Volume 29 — Arkansas Reports

<p>1. Criminal Practice.</p> <p>Under our statute, service of a copy of the indictment on the accused while he is in prison, and in the absence of his counsel, is sufficient, and the same is true as to the jury list, if, under the code practice, he is entitled to the latter.</p> <p>3. — Objection to the panel should be taken by motion to set it aside.</p> <p>3. — The erroneous rejection of a talesman is not a ground for new trial; it is in the discretion of the court to excuse a talesman for any ground deemed sufficient, without prejudice to the accused.</p> <p>4. Evidence : Secondary.</p> <p>When the substance of the testimony of a witness before the committing magistrate was, by consent of defendant’s counsel, taken down by the attorney for the state, and read to and subscribed by the witness, in the presence of the accused, and when he had an opportunity of cross examining, and the witness was out of the jurisdiction at the time of the trial, the deposition may be read as secondary evidence, without any violation of the rule that “ the accused shall be confronted by the witnesses against him.”</p> <p>5. — Objections to testimony should be specific.</p> <p>When no specific objection is made to the competency or relevancy of' the testimony, this court will not attempt to pass upon it.</p> <p>6. Criminal Practice : To what papers the jury entitled.</p> <p>Upon retiring for deliberation, the jury may take with them, and read,, all papers that have been received in evidence in the cause, and it is in the discretion of the court to permit them to take the instructions.</p> <p>7. Instructions.</p> <p>An instruction by the court, though it may be unnecessarily long and redundant, and a portion of it argumentative for the purpose of comparing the relative value of direct and circumstantial testimony,, and to some extent abstract, such parts being sufficiently qualified by other instructions, will be sustained, if, upon the whole, the charge seems to have been fair, impartial, and composed of principles of law expressed in substantially correct terms.</p> <p>8. Joint Indictment: Proof under, where the accused sever at the trial-</p> <p>Where two persons are jointly indicted for murder, and sever at the trial, it is sufficient to prove the guilt of the one on trial, though, the j ury may have a doubt as to that of the other.</p> <p>9. Instruction.</p> <p>The refusal of the court to give an instruction that is not applicable to-the indictment is no ground for new trial.</p> <p>10. Presumptions: In favor of the circuit court.</p> <p>In the absence of any- showing to the contrary, it must be presumed by this court that the oath was administered to the jurors in proper form.</p> <p>11. Jurors: Plow talesman sworn.</p> <p>When the regular panel is exhausted, and the deficiency of jurors is-supplied by talesmen, they may be sworn separately as they are selected. <</p> <p>12. — Clerical error as to name of, how corrected.</p> <p>When it appears that a juror belonged to the regular panel for the term; that the ticket upon which his name was written before drawing contained his proper name, and that by a clerical misprision, the clerk entered his name erroneously in the record of the proceedings, the error may be corrected by the court on the motion of" the attorney for the state.</p>

<p>1. Criminal Law : Former jeopardy.</p> <p>Where a defendant is tried and convicted of a criminal offense, and a new trial is granted hi m on his own motion, he may he tried again for the same offense.</p> <p>2. Criminal Practice : Disposition of a defective plea.</p> <p>It is the more regular practice for the court to dispose of a defective-plea on demurrer, than to overrule it on its own motion; but such an irregularity is no cause of reversal.</p> <p>3. Criminal Pleading : When a defective plea will he aided hy the record.</p> <p>When matter of defense, consisting of steps previously taken in the same cause, is defectively pleaded, the court will take judicial cognizance of the facts, and the plea will be aided by the record.</p> <p>4. Criminal Law: Former acquittal hy implication.</p> <p>Where the defendant was indicted fcr murder in the first degree, tried and found guilty of murder in the second degree, it was an implied acquittal of the higher grade of homicide, and he could not be again put in jeopardy for that offense; and it is the duty of the court so to instruct the jury, whether the former acquittal is pleaded or not.</p> <p>5. — Same.</p> <p>If, by section 1972 of Gantt’s Digest, it was intended to establish a different rule, it is in conflict with the bill of rights contained in the constitution, and the section must be construed and administered by this paramount constitutional limitation.</p>

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

<p>Swamp and Overflowed Lands. When title to, vested in the state.</p> <p>Tlie title of the state to the swamp and overflowed l$inds granted to-her by act of congress of September 38, 1850, accrued from the date of the act. And a title derived from the state will take precedence over a grant by the United States subsequent to that time.</p>

<p>1. Criminal Law : Obstructing highway.</p> <p>Ch. 149, Gould’s Dig., declaring it an indictable offense to obstruct a public road, has been repealed; but if the obstruction is of such a character as to be a common or public nuisance, it is indictable at common law.</p> <p>2. Indictment: What it should chan-ge.</p> <p>The indictment must show such an obstruction as affects and annoys the entire community, otherwise it will be demurrable.</p>

<p>1. Practice in Supreme Court.</p> <p>This court will not, before an appeal is taken, revive a cause against a legal representative, in order to enable him to appeal from a judgment or decree rendered against his testator or intestate prior to his death.</p> <p>2. —Appeal by executor from judgment against Ms testator.</p> <p>The correct practice in such cases is for the legal representative to file a petition with the clerk of this court showing the facts, and his representative capacity, and take an appeal in his own name; whereupon, if the adverse party desires to controvert the fact of the death, or representative character of the party praying the appeal, he can be heard in this court.</p>

<p>1. New Trial: For newly discovered evidence.</p> <p>The party’s affidavit of newly discovered evidence, uncorroborated by the affidavit of a disinterested witness, is insufficient to warrant the granting of a new trial.</p> <p>2. Bastardy: Nature and jwrisdietion of proceedings under the statute.</p> <p>The proceedings in cases of bastardy, provided for in ch. 15, Gantt’s Dig., are in the nature of a criminal prosecution, and, under the Const, of 1868, were within the jurisdiction of a justice of the peace.</p>

<p>1. Criminal Pleading: Gertainty requisite in an indictment.</p> <p>An indictment for larceny, describing tlie subject of the larceny as one hundred and thirty dollars, etc., without any specification as to the kind of money, is insufficient on demurrer, or motion in arrest of judgment.</p> <p>3. —The provisions of the code, sec. 1975, Gantt’s Dig., require that every material fact necessary to constitute an offense, be alleged in the indictment.</p>

<p>1. Practice in Chancery : Proceedings on lost instrument.</p> <p>In a proceeding in chancery on a lost instrument, affidavit of the loss is not necessary. Sec. 66, ch. 133, G-ould’s Digest, relates exclusively to proceedings at law.</p> <p>2. — Objection for want ot the affidavit in such case, if good, should be made by motion, and is no ground of demurrer.</p> <p>3. Vendor’s Lien: Nature of proceedings to enforce.</p> <p>A proceeding against the administrator and heirs of a deceased party, to foreclose a vendor’s lien that was reserved in the deed, is not an action against the personal representative to have satisfaction out of the personal assets; and, although the personal representative is made a party, the object of the proceeding is to subject real estate, under a contracted lien, to the payment of a debt, and the heirs are the real parties in interest.</p> <p>4. — In such a proceeding it is unnecessary to probate the claim before suit. .</p> <p>Note. — See Linthieum, Bx’r, et al. v. Topscott, Adm'r, et al., 28 Ark., ■267. —Rep.</p>

<p>1. Appeal : Effect of upon the judgment</p> <p>Upon the recovery of judgment, the cause of action is destroyed by merger, and the granting of an appeal does not revive it so that another suit may be maintained on it, or impair the judgment, but the latter continues to subsist until reversed and set aside.</p> <p>3. Former Recovery: When may be pleaded.</p> <p>In such case the defendant, if sued again during the pendency of the appeal on the original cause of action, may plead a former recovery.</p> <p>3. Appeal prom Probate Court : Appellee cannot dismiss.</p> <p>The appellee, on appeal by an administrator from a judgment of allowance against the estate of his intestate in the probate court, has no right to dismiss the proceeding in the circuit court, or before the clerk thereof in vacation; and it is error for the circuit court to strike the appeal from the docket on account of such attempted dismissal.</p>

<p>1. Attachment : Sow levied, and effect of.</p> <p>A public declaration by an officer to whom a writ of attachment was directed that he attached certain land as the property of the defendants named, in the writ, made in the presence of a citizen of the county, was a good levy under the 7th section of the act of March 7, 1867, and created a lien on the land from the date of the attachment.</p> <p>2. —How and when the lien is created.</p> <p>The lien of an attachment springs by operation of law out of the act of the plaintiff in bringing his suit properly, and of the offi* cers In issuing and serving the process, and upon the performance of these acts, the lien, though inchoate, is perfect and substantial.</p> <p>3. —Lien preserved upon reversal of judgment of dissolution.</p> <p>When in a proceeding by attachment and levy upon land, judgment is rendered against the plaintiff and the attachment dissolved and he takes an appeal, which is dismissed for failure to file the transcript in time; after which he prosecutes a writ of error and procures a reversal of the judgment below, without filing a supersedeas bond in either case, the lien of the attachment is preserved as between the parties.</p> <p>4. Appeal: T transfers jurisdiction to appellate court.</p> <p>On appeal or writ of error, jurisdiction of the cause is transferred to the appellate tribunal, and proceedings in the inferior court are wholly suspended, except in so far as the statute requiring supersedeas bond authorizes the issuance of execution.</p> <p>5. —Effect of reversal of judgment.</p> <p>Where judgment is reversed on appeal or writ of error, the rights of the parties stand as if no action had been taken by the inferior court.</p> <p>6. Bill of Exchange: Notice of-nonpayment.</p> <p>When the drawer of a bill of exchange promises to furnish the accommodation acceptor the means to meet the paper at maturity, and fails to do so, he is not entitled to notice of "nonpayment.</p>

<p>1. Ratification: Evidence sufficient to establish.</p> <p>Where the evidence shows that the defendant, an attorney, having for collection a claim of the plaintiff, without his knowledge collected the same in Confederate money and loaned it to a third party, who afterward became bankrupt, taking a note therefor payable to the plaintiff, who afterward received from the defendant the receipt of other attorneys to whom the note had been delivered for collection, and after having kept it a few days and made inquiry about the drawer, returned it and demanded the money of the defendant; and tended to show that an agent who had been sent by the plaintiff to look after his claims, upon being informed of the transaction, had expressed himself as satisfied with it: Held, that the jury might well have inferred a ratification of the defendant’s acts, if not from the conduct of the plaintiff in recovering the receipt, at least, from that of the agent in assenting to the transaction.</p> <p>2. Agency : Notice to the agent, eta.</p> <p>The principal is affected with notice of all his agent knows in the line of his duty or the scope of his powers.</p> <p>3. Statute of Limitation: Between attorney and client.</p> <p>While it is true that an action cannot be maintained against an agent or attorney for money collected by them, until after demand and refusal to pay, or neglect of the attorney to notify the client of the collection; yet, if the client has notice, he must make demand in a reasonable time, and if he neglects to do so when he could, with ordinary diligence, have known of the collection, he puts the statute of limitation in motion. [See Jett, Ex’r, v. Hempstead, Ex’r, 25 Ark., 462. — Rep.]</p> <p>4. Statutes : Time of talcing effect under constitution of 1868.</p> <p>Under the provisions of sec. 22, art. VIII of the Const, of 1868, an act of the legislature that did not fix the time it should take effect, was not in force until ninety days after its passage.</p> <p>5. Jurors : Mode of determining the qualification of.</p> <p>The provisions of the constitution of 1868, prescribing the qualification of jurors, did not take from the legislature the power to direct in what manner the question of qualification should be determined by the courts; and sec. 25, ch. 98, Gould’s Dig., regulating this matter, is not in conflict with the constitutional provision, nor was it abrogated by the code of practice prior to the amendments of 1871.</p> <p>6. Code oe Practice : Sow fan' it repealed prior statutes.</p> <p>The code was only intended to change the forms of action, and abolish the old forms and modes of procedure, and in all other cases where" in it was silent the provisions of Gould’s Digest continued to ope. rate until repealed.</p> <p>7. Jurors: Time of objecting to.</p> <p>An objection to the qualification of a juror must be made before he is sworn and impaneled. It comes too late on motion for new trial, even though the cause of the disqualification may not have been discovered earlier.</p>

<p>Evidence: How a witness may be impeached.</p> <p>Under tlie provisions of sec. 3524, Gantt’s Dig., a witness may be impeached by evidence tliat his general reputation for truth and immorality renders him unworthy of belief.</p>

<p>Appeal : Row taken in behalf of the state.</p> <p>Where an appeal in behalf of the state is desired, it is by the provisions of Gantt’s Dig., secs. 3127 and 2128, required, that the prosecuting attorney pray an appeal during the term at which the decision is rendered, and that a transcript of the record be transmitted, by the clerk, or prosecuting attorney, to the attorney general, who may, if he deem it of sufficient importance, perfect the appeal by lodging the transcript in the office of the clerk of the supreme court within sixty days after the decision was rendered; and where it does not appear that these provisions have been complied with, the case will be stricken from the docket of the supreme court.</p>

<p>1. Criminal Practice : As to serving copy of indictment.</p> <p>A defendant, who is at large on bail, is not entitled to service of a copy of the indictment under the provisions of Gantt’s Dig., sec. 1825.</p> <p>2. — As to serving copy of venire.</p> <p>A failure to furnish the defendant or his counsel with a copy of the venire before trial is no ground for a new trial, where the objection was not raised at the time.</p> <p>3. Criminal Law : Rape.</p> <p>It is not the persistence with which the party accused intended to prosecute his illegal design, but the force actually used, that is an element in the crime of rape. And the court did not err in refusing to instruct the jury that they must find that the accused intended to eliect his purpose forcibly and at all events.</p> <p>4. — Bape may be committed on a female under the age of puberty, or one so young as not to be capable of giving her consent.</p> <p>5. Instructions :</p> <p>It is in the discretion of the court to give, or withhold cautionary instructions in regard to the evidence.</p>

<p>Appeal : From the probate to the supreme court.</p> <p>Sec.,15 of ch. 49, Gould’s Dig., continued in force after the adoption of the code of practice, and precluded an appeal from a probate court to the supreme court, in the matter of the allowance of claims against estates. The provisions of the constitution of 1868, and of secs. 15,16 and 19 of the civil code on this subject construed.</p>

<p>1. Bail : Liability of attorney on bail bond.</p> <p>Semble, that sec. 4823, Gantt’s Dig., providing that attorneys shall not be taken as bail without leave of the court, is merely directory, and cannot be set up as a defense to an action on the bond.</p> <p>2. Scire Facias on Bail Bond : Pleading in.</p> <p>In scire facias on bail bond, the whole record is before the court, and if the defense is defectively pleaded, judgment should not be given when the record shows it would be illegal and unjust. A demurrer to the defendant’s pleading should, in such case, relate back to the plaintiff’s case, as in pleading at common law.</p> <p>3. Bail : Discharge of.</p> <p>Where a change of venue is granted on the application of the defendant, who is at large on bail, and he is ordered into the custody of the sheriff to be transmitted to the custody of the sheriff of the county to which the venue is changed, the right of the bail to the custody of the defendant is impaired, and his liability is at an end.</p>

<p>1. Practice: Substituted declaration.</p> <p>It is not error to permit a new declaration to be substituted for one that has become almost illegible from use.</p> <p>2. Contract: Consideration.</p> <p>The compromise oí litigation is sufficient consideration for an express promise.</p> <p>3. Confiscation : Proceedings and evidence necessary to sustain.</p> <p>The acts of congress of August 6,1861, and July 19, 1862, required confiscation to be decreed by a district court of the United States and title through that source must be proved by the record. Persons claiming confiscation under the 1st section of the act of May 11,1866, must establish a military seizure of the property, and evidence tending to prove the seizure is properly left to the jury.</p> <p>4. Agency: notification.</p> <p>An instruction that the acceptance by the principal, of a valuable consideration for property sold by a general agent ratified the sale, and the principal could not repudiate it without returning, or offering to return, the consideration, held to be substantially good in view of the evidence, though it would have been more correct to have qualified the effect of the acceptance by the principal’s knowledge of the transaction.</p> <p>5. Evidence : Opinion of impeaching witness.</p> <p>The rule heretofore adopted by this court, allowing an impeaching witness to testify as to his belief, adhered to, though questioned.</p> <p>6. — Of previous reputation for truth and veracity.</p> <p>The admission of testimony as to the reputation of a witness for truth and veracity, at some other time, and at a different place from that of his residence at the time of testifying, is in the discretion of the court; and it is only in cases of gross abuse, that the discretion will be controlled, especially where no suprise is shown.</p>

<p>1. Criminal Pleading.</p> <p>Matters of defense, not appearing on the face of the indictment, are no-ground of demurrer, but must be taken advantage of at the trial.</p> <p>2. Coroner : Power to arrest.</p> <p>A coroner is authorized to have parties who are, by the inquest, impli. cated in the crime of murder, arrested and held for trial in the circuit court. And an officer in whose custody they are placed has no right to release them on the order of a justice of the peace who had, prior to the death, had them arrested for attempting to take the life of the deceased. The latter officer has no power to bail in such cases.</p> <p>3. Evidence: Coroner's minutes of an inquest.</p> <p>The minutes kept by a coroner of an inquest held by him are not competent evidence. The facts contained in them should be proved by the testimony of the coroner.</p>

<p>1. Criminal Pleading. Indictment for m'son, etc.</p> <p>No allegation of ownership is necessary in an indietmentfor arson of a public building; but there must be an allegation of a felonious intent.</p> <p>2. — The provisions of the constitution of 1868, that no person could</p> <p>be held to answer a criminal offense, unless upon presentment or indictment, except the offenses named therein, must be construed-with reference to the common law meaning of the term indictment; and, while the legislature may dispense with mere matters of form, the substance of a good common law indictment must be preserved.'</p>

<p>1. Practice : Bight to concluding argument.</p> <p>The party having the burden of proof is entitled to conclude the argument, and a denial of this right is ground for reversal.</p> <p>2. Evidence : Competency of an earlier; in support of capacity to make a later will.</p> <p>A former will, that was never probated, but was proven by the subscribing witnesses to have been executed at a time when there was no doubt of the capacity of the testator to make a will, and which contained provisions similar to those of a later will, which was being contested, was competent, in connection with other evidence, to show whether the testator’s mind was rational and unbiased at the time the will in contest was executed.</p> <p>8. Pleading: Issue in the contest of a will.</p> <p>The provisions of sec. 82, ch. 180, Gould’s Dig., for the contest of a will, require that the distinct issue of devisavit vel non be made up, and the jury sworn to try it.</p> <p>4. — Capacity and undue influence must be considered together, and both questions should be presented by the instructions.</p> <p>The questions of capacity to make a will, and of undue influence, are intimately connected, and must ofnecessity be considered together; though there was capacity, yet, if the mind was not free to act, by reason of the undue influence of another, the act might be declared invalid. And when there is evidence on the latter question under the issue of devisavit vel non, an instruction on the former should be so qualified as to leave the jury free to consider it.</p> <p>5. — Bange of inquiry under this issue.</p> <p>If capacity and free agency exist at the time of the act, it will be valid,, regardless of the state of the mind or the degree of restraint at any other time; but the will may be fettered and controlled at the time the act is done, by influences that were previously fixed and impressed upon the mind; and in order to determine the capacity and freedom of the mind at the time, a wider range of inquiry is permissible into facts and circumstances, whether before or after the making of the will.</p> <p>6. — Capacity requisite to make a will and how destroyed.</p> <p>The capacity to make a will is such as requires sufficient mind to contract, free from such undue influences as constrain the party to act against his will, or subdue the will until it ceases to act for itself, and acts under the dictates of the will of another. This capacity-may be destroyed without actual force and coercion.</p> <p>7. Instructions.</p> <p>The instructions should be based on evidence in the cause, otherwise,, they are correctly refused.</p> <p>8. — Under the issue of deviscwit vel non.</p> <p>The court should not, under the issue of devismit vel non, embody a hypothetical state of facts in an instruction and direct the jury-what their verdict must be in case they find those facts.</p> <p>9. Evidence : Contents of the will competent.</p> <p>The contents of the will, and the facts and circumstances connected* • with its execution, are proper- to be considered of by the jury im determining the capacity of the testator.</p> <p>10. — Instructions upon.</p> <p>While it is true that an unequal distribution of the estate of the testator-among his children is a circumstance calculated to arouse suspi- ' cion, and should go to the jury, an instruction that it required strict-proof of fairness would tend to induce the jury to attach undue importance to it, and should not be given.</p>

<p>1. Presumptions : In favor of circuit court.</p> <p>When the circuit court set aside the regular panel of grand jurors, and had another summoned; and the record fails to disclose the ground of its action, this court will presume that it was done for good cause.</p> <p>2. Waives: Of irregularity in formation of the grand jury.</p> <p>A defendant, hy pleading to an indictment, without moving to set it aside, waives any illegality in the formation of the grand jury.</p> <p>3. Indictment: Form of.</p> <p>A statement, in the indictment, of the facts necessary to constitute the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, is all that is required.</p> <p>4. The Becord: Need not recite facts'already appearing.</p> <p>An order changing the venue in a criminal cause need not set forth the ground thereof, the same appearing in the petition, which is a part of the record.</p> <p>5. Circuit Court : Authority for holding special terms of.</p> <p>The authority for holding a special term of the circuit court, for the trial of persons confined in jail, is complete when it appears there were persons in jail awaiting trial before the court, that the time fixed did not interfere with any other court to be held by the judge, and was not within twenty days of the regular term; and that the judge, ten days before the time fixed, made an order therefor, which was transmitted to the clerk and by him entered upon the record; and an omission to notify the prosecuting attorney, ten days before such term, would not affect the jurisdiction or the rights of a defendant.</p> <p>6. Verdict: ‘ Form of.</p> <p>The verdict of the jury may be announced orally and entered by the clerk upon the record; and if in writing and responsive to the is. . sue, it is sufficient, without the formula, “ in manner and form,” etc.</p>

<p>CERTIORARI to Pulaslci Circuit Court.</p> <p>Hon. John Whytock, Circuit Judge.</p>

<p>1. Husband and Wipe : Take land by entireties.</p> <p>At common law, husband and wife are seized of the entirety in land conveyed to them jointly; and upon the death of- one of them, the estate remains to the survivor.</p> <p>2. — Same : Construction of statutes and constitution of 1868.</p> <p>The rule of the common law is not changed by our statute or the constitution of 1868. The latter, art. XII, sec. 6, only relates to the separate property of the wife, and was intended merely to preserve it from liability for the debts of the husband.</p>

<p>1. Jurisdiction on Supreme Court: To render judgment on supersedeas bond.</p> <p>The sureties in a supersedeas bond become, in legal effect, parties to the suit, under our statute, and agree, in case of affirmance, that judgment may be rendered against them by the supreme court for • costs and damages and the amount of the judgment below, and a judgment so rendered is not void for want of jurisdiction.</p> <p>2. Tender : Of state scrip for a, money judgment.</p> <p>A tender of state scrip in satisfaction of a money judgment, after the party has neglected to plead such facts as would have entitled him to pay in scrip, is too late.</p> <p>3. — In pa/i't good and pw't bad, effect of.</p> <p>The tender of an entire sum in state scrip, when a part was payable in money and a part in scrip, is bad as to the whole.</p>

<p>Jurisdiction or Circuit Court: To render judgment on supersedeas.bond.</p> <p>On appeal from a justice of the peace to the circuit court, with super sedeas, the circuit court has jurisdiction to render judgment against the sureties on the appeal bond.</p>

<p>1. Vendor's Lien: Is assignable.</p> <p>Tlie lien of a vendor who executes a bond for title, inures to the benefit of an assignee of tlie purchase money note.</p> <p>2. —In case of reassignment to vendor without recourse..</p> <p>The effect of the reassignment, to the vendor, of the purchase money note, without recourse, is to unite in him the debt and the right to enforce satisfaction under the lien for which he had contracted. This case distinguished from Williams v. Christian, 23 Ark., 25S. •</p> <p>S. — When the vendor has pcvrted with his security.</p> <p>But when the vendor, who also held under a title bond, has transferred it before the reassignment of the note, the foregoing rule does not apply.</p> <p>4. Estoppel Equitable.</p> <p>The vendors of land whose bond for title had been assigned required their vendee t,o pay a note for the purchase money, which they had transferred to a nonresident, to a confederate receiver, before they would comply with the conditions of their bond in favor of the assignee ; and by that and other acts induced the assignee to pay other incumbrances and accept a deed to the land. Afterward the note which they had required paid to the receiver was reassigned to them. Held, that they were estopped to enforce it against the assignee of their bond for title.</p>

<p>1. New Trial: On the ground of surprise.</p> <p>An application for a new trial, on tlie ground of surprise, must show by whom the facts tbe party expected to prove can be established; that they are material, and must be accompanied by the affidavits of the witnesses, when they and the facts were known to the party and he neglected to have them summoned or called.</p> <p>2. Instructions.</p> <p>If an instruction, on a trial for murder, contained a fair exposition of the law, it will not be held objectionable because the court used the term “ murder ” in referring to the killing.</p> <p>3. Evidence : When threats inadmissible.</p> <p>Threats not shown to have been communicated to the accused are in» admissible in evidence.</p> <p>4. Verdict: When responsive to the indictment.</p> <p>An indictment for murder charges all the lower grades of felonious homicide, and a verdict of manslaughter is responsive to it.</p> <p>8. Criminad Law: Self Defense.</p> <p>In order to justify the taking of life in self defense, the party must employ all means within his power, and consistent with his safety, to avoid the danger and avert the necessity.</p> <p>6. — Change of venue.</p> <p>Ch. 53, Gould's Dig., providing for a change of venue in criminali causes, was not repealed by the code, and is still in force.</p>

<p>1. Practice in Circuit Courts : On, appeals from, the probate court.</p> <p>' Under the provisions of the code, as amended in 1871, causes taken to the circuit court on appeal from the prohate court should he tried üe novo.</p> <p>3. Claims against Estates: Exhibition of.</p> <p>The failure to furnish an administrator with a copy of a claim exhibited is matter in abatement. And where no copy is demanded, or the refusal to act on the claim is not expressly based on such omission in time for it to have been remedied, this court has never encouraged such objections.</p> <p>8.— Waiver of notice by administrator.</p> <p>When a claim is presented to an administrator within the time required by law, and a waiver of notice indorsed thereon, it is tantamount to a rejection and reference of it to the probate court.</p> <p>4. Statute oe Nonclaims: What will arrest.</p> <p>The exhibition of a claim properly authenticated to an administrator, arrests the statute of nonclaims; and the law does not limit the-time of presentment to the probate court for classification.</p> <p>5. Limitation on Judgment Liens : Suspended by the wour.</p> <p>The limitation of three years on judgment liens was suspended during the war.</p>

<p>Prosecuting Attorney : When, the county liable for fee of.</p> <p>Under the provisions of sec. 1994, Gantt’s Dig., upon the failure of a defendant, against whom judgment is rendered in a criminal proceeding to pay the costs, the county is liable for the prosecuting attorney’s fee.</p>

<p>1. Constitutional La?w : The right of objecting to the. qualification of grand jurors.</p> <p>The provisions of sec. 1978, Gantt’s Dig., prohibiting exceptions, to the rulings of inferior courts, in refusing to set aside an indictment for a defect in the formation of the grand jury, is unconstitutional. The legislature may prescribe the time and manner of determining objections to the qualifications of jurors, but it cannot take away the right of objecting.</p> <p>2. Grand Jurors : Qualification of.</p> <p>It was not necessary, under the provisions of sec. 3654, Gantt’s Dig* that grand jurors should be householders or freeholders.</p> <p>3. Criminal Practice : Form of oath for petit jury.</p> <p>The oath prescribed for the petit jury by sec. 219, Crim. Code, is not in violation of the constitution; it in effect requires the jury to try the the case according to the law and the evidence.</p> <p>4. — Irregular and improper conduct of petit jury.</p> <p>During the deliberations of the petit jury, in a trial for murder, they should not be permitted to separate, or to indulge in the use of liquor, or to read a newspaper containing improper comments on the trial of the case before them, nor should the defendant or his counsel be called on to consent to such irregularities, as a refusal might incense the jury; but where the court below, with a knowledge of the facts and circumstances, and of the habits and character of the jurors, refuses to set the verdict aside on account of such irregularities, this court will not do it.</p> <p>5. Evidence : When threats; and the character of the deceased admissible.</p> <p>Threats, and the character of the deceased are admissible, when they tend to explain or palliate the conduct of the accused. They are circumstantial facts, and a part of the res gestee when so connected with the conduct of the parties as to explain their motives.</p> <p>6. Criminal Law.: Instructions: As to what constitutes the crime of murder.</p> <p>It is not the intention to use a deadly weapon, but the intention to kill, oí which the use of the weapon is evidence, that constitutes the crime of murder; and this distinction should be made clear to the jury in the instruction on this point.</p> <p>7. — Same.</p> <p>The court should define to the jury the difference in the degrees of homicide; but the failure to do so will not be ground for reversal where the court read from the statute the definition of the different degrees of murder.</p> <p>8. — Same.</p> <p>An instruction, that where a deliberate purpose to kill, or do great bodily harm, on the part of the defendant, appeared, followed by an unlawful killing, the provocation which immediately preceded must not be considered, unless the defendant showed that the purpose was abondoned before the killing; should be accompanied by an explanation of the degrees of homicide, and so guarded as to allow the jury to infer the abandonment of the purpose to kill, from the circumstances of the homicide.</p> <p>9. — Same. When obscure.</p> <p>Where an instruction is vague and obscure, but not misleading, this court will not hold it erroneous.</p> <p>10. — Malicious killing.</p> <p>A malicious killing is not necessarily murder in the first degree; it must also be willful, deliberate and premeditated, or committed in the attempt to commit some one ©f the felonies deseribed in the statute.</p> <p>11. — Reasonable doubt defined and explained.</p> <p>By a reasonable doubt it is not intended to exclude every mere possible doubt. Where the jury, after consideration and comparison of all the evidence, are satisfied to a moral certainty, of the truth of the charge, they may convict.</p> <p>13. — Self defense.</p> <p>To excuse homicide, it must appear that the danger is not only impending, but so pressing and urgent as to render the killing necessary ; and that the slayer really acted under the influence of such fears' as a reasonable person might entertain, and not in a spirit of revenge. The circumstances' of the rencontre, the situation of the parties at the time, their threats and their relative strength, should be considered by the jury.</p> <p>13. — Same. Instruction upon.</p> <p>An instruction, that if the deceased by his manner and words manifested an intent, coupled with acts, to kill or inflict bodily harm upon the defendant, and immediately sought to carry the purpose into effect, the defendant, if in the reasonable fear of such consequences, was justified in taking life: Held, too general and unqualified.</p> <p>14 Instructions : How tested.</p> <p>In testing an instruction, every deduction that the jury might have made from the evidence is to be taken as having been proven.</p> <p>15. Evidence : Burden of proof, instruction, etc.</p> <p>Where the killing is proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, unless they are developed by the proof on the part of the state, or it is manifest that the offense only amounted to manslaughter. An. instruction to this effect, however, should be accompanied by a definition of the degrees of homicide.</p> <p>16. Instruction : When it need not be in writing.</p> <p>The reading of a section of the digest to the jury, as an instruction, is a sufficient compliance with the law requiring it to be in writing.</p> <p>17. Criminal Practice : What papers should le excluded from the jury.</p> <p>The jury should not be permitted to take with them, when they retire, papers containing statements bearing on the case, which were not read in evidence. But where the paper taken is the appellant’s mo. tion for continuance, containing a statement of the facts he expects to prove, it cannot be prejudicial to him.</p>

<p>1. Evidence : Burden of proof in replevin.</p> <p>An answer in replevin denying the plaintiff’s ownership of the property in controversy casts the burden of proof upon him.</p> <p>2. — Of sale, und&r execution, of personalty.</p> <p>The judgment and execution must be produced, before evidence of a purchase at execution sale of personal property is admissible; but after the proper foundation is laid, the -sale may be established by oral evidence; a bill of sale is not’necessary to pass title in such cases.</p> <p>S. Execution Sale.</p> <p>A sale under execution by a constable, in the absence of the goods, is void.</p> <p>4. — Who may take advantage of illegality in.</p> <p>Any one who is in possession of property sold under execution may contest the validity of the sale, in an action by the purchaser for the possession.</p> <p>5. Eixtubes : Portable engine, etc., when treated as personalty.</p> <p>Where the evidence shows a sale of a portable engine, and a lot of old irons belonging to a saw mill that had been burned, without showing upon whose land it was situated at the time of the sale, the court was warranted in finding that it was personalty.</p> <p>6. Replevin: When the form of the judgment will cure an omission to prove or find the value of the property.</p> <p>Where in an action of replevin there is no alternative judgment for the value of the property, and none for damages, the defendant is not prejudiced by the failure of the plaintiff to prove, or of the court to ■ find the value, and the omission is not ground for new trial.</p>

<p>1. Homestead: Descends to widow and children.</p> <p>The widow and children of one who held a homestead during his life are entitled to occupy and enjoy it with the like exemptions during the time specified in the statute; and the question of homestead, may be determined by the acts, declarations, circumstances and general conduct of the party which tend to show what his bona fide intention was.</p> <p>2 — As affected by the absence of the wife mid children.</p> <p>The domicile of the wife and minor children follows that of the hus- . band, and their actual personal residence at the homestead place is not necessary to perfect the right in him, or to entitle them to the benefit of it after his death.' Where the head of a family has, in good faith, selected a place of residence, owns the. land, and has entered and resides upon it, the absence of the wife and children might require stronger proof of intention, but nothing more.</p> <p>3. — Interest of the wife and children independent.</p> <p>The homestead estate is created equally for the benefit of the wife and children, and none of them can do an act that will impair or prejudice the rights of the others.</p> <p>4. — Assertion of, infancy, etc.</p> <p>The children are not required to assert their right of homestead during the continuance of the wife’s right, by reason of her priority; and delay after the expiration of her right will not bar or prejudice the rights of minors, who are not required to assert their rights or take possession of the homestead, on account of their incapacity.</p>

<p>1. Yeitoe: What sufficient proof nf.</p> <p>When there was no direct evidence that the offense charged was committed in the county in which the indictment was found, but there was such a reference in the testimony to objects of a public character that the jury mightjiave found that fact, a new trial will not be granted.</p> <p>2. New Trial : When the separation of the jury not ground of.</p> <p>When the jury was permitted to separate into two bodies for the purpose of dining, but were under the eye of the bailiff, and were not exposed to improper influences, it was not a ground for new trial.</p> <p>3. — Testimony ofjv/rors, on motion for.</p> <p>The court properly refused to permit the appellant to prove by jurors, as a ground for new trial, that the verdict was influenced by representations of the bailiff in charge of the jury. Under our statute, a juror can be examined to establish no other ground of new trial than, that the verdict was made by lot.</p>

<p>1. Criminal Law : Compounding a felony.</p> <p>Compounding a felony is the offense of taking a reward for forbearing to prosecute a felony.</p> <p>2. —Bribery.</p> <p>Bribery is the taking or offering a reward to influence the official con. duct of a judge or other person concerned in the administration of justice.</p> <p>3. Criminal Procedure: The verdict must be responsive to the material allegations of the indictment.</p> <p>An information, in which the offense charged is called compounding a felony, but in which the facts stated constitute bribery, is, in reality, a charge of the latter offense; and a verdict finding the party guilty of the former offense is erroneous and should be set aside.</p> <p>4. —Defective warrant of arrest.</p> <p>The only purpose of the warrant of arrest is to bring the person charged with an offense before the officers issuing it, to be dealt with etc.; the object of stating the offense charged is ;to apprise the party for what he is arrested, and a defective statement will not affect the subsequent proceedings.</p> <p>5. — Criminal ¡jurisdiction of justices of the peace under the constitution of 1868.</p> <p>Under the constitution of 1868, justices of the peace, had concurrent jurisdiction of all criminal matters less than felony, and no written information or pleading was necessary.</p>

<p>1. Appeal: From, a justice of the peace on judgment by default.</p> <p>An appeal cannot be granted from a judgment by default rendered by a justice of the peace, unless the defendant, within ten days after the judgment is rendered, make application to the justice to set it aside.</p> <p>2. Judgment by Default: When proper.</p> <p>When a defendant has appeared to the action but interposed no answer or defense, judgment by default may be rendered against him.</p>

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

<p>1. Appeal : When second appeal allowed.</p> <p>A party who has taken an appeal without supersedeas, and failed to perfect it within the time required by law, may take another appeal at any time within the period during which appeals are allowed.</p> <p>2. —Practice on second appeal.</p> <p>In such cases it is the better, but not the necessary practice, to have the first appeal docketed and dismissed before taking a second appeal.</p>

<p>Writ of Error: Pending appeal with supersedeas.</p> <p>When an appeal has been granted to this court, with supersedeas, a writ of error will not lie until the appeal has been dismissed.</p>

<p>1. Assignment: Of decree, effect of.</p> <p>Where one joint owner of a decree executes an instrument transferring to a third person a part of his interest therein, the legal title and right to control the decree is not thereby changed, nor does the assignee become a partner in the decree.</p> <p>2. Payment : By assignment of decree.</p> <p>Where such an assignment is intended as a mode of payment for property purchased by the assignor, its legal effect is to create a security, and the assignor’s liability is not thereby extinguished.</p> <p>8. Guaranty : In the assignment of a decree.</p> <p>By guarantying payment to the assignee of the sum transferred, the assignor in legal effect warranted that he had a valid decree which, with good faith and reasonable diligence on the part of the assignee, would be effectual to the payment of the assignor’s indebtedness.</p> <p>i. Pleading: Amendment: When presumed.</p> <p>When the covenant sued on is set out in the complaint, this court will not consider a defect in the assignment of breaches where no objection was made to the introduction of testimony in the court below on that ground, but if the proof shows a breach, will regard the complaint as having been amended to correspond with it.</p> <p>5. Verdict: Where general finding sufficient.</p> <p>Where the bill of exceptions shows a fact to have been proven, this court will not reverse because a general verdict and judgment failed to state specifically that the fact was found.</p> <p>6. Contracts : When the courts will not relieve against.</p> <p>If the terms of his contract render a party liable for a result produced by the war, the courts cannot relieve against it.</p> <p>7. Vis Major: Failure to issue process during the war excused.</p> <p>Parties will not be held responsible for a failure to issue process on a ' decree during the time the courts were closed by the war; and the courts will take judicial notice of that period.</p>

<p>íj Taxes: Ju/risdiction of county court to levy school tax.</p> <p>The county court is required to levy such taxes for school purposes as are voted by the electors of the district for which the tax is levied, or recommended by the trustee; and in the absence of such vote or recommendation, is without jurisdiction to levy a school tax.</p> <p>%— The rate of for school districts unlimited.</p> <p>The common school act of 1868 contained no limitation upon the amount of taxes that might be voted by the electors of the school districts, of levied by the county court, for school purposes.</p> <p>3. Injunction : Denied when there is a legal remedy.</p> <p>Where it appeared that there was an adequate remedy at law, and no facts were alleged to bring the case within any of the established heads of equity jurisdiction, a demurrer was properly sustained to a bill for an injunction.</p> <p>4. Statute : Effect of on a prior ruling of the circuit court.</p> <p>After the injunction had been’denied in the court below, the legislature passed an act authorizing them to be granted in such cases. Held, not to affect the ruling in this case.</p>

<p>APPEAL from Pulaslci Chancery Court.</p> <p>Hon. W. J. Warwick, Chancellor.</p>

<p>1. Taxes: County and District School : In what funds payable.</p> <p>The orders of school trustees are receivable for the school tax of the district for which they are issued, but not for county taxes. And county warrants are receivable for all county taxes, whether for ordinary or special purposes, and for interest on county bonds issued under an act of the legislature, approved the 23d of July, 1868, but not for the district school tax which is strictly local and assessed only on the property of the district for which it is levied.</p> <p>2. — County bonds not receivable for.</p> <p>The bonds of a county issued under the act of July 23, 1868, are not receivable for taxes.</p>

<p>1. Chancery Pleading: Exhibits.</p> <p>While it is true that a fact affirmatively appearing in an exhibit would extend and supply defective allegations in a bill, the court will not look to the exhibit for the purpose of contradicting the bill.</p> <p>3. — Intendments on demurrer.</p> <p>Where an important statement is omitted in a bill, the court will, on demurrer, take it that the omission was purposely made.</p> <p>3. Lis Pendens.</p> <p>A purchaser, pendente lite, is bound by the result of the suit.</p> <p>4. Vendor and Vendee : Effect of a title bond, etc.</p> <p>The legal effect of a title bond is like a deed executed by the vendor and a mortgage back by the vendee. And the lien of the vendor affects all persons who purchase from the vendee.</p> <p>5. Vendor’s Lien.</p> <p>A vendor who executes a deod, reciting payment of the purchase money, has an equitable lien therefor as against the vendee and purchasers with notice.</p> <p>6. — Created by the transfer of a title bond.</p> <p>The interest of one who holds under a title bond is subject to sale and transfer; and an assignment of the bond has the same legal effect in creating an equitable lien for the purchase money in favor of the assignor of the bond as a sole and absolute conveyance would have.</p>

<p>1. Pleading : Paragraphs in complaint and answer.</p> <p>The paragraphs in a code complaint take the place of counts in a common law declaration; and in an answer, they take the place of several pleas at common law.</p> <p>S. — Demurrer to separate paragraphs of an answer.</p> <p>Where, taking all the paragraphs of an answer together, they constitute a good defense to the action, it is error to sustain a demurrer to a part of them, and thereby render the remaining paragraphs insufficient as a defense.</p> <p>8. Tender : In Trover.</p> <p>In trover, the right of action is complete when a conversion is shown, and no tender of the property after conversion, or mere agreement of the owner, without consideration, to receive it, will defeat the action or mitigate the damages; but it the owner accept the property when tendered, it may be shown in mitigation, though not to defeat the action.</p> <p>4. Trover : Conversion by pledgee of a note.</p> <p>When the pledgee of a note hands it to the maker to be delivered to the payee, the pledgor, he thereby constitutes him his agent, and after an offer by such agent to deliver it to the payee, and a refusal to accept it, the latter cannot maintain an action against the pledgee for its conversion.</p>

<p>1. Exemption : The right of, not triable by fury.</p> <p>The statute does not authorize the impaneling of a jury to determine whether a party is entitled to the benefit of the exemption law.</p> <p>2. —As between a landlord and debtor of the tenant.</p> <p>The rights of a landlord against his tenant do not attach as against a debtor of the tenant, against whom the landlord has recovered judgment in a proceeding by garnishment, so as to deprive him of the benefit of the exemption conferred by the constitution.</p>

<p>1. Evidence: Writ and return in replevin to identify the property.</p> <p>If the plaintiff, in an action of replevin, desires to prove that the prop, erty in controversy was taken from the possession of the defendant and delivered to him by thé officer, he should introduce the order of delivery as well as the return, where the latter does not, of itself, identify the property.</p> <p>3. — The defendant's bond insufficient to prove redelivery, etc.</p> <p>The bond executed by the defendant is insufficient, of itself, to prove the redelivery to him of the property.</p> <p>8. Pleading: Mattel' in abatement.</p> <p>A plea that the plaintiff was non compos mentis, etc., presents matter in abatement only; in such a case, if the plaintiff has no guardian, he should sue by his next friend.</p> <p>4. Practice : When plea in abatement properly stricken out.</p> <p>Where such a plea was not filed until after several continuances and the beginning of the trial, it was properly stricken out.</p> <p>5. — When an answer should be allowed after the trial is begun.</p> <p>When the circumstances show that the parties went into trial under a mutually erroneous impression that the defendant’s answer was in, and he, upon discovering its absence, filed a substituted answer, it would have been a sound and just exercise of the discretion of the court below to have permitted the substituted answer to remain on file; and in case of surprise, to have given the plaintiffs further time in which to prepare to meet the defense interposed.</p> <p>6. — Upon striking out the answer.</p> <p>Where, in an action of replevin, the answer is stricken from the files, judgment by default should be entered against the defendant, and an inquest of damages taken.</p> <p>7. Evidence: Inguest after default in'replemn.</p> <p>On an inquest after default in replevin, the value of the property would have to be proven in order that an alternative judgment might be rendered, also the damages sustained by the detention of the property. And the defendant could introduce mitigating evidence, but none to defeat the action.</p> <p>8. Replevin: Judgment in.</p> <p>The judgment in an action of replevin should be in the alternative for the property or its value, as ascertained by the jury, if delivery cannot be had.</p>

<p>1. Jurisdiction : Of justices of .the peace.</p> <p>Under the provisions of the constitution of 1868, the jurisdiction of a justice of the peace was determined by the amount of the debt, exclusive of the interest.</p>

<p>1. Contract: Malum prohibitum.</p> <p>Contracts founded on an act prohibited by statute, under a penalty, are void.</p> <p>2. Sunday Contracts : At common law and by statute.</p> <p>There was at common law no distinction between Sunday and any other day, as to the making of contracts, and all other acts not of a judicial nature; but under our statute, a contract executed on Sunday is void.</p> <p>3. — The original contract not affected by taking a note on Sunday.</p> <p>Where a contract for the sale of land is made on a week day, and a note for the purchase money executed on Sunday, the vendor may recover the purchase money, notwithstanding the invalidity of the note.</p> <p>4. Practice : Verdict on one of several defenses.</p> <p>If several defenses are interposed, and verdict for the defendant on one that goes to the whole action, it is not material to dispose of the other issues.</p> <p>5. Ratification : Of a contract based upon an illegal consideration.</p> <p>Where the consideration of a contract is either wicked in itself, or prohibited by law, it is void and incapable of ratification.</p> <p>6. — Of Sunday contracts.</p> <p>A note executed on Sunday may be ratified by an express promise made on a week day to pay it.</p> <p>*7. Pleading: Replication of new promise.</p> <p>To a plea that a note was executed on Sunday, a new promise need not be replied under the Code practice, but may be proven.</p> <p>8. Evidence : Admissibility of.</p> <p>Evidence tending to prove a circumstance bearing on a material fact in issue should be admitted.</p>

<p>1. Contracts: Ante nuptial.</p> <p>The fact that one, during an engagement to marry, informs his intended, wife that he will settle $10,000 on her, constitutes no inducement to the marriage, and is not binding as an ante nuptial contract.</p> <p>.2. Husband and Wine : Gift from husband to wife when the formen' is indebted.</p> <p>A gift from a husband to his wife is not void as to his creditors, if he retains ample means to pay his debts.</p> <p>•3. Fraudulent Conveyance: Of the homestead.</p> <p>If a debtor in failing circumstances, for the purpose of hindering and delaying his creditors, conveys the homestead tract of land in trust for the benefit of his wife, the conveyance will be fraudulent and void as to creditors.</p> <p>•4. Homestead Exemption : Estate created by.</p> <p>The legal effect of the homestead act is not to create a new estate, but only to protect the occupant in the use and enjoyment of the land set apart as a homestead during such occupancy; and the rights of judgment creditors are fully restored upon abandonment or the death of the parly without wife or children.</p> <p>■5. Chancery Jurisdiction: To set aside a fraudulent 'conveyance by a deceased party, etc.</p> <p>Where a debtor made a fraudulent conveyance and died, and a judgmeat creditor, having probated his claim and had it allowed and classed in the third class, filed a bill in chancery to have the conveyance set aside and the land subjected to the payment of his claim. Held, that the court had jurisdiction to set the sale aside and subject the property to the payment of the debts, and might well retain its jurisdiction to settle and dispose of the equitable rights of the parties.</p>

<p>1. Constitutional Law: Judicial proceedings of confederate courts entitled to full faith, etc.</p> <p>The provision of the constitution of the United States, requiring full faith and credit to be given to the public acts, records and judicial proceedings of every other state, held to apply to a judicial proceeding had in the state of Texas during the war.</p> <p>2. Payment : In confederate money; when good.</p> <p>When confederate money was paid to, and accepted by an administrator in satisfaction of a debt due to the intestate, and by the administrator used at par in the payment of the debts of the estate, it was a good payment and extinguished the debt.</p>

<p>1. Conflict of Law : Lex rei sitce controls the alienation and descent of land.</p> <p>The alienation and descent of real estate is governed by the laws of the state or country in which it is situated.</p> <p>2. — Bight of dower subject to the lex rei sitce.</p> <p>The right of the widow in the lands of her husband; the time and manner of assigning, and the causes that may defeat her dower, are all determined by the laws of the state in which the lands are situated.</p> <p>3. Wills : When a provision for the wife held to be in lieu of dower.</p> <p>Where a testator makes a provision for his wife, and proceeds to dispose of all the remainder of his property, it will be presumed that the provision was intended in lieu of dower.</p> <p>4. Conflict of Law: Effect of a will made and admitted to probate in another state.</p> <p>A will which was executed and admitted to probate in Tennessee is as valid to dispose of real estate situated in this state, as if made and admitted to probate here.</p> <p>5. ■ — Election of widow to renounce a provision and take dower, controlled by the lex rei sitm.</p> <p>The right of a widow to renounce the provisions of a foreign will and take dower out of the lands of her deceased husband, situated in this state, is governed by the laws of this state, and the proceeding must conform to our statute.</p> <p>6. Foreign Executor: Source of his authority, and when he may sell Arkansas lands.</p> <p>By the provisions of a will made in Tennessee, the executor was authorized to sell the lands of the testator in that and other states. Held, 1st, when the will was properly probated in Tennessee, and letters testamentary granted, the will, and not the letters, was his authority to sell the land; the letters were merely evidence of the authority conferred by the will; 2d, he could not sell the Arkansas lands under the will until it was admitted to probate and recorded in this state, but it was not necessary for him to take out letters here in order to sell.</p> <p>7. Foreign Executor and Domestic Administrator: Bight to the land.</p> <p>Where a will is made and probated in another state, and an adminis trator is appointed in this, lands situated here are assets in the hands of the administrator for the payment of domestic debts, and the foreign executor cannot disturb his possession for the purpose of selling them, until such debts and the cost of administration are paid.</p>

<p>1. Vendor’s Lien: Not affectedly probate of the claim.</p> <p>The vendor’s equitable lien is not affected by the probate and allowance of the claim against the estate of the vendee.</p> <p>2. — Does not pass by the assignment of a judgment for the purchasemoney.</p> <p>A vendor of real estate recovered a judgment, in the 'probate court, against the estate of the vendee, for the purchase money, assigned the judgment, and afterwards filed a bill to enforce the vendor’s equitable lien, for the benefit of the assignees: Held, that the lien did not pass to the assignees of the judgment, and the bill could not be maintained.</p>

<p>1. Married Women: Separate estate of, how created, etc.</p> <p>A married woman could, in ■ equity, take real and personal property to her separate and exclusive use; but in order to exclude tbe marital rights of tbe husband, the intention to settle it to her. sole use must have been clearly expressed by apt words to that effect.</p> <p>2. — Bight to cho/rge her separate estate.</p> <p>The right of a married woman to charge her separate estate with the payment of her debts, especially those created for her own benefit, or in respect to the estate, is well settled.</p> <p>3. Exhibits : JEffect of, on demwrrer.</p> <p>Held, on demurrer, that a deed made on exhibit and referred to in tbe complaint, and thereby made a part of the record, would control the averments of the complaint.</p>

<p>1. Practice at Law : Bill of particulars.</p> <p>Unless the complaint is sufficiently explicit to notify him, the defendant is entitled, under the code of practice, to such a bill of particulars as will inform him what he has to answer, and afford him record protection against subsequent litigation in regard to the same subject matter; but the plaintiff in an action of trespass is not required to file an invoice of a stock of goods upon which the trespass was committed.</p> <p>2. Damages : Punitive, when not warranted.</p> <p>Where a trespass is committed through a mutual mistake of the rights , of the parties, it will not warrant punitive damages.</p> <p>3. Remittitur: Of excessive damages, how entered.</p> <p>The proper practice, where the verdict is excessive, is to enter a remittitur on the verdict, and take judgment for the balance.</p> <p>4 Trespass: Return of the goods taken, effect of.</p> <p>The mere return of goods by a trespasser, and acceptance by the plaintiff, will not bar an action of trespass for the taking, but will go in mitigation of damages.</p> <p>5. —JEffect of subsequent agreement upon the right of action.</p> <p>The fact, that one whose goods were illegally seized, subsequently entered into an agreement, under which they were disposed of, will not affect the right of action for the illegal seizure.</p> <p>6. Evidence : Admissibility of.</p> <p>A witness should not be permitted to testify, that in consequence of the alleged trespasses he lost credit and had to close business; that was a conclusion to be deduced by the jury from the facts proved.</p> <p>7. Damages : Measure of, in trespass.</p> <p>When one, against whom an execution is illegally issued, voluntarily disposes of his property at a reduced price, in order to apply the proceeds to the execution, the price received for the property is the measure of damages, and not the actual value, or speculative prices that he might otherwise have received.</p> <p>3. Former Recovery : When a proceeding for contempt may be pleaded as.</p> <p>When a proceeding by attachment for contempt is instituted as a means of private redress, and results in satisfaction, it may be pleaded in bar of a subsequent action of trespass between the same parties, and l founded on the same subject matter.</p>

<p>Attachment: Judgment ly defmlt against a garnishee.</p> <p>It is error to render judgment by default against a garnish.ee, without proof, or on examination of him.</p>

<p>1. Chancery Jurisdiction: To render a decree for damages on an injunction bond.</p> <p>Under the statute a court of equity may, upon dissolution of an injunction, assess the damages and render a decree therefor against the plaintiff; and such assessment will be conclusive against the sure- - ties on the bond, but the court has no jurisdiction to render a decree against them.</p> <p>2. Practice in Supreme Court : Wherre there was no jurisdiction in the-court below.</p> <p>This court will review a chancery cause brought into it by appeal, whether the court below had jurisdiction or not.</p> <p>3. Stay Bond: When it creates a merger of the judgment.</p> <p>Under the provisions of the code, the execution of a stay bond merges; the original in the statutory judgment as to the defendants who; execute the bond, if not to all of them; but if the original judgment be void all the subsequent proceedings based thereon are equally so* and this rule will not operate.</p>

<p>1. Tax Deed : When void.</p> <p>TJnder the provisions of sec. 118, ch. 148, Gould’s Dig., a tax collector was required to sell each tract of land separately, and a tax deed which shows on its face a violation of this provision is void.</p> <p>2. Tax Sale : When tender of the taxes, penalty, etc., to the purchaser dispensed with.</p> <p>W. sold and conveyed the land in controversy to G. & Co., who sold and conveyed to the appellants; the latter neglecting to pay the taxes, the land was sold, and a tax deed, void on its face, was executed to G. & Co., as assignees of the tax purchaser. Appellants being out of possession brought suit against W. to recover the land, to which an equitable answer and cross bill was filed, making the appellees, W.’s vendors, parties; the latter also filed a cross bill for the foreclosure of their lien for the unpaid purchase money. Without any motion to dismiss, or other pleading raising the question, it was objected in this court for the first time that the appellees had not filed an affidavit of tender under secs. 7 and 8, ch. 106, Gould’s Dig., before commencing this cross suit. Held, that under the circumstances the objection was not well taken.</p>

<p>1. Tax Sale : For a la/rger penalty than the law imposes, void.</p> <p>Under the provisions of the revenue act of July S3,1868, which was continued in force for the purpose of collecting 'the taxes of that year, twenty-five per cent, was the penally imposed for the nonpayment of taxes on land, and a sale for a larger penalty was void.</p> <p>S. Tax Deed : When void.</p> <p>Under the provisions of the revenue act of 1868, and the act of February, 1869, supplemental thereto, a tax collector was required to sell each tract of land separately, and a tax deed which shows on its face a violation of this provision is void.</p> <p>3. —Cannot be validated by introducing the recitals.</p> <p>Where, in such a case, the tax deed is relied upon as evidence of title, its invalidity cannot he cured hy evidence aliunde, contradicting the recitals contained in it.</p> <p>4. Attorney : His right to purchase client's land at tax sale.</p> <p>The mere fact that a purchaser of land at a tax sale was, during the life of the deceased owner, his attorney in some suits, did not cast upon him the duty of paying the taxes or redeeming the land, or affect his right to purchase.</p>

<p>1. Payment : Privity essential to.</p> <p>To constitute payment, there must be privity between the parties. And so where A. delivered his note to B., under an agreement that it was to be received in discharge of a prior note executed by A. to B., which the latter had assigned without A.’s knowledge, it did not discharge the original note.</p> <p>2. Assignment: Of promissory note when insufficient to pass tide.</p> <p>And where, in such case, the subsequent note was transferred by the payee to the assignee of the original note, the latter having knowledge of the facts and circumstances, and refusing to surrender the original note, he acquired no title to the subsequent one.</p>

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

<p>1. Evidence of Paktnebship:</p> <p>(1.) Admissions of one partner.</p> <p>The admissions and declarations of one member of an alleged firm, in the absence of the others, are not admissible, as against them, to' prove the partnership. It is only after a partnership has been proven that the admissions of one of the partners are competent evidence against the others.</p> <p>(2.) Gommm'cial agency reports.</p> <p>The reports of a commercial agency are not admissible to prove a partnership, unless knowledge, or means of knowing of them, is breught home to the party attempted to be charged.</p> <p>(3.) Acts of one partner.</p> <p>The acts of one member of an alleged firm are inadmissible to establish the partnership, as against another who is not shown to have had knowledge, or the means of knowing of, and contradicting them.</p> <p>(4) General reputation.</p> <p>Evidence of general reputation is not competent to establish a partnership as against one who was absent from the country and ignorant of the reputation.</p> <p>(5.) Admissions of an agent.</p> <p>The admission of an agent, not shown to have been made in connection with, and as part of an act, within the scope of his agency, is not competent to bind his principal, or establish a partnership.</p> <p>U. Estoppel : To deny partnership.</p> <p>One who knowingly permits his name to be used as a member of a trading firm, under such circumstances as to mislead a stranger who deals with the firm on the faith that he is a partner, is liable as such.</p> <p>■3. Diligence: Where one is held out as a partner without his knowledge.</p> <p>Diligence in ascertaining and contradicting the report, is not required of one who is held out as a member of a partnership without his knowledge.</p> <p>4. Agency: Power of a general agent.</p> <p>A general power of attorney authorizing the agent to represent the principal in all his interests, in a given locality, do'es not empower him to embark the principal in a new and different business.</p>

<p>1. Evidence ; A writing cannot be varied by patrol.</p> <p>A contract cannot rest partly in writing and partly in parol ; and where it is reduced to writing, oral evidence of what occurred at or before the time is inadmissible to contradict or vary it.</p> <p>2. Mortgage : Equity of redemption inseparable from.</p> <p>A stipulation by which a mortgagor’s equity of redemption was to be cut off upon failure to perform the condition by a particular time, is void.</p> <p>§. Contract ; Performance of contract to pay debts of another.</p> <p>Where one who contracts to pay the debts of another discharges them by payment of less than the whole amount due, it is a sufficient performance.</p> <p>4. Cost.</p> <p>A defendant who failed to complete the performance of his contract until after suit brought, will be required to pay the costs incurred in the circuit court.</p>

<p>1. Conveyance: Effect of, on unacknowledged and unattested deed.</p> <p>An instruction that the jury must disregard a deed under which the defendant was placed in possession and .claimed title, unless they were satisfied that it had been executed in the presence of two witnesses, or acknowledged before witnesses or a competent officer, was erroneous, for if the deed conveyed no legal title it conferred an equitable interest under which he was entitled to hold the possession.</p> <p>2. Bill or Exceptions : Instructions need not be embodied in.</p> <p>The instructions need not be embodied in the bill of exceptions; if they are so marked and referred to that they may be identified, it is sufficient.</p>

<p>1. Bankruptcy: Bill to enforce vendor's equitable lien not maintainable against a bankrupt.</p> <p>The title to the real estate of a bankrupt passes to his assignee, and a bill to enforce the vendor’s equitable lien cannot be maintained against the bankrupt.</p> <p>2. Vendor’s Lien: Defense of innocent purchaser for value.</p> <p>One who sets up this defense in a proceeding to enforce the vendor’s equitable lien should briefly state the contents of his deed, and show, independent of its recitals, the consideration, and that it was bona fide paid; and should positively deny notice before payment and delivery of the deed whether it- is charged or not, and where notice is specially charged, should deny all circumstances referred to from which it could be inferred.</p> <p>3. —Burden of pi'oof.</p> <p>Where the defense of innocent purchaser for value is set up affirmatively, and not in response to averments of the bill, the defendant must show by the proof an actual, and fully completed, purchase for value.</p> <p>4 — Bight of action where the note is transferred by delivery as collateral security.</p> <p>Where the holder of a note for the purchase money of land delivers it to another as collateral security, without assigning it, the former may maintain a bill to enforce the equitable lien against the land.</p>

<p>APPEAL from Phillips Circuit Court.</p> <p>Hon. W. H. H. Clayton, Circuit Judge.</p>

<p>APPEAL from Phillips Circuit Court.</p> <p>Hon. J. H. Williams, Special Judge.</p>

<p>1. Principal and Surety: Effect of the discharge of one surety by opera, tion of law.</p> <p>The discharge of one of several sureties by the failure of the creditor to sue within thirty days after notice under the statute is personal to him, and will not affect the liability of his co-sureties.</p> <p>3. — Effect of indemnity on the rights of surety.</p> <p>Where the principal debtor, in order to indemnify his sureties against payment of the debt, executes a deed of trust on property sufficient in value for that purpose, none of the sureties, whether named in the deed or not, can require the creditor to sue on thirty days’ notice under the statute.</p>

<p>1. Statute cot Limitations : On a mortgage.</p> <p>To bar a proceeding to foreclose a mortgage, there must be an adverse holding for such a period as would bar an action of ejectment. The fact that the statute bar has attached to the debt secured by the mortgage will not aftect a proceeding to foreclose.</p> <p>2. — Adverse holding in ease of a mortgage.</p> <p>There must be an open and notorious denial of the mortgagee’s title, in order to constitute an adverse holding in favor of the mortgagor.</p> <p>3. — Decree on foreclosure where the debt is barred.</p> <p>In a proceeding to foreclose, a court of equity will render a decree in personam against the mortgagor for any part of the debt remaining undischarged by the sale, notwithstanding the remedy thereon is barred.</p> <p>4. Mortgage : Partial release by a prior mortgagee, effect of.</p> <p>If a mortgagee releases a part of the mortgaged premises, with actual! knowledge that a subsequent mortgage has been executed on another ! part, he thereby discharges the latter pro tanto.</p> <p>5. Notice : Record of a subsequent mortgage.</p> <p>The recording of a subsequent mortgage is not notice to a prior mort-j gagee as to rights vested under the prior mortgage.</p> <p>6. Usury.</p> <p>Plea of, not permissible while the act of 1868 was in force.</p> <p>7. Dower: Postponed to the vendor's claim for purchase money.</p> <p>The widow of the vendee is not entitled, as against the vendor proceeding for the purchase money, to dower in land purchased during coverture.</p>

<p>1. Judgment: When the verdict fails to fix theamount of the recovery.</p> <p>Where, in a suit on an open account, the jury find a verdict generally for the plaintiff, without ascertaining the sum due, it is error to render a judgment thereon for the sum demanded.</p> <p>2. Liens: Of laborer for the erection of buildings.</p> <p>Section 4092 of Gantt’s Dig., construed in connection with other sections of the chapter, impliedly -gives laborers a limited lien on land for buildings erected thereon under contract.</p> <p>3. — Of laborer for clearing and cultivating land.</p> <p>A laborer who cultivates land, or clears and prepares the same for cultivation, is not entitled to a lien thereon for his wages.</p>

<p>1. Evidence : Wife’s competency as a witness.</p> <p>After the husband’s death, the wife is competent to testify as to such matters, touching his business, as come under her observation during the husband’s life, and were not learned by communications from him.</p> <p>3.— When the source of information not disclosed.</p> <p>Where a witness testifies as to a fact without disclosing the source of his knowledge, the court will not exclude his testimony on the presumption that it is hearsay ; but it will attach less weight to it than it would if the means of information had been stated, or it had appeared to have been stated from personal knowledge.</p> <p>3. Pleading: Departure in.</p> <p>Where the plaintiff’s answer to a cross bill is in some respects modified, but asserts substantially the same proposition as the complaint, there is no departure in pleading.</p>

<p>1. Chancery Jurisdiction : To remove cloud upon title, etc.</p> <p>The rule heretofore adopted by this court that a bill in chancery to remove a cloud upon the title cannot be entertained where the plaintiff is out of possession, approved ; but if the case presents other grounds of equitable jurisdiction, or the remedy at law is inadequate, the court will take jurisdiction, notwithstanding the defendant is in possession.</p> <p>3.— Where (he grounds of jurisdiction appear.in a woss-bill.</p> <p>If there should be a defect of jurisdiction under the original bill in a chancery proceeding, and the defendant files a cross-bill founded upon matters of equitable cognizance, it will cure the defect.</p> <p>3. Fraudulent Conveyance : Proceedings to set aside.</p> <p>Where a judgment creditor seeks to subject land which the debtor has conveyed fraudulently, the proper practice is to exhaust the process of the court, and apply to a court of equity for aid before a sale. And. if he should levy on and purchase the land at execution sale before seeking the aid of the court, he might well be denied relief, unless the proceedings were in all respects fair and regular.</p> <p>4, Evidence: To establish a trust in favor of the wife.</p> <p>Where a wife sets up in a cross-bill, in opposition to the creditors of her husband, a trust in land alleged to have been purchased by him with her means, she will be required to make clear and satisfactory proof of the facts upon which the alleged trust is founded.</p> <p>5. Resulting Trust : By the payment of purchase money.</p> <p>In order to create a trust in favor of one who pays the purchase money for land conveyed to another, the payment must be made at the time of the purchase, so as to make it one transaction. And if a husband, after the purchase of land in his own name, applies his wife’s money to the payment of advances of purchase money made by others, it creates no trust or equity in her favor.</p>

<p>1. Homestead : Infant cannot abandon.</p> <p>Minors are incapable, by act or declaration, of waiving or abandoning tbe homestead right.</p> <p>2. — Nature of the occupancy required, of infants.</p> <p>It is the duty of the guardian to take possession of the homestead and. rent it for the benefit and support of the ward, and this is the occupancy contemplated by the statute. (Act of 1852.)</p> <p>S. —Effect of the act upon the rights of creditors.</p> <p>The effect of the homestead act of 1852 was to suspend the rights of creditors until the child or children should become of age, at which time the creditors would be entitled to satisfaction out of the homestead.</p> <p>4. — Ejectment will lie for tlw recovery of.</p> <p>During the existence of the homestead right, the children have such an estate and right of possession as will enable them to maintain ejectment for the recovery of the land.</p>

<p>1. Chancery Pleading : Certainty requisite.</p> <p>A bill in chancery, filed for the purpose of recovering the assets of arc estate, and praying the appointment of a receiver, which fails to describe the property, is demurrable.</p> <p>2. Keceiver : Subject matter of Ms trust should be designated.</p> <p>A receiver should not be appointed to take charge of property without a sufficient description to enable him to ascertain the subject matter of his trust.</p> <p>3. Decree : For distribution, certainty in.</p> <p>A decree for the distribution of an estate should set out specifically the property to be distributed.</p> <p>4. Alien : Capacity to talce and transmit land.</p> <p>Under our statute, aliens may take and transmit land by inheritance or otherwise; and they could, at common law, take by devise.</p> <p>•5. Chancery Pleading : Answer and demurrer under the Oode.</p> <p>A demurrer may be reserved in an answer under the Code pleading, but must be disposed of before the hearing, unless it goes to the jurisdiction of the court, or the sufficiency of the cause of action; and, in compelling the defendent to elect between-his demurrer and answer, and after overruling the demurrer, rendering a decree for the plaintiff without proof, while material allegations of the com' plaint were denied by the answer, the court below erred.</p> <p>■6. — No departure from the original purpose allowed.</p> <p>A complaint in equity which is insufficient to obtain the particular purpose for which it was designed cannot be used for any other purpose.</p> <p>7. Jurisdiction : In suits between citizens and aliens.</p> <p>The state courts have concurrent jurisdiction with the federal courts over controversies between citizens and aliens.</p>

<p>1. Married Woman: Conveyance, or relinquishment of dower by.</p> <p>Under our statute, an acknowledgment, upon privy examination, is requisite to the validity of the wife’s conveyance or relinquishment of dower, and the husband must join in the deed.</p> <p>2. —Cannot contract to convey land.</p> <p>A married woman cannot, under the statute, execute a title bond or executory contract to convey land.</p> <p>3. Vendor and Vendee. Becitals of vendor's deed are notice.</p> <p>A vendee is affected with notice of the recitali contained in the deed of his vendor, whether it is of record or not.</p> <p>4. Statute oe Limitations : In case of dower.</p> <p>The statute of limitations runs against the widow’s right of dower, in favor of a stranger, from the time of the husband’s death.</p>

<p>Constitutional Law: Corporations, service of process on.</p> <p>The provisions of a charter of incorporation, regulating the manner of serving process on the corporation, relates alone to the remedy, and a subsequent general enactment, prescribing the manner of serving process in such cases, operates as a repeal of the charter provision.</p>