the foreman of the grand jury and filed in court as required by law, can only be reached by motion to set aside the indictment, and is not ground of demurrer.</p> <p>Construction op Statutes : Grocery licenses, how and by whom issued.</p> <p>Sec. 155 of the revenue law of 1871 does not repeal the acts of January 11,1855, and February 14, 1867, respecting the granting of licenses for the retail of vinous or spirituous liquors, and, under these acts, the county court is the only authority in the state to grant such license; and, where a party has a license signed by the clerk and authenticated by the seal of the county, and countersigned by the collector, he has all the law requires him to have, and the presumption will be that the county court authorized the issue of the license upon a proper petition presented to it.</p>

<p>Circuit Courts : How and for what, may suspend circuit clerics.</p> <p>Coit, circuit clerk, was indicted for forgery; whereupon, the court, upon presentment of the indictment, suspended him from the functions of his office. On mandamus by Coit to be reinstated; Held, 1st. The record should show service on the defendant in the indictment, or that he was present in court at the time the judgment of suspension was rendered. 2d. That under sec. 15, chap. 30, Gould’s Digest, before the clerk of a circuit court can be suspended, it must be shown affirmatively that he has been guilty of some misdemeanor in office, or of some misconduct denounced by the statute, or is incapacitated. 3d. That the court in the first instance, cannot render judgment of absolute removal, but only, suspension until the trial of the charge.</p>

<p>Supervisors and Circuit Clerks : Offices of, not incompatible.</p> <p>Millen was appointed and qualified as supervisor; subsequent thereto he accepted the office of deputy circuit clerk. On quo mvrranto, and plea that the duties of the two offices were incompatible and , within the prohibition of sec. 2, art. IV of the constitution: Held, that the functions exercised by a supervisor are chiefly ministerial, and those of the clerk wholly so, and the discharge of the duties of the two offices, by the same person, are not incompatible or repugnant.</p>

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

<p>APPEAL from Chicot Circuit Court.</p> <p>Hon. Henry B. Morse, Circuit Judge.</p>

<p>APPEAL from Grant Circuit Court.</p> <p>Hon. John Whttock, Circuit Judge.</p>

<p>Circuit Courts: Jurisdiction of, in contested elections.</p> <p>Under chapter 12 of the Civil Code of Practice, circuit courts have jurisdiction in cases of contested elections for the office of sheriff; and such chapter of the code operates as a .complete substitution for the sections in G-ould’s Digest, ch. 62, providing for certain election contests in the county courts.</p>

<p>Supreme Court — Practice : When cause submitted, dismissed.</p> <p>Where a cause has been submitted and it appears that the transcript was not filed within three years after the rendition of the judgment, and no extension of time was asked for the filing of the same, the submission will be set aside and the cause dismissed.</p>

<p>Courts or Equity : When cannot enjoin proceedings of county officers, etc.</p> <p>Courts of equity have no jurisdiction to enjoin the proceedings of the officers of a county and vacate its organization, where such organization does not interfere with some individual right; the state, on quo warranto, is the only proper party to inquire into the right of county officers to exercise their official functions in disputed territory, or to determine the number of square miles contained in a county.</p>

<p>APPEAL’ from Crittenden Circuit Court.</p> <p>Hon. M. L. Stephenson, Circuit Judge.</p>

<p>Railroads: Proceedings to condemn right of way, eta., when not valid.</p> <p>The twenty-third section of “An act to provide for a general system of railroad incorporation,” approved July, 23,1868, is in conflict with, article V, section 48 of the constitution, and all proceedings had in conformity to, or in the manner prescribed by said section for the condemnation of lauds for public or railroad uses, are invalid.</p>

<p>APPEAL from Phillips Circuit Court. ,</p> <p>Hon. M. L. Stephenson, Circuit Judge.</p>

<p>Yenue. When affidavit for change of, presumed waived.</p> <p>Where a party would be entitled, under the statute, to a change of venue, upon making application in conformity to the requirments of the statute, and an order of record is entered by agreement and consent of the parties changing the venue, this court will presume the application required by the statute was made or offered to be made, and all objections thereto were waived.</p>

<p>APPEAL from Independence Circuit Court.</p> <p>Hon. J. W. Butler, Circuit Judge.</p>

<p>Appeals : To whom not allowed after judgment.</p> <p>A third person, or one who was not a party to the suit, will not be permitted, after Únal judgment rendered, to come in and he made a party in order that he may prosecute an appeal.</p>

<p>APPEAL from Desha Circuit Court.</p> <p>Hon. M.-L. Stephnson, Circuit Judge.</p>

<p>Supersedeas Bond: Liability of sureties.</p> <p>Singleton sued Neal and two others; judgment against, defendants. Appeal to this court with supersedeas bond; judgment affirmed as to the two, and set aside as to Neal for the want of service. Suit on supersedeas bond and plea by sureties that the judgment was not affirmed. Held, that Neal, not having been served with process, was not prejudiced by the judgment and could not prosecute the appeal, and that on affirmance of the judgment as to the two, the sureties became liable.</p>

<p>Homestead : Claim of, must be asserted btfore sale, etc.</p> <p>Smith, a married man and the head of a family, without having selected or appropriated the same for a homestead under the act of March 28,1871, owned and occupied the house and lot in question. (and no other real estate) at the time of the rendition of the judgment and the sale of the same on execution; and was present at the sale, and notified the sheriff and the bidders that he claimed the property as his homestead. On ejectment brought by the purchaser, and plea of general issue by defendant: Reid, that a failure or neglect to select the homestead in the manner pointed out by law amounts to a waiver of the right; and having been neglected, a debtor cannot assert it in an action of ejectment; that the exemption, if intended to be claimed, must be asserted before the sale,. and a debtor cannot prevent the sale of his homestead by simply telling the sheriff and bidders, at the sale, that he claims the property as his homestead.</p>

<p>APPEAL from Desha Circuit Court.</p> <p>Hon. M. L. Stephenson, Circuit Judge.</p>

<p>Legislative Enactments : Uneonstitutionality of, how pleaded.</p> <p>Where a party relies upon the fact, that an act of the legislature was not constitutionally passed, as that the act was not read three times on different days, the fact that it was not, instead of the pleader’s information and belief, should be unequivocally averred.</p>

<p>APPEAL from Arkansas Circuit Court.</p> <p>Hon. Henry B. Morse, Circuit Judge.</p>

<p>PETITION for Mandamus.</p>

<p>Arbitration : Common law as to, not repealed.</p> <p>The provisions of the revised statutes on the subject of arbitration do do not repeal the common law in relation thereto, nor are parties thereby prohibited from submitting their controversies to arbitration without the .intervention of a court.</p> <p>Award : Defense to action on.</p> <p>An award can always be enforced by an action, and the defendant may avail himself of any defense appearing on the face of the award and submission, or any defense that would defeat any other written agreement.</p>

<p>APPEAL from Maclison Circuit Court.</p> <p>Hon. Gf. C. Crump, Sp. J.</p>

<p>APPEAL from Johnson Circuit Court.</p> <p>Hon. H. R. Withers, Circuit Judge.</p>

<p>APPEAL from Jefferson Circuit Court.</p> <p>Hon. Read Eletci-ier, Special Judge.</p>

<p>APPEAL from Pulasjci Circuit Court.</p> <p>Hon. John Whytock, Circuit Judge.</p>

<p>Docket Fee : Against whom adgudged, eta.</p> <p>Under section 775, Code of Civil Practice, only one docket fee is recoverable off of tbe same party in any one cause, whether litigated before one court or more than one, and is adjudged against the party losing costs, and such fee goes to the plaintiff or defendant as the case may be, and not to the attorney.</p>